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3,400 | https://www.mspb.gov/decisions/nonprecedential/PRATHER_BRYAN_K_DE_844E_21_0025_I_1_FINAL_ORDER_2010633.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
BRYAN K. PRATHER,
Appellant,
v.
OFFICE OF PERSONNEL
MANAGEMENT,
Agency.
DOCKET NUMBER
DE-844E -21-0025 -I-1
DATE: March 10, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL1
Leah B. Kille , Esquire, Lexington, Kentucky, for the appellant.
Jo Bell , Washington, D.C., for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
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1 A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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 dis tinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c).
2 Member Leavitt’s name is included in decisions on which the three -member Board
completed the voting process prior to his March 1, 2023 departure.
2
FINAL ORDER
¶1 The age ncy has filed a petition for review and the appellant has filed a cross
petition for review of the initial decision, which reversed the final decision by the
Office of Personnel Management (OPM) denying the appellant’s application for
disability retirement under the Federal Employees’ Retirement System (FERS).
Generally, we grant petitions such as these only in the following circumstances:
the initial decision contains erroneous findings of material fact; the initial
decision is based on an erroneous interpretation of statute or regulation or the
erroneous appl ication of the law to the facts of the case; the administrative
judge’s rulings during either the course of the appeal or the initial decision
were not consistent with required procedures or involved an abuse of discretion,
and the resulting error affected the outcome of the case; or new and material
evidence or legal argument is available that, despite the petitioner’s due
diligence, was not available when the record closed. Title 5 of the Code of
Federal Regulations, section 1201.115 ( 5 C.F.R. § 1201.115 ). After fully
considering the filings in this appeal, we conclude that neither party has
established any basis under section 1201.115 for granting the petition or cross
petition for re view. Therefore, we DENY the petition for review and the cross
petition for review and AFFIRM the initial decision, which is now the Boar d’s
final decision. 5 C.F.R. § 1201.113 (b).
DISCUSSION OF ARGUME NTS ON REVIEW
The appellant’s request for interim relief is denied.
¶2 The Board’s regulations commit the granting of interim relief to the
administrative judge’s discretion. 5 C.F.R. § 1201.111 (c)(1); see 5 U.S.C.
§ 7701 (b)(2)(A)(i). In this case , the administrative judge denied interim relief.
Initial Appeal File (IAF), Tab 20, Initial Decision (ID) at 9. In his cross petition,
the appellant requests that the Board nonetheless award interim relief, arguing
that the lack of interim payment would cause him a significant financial burden.
3
Petition for Review (PFR) File, Tab 3 at 8 -10. However, there is no authority
that provides for requesting interim relief that was not ordered . See Dean v.
Department of the Army , 57 M.S.P.R. 296 , 300 (1993) . In any event, the
appellant’s arguments in this regard are now moot because interim relief is in
effect only pending the disposition of a petition for review. See 5 U.S.C.
§ 7701 (b)(2)(A); Garc ia v. Department of State , 106 M.S.P.R. 583 , ¶ 7 (2007).
Accordingly, we deny the appellant’s cross petition.
OPM’s petition for rev iew does not pr ovide a basis for further review.
¶3 Under 5 C.F.R. § 1201.56 (a)(2), an employee bears the burden of
persuasion by a preponderance of the evidence in an appeal from OPM's deci sion
on a voluntary disability retirement application. Chavez v. Office of Personnel
Management , 6 M.S.P.R. 404 , 417 (1981). To be eligible for a disability
retirement annuity under FERS, an employee must show that: (1) he completed at
least 18 months of creditable civilian service; (2) while employed in a position
subject to FERS, he 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 useful and
efficient service or retention in the position; (3) the disabling medical condition is
expected to continue for at least 1 year from the date the application for disability
retirement benefits was filed; (4) accommodation of the disabling condition in the
position held must be unreasonable; and (5) he did not decline a reasonable offer
of reassignment to a vaca nt position. Doe v. Office of Personnel Management ,
109 M.S.P.R. 86 , ¶ 8 (2008); see 5 U.S.C. § 8451 (a); 5 C.F.R. § 844.103 (a). On
review, OPM argues that the administrative judge erred in finding that the
appellant established requirement (4) by a preponderance of the evidence.
¶4 In Bracey v. Office of Personnel Management , 236 F.3d 1356 (Fed. Cir.
2001), the U.S. Court of Appeals for the Federal Circuit held that, for purposes of
determining eligibility for disability retirement under the Civil Service
Retirement System , an accommodation precludes disability retirement only if it
4
(1) adjusts the employee’s job or work environment, enabling him to perform the
critical or essential duties of his position; or (2) reassigns the employee to an
established, vacant position at the same grade and pay. Id. at 1358 -59. The court
found that, in that case, the employee’s assignment to a light -duty position did
not c onstitute an accommodation because he did not perform the “critical or
essential elements” of the position but performed lower -graded duties instead. Id.
at 1360 -61. The court further concluded that the assignment did not constitute a
reassignment to a v acant position since the light -duty assignment consisted of a
“set of duties selected on an ad hoc basis to fit the needs of a particular disabled
employee” and was not a definite, preexisting position that was classified and
graded according to its duties , responsibilities, and qualification requirements.
Id. at 1359 -60. In Marino v. Office of Personnel Management , 243 F.3d 1375 ,
1377 (Fed. Cir. 2001), the court extended the holding of Bracey to disability
retirement applications under FERS.
¶5 OPM argues that, because the record does not provide the details of the
light -duty assignment the Department of Homeland Security (DHS) offered the
appellant, it is unknown whether it w ould have permitted the appellant to perform
the critical or essential elements of his position. PFR File, Tab 1 at 8. Hence,
OPM reasons, the appellant failed to show by preponderant evidence that the
accommodation was not reasonable. Id. However, in an email memorializing the
offer, the appellant specified that DHS had verbally offered to allow him “to
return to work on a light duty status to perform ad hoc duties .” IAF, Tab 7 at 167
(emphasis added). The appellant’s characterization of the offer, w hich remains
unrebutted, supports an inference that DHS did not propose an adjustment to his
job or work environment that would have enabled him to perform the duties of his
actual position. In any event, the administrative judge did not rely solely on
Bracey , but further found, based on the medical documentation, the appellant’s
testimony, and his position description, that reasonable accommodation was
impossible, particularly given the appellant’s limitations on computer work and
5
his inability to read and comprehend at his pre -November 2019 level. See ID
at 7-8. We discern no error in that portion of the analysis, and OPM does not
challenge it on review. Accordingly, we deny the agency’s petition.
¶6 We ORDER OPM to approve the appellant ’s application for disability
retirement beginning his last day in pay. OPM must complete this action no later
than 20 days after the date of this decision.
¶7 We also ORDER OPM to tell the appellant promptly in writing when it
believes it has fully carried out the Board’ s Order and of the actions it has taken
to carry out the Board’s Order. We ORDER the appellant to provide all necessary
information OPM requests to help it carry out the Board’s Order. The appellant,
if not notified, should ask OPM about its progress. See 5 C.F.R. § 1201.181 (b).
¶8 No later than 30 days after OPM tells the appellant it has fully carried out
the Board’s Order, the appellant may file a petition for enforcement with the
office that issued the initial decision on this appeal if the appellant believes that
OPM did not fully carry out the Board’s Order. The petition should contain
specific reasons why the appellant believes OPM has not fully carried out the
Board’s Order, and s hould include the dates and results of any communications
with OPM. See 5 C.F.R. § 1201.182 (a).
NOTICE TO THE APPELL ANT REGARDING
YOUR RIGHT TO 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 fo und 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 O F THIS DECISION.
You must file your motion for attorney fees and costs with the office that issued
the initial decision on your appeal.
6
NOTICE OF APPEAL RIG 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).
Altho ugh we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to f ile within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for 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.
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. ____ , 137 S. Ct. 1975 (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
8
to waiver of any requirement of prepayment of fees, costs, or other security. See
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 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 Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D .C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our 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 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/C ourtWebsites.aspx .
FOR THE BOARD:
Washington, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board | PRATHER_BRYAN_K_DE_844E_21_0025_I_1_FINAL_ORDER_2010633.pdf | 2023-03-10 | null | DE-844E | NP |
3,401 | https://www.mspb.gov/decisions/nonprecedential/MURPHY_MARTIN_NEENA_ROCHELLE_DC_1221_16_0259_X_1_FINAL_ORDER_2009955.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
NEENA ROCHELLE MURPH Y-
MARTIN,
Appellant,
v.
DEPARTMENT OF VETERA NS
AFFAIRS,
Agency.
DOCKET NUMBER
DC-1221 -16-0259 -X-1
DATE: March 9, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL1
Cheri L. Cannon , Esquire, Washington, D.C., for the appellant.
Diane Duhig , Washington, D.C., for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon , Member
Tristan L. Leavitt , Member2
FINAL ORDER
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no p recedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributi ng 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
¶1 On August 11, 2017, the administrative judge issued a compliance initial
decision granting the appellant’s petition for enforcement and finding the agency
in partial noncompliance with the Board’s final decision , which granted the
appellant’s request for corrective action in her individual right of action (IR A)
appeal. Murphy -Martin v. Department of Veterans Affairs , MSPB Docket
No. DC-1221 -16-0259 -C-1, Compliance File (CF), Tab 16, Compliance Initial
Decision (CID); Murphy -Martin v. Department of Veterans Affairs , MSPB Docket
No. DC -1221 -16-0259 -W-1, Initial Appeal File, Tab 32, 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 In a November 18, 2016 initial decision granting the appellant’s request for
corrective action in her IRA appeal , the administrative judge ordered the agency
to rescind the appellant’s removal ; reinstate her effective December 2, 2015 ; and
pay her the appropriate amount of back pay, with interest , and to adjust benefits
with appropriate credits and deductions in accordance with the Office of
Personnel Management (OPM) regulations. ID at 13-14. The initial decision
became the final decision of the Board on December 23, 2016, after neither party
filed a p etition for administrative review.
¶3 On June 19, 2017, the appellant filed a petition for enforcement of the
November 18, 2016 decision, asserting that the agency had not paid her the full
amount of back pay owed or provided an accounting of its calculatio ns. CF,
Tab 1. In the August 11, 2017 compliance initial decision, the administrative
judge granted the appellant’s petition for enforcement and ordered the agency to
take the following actions : (1) pay the appellant the appropriate amount of back
pay w ith interest and to adjust benefits with appropriate credits and deductions in
accordance with the OPM regulations; (2) restore the appellant’s leave balances,
Thrift Savings Plan (TSP) contributions, and other benefits to reflect the status
3
quo ante ; (3) inform the appellant in writing of all actions taken to comply with
the Board ’s order and the date on which it believe d it has fully complied; and
(4) identify the agency official charged with complying with the Board ’s order
and inform such official in writing of the potential sanction for noncompliance.
CID at 3-4. Neither party filed any submission with the Clerk of the Board within
the time limit set forth in 5 C.F.R. § 1201.114 , 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). Murphy -Martin v.
Department of Veterans Affairs , MSPB Docket No. DC -1221 -16-0259 -X-1,
Compliance Referral File (CRF), Tab 1.
¶4 In a September 19, 2017 acknowledgement order, the Clerk of the Board
ordered the agency to submit evidence showing that it complied with all of the
actions identified in the compliance initial decision. Id. at 3. In addition, the
Clerk informed the appellant that she could respond to the agency’s evidence of
compliance within 20 days of the date of service of the agency’s submission and
that, if she did not respond, the Board may assume she was satisfied and dismiss
her petition for enforcement. Id.
¶5 On March 13, 2018, the agency submitted a compliance status report
stating, among other things, that “unofficially, the unde rsigned [agency counsel]
can aver” that an unspecified amount of back pay had been paid to the appellant
and that the compliance matter should be dismissed .3 CRF, Tab 2. On April 23,
2018, the agency resubmitted its March 13 , 2018 status report with addi tional
exhibits reflecting (without explanation) its calculations of the appellant’s back
3 In its compliance status report , the agency stated that it had paid the appellant
compensatory damages in accordance with the October 27, 2017 initial decision in
MSPB Docket No. DC -1221 -16-0259 -P-1, and attorney fees in accordance wit h the
November 8, 2017 initial decision in MSPB Docket No. DC -1221 -16-0259 -A-1. CRF,
Tab 2 at 5. However, the agency’s payment of compensatory damages and attorney fees
are not at issue in this compliance matter. CF, Tab 1; CID. Accordingly, neither is sue
will be addressed herein.
4
pay award and interest on the back pay, retroactive TSP contributions, and benefit
and leave adjustments . CRF, Tab 3 at 8-43. The appellant did not respond to the
agency’s compliance submissions .
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 oc curred. 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 Bo ard order. Vaughan v. Department of
Agriculture , 116 M.S.P.R. 319 , ¶ 5 (2011); 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 continu ed noncompliance.”
Brown v. Office of Personnel Management , 113 M.S.P.R. 325 , ¶ 5 (2010).
¶7 As discussed above, the agency stated that it has paid the appellant the back
pay owed and provided evidence reflecting its calculations . CRF, Tabs 2-3.
Although the agency’s submissions do not provide a clear explanation of its
compliance actions, the appellant, who is represented by counse l, has not
responded to them, despite being informed of her opportunity to do so and the
consequences of not responding. Accordingly, the Board assumes she is satisfied
with the agency’s compliance. See Baumgartner v. Department of Housing and
Urban Deve lopment , 111 M.S.P.R. 86 , ¶ 9 (2009).
¶8 In light of the foregoing , we find the agency in compliance and DISMISS
the petition f or enforcement.4 This is the final decision of the Merit Systems
4 The agency has not demonstrated compliance with the administrative judge’s order to
identify the agency official charged with complying with the Board ’s order and to
inform such official in writing of the potential sanction for noncompliance . CID at 4.
Nonetheless, given the appellant’s apparent satisfaction with the agency’s compliance,
5
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
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 issu ed
the initial decision on your appeal.
NOTICE OF APPEAL RIG HTS5
You may obtain review of this final decision. 5 U.S.C. § 7703 (a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703 (b).
Although we offer the 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
we do not find that the agency’s failure to comply with this requirement precludes
dismissal of the appellant’s petition for enforcement.
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.
6
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular 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:
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.
7
(2) Judicial or EEOC rev iew of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. ____ , 137 S. Ct. 1975 (2017). If you have a
representative in this case, and your representative receives this decision before
you do, then you must file with the district court no later than 30 calendar days
after your representative receives this decision. If the action involves a claim of
discrimination based on race, color, religion, sex, national origin, or 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 decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
8
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via c ommercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistl eblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
other protected activities listed in 5 U.S.C. § 2302 (b)(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.6 The court of appeals must receive your
petition for review within 60 days of the date of issuance of this decision.
5 U.S.C. § 7703(b)(1)(B).
6 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 201 8, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The Al l Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195,
132 Stat. 1510.
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,” wh ich is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb. gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representat ion in a given case.
Contact information for the courts of appeals can be 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 | MURPHY_MARTIN_NEENA_ROCHELLE_DC_1221_16_0259_X_1_FINAL_ORDER_2009955.pdf | 2023-03-09 | null | DC-1221 | NP |
3,402 | https://www.mspb.gov/decisions/nonprecedential/FAVREAU_MICHAEL_LUCON_SF_0752_12_0547_I_6_FINAL_ORDER_2010147.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
MICHAEL LUCON FAVREA U,
Appellant,
v.
DEPARTMENT OF THE AR MY,
Agency.
DOCKET NUMBER
SF-0752 -12-0547 -I-6
DATE: March 9, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL1
David P. Clisham , Esquire, San Francisco, California, for the appellant.
David Michael Tucker and Douglas W. Hales , Fort Hunter Liggett,
California, 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 the appeal as moot. Generally, we grant petitions such as this one only
when: the initial decision contains erro neous findings of material fact; the initial
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been id entified 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 Boa rd
completed the voting process prior to his March 1, 2023 departure.
2
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 appe al 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 thi s 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, we AFFIRM the initial decis ion.3
BACKGROUND
¶2 At the time of the removal action upon which this appeal is based, the
appellant was employed as a Police Officer, GS -0083 -06, by the U.S. Army
Installation Management Command, Directorate of Emergency Services,
Police/Provost Marshall D ivision, Law Enforcement Branch, Camp Parks,
California. Favreau v. Department of the Army , MSPB Docket No. SF-0752 -12-
0547 -I-1, Initial Appeal File (IAF), Tab 5, Subtab 4a. The appellant entered on
duty on November 11, 2007. Id., Subtab 4n. The vacanc y announcement for his
position required the incumbent to “have or be able to complete an approved Law
Enforcement Academy training within 24 months from the date of employment,”
and Army Regulation 190 -56 imposed a requirement to attend “accredited”
acade my training unless such requirement was waived. Id., Subtabs 4k, 4o.
Local management sought a training waiver for the appellant, but the agency’s
Office of the Provost Marshal General denied the waiver request and also an
3 We modify the initial decision to address the issue of disability discrimination de
novo .
3
appeal of the denial because th e appellant lacked sufficient recent law
enforcement experience. Id., Subtab 4i. Based on his inability to obtain the
waiver and his failure to attend academy training within 2 years of his original
hire date, the agency removed the appellant effective J anuary 1, 2011. Favreau v.
Department of the Army , MSPB Docket No. SF-0752 -11-0273 -I-1 (Favreau I),
Initial Decision (ID) at 2-4 (Feb. 3, 2012).
¶3 The appellant appealed the removal, which the administrative judge
reversed on the ground of a due process v iolation. Favreau I ID at 1, 16.
However, the administrative judge found that the appellant did not prove any of
his affirmative defenses. Favreau I ID at 16. The Board affirmed the
administrative judge’s decision, and the agency restored the appellant effective
January 1, 2011. Favreau I Final Order (Feb. 21, 2014).
¶4 The appellant returned to duty on February 26, 2012. On February 27,
2012, the a gency issued a Notice of Proposed Removal, proposing his removal for
failure to maintain a basic condition of employment. IAF, Tab 5, Subtab 4f. The
appellant was removed effective April 30, 2012, and he filed this appeal. Id.,
Subtab 4c; IAF, Tab 1.
¶5 At the parties’ request, the administrative judge dismissed this appeal
without prejudice five times4 while the parties awaited the Board’s decision in
Favreau I and tried to settle the appeal before resuming adjudication. On the first
day of the hearing, the parties entered into settlement discussions. Favreau v.
Department of the Army , MPSB Docket No. SF-0752 -12-0547 -I-6, Refiled Appeal
File, (I -6 RAF), Tab 41, Initial Decision (I -6 ID) at 3. The parties did not reach a
settlement, but the agency resci nded the removal and returned the appellant to
duty on May 18, 2015. I -6 RAF, Tab 11 at 16. The agency moved to dismiss the
4 The administrative judge’s several initial decisions dismissing the appeals without
prejud ice are as follows: IAF, Tab 12; Favreau v. Department of the Army , MPSB
Docket No s. SF -0752 -12-0547 -I-2, Refiled Appeal File , Tab 4; SF-0752 -12-0547 -I-3,
Refiled Appeal File, Tab 7; SF-0752 -12-0547 -I-4, Refiled Appeal File, Tab 41;
SF-0752 -12-0547 -I-5, Refiled Appeal F ile, Tab 9.
4
appeal, arguing that it was moot because the appellant had been returned to his
prior duties and he had been provided all of the r elief to which he would have
been entitled had he prevailed. I -6 RAF, Tabs 8, 13 -15. The administrative judge
held the second day of the hearing to address issues related to the agency’s
obligation to provide the appellant with full relief and to hear ev idence and
argument regarding the appellant’s affirmative defenses of disability
discrimination and retaliation for engaging in equal employment opportunity
(EEO) activity. I -6 RAF, Tabs 21, 30, 33.
¶6 In an initial decision, the administrative judge found that the agency
showed by preponderant evidence that it had completely rescinded the appellant’s
removal and granted him full relief in the matters related to his reinstatement,
back pay, and benefits. I -6 ID at 5-18. The administrative judge found that the
appellant failed to prove his affirmative defenses of discrimination and
retaliation. I -6 ID at 18-28. Because the appellant would not be able to receive
damages based on these defenses, and the agency provided all the other relief to
which he was e ntitled, the administrative judge declined to rule on the appellant’s
affirmative defenses of retaliation for union activity, harmful procedural error,
and denial of minimum due process. I-6 ID at 28. The administrative judge
likewise declined to conside r the appellant’s whistleblower claim. I-6 ID
at 28-29. He found the appellant’s claim for attorney fees to be premature.
I-6 ID at 18. The administrative judge thus dismissed the appeal as moot. I-6 ID
at 29-30. The appellant filed this petition for review. Petition for Review (PFR)
File, Tab 3.
Applicable Law
¶7 An agency’s rescinding a final decision divests the Board of jurisdiction
over an otherwise appealable action if the agency returns the appellant to the
status quo ante. In such cases, the appeal is rendered moot. Ryan v. Department
of the Air Force , 117 M.S.P.R. 362 , ¶ 9 (2012) (stating that an appeal is rendered
moot when an appellant receives all of the relief that he could have received if the
5
matter had been adjudicated and he had prevailed). An appealable adverse action
cannot be rendered moot by an agency’s rescinding the action unless the
employee has received all the back pay to which he is entitled. Sredzinski v. U.S.
Postal Service , 105 M.S.P.R. 571 , ¶ 7 (2007) . Additionally, an agency must
remove all references to such action from the employee’s personnel records when
it cancels an action. Gonzales v. U.S. Postal Service , 44 M.S.P.R. 517 ,
519-20 (1990).
Reinstatement
¶8 Here, the administrative judge found in the initial decision that the
appellant, by his own admission, was reinstated to the status quo ante because he
was returned to the same GS-0083 -06 position he occupied before his removal,
and after he completed the required police academy training, he was assigned the
full duties of that position. I -6 ID at 6. The appellant argues that he should not
have been required to complete the pol ice academy training before returning to
the position. PFR File, Tab 3 at 5-7, 10. He asserts that, had he prevailed on
appeal, he would have been found to have met the con ditions of employment and
would not have been required to attend the academy. Id. at 10. He argues that
the administrative judge’s findings “ratif[y] the [a]gency’s failure to regard [him]
as having prevailed on his appeal.” Id. He additionally points out that local
management testified that he had met the training requirements for his position
when he was hired. Id. at 7-8.
¶9 We find that, whether local managers and the appellant believed his prior
training was sufficient, he nevertheless completed additional police academy
training after his reinstatement and was fully reinstated to the duties of his
position. Hearing Transcript (HT) (April 8, 2016) at 124-26 (testimony of the
appellant). The Board cannot grant him any further relief in this respect.
6
Special Assignments
¶10 The appella nt argued on appeal that he was not reinstated to two special
assignments in which he served before his removal: unit armorer and traffic
accident investigator. Based on undisputed testimony, the administrative judge
found that these were merely collateral duties to which he was assigned, which
were “neither permanent nor intrinsic to [his] position as a police officer.” I -6 ID
at 7-9. The administrative judge further noted that the appellant had not been
certified to serve as a traffic investigator, no permanent position had been funded
for these a ssignments, and the armorer position was entirely informal in nature.
I-6 ID at 8. The appellant argues on review that he should have been reinstated to
these collateral duties. He asserts that the initial decision adopts the agency’s
position on the is sue, and its failure to reassign him to these “appointments”
constitutes continuing animus against him. PFR File, Tab 3 at 11-12.
¶11 We find that the administrative judge did not err in determining that these
assignments were collateral duties. In fact, t he appellant admitted that the unit
armorer duties were collateral in nature. Id. at 11; see also Favreau v.
Department of the Army , MPSB Docket No. SF -0752 -12-0547 -I-5, Refiled Appeal
File (I -5 RAF), Tab 34 at 12. Moreover, the appellant’s traffic inves tigator duties
could have been only co llateral because the agency was not authorized to fill a
permanent Traffic Investigator position. HT (April 8, 2016) at 14-18, 25
(testimony of the Emergency Services Director); I -5 RAF, Tab 32 at 47-49.
Further, the appellant lacked the specialized training required to fill a permanent
Traffic Investigator position. HT (April 8, 2016) at 14-20 (testimony of the
Emergency Services Director); I -5 RAF, Tab 32 at 48. The appellant’s arguments
are thus unavailing.
Promotion
¶12 Next, the administrative judge found that the appellant failed to
nonfrivolously allege facts clearly establishing that he would have been promoted
during the period of his absence from May 1, 2012, through May 15, 2015, or that
7
such a promotion was mandated by law. I -6 ID at 9-10. The administrative judge
particularly noted that the appellant had not completed the required police
academy training at the time during which any promotional opportunity might
have arisen. Id.; see Harris v. Department of Agriculture , 50 M.S.P.R. 686 , 697 (1991)
(holding that, in the absence of a law requiring a promotion or facts establishing a
clear entitlement to a retroactive promotion, an employee is not automatically
entitled to a promotion upon reinstatement). The administrative judge found that,
at best, the appellant was simply asserting that he should have been selected o ver
other persons in various competitive promotion opportunities that arose during
the relevant time period. I -6 ID at 10.
¶13 On review, the appellant reiterates the argument he made during the
compliance proceedings related to Favreau I—that lesser -qualif ied individuals
were hired or promoted to higher -graded positions during his absence. PFR File,
Tab 3 at 12-13; Favreau v. Department of the Army , MSPB Docket No. SF-0752 -
11-0273 -C-2, Compliance Initia l Decision at 11-12 (May 6, 2016 ); Favreau v.
Departme nt of the Army , MSPB Docket No. SF-0752 -11-0273 -C-2, Compliance
Petition for Review File, Tab 1 at 10-11. These matters relate to the time period
before the appellant’s April 2012 removal and not to the post -removal period that
would be relevant in the in stant appeal.5 We find, th erefore, that the appellant
has not shown that he would have been promoted, or any promotion would have
been mandated by law, during the period following his second removal.
Back Pay
¶14 In addition, the administrative judge found that the appellant had been paid
all of the back pay owed to him for the period between May 1, 2012, and May 16,
2015. I -6 ID at 10-12. On review, the appellant asserts that he cannot be sure he
received all such pay because the agency’s information rega rding back pay was
5 The administrative judge noted that the appellant raised several issues regarding
agency actions prior to his April 2012 removal. The administrative judge found that
these issues were beyond the scope of this appeal. I-6 ID a t 10 n.2.
8
confusing, incomplete, and inaccurate. PFR File, Tab 3 at 13-15. He further
asserts that the agency did not provide him with timesheets to verify that he was
awarded back pay for the pertinent pay periods. Id. at 14.
¶15 In reaching his decision, the administrative judge relied on an affidavit from
the civilian branch chief at the Defense Finance and Accounting Services (DFAS)
who processed the appellant’s back pay award. I -6 ID at 10-12. The affidavit
describes in detail the processin g of the award. Favreau v. Department of the
Army , MPSB Docket No. SF-0752 -12-0547 -I-5, Refiled Appeal File (I-5 RAF ),
Tab 13 at 22-25. The administrative judge additionally relied upon a
DFAS -generated spreadsheet, which shows the number of regular and overtime
hours, special payments, night differentials, holiday pay, and the hourly rate for
each pay category for every pay period for which an award was made. Id.
at 27-33. The record also includes a copy of the appellant’s leave and earnings
statement for November 12, 2015, which shows that he received the back pay
award. Id. at 19-20. The record additionally includes a sworn statement from the
supervisory official re sponsible for ensuring that the appellant’s back pay was
processed correctly. She explained that she had prepared timesheets for the back
pay period and presented them to the appellant for his consideration. I -5 RAF,
Tab 7 at 8-10. She appended related email messages to her statement. We find
that these messages indicate that the appellant, despite his argument to the
contrary, received and reviewed the applicable timesheets. Id. at 11-18. The
appellant’s argument tha t he did not receive all of the ba ck pay the agency owed
him is thus unavailing.
Overtime Pay
¶16 The administrative judge found, moreover, that the method the agency used
for computing the appellant’s overtime during the back pay period was reasonable
and workable. I -6 ID at 13-16. The ad ministrative judge was not persuaded by
the appellant’s assertion that the agency should have matched his average
overtime earnings for 2008 and 2009 when calculating his overtime for the period
9
from May 1, 2012, to May 15, 2015. The administrative judge determined that
the amount of available overtime changed from year to year based on multiple
factors, including the agency’s budget and the willingness of other personnel to
work overtime. Id. He further determined that the policy authorizing overtime
pay for changing into and out of uniform at the beginning and ending of shifts,
i.e., “donning and doffing” pay, was not implemented until May 3, 2015, the last
pay period prior to the appellant’s return to duty, and the appellant had been paid
appropriately for that pay period. I -6 ID at 16. The administrative judge found
that the appellant’s other assertions about the agency’s overtime pay practices
were vague and unsupported. Id.
¶17 On review, the appellant argues that the administrative judge erred in
upholding the agency’s calculation of overtime based on his “wrongful relegation
to the status of ‘security guard’ beginning in March 2010.” PFR File, Tab 3
at 15. The appellant contends that he had completed two police academies prior
to entering on duty , had been “routinely instructed . . . to engage in law
enforcement activities as a police officer despite the erroneous designation of
security guard,” and was still paid as a police officer. Id. He argues that his
overtime should have been calculated b ased on his service as a police officer
during 2008 and 2009, and not by averaging the overtime that other employees
earned during his absence. Id. at 15-16.
¶18 Agency regulations, however, allow for “[t]he method of computi ng
overtime . . . [to] be based on the average number of overtime hours worked by
fellow employees occupying similar positions during the same period.”
Department of Defense (DOD) Financial Management Regulation
(FMR) 7000.14 -R, vol. 8, ch. 6, ¶ 060404D. Noting that overtime can vary
greatly for a variety of reasons, the agency acknowledged that the appellant’s
overtime hours dropped significantly after he was assigned to security guard
duties. I -5 RAF, Tab 13 at 7-8. The agency further acknowledged that the
average number of overtime hours was likely insufficient to compensate the
10
appellant at the rate of overtime pay he received as a police officer prior to 2010.
Id. at 7. For these reasons, the agency explained, it matched the appellant’s
overtime pay to that of the top earner in each calendar year. Id. at 7-8. The
Board will not nullify the method employed by an agency in calculating a back
pay award absent a showing that the method was unreasonable or unworkable.
Broadnax v. U.S. Postal Service , 35 M.S.P.R. 219 , 226 (1987) . The appellant has
not made such a showing, and , in any event, we agree with the administrative
judge’s assessment that the agency’s approac h was both reasonable and workable.
I-6 ID at 15-16.
Deductions for Interim Earnings
¶19 The administrative judge further found that the agency properly deducted
$35,796.83 from the back pay award, representing the appellant’s interim
earnings during 2012 t hrough 2014, because these earnings did not constitute
additional or “moonlight” employment under 5 C.F.R. § 550.805 (e)(1). I -6 ID
at 16-18. The agency asserted that the appellant’s ear nings as a security guard
with his interim employer, Strategic Threat Management, did not represent
additional or “moonlight” employment because his superiors specifically directed
him to stop such work in 2008. I -5 RAF, Tab 13 at 9. Agency regulations
provide that the “only earnings from other employment that may not be deducted
from back pay are earnings from outside employment the employee already had
before the period of wrongful suspension or separation.” DOD, FMR 7000.14 -R,
vol. 8, ch. 6, ¶ 060405C.
¶20 On review, the appellant argues t hat his interim earnings should not have
been deducted as they constituted work as a security guard, and not as a police
officer. PFR File, Tab 3 at 16. The appellant contends that the agency’s
rescinding his remo val meant he had prevailed on appeal and that the agency was
required to have allowed him outside or “moonlight” employment before his
removal. Id. The appellant has not shown, however, that he could or would have
11
worked at his outside employment had he not been removed. See Weber v.
Department of Justice , 88 M.S.P.R. 345 , ¶ 11 (2001). Interim employment must
be in the same position as the pre -removal outside employment, and it must have
been approved by the agency. Id. It is undisputed that the agency forbade the
appellant from working as a security guard for Strategic Threat Management.
I-5 RAF, Tab 15, Subtab 6 at 37. The appe llant was only able to work at
Strategic Threat Management because he had been removed. Further, rescinding
the appellant’s removal has no bearing on this issue. As the appellant admitted in
his affidavit, the agency ordered him not to work as a security guard in 2008
because it posed a conflict of interest with his agency employment. I -5 RAF,
Tab 15 at 37.
Disability Discrimination
¶21 When the Board reverses a case on due process grounds without reaching
the merits of the underlying action, it must never theless render a decision on the
affirmative defense of disability discrimination. Favreau I ID at 16; see 5 U.S.C.
§ 7702 (a)(1); Schibik v. Department of Veterans Affairs , 98 M.S.P.R. 591 , ¶ 11
(2005); Marchese v. Department of the Navy , 32 M.S.P.R. 461 , 464 (1987) ,
overruled on other grounds by Abbott v. U.S. Postal Service , 121 M.S. P.R. 294
(2014) . The administrative judge made findings on the appellant’s discrimination
claims in Favreau I. Favreau I ID at 26-31. The administrative judge concluded
that the appellant failed to prove that either of his claimed impairments
substantially limit ed one or more major life activities . Id. at 28-29. The Board
affirmed the initial decision without modifying those findings. Favreau I Final
Order at 2.
¶22 In the instant appeal, the appellant reasserted his affirmative defense of
disability discrimination. Favreau v. Department of the Army , MP SB Docket
No. SF-0752 -12-0547 -I-3, Refiled Appeal File (I-3 RAF ), Tab 28 at 13-20. He
alleged that his removal constituted disability discrimination based on disparate
treatment and the agency’ s failure to accommodate his disability. I -3 RAF,
12
Tab 20 at 14. Relying on the findings in Favreau I, the administrative judge
found the appellant’s discrimination claim to be barred by collateral estoppel. I-6
ID at 21-22. The administrative judge fou nd that the issue of whether the
appellant was a qualified person with a disability was identical to the issue
already litigated in Favreau I, the determination on that issue was necessary to
the resulting judgment, and the appellant was fully represented.6 I-6 ID at 22.
¶23 The administrative judge also considered the appellant’s claim that the
agency’s action was motivated at least in part by the proposing official’s
perception that he was disabled and thus unable to meet the physical requirements
for atte nding police academy training after he proffered the results of an
alternative to the physical agility test (PAT) required for admission to the
academy. I -3 RAF, Tab 28 at 17. Without relying on the doctrine of collateral
estoppel, the administrative jud ge rejected the appellant’s claim that the agency
regarded him as disabled on grounds similar to the Board’s rejecting the same
claim in Favreau I. I-6 ID at 22-23; Favreau I Final Order at 11-12.
¶24 On review, the appellant asserts that the administrative judge should not
have relied on the doctrine of collateral estoppel because the second removal
action was separate and distinct from the first removal action; that is, the deciding
official and some of the evidence was different, additional evidence was a vailable
establishing that his prior police academy courses met the training requirements
for his position, and he had passed an alternative PAT, which qualified him to
6 The elements of coll ateral estoppel are as follows: (1) the issue must be identical to
that involved in the prior action; (2) the issue was actually lit igated in the prior action;
(3) the determination on the issue in the prior action was necessary to the resulting
judgment; and (4) the party against whom issue preclusion is sought had a full and fair
opportunity to litigate the issue in the prior action, either as a party to the earlie r action
or as one whose interests were otherwise fully represented in that action.
Kavaliauskas v. Department of the Treasury , 120 M.S.P.R. 509 , ¶ 5 (2014). The
appellant objected to the administrative judge’s citing these cases, asserting that they
are factually inapposite. PFR File, Tab 3 at 19. We cite these cases not for their
factual similarity to the instant appeal, but, instead, because they articulate the standard
for determining whether collateral estoppel may apply.
13
attend the police academy. PFR File, Tab 3 at 19-20. He also reiterates his
assertion that the agency’s action was motivated in part by the proposing
official’s perception that he was disabled. Id. at 17-18. The appellant
additionally argues that the administrative judge failed to address the issue of
whether he had a record of an impair ment that substantially limited one or more
major life activities. Id. at 17; see 42 U.S.C. § 12102 (1).
¶25 We agree with the administrative judge’s application of the doctrine of
collateral estoppel. Alternatively, though, assuming arguendo that the appellant
is correct in arguing that the administrative judge erred in not reviewing his
discrimination allegati ons as to the second removal, as the record is complete on
this issue we may consider this claim now. The appellant ’s claim arises under the
Rehabilitation Act of 1973 . Simpson v. U.S. Postal Service , 113 M.S.P.R. 346,
¶ 8 (2010) . The Board adjudicates claims of disability discrimination raised in
connection with an otherwise appealable action under the substantive standards of
section 501 of the Rehabilitation Act. Pridgen v. Office of Management and
Budget , 2022 MSPB 31, ¶ 35. The standards under the Americans with
Disabilities Act (ADA), as amended by the ADA Amendments Act of 2008
(ADAAA ), have been incorporated by reference into the Rehabilitation Act and
the Board applies them to determine whether there has been a Rehabilitation Act
violation. Id.
¶26 The ADAAA prohibits discrimination “against a qualified individual on the
basis of disability in regard to job application procedures, the hiring,
advancement, or discharge of employees, employee compensation, job training,
and other terms, conditions, an d privileges of employment.” 42 U.S.C.
§ 12112 (a); Sanders v. Social Security Administration , 114 M.S.P.R. 487 , ¶ 18
(2010) . The ADAAA defines “qualified individual,” in part, as “an individual
who, with or without reasonable accommodation, can perform the essential
functions of the employment position that such individual holds or desires.”
42 U.S.C. § 12111 (8). An employer is also required to provide reasonable
14
accommodations to an otherwise qualified individual with a disability. 42 U.S.C.
§ 12112 (b)(5). Thus, both a claim of disability discrimination based on an
individual’s status as disabled and a claim based on an agency’s failure to
reasonably accommodate that disability require that the individual be “qualified.”
Haas v. Department of Homeland Security , 2022 MSPB 36, ¶¶ 28 -29.
¶27 An individual may prove that he has a disability by showing that he suffers
from a physical or menta l impairment that substantially limits one or more major
life activities; has a record of such impairment; or is regarded as having such
impairment. 42 U.S.C. § 12102 (1); 29 C.F.R. § 1630.2 (g)(1). An impairment is
considered a disability if it substantially limits an individual ’s ability to perform
a major life activity as compared to most people in the general population.
29 C.F.R. § 1630.2 (j)(1)(ii). Major life activities include, but are not limited to,
caring for oneself, performing manual tasks, eating, lifting, bending,
concentrating, communicating, and working . 29 C.F.R. § 1630.2 (i)(1)(i). M ajor
life activities also include the operation of major bodily functions . 29 C.F.R.
§ 1630.2 (i)(1)(ii).
¶28 Whether an impairment substantially limits a major life activity requires an
individualized assessment. 29 C.F.R. § 1630.2 (j)(1)(iv) . Although not every
impairment will be limiting, an impairment need not prevent, or significantly or
severely restrict, the individual from performing a major life activity to be
considered substantially limiting. 29 C.F.R. § 1630.2 (j)(1)(ii). An impairment
that substantially limits one major life activity need not limit other major life
activities. 29 C.F.R. § 1630.2 (j)(1)(viii). An impairment that is episodic or in
remission is a disability if it would substantially limit a major life activity when
active. 29 C.F.R. § 1630.2 (j)(1)(vii). Determin ing whether an impairment
substantially limits a major life activity shall be made without regard to the
ameliorative effects of mitigating measures other than ordinary eyeglasses or
contact lenses. 29 C.F.R. § 1630.2 (j)(1)(vi).
15
¶29 The appellant has not presented any evidence of disability other than the
evidence he presented in Favreau I. He has alleged two impairing conditions:
hypertension, diagnosed in 2008, which requires him to tak e daily medication and
prevents him from running for more than a mile, and a 2010 shoulder injury,
which prevents him from being able to perform more than five pushups. I -3 RAF,
Tab 20 at 11-12, Tab 28 at 13-14; HT (April 8, 2016) at 108 (testimony of the
appellant). He cited March 10, 2010 and November 3, 2010 medical clearance
letters as evidence that he suffered from the shoulder condition and that he could
perform the essential functions of the position. I -3 RAF, Tab 28 at 14, 54 -55, 60.
The Novembe r 2010 clearance letter was addressed in Favreau I. Favreau I ID
at 28. The appellant did not document his hypertension diagnosis at all, and the
November 2010 clearance letter specifies that his condition was temporary and
his prognosis for recovery was good. I -3 RAF , Tab 28 at 54-55. He alleged only
that the shoulder injury affected his ability to do pushups. Id. at 14. The
appellant thus has not shown that either claimed impairment substantially limited
his ability to perform any major life activit y. For the same reason, he has not
shown that he has a record of having an impairment that substantially limited his
ability to perform any major life activity.
¶30 As for the appellant’s assertion that the agency failed to grant reasonable
accommodations f or his conditions, PFR File, Tab 3 at 18, an agency is required
to provide such accommodations for the known physical and mental limitations of
an otherwise qualified individual with a disability unless the agency can show
that an accommodation would creat e an undue hardship for its business
operations. 29 C.F.R. § 1630.9 (a). Reasonable accommodations include
modifications to the manner in which the duties of a position are customarily
performed to enable a qualified individual with a disability to perform the
essential job functions. Miller v. Department of the Army , 121 M.S.P.R. 189 ,
¶ 13 (2014). Even if the appellant had established that he suffered from or had a
record of suffering from a substantially limiting impai rment to his shoulder, he
16
would not have been entitled to an accommodation under the regulat ions in effect
at the time of his removal because his impairment was not a long -term condition.
I-3 RAF , Tab 28 at 54-55. Under the rules then in effect, individuals with
temporary medical restrictions were exempt from the PAT only for the duration
of th e restrictions. I -5 RAF, Tab 15 at 44. Furthermore, had the agency regarded
the appellant as disabled, it would not have been obligated to provide a
reasonable accommodation because he did not have a substantially limiting
impairment. Carter v. Departme nt of Justice , 88 M.S.P.R. 641 , ¶ 24 (2001);
29 C.F.R. § 1630.2 (o)(4) (a covered entity is not required to provide a reasonable
accommodation to an individual who meets the definition of disability solely
under the “regarded as” prong).
¶31 Because the appellant is not a qualified i ndividual with a disability, he also
failed to prove his claim that the agency discriminated agains t him based on his
disability. Moreover, we find that he has not shown that his disability was a
motivating factor in the agency’s removal decision. To analyze a claim of
disability discriminati on based on disparate treatment, the Board first determines
whether the appellant has shown by preponderant evidence that the prohibited
consideration was a motivating factor in the contested personnel action, and , if
so, whether the agency has shown by pr eponderant evidence that it would have
taken the contested action in the absence of the discriminatory motive. Pridgen ,
2022 MSPB 31, ¶¶ 35, 37, 40 .7
¶32 The appellant has not put forward any evidence to show that the removal
action was motivated by the impairments he alleges to be disabling or by any
perceived disability. Instead, the agency’s sole stated rationale for the removal
action was his failure to attend police academy training. Neither the proposal
7 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 actions, we
need not resolve the issue of whether the appellant proved that discrimination or
retaliation was a “but -for” cause of the agency’s decisions. See Pridgen , 2022 MSPB
31, ¶¶ 20-22, 29-33.
17
notice nor the decision notice mention his medical conditions. IAF, Tab 5,
Subtabs 4c, 4f; cf. Southerland , 119 M.S.P.R. 566 , ¶¶ 16, 22 (finding that the
deciding official’s statements in the decision letter regarding the appellant’s
inability to fulfill the full range of his du ties owing to his medical condition
constituted direct evidence of a discriminatory motive), overruled on other
grounds by Pridgen , 2022 MSPB 31, ¶¶ 44-47. In his deposition, the deciding
official stated that he based his decision to remove solely on the appel lant’s
failure to attend or waive the police academy attendance requirement. I -5 RAF,
Tab 37 at 11-12. He explained that he knew of the appellant’s shoulder injury,
but the injury did not factor into his removal decision. Id. at 12. Additionally,
the p roposing official and agency chain of command supported the appellant’s
request for a waiver of the academy training requirement, as the Board also
observed in Favreau I. Favreau I Final Order at 12.
¶33 Accordingly, we find that the administrative judge correctly applied the
doctrine of collateral estoppel to the appellant’s disability discrimination claim.
Alternatively, we find that the appellant failed to establish his affirmative defense
of disability discrimination.
Retaliation
¶34 The administrative ju dge also found the appellant’s claim that the agency
had retaliated against him for prior EEO activity to be moot because he had not
claimed any compensatory damages arising from the alleged retaliation. I -6 ID
at 24. In the alternative, the administrati ve judge found that the appellant failed
to meet his burden of proving that the agency removed him in retaliation for his
prior EEO activity. I-6 ID at 24-28.
¶35 On review, the appellant objects to the latter finding. PFR File, Tab 3
at 16-20. He has, ho wever, offered no direct evidence and only scant
circumstantial evidence of retaliation. Certainly, suspicious timing is not evident
18
here.8 As the administrative judge noted, the activities that the appellant alleges
underlay the retaliation predate the January 2011 removal action, and some date
from 2007 and 2008. I -3 RAF , Tab 20 at 83-87. T he appellant also offered no
evidence that the deciding official knew about his EEO activity. The deciding
official stated under oath that, in his limited interact ions with the proposing
official, he did not recall talking about the appellant. I -5 RAF, Tab 37 at 10. We
thus find the appellant’s claim of retaliation to be unavailing. In any event,
because he has not requested damages, the issue is moot as the admi nistrative
judge correctly explained in the initial decision. I -6 ID at 24.
Attorney fees
¶36 Finally, t he appellant argues that he has not received the attorney fees to
which he is entitled as a prevailing party. He argues that he ha s not had an
opportunity to request fees in the first instance, and dismissal on grounds of
mootness appears to be intended to deprive the Board of jurisdiction to consider
his request for fees. Potential recovery of attorney fees, however, does not
prevent the dismissal of an a ppeal as moot. Murphy v. Department of Justice ,
107 M.S.P.R. 154 , ¶ 6 (2007). The Board considers attorney fees in an addendum
proc eeding after an appellant files a separate petition on that issue. See 5 C.F.R.
§§ 1201.201 -.205.
¶37 Accordingly, we affirm the initial decision, e xcept as modified by this Final
Order.
8 Circumstantial evidence includes evidence of suspicious timing, ambiguous statements
oral or written, behavior toward or comments directed at other employees in the
protected group, and other bits and pieces from which an inference of discriminatory
inten t might be drawn. Savage v. Department of the Army , 122 M.S.P.R. 612 , ¶ 42
(2015), overruled in part by Pridgen , 2022 MSPB 31 , ¶¶23 -25. It also includes
comparator evidence and evidence that the agency’s stated reason for its action is
pretextual. Id.
19
NOTICE OF APPEAL RIG HTS9
The initial decision, as supplemented by this Final Order, constitutes the
Board’s final decision in this matter. 5 C.F.R. § 1201.113 . You may obtain
review of this final decision. 5 U.S.C. § 7703 (a)(1). By statute, the nature of
your claims determines the time limit for seeking such review and the appropriate
forum with which to file. 5 U.S.C. § 7703 (b). Although we offer the following
summary of available appeal rights, the Merit Systems Protection Board does not
provide legal advice on which option is most appropriate for your situ ation and
the rights described below do not represent a statement of how courts will rule
regarding which cases fall within their jurisdiction. If you wish to seek review of
this final decision, you 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 ru le, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
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.
20
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Cour t of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the F ederal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any at torney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is a ppealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropria te U.S. district court ( not the
U.S. Court of Appeals for 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. ____ , 137 S. Ct. 1975 (2017). If you have a
representative in this case, and your representative receives this decision before
you do, then you must file with the district court no later than 30 calendar days
after your representative receives this decision. If the action involves a claim of
21
discrimination based on race, color, religion, sex, national origin, or a disabling
condition, you may be entitled to representation by a court -appointed lawyer and
to waiver of any requirement of prepayment of fees, costs, or other security. See
42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the 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
22
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (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).
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
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.
23
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 | FAVREAU_MICHAEL_LUCON_SF_0752_12_0547_I_6_FINAL_ORDER_2010147.pdf | 2023-03-09 | null | SF-0752 | NP |
3,403 | https://www.mspb.gov/decisions/nonprecedential/MARTIN_BEVERLY_DC_0752_15_0108_C_2_FINAL_ORDER_2010169.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
BEVERLY MARTIN,
Appellant,
v.
UNITED STATES POSTAL SERVICE,
Agency.
DOCKET NUMBER
DC-0752 -15-0108 -C-2
DATE: March 9, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL1
Andrew J. Perlmutter , Esquire and Kevin L. Owen , Esquire, Silver Spring ,
Maryland, for the appellant.
Ladonna L. Griffith -Lesesne , Esquire, Landover, 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
required to follow or dis tinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c).
2 Member Leavitt’s name is included in decisions on which the three -member Board
completed the voting process prior to his March 1, 2023 departure.
2
FINAL ORDER
¶1 The appellant has filed a p etition for review of the compliance initial
decision, which denied her petition for enforcement . For the reasons discussed
below, we VACATE the compliance initial decision and find that the
administrative judge failed to follow the law -of-the-case doctrine when he
ignored the Board’s remand instructions regarding the voluntariness of the
appellant’s retirement . We also find that: the Board has jurisdiction over the
petition for enforcement, the petition for enforcement was timely filed, and the
appellant has failed to show that the agency was in noncompliance with the terms
of the parties’ settlement agreement . Accordingly , we DEN Y the appellant’s
petition for enforcement.
BACKGROUND
¶2 The essential facts in this matter are set forth in the Board ’s decision on the
merits of this appeal and are not contested by either party. Martin v. U.S. Postal
Service , 123 M.S.P.R. 189, ¶ 2 (2016). Accordingly, we rely on the facts as set
forth in that decision.
¶3 On July 22, 2011 , the parties enter ed into a settlement agreement
(2011 agreement) that resol ved the appellant ’s pending complaints before the
Equal Employment Opportunity Commission (EEOC) and the agency. Id.
Pursuant to the terms of the 2011 agreement, the appellant promised , among othe r
things, to retire effective July 31, 2011 , and to withdraw all of her equal
employment opportunity ( EEO ) complaints. Id. In return, the agency agreed to
“enhance ” its contributions to the appellant ’s retirement for the 3 previous years
for an annual salary of $165,000. Id. The agreement further provided that, in the
event that the Office of Personnel Management (OPM) did not approve the
enhanced retirement contribution, the settlement agreement would “become
inoperative. ” Id.
3
¶4 The agreement did not make explicit whether the appellant would be
restored to the status quo ante in the event that OPM did not approve the
retirement with enhanced contributions. However, on July 21, 2011, the day
before the agreement was execu ted, agency counsel sent the appellant ’s counsel
an email stating that, while it was “anticipated ” that OPM would approve the
retirement provided for in the agreement, in the event it was not approved, the
appellant “would be restored as if he/she had not left.” Id., ¶ 3.
¶5 In April 2012, the parties learned that OPM had disapproved the enhanced
agency contribution provided for in the 2011 agreement , id. ¶ 4, and the terms of
the settlement became inoperative . Shortly thereafter, the appellant requested
that she be returned to duty. Id. On July 31, 2012, the appellant notified her
assigned EEOC administrative judge that the agreement had “failed because of
mutual mistake of fact, ” and requested that he r case b e returned to the
administrative judge’s active docket . Id. On October 3, 2012 , the agency
reinstated the appellant to paid duty status retroactive to July 31, 2011, but
without back pay . This resulted in the appellant being placed in a leave without
pay (LWOP) status for the period from July 31, 2011 , to October 3, 2012. Id.
¶6 On October 23, 2012, the appellant moved to amend her EEOC complaint to
include, among other claims, an allegation that the agency had retaliated against
her for her EEO activity by refusing to give h er back pay upon her retroactive
reinstatement . Id., ¶ 5. On February 13, 2013, the EEOC administrative judge
denied that motion and deemed October 23, 2012, to be the date of first EEO
contact regarding the claims contained in the motion. Id. On March 22, 2013,
the appellant timely filed a new formal EEO complaint with the agency, alleging
that the agency retaliated against her by refusing her back pay and benefits upon
her retroactive reinstatement and discriminated against h er on t he bases of race,
sex, and age. Id.
¶7 On October 27, 2014, after her new EEO complaint had been pending for
more than 120 days, the appellant filed a Board appeal, in which she asserted that
4
she suffered a constructive suspension based on the agenc y’s refusal to provide
her back pay from July 31, 2011 , to October 3, 2012. Id., ¶ 6. She also asserted
that the constructive suspension constituted dis crimination on the bases of sex
and national origin, and reprisal for prior protected EEO activity. Id. On
October 30, 2014, she amended her appeal to clarify that, in light of the Board ’s
then-recent decision in Abbott v. U.S. Postal Service , 121 M.S.P.R. 294 (2014),
her argument was that the agency had imposed a nonconstructive suspension by
placing her in an enforced LWOP status. Martin , 123 M.S.P.R. 189 , ¶ 6.
¶8 Without providing written notice as to the appellant ’s burden of proof on
jurisdiction and without holding a hearing , the administrative judge issued an
initial decision dismissing the appeal . Id., ¶ 7. Applying case law appropriate to
constructive suspension appeals, the administrative judge found that the appellant
failed to make a nonfriv olous allegation that she was constructively suspended
because her decision to retire in July 2011 was both knowing and voluntary. Id.
He did not address the appellant ’s amended argument that the agency had
nonconstructively suspended her by placing her in an LWOP status without her
consent. Id.
¶9 The appellant petitioned for review of the initial decision , which the Board
granted . Id., ¶¶ 1, 8. The Board held that, when an agency retroactively
reinstates an appellant following OPM’s negative reti rement determination and
without her consent places her in an LWOP status for the period preceding
reinstatement, the LWOP status constitutes a suspension , and a suspension of
more than 14 days is an appealable action . Id., ¶ 9. Thus, the appellant ’s
suspension for 430 days was an action appealable to the Board. The Board
reversed the initial decision, ordered the agency to pay the appellant back pay and
other benefits under the Back Pay Act and/or Postal Service regulations , and
remanded the appeal for adjudication of the appellant ’s discrimination and
reprisal allegations . Id., ¶¶ 12-15.
5
¶10 While the remand appeal was pending, the appellant filed a petition for
enforcement alleging that the agency failed to comply with the Board ’s order to
pay back pay and other benefits. Martin v. U.S. Postal Service , MSPB Docket
No. DC-0752 -15-0108 -C-1, Compliance File (CF-1), Tab 1. On May 23, 2016,
the parties entered into a settlement agreement (2016 agreement) resolving the
remand appeal and the compliance matter . Martin v. U.S. Postal Service , MSPB
Docket No. DC-0752 -15-0108 -B-1, Remand File (RF) , Tab 8 at 5-7.3 The 2016
agreement provided in relevant part that the appellant would withdraw her
pending remanded appeal and petition for enforcement, and would “receive the
relief for back pay, interest on back pay, and other benefits under the Back Pay
Act and /or Postal Service Regulations as ordered by [the Board] in [ Martin ,
123 M.S.P.R. 189, ¶ 15].” Id. at 5-6. The settlement agreement was entered into
the record for enforcement purposes. Id. at 7; RF, Tab 10, Remand Initial
Decision at 2.
¶11 On November 30, 2016, the appellant filed a second petition for
enforcement alleging that the agency breached the 2016 settlement by the
following: failing to restore 248 hours of annual leave in excess of the maximum
carry over of annual leave allowed under Postal regulations and 124 hours of sick
leave that she would have accrued duri ng the period of her suspension;
erroneously calculating the premiums due under the Federal Employees Health
Benefits Program (FEHBP) to be subtracted from back pay; subtracting FEHB P
premiums from back pay when she already had paid those premiums to OPM
3 The 2016 agreement does not specifically reference MSPB Docket No. DC-0752 -15-
0108 -C-1 (the first petition for enforcement). However, on May 25, 2016, or 2 days
after the parties settled, the administrative judge issued an initial decision in the
compliance matter, stating that the appellant was withdrawing her petition for
enforcement because the agency had paid her the back pay required by the Board’s 2016
order, evidently also as a result of the 2016 agreement. CF -1, Tabs 5 -6. Likewise, on
May 25, 2016, the administrative judge issued another initial decision in the remand
appeal dismissing it as settled. RF, Tab 10, Remand Initial Decision.
6
during the period of her suspension; and failing to update he r years of service
with OPM based on the accrue d sick leave for the suspension period . Martin v.
U.S. Postal Service , MSPB Docket No. DC-0752 -15-0108 -C-2, Compliance File
(CF-2), Tab 1 at 5-6. The agency responded, moving to dismiss the second
enforcement petition for lack of jurisdiction because the appellant had withdrawn
her first enforcement petition with prejudice after it was settled . A lternatively ,
the agency argued that the second petition for enforcement was untimely filed and
that the agency had complied with the settlement agreement. CF -2, Tab 6.
¶12 The administrative judge issued a compliance initial decision. CF-2,
Tab 10, Compliance Initial Decision (CID), at 9. He noted that, under the Back
Pay Act, the agency must pay the amount of back pay and other benefits that the
appellant would have earned or received i f the personnel action at issue had not
occurred. Id. He found , however, that, assuming the agency had never
retroactively placed the appellant in an LWOP status after it granted her request
to return to a paid duty status on October 3, 2012, she would not have earned or
received any back pay and/or other benefits for the period from July 31, 2011 , to
October 3, 2012, because she was retired.4 Id. Consequently, he found that the
appellant failed to show that the age ncy materially breached the 2016 settlement
agreement , as alleged , because she wa s not entitled to any relief for back pay,
interest on back pay, and /or other benefits because she received retirement
annuity benefits during the suspension period at issue. Id.
¶13 In her instant petition for review, the appellant asserts that the compliance
initial decision misconstrued the Board’s earlier findings and conclusions in
Martin , 123 M.S.P.R. 189. Martin v. U.S. Postal Servi ce, MSPB Docket No. DC-
0752 -15-0108 -C-2, Compliance Petit ion for Review (CPFR) File, Tab 1 at 10-16.
4 The appellant retired for a second time on May 29, 2015, prior to the 2016 settlement
agreement’s execution. See Martin v. U.S. Postal Service , MSPB Docket No. SF -0752 -
17-0412-I-1, Initial Appeal File , Tab 1.
7
She also reiterates the arguments she made in her second petition for
enforcement, asserting that the agency breached the 2016 settlement agreement by
failing to restore 248 hours of annual leave and 124 hours of sick leave that she
would have accrued during the period of her suspension , and by making errors
regarding her enrollment in the FEHBP . Id. at 16-18. The agency has responded
in opposition to the petition for review, submitting additional evidence
demonstrating that it complied with the settleme nt agreement. CPFR File, Tab 9
at 17-33. The appella nt has responded, arguing , as she did below , that the agency
breach ed the settlement agreement . CPFR File, Tab 10.
DISCUSSION OF ARGUME NTS ON REVIEW
The remand initial decision ignored the Board’s prior holding and thereby fail ed
to follow the law -of-the-case doctrine.
¶14 As previously noted, the administrative judge —in the initial decision that
the Board reversed in Martin , 123 M.S.P.R. 189—applied precedent involving
constructive suspension appeals to conclude that the appell ant failed to
nonfrivolous ly alleg e that she was constructively suspended because her decision
to retire was knowing and voluntary. See Martin , 123 M.S.P.R. 189, ¶ 7. In
reversing the initial decision, the Board held that the agency’s decision to
retroactively place the appellant in an LWOP status was not a voluntary action on
her part. Id., ¶ 9. The Board therefore found that the administrative judge erred
when he applied precedent applicable to cases in which the voluntariness of leave
was in question. Id. By extension, the Board implied that the voluntariness of
the appellant’s retirement was not at issue in this appeal. Id.
¶15 In the compliance initial decision under consideration here, the
administrative judge mistakenly incorporated and relied upon his reversed finding
(that the appellant’s retirement was voluntary) to conclude that the appe llant was
not entitled to any back pay and benefits. In particular, he found that, because the
appellant’s decision to retire , which retirement OPM later disapproved, was done
voluntarily, she was not entitled to any money. CID at 8 n.6. In doing so, th e
8
administrative judge observed that the Board’s decision did not specifically “find
that the appellant’s decision to retire was involuntary.” CID at 8. As a result, the
administrative judge tried to interpret the Board’s decision so narrowly as to
rende r it meaningless and thereby sidestep the Board’s clear instructions to find
that the appella nt was entitled to back pay and benefits.
¶16 Similarly, t he administrative judge ’s insistence on revisiting the question of
whether the appellant retired voluntaril y violate d the law -of-the-case doctrine.
Under th at doctrine, a decision on an issue of law made at one stage of a
proceeding becomes a binding precedent to be followed in successive stages of
the same litigation ; therefore, an administrative judge is bou nd by the full
Board’s findings and conclusions in an earlier phase of ongoing litigation .
Gordon -Cureton v. U.S. Postal Service , 107 M.S.P.R. 79, ¶ 12 (2007)
(recognizing that, under the “mandate rule,” a variant of the law -of-the-case
doctrine, a lower court has no power to deviate from the instructions of its
reviewing appellate court); Pawn v. Department of Agriculture , 90 M.S.P.R. 473,
¶ 15 (2001) . The law -of-the-case doctrine is intended to maintain consistency
and avoid reconsideration of matters once decided during the course of a single
continuing lawsuit. Peartree v. U.S. Postal Service , 66 M.S.P.R. 332 , 339
(1995).
¶17 There are three recogni zed exceptions to the law -of-the-case doctrine:
(1) the availability of new and substantially different evidence; ( 2) a contrary
decision of law by controlling authority that is applicable to the question at issue;
or (3) a showing that the prior decision in the same appeal was clearly erroneous
and would work a manifest injustice. Boucher v. U.S. Postal Service ,
118 M.S.P.R. 640, ¶ 16 (2012) , overruled on other grounds by Singh v. U.S.
Postal Service , 2022 MSPB 15 ; Hoover v. Department of the Navy , 57 M.S.P.R.
545, 553 (1993). The law -of-the-case doctrine “applies not only to matters which
were explicitly decided in a prior decision but also to matters decided by
necessary implication ,” and th e consistency derived from application of the
9
law-of-the-case doctrine avoids “the expense and vexation attending multiple
lawsuits, conserves judicial resources, and fosters reliance on judicial action by
minimizing the possibility of inconsistent decisions. ” Hoover , 57 M.S.P.R.
at 552.
¶18 Here, the Board found that the appellant’s retroactive placement in an
LWOP status was involuntary; therefore, her decision to retire was not at issue in
this case. Martin , 123 M.S.P.R. 189, ¶ 9. The administrative judge was,
therefore, bound by the Board’s determination unless one of the exceptions to the
law-of-the-case doctrine applied. See Boucher , 118 M.S.P.R. 640 , ¶ 16; Timmers
v. Office of Personnel Management , 105 M.S.P.R. 4, ¶ 10 (2007) (finding that the
Board’s prior determination that it was appropriate to reopen the appeal was
binding on the administrative judge on remand pursuant to the law -of-the-case
doctrine; the administrative judge on remand erred in stating that the appellant
failed to establish grounds for reopening the appeal). Based on our review, we
find that t hese exceptions a re absent here. Consequently, t he administrative judge
was bound by t he Board’s rejection of his finding that the voluntariness of the
appellant’s retirement was at issue in this case. He likewise was bound by the
Board’s finding that the appell ant’s pla cement in an LWOP status for 430 days
was an appealable suspension, and because she was suspended without being
afforded her due process rights of notice and an opportunity to respond, the
suspension could not be sustained, entitling the appellant to back pay and
benefits . See Martin , 123 M.S.P.R. 189, ¶¶ 9, 11, 15.
The Board has jurisdiction over this petition for enforcement.
¶19 The agency argued that the Board does not have jurisdiction over this
petition for enforcement because the appellant withdrew her earlier -filed petition
for enforceme nt with prej udice to refiling because the parties settled that matter .
CF-2, Tab 6 at 5-6. While the administrative j udge did not address this issue
below, we do so now and find t he agency ’s contention unavailing. The earlier
10
petition for enforcement was filed to enforce the Board ’s order , which remedied
the appellant ’s suspension and afford ed her due process protections. Martin ,
123 M.S.P.R. 189, ¶ 14; CF-1, Tab 1. The instant petition for enforcement seeks
to remedy an alleged violation of the 2016 agreement that resolved in part the
earlier -filed petition for enforcement. CF-2, Tab 1 at 4. Although the Board ’s
order and the 2016 agreement contain some identica l language, the agreement is a
separate contractual obligation by the agency that includes new time deadlines for
its accomplishment. Compare Martin , 123 M.S.P.R. 189, ¶ 15, with RF, Tab 8
at 5-7. We find that the appellant is entitled to have her 2016 agreement
enforced, notwithstanding that some of its terms were not identical to the Board ’s
remedial order. See King v. Reid , 59 F.3d 1215 , 1218 -19 (Fed. Cir. 1995)
(finding that the Board retains jurisdiction over a settlement agreement made part
of the recor d and it may decide whether an agency has breached a settlement
entered into the record); Richardson v. Environment al Protection Agency ,
5 M.S.P.R. 248, 250 (1981) (finding that resolving an appeal on the basis of a
settlement entered into the record for enforcement constitutes a final decision
issued under the Board ’s appellate jurisdiction and, as a result, the Boa rd has
authority to enforce the settlement ).
The petition for enforcement was timely filed.
¶20 The administrative judge also did not address the agency ’s contention that
the instant petition for enforcement was untimely filed , although the agency
raised the argument below and the appellant responded to it . CF-2, Tabs 6, 9.
The agency contends that the Board should apply the 30 -day filing rule of
5 C.F.R. § 1201.182 to petitions for enforcement of settlement agreements, using
the date that the appellant became aware of a breach as the start of the 30-day
period to file , and that the Board should find that the appellant failed to establish
good cause for filing beyond 30 days from that date . CF-2, Tab 6 at 6-10.
11
¶21 The agency ’s assertion is unavailing. A petition for enforcement alleging
breach of a sett lement must be filed within a reasonable amount of time from the
date the petitioning party becomes aware of a breach of the agreement. Kasarsky
v. Merit Systems Protection Board , 296 F.3d 1331 , 1335 (Fed. Cir. 2002); see
also Phillips v. Department of Homeland Security , 118 M.S.P.R. 515, ¶ 11
(2012); Eagleheart v. U.S. Postal Service , 113 M.S.P.R. 89, ¶ 12 (2009). The
reasonableness of the time period depends on the circumstances of each case.
Kasarsky , 296 F.3d at 1335 ; Phillips , 118 M.S.P.R. 515, ¶ 11. The Board has
found that a petition for enforcement of a settlement agreement —filed within
4 months of a pa rty’s awareness of the breach —was filed within a reasonable
time when the appellant was taking action to confirm that the breach had
occurred . See Phillips , 118 M.S.P.R. 515, ¶ 11. Here, nothing contradicts the
appellant ’s assertion that she had been actively discussing with the agency how to
resolve the alleged breaches of the 2016 agreement up to the date of filing her
petition . CF-2, Tab 9 at 12. Under the circumstances , we find that the petition
for enforcement was filed within a reasonable amount of time. See Bostick v.
Department of Health and Human Services , 63 M.S.P.R. 399, 402 (1994) ( finding
that a 4-month delay in filing a petition for enforcement was reasonable under the
circumstances, though a 21-month delay was not); Chudson v. Environmental
Protection Agency , 71 M.S.P.R. 115, 118 (1996) ( finding that a 1-year delay in
filing a petition for enforcement was unreasonable when the appellant was an
experienced Board litigant and was represented by counsel), aff’d , 132 F.3d 54
(Fed. Cir. 1997) (Table) .
The appellant failed to prove that the agency breached the 2016 agreement by not
restoring 248 hours of annual leave .
¶22 The appellant , as the party alleging breach of a settlement agreement, bears
the burden of proof. Komiskey v. Department of the Army , 70 M.S.P.R. 607, 610
(1996) , aff’d , 108 F.3d 1394 (Fed. Cir. 1997) (Table) . The agency, upon the
filing of a petition for enforcement alleging breach, must produce relevant,
12
material, and credible evidence of its compliance with the agreement. Vaughan v.
U.S. Postal Service , 77 M.S.P.R. 541, 546 (1998). However, the ultimate burden
of persuasion remains with the appellant . Id. Further, the Board will enforce the
agreement according to its terms. Greco v. Department of the Army , 852 F.2d
558, 560 (Fed. Cir. 1988).
¶23 As noted, t he 2016 agreement provided in relevant part that the appellant
would withdraw her pending appeal and petition for enforcement, and would
“receive the relief for back pay, interest on back pay, and other benefits under the
Back Pay Act an d or Postal Service Regulations as ordered by [the Board] in
[Martin , 123 M.S.P.R. 189, ¶ 15].” RF, Tab 8 at 5-6. The appellant concedes
that she has received back pay and interest on back pay. CF-2, Tab 1 at 5, Tab 9
at 11. She is seeking other relief , such as annual leave5 in excess of the maximum
allowed to be carried over from year to year under Postal Service regulations ,
sick leave, proper placement in the FEHB P, and reimburse ment of FEHB P
premiums that the agency allegedly wrongfully charged to he r. CF-2, Tab 1
at 5-6.
¶24 The appellant does not assert that the Back Pay Act entitles her to annual
leave in excess of the carryover amount provided for in Postal Service
regulations .6 Indeed , we fi nd that to do so would be un founded. When , as here,
the appellan t is not a preference -eligible Postal Service employee, the Back Pay
Act is inapp licable . See Rivas v. U.S. Postal Service , 72 M.S.P.R. 383, 391
(1996); cf. Andress v. U.S. Postal Service , 56 M.S.P.R. 501, 505 (1993) (finding
that the back pay entitlements of preference -eligible employees of the Postal
5 The Board has found that an award of back pay also includes restoring annual leave.
See Rivera v. U.S. Postal Service , 107 M.S.P.R. 542 , ¶ 9 n.5 (2007).
6 Notwithstanding that the appellant did not argue the point, the administrative judge
erroneousl y stated that the Back Pay Act governs the appellant’s entitlements under the
settlement agreement. CID at 6, ¶ 12; supra .
13
Service are governed by the Back Pay Act, 5 U.S.C. § 5596 ).7 Generally, when
computing back pay for a nonpreference -eligible Postal Service employee , the
provisions of the Employee Labor Relations Manual (ELM ) govern. Driscoll v.
U.S. Postal Service , 112 M.S.P.R. 498, ¶ 6 (2009); House v. U.S. Postal Service ,
85 M.S.P.R. 260, 262 (2000) . Here, however, the appellant asserts that , under
5 U.S.C. § 6304 (d), she is entitle d to annual leave in excess of the carryover
amoun t provided in the ELM . CPFR File, Tab 1 at 17. She relies particularly on
section 6304(d)(1)(A) , which provides that a nnual leave lost because of
“administrative error when the error causes a loss of annual leave otherwise
accruable after June 30, 1960 ” shall be restored to the employee. The appe llant
asserts that she lost 248 hours of annual leave due to administ rative error. Id.
at 9, 17.
¶25 The appellant ’s asse rtion is unavailing. The Postal Reorganization Act of
1970 , 39 U.S.C. § 1005 (f), provides that “[c]ompensation, benefits, and other
terms and conditions of employment in effect immediat ely prior to the effective
date” of the statute would continue to apply to the U.S. Postal Service “until
changed by the Postal Service.” Pub. L. No. 91-375, § 1005(f), 84 Stat. 719, 732.
In 1973 , Congress enacted the provision that is now codified at 5 U.S.C.
§ 6304 (d), as section 3 of the Act to Amend Title 5, United States Code, To
Improve the Administration of the Leave System for Federal Employees . Pub. L.
No. 93-181, § 3, 87 Stat. 705 . As that Act changed the “[c]ompensation, benefits,
and other terms and conditions of employment ,” it would fall within the scope of
those matters that the Postal Reorganization Act provided would remain unaltered
7 The Back Pay Act provisions apply to preference -eligible Postal Service employees,
even though the Back Pay Act generally does not apply to the U.S. Postal Service. The
rights that flow from the Back Pay Act were first afforded to preference -eligible
employees by the Veterans Pref erence Act of 1944, as amended, and for that reason the
Back Pay Act applies to preference -eligible Postal Service employees. See Davis v.
U.S. Postal Service , 64 M.S.P.R. 652 , 658 -60 (1994); Andress , 56 M.S.P.R. at 507-08.
14
“until changed by the Postal Service .” Pub. L. No. 91-375, § 1005(f), 84 Stat.
719, 732 (emphasis supplied). Thus, the 1973 statute contained in
section 6304(d) does not apply to the U.S. Postal Service. The legislative history
of the 1973 statute fully supports that conclusion, stating that during the previous
Congress, “the committee considered and rejected an amendment” to a similar
proposed statute “to include current employees of the Postal Service” under the
Act. H.R. Rep. No. 93-456 at 7 (1973) . The report further state d that “[t]he
majority of the committee felt that the details of the Postal Service’s leave system
should continue to be a subject of collective bargaining as contemplated by the
Postal Reorganization Act of 1970. ” Id. A report addressing the similar statute
introduced during the previous Congress stated as follows:
Under the provisions of the Postal Reorganization Act of 1970,
Public Law 91-375, employees of the Postal Service are not covered
by amendments to the annual and sick leave pr ovisions of chapter 63
of title 5. Therefore, the amendm ents to those leave provisions
which are proposed in sections 1 through 4 of the bill would not
apply to employees of the Postal Service . . . .
H.R. Rep. No. 92-1115 at 9. Therefore, we conclude that 5 U.S.C. § 6304 (d)
does not apply to the U.S. Postal Service and that the agency was free to adopt its
own leave provisions after the effective da te of the Postal Reorganization Act.
¶26 Further, Postal regulations provide that leave credited as a result of
corrective action may not exceed the maximum amount of leave to which the
employ ee is eligible. ELM § 436.2(d); CPFR File, Tab 9 at 23. An employee in
the appellant ’s management category i s entitled to carry forward 560 hours of
annual leave. ELM § 512.321(b); CPFR File, Tab 9 at 22. The agency’s Manager
of Accounting Services declared as follows regarding the appellant ’s annual leave
status: when the appellant was reinstated in October 2012, she was “invoiced”
for 599 hours of annual leave that she had been paid when she separated in
July 2011 (i.e., the dollar amount that she was paid for that leave when she retired
in 2011 was subtracted from her back pay, and her leave hours were restored);
15
after her reinstatement, she accrued and was credited with anothe r “240 plus”
hours of leave; and thus, she had an annual leave balance in excess of her
maximum allowed 560 hours . CF -2, Tab 6 at 22-23. Because she had more than
560 hours at the end of at least one leave year, she lost the excess annual leave in
accordance with the ELM . Id. at 23. At her “second” retirement on May 29,
2015, the agency paid the appellant for her “brought forward ” annual leave
balance of 560 hours plus her accrued and unused annual leave balance for 2015
of 80 hours, for a total of 640 hours.8 Id. The appellant has not rebutted the
agency ’s evidence that, pursuant to the settlement agreement , she received all the
annu al leave that she was allowed under the ELM, that any annual leave that she
lost between her reinstatement and her retirement was in accord with the ELM,
and that, when she retired a second time , the agency paid her for all of the annual
leave that she was due under the ELM .
The appellant has failed to show that the agency breached the 2016 agreement by
not awarding her 124 hours of sick leave and not taking action to have OPM
credit these ho urs to the leave balance to be included in her retirement
computation .
¶27 Sick leave accrues under Postal Service regulations at a rate of 4 hours for
each full biwee kly pay period. CPFR File, Tab 9 at 24. The Manager of
Accounting Services declared that the sick leave hours tha t accrued during the
appellant ’s LWOP period —approximately 14 months —was 120 hours. Id. at 19.
The appellant was restore d sick leave for a total of 30 pay periods (from pay
period 17 in 2011 to pay period 20 in 2012 ). Id. She did not receive restored
sick leave for pay period 21 of 2012 because the restoration period did not
8 The appellan t has not shown that she should have been credited with more than
599 hours of annual leave upon her reinstatement. Applying the agency’s same
calculation method that determined the cash payment for her annual leave balance at
retirement to how many leave hours she should be credited upon reinstatement, the
599 hours represents 560 hours of leave “brought forward” plus the unused annual leave
that she accrued during the leave year before her “first” retirement on July 31, 2011.
16
encompass a full pay period. Id. The appellant does not dispute that the agency
restored sick leave for the approximately 14 months that she improperly was
placed in an LWOP status and does not rebut the agency ’s evidence that she was
not due 4 hours of sick leave for pay period 21. CF-2, Tab 6 at 26. Thus, we find
that the agency credited the appellant for all the sick leave that she was due under
the ELM for the period that sh e was improperly placed in an LWOP status .
¶28 The agency informed OPM that the appellant ’s sick leave balance at the
time of her “second” retirement on May 29, 2015 , was 254.09 hours . CF-2, Tab 6
at 26. Subsequently, the agency submitted a Notice of Corre ction of Individual
Retirement Record showing that the appellant ’s sick leave balance was increased
by the 120 hours that she was due during her LWOP period , to 374.09 hours . Id.
The appellant has not rebutted the agency ’s evidence that it transmitted to OPM
the sick leave hours accrued during her LWOP period to be credited to her
retirement computation . Hence, we find that the agency has shown that it is in
compliance with the 2016 agreement.
The appellant has failed to show that agency breached the 2016 agreement
regarding her enrollment in the FEHB P.
¶29 The appellant alleged that, after her reinstatement, she was placed in the
wrong FEHB P plan. CF-2, Tab 9 at 18-19. She asserted that, when her
suspension was cancelled , she elected FE HBP code 104, self -only coverage, but
the agency placed her in FEHB P code 105, family coverage. Id. at 18.
¶30 The agency explain ed that the appellant had elected plan code 105 prior to
the parties ’ 2011 agreement providing for her retirement. CF -2, Tab 6 at 31.
Upon the appellant’s reinstatement, she was allowed a new enrollment, and she
elected plan code 104. Id. However, under the parties ’ 2016 agreement , the
LWOP was voided and so the opportunity to choose a new enrollment code also
was voided, and t he appellant was returned to her former plan code of 105,
apparently for the entire back pay period of July 31, 2011 , through October 3,
2012 . Id. Because OPM also had deducted FEHB P premiums from the
17
appellant ’s retirement benefits, which she had receiv ed from July 31, 2011 ,
through October 3, 2012,9 the agency stated that any refunds of those FEHB P
premium payments should be issued by OPM. Id. at 28.
¶31 The appellant admits that , eventually, the agency allowed her to
retroactively elect enrollment in FEHB P code 104 effective during the first open
season after her reinstatement. CF -2, Tab 9 at 63. That retroactive election
became effective on January 12, 2013. Id. In its response to the appellant ’s
petition for review, t he agency states that it reim bursed her for the difference
between the higher FEHB P code 105 premiums and the lower plan code 104
premiums . CPFR File, Tab 9 at 19-20. Although the appellant replied to the
agency ’s response, she did not dispute that she received that reimbursement.
¶32 We find that t he agency ’s actions regarding the appellant ’s reinstatement
into the FEHB P are consistent with the regulatio ns regarding the FEHB P. As the
agency states, when it reinstated the appellant after a LWOP period , she was
entitled to change her e nrollment plan code . CF -2, Tab 6 at 31; see 5 C.F.R.
§ 890.301 (h)(1). However, when the appellant ’s LWOP period was voided, she
was no longer entitled to change her enrollment code, and the agency
appropriately reinstated her to plan code 105. The agency properly allowed the
appellant to elect plan code 104 instead of 105 at the next open season after her
reinstatement with pay, and reimbursed her for the difference between the higher
and the lower plan code deductions. The appellant presented no evidence or
argument to show that the agency did not properly follow the guidance of
5 C.F.R. § 890.301 when it took these actions . Under these circumstances, we
find that the agency has complied with the 2016 agreement ’s terms regarding the
appellant ’s enrollment in the FEHB P.
9 The retirement benefits that t he appellant received from July 31, 2011 , through
October 3, 2012, also were deducted from her back pay award. CF -2, Tab 6 at 28.
18
¶33 In sum, we conclude that the agency has produce d evidence of its
compliance with the 2016 agreeme nt, which the appellant has not rebutted. The
appellant has failed to meet her burden of pe rsuasion to show that the agency is
not in compliance w ith the 2016 agreement . See Vaughan , 77 M.S.P.R. at 546.
Accordingly, we de ny the appellant’s petition for enforcement.
NOTICE OF APPEAL RIG HTS10
You may obtain review of 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 Merit
Systems Protection Board does not provide legal a dvice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
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
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.
19
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(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 web site, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representa tion for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. T he
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
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. ____ , 137 S. Ct. 1975 (2017). If you have a
representative in this case, and your representative receives this decision before
20
you do, then you must file with the district court no later than 30 calendar days
after your representative receives this decision. If the action involves a claim o f
discrimination based on race, color, religion, sex, national origin, or a disabling
condition, you may be entitled to representation by a court -appointed lawyer and
to waiver of any requirement of prepayment of fees, costs, or other security. See
42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.u scourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative 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
21
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
other protect ed activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited p ersonnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or a ny court of appeals of
competent jurisdiction.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 judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the 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.
11 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals o f competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal ca ses with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court 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 are interested in securing pro bono representation for an 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/Cour tWebsites.aspx .
FOR THE BOARD:
Washington, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board | MARTIN_BEVERLY_DC_0752_15_0108_C_2_FINAL_ORDER_2010169.pdf | 2023-03-09 | null | DC-0752 | NP |
3,404 | https://www.mspb.gov/decisions/nonprecedential/CUSIC_JAMES_G_DE_0752_14_0385_I_1_FINAL_ORDER_2010184.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
JAMES G. CUSIC, III,
Appellant,
v.
DEPARTMENT OF THE AI R FORCE,
Agency.
DOCKET NUMBER
DE-0752 -14-0385 -I-1
DATE: March 9, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL1
Eloise R. Stripling , Lackland A ir Force Base , Texas, for the appellant.
Charles R. Vaith , Esquire, Randolph A ir Force Base, Texas, 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
sustained his removal . Generally, we grant petitions such as this one only in the
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
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
following circumstances: the initial decision contains erroneous findings of
material fact; the initial decision is based on an erroneous interpretation of statute
or regulation or the erroneous application of the law to the facts of the case; the
adminis trative judge’s rulings during either the course of the appeal or the initial
decision were not consistent with required procedures or involved an abuse of
discretion, and the resulting error affected the outcome of the case; or new and
material evidence o r legal argument is available that, despite the petitioner’s due
diligence, was not available when the record closed. Title 5 of the Code of
Federal Regulations, section 1201.115 ( 5 C.F.R. § 1201.115 ). After fully
considering the filings in this appeal, we conclude that the petitioner has not
established any basis under section 1201.115 for granting the petition for review.
Therefore, we DENY the petition for review and AFFIRM the init ial decision,
which is now the Board’s final decision. 5 C.F.R. § 1201.113 (b).
¶2 Between 2007 and the time of the action under appeal , the appellant
encumbered the positon of Training Ins tructor (Pararescue), GS -11, at Kirkland
Air Force Base. Initial Appeal File (IAF), Tab 5 at 70-77. He was responsible
for provid ing Pararescue (PJ) training and Combat Rescue Officer (CRO)
training, id. at 71, and, in connection therewith, was required to successfully
maintain training requirements for the position. Id. at 76. To teach a course,
instructor s were required to have a teaching qualification (TQ), or be teaching
qualified (TQ’d) in the course by passing all measurements and conducting a
qualification evaluation in a given block of instruction. Id. at 93. The P J course
and the CRO course shared a number of specific training blocks, but the CRO
course also included a Ground Force Commander Training block.
¶3 Early in 2013, based on concerns regarding the appellant’s subject matter
knowledge , his supervisor reviewed the database for evaluations and testing and
discovered that the appellant had failed a CRO evaluation in 2009 . Hearing
Transcript (H T) II at 140 -46 (testimony of the appellant’s supervisor ). Although
the appellant had passed several reevaluations, the supervisor was advised by the
3
Instructional Supervisor who had administered the reevaluations that they did not
accurately reflect the appellant’s performance. For that reason, and based on
concerns expressed by students about the appellant’s teaching skills, id., he was
reassigned from teaching the CRO course to performing other duties. HT I I
at 20-23 (testimony of Chief Instructor ), 139 (testimony of the appellant’s
supervisor). Subsequently , the Squadron Commander directed that the appellant
be remediated back into the CRO instruction block. HT II at 240 (testimony of
the deciding official) ; HT I at 18 (testimony of CRO Instructor Supervisor ).
After several months of remediation , the appellant was required to perform his
qualification evaluation , a mock lesson of four specific measurements3 under the
Ground Force Commander Training block. He failed to successfully perform
these m easurements. IAF, Tab 5 at 57 -58; HT I at 66 -67 (testimony of CRO
Instructor Supervisor) . A few days later , the appellant again attempted the same
qualification evaluation and again failed all four measurements . IAF, Tab 5
at 46-47; HT I at 67 (testimon y of CRO Instructor Supervisor). The Chief
Instructor notified the appellant of the results and of his recommendation that the
appellant’s remediation be discontinued. IAF, Tab 5 at 40. Thereafter, on
March 24, 2014, based on the unsuccessful results of these two qualificati on
evaluations, the agency proposed the appellant’s removal due to his failure to
maintain his TQ, a condition of his employment. Id. at 31 -34. The agency issued
a decision letter on May 1, 2014, id. at 13 -15, and effected the actio n that same
day. Id. at 12.
¶4 On appeal, the appellant did not dispute that he failed both evaluations.
HT I at 67, 71 (exchange during testimony of CRO Instructor Supervisor). The
appellant argued , however, that being TQ’d in a CRO block of instruction is not a
3 The four measurements were (a) perform visual sig nals, (c) use execution checklist
and brevity codes, (d) perform communications phraseology, and (g) use inter -team
radios. IAF, Tab 5 at 57 -58.
4
requirement of his position, that he was hired as a PJ instructor and was TQ’d in
PJ courses, that he was not allowed a sufficient amount of time to prepare for the
evaluations, and that the agency was required to, but did not, place him on a
performance improvement p lan (PIP). IAF, Tab 1at 6. He also alleged that the
agency’s action was retaliatory based on his having filed several grievances. Id.
He requested a hearing . Id. at 2.
¶5 Thereafter, the administrative judge issued an initial decision , IAF, Tab 30,
Initial Decision (ID), in which he found the charge sustained in that the agency
showed by preponderant evidence that being TQ’d in the CRO course was a
condition of the appellant’s appointment, that he was provided a reasonable
amount of time to become TQ’d in the Ground Force Commander Training block,
and that, because he failed the certification at least twice, the agency acted
reasonably in not recertifying him for his teaching position. ID at 10-15. The
administrative judge further found that the agency established that a nexus existed
between the sustained charge and the efficiency of the service. ID at 15.
¶6 The administrative judge then addressed the appellant’s affirmative defense
that t he agency’s action was in retaliation for his having filed several grievances.
The administrative judge found that i t was undisputed that the appellant had
engaged in protected union activity , ID at 16, but that he had provided no
evidence to support his assertion that he was removed because of his union
activity or that his union activity played any role whatsoever in his removal. ID
at 16 -17. Accordingly, the administrative judge found that the appellant did not
show that the agency retaliated against him as alleged. ID at 17.
¶7 Finally, in considering the reasonableness of the penalty, the administrative
judge addressed the particular factors set forth by the Board as most relevant in
an adverse action resulting from an employee’s failure to maintain a condition of
employment ; namely, the nature of the offense, its effect on the employee’s job
performance, and the availability and effect of alternative sanctions. Penland v.
Department of the Interior , 115 M.S.P.R. 474 , ¶ 8 (2010); ID at 17. The
5
administrative judge considered the deciding official’s discussion of these factors
in his letter of decision, IAF, Tab 5 at 17, 19 , 22-23, as well as his hearing
testimony, HT I at 238, and concluded that his articulated reasons amply
support ed the penalty of removal. ID at 17 -18. As such, the administrative judge
affirmed the agency’s action. ID at 1, 18.
¶8 The appellant has filed a petition for review , Petition for Review (PFR)
File, Tab 1, the agency has responded in opposition, PFR File, Tab 3, and the
appellant has filed a reply. PFR File, Tab 4.
¶9 When a charge consists of an agency’s withdrawal or revocation of its
certificatio n or other approval of an employee’s fitness or other qualifications to
hold his position, the Board’s authority generally extends to a review of the
merits of that withdrawal or revocation. Adams v. Department of the Army ,
105 M.S.P.R. 50, ¶ 10 (2007) , aff’d , 273 F. App’x 947 (Fed. Cir. 2008) . That
review includes whether the job requirement was necessary for the appellant to
perform his duties, whether there was a nexus between his loss of certification or
approval and the efficiency of the service, and whether the agency’s decision to
remove him was reasonable. Id., ¶ 19.
¶10 As to whether the appellant’s being TQ’ d in CRO is a requirement of his
position, the administrative judge found that it was in large part based on the
appellant’s significant military experience that he was hired in 2007 to develop
and teach the CRO course, HT I at 78 -79 ( testimon y of CRO Instructor
Supervisor); that he was receiving consistent qualifications within the CRO
course beginning in 2009 and continuing thereafter , id. at 80 ; that, while his title
refers only to pararesc ue, the title is outdated, his position desc ription states that
he will be teaching “PJ/CRO apprentice qualification courses,” IAF, Tab 5 at 71,
and there is no separate position description for a CRO instructor, HT I at 185 -86
(testimony of CRO Instructor Supervisor) ; and that the appellant had bee n
teaching the CRO course because otherwise the agency would have had no need
to remove him from those duties and subject him to remediation . ID at 11.
6
¶11 On review, the appellant argues that the administrative judge failed to
identify any objective evidence to support his findings and offered no discussion
“of a credibility determination” regarding the testimony on that topic. PFR File,
Tab 1 at 5. On the contrary, the administrative judge considered testimony
offered by the agency , as noted above , as well as documentary evidence,
specifically, the appellant’s core personnel document (position description), to
support his finding that being TQ’ d in CRO is a condition of the appellant’s
employment. ID at 11. The appellant argues that, although he and other civilian
instructors worked under the same core personnel document, he was the only one
who was required to be TQ’d in CRO to keep his job . PFR File, Tab 1 at 5 .
However, no others were assigned to that particular block of instruction in the
CRO co urse, Ground Force Commander Training . Because the appellant was so
assigned , he was re quired to be TQ’d in that block . HT II at 77 (testimony of
Chief Instructor). The appellant has pointed to no contrary testimony on this
point , and it therefore raise d no credibility issue for the administrative judge to
resolve .
¶12 In a related issue, the appellant argues that he was not required to be TQ’d
in the particular block of instruction because he was never decertified. PFR File,
Tab 1 at 1 -3. The administrati ve judge found that, while apparently no
decertification document was entered into the system, the appellant was, for all
intents and purposes, dece rtified because it i s undisputed that he was barred from
teaching CRO courses in February 2013, and that, by August 2013 , he was
informed that he was decertified and had to be remediated and TQ’d before he
would be allowed to be an instructor. ID at 12 -13, 15. The appellant argues o n
review that the administrative judge based his conclusion that the appellant had
been decertified on the implication that the individual who administered the
training database was complicit in ensuring that the decertification document was
not entered into the database because that individual was reprimanded for
manipulating record s, after being accused of entering in to the system successful
7
reevaluations of the appellant’s subject matter knowledge that supposedly did not
truly reflect his performance. PFR File, Tab 1 at 1 -3; ID at 12.
¶13 In support of his claim of error in the administrative judge ’s findings in this
regard, the appellant has submitted what he describes as new and material
evidence in the form of an arbitration award involving that individual wherein the
arbitrator found no deceptive behavior on his part and miti gated the penalty to an
admonishment . PFR File, Tab 1 at 2, 10-18. The proffered evidence is new in
that the award was issued after the record closed below. Avansino v. U.S. Postal
Service , 3 M.S.P.R. 211 , 214 (1980) ( finding that under 5 C.F.R. § 1201.115 , the
Board 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). However, although the arbitrator found
no deceptive be havior on the part of the grievant, PFR File, Tab 1 at 18, he did
find that the grievant caused erroneous information to be entered into the
appellant’s training records. Id. at 17. More importantly, though, the
administrative judge specifically made his findings in this matter
“[n]otwithstanding the issue regarding [that individual].” ID at 12. Therefore,
the proffered evidence is not material and we will not consider it. Russo v.
Veterans Administration , 3 M.S.P.R. 345 , 349 (1980) ( explaining that the Board
generally will not grant a petition for review based on new evidence absent a
showing that it is of sufficient weight to warrant an outcome d ifferent from that
of the initial decision) .
¶14 Finally, the appellant disputes on review the administrative judge’s finding
that he was afforded sufficient time to prepare for the evaluations. PFR File,
Tab 1 at 6-7. The appellant contends , as he did bel ow, IAF, Tab 1 at 6, that he
was only afforded 10 days , whereas under the Air Education and Training
Command Instruction 36 -2202, section 35, he was entitled to 120 d ays to prepare.
IAF, Tab 5 at 89. The administrative judge considered this provision but , relying
on the testimony of the Chief of Faculty Development, HT II at 179 -80, and the
8
administrative judge’s own reading of the provision, he found that, when the
appellant was remediated, he was not an initial instructor or completing an initial
TQ and was also not a returning instructor. ID at 12. Rather , he was a current
instructor to whom the cited provisions did not apply. Even if we were to
consider that another provision might arguably be interpreted to allow the
appellant additional time to pr epare , he has not shown error in the administrative
judge’s finding as to the clear reading of section 35. Moreover, the
administrative judge found that the appellant was, in fact, afforded substantially
more than 10 days to prep are for the evaluations be cause, although his TQ plan
actually began on November 16, 2013, he knew as early as August 23, 2013 , that
he would be remediated back into the CRO course, and that, at that time, he was
provided all the necessary written materials and was relieved of some of his other
duties so that he could devote his time to prepar e for the evaluation. ID at 13.
The administrative judge further found that the appellant had assistance
throughout his preparation from the Chief Instructor, the CRO Instructor
Supervisor, a nd a fellow student instructor. ID at 14. The appellant has not
challenged these findings on review.4
¶15 We conclude, therefore, that the appellant has not shown error in the
administrative judge’s findings that the agency showed by preponderant evidence
that b eing TQ’d in the CRO course was a requirement of the appellant’s position,
4 The administrative judge further found that the appellant was not entitled to a formal
PIP because the agenc y fairly chose to take the performance -based action under
5 U.S.C. chapter 75, not chapter 43. ID at 14 -15. The appellant has not challenge d this
finding on review and specifically acknowledge d in his reply to the agency’s response
that he did not do so, stating that the matter is “irrelevant.” PFR File, Tab 4 at 11.
Nonetheless, in that reply, the appellant does challenge the administrative judge’s
finding, positing that McGillivray v. Federa l Emergency Management Agency ,
58 M.S.P.R. 398 (1993) , upon which the administrative judge relied, supports his
position. PFR File, Tab 4 at 12 -13. However, unlike the situation in McGillivray , there
was no evidence of the appellant’s performance standards and no evidence that the
agency charged that he should have performed better than the standards in his
performance appraisal plan required.
9
that it provided him a reasonable amount of time to become TQ’d in the particular
training block cited, that he failed the certification twice, and that therefore the
agency ac ted reasonably in not recertifying him for his teaching position.5
Adams , 105 M.S.P.R. 50, ¶¶ 10, 19. Accordingly, the initial decision is affirmed.
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 Protect ion Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek re view of this final decision, you 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 ch osen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
5 The appellant has not challenged on review the administrative judge’s finding that he
failed to establish his affirmative defense that the agency’s action was in retaliation for
his having engaged in union activity. We discern no basis upon wh ich to disturb the
administrative judge’s well -reasoned findings. Mattison v. Department of Veterans
Affairs , 123 M.S.P.R. 49 2, ¶ 8 (2016).
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 mat ter.
10
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federa l Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circu it is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interest ed in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appella nts before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This o ption applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —inclu ding a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
11
receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. ____ , 137 S. Ct. 1975 (2017). If you have a
representative in this case, and your representative receives this decision before
you do, then you must file with the district court no later than 30 calendar days
after your representative receives this decision. If the action involves a claim o f
discrimination based on race, color, religion, sex, national origin, or a disabling
condition, you may be entitled to representation by a court ‑appointed lawyer and
to waiver of any requirement of prepayment of fees, costs, or other security. See
42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www .uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702 (b)(1) . If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for revi ew to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
12
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhanc ement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in s ection
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.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 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
7 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195,
132 Stat. 1510.
13
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the 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 | CUSIC_JAMES_G_DE_0752_14_0385_I_1_FINAL_ORDER_2010184.pdf | 2023-03-09 | null | DE-0752 | NP |
3,405 | https://www.mspb.gov/decisions/nonprecedential/BROOKS_PAMELA_SF_0752_16_0430_I_1_FINAL_ORDER_2010187.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
PAMELA BROOKS,
Appellant,
v.
DEPARTMENT OF THE TR EASURY,
Agency.
DOCKET NUMBER
SF-0752 -16-0430 -I-1
DATE: March 9, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL1
Stephanie Bernstein , Esquire, and Bobby Devadoss , Esquire, Dallas, Texas,
for the appellant.
Timothy E. Heinlein , Esquire, San Francisco, California, for the agency.
BEFORE
Cathy A. Harris , Vice Chairman
Raymond A. Limon , Member
FINAL ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
sustained her removal . On review, the appellant disputes the administrative
judge’s finding that the appellant’s actions were willful, and she argues that the
administrative judge failed to properly analyze her affirmative defenses of age
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
require d to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c).
2
and religious discrimination . Generally, we grant petitions such as this one only
in the following circumstances: the initial decision contains erroneous findings
of material fact; the initial decision is based on an erroneous 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 ava ilable when the record closed. Title 5 of
the Code of Federal Regulations, section 1201.115 ( 5 C.F.R. § 1201.115 ). After
fully considering the filings in this appeal, we conclude that the petitioner has not
established any basis under section 1201.115 for granting the petition for review.2
Therefore, we DENY the petition for review and AFFIRM the initial decision,
which is now the Board’s final decision. 5 C.F.R. § 1201.113 (b).
2 The appellant also has filed a motion for leave to file an additional pleading in which
she contends without further explanation that she “sincerely believes that it is crucial to
her case that the Board consider this additional pleading.” P etition for Review (PFR)
File, Tab 4 at 5. The appellant’s motion is denied because she has not adequately
described the nature of and need for the pleading. See 5 C.F.R. § 1201.114 (a)(5).
Additionally, we have not considered the new arguments raised by the appellant in her
reply. PFR Fi le, Tab 7 at 8-14. Although the Board’s regulations allow for a reply to a
response to a petition for re view, such a reply must be “limited to the factual and legal
issues raised by another party in the response to the petition for review.” 5 C.F.R.
§ 1201.114 (a)(4).
Regarding the appella nt’s discrimination claims, because the administrative judge
properly found that the appellant did not prove that age or religious discrimination were
a motivating factor in her removal, we need not reach the issue of whether
discrimination was a “but-for” cause of the removal. See Pridgen v. Office of
Management and Budget, 2022 MSPB 31 , ¶¶ 20 -24.
3
NOTICE OF APPEAL RIG HTS3
You may obtain review of this final decision. 5 U.S.C. § 7703 (a)(1). By
statute, the nat ure of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703 (b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you 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 t he Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for review to the U.S . Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
3 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.
4
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems 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. ____ , 137 S. Ct. 1975 (2017). If you have a
representative in this case, and your representative receives this decision before
you do, then you must file with the district court no later than 30 calendar days
after your representative receives this decision. If the action involves a claim of
discrimination based on race, color, religion, sex, national origin, or a disabling
condition, you may be entitled to representation by a court -appointed lawyer and
5
to waiver of any requirement of prepayment of fees, costs, or other security. See
42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Oppor tunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must fil e
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commiss ion
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
other protected activities listed in 5 U.S.C. § 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 se ction 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.4 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Fede ral Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are intere sted in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appel lants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
4 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 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
Contact information for the courts of appeals can be 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 | BROOKS_PAMELA_SF_0752_16_0430_I_1_FINAL_ORDER_2010187.pdf | 2023-03-09 | null | SF-0752 | NP |
3,406 | https://www.mspb.gov/decisions/nonprecedential/MAGOWAN_MARIA_DE_LA_CRUZ_DC_1221_15_0671_B_1_FINAL_ORDER_2010284.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
MARIA DE LA CRUZ MAG OWAN,
Appellant,
v.
ENVIRONMENTAL PROTEC TION
AGENCY,
Agency.
DOCKET NUMBER
DC-1221 -15-0671 -B-1
DATE: March 9, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL1
Maria de la Cruz MaGowan , Bethesda, Maryland, pro se.
Alexandra Meighan and Edward O. Sweeney , Washington, D.C., for the
agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
Tristan L. Leavit t, 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 dis tinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c).
2 Member Leavitt’s name is included in decisions on which the three -member Board
completed the voting process prior to his March 1, 2023 departure.
2
FINAL ORDER
¶1 The appellant has filed a petition for review of the 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 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).
BACKGROUND
¶2 The Board remanded this IRA appeal because we found that the appellant
had exhausted her administrative remedies before the Office of Special Counsel
and made nonfrivolous allegation s that she had made a protected disclosure that
was a contributing factor in a personnel action , thus establishing jurisdiction over
the appeal . MaGowan v. Envir onmental Protection Agency , MSPB Docket
No. DC-1221 -15-0671 -W-1, Remand Order (Jun e 7, 2016) (Remand Order) .
¶3 On remand, the appellant confirmed that she did not wish to request a
hearing in the matter . MaGowan v. Environmental Protection Agency , MSPB
Docket No. DC -1221 -15-0671 -B-1, Remand F ile (RF), Tab 3, Tab 18 at 5, Tab 19
at 1. In keepi ng with the appellant’s wishes , the administrative judge canceled
3
the hearing and scheduled a close -of-record conference at which he enumerated
the issues presented in this appeal, set forth the relevant burdens of proof , and set
a date by which the parties were required to submit their evidence and argument
before the record closed . RF, Tabs 19, 23 . In his summary of the close -of-record
conference, t he administrat ive judge identified the following issues : (1) whether
the appellant made a protected disclosure under 5 U.S.C. § 2302 (b)(8);
(2) whether the appellant’s protected disclosure was a contributing fa ctor in the
alleged personnel action —the creation of a hostile work environment; and (3) if
so, whether the agency can show by clear and convincing evidence that it would
have taken the same action absent the protected disclosure. RF, Tab 23 at 1.
Both p arties made close -of-record submissions and neither party objected to the
administrative judge’s recitation of the issues presented in the appeal. RF,
Tabs 24-25.
¶4 In a remand initial decision based on the written record, the administrative
judge found t hat, although the appellant established that she made a protected
disclosure, she failed to establish by preponderant evidence that the agency took
or failed to take a personnel action against her . RF, Tab 26, Remand Initial
Decision (RID) at 6 -17. As to the personnel action, h e determined that each of
the appellant’s allegations , considered both individually and collectively, lacked
the severity to constitute a hostile work environment. RID at 7 -17. He further
found that , even if the appellant had met her burden as to the personnel action,
she failed to establish that her protected disclosure was a contributing factor in
the alleged personnel action . RID at 17 -19.
¶5 The appellant has filed a petition for review. Remand Petition for Review
(RPFR) File, Tab 1 at 1. On review, she contends that the administrative judge
either ignored or did not accept her witnesses and evidence , and also denied her
right to discovery. She argues that the administrative judge arbitrarily considered
events other than the three instances that she alleged she suffered from her
supervisor’ s violent behavior , and she asserts that he abused his discretion in
4
conducting the appeal. Id. at 2-3. She also contends that the administrative judge
failed to require the agency to esta blish by clear and convincing evidence that it
took similar actions against employees who are not whistleblowe rs but are
similarly situated, and challenges his interpretation of the evidence. Id. at 3-5.
The agency has filed a response in opposition to t he appellant’s petition for
review. RPFR File, Tab 3.
DISCUSSION OF ARGUME NTS ON REVIEW
¶6 When reviewing the merits of an IRA appeal, the Board must determine
whether the appellant has established by preponderant evidence that she made a
protected disclos ure that was a contributing factor in the agency ’s decision to take
or fail to take a personnel 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. If the appellant meets that burden , the Board must order
corrective action unless the agency can establish by clear an d convincing
evidence that it would have taken the same personnel action in the absence of the
disclosure. Id.
The appellant met her burden of establishing that she made a protected
disclosure.
¶7 In the remand initial decision, the administrative judge fo und that the
appellant met her burden of establishing by preponderant evidence that she made
a protected disclosure when, in April 2003, she disclosed to the agency’s Office
of Inspector General (OIG) alleged agency wrongdoing. RID at 6 -7.
Specifically, the administrative judge found that a disinterested observer with
knowledge of the essential facts known to and rea dily ascertainable by that
indivi dual could reasonably conclude that the agency’s actions described by the
appellant to its OIG in April 2003 evidenced a violation of law or gross waste of
5
funds. RID at 7. Neither party contests these findings on review, and we discern
no basis to disturb them.
The appellant did not meet her burden of establishing that she was subjected to a
personnel action .
¶8 Under the Whistleblower Protection Act (WPA),3 a “personnel action” is
defined to include, among other enumerated actions, “any other significant
change in duties, responsibilities, or working conditions.” 5 U.S.C.
§ 2302 (a)(2)(A)(xii). The legislative history of the 1994 amendment to the WPA
indicates that “any other significant change in duties, responsibilities, or working
conditions” should be interpreted broadly, to include “any harassment o r
discrimination that could have a chilling effect on whistleblowing or otherwise
undermine the merit system and should be determined on a case -by-case basis.”
140 Cong. Rec. H11,419, H11,421 (daily ed. Oct. 7, 1994) (statement of
Rep. McCloskey); see Skarada v. Department of Veterans Affairs , 2022 MSPB
17, ¶ 14; 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; Shivaee v. Department of the Navy , 74 M.S.P.R. 383 , 388 (1997).
¶9 However, notwithstanding the broad interpretation accorded to the term
“significant change in duties, responsibilities, or working conditions,” not every
agency action is a “per sonnel action” under the WPA. Skarada , 2022 MSPB 17 ,
¶ 15; see King v. Department of Health and Human Services , 133 F.3d 1450 ,
1452-53 (Fed. Cir. 1998). Rather, an agency action must have practical
consequence for the employee to c onstitute a personnel action. Skarada ,
2022 MSPB 17 , ¶ 15. In determining whether an appellant has suffer ed a
“significant chan ge” in her duties, responsibilities, or working conditions, the
Board must consider the alleged age ncy actions both collectively and
3 The WPA has been amended several times, including by the Whistleblower Protection
Enhancement Act. The references herein to the WPA include those amendments, which
do not affect any issue pertinent to this appeal.
6
individuall y. Id., ¶ 16; see Holderfield v. Merit Systems Protection Board ,
326 F.3d 1207 , 1209 (Fed. Cir. 2003). A number of agency action s may amount
to a covered “significant change” personnel action collectively, even if they are
not covered personnel actions individually. Skarada , 2022 MSPB 17 , ¶ 18 . 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., ¶ 16.
¶10 Here, t he administrative judge found that the appellant’s claim of a hostile
work environment involved three separate episodes. RID at 8. In the f irst of
these ep isodes , the appellant made general and conclusory allegations of
harassment by her supervisor , but she provided few details of the particular
incident s involved except for a June 2010 incident when the appellant alleged that
the supervisor called her stupid and threw a telephone at her . RID at 8 -9; RF,
Tab 24 at 15 . Given the lack of details regarding this episode in the record, the
administrative jud ge determined that it was insufficiently severe to comprise a
hostile work environment, finding that the episode amounted , at most , to the
appellant’s supervisor yelling at her , calling her stupid, and shoving an office
telephone in her direction. RID at 14. On that basis, he found that a reasonable
person would not find that the terms and conditions of her employment changed
as a result of this encounter. Id. We agree . G iven the lack of detail and
corroboration in the record,4 we find that this does not amount to a significant
agency action that, in and of itself, could give rise to an alleged hostile work
environment . See, e.g., Shivaee , 74 M.S.P.R. at 388-89 (finding that only a
4 For example, the account of this inc ident in the declaration of a union steward that the
appellant submitted at the close of the record is merely a recitation of the appellant’s
allegations and does not indicate that the declarant witnessed any of th is episode herself
or that she spoke with anyone besides the appellant who was present during the
incident. RF, Tab 24 at 23 -25.
7
significant change in duties, responsibilities, or working conditions may
constitute a personnel action under 5 U.S.C. § 2302 (a)(2)(A)(xi i)).
¶11 Second, the appellant identified a November 21, 2014 incident in which her
supervisor called her into the supervisor’s office to discuss an email that the
appellant sent to a colleague. RID at 9 -10; RF, Tab 24 at 15. In that episode, t he
appellant alleged that her supervisor yelled at her, invaded her personal space,
and then moved the interaction outside the supervisor’s office, where the
appellant alleged that the supervisor assumed a pose that frightened her , and she
concluded that her supervisor wished to engage in a physical fight . RID at 10-11;
RF, Tab 24 at 17 -18. The administrative judge found that, despite the appellant’s
assertions of violent behavior and assault, the record failed to show that any
physical contact took place. RID at 12. H e again found that the appellant’s
contentions were uncorroborated in the rec ord, observing that her most
contemporaneous account of the episode, set forth in an email to her second -level
supervisor, failed to address the incident , despite the fact that it had allegedly
taken place just an hour earlier , and she instead raised it for the first time several
days later in a complaint to the OIG . RID at 13 ; RF, Tab 23 at 13, 22 -23, Tab 25
at 30, 32 -33. Thus, the administrative judge found the appellant’s supervisor’s
contemporaneous account of the incident more credible and, by contrast, found
that the appellant’s assertion that her supervisor essentially adopted a fighter’s
pose in a public area of the office was implausible. RID at 13-14. Although the
appellant contests the administrative judge ’s description of the physical s pace in
which this episode occurred, as well as the conclusions drawn by the agency’s
investigation of it , the only evidence she cites to substantiate her disagreement
with these conclusions is the declaration of a union steward who the appellant
consulted after the June 2010 incident recounted above . RPFR File, Tab 1 at 4;
RF, Tab 24 at 23 -25. The steward’s declaration not only fails to specifically
address this episode, but also fails to provide any reason to upset the
administrative judge ’s conclusions . RF, Tab 24 at 23 -25. Again, g iven the scant
8
evidence supporting the appellant’ s version of this episode , we also find that she
has not shown that it amounts to a significant agency action that could establish a
hostile work environment. See, e.g., Shivaee , 74 M.S.P.R. at 388-89.
¶12 Third , the administrative judge considered the appellant’s allegation that, in
September 2010, her supervisor wrongfully denied her 2 days of annual leave .
RID at 11 -12; RF, Tab 24 at 15. Although the appellant did not i nclude this in
her iteration of what she called the “current issue” and the administrative judge
questioned the relevance of this allegation to the appellant’s contentions of
harassment and a violent work setting , he never theless included it in his analysi s
of the appellant’s claims , noting the Board’s instruction to consider this claim on
remand as part of his analysis of the appellant’ s allegations of a hostile work
environment . RID at 12; RF, Tab 24 at 15 -16; Remand Order, ¶ 5 n.4. The
administrative j udge found that this “discrete non -physical act” lacked the
requisite severity and was unrelated to the other events the appellant cited in
alleging a hostile work environment. RID at 15. The appellant does not
challenge this finding on review, and we find no reason to upset the
administrative judge’s findings on this point. Thus, we find that none of these
three episodes amounts to a significant agency action that, in and of itself, might
give rise to an alleged hostile work environment. See, e.g., Shivaee , 74 M.S.P.R.
at 388-89.
¶13 In addition to finding that these three episodes did not individually amount
to a significant change in the appellant’s duties, responsibilities, or working
condi tions, the administrative judge also found that, even when considered
collectively, these three events were not so severe that a reasonable person would
believe they altered the terms and conditions of her employment with the agency.
RID at 15 -16. Instea d, he found them typical of common interaction between a
supervisor and an employee regarding typical workplace issues involving
expressions of frustration. RID at 16 . Although the appellant’s relationship with
her supervisor is unmistakably contentious, we agree with the administrative
9
judge that such isolated incidents , even when viewed collectively, cannot aptly be
described as serious or significant enough to establ ish a hostile work
environment. Id. We also agree that the incidents did not alter th e terms and
conditions of the appellant’s employment. Id. These three incidents were
unrelated to each other and happened over a reasonably long period of time,
around 4 years , such that the record simply do es not support the appellant’ s
general contenti on that she suffered “relentless retaliation as a result of the
agency’s actions ,” RPFR File, Tab 1 at 1, or that she experienced a significant
change in working conditions as contemplated under secti on 2302(a)(2)(A) (xii)
by virtue of the inci dents described in the record, see Skarada , 2022 MSPB 17 ,
¶ 29 (finding that the appellant’s allegations, collectively and indiv idually,
although indicative of an unpleasant and u nsupportive work environment, did not
establish, by preponderant evidence, that he suffered a significant change in his
working conditions under the WPA ).
¶14 Further, w e agree with the administrative judge ’s alternate finding that,
even if the appellant had shown that the agency subjected her to a personnel
action under section 2302(a)(2)(A)( xii), she failed to show that her protected
disclosure was a contributing factor in that personnel action . RID at 17 -19.
Specifically, he found that the appellant’s 2003 disclosure was completely
unrelated to her supervisor, who was in no way involved with the budget
irregularities the appellant disclosed, and the record fails to show that the
appellant showed any relat ionship between her protected disclosure and the
events surrounding each of the three episodes she alleged comprised a hostile
work environment. Id. Although the appellant’s assertions were sufficient to
comprise a nonfrivolous allegation of contributing factor, Remand Order, ¶ 7,
without more, they do not establish by preponderant evidence that her protected
disclosure had anything to do with the three episodes analyzed by the
administrative judge. Concerning the appellant ’s argument that the
administrative judge failed to require the agency to show by clear and convincing
10
evidence that it would have taken any of the alleged personnel actions in the
absence of her protected disclosure, RPFR File, Tab 1 at 3, because she faile d to
meet her burden of proof to establish that the agency subjected her to a personnel
action under section 2302(a)(2)(A)(xi i), or that it was a contributing factor in
those alleged personnel actions, we do not rea ch that stage of the analysis, see
Aquino , 121 M.S.P.R. 35 , ¶ 10.
The appellant fail ed to show that the administrative judge abused his discretion.
¶15 An administr ative judge has broad discretion in ruling on discovery matters ,
and, absent a showing of abuse of discretion, the Board will not find reversible
error in such rulings. See, e.g. , Tinsley v. Office of Personnel Management ,
34 M.S.P.R. 70 , 73-74 (1987). The administrative judge’s acknowledgment order
instructed the parties that, under the Board’s discovery procedures, initial
request s or motions must be served on the other party within 30 calendar days of
the d ate of the acknowledgment order . MaGowan v. Environmental Protection
Agency , MSPB Docket No. DC-1221 -15-0671 -W-1 (IAF), Tab 2 at 1, 4 -5; see
5 C.F.R. § 1201.73 (d).
¶16 The record reflects that the appellant served her first discovery request after
the 30 -day deadline . IAF, Tab 9 . Because she served it on the Board rather than
on the agency , as required , the admi nistrative judge returned the discovery
request to the appellant. Id.; see 5 C.F.R. § 1201.71 . In a subsequent submission ,
the appellant conced ed that her discovery request was untimely served , and she
moved for the administrative judge to ask the agency to reconsider its apparent
refusal to respond to her discovery . IAF, Tab 10. The agency responded , noting
the appellant ’s admission that her discovery request was untimely , and asserti ng
that she had failed to contact the agency’s representative before filing her motion ,
as is required for a motion to compel discovery under 5 C.F.R. § 1201.73 (c)(1).
IAF, Tab 11 at 5. The appellant filed a response, but the administrative judge
dismissed the appeal for lack of jurisdiction without ruling on the appellant’s
request. IAF, Tabs 12 -13.
11
¶17 In her petition for review of that decision, the appellant did not raise the
issue of discovery or the administrative judge’s failure to rule on her motion.
MaGowan v. Environmental Protection Agency , MSPB Docket No. DC -1221 -15-
0671 -W-1, Petition for Review ( PFR ) File, Tab 1. On remand, the appellant
renewed her request for discovery, RF, Tab 9, but the administrative judge denied
her mo tion, noting that the B oard had remanded the same issues as those
presented in the initial appeal, such that no discovery not already contemplated
was required to adjudicate the appeal . RF, Tab 14 at 2 .
¶18 Now, i n her petition for review of the remand initial decision , the appellant
alleges that the administrative judge ignored or did not accept her witnesses and
denied her discovery, including the right to depose witnesses. RPFR File, Tab 1
at 1. Howe ver, the record is clear that the appellant did not request a hearing at
which she could call witnesses and , by her own admission, failed to initiate
discovery in a timely fashion . IAF, Tab 10. She then failed to raise the discovery
issue in her petition for review of the initial decision dismissing her IRA appeal
for lack of jurisdiction. PFR File, Tab 1. Thus, we find that the appellant
requested discovery in an untimely fashion, and then failed to preserve the
discovery issue in her petition for revi ew of that initial decision , such that the
record does not show that the administrative judge abused his discretion in
denying the appellant’s motion to reopen discovery on remand. RF, Tab 14 at 2;
see e .g., Vores v. Department of the Army , 109 M.S.P.R. 191, ¶ 14 ( 2008)
(finding that , because the appellant failed to preserve an objection to the
administrative judge’s discovery rulings, the alleged error was not preserved for
the Board’s review and that, absent a showing of an abuse of discretion, the
Board will not find reversible erro r in such rulings on discovery ), aff’d , 324 F.
App’x 883 (Fed. Cir. 2009) .
¶19 Accordingly, we affirm the initial decision.
12
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 th e following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule rega rding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you 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 rev iew with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for 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.
13
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
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. ____ , 137 S. Ct. 1975 (2017). If you have a
representative in this case, and your repres entative receives this decision before
you do, then you must file with the district court no later than 30 calendar days
after your representative receives this decision. If the action involves a claim of
discrimination based on race, color, religion, sex , national origin, or a disabling
condition, you may be entitled to representation by a court -appointed lawyer and
14
to waiver of any requirement of prepayment of fees, costs, or other security. See
42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a .
Contact informa tion for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1) . You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 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
15
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.6 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
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, 2 017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court 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
Contact information for the courts of appeals can be 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 | MAGOWAN_MARIA_DE_LA_CRUZ_DC_1221_15_0671_B_1_FINAL_ORDER_2010284.pdf | 2023-03-09 | null | DC-1221 | NP |
3,407 | https://www.mspb.gov/decisions/nonprecedential/LAZAR_DANIEL_CH_0752_15_0371_I_2_FINAL_ORDER_REDACTED_2026143.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
DANIEL LAZAR,
Appellant,
v.
DEPARTMENT OF HOMELA ND
SECURITY,
Agency.
DOCKET NUMBER
CH-0752 -15-0371 -I-2
DATE: March 9, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL1
Joel J. Kirkpatrick , Esquire , and Jeff T. Schrameck , Esquire, Plymouth,
Michigan, for the appellant.
Trina R. Mengesha Brown , Southfield, Michigan, 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 Opinio n and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c).
2 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 agency has filed a petition for review of the initial decision, which
reversed the agency’s removal action. Generally, we grant petitions such as this
one only in the following circumstances: the init ial 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 eit her the course of
the appeal or the initial decision were not consistent with required procedures or
involved an abuse of discretion, and the 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 Regulati ons, section 1201.115 ( 5 C.F.R. § 1201.115 ).
After fully cons idering the filings in this appeal, we conclude that the petitioner
has not established any basis under section 1201.115 for granting the petition for
review. Therefore, we DENY the petition for review and AFFIRM the initial
decision, which is now the Bo ard’s final decision. 5 C.F.R. § 1201.113 (b).
BACKGROUND
¶2 The agency removed the appellant, a Federal Air Marshal, SV -1801 -I, for
off-duty misconduct and lack of candor. Lazar v. Depa rtment of Homeland
Security , MSPB Docket No. CH -0752 -15-0371 -I-1, In itial Appea l File (IAF),
Tab 4, Subtab 4a, Subtab 4b at 1-2. The charges that formed the basis of the
removal action originated from the agency’s investigation of a July 17, 2014
altercat ion between the appellan t and his wife at a heavy metal music festival.
IAF, Tab 4, Subtab 4 e at 1 , Subtab 4f . In a November 21, 2014 proposal to
remove the appellant , the agency alleged that he engaged in misconduct when he
grabbed his wife by the throat during the July 17, 2014 altercation , and that he
was “not fully forthcoming or candid” during an August 14, 2014 interview with
agency investigators in which he denied touching his wife’s neck during the
3
altercation . IAF, Tab 4, Subt ab 4e at 1 -3. Following the appellant’ s oral and
written replies , the agency issued a March 2, 2015 decision removing him from
the agency, effective March 4, 2015. IAF, Tab 4, Subtabs 4a-4b.
¶3 The appellant appealed the removal action ; he argued that the agency’s
action was unjustified because he had not committed the charged misconduct.
IAF, Tab 1 at 3 ; Lazar v. Department of Homeland Security , MSPB Docket
No. CH-0752 -15-0371 -I-2, Appeal File (I -2 AF) , Tab 13 at 5. After a hearing,
the administrative judge issued an initial decision that reversed the removal
action. I -2 AF, Tab 26, Initial Decision (ID) . In reaching her decision, the
administrative judge considered the written statements of four sec urity guards
who witnessed the July 17, 2014 altercation and the testimony of five witnesses
who testified to the alleged misconduct , four of whom witnessed the July 17,
2014 altercation : one of the security guards who had provided a written
statement , the appellant , the appellant’s wife, and an acquaintance of the
appellant and his wife .3 ID at 7-13. The administrative judge found the security
guards’ written statements , which all observed that the appellant had either
grabbed his wife by the throat or choked her , to be inconsistent in significant
ways and afforded them less weight than the testimony of the witnesses at
hearing. I D at 7, 16-17; see also IAF, Tab 4, Subtab 4 f at 21 -24. She further
found that each eyewitness who testified did so in a straightforward manner and
did not appear misleading, but she found the security guard’s testimony, which
confirmed the appellant had grabbed his wife by the throat during the altercation,
3 The administrative judge found that during the evening of July 17, 2014, the appellant
and his wife were joined at the music festival by a friend of the appellant ’s and the
friend’s companion. ID at 2. Although the agency alleged that the appellant’s wife and
this companion were friends, the administrative judge found that the companion had not
met the appellant or his wife until July 17, 20 14, and was not friends with them when
she gave her written statement , despite evidence that the companion and the appellant’s
wife later became friends . ID at 15 -16; see also I-2 AF, Hearing Transcript ( HT)
at 14-15 (testimony of the agency investigator); HT at 158, 161 (testimony of the
acquaintance) . Accordingly, we refer to the companion as an acquaintance of the
appellant and his wife.
4
implausible at times . ID at 16-18. She found the testimony of the appellant, his
wife, and the acquaintance , each of whom testified that the appellant did not grab
his wife’s throat, to be consistent with each other and with other evidence in the
record . ID at 15-16, 18 -19. Thus, the administrative judge credited the testimony
of the appellant, his wife, and the acquaintance over that of the security guard and
found it more likely than not that the appellant did not grab his wife by the throat
during the July 17, 2014 altercation. I D at 18 -19. The lack of candor char ge
relied on the evidence supporting the misconduct charge to establish that the
appellant was not forthcoming with investigators when he denied touching his
wife’s neck, and the administrative judge found that there was no evidence the
appellant had provi ded any inaccurate or incomplete information when making
this denial . ID at 19 -20. Accordingly, the administrative judge found that the
agency had not proven either charge and reversed the removal . ID at 20.
¶4 The agency has filed a petition for review in which it argues that the
administrative judge er red in her credibility findings, the charges were supported
by the record , and the penalty of removal was reasonable . Petition for Review
(PFR) File, Tab 1 at 6-18. The appellant has filed a response opp osing the
petition, to which the agency has filed a reply.4 PFR File, Tabs 3, 4.
4 In his response, the appellant all eges that the agency failed to comply with the interim
relief order to the extent that it faile d to pay , or take appropriate steps to pay, the
appellant for the period set forth in the interim relief order prior to filing the petition
for review. PFR File, Tab 3 at 31 . Whe n, as here, the appellant is the prevailing party
in an initial decision tha t grants interim relief, any petition for review filed by the
agency must be accompanied by a certification that the agency has complied with the
interim relief order , either by providing the required interim relief or by satisfyi ng the
requirements of 5 U.S.C. § 7701 (b)(2)(A)(ii) and (B). Archerda v. Department of
Defense , 121 M.S.P.R. 314, ¶ 11 (2014); 5 C.F.R. § 1201.116 (a). In its petition, the
agency certified that it had initiated process ing the appellant’s return to duty, effective
September 1, 2016, in accordance with the interim relief order . PFR File, Tab 1 at 2.
In its reply to the appellant’s response , the agency provided documentation showing
payment to him for the time period from the issuance of the initial decision to the date
of his return to work , and payment for hours worked . PFR File, Tab 4 at 14. We find
that the agency has provided interim relief concerning payment s due to the appellant .
5
DISCUSSION OF ARGUME NTS ON REVIEW
¶5 The Board must defer to an administrative judge’s credibility
determinations when they are based, explicitly or implicitly, on observing the
demeanor of witnesses testifying at a hearing. Haebe v. Department of Justice ,
288 F.3d 1288 , 1301 (Fed. Cir. 2002). Although the Board may decline to defer
to an administrative judge’s credibility findings that are abbreviated, based on
improper considerations, or unsuppo rted by the record, Redschlag v. Department
of the Army , 89 M.S.P.R. 589 , ¶ 13 (2001) , it may not overturn an administrative
judge’s demeanor -based credibility findings merely because it disagrees with
those findings, Purifoy v. Department of Veteran s Affairs , 838 F.3d 1367 , 1372
(Fed. Cir. 2016) ( quoting Haebe , 288 F.3d at 1299 ). We have considered the
agency’s arguments on review challeng ing the administrative judge’s credibility
finding s regarding the charged misconduct, and we conclude that the agency’s
evidence supporting its arguments is insufficient for the Board to decline
deferring to the administrative judge’s reasoned credibility findings.
¶6 On review, the agency argues that the administrative judge erred when she
failed to sustain the agency’s charges , despite written statements from four
security guards who witnessed the alterca tion and testimony from one of the
security guard s who provided a statement , which were provided by disinterested
witnesses and consistent in their observation that the appellant grabbed his wife
by the throat during the July 17, 2014 altercation . PFR Fil e, Tab 1 at 6 -12. The
agency asserts that the minor inconsistencies in the written statements are
attributable to differences in the witnesses’ arrival time to the altercation . Id.
at 11. The agency also argues that the administrative judge failed to fi nd that the
acquaintance testified inconsistently with her written statement , and neither she
nor the appellant’s wife was an impartial witness . Id. at 12 -14.
¶7 The initial decision reflects that the administrative judge reviewed ea ch
written statement and witness’s testimony as it pertained to the charged
misconduct, and she made detailed credibility findings that considered each of the
6
factors set forth in Hillen v. Department of the Army , 35 M.S.P.R. 453 , 458
(1987) .5 See ID at 7 -19. Her findings addressed the agency’s explanation at the
hearing of the inconsistencies in the written statements; in particular, she
observed that she did not have the opportunity to hear the testimony of the
security guards who wrote three of the statements relied upon by the agency ,
which left the inconsistencies in their statements unexplained and the statements
entitled to less weight . ID at 16-17. The administrative judge had issued
subpoenas at the agency’s request for the three security guards, but they did not
appear for the hearing, and the agency did not seek to enforce the subpoenas.6 ID
at 7 n.1, 8 nn.2-3.
¶8 We have considered the consistency of the security guards’ written
statements with the testimony of the lone security guard who testified at the
hearing , but we find no reason to disturb the administrative judge’ s detailed,
reasoned findings regarding the credibility of the stat ements and witnesses . The
written statements of the security guards constitute hearsay evidence and the
assessment of the probative value of hearsay evidence necessarily depends on the
circumstances of each case.7 Shannon v. Department of Veterans Affair s,
5 To resolve credibility issues, an administrative judge must identify the factual
questi ons in dispute, summarize the evidence on each disputed question, state which
version she believes, and explain in detail why she found the chosen version more
credible, considering su ch factors as: (1) the witness’ s opportunity and capacity to
observe th e event or a ct in question; (2) the witness’ s character; (3) any prior
inconsistent statemen t by the witness; (4) a witness’ s bias, or lack of bias; (5) the
contradiction of the witness’ s version of events by other evidence or its consistency
with other ev idence; (6) the inhere nt improbability of the witness’ s version of events;
and (7) the witness’ s demeanor. Hillen , 35 M.S.P.R. at 458.
6 Board subpoenas are enforceable in U .S. district court. 5 C.F.R. § 1201.85 .
7 In assessing the weight to accord hearsay evidence, the relevant factors include the
following: (1) the availability of persons with firsthand knowledge to testify at the
hearing; (2) whether the statements of the out -of-court declarants were signed or in
affidavit form, and whether anyone witnessed the signing; (3) the agency’s explanation
for failing to obtain signed or sworn statements; (4) whether declarants wer e
disinterested witnesses to the events, and whether the statements were routinely made;
(5) consistency of declarants’ accounts with other information in the case, internal
7
121 M.S.P.R. 221, ¶ 15 (2014); Borninkhof v. Department of Justice , 5 M.S.P.R.
77, 83-87 (1981). Generally, testimony under oath or penalty of perjury before
the trier of fact , which is subject to the rigors of cross examination, is m ore
probative than unsworn, out -of-court statements. See Social Security
Administration v. Whittlesey , 59 M.S.P.R. 684 , 692 (1993), aff’d , 39 F.3d 1197
(Fed. Cir. 1994) (Table) . Here, the administrative judge’s findings —that the
written statements , whic h were not sworn or made under penalty of perjury, were
inconsistent with each other and with the security guard’s testimony —are
well-reasoned and supported by the record; accordingly, we must afford the
administrative judge’s findings the deference they are due .8 ID at 16 -18.
Similarly, we have consid ered the inconsistencies in the acquaintance’s written
statement and testimony, and the wife ’s and a cquaintance’s alleged bias, but
given the administrative judge’s detailed findings regarding these issues and her
opportunity to observe the witness’s demeanor at the hearing, we defer to th ose
findings .
¶9 The agency also argues that the administrative judge substituted her own
judgment to find that certain aspects of the security guard’s testimony were not
plausible; however, her reasoned findings regarding the plausibility of his
testimony were necessarily intertwined wit h issues of credibility and entitled to
deference . PFR File, Tab 1 at 9 -10. The Board must defer to an administrative
consistency, and their consistency with each other; (6) whether corroboration for
statements can otherwise be found in the agency record; (7) the absence of
contradictory evidence; and (8) the credibility of declarant when he made the statement
attributed to him. Borninkhof v. Department of Justice , 5 M.S.P.R. 77 , 87 (1981).
Although the administrative judge did not specifically recount these factors in making
her findings regarding the statements of the security guards , she considered the
appropriate factors for assessing the probative value of hearsay evidence. ID at 7-19.
8 The agency’s investigation of the July 17, 2014 altercation included an interview with ,
and a sworn statement from , the appellant, but the agency did not interview or obtain
sworn statements from the security guards , who provided written statements to the local
sheriff’s office. IAF, Tab 4, Subtab 4f at 37 -41; HT at 22 (testimony of the agency
investigator) ; see also IAF, Tab 4, Subtab 4f at 21 -24.
8
judge’s credibility determinations not only when they explicitly rely on demeanor
but also when they do s o “by necessary implication.” Purifoy , 838 F.3d at 1373
(citing Jackson v. Veterans Administration , 768 F.2d 1325 , 1331 (Fed. Cir.
1985) ). When, as here, an administrative j udge has heard live testimony, her
credibility determinations must be deemed to be at least implicitly based upon the
demeanor of the witnesses. Haebe , 288 F.3d at1301 ; Little v. Department of
Transportation , 112 M.S.P.R. 224, ¶ 4 (2009). The administrative judge
acknowledged that the witnesses offered conflicting versions of the altercation
and made detailed, reasoned findings regarding the plausibility of the events
retold in the security guard’s testimony to determine which version of ev ents she
deemed more credible . ID at 13, 16 -18. Significantly, the administrative judge
observed that the security guard who testified was the only security guard to
recall that the appellant had his hands around his wife ’s neck before her fall and
that the appellant broke free from restraint to grab his wife ’s throat after the fall ,
and she concluded that the security guard’s recollection was not plausible given
other undisputed facts about the altercation . ID at 16 -18; see I-2 AF, Hearing
Transcript ( HT) at 81 -84 (testimony of the security guard) .
¶10 Accordingly, w e discern no reason to disturb the administrative judge’s
finding that the agency failed to prove the charge of off -duty misconduct , as the
record reflects that the administrative judge considered the evidence as a whole,
drew appropriate inferences from the evidence, and made reasoned conclusions on
the issue of credibility. ID at 19; see Clay v. Department of the Army ,
123 M.S.P.R. 245 , ¶¶ 6-8 (2016) (finding no reason to disturb the administrative
judge’s findings whe n she considered the evidence as a whole, d rew appropriate
inferences, and made reasoned conclusions on the issue of credibility); Broughton
v. Department of Health and Human Services , 33 M.S.P.R. 357 , 359 (1987)
(same). We similarly decline to disturb the administrative judge’s finding that
the agency failed to prove the charge of lack of candor, as that charge was
premised on the fact that the appellant grabbed his wife by t he throat in the
9
July 17, 2014 altercation, which the agency did not prove by preponderant
evidence. ID at 19-20. The initial decision is therefore affirmed.
ORDER
¶11 We ORDER the agency to cancel the appellant’s removal and to
retroactively restore the ap pellant effective March 4, 2015 . 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.
¶12 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.
¶13 We furt her 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 prog ress. See 5 C.F.R. § 1201.181 (b).
¶14 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 enf orcement
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 communicat ions with the agency. 5 C.F.R. § 1201.182 (a).
10
¶15 For agencies whose payroll is administered by either the National Finance
Center of the Department of Agriculture (NFC) or the Defense Finance and
Accounting Service (DFAS), two lists of the information and documentation
necessary to process payments and adjustments resulting from a Board decision
are attached. The agency is ORDERED to timely provide DFAS or NFC with all
documentation necessary to process payments and adjustments resulting from the
Board’s decision in accordance with the attached lists so that payment can be
made within the 60 -day pe riod 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
regul ations may be found at 5 C.F.R. §§ 1201.201 , 1201.202, and 1201.203. If
you believe you meet thes e 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 APPEA L 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 wi th which to file. 5 U.S.C. § 7703 (b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
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.
11
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failu re to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have que stions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must f ile a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must 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
12
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. ____ , 137 S. Ct. 1975 (2017). If you have a
representative in this case, and 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 through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
13
with the EEOC no later than 30 calendar days after your representativ e 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.10 The court of appeals must receive your
10 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.
14
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.
Contact information for the courts of appeals can be 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 Civili an Pay.***
☐ 6) All relevant benefit election forms (e.g. TSP, FEHB, etc.).
☐ 7) Outside earnings documentation. Include record of all amounts earned by the employee
in a job undertaken during the back pay period to replace federal employment.
Docume ntation includes W -2 or 1099 statements, payroll documents/records, etc. Also,
include record of any unemployment earning statements, workers’ compensation,
CSRS/FERS retirement annuity payments, refunds of CSRS/FERS employee premiums,
or severance pa y received by the employee upon separation.
Lump Sum Leave Payment Debts: When a separation is later reversed , there is no authority
under 5 U.S.C. § 5551 for the reinstated employee to keep the lump sum annual leave payment
they may have received. The payroll office must collect the debt from the back pay award. The
annual leave will be restored to the employee. Annual leave that exceeds the annual leav e
ceiling will be restored to a separate leave account pursuant to 5 CFR § 550.805(g).
NATIONAL FINANCE CEN TER CHECKLIST FOR BA CK PAY CASES
Below is the information/documentation required by National Finance Center to process
payments/adjustments agreed on in Back Pay Cases (settlements, restorations) or as ordered by the Merit
Systems Protection Board, EEOC, and courts .
1. Initiate and submit AD -343 (Payroll/Action Request) with clear and concise information describing
what to do in accordance with decisi on.
2. The following information must be included on AD -343 for Restoration:
a. Employee name and social security number.
b. Detailed explanation of request.
c. Valid agency accounting.
d. Authorized signature (Table 63).
e. If interest is to be included.
f. Check mailing address.
g. Indicate if case is prior to conversion. Computations must be attached.
h. Indicate the amount of Severance and Lump Sum Annual Leave Payment to be collected
(if applicable).
Attachments to AD -343
1. Provide pay entitlement to include Overtime, Night Differential, Shift Premium, Sunday Premium,
etc. with number of hours and dates for each entitlement (if applicable).
2. Copies of SF -50s (Personnel Actions) or list of salary adjustments/changes and amoun ts.
3. Outside earnings documentation statement from agency.
4. If employee received retirement annuity or unemployment, provide amount and address to
return monies.
5. Provide forms for FEGLI, FEHBA, or TSP deductions. (if applicable)
6. If employee was unable to work during any or part of the period involved, certification of the type of
leave to be charged and number of hours.
7. If employee retires at end of Restoration Period, provide hours of Lump Sum Annual Leave to
be paid.
NOTE: If prior to conversion, agency must attach Computation Worksheet by Pay Period and required
data in 1 -7 above.
The following information must be included on AD -343 for Settlement Cases: (Lump Sum Payment,
Correction to Promotion, Wage Grade Increase, FLSA, etc.)
a. Must provid e same data as in 2, a -g above.
b. Prior to conversion computation must be provided.
c. Lump Sum amount of Settlement, and if taxable or non -taxable.
If you have any questions or require clarification on the above, please contact NFC’s Payroll/Personnel
Operations at 504 -255-4630. | LAZAR_DANIEL_CH_0752_15_0371_I_2_FINAL_ORDER_REDACTED_2026143.pdf | 2023-03-09 | DANIEL LAZAR v. DEPARTMENT OF HOMELA ND SECURITY, MSPB Docket No. CH-0752, March 9, 2023 | CH-0752 | NP |
3,408 | https://www.mspb.gov/decisions/nonprecedential/MAGNONE_CHAD_R_CH_0752_17_0262_I_1_FINAL_ORDER_2009510.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
CHAD R. MAGNONE,
Appellant,
v.
UNITED STATES POSTAL SERVICE,
Agency.
DOCKET NUMBER
CH-0752 -17-0262 -I-1
DATE: March 8, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL1
Chad R. Magnone , London, Ohio, pro se.
Lori L. Markle , Esquire, Philadelphia, Pennsylvania, for the agency.
BEFORE
Cathy A. Harris , Vice Chairman
Raymond A. Limon , Member
FINAL ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
affirmed h is removal for abse nce without leave. Initial Appeal File, Tab 15,
Initial Decision. On petition for review, the appellant argues that he has new
evidence that (1) the agency should have deemed him on sick leave during his
absence and granted his request for the protections afforded under the Family and
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
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
Medical Leave Act of 1993, (2) another unidentified employee was granted leave
during the same period, and (3) the agency engaged in harmful error when it did
not provide him with training on i ts leave rules . Petition for Review File, Tab 1
at 2-9. However, he does not provide the cited evidence. The appellant also
argues that the administrative judge abused her discretion when she failed to
order the agency to produce discovery. Id. at 10 -13.
¶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 errone ous application of the law to the facts of the case; the administrative
judge’s rulings during either the course of the appeal or the initial decision
were not consistent with required procedures or involved an abuse of discretion,
and the resulting error affected the outcome of the case; or new and material
evidence or legal argument is available that, despite the petitioner’s due
diligence, was not available when the record closed. Title 5 of the Code of
Federal Regulations, section 1201.115 ( 5 C.F.R. § 1201.115 ). After fully
considering the filings in this appeal, we conclude that the petitioner has not
established any basis under section 1201.115 for granting the petition for review.
Therefore, we DENY the petition for review and AFFIRM the initial decision,
which is now the Board’s final decision. 5 C.F.R. § 1201.113 (b).
NOTICE OF APPEAL 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
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
Systems Protection Board does not provide legal advice on which option is most
appropriate for your sit uation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your cl aims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional 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
4
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases 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. ____ , 137 S. Ct. 1975 (2017). If you have a
representative in this case, and your representative receives this decision before
you do, then you must file with the district court no later than 30 calendar days
after your representative receives this deci sion. If the action involves a claim of
discrimination based on race, color, religion, sex, national origin, or a disabling
condition, you may be entitled to representation by a court -appointed lawyer and
to waiver of any requirement of prepayment of fees , costs, or other security. See
42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case,
5
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 2001 3
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.3 The court of appeals must receive your petition for
3 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit cou rt of appeals of competent jurisdiction.
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 th e Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide f or Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
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 | MAGNONE_CHAD_R_CH_0752_17_0262_I_1_FINAL_ORDER_2009510.pdf | 2023-03-08 | null | CH-0752 | NP |
3,409 | https://www.mspb.gov/decisions/nonprecedential/ROSEMOND_KERRICK_A_DA_0752_16_0308_I_1_FINAL_ORDER_2009687.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
KERRICK A. ROSEMOND ,
Appellant,
v.
UNITED STATES POSTAL SERVICE,
Agency.
DOCKET NUMBER
DA-0752 -16-0308 -I-1
DATE: March 8, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL1
Kenneth Brady , Houston, Texas, for the appellant.
Theresa M. Gegen , Dallas, Texas, for the agency.
BEFORE
Cathy A. Harris , Vice Chairman
Raymond A. Limon , Member
FINAL ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
affirmed his removal from the Federal service for unacceptable conduct. On
petition for review, the appellant argues that the charge was improperly sustained
and that the penalty was unreasonable. Generally, we grant petitions such as this
one only in t he following circumstances: the initial decision contains erroneous
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
require d to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c).
2
findings of material fact; the initial decision is based on an erroneous
interpretation of statute or regulation or the erroneous application of the law to
the facts of the case; the admi nistrative 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 evidenc e 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 i nitial
decision, which is now the Board’s final decision. 5 C.F.R. § 1201.113 (b).
NOTICE OF APPEAL RIGHTS2
You may obtain review of this final decision. 5 U.S.C. § 7703 (a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703 (b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described 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.
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.
3
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.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
4
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. ____ , 137 S. Ct. 1975 (2017) . If you have a
representative in this case, and your representative receives this decision before
you do, then you must file with the district court no later than 30 calendar days
after your representative receives this decision. If the action involves a claim of
discrimination based on race, color, religion, sex, national origin, or a disabling
condition, you may be entitled to representation by a court -appointed lawyer and
to waiver of any requirement of prepayment of fees, costs, or other security. See
42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702 (b)(1 ). If you have a representative in this case,
and your representative receives this decision before you do, then 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:
5
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
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.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 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.
6
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
containe d within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the 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 | ROSEMOND_KERRICK_A_DA_0752_16_0308_I_1_FINAL_ORDER_2009687.pdf | 2023-03-08 | null | DA-0752 | NP |
3,410 | https://www.mspb.gov/decisions/nonprecedential/ALLRED_ESTATE_OF_MARY_A_SF_1221_17_0621_W_1_FINAL_ORDER_2009718.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
ESTATE OF MARY A. AL LRED,
Appellant,
v.
DEPARTMENT OF VETERA NS
AFFAIRS,
Agency.
DOCKET NUMBER
SF-1221 -17-0621 -W-1
DATE: March 8, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL1
Timothy A. Bridge , Esquire, Wellston, Michigan, for the appellant.
Scott MacMillan , Phoenix, Arizona, 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 t o follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c).
2 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 petitioned for review of the Octobe r 2, 2017 initial
decision in this appeal. Estate of Mary A. Allred v. Department of Veterans
Affairs , MSPB Docket No. SF -1221 -17-0621 -W-1, Petition for Review (PFR)
File, Tab 1. For the reasons set forth below, we DISMISS the petition for review
as sett led.
¶2 After the filing of the petition for review, the parties submitted a document
entitled “SETTLEMENT AGREEMENT” signed and dated by the agency on
February 10, 2019, and by the appellant on February 11, 2019. PFR File, Tab 4.
The document provides, amo ng other things, that the appellant agreed to
withdraw her petition for review in the above -captioned appeal in exchange for
the promises made by the agency. Id. at 6.
¶3 Before dismissing a matter as settled, the Board must decide whether the
parties have e ntered into a settlement agreement, whether they understand its
terms, and whether they intend to have the agreement entered into the record for
enforcement by the Board. See Mahoney v. U.S. Postal Service , 37 M.S.P.R.
146, 149 (1988). In addition, before accepting a settlement agreement into the
record for enforcement purposes, the Board must determine whether the
agreement is lawful on its face and whether the parties freely entered into it . See
Massey v. Office of Personnel Management , 91 M.S.P.R. 289 , ¶ 4 (2002) ,
overruled on other grounds by Delorme v. Department of the Interior ,
124 M.S.P.R. 123 , ¶¶ 11 -21 (2017) (holding that the Board may enforce
settlement agreements that have been entered into the record, independent of any
prior finding of Board jurisdiction over the underlying matter being settled).
¶4 Here, we find that the parti es 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. We further find that the
agreement is lawful on its face and that the parties fre ely entered into it. Id.
Accordingly, we find that dismissal of the appellant’s petition for review “with
3
prejudice to refiling” (i.e., the parties normally may not refile this appeal) is
appropriate under these circumstances, and we accept the settlemen t 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 fili ng a petition for enforcement with the office that issued the initial
decision on this appeal. The petition should contain specific reasons why the
petitioning party believes that the terms of the settlement agreement have not
been fully carried out, and should include the dates and results of any
communications between the parties. 5 C.F.R. § 1201.182 (a).
NOTICE OF APPEAL RIG HTS3
You may obtain review of this final decision. 5 U.S.C. § 7703 (a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703 (b).
Although we offer the following summary of available appeal 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
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 appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicia l review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Ci rcuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Pe titioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals 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.
5
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. ____ , 137 S. Ct. 1975 (2017). If you have a
representative in this case, and your representative receives this decision before
you do, then you must 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 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:
6
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 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 e ither 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 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
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the 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 | ALLRED_ESTATE_OF_MARY_A_SF_1221_17_0621_W_1_FINAL_ORDER_2009718.pdf | 2023-03-08 | null | SF-1221 | NP |
3,411 | https://www.mspb.gov/decisions/nonprecedential/ALLRED_ESTATE_OF_MARY_A_SF_1221_18_0462_X_1_FINAL_ORDER_2009727.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
ESTATE OF MARY A. AL LRED,
Appellant,
v.
DEPARTMENT OF VETERA NS
AFFAIRS,
Agency.
DOCKET NUMBER
SF-1221 -18-0462 -X-1
DATE: March 8, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL1
Timothy A. Bridge , Wellston, Michigan, for the appellant.
La’Chelle M. Woodert , Esquire, Loma Linda, California, for the agency.
BEFORE
Cathy A. Harris , Vice Chairman
Raymond A. Limon , Member
Tristan L. Leavitt , Member2
FINAL ORDER
¶1 This compliance proceeding was initiated by the appellant’s April 30, 2019
petition for enforcement of the Board’s February 11, 2019 Order in Estate 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 o rders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the B oard
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 vo ting process prior to his March 1, 2023 departure.
2
Mary A. Allred v. Department of Veterans Affairs , MSPB Docket No. SF -1221 -
18-0462 -W-2, in which the admi nistrative judge accepted the parties’ settlement
agreement into the record for enforcement purposes. On June 17, 2019, the
administrative judge issued a compliance initial decision finding the agency not
in compliance with the settlement agreement. Esta te of Mary A. Allred v.
Department of Veterans Affairs , MSPB Docket No. SF -1221 -18-0462 -C-1,
Compliance File (CF), Tab 8, Compliance Initial Decision (CID). 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 April 18, 2018, the appellant filed an individual right of action appeal
alleging that the agency retaliated against her for opposing unlawful promotion
practices by agency managers.3 Estat e of Mary A. Allred v. Department of
Veterans Affairs , MSPB Docket No. SF -1221 -18-0462 -W-1, Initial Appeal File
(IAF), Tab 1 at 2. On November 1, 2018, the administrative judge dismissed the
appellant’s appeal without prejudice. IAF, Tab 34 , Initial Deci sion at 1-2. On
January 29, 2019, the appellant’s appeal was refiled under MSPB Docket
No. SF-1221 -18-0462 -W-2, effective January 2, 2019.4 Estate of Mary A. Allred
v. Department of Veterans Affairs , MSPB Docket No. SF -1221 -18-0462 -W-2,
Refiled Appeal Fi le (RAF), Tab 3 at 1. On February 11, 2019, the administrative
judge, pursuant to a settlement agreement between the parties, issued an initial
decision that dismissed the appeal as settled and accepted the settlement
3 The Estate of Mary A. Allred was substituted as the proper appellant in this litigation
on January 29, 2019, due to the December 13, 2018 death of the appellant. Estate of
Mary A. Allred v. Department o f Veterans Affairs , MSPB Docket No. SF -1221 -18-0462 -
W-2, Refiled Appeal File (RAF), Tab 3 at 1 -2.
4 The delay between the effective date and reopening date was due to the lapse in
appropriations for the Board between December 22, 2018, and January 25, 2019 . RAF,
Tab 3 at 1.
3
agreement into the record for enforce ment purposes.5 RAF, Tab 7, Initial
Decision (ID). The initial decision became the final decision of the Board on
March 18, 2019, after neither party petitioned for administrative review. ID at 3.
¶3 On April 30, 2019, the appellant filed a petition for enforcement of the
settlement agreement, alleging that the agency had not yet paid it the sum of
$50,000.00 as called for in the agreement. CF, Tab 1. On June 17, 2019, the
administrative judge issued a compliance initial decision finding the agency not
in compliance based on its failure to pay the appellant the $50,000.00 by the date
of the decision. CID at 6.
¶4 After neither party petitioned for review of this finding, the case was
referred to the Board for a final decision on the issues of compliance, p ursuant to
5 C.F.R. § 1201.183 (b)-(c). Estate of Mary A. Allred v. Department of Veterans
Affairs , MSPB Docket No. SF -1221 -18-0462 -X-1, Compliance Referral File
(CRF), Tab 1.
ANALYSIS
¶5 The Board has authority to enforce a settlement agreement that has been
entered into the record for enforcement purposes in the same manner as any final
Board decision or order. Vance v. Department of the Interior , 114 M.S.P.R.
679, ¶ 6 (2010). A settlement agreement is a contract, and the Board will
therefore adjudicate a petition to enforce a settlement agreement in accordance
with contract law. Allen v. Department of Veterans Affairs , 112 M.S.P.R. 659,
¶ 7 (2009), aff’d , 420 F. App’x 980 (Fed. Cir. 2011). When, as here, an appellant
alleges noncompliance with a settlement agreement, the agency must produce
relevant, material, and credible evidence of its compliance with the agreement.
Vance , 114 M.S.P.R. 679 , ¶ 6. The ultimate burden, however, remains with the
5 The appellant also agreed as part of the settlement agreement to withdraw her pending
petition for review in a separate appeal, Estate of Mary A. Allred v. Department of
Veterans Affairs , MSPB Docket No. SF -1221 -17-0621 -W-1. RAF, Tab 6. That request
was addressed in a separate nonprecedential order under that docket number.
4
appellant, as the party seeking enforcement, to prove breach by a preponderance
of the evidence. Id.
¶6 The agency’s outsta nding compliance issue was its obligation to pay the
appellant the sum of $50,000.00. On July 26, 2019, the appellant informed the
Board that the agency paid it the full amount owed on July 10, 2019, and as a
result requested that the Board dismiss its pe tition for enforcement. CRF, Tab 2
at 4.
¶7 Accordingly, in light of the appellant’s submission, the Board finds the
agency in compliance and dismisses the petition for enforcement. This is the
final decision of the Merit Systems Protection Board in this co mpliance
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 FEE S 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 out at Title 5 of
the United States Code (5 U.S.C.), sections 7701(g), 1221(g), or 1214(g). The
regulatio ns 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 O F 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
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 i ndicated in the notice, the
Board cannot advise which option is most appropriate in any matter.
5
review and the appropriate forum with which to file. 5 U.S.C. § 7703 (b).
Although we offer the following summary of available appeal 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 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.
6
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a 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. ____ , 137 S. Ct. 1975 (2017). If you have a
representative in this case, and your representative receives this decision before
you do, then you must file with the district court no later than 30 calendar days
after your representative receives this decision. If the action in volves a claim of
discrimination based on race, color, religion, sex, national origin, or a disabling
condition, you may be entitled to representation by a court -appointed lawyer and
to waiver of any requirement of prepayment of fees, costs, or other secur ity. See
42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the
7
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial deliver y or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protectio n
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
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 appeal s of competent jurisdiction.7 The court of appeals must receive your
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
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 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.
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 info rmation for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD:
Washington, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board | ALLRED_ESTATE_OF_MARY_A_SF_1221_18_0462_X_1_FINAL_ORDER_2009727.pdf | 2023-03-08 | null | SF-1221 | NP |
3,412 | https://www.mspb.gov/decisions/nonprecedential/MCGADDYE_THELMA_J_DA_1221_17_0311_W_1_FINAL_ORDER_2009745.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
THELMA J. MCGADDYE,
Appellant,
v.
DEPARTMENT OF THE AR MY,
Agency.
DOCKET NUMBER
DA-1221 -17-0311 -W-1
DATE: March 8, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL1
Shaun Yancey , Esquire, Atlanta, Georgia, for the appellant.
Blaine Markuson , Esquire, Fort McCoy, Wisconsin, for the agency.
BEFORE
Cathy A. Harris , Vice Chairman
Raymond A. Limon , Member
FINAL ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
dismissed her individual right of action (IRA) appeal for lack of jurisdiction . On
petition for review, the appellant challenges the administrative judge’s
jurisdictional determination. Generall y, we grant petitions such as this one only
in the followin g circumstances: the initial decision contains erroneous findings
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
require d to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c).
2
of material fact; the initial decision is based on an erroneous interpretation of
statute or regulation or the erroneous application of the law to the facts of the
case; the administrative judge’s rulings during either the course of the appeal or
the initial decision were not consistent with required procedures or involved an
abuse of discretion, and the resulting error affected the outcome of the case; or
new and material evidence or legal argument is available that, despite the
petitioner’s due diligence, was not available when the record closed. Title 5 of
the Code of Federal Regulations, section 1201.115 ( 5 C.F.R. § 1201.115 ). After
fully considering the filings in this appeal, we conclude that the petitioner has not
established any basis under section 1201.115 for granting the petition for review.
Therefore, we DENY the petition for review and AFFIRM the initial decision,
which is now the Board’s final decision.2 5 C.F.R. § 1201.113 (b).
2 Regarding the administrative judge’s finding that the appellant failed to exhaust with
the Office of Special Counsel (OSC) her claim that the agency removed her in reprisal
for her claim of sexual harassment, we discern no error in the administrative judge’s
finding. In an IRA appeal, the Board may consider only matters that the appellant first
raised before OSC. Mason v. Department of Homeland Security , 116 M.S.P.R. 135 , ¶ 8
(2011). The purpose of the requirement that an appellant exhaust her remedies with
OSC prior to filing an IRA appeal with the Board is to give OSC “the o pportunity to
take corrective action before involving the Board in the case.” Ward v. Merit Systems
Protection Board , 981 F.2d 521 , 526 (Fed. Ci r. 1992). The Whistleblower Protection
Enhancement Act provides that, if OSC finds that there is a substantial likelihood that
the information it received discloses a violation of the Act, it “shall transmit the
information to the head of the agency invol ved for investigation and report.” Id.
(making this finding based on the same language in the prior Whistleblower Protection
Act); see 5 U.S.C. § 1213 (b), (c). These inquiries by OSC and their tr ansmittals to
agencies for remedial action are a major component of OSC’s work. Ward , 981 F.2d
at 526. To serve exhaustion’s intended purpose, the appellant must articulate to OSC
the basis of h er request for corrective action “with reasonable clarity and precision,”
giving OSC a sufficient basis to pursue an investigation that might lead to corrective
action. Ellison v. Merit Systems Protection Board , 7 F.3d 1031 , 1037 (Fed. Cir. 1993);
Ward , 981 F.2d at 526. An appellant may demonstrate exhaustion through h er initial
OSC complaint, evidence that she amended h er original complaint, includ ing but not
limited to OSC’s preliminary determination letter and other letters from OSC
referencing the amended allegations. Mason , 116 M.S.P.R. 135 , ¶ 8. To establish
Board jurisdiction, the appellant must prove exhaustion with OSC by preponderant
evidence, not just present nonfrivolous allegations of exhaustion. 5 C.F.R.
§ 1201.57 (c)(1). Further, we discern no error in the administrative judge’s finding that
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 determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703 (b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you 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 ha ve questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
the Board lacks jurisdiction over the appellant’s claim that the agency retaliated against
her for having filed an equal employment opportunity (EEO) complai nt in which she
raised allegations of sexual harassment and retaliation for prior EEO activity. The
Board lacks jurisdiction over such claims in the context of an IRA appeal because there
is no indication that the substance of the complaint concerned reme dying a violation of
whistleblower retaliation under 5 U.S.C. § 2302 (b)(8) , and thus it does not constitute a
nonfrivolous allegation of protected activity under 5 U.S.C. § 2302 (b)(9)(A)(i).
Young v. Merit Systems Protection Board , 961 F.3d 1323 , 1329 (Fed. Cir. 2020).
3 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.
4
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov /probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the 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. ____ , 137 S. Ct. 1975 (2017). If you have a
representative in this case, and your representative receives this decision before
5
you do, then you must file with the district court no later than 30 calendar days
after your representative receives this decision. If the action involves a claim of
discrimination based on race, color, religion, sex, national origin, or a disabling
condition, you may be entitled to representation by a court -appointed lawyer and
to waiver of any requirement of prepayment of fees, costs, or other security. See
42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscou rts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative 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 requi ring a signature, 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 2 012. This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (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 t he U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “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 orig inal statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, perman ently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195,
132 Stat. 1510.
7
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
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 | MCGADDYE_THELMA_J_DA_1221_17_0311_W_1_FINAL_ORDER_2009745.pdf | 2023-03-08 | null | DA-1221 | NP |
3,413 | https://www.mspb.gov/decisions/nonprecedential/CAMPBELL_STACHIE_CH_0752_16_0336_I_1_FINAL_ORDER_2009807.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
STACHIE CAMPBELL,
Appellant,
v.
UNITED STATES POSTAL SERVICE,
Agency.
DOCKET NUMBER
CH-0752 -16-0336 -I-1
DATE: March 8, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL1
Donald Gallick , Esquire, Akron, Ohio, for the appellant.
Suzanne B. McCabe , Esquire, Philadelphia, Pennsylvania, 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
sustained the agency’s removal action. Generally, we grant petitions such as this
one only in the following circumstances: the initial decision contains erroneous
1 A nonprecedential order is one that the Board has determined does not add
significantly to the 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
findings of material fact; the initial decision is based on an erroneous
interpretation of statute or regulation or the erroneous application of the law to
the facts of the case; the administrative judge’s rulings during either the course of
the appeal or the initial decision were not consistent with required procedures or
involved an abuse of discretion, and the resulting error affected the outcome of
the case; or new and material evidence or legal argument is available that, despite
the petitioner’s due d iligence, was not available when the record closed. Title 5
of the Code of Federal Regulati ons, section 1201.115 ( 5 C.F.R. § 1201.115 ).
After fully considering the filings in this appe al, we conclude that the petitioner
has not established any basis under section 1201.115 for granting the petition for
review. Therefore, we DENY the petition for review a nd AFFIRM the initial
decision, except as expressly MODIFIED by this Final Order to clarify the
administrative judge’s analysis of the appellant’s disparate penalty claim.
BACKGROUND
¶2 The agency r emoved the appellant from a Postmaster position for improper
conduct. I nitial Appeal File (IAF), Tab 1 at 13 -18, Tab 9 at 31 . The agency
allege d that the appellant engaged in improper conduct when she used multiple
agency credit cards to purchase fuel for her personal vehicle on at least eight
occasions. IAF, Tab 1 at 6 -11. The appellant f iled a Board appeal alleging that
the agency committed h armful procedural error and did not consider all of the
evidence in its decision . Id. at 2. During the proceedings below, the appellant
specifically alleged that the agency erred by providing incorrect information
regarding how to contest the notice of proposed removal and substituting an
official other than her immediate supervisor as the proposing official, and she
further alleged that the penalty imposed exceeded the bounds of reasonableness .
IAF, Tab 5 at 3, Tab 24 at 5 -7.
¶3 Following a hearing , the administrative judge issued an initial decision
sustaining the agency’s removal actio n and finding that the appellant had not
3
proven her affirmative defenses. IAF, Tab 32, Initial Decision (ID) . In the initial
decision, the administrative judge incorporated her earlier ruling that the
appellant was estopped from disputing the charge due to a n Ohio municipal
court’s findings and judgment of the appellant’s gui lt regarding the same conduct
that formed the basis of the charged misconduct , and found the agency proved the
charge of improper conduct and a nexus between the sustained misconduct and
the efficiency of the service . ID at 3. The administrative judge found that the
appellant had not proven that the agency violated her due process rights or
committed harmful procedural error when it cited to the wrong response rights in
the notice of proposed removal or that the deciding official’s predisposition to
remove her prevented her from rendering an unbiased decision. ID at 4-7. The
administrative jud ge further found that the appellant did not prove that the agency
committed harmful procedural error when it appointed an official other than her
immediate supervisor as the proposing official. ID at 8-9. Finally, the
administrative judge found that the deciding official considered the appropriate
Douglas factors ,3 that the appellant did not show that the agency treated any
similarly -situated employees differently, and thus, that the penalty of removal
was reasonable. ID at 10-13.
¶4 The appellant has filed a petition for re view in which she reiterates or raises
new arguments regarding due process , harmful procedural error, and the
reasonableness of the penalty . Petition for Review (PFR) File, Tab 1 at 6. The
agency has filed a response opposing the petiti on. PFR File, Tab 5 . As set forth
below, we find each of the appellant’s arguments to be without merit.4
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 determination in
adverse actions.
4 Nearly 3 years after the appellant filed her petition for review, she filed a request to
withdraw the petition. PFR File, Tab 6, Tab 7 at 1 n.1. Pursuant to the May 11, 2018
Delegation of Authority for the Clerk of the Board to dismiss petitions for rev iew when
a party has indicated an intent to withdraw the petition, the Clerk of the Board issued
4
DISCUSSION OF ARGUME NTS ON REVIEW
The appellant is precluded from arguing that her lack of counsel during municipal
court proceedings and the result ing conviction warrant reversing the initial
decision.
¶5 On review, the appellant argues that the administrative judge improperly
considered her guilty plea in municipal court , which was entered without counsel
present, thus violating her constitutional rights to counsel and due process. PFR
File, Tab 1 at 6. To the extent the appellant contends that her guilty plea in
municipal court does not estop her from challenging the a gency’s charged
misconduct because her plea was obtained without counsel, she is precluded from
raising the issue on review. Following a June 2016 telephonic sta tus conference
in which both parties participated , the administrative judge ruled that the
appellant’s guilty plea and resulting conviction for petty theft involved the same
issues as the agency’s charge d misconduct , and under the doctrine of collateral
estoppel, the appellant was precluded from challenging the charge . IAF, Tab 11
at 2. The administrative judge’s orde r notified the parties that the ruling was
final absent receipt of notice from a party challenging the ruling within 7 days of
the order . Id. at 3.
¶6 The appellant filed a request for additional time to file an objectio n to the
order, which the administrative judge granted, but the appellant , who was
represented by counsel throughout the Board’s proceedings belo w, did not file an
objection. IAF, Tab 14 at 3, Tab 15. In her prehearing submission, the appellant
noted the administrative judge’s ruling but did not object to it. IAF, Tab 24 at 4.
During the hearing , the appellant testified regarding her lack of counsel at the
municipal court hearing but did not object to the administrative judge’s collateral
estoppel rulin g on this ground . IAF, Tab 34 , Hearing Transcript (HT) at 93-94
(testimony of the appellant) . The appellant’s failure to timely object to the
orders directing the appellant to perfect her request for withdrawal. PFR File, Tabs 7 -8.
The appellant did not respond. Accordingly, we have proceeded to a decision on the
merits of her petition.
5
administrative judge’s ruling regarding her guilty plea and conviction preclude s
her from raising the issue as a basis for review . See Gallegos v. Department of
the Air Force , 121 M.S.P.R. 349 , ¶ 16 (2014) (holding that the appellant’s failure
to timely object to the administrative judge’s rulings regarding her affirmative
defenses precluded her from raising the issue on review) . The appellant has not
otherwise contested the administrative judge’s ruling t hat her guilty plea and
resulting conviction for petty theft estopped her from challenging the agency’s
charge , and we discern no reason to disturb it .5
The appellant has not established that the agency committed harmful procedural
error.
¶7 On review, the appellant maintains that harmful procedural error occurred
when the agency designated an official other than her immediate supervisor to
propose her removal. PFR File, Tab 1 at 6. The administrative judge considered
5 In ruling that the appellant was estopped from challenging the agency’s charge, the
administrative judge mistakenly relied on the Board’s standard for applying collateral
estoppel to an issue previously l itigated i n a Federal court or proceeding. IAF, Tab 11
at 1-2. When, as here, an appellant is found guilty of a crime under state law, the Board
will apply that state’s collateral estoppel standards to determine the preclusive effect of
the conviction. Graybill v. U.S. Postal Service , 782 F.2d 1567 , 1571 -73 (Fed. Cir.
1986) (applying Maryland law on collateral estoppel in determining the preclusive
effect of the appellant’s conviction in Maryland state court); Mosby v. Department of
Housing and Urban Development , 114 M.S.P.R. 674 , ¶¶ 5-6 (2010) (applying District
of Columbia collateral estoppel standards). The issue of whether a guilty plea in a
criminal prosecution of this nature has preclusive effect in a subsequent civil action is
not settled law in Ohio . See, e.g. , State v. C.A. , 2015 -Ohio -3437 , 2015 WL 5011700,
at ¶¶ 16-21 (Ohio Ct. App. 2015) (declining to give preclusi ve effect to a guilty plea in
a subsequent proceeding to seal records); Wilcox v. Gregory , 112 Ohio App. 516 , 516,
520-21, 176 N.E.2d 523, 524, 527 (Ohio Ct. App. 1960) (stati ng that a guilty plea and
resulting conviction of a violation of a penal traffic ordinance is not admissible in a
civil action against the accused growing out of the same offense); but see Wloszek v.
West on, Hurd , Fallon , Paisley & Howley , LLP, 2004 -Ohio -146, 2004 WL 64947,
at ¶¶ 37-41 (Ohio Ct. App. 2004) (finding that the transcript of the appellant’s
arraignment and plea proceeding, and her guilty plea, were sufficient to estop the
appellant from denying liability in a malpractice action against her form er attorney).
We need not address this issue, however, as the appellant failed to preserve an objection
to the administrative judge’s ruling on this issue, and she has not challenged it on
review. See Gallegos , 121 M.S.P.R. 349 , ¶ 16.
6
the appellant’s claim below and found that, although the substitution constituted a
procedural error, it did not constitute harmful error. ID at 8-9. An agency’s
adverse action may not be sustained if an employee shows harmful error in the
application of the agency’s procedures in arri ving a t the decision. 5 U.S.C.
§ 7701 (c)(2)(A). Harmful error cannot be presumed; an ag ency error is harmful
only when 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 or
cure of the error. Goeke v. Department of Justice , 122 M.S.P.R. 69 , ¶ 7 (2015).
The appellant bears the burden of proving by preponderant evidence that the
agency committed harmful error in r eaching its decision. 5 C.F.R.
§ 1201.56 (b)(2)(i)(C), (c)(1).
¶8 We agree with the administrative judge that the appellant did not establish
her harmful error claim . Although the appellant showed that the agency did not
follow its internal procedures for substitu ting a proposing official for her
immediate supervisor , as set forth in the Employee and Labor Relations Manual
(ELM) § 651.73 , she did not show that the error was likely to have caused a
different result.6 IAF, Ta b 24 at 20 ; ID at 8. The decision to substitute an
official other than the appellant’s immediate supervisor occurred before the
appellant’s immediate supervisor was asked to be the proposing official or to
consider appropriate discipline for the appellant . IAF, Tab 24 at 9 ; HT at 9 -10
(testimony of the immediate supervisor); ID at 8 -9. A change in the proposing
official does not constitute harmful error unless the change occurs after the
original proposing official has reached a decision as to the approp riate penalty to
6 The administrative judge concluded that the agency erred when it appointed an official
other than the appellant’s immediate supervisor as the proposing official; however, the
agency’s ELM does not prevent substituting an official other than an employee’s
immediate supervisor. IAF, Tab 24 at 20 , ID at 8. Rather , the ELM requires the
substitution to be mad e by one of three labor relations or human resources officials .
Contrary to agency procedure, the deciding official made the substitution in this case at
the recommendatio n of a human resources official who was not one of the three
officials designated in the ELM . IAF, Tab 24 at 9, 20 .
7
propose. Bross v. Department of Commerce , 389 F.3d 1212 , 1218 (Fed. Cir.
2004); Goeke , 122 M.S.P.R. 69 , ¶ 16. There is no evidence that the appellant’s
immediate supervisor had decided upon an appropriate penalty when the change
was made, and she testified that she would have propose d the appellant’s removal
had she been the proposing official. IAF, Tab 24 at 9 ; HT at 10-11 (testimony of
the immediate supervisor); ID at 8-9. Accordingly, we find that the
administrative judge properly concluded that t he appellant did not establish her
affirmative defense of harmful procedural error.
¶9 The appellant’s petition also allege s that the agency either committed a due
process violation or harmful procedural error by appointing a biased proposing
official . PFR File, Tab 1 at 6. She further al leges that the administrative judge
failed to consider as evidence of the proposing official’s bias that the agency’s
Office of Inspector General (OIG) caused negative publicity . Id. The appellant
did not raise below an allegation of bias concerning the proposing official and has
not shown that either argument is based on new and material evidence;
accordingly, we will not cons ider them . See Banks v. Department of the Air
Force , 4 M.S.P.R. 268, 271 (1980) (holding that the Board generally will not
consider an argument raised for the first time in a petition for review absent a
showing that it is based on new and material evidence not previously avail able
despite the party’s due diligence) .
The initial decision is modified to analyze the appellant’s disparate penalty claim
consistent with Singh v. U.S. Postal Service ; however, the appellant has not
shown that the administrative judge erred in sustain ing the penalty of removal.
¶10 On review, the appellant argues that the administrative judge erred in
sustaining the deciding official’s penalty analysis. PFR File, Tab 1 at 6. When ,
as here, the agency’s charge has 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 tolerable limits of
reasonableness. Archerda v. Department of Defense , 121 M.S.P.R. 314 , ¶ 25
8
(2014 ). The Board will modify a penalty only when it finds that the agency failed
to weigh the relevant factors or that the penalty the agency imposed c learly
exceeded the bounds of reasonableness. Id.
¶11 The appellant appears to mainta in her argument from below that it was
unfair for the deciding official to consider an online news article as evidence of
the notoriety of the appellant’s misconduct because the agency’s O IG sent
information regarding the appellant’s conviction to the publication that posted the
article . IAF, Tab 24 at 6; PFR File, Tab 1 at 6. We find that the appellant has
shown neither a due process viol ation nor harmful procedural error in the
deciding official’s consideration of the negative publicity generated from the
online article. The record reflects that the agency’s OIG sent a press release to
several publications regarding the appellant’s conviction , and shortly thereafter,
one o f the publications posted an online article regarding the appellant’s
conviction . IAF, Tab 6 at 52, Tab 24 at 36 . The deciding official considered the
online article and the fact that the appellant’s conviction was publicized online —
which gen erated comments from the public —as evidence of the notoriety of the
appellant’s misconduct , even though she did not know at the time of her decision
that it was the OIG that prov ided the press release to the publication posting the
online article . IAF, Tab 1 at 16; HT at 61-62 (testimony of the deciding official) .
¶12 The essential requirements of constitutional due process for a tenured public
employee are notice of the charges against her, with an explanation of the
evidence, and an opportunity for the employee to present her account of events.
Cleveland Board of Education v. Loudermill , 470 U.S. 532 , 546 (1985).
Introducing new and material information by means of ex parte commun ications
to the deciding official can undermine an employee’s due process guarantee of
notice and the opportunity to respond. Stone v. Federal Deposit Insurance
Corporation , 179 F.3d 1368 , 1376 (Fed. Cir. 1999). Here, when the deciding
official made her decision, she had not received any information in addition to
that provided to the appellant , and the appellant received notice of the online
9
article and an opportunity to res pond to it; accordingly, the OIG’s having
provided the press release to the publication posting the online article did not
violate the appellant’s due process right s. IAF, Tab 1 at 9 ; HT at 61 -62
(testimony of the deciding official) .
¶13 The appellant has not alleged that the OIG’s having provided the press
release to the publication posting the online article constituted a failure on the
agency’s part to follow its procedures; accordingly, she has not shown a
procedural error under 5 U.S.C. § 7701 (c)(2)(A). Moreover, the deciding official
testified that even if the online article had not existed, she nevertheless would
have removed the appellant; accordingly, the appellant cannot demonstrate that ,
even assuming any error on the agency’s part , it would have resulted in a
different outcome. HT at 62 (testimony of the deciding official) ; see Goeke ,
122 M.S.P.R. 69 , ¶ 7. Finally , the online article contains information about the
appellant’s conviction not contained in the OIG’s press release, but presumably
available as a matter of public record. Compare IAF, Tab 6 at 52 , with IAF,
Tab 24 at 36. A ccordingly, we cannot conclude that the agency alone caused the
publication to generate the article and the resulting negative publicity that the
deciding official considered in her decision , or that considering the article was
otherwise improper .
¶14 The appellant also alleges that the administrative judge failed to conduct a
full disparate penalty analysis ; specifically, she maintains that a particular
employee should have been considered as a comparator . PFR File, Tab 1 at 6.
After the issuance of the initial decision, we overruled a portion of our precedent
and clarified the law governing disparate penalty claims in Singh v. U.S. Postal
Service , 2022 MSPB 15 , ¶¶ 10-18. Accordingly, we modify the initial decision to
analyze the appellant’s disparate penalty claim consistent with Singh .
¶15 Among the factors an agency should consider in setting the penalty for
misconduct is the “consistency of the penalty with those imposed upon other
employees for the same or similar offenses.” Id., ¶ 10 (quoting Douglas v.
10
Veterans Administration , 5 M.S.P.R. 280 , 305 (1981) ). In assessing the agency’s
penalty determination, the relevant inquiry is whether the agency knowingly and
unjustifiably treated employees who engaged in the same or similar offenses
differently. Id., ¶¶ 14-17; see Facer v. Department of the Air Force , 836 F.2d
535, 539 (Fed. Cir. 1988) (providing that a person does not have a legally
protected interest in the evenness of a misconduct penalty assessed on him
compared to that assessed on others unless employees are knowingly treated
differently “in a way not justified by the facts, and intentionally for reasons other
than the efficiency of the service.”). The universe of potential comparators will
vary from case to case, but it should be limited to those employees whose
misconduct or other circumstances closely resemble those of the appellant.
Singh , 2022 MSPB 15 , ¶ 13.
¶16 Although the administrative judge did not have the benefit of Singh when
she issued the in itial decision, she properly found that the particular employee in
question was not similarly situated to the appellant. The comparator was a
noncareer, non supervisory employee, whereas the appellant was a supervisor and
could be held to a higher standard of conduct than a non supervisor. IAF, Tab 25
at 4-5; HT at 57-59 (testimony of the deciding official) ; see Edwards v. U.S.
Postal Service , 116 M.S.P.R. 173 , ¶ 14 (2010) (noting that agencies are entitled
to hold supervisor s to a higher standard than non supervisors because they occupy
positions of trust and responsibility). Although the nature of the misconduct was
similar, as both the comparator and the appellant were charged with improper
misconduct for use of an agency credit card to purchase personal items, the other
employee’s misconduct involved using an agency card on only one date, whereas
the appellant’s misconduct included using an agency card on at least eight dates ,
resulting in a theft conviction . Compare IAF, Tab 1 at 6 -9, with IAF, Tab 25
at 4-5. The decidi ng official also considered the consistency of the appellant’s
penalty with other penalties but was unaware of the other employee’s discipline
when she issued her decision. HT at 52-58 (testimony of the deciding official) .
11
Given these factors, we conclude that there is not enough similarity between the
appellant and the other employee to establish that they are similarly situated.
¶17 We find the appellant’s other arguments regarding the reasonableness of the
penalty unpersuasi ve. PFR File, Tab 1 at 6. The record reflects that the deciding
official considered the appellant’s years of service, lack of pri or disciplinary
history, and work record but did not find that they outweighed the seriousness of
the offense. IAF, Tab 1 at 15-16; HT at 62 -63 (testimony of the deciding
official) . The deciding official considered all relevant factors in her decision;
accordingly, we find that the agency exercised management discretion within
tolerable limits of reasonableness in removing the appellant , and we affirm the
administrative judge’s initial decision.
NOTICE OF APPEAL RIG HTS7
The initial decision, as supplemented by this Final Order, constitutes the
Board’s final decision in this matter. 5 C.F.R. § 1201.113 . You may obtain
review of this final decision. 5 U.S.C. § 7703 (a)(1). By statute, the nature of
your claims determines the time limit for seeking s uch review and 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.
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 app ropriate in any matter.
12
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 Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
13
were affected by 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. ____ , 137 S. Ct. 1975 (2017). If you have a
representative in this case, and your representative receives this decision before
you do, then you must file with the district court no later than 30 calendar days
after your representative receives this decision. If the action involves a claim of
discrimination based on race, color, religion, sex, 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 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:
14
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
competent jurisdiction.8 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(B).
8 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of compet ent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195,
132 Stat. 1510.
15
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx
FOR THE BOARD:
Washington, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board | CAMPBELL_STACHIE_CH_0752_16_0336_I_1_FINAL_ORDER_2009807.pdf | 2023-03-08 | null | CH-0752 | NP |
3,414 | https://www.mspb.gov/decisions/nonprecedential/WINGATE_RICKY_NELSON_DC_0731_17_0312_I_1_FINAL_ORDER_2009099.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
RICKY NELSON WINGATE ,
Appellant,
v.
OFFICE OF PERSONNEL
MANAGEMENT,
Agency.
DOCKET NUMBER
DC-0731 -17-0312 -I-1
DATE: March 7, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL1
Ricky Nelson Wingate , Chesapeake, Virginia, pro se.
Darlene M. Carr , Washington, D.C., for the agency.
BEFORE
Cathy A. Harris , Vice Chairman
Raymond A. Limon , Member
FINAL ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
affirmed the suitability action of the Office of Personnel Management (OPM) .
Under 5 C.F.R. § 731.501 (a), a suitability action taken by OPM may be appealed
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case 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
to the Board. Rodriguez v. Department of Homeland Security , 112 M.S.P.R. 446 ,
¶ 9 (2009); 5 C.F.R. § 731.203 (a).
¶2 On petition for review, the appellant disputes the alleged facts underlying
OPM’s charges. He argues that he did not engage in misconduct during his most
recent private sector employment by misusing his company credit card. He also
argues that he did not make false statements on Federal employment forms by
indicating that he was laid off from that most recent position due to a contract
restructuring, rather than being fired for misconduct. Generally, we grant
petitions such as this one on ly 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; t he 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
AFFIR M the initial decision, which is now the Boar d’s final decision. 5 C.F.R.
§ 1201.113 (b).
NOTICE OF APPEAL RIG HTS2
You may obtain review of this final decision. 5 U.S.C. § 7703 (a)(1). By
statute, the nature of your claims determines the time limit for seeking such
2 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is mos t appropriate in any matter.
3
review and the appropriate forum with which to file. 5 U.S.C. § 7703 (b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to 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 within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional 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.
4
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by 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. ____ , 137 S. Ct. 1975 (2017). If you have a
representative in this case, and your representative receives this decision before
you do, then you must file with the district court no later than 30 calendar days
after your representative receives this deci sion. If the action involves a claim of
discrimination based on race, color, religion, sex, national origin, or a disabling
condition, you may be entitled to representation by a court -appointed lawyer and
to waiver of any requirement of prepayment of fees , costs, or other security. See
42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the
5
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEO C via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
other protect ed activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited p ersonnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or a ny court of appeals of
competent jurisdiction.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 b y 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 Federal Circuit or any other circuit court of appeals of c ompetent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195,
132 Stat. 1510.
7
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/ CourtWebsites.aspx .
FOR THE BOARD:
Washington, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board | WINGATE_RICKY_NELSON_DC_0731_17_0312_I_1_FINAL_ORDER_2009099.pdf | 2023-03-07 | null | DC-0731 | NP |
3,415 | https://www.mspb.gov/decisions/nonprecedential/OWENSBY_DEON_D_PH_0752_15_0345_I_1_FINAL_ORDER_2009223.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
DEON D. OWENSBY,
Appellant,
v.
DEPARTMENT OF THE TR EASURY,
Agency.
DOCKET NUMBER
PH-0752 -15-0345 -I-1
DATE: March 7, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL1
Deon D. Owensby , Trenton, New Jersey, pro se.
Laurence T. Emert , 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 petitio n for revie w of the initial decision, which
sustained his removal based on two misconduct charges and found that he did not
prove any of his affirmative defenses . Generally, we grant petitions such as this
one only in the following circumstances: the initial decision contains erroneous
findings of material fact; the initial decision is based on an erroneous
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
require d to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c).
2
interpretation of statute or regulation or the erroneous application of the law to
the facts of the case; the administrative judge’s rulings during either the course of
the appeal or the initial decision were not consistent with required procedures or
involved an abuse of discretion, and the resulting error 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.2 Title 5
of the Code of Federal Regulations, section 1201.115 ( 5 C.F.R. § 1201.115 ).
After fully considering the filings in this appeal, we conclude that the petitioner
has not established any basis under section 1201.115 for granting the petition for
review.3 Therefore, we DENY the petition for review and AFFIRM the initial
decision, which is now the Board’s final decision. 5 C.F.R. § 1201.113 (b).
NOTICE O F 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
2 On review, the appellant attached a December 2014 letter to the Treasury Inspector
General for Tax Administration investigator. Petition for Review ( PFR ) File, Tab 1
at 34-56. In his reply, he attached an April 22, 2010 System of Records Notice Guide,
which implements Privacy and Information Security Policies of the Office of Personnel
Management. PFR File, Tab 5 at 19 -64. The appellant has not persuaded us that this
evidence is new or material, and we do not consider it on review. See, e.g. , Russo v.
Veterans Administration , 3 M.S.P.R. 345 , 349 (1980) (stating th at the Board will not
grant a petition for review based on new evidence absent a showing that it is of
sufficient weight to warrant an outcome different from that of the initial decision).
3 Regarding the appellant’s affirmative defense of disability discr imination, we discern
no error with the administrative judge’s motivating factor analysis or conclusion
regarding this claim. We therefore do not reach the question of whether his disability
was a “but -for” cause of the removal action. See Pridgen v. Off ice of Management and
Budget , 2022 MSPB 31 , ¶¶ 20 -22, 29 -33.
4 Since the issuance of the initial decision in this matter, the B oard may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.
3
Systems Protection Board does not provide legal advice on which option i s most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately revie w the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three mai n possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial r eview in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 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 to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
4
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems 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. ____ , 137 S. Ct. 1975 (2017). If you have a
representative in this case, and your representative receives this decision before
you do, then you must file with th e district court no later than 30 calendar days
after your representative receives this decision. If the action involves a claim of
discrimination based on race, color, religion, sex, national origin, or a disabling
condition, you may be entitled to repre sentation by a court -appointed lawyer and
to waiver of any requirement of prepayment of fees, costs, or other security. See
42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the 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,
5
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 E EOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if yo u have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (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 p etition for
5 The original statutory provision that provided for judicial review of cert ain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
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 Ci rcuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit i s available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested i n securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
for the Federal Circuit or any other circuit court 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 webs ites, 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 | OWENSBY_DEON_D_PH_0752_15_0345_I_1_FINAL_ORDER_2009223.pdf | 2023-03-07 | null | PH-0752 | NP |
3,416 | https://www.mspb.gov/decisions/nonprecedential/SHIK_VITALY_NY_0752_17_0077_I_1_FINAL_ORDER_2009231.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
VITALY SHIK,
Appellant,
v.
GENERAL SERVICES
ADMINISTRATION,
Agency.
DOCKET NUMBER
NY-0752 -17-0077 -I-1
DATE: March 7, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL1
Lawrence Tomscha , New York, New York, for the appellant.
Nicole Ludwig , Esquire, New York, New York, for the agency.
BEFORE
Cathy A. Harris , Vice Chairman
Raymond A. Limon , Member
FINAL ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
dismissed his constructive demotion appeal for lack of jurisdiction. On petition
for review, the appe llant argues that, for a period of several years, he had been
performing the duties of a GS -14 position while officially in a GS -13 position , 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
evidence d by the agency’s 2017 restructuring to have two separate GS -13
positions to supervise two branches of his division . Generally, we grant petitions
such as this one only in the following circumstances: the initial decision contains
erroneous findings of m aterial 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 d ecision 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 decis ion. 5 C.F.R. § 1201.113 (b).2
NOTICE OF APPEAL RIG HTS3
You may obtain review of this final decision. 5 U.S.C. § 7703 (a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703 (b).
Although we offer the following summary of available appeal righ ts, the Merit
Systems Protection Board does not provide legal advice on which option is most
2 In his initial appeal, the appellant included some communications he had with the
Office of Special Counsel. Initial Appeal File (IAF), Tab 1 at 28 -34. The
administrative judge ordered the appell ant to clarify whether he intended to file a claim
of whistleblower reprisal. IAF, Tab 3. The appellant clarified that he was not bringing
a whistleblower claim and that his sole claim was of a constructive demotion. IAF,
Tab 6 at 5.
3 Since the issuanc e of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.
3
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
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 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
within 60 calendar days of the date 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
4
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. ____ , 137 S. Ct. 1975 (2017). If you have a
representative in this case, and your representative receives this decision before
you do, then you must file with the district court no later than 30 calendar days
after your representative receives this decision. If the action involves a claim of
discrimination based on race, color, religion, sex, national origin, or a disabling
condition, you may be entitled to representation by a court -appointed lawyer and
to waiver of any requirement of prepayment of fees, costs, or other security. See
42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
5
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a req uest for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judic ial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of al legations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals f or 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 prov ision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appell ants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retr oactive 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 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.
Contact information for the courts of appeals 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 | SHIK_VITALY_NY_0752_17_0077_I_1_FINAL_ORDER_2009231.pdf | 2023-03-07 | null | NY-0752 | NP |
3,417 | https://www.mspb.gov/decisions/nonprecedential/JARRELL_DALE_L_SF_3443_17_0460_I_1_FINAL_ORDER_2009271.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
DALE L. JARRELL,
Appellant,
v.
DEPARTMENT OF THE AR MY,
Agency.
DOCKET NUMBER
SF-3443 -17-0460 -I-1
DATE: March 7, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL1
Mario A. Padilla , Joint Base Lewis -McChord, Washington , for the
appellant.
Melissa A. Dunkley , Joint Base Lewis -McChord, Washington, 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 petitioned for review of the June 26, 2017 initial decision
in this appeal. Petition for Review (PFR) File, Tab 1; Initial Appeal File, Tab 5,
Initial Decision. For the reasons set forth below, we DISMISS the petition for
review as settled.
¶2 After the filing of the pet ition for review, the parties submitted a document
entitled “GLOBAL SETTLEMENT AGREEMENT” signed and dated by the
appellant on July 20, 2019, and by the agency on July 23, 2019. PFR File, Tab 5.
The document provides, among other things, for the withdraw al of the
appellant’s petition for review in the above -captioned appeal. 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 understand its
terms, and whether t hey 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 P ersonnel Management , 91 M.S.P.R. 289 , ¶ 4 (2002) ,
overruled on other grounds by Delorme v. Department of the Interior ,
124 M.S.P.R. 123 , ¶¶ 11 -21 (2017) (holding that the Board may enforce
settlement agreements that have been entered into the record, i ndependent of any
prior finding of Board jurisdiction over the underlying matter being settled).
¶4 Here, we find that the parties have entered into a settlement agreement,
understand its terms, and do not intend for the agreement to be entered into the
recor d for enforcement by the Board. PFR File, Tab 5. As the parties do not
intend for the Board to enforce the settlement agreement, we need not address the
additional considerations regarding enforcement, and we do not enter the
settlement agreement into th e record for enforcement by the Board.
3
¶5 In light of the foregoing, we find that dismissing the appellant’s petition for
review “with prejudice to refiling” (i.e., the parties normally may not refile this
appeal) is appropriate under these circumstances. Th is is the final decision of the
Merit Systems Protection Board in this appeal. Title 5 of the Code of Federal
Regulations, section 1201.113 ( 5 C.F.R. § 1201.113 ).
NOTICE OF APPEAL RIG 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 whi ch to file. 5 U.S.C. § 7703 (b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
approp riate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law app licable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible ch oices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in gene ral. As a general rule, an appellant seeking
judicial review of a final Board order 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.
4
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful 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. ____ , 137 S. Ct. 1975 (2017). If you have a
representative in this case, and your representative receives this decision before
5
you do, then you must file with the district court no later than 30 calendar days
after your representative receives this decision. If the action involves a claim of
discrimination based on race, color, religion, sex, 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 to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D. C. 20507
6
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’ s
disposition of allegations of a prohibited 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 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.
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
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attor ney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD:
Washington, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board | JARRELL_DALE_L_SF_3443_17_0460_I_1_FINAL_ORDER_2009271.pdf | 2023-03-07 | null | SF-3443 | NP |
3,418 | https://www.mspb.gov/decisions/nonprecedential/BRITE_LENIAL_M_DC_0432_15_0940_I_1_REMAND_ORDER_2009320.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
LENIAL M. BRITE,
Appellant,
v.
DEPARTMENT OF THE AR MY,
Agency.
DOCKET NUMBER
DC-0432 -15-0940 -I-1
DATE: March 7, 2023
THIS ORDER IS NONPRECEDENTIAL1
Norman Jackson , Esquire, Lincoln, New Hampshire, for the appellant.
Paul A. Raaf , Fort Bragg, North Carolina, for the agency.
BEFORE
Cathy A. Harris , Vice Chairman
Raymond A. Limon , Member
REMAND ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
affirmed his removal for unacceptable performance pursuant to 5 U.S.C.
chapter 43. For the reasons discussed below, we GRANT the appellant’s petition
for review, VACATE the initial decision, and REMAND th e case to the regional
1 A nonprecedential order is one that the Board has determined does not add
significantly to the 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
office for further adjudication consistent with Santos v. National Aeronautics and
Space Administration , 990 F.3d 1355 (Fed. Cir. 2021).
BACKGROUND
¶2 On A ugust 27, 2012, the appellant joined the agency under a
career -conditional appointment as an Accountant, GS -0510 -07. Initial Appeal
File (IAF), Tab 5 at 245. In that position, the appellant was expected to progress
from a GS -07 to a GS -11 over the course of 24 months. Id. at 119. After
successfully completing his first year in the position, the appellant was
noncompetitively promoted to the GS -09 level. IAF, Tab 39 at 48.
¶3 On August 25, 2014, the appellant was informed that, because he performed
unaccep tably during two rotational assignments, he would not be promoted to the
GS-11 level. IAF, Tab 5 at 28 -29. He also was informed, however, that he would
be afforded another opportunity to successfully complete his rotational
assignments. Id. On August 2 8, 2014, the appellant was placed on a 90 -day
Performance Improvement Plan (PIP). Id. at 11 -13.
¶4 On February 10, 2015, the appellant’s supervisor determined that the
appellant performed unacceptably during the PIP period in part because he did not
succes sfully complete the Audit Readiness rotation and because he did not
complete, or submitted incomplete, meeting minutes. Id. at 92 -99. The agency
removed the appellant for unacceptable performance on June 9, 2015. IAF, Tab 4
at 19 -20.
¶5 On appeal to the Bo ard, the appellant alleged that he was wrongfully
removed and that the agency discriminated against him based on his race, age,
sex, and in reprisal for a prior complaint with the Equal Employment Opportunity
Commission. IAF, Tab 1 at 2. Although the app ellant requested a hearing, the
administrative judge canceled the hearing as a sanction. IAF, Tab 33. She
provided the parties the opportunity to submit additional evidence and argum ent
before closing the record. IAF, Tab 34. On September 2, 2016, the
3
administrative judge issued an initial decision based on the written record,
finding that the agency proved its charge of unacceptable performance and that
the appellant failed to prove his claims of discrimination or retaliation. IAF,
Tab 42, Initial Dec ision (ID) at 6 -24.
¶6 The appellant has filed a petition for review, the agency has filed a
response, and the appellant has filed a reply to the response. Petition for Review
(PFR) File, Tabs 1, 4, 6.
DISCUSSION OF ARGUME NTS ON REVIEW
¶7 An agency may propose a reduction -in-grade or removal action based on an
employee’s unacceptable performance in a critical element if it affords him a
reasonable opportunity to demonstrate acceptable performance pursuant to
5 C.F.R. § 432.104 and his performance during or following that opportunity is
unacceptable in that critical element. 5 C.F.R. § 432.105 (a)(1). The
administrative judge f ound that the agency proved by substantial evidence that
these conditions were satisfied here. ID at 17 -18.
Remand is required in light of recent case law to make findings as to the
appellant’s performance prior to the implementation of the PIP.
¶8 On rev iew, the appellant argues that his PIP did not meet the requirements
of 5 C.F.R. § 432.104 because , among other things, he was not told prior to the
PIP that his performance was unaccepta ble. PFR File, Tab 1 at 6. At the time the
initial decision was issued, the Board had held that an agency need not prove
unacceptable performance prior to the PIP. See Wright v. Department of Labor ,
82 M.S.P.R. 186 , ¶ 12 (1999); Brown v. Veterans Administration , 44 M.S.P.R.
635, 640 -41 (1990). The administrative judge noted in the initial decision that to
prevail in a performance -based action under 5 U.S.C . § 4303 , the agency was
required to prove the following by substantial e vidence : (1) it took its action
under a performance appraisal system approved by the Office of Personnel
Management; (2) the agency had valid performance standards and those
4
standard s, along with the critical elements of the appellant’s position, were
communicated to the appellant ; (3) the appellant’s performance was found to be
unacceptable in one or more critical elements of his position ; and (4) the agency
afforded the appellant a reasonable opportunity to improve his performance.2 ID
at 6.
¶9 However, during the pendency of the petition for review in this case, the
U.S. Court of Appeals for the Federal Circuit issued Santos , 990 F.3d at 1360 -61,
which held that , in addition to the elements contained in ¶ 8 & n.3 , the agency
also must justify the institution of a PIP by proving by substantial evidence that
the employee’s performance was unacceptable prior to the PIP. The Federal
Circuit’s decision in Santos appli es to all pending cases, including this one,
regardless of when the events took place. Lee v. Department of Veterans Affairs ,
2022 MSPB 11, ¶ 16. Accordingly, we remand the appeal to give the parties the
opportunity to present additional evidence as to whether the appellant’s
performance during the period leading up to the PIP was unacceptable in one or
more critical el ements. See id. On remand, the administrative judge shall accept
argument and evidence on this issue, and shall hold a supplemental hearing
limited to this issue if requested.3 Id., ¶ 17. The administrative judge shall then
issue a new initial decision consistent with Santos . See id. If the agency makes
the additional showing required under Santos on remand that the appellant’s
performance was at an unacceptable level prior to his placement on the PIP, and
2 In the initial decision, the administrative judge ’s description of the age ncy’s burden is
worded differently than the standard set forth in other pre -Santos cases. For example,
the administrative judge did not expressly include a fifth element, i.e., that an agency
must show by substantial evidence that the employee’s performan ce remained
unacceptable in one or more critical elements . Compare ID at 6, with White v.
Department of Veterans Affairs , 120 M.S.P.R. 405 , ¶ 5 (2013). Nevertheless, she
addressed this element in the initial decision. ID at 14 -16.
3 As discussed infra ¶¶ 1 3-17, we find that the administrative judge did not abuse her
discretion in cancelling the hearing as a sanction for failure to comply with Board
orders. However, we clarify that, if requested, a hearing must be held on remand
regarding the appellant’s pre -PIP performance.
5
if the administrative judge also finds that the agency proved all the other elements
as they existed pre-Santos , she may incorporate her prior findings in the remand
initial decision. Regardless of whether the agency meets its burden, if the
argument or e vidence on remand regarding the appellant’s pre -PIP performance
affects the administrative judge’s analysis of the appellant’s affirmative defenses
or any other finding contained in the initial decision, she should address such
argument or evidence in the remand initial decision.
The agency demonstrated that it otherwise issued the PIP in accordance with
applicable law and regulations.
¶10 The appellant further argues that the agency violated 5 C.F.R. § 432.104
because (1) the PIP did not identify specific examples of his poor performance ;
(2) he was not informed of what, specifically, he would have to do to meet the
standards of his position ; and (3) he was not offered any assistance to ove rcome
his deficiencies, such as training, counseling, or extra help from his supervisor.
PFR File, Tab 1 at 5 -6.
¶11 First, as the administrative judge found, the PIP identified specific
examples of the appellant’s unacceptable performance. ID at 16; IAF, Tab 5
at 11-12. Second, we find that the agency provided the appellant with adequate
instructions on how he was to meet the standards of his position through issuance
of the PIP with its attachments, as well as the PIP counseling memoranda with
their atta chments. IAF, Tab 5 at 11 -29, 38 -91. Third, we find that the agency
provided the appellant with adequate assistance to overcome his deficiencies by
providing him with weekly counseling, which is memorialized in memoranda that
were issued to him.4 Id. at 13, 38 -91.
4 Under 5 C.F.R. § 432.10 4, “[a]s p art of the employee’s opportunity to demonstrate
acceptable performance, the agency shall offer assistance to the employee in improving
unacceptable performance.” We find that the agency complied with this requirement.
6
The appellant’s argument that the agency did not provide him the opportunity to
succe ssfully complete his rotational assignment is unavailing.
¶12 The appellant also argues on review that the agency did not provide him an
opportunity to successf ully complete his assignments , specifically, that he was
unable to acceptably perform in one of his rotational assig nments because the
agency cut the rotation short. PFR File, Tab 1 at 5. We find that the appellant is
referring to a rotational assignment that he was required to complete prior to the
PIP. IAF, Tab 1 at 28. As discussed above, supra ¶¶ 8-9, this appeal must be
remanded for the administrative judge to make findings as to the appellant’s
pre-PIP performance. To the extent the appellant is arguing that the agency failed
to prove that his performance was unacceptable during the PIP period, we
disagree. E.g., IAF, Tab 5 at 92 -99, 243 -44, Tab 39 at 54. The decision letter on
the proposed remova l states that the appellant failed to meet the first element of
his performance standards because he “failed to complete Audit Readiness
Training in weeks 4, 5, 6, 7 and 8 of the Performance Improvement Plan (PIP)
period and in weeks 6, 7, 8 and 12 of the PIP period [he] did not provide minutes
of meetings at all or timely.” IAF, Tab 4 at 19 -20, Tab 5 at 92 -99. Though the
appellant asserts on review that a performance evaluation covering the PIP period
noted that he completed the Audit Readiness Training, PFR File, Tab 1 at 5, he
does not assert that he completed the Audit Readiness Training “in a timely
manner,” “attended all meetings pertinent” to the rotation, or “prepare[d]
inclusive, informative and meaningful meeting minutes,” as required by the PIP.
IAF, Tab 5 at 92. In fact, the performance review that the appellant refers to
states that the appellant required “several deadline extensions” to complete the
training and that he “[d]id not consistently provide meeting notes as directed.”
Id. at 244. Accordingly, we find that the agency proved by substantial evidence
that the appellant’s performance was deficient during the PIP period.
7
The appellant has failed to demonstrate that the administrative judge improperly
canceled his request for a hearin g.
¶13 The appellant argues that the administrative judge improperly denied his
request for a hearing. PFR File, Tab 1 at 4. The Board’s regulations authorize an
administrative judge to cancel a hearing as a sanction when an appellant engages
in conduct prej udicial to the administration of justice. 5 C.F.R. § 1201.43 (e).
The imposition of sanctions is a matter for the administrative judge’s sound
discretion, and, absent a showing that such discretion has been abused, the
administrative judge’s determination will not constitute reversible error. Pecard
v. Department of Agriculture , 115 M.S.P.R. 31 , ¶ 15 (2010). The abuse of
discretion standard is a very high standard , and it allows for great deference to
the administrative judge. Id.
¶14 The circumstances leading up to the cancellation of the hearing in this case
are as follows. After the appellant untimely filed substantively unresponsive
answers to the agency’s discovery requests, the agency filed a motion to compel,
which the administrative judge granted. IAF, Tab 11 at 1 -3. The administrative
judge ordered the appe llant to provide specific answers to each of the agency’s
interrogatories and requests for admission. Id. at 2. The appellant’s response,
however, demonstrated little effort to earnestly answer the agency’s requests.
IAF, Tab 22 at 4 -22. Specifically, he provided the same answer to a multitude of
varied requests, and he was essentially nonresponsive to many of the requests.
Id. After the agency filed a motion for sanctions for the appellant’s refusal to
comply with its motion to compel, the administra tive judge ordered the appellant
to submit evidence and argument demonstrating why sanctions should not be
imposed. IAF, Tab 29. In his responses to the show cause order, the appellant
provided some commentary about the discovery requests and offered add itional
evidence and argument regarding the merits of his appeal. IAF, Tabs 30-32. The
appellant failed to provide, however, virtually any explanation for his not
submitting responsive answers to the discovery requests. Id. In light of the
8
appellant’s unresponsiveness to the agency’s discovery requests, the
administrative judge found that the agency would be hindered in its ability to
prepare for a hearing. IAF, Tab 33 at 6. Accordingly, the administrative judge
found the appropriate sanction was to c ancel the appellant’s requested hearing.
Id. at 6 -7.
¶15 The Board has held that, when an appellant fails to satisfy an order to
provide adequate responses to an agency’s discovery requests, it would be
appropriate to sanction the appellant by precluding him from introducing
evidence concerning the information sought. Wagner v. Department of Homeland
Security , 105 M.S.P.R. 67 , ¶ 13 (2007) (citing 5 C.F.R. § 1201.43 (a)(2)). In
addition, the Board’s regulations provide that an appropriate sanction in such a
case might include, among other things, drawing an inference in fav or of the
agency regarding the information sought. 5 C.F.R. § 1201.43 (a)(1). Here,
despite the appellant’s failure to satisfy an order to provide adequate discovery
responses, the administrative judge neither precluded the appellant from
introducing any evidence nor drew any inferences in favor of the agency. IAF,
Tab 10 at 19 -51, Tab 22 at 6 -22, Tab 26 at 10-12.
¶16 Instead, the administrative judge canceled the hearing and provided t he
parties the opportunity to introduce additional evidence and argument before she
decided the appeal based on the written record. IAF, Tab 34. The Board has
recognized that an appellant’s right to a hearing should not be denied as a
sanction absent ext raordinary circumstances and that a single failure to comply
with an order is generally not sufficient to justify such a drastic sanction. Sims v.
U.S. Postal Service , 88 M.S.P.R. 101 , ¶ 7 (2001). The Board has also held,
however, that a single failure to comply with a discovery order may allow for the
more extreme sanction of dismissal if the appellant’s defiance of the discovery
order is willful. Roth v. Department of Transportation , 54 M.S.P.R. 172 , 176 -77
(1992), aff’d , 988 F.2d 130 (Fed. Cir. 1993) (Table) .
9
¶17 Here, consideri ng the administrative judge’s granting of the agency’s
motion to compel, the clarity of the administrative judge’s instructions, the
appellant’s failure to comply with those instructions, and the appellant’s
responses to the show cause order, we find that preponderant evidence
demonstrates that the appellant intended to provide nonresponsive answers to the
agency’s discovery requests and disobey the administrative judge’s order. See id .
We further find that the appellant’s failure to answer the agency’s discovery
requests in good faith constituted conduct prejudicial to the administration of
justice and that cancelling the hearing was appropriate to prevent unfair prejudice
to the agency. See 5 C.F.R. § 1201.43 (e). We also find that the appellant’s
arguments that the administrative judge failed to give appropriate consideration
to his pro se status, that the information sought by the agency was immaterial,
and that the Board should have appointed an attorney to rep resent him, are all
without merit. PFR File, Tab 1 at 7 -9.
We decline to consider the appellant’s other arguments because he failed to raise
them below.
¶18 Regarding the agency’s decision to fault him for failing to adequately
prepare and file minutes of m eetings, the appellant argues in his petition for
review that he prepared and filed “all such minutes that he felt were required,”
and that he had no training on how to prepare such minutes. Id. at 5 -6. The
appellant further argues that the agency violat ed its own policy by failing to
prepare special evaluations of his performance. Id. at 6. However, the appellant
failed to raise these arguments before the administrative judge. 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. Holton v. Department of
the Navy , 123 M.S.P.R. 688 , ¶ 18 (2016), aff’d , 884 F.3d 1142 (Fed. Cir. 2018) .
10
Because the appellant made no such showing concerning t hese arguments, we will
not consider them on review.5
ORDER
¶19 For the reasons discussed above, we remand this case to the Washington
Regional Office for further adjudication in accordance with this Remand Order.
FOR THE BOARD:
Washington, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board
5 The appellant has not challenged the administrative judge’s findings that he did not
prove that his race, sex, age, or protected equal employment opportunity activity was a
motivating factor in the agency’s decision to remove him, and we find no reason to
disturb those findings. ID at 18 -23; PFR File, Tab 1 at 4 -9. Because we discern no
error with the administrative judge’s motivating factor analysis or conclusion regarding
these claims , we do not reach the question of whether discrimination or retaliation was
a “but -for” cause of the removal action. Pridgen v. Office of Management and Budge t,
2022 MSPB 31 . | BRITE_LENIAL_M_DC_0432_15_0940_I_1_REMAND_ORDER_2009320.pdf | 2023-03-07 | null | DC-0432 | NP |
3,419 | https://www.mspb.gov/decisions/nonprecedential/WIEGAND_BRANDON_T_PH_0752_18_0155_I_2_FINAL_ORDER_2008584.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
BRANDON T. WIEGAND,
Appellant,
v.
DEPARTMENT OF THE AR MY,
Agency.
DOCKET NUMBER
PH-0752 -18-0155 -I-2
DATE: March 6, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL1
Sara A. Austin , Esquire, York, Pennsylvania, for the appellant.
Thomas G. Kane , Esquire, Carlisle, Pennsylvania, for the agency.
Leslie A. Beuttell, Fort Belvoir, Virginia, 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 and the agency has filed a cross
petition for review of the initial decision, which reversed the appellant’s removal .
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
require d to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c).
2 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
For the reasons discussed below, we DENY the petition for review, GRANT the
cross pe tition for review, REVERSE the initial decision , and SUSTAIN the
appellant’s removal .
BACKGROUND
¶2 The appellant held the position of Museum Curator, Arms and Ordinance,
for the U.S. Army War College. E.g., Wiegand v. Department of the Army , MSPB
Docket No. PH-0752 -18-0155 -I-1, Initial Appeal File (IAF), Tab 3 at 10;
Wiegand v. Department of the Army , MSPB Docket No. PH -0752 -18-0155 -I-2,
Appeal File (I -2 AF), Tab 16, Initial Decision (ID).3 In or around October 2013,
the appellant began utilizing extensive leave, following what he has described as
a nervous breakdown. E.g., IAF, Tab 41 at 145, Tab 42 at 60. Then, in
January 2014, he submitted medical documentation requesting numerous
accommodations for what his clinician characterized as Asperger’s disorde r and
the appellant characterized as Asperger’s disorder, depression, anxiety,
personality disorder, and cognitive learning disability. IAF , Tab 41 at 154 -55,
Tab 89 at 42 -43. For example, the appellant’s psychologist recommended
minimizing situations of conflict and minimizing tasks that require close
coordination with others. IAF, Tab 41 at 154 -55.
¶3 Over the ensuing months, the parties engaged in the reasonable
accommodation interactive process. E.g., IAF, Tab 41 at 154 -175, Tab 42
at 4-27, Tab 46 at 4-5. The agency offered a number of accommodations
in February 2014, which the appellant rejected as insufficient. Compare IAF,
Tab 41 at 157 -59, with id. at 162 -63. The agency offered a new set of
accommodations in March 2014, which the appellant also rejected as inadequate.
Compare id . at 170 -74, with IAF, Tab 41 at 175, Tab 42 at 4 -13. At that point,
3 In order to accommodate delays involving the hear ing and settlement discussions, the
administrative judge dismissed the appellant’s appeal, without prejudice, for automatic
refiling at a later date. IAF, Tab 96. Accordingly, there are two docket numbers for
this one appeal.
3
the agency issued a letter stating that it believed it had reasonably accommodated
the appellant in a way that would permit his return to service and offering to meet
to resolve any remaining details. IAF, Tab 42 at 15 -16.
¶4 Throughout this time, the appellant continued to utilize extensive leave.
IAF, Ta b 46 at 4 -5. He exhausted the last of his paid leave and Family Medical
Leave Act of 1993 (FMLA) leave in May 2014. Id. Around that same time, the
appellant submitted an updated letter from his psychologist. IAF, Tab 12,
Subtab P, Tab 42 at 21, Tab 43 at 8.4 The appellant’s treating psychologist
provided the following conclusion, based on his review of both the appellant’s
medical history and the documents exchanged between the parties regarding
accommodation:
At the current time, his repeated difficul ty with functioning in an
employment setting, and the developmental nature of his
impairments indicates that [the appellant’s] condition is static and
unlikely to change for the better.
I continue to be in professional agreement with his being off work.
Despite efforts on both sides, it appears that the number of
accommodations needed to help [the appellant] achieve minimal
success are too great for virtually any setting he might work in. I
cannot clear him to return to work at this time.
IAF, Tab 12, Sub tab P, Tab 42 at 21, Tab 43 at 8. Around that same time, in
May 2014, the appellant also applied for disability retirement. E.g., I-2 AF,
Tab 3, Hearing Transcript, Day 3 (HT3) at 140 -41 (testimony of the appellant),
Tab 4 at 11-12. Yet , he submitted a letter to the agency stating that he was not
abandoning his position, the agency had not properly handled the reasonable
accommodation process, and he would not return to work until or unless the
agency fully accommodated him. IAF, Tab 42 at 18 -20. The a gency responded,
4 This same document is avai lable in numerous places throughout the record, but many
copies are degraded and difficult to read. The copy most legible is a reproduction,
provided by the agency for the sake of clarity. IAF, Tab 90 at 3 (referencing IAF,
Tab 12, Subtab P). There appe ars to be no dispute about the trustworthiness of that
reproduction.
4
concluding that the aforementioned medical opinion demonstrated that the
appellant could not be accommodated. Id. at 22 -24.
¶5 Approximately 1 month later, in July 2014, the agency proposed the
appellant’s removal. IAF, Tab 43 at 13 -16. It did so without labeling the
underlying charge, which became a point of debate in this appeal. Id. at 13 -15.
The proposal began as follows:
This proposed removal is based on your unavailability for duty and
your inability to perform key aspects of your a ssigned duties, as
determined by your medical provider. This action is being proposed
in order to promote the efficiency of the service. It has been clearly
stated that no reasonable accommodation is possible and that you
cannot perform the duties of you r position with any additional
possible accommodation.
Id. at 13. The proposal went on to provide a “sequence of events on which the
above proposal is based.” Id. Generally speaking, that sequence of events
describes the appellant’s exhaustion of all le ave, steps taken in the interactive
process, and an eventual conclusion that the appellant’s condition could not be
accommodated. Id. at 13 -14. The proposal then stated as follows:
I regret to report that due to your medical conditions, and your
inabilit y to resume your duties full -time, your availability for duty
has not improved. I acknowledge you have provided medical
documentation indicating your unavailability for duty was beyond
your control, nonetheless, your ongoing, unscheduled unavailability
has continued beyond a reasonable period of time and has shown no
likelihood of resolution.
This removal is being proposed solely due to your continuing
unavailability for work and for the efficiency of the service. The
intent of this proposal is not to dis cipline you per se. It is simply to
address the undeniable fact that you are unable to report for duty on
a regular basis. [] I cannot indefinitely extend leave from work to an
employee who cannot report to work and show[s] no likelihood of
being able to return to work or reasonably accommodated in his
condition. Your job is critical to the mission here [] and I need a
person ready and able to perform the duties associated with that
position.
Id. at 14 -15.
5
¶6 After the appellant responded to the proposal, e.g., IAF, Tab 41 at 39 -54,
Tab 42 at 58 -68, the deciding official removed him, effective October 24, 2014,
IAF, Tab 41 at 30 -36. The appellant then added his removal to the list of claims
in an ongoing equal employment opportunity (EEO) complaint, alleging
discrimination and reprisal. IAF, Tab 3 at 23 -25. Approximately 3 years later,
the agency issued its Final Agency Decision (FAD) , adopting a decision that had
just been issued by an administrative judge for the Equal Employment
Opportunity Commission, finding no discrimination. Id. at 23 -42. In the interim,
the appellant was retroactively awarded disability retirement benefits. HT3
at 140-42 (testimony of the appellant).
¶7 The appellant filed the instant appeal in January 2018, challenging his
removal and raising two affirmative defenses —reprisal for engaging in EEO
activity and disability discrimination based on a failure to acco mmodate.
Compare IAF, Tabs 1, 3 (initial appeal), with IAF, Tab 60 (prehearing summary,
identifying the issues for adjudication). Despite the agency’s arguments to the
contrary, the administrative judge found the appellant’s Board appeal both timely
and within the Board’s jurisdiction. IAF, Tab 18.
¶8 The administrative judge asked the parties to file arguments concerning the
legal standard that should apply to the agency’s unnamed charge. Compare IAF,
Tab 51 (asking for briefing of the issue), with IAF, Tabs 52 -53 (parties’
responsive briefs). Thereafter, he concluded that the agency had the burden of
proving that (1) the appellant was unable to perform the duties of his position
because of his medical condition, (2) his absence due to the condition had no
foreseeable end, and (3) the agency had a need to fill the appellant’s position.
IAF, Tab 59 at 2 (citing Savage v. Department of the Army , 122 M.S.P.R. 612 ,
¶ 34 (2015) , overruled in part by Pridgen v. Office of Management and Budget ,
2022 MSPB 31 , ¶¶ 23-25; Edwards v. Department of Transportati on,
109 M.S.P.R. 579 , ¶ 14 (2008)).
6
¶9 The administrative judge further developed the re cord and held the
requested hearing. E.g., IAF, Tab 86, Hearing Transcript (HT1), Tab 88, Hearing
Transcript (HT2); HT3. He then issued an initial decision reversing the
appellant’s removal. ID at 2. Without reaching any conclusion about the first
two elements described above, he found that the agency failed to prove the third,
i.e., that it had a need to fill the appellant’s position. ID at 5 -12. The
administrative judge did not, however, rule in the appellant’s favor regarding his
claims of EEO reprisal, ID at 12 -17, and disability discrimination, ID at 18 -37.
¶10 The appellant has filed a petition for review. Wiegand v. Department of the
Army , MSPB Docket No. PH -0752 -18-0155 -I-2, Petition for Review (PFR) File,
Tab 1. He reasserts both his disabil ity discrimination claim, id. at 5-9, and his
EEO reprisal claim, id. at 9-11. The agency has filed a cross petition for review.
PFR File, Tab 3. Most notably, the agency argues that it met the legal standard
that the administrative judge applied, and, in the alternative, that the standard was
incorrect and overly burdensome. Id. at 6-25. Both parties filed responses, PFR
File, Tabs 5, 8, followe d by replies, PFR File, Tabs 9 -10.5
5 After the close of record on review, the appellant filed a pleading titled, “Petition for
Enforcement,” and the agency filed a response, to which the appellant replied. PFR
File, Tabs 11-15. The appellant subsequently filed a second, third, fourth, fifth, sixth,
seventh , and eighth “Petition for Enforcement.” PFR File, Tabs 18 -21, 23 -24, 28 -29.
In short, the appellant argues that, although the agency was complying with the interim
relief order months earlier, when it certified compliance with the interim relief order, it
was no longer in compliance because the agency was denying him a time -in-grade step
increase and leaving him in a temporary position, rather than returning him to the
position from which he was removed. PFR File, Tabs 11, 18 -21, 23 -24, 28-29.
The Board’s regulations do not allow for a petition for enforcement of an interim relief
order while an appeal is pending Board review ; such petitions apply only to final Board
decisions . Sanders v. Department of Homeland Security , 122 M.S.P.R. 144 , ¶ 8 n.5
(2015) , aff’d , 625 F. App’x 549 (Fed. Cir. 2015 ), and overruled on other grounds by
Haas v. Department of Homeland Security , 2022 MSPB 36 ; 5 C.F.R. § 1201.182 (a)-(b).
We could construe the appellant’s pleadings as motions to dismiss the agency’s cross
petition for review under 5 C.F.R. § 1201.116 . However, even if we did so, and agreed
with the appellant’s argument that the agency was in noncompliance, we would not find
that the circumstances warrant dismissal. Thome v. Department of Homeland Security ,
122 M.S.P.R. 315 , ¶¶ 15 -16 (2015) (recognizing that dismissal under 5 C.F.R.
7
ANALYSIS
The administrative judge applied an incorrect legal standard to the agency’s
charge.6
¶11 An agency is not required to affix a label to a charge. Otero v. U.S. Postal
Service , 73 M.S.P.R. 198 , 202 (1 997). It is simply required to state the reasons
for a proposed adverse action in sufficient detail to allow the employee to make
an informed reply. Id. The charge must be viewed in light of the accompanying
specifications and circumstances, and should not be technically construed. Id.
¶12 After closely reviewing the record, it is evident that the agency’s narrative
charge was one of medical inability to perform. The proposal letter began by
asserting that “[t]his proposed removal is based on your unavail ability for duty
and your inability to perform key aspects of your assigned duties, as determined
by your medical provider.” IAF, Tab 43 at 13. The rest of the proposal letter
adds additional details but follows the same basic allegation —that the appella nt
was unable to work due to his medical condition. Id. at 13-15. The agency’s
decision letter similarly describes the action as “unavailability for d uty” and
“medical unavailability for duty.” IAF, Tab 41 at 30. Notably, the appellant’s
response in the interim contains nothing to suggest that the appellant interpreted
the agency’s charge as something other than medical inability to perform. IAF,
Tab 42 at 58 -68.
¶13 To establish a charge of medical inability to perform, an agency must prove
a nexus betw een the employee’s medical condition and observed deficiencies in
§ 1201.116 (e) is permissible but not mandatory ). Upon our issuance of this final Board
order, the appellant may file a petition for enforcement with the regional office if he
still believes the agency has not provided full interim relief. 5 C.F.R. § 1201.116 (g).
6 The appellant argues that we should not revisit the legal standard the administrative
judge applied because the agency failed to contemporaneously object to that standard.
PFR File, Tab 5 at 9. We disagree. See Boltz v. Social Security Administration ,
111 M.S.P.R. 568 , ¶ 11 (2009) (reopening an appeal on the Board’s own motion to
address an administrative judge’s erroneous interpretation of the agency’s charges, even
though not raised by either party on review); Valenzuela v. Department of the Army ,
107 M.S.P.R. 549 , ¶ 11 (2007) (same).
8
his performance or conduct or a high probability, given the nature of the work
involved, that his condi tion may result in injury to him self or others. Fox v.
Department of the Army , 120 M.S.P.R. 529 , ¶ 25 (2014); see Haas v. Department
of Homeland Security , 2022 MSPB 36, ¶¶ 11-15 (recognizing this standard and
comparing it with the differing standard that applies in the context of an
employee’s removal from a position with medical standards based solel y on their
medical history). 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. Haas,
2022 MSPB 36, ¶¶ 15, 20. In determining whether an agency has met this
burden, the Board will consider whether a reasonable accomm odation, short of
reassignment, exists that would enable the appellant to safely and efficiently
perform his core duties. Id., ¶ 25.
¶14 The administrative judge stated that this standard did not apply because
there was no indication that the agency was asser ting that the appellant’s
performance or conduct were deficient due to his medical condition. IAF, Tab 59
at 1. But that conclusion seems to draw an unwarranted distinction between cases
in which an employee’s medical condition allows them to work but pr events them
from doing so successfully, and those in which an employee’s medical condition
altogether prevents them from showing up and doing their work. See Fox ,
120 M.S.P.R. 529 , ¶¶ 11 -13, 25 -30 (finding that an agency proved its medical
inability to perform charge where an employee’s absences had a negative effect
on her performance and the performance of her team); Ellshoff v. Department of
the Interior , 76 M.S.P.R. 54 , 68 (1997) (recognizing that a charge of inability to
perform job duties is equivalent to a charge of medical incapacity).
¶15 As previously mentioned, the administrative judge concluded that the
agency had the burden of proving that (1) the appellant was unable to perform the
duties of his position because of his medical condition, (2) his abse nce due to the
condition had no foreseeable end, and (3) the agency had a need to fill the
9
appellant’s position. IAF, Tab 59 at 2. The administrative judge explained that
the first two elements were clear from the Board’s decisions in Savage ,
122 M.S.P.R. 612 , and Edwards , 109 M.S.P.R. 579 , while the third was less so.
IAF, Tab 59 at 2 n.*. Nevertheless, he found the third element necessary, based
on a close reading of Edwards and the proposal letter at issue in the instant
appeal. Id. For the reasons that follow, we find that the administrative judge
mistakenly interpreted those decisions and their applicability in this appeal.
¶16 In Edwards , the agency charged the appellant with unavailability for duty.
Edwards , 109 M.S.P.R. 579 , ¶ 8. Upon a close reading of the proposal and
decision notices, the Board concluded that the agency had removed her for
physical inability to perform, dist inguishing that charge from one of excessive
approved absences or a general unavailability. Id., ¶ 14 & n.3. The Board’s
decision in Edwards did not explicitly recount any particular legal standard for
the charge itself. Instead, the Board simply acknow ledged that an agency may
remove an employee if she is unable, because of a medical condition, to perform
the duties of her position, while recognizing that there was ample evidence that
the appellant in Edwards was unavailable for duty when the agency pro posed her
removal. Id., ¶ 15.
¶17 What made Edwards different from many inabilit y to perform cases was the
appellant’s expected recovery. Before the agency effectuated her removal, the
appellant in that case provided the agency with medical documentation i ndicating
that she should be recovered and capable of returning to duty in approximately
2-1/2 months. Id., ¶ 16. On appeal, the appellant presented evidence that she
recovered within that timeframe, as expected, and the agency failed to present
evidence of an urgent need that prevented it from waiting on that recovery. Id.,
¶¶ 17, 21. The Board found that, in light of this evidence, the removal was not
taken for such cause as would promote the efficiency of the service. Id., ¶ 22; see
5 U.S.C. § 7513 (a) (providing that an agency may only remove an employee
under chapter 75 “for such cause as will promote the efficiency of the service”).
10
¶18 Turning to Savage , the agency in that case removed an employee based on
three charges: absence without leave, excessive absences, and unavailability for
duty with no foreseeable end. Savage , 122 M.S.P.R. 612 , ¶ 10. The Board cited
to Edwards , again acknowledging that an agency may remove an employee if she
is unable, because of a medical condition, to perform the duties of her position,
id., ¶ 34, without otherwise describ ing a specific legal standard for the charge
itself. The Board summarily concluded that the agency proved its third charge
because it was undisputed that the appellant was medically unable to return to the
workplace and the evidence suggested she would ne ver be able to return. Id.
¶19 Contrary to the administrative judge’s conclusion in the instant appeal, the
Edwards decision merely demonstrates that the efficiency of the service standard
may prevent an agency from removing an employee for inability to perfo rm in
some instances if the employee recovers from the medical condition that
previously rendered them unable to perform. And the Savage decision merely
demonstrates that it may be appropriate to require proof regarding the absence of
a foreseeable end to an employee’s medical unavailability as part of the burden
for proving the charge itself, depending on the specific language of an agency’s
charge. But neither requires the legal standard the administrative judge applied to
the charge in this case.
¶20 In su m, we find that the agency’s charge was one of medical inability to
perform , and the administrative judge erred in interpreting the charge otherwise.
Therefore, the applicable standard is as follows: did the agency prove a nexus
between the employee’s me dical 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. Put more
simply, did the appellant’s medical condition prev ent him from being able to
safely and efficiently perform the core duties of his position. In determining
whether the agency has met this burden, we will consider whether a reasonable
11
accommodation, short of reassignment, exists that would enable the appe llant to
safely and efficiently perform his core duties.
The agency proved its inability to perform charge.
¶21 Although the administrative judge erred by requiring that the agency prove
additional elements, he described the agency’s burden as including proo f that the
appellant was unable to perform the duties of his position because of his medical
condition. IAF, Tab 59 at 2. Therefore, the record is fully developed on the
relevant issues, and we need not remand this case to determine whether the
appellant ’s medical condition prevented him from being able to safely and
efficiently perform the core duties of his position. See, e.g. , Haas , 2022 MSPB
36, ¶ 20 (applying the proper standard to a medical inability to perform charge,
rather than remanding the appeal, when the administrative judge applied an
incorrect standard but the record was fully developed on the relevant issues).
¶22 By the a ppellant’s own admission, he suffered a nervous breakdown in
October 2013. IAF, Tab 42 at 60. Between that time and May 2014, he
exhausted all paid leave and FMLA leave, id.; IAF, Tab 46 at 4 -5, as the parties
unsuccessfully engaged in the interactive pr ocess to accommodate his condition,
e.g., IAF, Tab 41 at 154 -75, Tab 42 at 4 -27, Tab 46 at 4 -5. The interactive
process effectively concluded with the appellant submitting a May 2014 medical
report from his treating psychologist, who had reviewed the vari ous
accommodations the agency offered and the appellant rejected. IAF, Tab 12,
Subtab P, Tab 42 at 21, Tab 43 at 8. Most importantly, he indicated that the
appellant’s condition was unlikely to change for the better , the accommodations
needed “are too gr eat for virtual ly any setting he might work in, ” and the
appellant should remain off work. IAF, Tab 12, Subtab P, Tab 42 at 21, Tab 43
at 8.
¶23 Based upon our review of the record, the appellant did not return to work or
provide updated medical records before his removal in October 2014. See, e.g .,
IAF, Tab 42 at 60 -62. Therefore, the appellant’s medical condition effectively
12
kept him from worki ng for a full calendar year, with the prevailing medical
opinion indicating that there was no hope for accommodation and no end in sight.
Under those circumstances, we find that the agency met its burden.
¶24 Although the appellant has presented various argu ments about the charge,
none warrant a different result. E.g., I-2 AF, Tab 9 at 7 -10, 13 -16. For example,
the appellant suggests that his psychologist’s May 2014 letter was taken out of
context. Id. at 7. In part, he attempts to support this argument w ith another letter
from his treating psychologist, which is dated months after the appellant’s
removal. IAF, Tab 89 at 61-62; see infra ¶ 39. We are not persuaded. The plain
language of the medical opinion in effect at the time of the agency’s decision to
propose and effectuate the appellant’s removal supported that action, as did the
surrounding circumstances.
¶25 The appellant also faults the agency for not summarily granting the
accommodations described in his psychologist’s January 2014 letter. I -2 AF,
Tab 9 at 13 -14. However, we adopt the administrative judge’s conclusions about
the same. In particular, as the administrative judge considered the appellant’s
disability discrimination claim, he conducted a thorough analysis of the parties’
reasonable ac commodation interactive process and concluded that the agency met
its obligations. ID at 20 -37. Among other things, the administrative judge
recounted the January 2014 recommendations and determined that they were not
hard and fast rules of accommodation s required for the appellant, as reflected by
the numerous qualifiers the psychologist used, such as “whenever possible” and
“ideally.” ID at 22, 33. He therefore found that it was both reasonable and
necessary for the agency to tailor the January 2014 r ecommendations to the
appellant’s specific position and work environment as it did , despite the
appellant’s assertions to the contrary. ID at 33. Finally, the administrative judge
found that the agency offered the appellant reasonable accommodations that , on
their face, would have allowed him to perform the essential functions of his
position. ID at 35. Yet the appellant remained unable or unwilling to work. See
13
generally Miller v. Department of the Army , 121 M.S.P.R. 189 , ¶¶ 15 -21 (2014)
(explaining that parties are generally required to engage in the interactive process
in good faith, and the employer providing the accommoda tion has the ultimate
discretion to choose between effective accommodations).
¶26 In conclusion, we find that the agency met its burden of proving its charge.
The agency proved that the appellant’s medical condition prevented him from
being able to safely an d efficiently perform the core duties of his position, with or
without accommodation.
The appellant failed to prove his affirmative defenses.
Disability discrimination
¶27 Below, the appellant presented a disability discrimination claim, based on
the theory o f a failure to accommodate. I -2 AF, Tab 9 at 13 -18. The
administrative judge was not persuaded. ID at 18 -37. On review, the appellant
reasserts the claim. PFR File, Tab 1 at 5 -9.
¶28 The Board adjudicates claims of disability discrimination raised in
connection with an otherwise appealable action under the substantive standards of
section 501 of the Rehabilitation Act. Haas , 2022 MSP B 36, ¶ 28. The
Rehabilitation Act has incorporated the standards of the Americans with
Disabilities Act (ADA) , as amended by the Americans with Disabilities Act
Amendments Act of 2008 . Id. Therefore, we apply those standards here to
determine if there has been a Rehabilitation Act violation. Id. In particular, the
ADA provides that an employer is required to provide reasonable
accommodations to an otherwise qualified individual with a di sability. 42 U.S.C.
§ 12112 (b)(5) ; Haas , 2022 MSPB 36, ¶ 28. A qualifie d individual with a
disability is one who can “perform the essential functions of the . . . position that
such individual holds or desires” with or without reasonable accommodation.
42 U.S.C. § 12111 (8); Haas , 2022 MSPB 36, ¶ 28.
¶29 Above, we found that the appellant could not perform the essential
functions of the position tha t he held, with or without reasonable
14
accommodations. Supra ¶¶ 22-26. Therefore, to determine whether the appellant
is “qualified,” the question that remains is whether the appellant could perform
the essential functions of a position that he desired, with or without reasonable
accommodation.
¶30 The administrative judge fou nd that the agency met its obligations
following the January 2014 recommendations provided by the appellant’s
psychologist, both in terms of accommodation and reassignment. ID at 33 -37. In
short, he found that the accommodations the agency offered were s ufficient, so
the agency was not required to offer reassignment at that time. ID at 35. He then
found that the agency was justified in ceasing the accommodation process after
receiving the May 2014 letter from the appellant’s psychologist, which indicate d
that the appellant’s condition was unlikely to change and the accommodations
needed for minimal success were too great for virtually any position. ID
at 36-37. In other words, the May 2014 letter supported the conclusion that the
appellant could not pe rform the essential functions of his position or any other
that he desired.
¶31 On review, the appellant’s arguments are similar to those he presented
below. He once again suggests that the agency erred because it did not strictly
adhere to the recommendations detailed in his psychologist’s January 2014 letter.
PFR File, Tab 1 at 5 -6. But again, we find no basis for disturbing the
administrative judge’s well -reasoned findings about the same. ID at 20 -37; supra
¶ 25. He also argues that the agency repeatedly failed to follow its own
reasonable accommodations policies, such as a pol icy requiring that the agency
explain why it was denying a request for accommodation. PFR File, Tab 1 at 6 -8.
But even if we agreed , the appellant has not shown how such a failure to follow a
policy amounts to a harmful error, or requires any particular result for his
disability discrimination claim. ID at 37 n.18; see Goeke v. Department of
Justice , 122 M.S.P.R. 69 , ¶ 7 (2015) (recognizing that reversal of an adverse
action is required if an appellant establishes that the agency committed a harmful
15
procedural error, i.e. , one that was likely to have caused the agency to reach a
conclusion different from the one it would have rea ched in the absence or cure of
the error).
¶32 The most relevant argument the appellant presents involves reassignment.
He identified specific positions for his possible reassignment —archivist and
librarian positions. E.g., I-2 AF, Tab 4 at 34-70, Tab 9 at 1 5-16; PFR File, Tab 1
at 7 -8. However, it is the appellant that has the burden of proof for his
affirmative defenses , 5 C.F.R. § 1201.56 (b)(2)(i)(C) , and he has provided little
more than a conclusory assertion that he could have performed other positions.
I-2 AF, Tab 9 at 15 -16; PFR File, Tab 1 at 7 -8. Given the appellant’s medical
absence from his own position, in conjunction with the May 2014 letter from his
psychologist, we are not p ersuaded.
EEO Reprisal
¶33 The appellant filed an EEO complaint in February 2014, before amending it
several times later that year. IAF, Tab 3 at 23. The resulting FAD indicates that
his allegations all involved his disability, rather than some other characteristic.
Id. Then, i n the instant appeal, the appellant presented an affirmative defense of
EEO reprisal. I -2 AF, Tab 9 at 16 -17. The administrative judge found that he
failed to meet his burden of proving the same. ID at 12 -17. Among other things,
the administrative judg e considered the appellant’s allegations of suspicious
timing between his EEO activity and his removal, but was not persuaded. Id.
¶34 On review, the appellant reasserts his EEO reprisal claim. PFR File, Tab 1
at 9-11. He effectively present s the same arg ument from below, relying on the
timing of relevant actions to suggest that his removal must have been retaliatory.
Id. Although we have reviewed these arguments, we find no basis for disturbing
the administrative judge’s well -reasoned findings of fact. We do, however,
clarify the applicable legal standard for the appellant’s EEO reprisal claim.
¶35 The Board has recognized that a more stringent standard than the
motivating factor standard applies in the context of retaliation claims arising
16
under the ADA and Rehabilitation Act, such that the appellant must prove that his
prior EEO activity was the “but -for” cause of the retaliation. Pridgen ,
2022 MPSB 31, ¶¶ 43-47. The administrative judge relied on Savage ,
122 M.S.P.R. 612, ¶ 51, and its progeny, without having the benefit of our most
recent decisions discussing disability -based EEO reprisal. ID at 12 -14. We
therefore recognize that the more stringent “but -for” standard should have applied
to the appellant’s EEO reprisal claim, rather than the motivating factor standard.
Nevertheless, because the appellant failed to meet the lesser motivating factor
standard applied by the administrative judge, he necessari ly failed to meet the
more stringent standard that actually applied to his disability -based EEO reprisal
claim. See Haas , 2022 MSPB 36, ¶¶ 31-32.
The appellant’s removal is appropriate.
¶36 Generally, removal for inability to perform the essential functions of a
position promotes the efficiency of the service, as required by 5 U.S.C . § 7513 (a).
Fox, 120 M.S.P.R. 529 , ¶ 40. However, a removal action may be rescinded on the
basis that such action would not promot e the efficiency of the service whe n the
evidence clearly and unambiguously demonstrates that the appellant has
recovered before the administrative judge issues an initial decision in their Board
appeal. Wren v. Department of the Army , 121 M.S.P.R. 28 , ¶ 6 (2014).
¶37 The evidence before the agency at the time of the appellant’s removal did
not reflect a foreseeable end to the appellant’s unavailability. Instead, the
May 2014 letter from the appellant’s psychologist —which appears to be the last
medical documentation the appellant provided to the agency before his removal —
recommended that the appellant remain off work and described his con dition as
“unlikely to change for the better.” IAF, Tab 12, Subtab P, Tab 42 at 21, Tab 43
at 8.
¶38 As we previously mentioned, the appellant submitted an updated medical
report from his psychologist in this appeal. IAF, Tab 89 at 61-62; see supra ¶ 24.
The report is dated December 2014, approximately 2 months after the appellant’s
17
removal. IAF, Tab 89 at 61 -62. However, as further detailed below, it is not
persuasive.
¶39 The December 2014 report does not describe the appellant’s condition, nor
does it give any indication that the appellant’s psychologist had evaluated the
appellant to determine whether his condition had changed for the better or worse.
Id.; see Wren , 121 M.S.P.R. 28 , ¶ 9 (recognizing several relevant factors in
assessing the probative weight of a medical opinion, including whether the
opinion was based on a medical examination and whether the opinion provided a
reasoned explanation for its findings as distinct from mere conclusory assertions).
Instead, the report generally consists of an explanation of the psychologist’s prior
reports. IAF, Tab 89 at 61 -62. For example, the appellant’s psychologist begins
by stat ing that he “would not have written the January 8, 2014 letter requesting
accommodation . . . if [he] did not feel that it was possible to accommodate” the
appellant. Id. at 61. Regarding a February 2014 letter he wrote to support the
appellant’s retirem ent, he provided that “it became apparent that, despite our best
efforts, the employer was unlikely to fully accommodate [the appellant] at a level
[] sufficient.” Id. This statement, however, appears to be incomplete, due to a
clerical or filing error.7 That which remained to end the psychologist’s letter
consisted of the following:
I do not agree with the conclusions that the employer has made in
regard to the meaning of my January 8, 2014, and May 19, 2014
letters in regard to [the appellant].
If [the appellant] cannot be accommodated in a manner that is
consistent with the recommendations, then [the appellant] should be
considered eligible for a medical disability retirement.
7 The appellant’s attorney asked to submit the December 2014 report into the record and
she specifically described it as being two pa ges, consistent with what is available in the
physical file. Compare IAF, Tab 89 at 61 -62, with HT2 at 115; HT3 at 137 -39. It is
composed in outline form, using numbered headings, followed by lette red subparts.
IAF, Tab 89 at 61 -62. But the first page ends in what appears to be an incomplete
sentence for section 2c, while the second page abruptly starts with a new sentence in
what appears to be 3a, rather than a conclusion to 2c. Id.
18
Id. at 62 .
¶40 While we have considered the December 2014 report, we find th at the
appellant’s removal nevertheless promotes the efficiency of the service. At best,
the report merely adds confusion to the record regarding the appellant’s condition
and his ability to function in the workplace.8 It does not clearly and
unambiguous ly establish that the appellant had recovered sufficiently from his
condition as to enable him to engage in the essential functions of his position.
¶41 To conclude , we find that the administrative judge applied an incorrect
standard to the agency’s charge. Under the correct legal standard, the agency met
its burden . Moreover, we find that the appellant has failed to prove his
affirmative defenses, and that his removal is appropriate and sustained .
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 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
8 To the extent that the appellant has argued that his application for disability retirement
and associated statements from his treating clinician cannot be considered in this
removal appeal for any purpose, he is mistaken. PFR File, Tab 5 at 12 -13. The statute
and Board precedent he cites merely provide that the appellant’s retirement status may
not be taken into accoun t for purposes of determining whether the Board has
jurisdiction over his removal appeal. 5 U.S.C. § 7701 (j); Fox, 120 M.S.P.R. 529 , ¶ 21.
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 canno t advise which option is most appropriate in any matter.
19
filing time limits and requirements. Failure to file within the 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 particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the 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 review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
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. ____ , 137 S. Ct. 1975 (2017). If you have a
representative in this case, and your representative receives this decision before
you do, then you must file with the district court no later than 30 calendar days
after your representative receives this decision. If the action involves a claim of
discrimination based on race, color, religion, sex, national origin, or a disabling
condition, you may be entitled to representation by a court -appointed lawyer and
to waiver of any requirement of prepayment of fees, costs, or other security. See
42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district courts can be found at their respective
websites, which can be accesse d through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you r eceive
this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later tha n 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
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
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises n o 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.10 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).
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 R eview Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other c ircuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195,
132 Stat. 1510.
22
If you submit 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 | WIEGAND_BRANDON_T_PH_0752_18_0155_I_2_FINAL_ORDER_2008584.pdf | 2023-03-06 | null | PH-0752 | NP |
3,420 | https://www.mspb.gov/decisions/nonprecedential/SPICER_BYRON_L_DA_0752_16_0444_I_1_FINAL_ORDER_2008585.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
BYRON L. SPICER,
Appellant,
v.
UNITED STATES POSTAL SERVICE,
Agency.
DOCKET NUMBER
DA-0752 -16-0444 -I-1
DATE: March 6, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL1
Kenneth Brady , Houston, Texas, for the appellant.
Steven E. Coney , Dallas, Texas, for the agency.
BEFORE
Cathy A. Harris , Vice Chairman
Raymond A. Limon , Member
FINAL ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
sustained his removal from the position of City Letter Carrier . On petition for
review, the appellant argues that the administrative judge erred in finding that his
removal was consistent with the terms of the collective bargaining agreement
requiring progressive discipline , that the charge of failure to follow leave
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case 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
requesting procedures is not serious, and that the administrative judge failed to
consider all of the pertinent Douglas2 factors. Generally, we grant petitio ns 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 petitio n for review and AFFIRM the initial
decision, which is now the Board’s final decision. 5 C.F.R. § 1201.113 (b).
NOTICE OF APPEAL RIG HTS3
You may obtain review of this final decision. 5 U.S.C. § 7703 (a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703 (b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
2 Douglas v. Veterans Administration , 5 M.S.P.R. 280 , 305 -06 (1981) (providing a
nonexhaustive list of factors relevant to determining the appropriateness of a penalty
for misconduct).
3 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.
3
jurisdiction. If you wish to seek review of this final decision, you 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
judici al review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal C ircuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se P etitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit o ur 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
Board neither endorses the services provided by any attorney nor warrants that
any at torney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
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. ____ , 137 S. Ct. 1975 (2017). If you have a
representative in this case, and your representative receives this decision before
you do, then you must file with the district court no later than 30 calendar d ays
after your representative receives this decision. If the action involves a claim of
discrimination based on race, color, religion, sex, national origin, or a disabling
condition, you may be entitled to representation by a court -appointed lawyer and
to waiver of any requirement of prepayment of fees, costs, or other security. See
42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.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
5
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for revi ew to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
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.4 The court of appeals must receive your petition for
4 The origi nal statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permane ntly allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
6
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(B).
If you submit a petition for judicia l review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information a bout the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practic e, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono repre sentation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195,
132 Stat. 1510.
7
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR T HE BOARD:
Washington, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board | SPICER_BYRON_L_DA_0752_16_0444_I_1_FINAL_ORDER_2008585.pdf | 2023-03-06 | null | DA-0752 | NP |
3,421 | https://www.mspb.gov/decisions/nonprecedential/WIEGAND_BRANDON_T_PH_531D_20_0474_I_1_FINAL_ORDER_2008595.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
BRANDON T. WIEGAND,
Appellant,
v.
DEPARTMENT OF THE AR MY,
Agency.
DOCKET NUMBER
PH-531D -20-0474 -I-1
DATE: March 6, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL1
Sara A. Austin , Esq uire, York, Pennsylvania, for the appellant.
Thomas G. Kane , Esquire, Carlisle, Pennsylvania, 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 , on the basis of adjudicatory efficiency, his challenge to the agency’s
interim relief obligations in a separate appeal . On petition for review, the
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or 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
appellant argues that the administrative judge relied on a Board decision that is
distinguishable from this appeal and that his claim in this appeal is different from
the underlying claim at issue in his separate appeal of his removal. Generally, we
grant petitions such as this one only in the following circumsta nces: 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 rul ings 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 ). A fter fully considering the filings in this appeal, we conclude that
the petitioner has not established any basis under section 1201.115 for granting
the petition for review. Therefore, we DENY the petition for review and
AFFIRM the initial decision, which is now the Board’s final decision. 5 C.F.R.
§ 1201.113 (b).
NOTICE OF APPEAL RIG 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 wi ll rule regarding which cases fall within their
3 Since the issuance of the initial decision in this matter, the Boar d may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.
3
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petiti on for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D .C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our 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
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, o n unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit ), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. ____ , 137 S. Ct. 1975 (2017). If you have a
representative in this case, and your representa tive receives this decision before
you do, then you must file with the district court no later than 30 calendar days
after your representative receives this decision. If the action involves a claim of
discrimination based on race, color, religion, sex, na tional origin, or a disabling
condition, you may be entitled to representation by a court -appointed lawyer and
to waiver of any requirement of prepayment of fees, costs, or other security. See
42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the 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
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 EE OC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
other protected activities listed in 5 U.S.C . § 2302 (b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2 302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.4 The court of appeals must receive your pe tition for
4 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court 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.
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 | WIEGAND_BRANDON_T_PH_531D_20_0474_I_1_FINAL_ORDER_2008595.pdf | 2023-03-06 | null | PH-531D | NP |
3,422 | https://www.mspb.gov/decisions/nonprecedential/LANDERS_MARQUITA_L_AT_0752_17_0168_I_1_FINAL_ORDER_2008748.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
MARQUITA L. LANDERS,
Appellant,
v.
DEPARTMENT OF THE TR EASURY,
Agency.
DOCKET NUMBER
AT-0752 -17-0168 -I-1
DATE: March 6, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL1
Marquita L. Landers , Murfreesboro, Tennessee, pro se.
Andrew M. Greene , Atlanta, Georgia, for the agency.
BEFORE
Cathy A. Harris , Vice Chairman
Raymond A. Limon , Member
FINAL ORDER
¶1 The appellant has filed a petition f or review of the initial decision, which
dismissed her termination appeal for lack of jurisdiction . On petition f or review,
the appellant argues that the agency terminated her on the basis of medical
reasons . 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 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).
NOTICE OF APPEAL RIG HTS2
You may obtain revi ew of this final decision. 5 U.S.C. § 7703 (a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703 (b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situatio n and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
2 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise w hich option is most appropriate in any matter.
3
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems 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
4
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. ____ , 137 S. Ct. 1975 (2017). If you have a
representative in this case, and your representative receives this decision before
you do, then you must file with the district court no later than 30 calendar days
after your representative receives this decision. If the action involves a claim of
discrimination based on race, color, religion, sex, national origin, or a disabling
condition, you may be entitled to representation by a court -appointed lawyer and
to waiver of any requirement of prepayment of fees, costs, or other security. See
42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Oppor tunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must fil e
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
5
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commiss ion
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures unde r 5 U.S.C. § 2302 (b)(8) or
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (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 th e 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.
6
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www. cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for 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 | LANDERS_MARQUITA_L_AT_0752_17_0168_I_1_FINAL_ORDER_2008748.pdf | 2023-03-06 | null | AT-0752 | NP |
3,423 | https://www.mspb.gov/decisions/nonprecedential/MAURIZ_MANOLO_DA_0752_16_0260_I_1_FINAL_ORDER_2008806.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
MANOLO MAURIZ,
Appellant,
v.
DEPARTMENT OF HOMELA ND
SECURITY,
Agency.
DOCKET NUMBER
DA-0752 -16-0260 -I-1
DATE: March 6, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL1
Lorenzo W. Tijerina , Esquire, San Antonio, Texas, for the appellant.
Kelleen O’Fallon , Esquire, and Keyur Shah , Philadelphia, Pennsylvania,
for the agency.
BEFORE
Cathy A. Harris , Vice Chairman
Raymond A. Limon , Member
Trista n 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 pet ition for review of the initial decision, which
affirmed the agency’s removal action . Generally, we grant petitions such as this
one only in the following circumstances: the initial decision contains erroneous
findings of material fact; the initial decision is based on an erroneous
interpretation of statute or regulation or the erroneous application of the law to
the facts of the case; the administrative judge’s rulings during either the course of
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 . E xcept as expressly
MODIFIED by our analysis of the appellant’s discrimination claim, in which we
VACATE the portion of th e initial decision that made findings regarding that
claim, we AFFIRM the initial decision.
BACKGROUND
¶2 Prior to his removal, the appellant was a Federal Air Marshal, SV -1801 ,
with the agency’s Transportation Security Administration (TSA), in Houston,
Texas . Initial Appeal File (IAF), Tab 1 at 1, Tab 8 at 27. Federal Air Marshals
are required to maintain a Top Secret security clearance. IAF, Tab 8 at 127. The
agenc y suspended and then revoked the appellant’s clearance, effective
December 18, 2015, after he failed to file an appeal of its revocation . Id. at 52,
55.
¶3 Based on the sole charge of inability to maintain a Top Secret security
clearance, the agency proposed the appellant’s removal. Id. at 51. The proposal
3
notice provided the appellant 7 days from the date of receipt , January 12, 2016, in
which to submit written and oral response s. Id. at 50, 52. On January 15, 2016,
the appellant sought a 1 5-day extension of the period in which to reply , and the
deciding official granted an extension until January 29, 2016. Id. at 44 -49. On
January 27, 2016 , the appellant requested an additional extension of time in
which to reply . Id. at 37-43. The deciding official denied h is request . Id. at 36.
The appellant failed to submit a written or an oral response before the extended
reply period ended , and the agency issued its final decision upholding the
proposed removal. Id. at 28 -32.
¶4 The appellant filed this appeal and requested a hearing . IAF, Tab 1. After
holding the requested hearing, t he administra tive judge found that the agency
proved the charge by preponderant evidence. IAF, Tab 19, Initial Decision ( ID)
at 3-5. He found that the appellant did not establish that the agency violated his
right to due process or committed a harmful procedural erro r when it denied his
second request for an extension of time to reply to the notice of proposed
removal . ID at 5 -8. The administrative judge further found that the appellant’s
affirmative defense alleging discrimination based on national origin was not
properly before the Board because the agency’s action was premised on the
revocation of a security clearance , but he made alternative findings that the
appellant failed to prove the merits of the defense. ID at 8-11. Finally, h e found
that the penalty was reasonable and promoted the efficiency of the service. ID
at 11. He thus affirmed the removal action. Id.
ANALYSIS
¶5 Because the appellant was a TSA employee, this appeal is governed by the
provisions of the Aviation and Transportation Security Act. Winlock v.
Department of Homeland Security , 110 M.S.P.R. 521, ¶ 5 (2009) (citing
Connolly v. Department of Homeland Security , 99 M.S.P.R. 422, ¶ 9 (2005)
(finding that TSA employees are covered by the personnel management system
that is applicable to employee s of the Federal Aviatio n Administration (FAA)
4
under 49 U.S.C. § 40122 )), aff’d , 370 F. App’x 119 (Fed. Cir. 2010) . The TSA
Administrator, however, has modified the FAA personnel system as it ap plies to
TSA employees, and those modifications are control ling. Id., ¶¶ 5-6. TSA
Management Directive ( MD) 1100.75 -3 sets forth policies and procedures for the
agency’s use of “non -disciplinary, corrective, disciplinary, and adverse actions to
address unacceptable employee performance and conduct.” IAF, Tab 8 at 90.
MD 1100.75 -3 mirrors 5 U.S.C. chapter 75 in some of its provisions, in t hat it
requires the agency to give an appellant written notice of its proposed action, an
opportunity to respond, and notice of the decision.3 Compare i d. at 93, 107 -16,
with 5 U.S.C. § 7513 . Add itionally, any removal , suspension, or demotion must
promote the efficiency of the service. IAF, Tab 8 at 93.
The administrative judge properly found that the agency’s action was supported
by preponderant evidence.
¶6 The agency’s sole charge in this appeal was that the appellant was unable to
maintain his Top Secret security clearance. Id. at 51 -54. The agency asserted
that, pursuant to MD 1100.88 -1 ¶ 7.G, Law Enforcement Position Standards and
Hiring Requirements, the appellant was required to maintain a Top Secret security
clearance and his inability to do so disqualifies him from his position.4 Id. at 52.
¶7 The Board lacks the authority to review the merits of an agency decision to
suspend or revoke a security clearance. Department of the Navy v. Egan,
484 U.S. 518 , 530 -31 (1988). Instead, in an appeal of an adverse action based on
an agency ’s decision to deny, revoke, or suspend a security clea rance, the Board
generally will only review whether the employee ’s position required a security
clearance ; the clearance was denied , revoked, or suspended ; and the employee
3 MD 1100.75 -3 also incorporates the harmful error standard in that it states that failure
to follow the provisions of the directive are grounds for reversal of an agency action, if
such failure caused the agency to reach a conclusion different from the one it would
have reached in the absence of the failu re. Compare IAF, Tab 8 at 95, with 5 C.F.R.
§§ 1201.56 (c)(1), 1201.4(r).
4 MD 1100.88 -1 is included in the agency file. IAF, Tab 8 at 74 -87.
5
was provided with the procedural protections set forth in 5 U.S.C. § 7513 .
Rogers v. Department of Defense , 122 M.S.P.R. 671, ¶ 5 (2015) (citing Hesse v.
Department of State , 217 F.3d 1372 , 1376 (Fed. Cir. 2000) (citing Egan , 484 U.S.
at 530-31)). In appeals of TSA adverse actions, the agency follows the
procedural protections in its internal directive, MD 1100.75 -3, rather than those
in 5 U.S.C. § 7513 . Buelna v. Department of Homeland Security , 121 M.S.P.R.
262, ¶ 14 (2014). The Board also will review w hether the agency afforded the
appellant due process . Id., ¶ 15.
¶8 The record supports , and the appellant did not dispute , that he was required
to maintain a Top Secret security clearance as a Federal Air Marshal and that his
clearance was revoked. IAF, Tab 8 at 55 -66, 81, 127. The administrative judge
thus prope rly found that the agency met the se two elements of proof. ID at 3 -5.
The agency did not violate the appellant’s right to due process by declining to
grant an additional extension of time in which to submit written and oral
response s.
¶9 The appellant argues on review that the agency denied his right to due
process by intentionally denying him the opportunity to present an oral or written
reply to the notice of proposed removal after he proposed dates upon which to
schedule an oral reply. Petition for Review (PFR ) File, Tab 1 at 4, 8-11, 14-15;
IAF, Tab 8 at 34-39. In adverse actions based upon security clearance
determinations, due process requires an employee being deprived of his property
interest to be given “the opportunity to be heard ‘at a meaningful time and in a
meaningful manner.’” Buelna , 121 M.S.P.R. 262 , ¶ 16 (quoting Mathews v.
Eldridge , 424 U.S. 319 , 333 (1976)) . The Board analyzes the due process issue
under the balancing test set forth in Mathews , which weighs : (1) the private
interest affected by the official action; (2) the risk of erroneous deprivation of the
interest through the procedures used, and the probable value, if any, of additional
or substitute proc edural safeguards; and (3) the G overnment’s interest . Id. (citing
Mathews , 424 U.S. at 335) . Under the second Mathews factor, the employee must
6
be afforded the opportunity to invoke the deciding official’s discretion to
consider any existing viable alternatives to the adverse action. Id., ¶ 22.
¶10 Under the first factor, we find that the appellant’s private property interest
was significantly affected by the agency’s decision. As for the third factor, the
agency ha d a compelling interest to withhold national security information from
unauthorized persons. Egan , 484 U.S. at 527. As for the risk of erroneous
deprivation of the appellant’s property interest, we agree with the administrative
judge ’s conclusion that the agency did not deprive him of a meaningful
opportunity to be heard. ID at 5 -7. The agency gave him written notice of the
proposed removal, the reasons for the proposed action, and a 7-day period in
which to respond . IAF, Tab 8 at 51-54. The agency also notified him of his right
to be represented . Id. at 53. At his request , the agency extended the original
reply period by 10 days . Id. at 44 -49. When the appellant requested a second
extension , the agency informed hi m—prior to the extended reply period
expiring —that no additional extension would be granted . Id. at 36 -43. The
agency issued the written decision after the extended reply period ended , and no
response had been received . Id. at 28 -43.
¶11 The Board has held that an agency commits a due process violation when it
fails to consider a re sponse that is timely by the a gency’s own terms . Alford v.
Department of Defense , 118 M.S.P.R. 556 , ¶ 7 (2012) . Here, however, the
appellant submitted no thing tha t we would deem to be a timely response under the
agency’s terms . In his notice extending the original reply period, the deciding
official stated , “The response period ( to complete both written and oral
responses ) is therefore extended to the close of bus iness on January 29, 2016.”
IAF, Tab 8 at 4 6 (emphasis added) . Further, the agency’s instructions for the
initial 7 -day reply period state that the appellant had the right “ to reply to this
proposal orally and/or in writing and furnish any evidence in support of [his]
reply within 7 calendar days” after the date he received the proposal. Id. at 52.
We find that t he unambiguous terms of the initial and extended reply period s
7
required the appellant to presen t his oral and written responses —and not just to
attempt to schedule an oral response —by a date certain.
¶12 The appellant asserts that his January 15 and January 27, 2016 letter s were
requests for a date, time, and location c ertain for giving an oral response. PFR
File, Tab 1 at 9. The subject -matter line on the January 15, 2016 letter referenced
a date certain to reply orally, but the body of the letter did not elaborate upon th at
request . IAF, Tab 8 at 48. In the January 27, 2016 letter , the appellant offered
the week of February 23 through February 27, 2016, in which to schedule an oral
response. Id. at 39. That week , however, was well beyond the January 29, 2016
deadline by which both written and oral responses were t o have been completed .
Compare IAF, Tab 8 at 46 (stating that the response period to complete both
written and oral responses ended on January 29, 2016), with Massey v.
Department of the Army , 120 M.S.P.R. 226 , ¶¶ 7-10 (2013) (finding that the
agency violated the appellant’s due process rights when the proposal notice
affor ded her the opportunity to schedule her oral response during the reply
period). For these reasons, we find that t he appellant failed to submit either an
oral or a written response within the agency’s designated tim eframe .
¶13 The appellant argues that the age ncy’s proffered reply period was nothing
more than “an empty formality .” PFR File, Tab 1 at 11. We disagree.
Predecisional due process requires that the agency provide an appellant with an
opportunity in which to respond to the agency’s proposal , which the appellant
received from January 12 through January 29, 2016 . See Kinsey v. Department of
the Navy , 59 M.S.P.R. 226, 229 (1993) (citing Darnell v. Department of
Transportation , 807 F.2d 943 , 945 (Fed. Cir. 1986) (“ An opportunity to present is
quite different f rom a presentation in fact .”) (emphasis in original) ). The
appellant clearly would have preferred a longer period in which to respond for the
reasons set forth in his letters asking the deciding official for extensions . IAF,
Tab 8 at 39, 48 . Nevertheles s, if a tenured public employee is entitled to a full
post-decisional hearing, such as the appellant’s Board hearing , a pre decisional
8
trial-type hearing is not required , and fundamental due process requirements are
satisfied if the employee has a pre decisional opportunity to present, either in
person or in writing, reasons why the proposed action should not be taken.
Pumphrey v. Department of Defense , 122 M.S.P.R. 186, ¶ 8 (2015) (citing
Cleveland Board of Education v. Loudermill , 470 U.S. 532 , 546 (1985); Ray v .
Department of the Army , 97 M.S.P.R. 101, ¶ 22 (2004) , aff’d , 176 F. App’x 110
(Fed. Cir. 2006) ).
¶14 The removal action here is bas ed on a single charge of failure to maintain a
required security clearance, and we find no indication that the matters to be
addressed in a reply were particularly numerous or complex. We have considered
the appellant’s reasons for requesting an extension , including his attorney’s
asserted scheduling issues, but, under the circumstances, we find that the 17 -day
predecisional reply period afforded to the appellant was of sufficient length to
satisfy the requirements of minimum due process under the Constitu tion. See
Henderson v. Department of Veterans Affairs , 123 M.S.P.R. 536 , ¶¶ 3, 13 (2016)
(holding that 7 days was a reasona ble, and constitutionally adequate, period of
time for a predecisional reply to a notice of proposed suspension based on a
criminal indictment) , aff’d , 878 F.3d 1044 (Fed. Cir. 2017) ; Pumphrey ,
122 M.S.P.R. 186 , ¶ 8 (holding that a 14-day predecisional reply period allowed
the appellant a meaningful opportunity and reasonable time to respond to a notice
of proposed furlough and was constitutionally sufficient); cf. Ra y, 97 M.S.P.R.
101, ¶¶ 6, 14, 22 (finding that a 29 -day predecisional reply period satisfied
minimum due process requirements reg arding a removal action based on nine
specifications of conduct unbecoming a Federal employee, even considering
circumstances that included the number and complexity of the charges, the
volume of supporting evidence, the difficulties imposed by distance, a nd
scheduling constraints concerning an oral reply).
¶15 Intertwined with the appellant’s due process arguments is his assertion that
he was denied a hearing before a “neutral” or unbiased deciding official. PFR
9
File, Tab 1 at 4, 8, 14 -15. The appellant’s arguments regarding the deciding
official’s alleged bia s that he made before the administrative judge pertain to his
belief that the deciding official discriminated against him based on national
origin. IAF, Tab 10 at 6. As we explain infra ¶ 23, the Board cannot adjudicate
the appellant’s discrimination cla im because doing so would require the Board to
consider the validity of the security clearance determination, which it cannot do.
See Putnam v. Department of Homeland Security , 121 M.S.P.R. 532, ¶¶ 18-19
(2014). For all of these reasons, we conclude that the administrative judge
properly found that the appellant failed to establish that the agency violate d his
right to due process when it d id not grant him an additional extension of time in
which to submit written and oral responses to the notice of proposed removal.
The agency did not commit harmful error by not granting an additional extension
of time in which to submit written an d oral response s.
¶16 The appellant also argues on review that the agency’s alleged denial of his
right to offer a written or an oral response was harmful error . PFR File, Tab 1
at 4, 8-11, 15. The appellant asserts that , if he had been given such a response ,
the deciding official might have exercised his discretion to consider transferring
him to a Transportation Security Officer (Airport S creener) position, which does
not require a security clearance. Id. at 4, 10. The appellant included with his
petition for review an internet vacancy announcement seeking to hire
Transportation Security Officers in the San Angelo, Texas area. Id. at 17-23.
¶17 The vacancy announcement is not in the record from the proceeding before
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). Although this particular announcement would not have been available
before the record closed, IAF, Tab 11 at 6, there were likely similar
announcements available at the time. To the extent the appellant relies on this
10
vacancy announcement to establish that positions existed to which he could have
been assigned without a security clearance, we find that he has not established
that such information was unavailable to him before the record closed despite his
due diligence. See 5 C.F.R. § 1201.115 (d) (“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 closed.”).
¶18 Moreover , an appellant who seeks to introduce new evidence must show
that it is of sufficient weight to warrant an outcome different from that of the
initial decision . Russo v. Veterans Administration , 3 M.S.P.R. 345 , 349 (1980).
The appellant’s submission here would not warrant a different outcome because
the administrative judge properly concluded that the agency did not commit
harmful procedural error by denying him an additional extension of the period for
submitting written and oral response s. ID at 7 -8. To prove harmful procedural
error, an appellant must establish that an agency committed a procedural error
that was likely to have caused it to reach a conclusion different from the one it
would have otherwise reached in the absence o r cure of the error.5 5 C.F.R.
§ 1201. 4(r). The appellant bears the burden of proof on this affirmative defense.
5 C.F.R. § 1201.56 (b)(2)(i)(C). As explained above, the agency followed the
procedures set forth in MD 1100.75 -3 by giving the appellant written notice
stating the charge and a description of the evidence support ing the charge,6 as
well as an opportunity to respond orally and in writing. IAF, Tab 8 at 51-54. The
appellant failed to avail himself of th e opportunity to respond .
5 Similarly, MD 1100.75 -3 ¶ 6.L states:
A failure to comply with the provisions of this directive, the
accompanying Handbook, or Appendices may be grounds for reversing an
action only if it caused TSA to reach a conclusion different from the one it
would have reached in the absence of the failure.
IAF, Tab 8 at 95.
6 The agency supplied copies of the materials supporting the charge. IAF, Tab 8 at 53,
55-89.
11
¶19 Additionally, the appellant failed to show that any statute or regulation
required the agency to consider assigning him to an alternative position . See
Flores v. Department of Defense , 121 M.S.P.R. 287 , ¶ 12 (2014) . The deciding
official testified that he was unaware of any right of reassignment under such
circumstances , and , in any event, a candidate for a ny position at TSA must be
eligible for a security clearance . Hearing Compact Disc (HCD) (testimony of the
deciding official ). On review, the appellant asserts that there are positions at
TSA that do not require a security clearance. PFR File, Tab 1 at 4, 10. We find,
however, that the existence of any such position is immaterial to th e outcome of
this appeal. I n the absence of a statute or regulation requiring the agency to seek
out alternative employment, the Board lacks the authority to review whether the
lesser sanction of reassignment to a nonsensitive position would have been
feasible. Flores , 121 M.S.P.R. 287 , ¶ 12 (citing Griffin v. Defense Mapping
Agency , 864 F.2d 1579 , 1580 -81 (Fed. Cir. 1989)). Thus, we will not disturb the
administrative judge’s finding that the appellant failed to establish that any
harmful procedural error occurred. ID at 7-8.
The administrative judge did not abuse his discretion when he declined to admit
the transcript of the deciding official’s deposition .
¶20 On review, t he appellant a sserts that the administrative judge summarily
sealed the record and closed the hearing, pr eventing him from introducing
portions of the deciding official’s deposition transcript. PFR File, Tab 1 at 11-13.
The appellant submitted these portions of the transcript with his petition for
review. Id. at 24 -46. The record shows that the appellant sought to introduce the
entire transcr ipt on May 19, 2016, after the prehearing c onference had taken place
and the May 6, 2016 Order and Summary of Telephonic Prehearing Conference
had been issued. IAF , Tabs 11, 16. The agency objected b ecause t he decidi ng
official was set to testify in person. IAF, Tab 17 at 4. The agency also asked the
administrative judge to remove the appellant’s filing from the Board’s e-Appeal
Online Repository because the deposition had been marked as containing
12
Sensitive Securit y Information (SSI). Id. at 9. The agency explained that the
record would have to be sealed if the transcript were admitted into evidence. Id.
at 9-10.
¶21 The administrative judge did not seal the record. Instead, he ruled that
portions of the depositio n could be used to impeach the deciding official’s
testimony , but the deposition in its entirety would not be admitted. HCD. Before
testimony began, t he administrative judge asked the agency to identify the
portion s of the transcript containing SSI . HCD . The agency stated that the SSI in
the transcript was general background information and not relevant to the issues
on appeal. HCD . At the end of the hearing, when the appellant had not cited to
any portion of the transcript for impeachment purposes, the administrative judge
declined to admit the transcript .7 HCD.
¶22 We find no abuse of discretion in the administrative judge’s rulings, which
were within his sound discretion. See 5 C.F.R. § 1201.41 (b)(3), (6), (8). In any
event, the transcript also fails to meet the Board’s definition of new evidence, and
the appellant had the opportunity to use it for impeach ment purposes during th e
hearing . IAF, Tab 16; see Alvarado v. Department of the Air Force ,
103 M.S.P.R. 1, ¶¶ 25-26 (2006) (finding that the administrative judge did not err
or abuse his discretion by not considering testimony proffered at a prior hearing
when, among other things, neither party was precluded at a later hearing from
using the record from the prior hearing to r efresh a witness’s recollection or
impeach his credibility) , aff’d , 626 F. Supp . 2d 1140 (D.N.M. 2009), aff’d ,
490 F. App’x 932 (10th Cir. 2012); 5 C.F.R. § 1201.115 (d).
7 The appellant’s submissions that include portions of the transcript nevertheless remain
in the p hysical record , which is appropriately marke d as containing SSI, but are not
available through the Board’s electronic case repository . IAF, Tab 16 ; PFR File, Tab 1 .
13
To the extent th at the administrative judge made findings on the issue of
discrimination, we vacate those findings.
¶23 Finally, as the administrative judge properly noted, the Board cannot
adjudicate whether an agency’s adverse action, which is premised on the
suspension or revocation of a security clearance, constitutes impermissible
discrimination or retaliation. ID at 9-10; see Putnam , 121 M.S.P.R. 532, ¶ 18;
Pangarova v. Department of the Army , 42 M.S.P.R. 319 , 322-24 (1989) .
Accordingly, the Board lacks the authority to adjudicate the appellant’s
discrimination claim . To the extent that the administrative judge made findings
concerning the discrimination claim in the initial decision, ID at 10 -12, we vacate
those findings.
NOTICE OF APPEAL RIGHTS8
The initial decision, a s 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 s tatement of how courts will rule
regarding which cases fall within their jurisdiction. If you wish to seek review of
this final decision, you should immediately review the law applicable to your
claims and carefully follow all filing time limits and requi rements. Failure to file
within the applicable time limit may result in the dismissal of your case by your
chosen forum.
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.
14
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Boa rd order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Plac e, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellant s,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www .mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept repre sentation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
15
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals f or the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. ____ , 137 S. Ct. 1975 (2017). If you have a
representative in this cas e, and your representative receives this decision before
you do, then you must file with the district court no later than 30 calendar days
after your representative receives this decision. If the action involves a claim of
discrimination based on race, co lor, religion, sex, national origin, or a disabling
condition, you may be entitled to representation by a court -appointed lawyer and
to waiver of any requirement of prepayment of fees, costs, or other security. See
42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtW ebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1) . You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702 (b)(1) . If you have a representative in this case,
and your representative receives this decision before you do, then 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:
16
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhanc ement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in s ection
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.9 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(B).
9 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisd iction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195,
132 Stat. 1510.
17
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 | MAURIZ_MANOLO_DA_0752_16_0260_I_1_FINAL_ORDER_2008806.pdf | 2023-03-06 | null | DA-0752 | NP |
3,424 | https://www.mspb.gov/decisions/nonprecedential/PAGE_JEFFREY_S_AT_3330_17_0247_I_1_FINAL_ORDER_2008855.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
JEFFREY S. PAGE,
Appellant,
v.
DEPARTMENT OF VETERA NS
AFFAIRS,
Agency.
DOCKET NUMBER
AT-3330 -17-0247 -I-1
DATE: March 6, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL1
Jeffrey S. Page , Charlotte, Tennessee, pro se.
Bradley Flippin , Esquire, Nashville, Tennessee, for the agency.
BEFORE
Cathy A. Harris , Vice Chair man
Raymond A. Limon , Member
FINAL ORDER
¶1 The appellant has filed a petition for revie w of the initial decision, which
denied his request f or corrective action under the Veterans Employment
Opportunities Act of 1998 on the basis that the position for which he applied was
an internal merit promotion and thus not subject to veterans’ preference . On
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
require d to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c).
2
petition for review, the appellant challenges the administrative judge’s finding
that the vacancy announcement advertising the position for whi ch he was not
selected was only open to internal candidates and asserts that the agency has the
burden of proving that it was justified in taking its action. He has also included
USAJOBS postings from other agencies which state they are only open to internal
candidates and an email acknowledging that he submitted his occupational
questionnaire for one such position. He argues that this evidence shows that
outside candidates can apply for positions that state they are only open to internal
candidates. 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 interpretation of statute or regulation
or the erroneous application of the law to the facts of the case; the administrative
judge’s rulings during either the course of the appeal or the initial decision
were not consis tent with required procedures or involved an abuse of discretion,
and the resulting error affected the outcome of the case; or new and material
evidence or legal argument is available that, despite the petitioner’s due
diligence, was not available when the record closed. Title 5 of the Code of
Federal Regulations, section 1201.115 ( 5 C.F.R. § 1201.115 ). After fully
considering the filings in this appeal, we conclude that the petitioner has not
established any basis under section 1201.115 for granting the petition for review.
Therefore, we DENY the petition for review and AFFIRM the initial decision,
which is now the Board’s final decision. 5 C.F.R. § 1201.113 (b).
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 t he 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.
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 Prote ction Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you 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
shoul d contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for 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.
4
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.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. ____ , 137 S. Ct. 1975 (2017). If you have a
representative in this case, and your representative receives this decision before
you do, then you must file with the district cou rt no later than 30 calendar days
after your representative receives this decision. If the action involves a claim of
discrimination based on race, color, religion, sex, national origin, or a disabling
condition, you may be entitled to representation by a court -appointed lawyer and
to waiver of any requirement of prepayment of fees, costs, or other security. See
42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district courts can be found at their respective
websites, which can be a ccessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEO C) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the
5
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no lat er than 30 calendar days after your representative 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 pet ition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.3 The court of appeals must receive your petition for
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
6
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 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.
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
Contact information for the courts of appeals can be 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 | PAGE_JEFFREY_S_AT_3330_17_0247_I_1_FINAL_ORDER_2008855.pdf | 2023-03-06 | null | AT-3330 | NP |
3,425 | https://www.mspb.gov/decisions/nonprecedential/SMITH_CECILIA_A_DC_0752_17_0344_I_1_FINAL_ORDER_2008867.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
CECILIA A. SMITH,
Appellant,
v.
DEPARTMENT OF DEFENS E,
Agency.
DOCKET NUMBER
DC-0752 -17-0344 -I-1
DATE: March 6, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL1
Kristen Farr , Esquire , and Rosemary Dettling , Esquire, Washington, D.C.,
for the appellant.
David R. Daniels , Alexandria, Virginia, for the agency.
BEFORE
Cathy A. Harris , Vice Chairman
Raymond A. Limon , Member
FINAL ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
sustained her removal based on the charge of failure to meet a condition of
employment . On petition for review, the appellant argues that the administrative
judge erred in finding that she did not prove her affirmative defenses 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
retaliation for equal employment opportunity activity and discrimination in
violation of the Uniformed Services Employment and Reemployment Rights Act
and er red in her analysis of the agency’s penalty determination.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 erroneo us 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 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 unde r section 1201.115 for granting
the petition for review. Therefore, we DENY the petition for review and
AFFIRM the initial decision, which is now the Boar d’s final decision. 5 C.F.R.
§ 1201.113 (b).
NOTICE OF APPEAL RIGHTS3
You may obtain review of this final decision. 5 U.S.C. § 7703 (a)(1). By
statute, the nature of your claims determines the time limit for seeking such
2 The appellant also argues that she should be allowed to proceed with her affirmative
defense of sex discrimination, a claim that she admittedly withdrew at the beginning of
the hearing. According to the appellant, evidence emerged at the hearing that would
support her claim. She does not, however, explain why she did not seek to r aise her
defense before the administrative judge again when she became aware of the evidence ,
and we discern no basis f or allowing her to renew the claim at this point. See
Flanagan v. Department of the Army , 48 M.S.P.R. 430 , 433 (1991) (finding that, having
waived the testimony of a witness below, the appellant could not raise the denial of the
witness on petition for review).
3 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review ri ghts included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.
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 carefu lly each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 2043 9
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within t he court’s Rules of Practice, and Forms 5, 6, 10, and 11.
4
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for informati on regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on 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. ____ , 137 S. Ct. 1975 (2017). If you have a
representative in this case, and your representative re ceives this decision before
you do, then you must file with the district court no later than 30 calendar days
after your representative receives this decision. If the action involves a claim of
discrimination based on race, color, religion, sex, national origin, or a disabling
condition, you may be entitled to representation by a court -appointed lawyer and
to waiver of any requirement of prepayment of fees, costs, or other security. See
42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U. S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively , you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1) . You must file any such request with the
5
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, 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
competent jurisdiction.4 The court of appeals m ust receive your petition for
4 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appe als of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
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 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.
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.
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 | SMITH_CECILIA_A_DC_0752_17_0344_I_1_FINAL_ORDER_2008867.pdf | 2023-03-06 | null | DC-0752 | NP |
3,426 | https://www.mspb.gov/decisions/nonprecedential/BURKE_JAMES_K_PH_3443_18_0033_I_1_FINAL_ORDER_2008134.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
JAMES K. BURKE,
Appellant,
v.
DEPARTMENT OF JUSTIC E,
Agency.
DOCKET NUMBER
PH-3443 -18-0033 -I-1
DATE: March 3, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL1
James K. Burke , Cromwell, Connecticut, pro se.
Jennifer B. Bryan , Esquire, Washington, D.C., for the agency.
BEFORE
Cathy A. Harris , Vice Chairman
Raymond A. Limon , Member
FINAL ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
dismissed for lack of jurisdiction his appeal challenging his nonselection for a
Supervisory Criminal Investigator position. On petition for review, the appellant
argues that the agency violated its responsibilities as a delegated examining
1 A nonprecedential order is one that the Board has determined does not add
significantly to the 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
authority under 5 U.S.C. § 1104 and that it violated merit systems principles.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 initi al decision
were not consistent with required procedures or involved an abuse of discretion,
and the resulting error affected the outcome of the case; or new and material
evidence or legal argument is available that, despite the petitioner’s due
diligence, was not available when the record closed. Title 5 of the Code of
Federal Regulations, section 1201.115 ( 5 C.F.R. § 1201.115 ). After fully
considering the filings in this appeal, we co nclude that the petitioner has not
established any basis under section 1201.115 for granting the petition for review.
2 The appellant indicated on his appeal that he is entitled to veterans’ preference.
Initial Appeal File, Tab 1 at 1. To the extent he wishes to pursue a claim concerning a
violation of his veterans’ preference rights in connection with this nonselection, he may
do so by filing a new appeal with the Board’s regional office. The Board has
jurisdiction over two types of claims under the Veterans Employment Opportunities Act
of 1998 (VEOA) : (1) the denial of a right to compete; and (2) the violation of a statute
or regulation relating to veterans' preference. See 5 U.S.C. § 3330a (a)(l)(A) (veterans'
preference claims); 5 U.S.C. §§ 3330a (a)(l)(B), 3304(f)(l) (right -to-compete claims).
To establish Board jurisdiction over a veterans' preference appeal under
section 3330a(a )(l)(A), an appellant must: (1) show that he exhausted his remedy with
the Department of Labor (DOL); and (2) make nonfrivolous allegations that (i) he is a
preference eligible within the meaning of VEOA, (ii) the action(s) at issue took place
on or after the 1998 enactment date of VEOA, and (iii) the agency violated his rights
under a statute or regulation relating to veterans' pref erence. To establish jurisdiction
over a "right to compete" appeal under section 3330a(a)(l)(B), an appellant must:
(1) show that he exhausted his remedy with the DOL; and (2) make nonfrivolous
allegations that (i) he is a veteran within the meaning of 5 U.S.C. § 3304 (f)(l), (ii) the
action at issue took place on or af ter the enactment date of the Veterans' Benefits
Improvement Act of 2004, and (iii) the agency, in violation of 5 U.S.C. § 3304 (f)(l),
denied him an opportunity to compete under merit promotion pro cedures for a vacant
position for which the agency accepted applications from individuals outside its own
workforce.
3
Therefore, we DENY the petition for review and AFFIRM the initial decision,
which is now the Board’s final decision. 5 C.F.R. § 1201.113 (b).
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 righ ts, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and 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 F ederal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
3 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decis ions. 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. Co urt of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Sys tems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judici al review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decisi on. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. ____ , 137 S. Ct. 1975 (2017). If you have a
representative in this case, and your representative receives this decision before
you do, then you must file with the district court no later than 30 calendar days
after your representative receives this decision. If the action involves a claim of
5
discrimination based on race, color, religion, sex, national origin, or a disabling
condition, you may be enti tled to representation by a court -appointed lawyer and
to waiver of any requirement of prepayment of fees, costs, or other security. See
42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district courts can be found at their respecti ve
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the
EEOC’s Office of Federal Operations wi thin 30 calendar days after you receive
this decision. 5 U.S.C. § 7702 (b)(1) . If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for revi ew to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal 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
6
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in 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.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 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 Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our 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 jurisdictio n expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court 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 | BURKE_JAMES_K_PH_3443_18_0033_I_1_FINAL_ORDER_2008134.pdf | 2023-03-03 | null | PH-3443 | NP |
3,427 | https://www.mspb.gov/decisions/nonprecedential/ALONGE_HELENA_D_DC_0752_17_0021_I_2_FINAL_ORDER_2008137.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
HELENA D. ALONGE,
Appellant,
v.
DEPARTMENT OF JUSTIC E,
Agency.
DOCKET NUMBER
DC-0752 -17-0021 -I-2
DATE: March 3, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL1
Lawrence Berger , Esquire, Glen Cove, New York, for the appellant.
Chief Employment Law , 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 revie w of the initial decision, which
dismissed her appeal as untimely refiled after dismissal without prejudice. On
petition for revie w, the appellant argues that her request for waiving the timeline
for refilin g should be liberally construed so as to grant h er request . Petition for
Review File, Tab 1 at 5 -11. She admits that she refiled her app eal after 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
120-day deadline. Id. at 5. However, she asserts that this filing delay is
excusable because she refiled within 30 days of the agency’s decision in an
internal review process and refiling before that time would have been fruitless as
she would have needed to request an additional dismissal without prejudice
pending the outcome of the process. Id. She also argues t hat providing her a
hearing would comp ort with the principles of equity and fairness, would serve the
remedial purpose of applicable statutes and regulations, and would not prejudice
the agency. Id. at 8, 10.
¶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 d uring either the course of the appeal or the initial decision
were not consistent with required procedures or involved an abuse of discretion,
and the resulting error affected the outcome of the case; or new and material
evidence or legal argument is avail able that, despite the petitioner’s due
diligence, was not available when the record closed. Title 5 of the Code of
Federal Regulations, section 1201.115 ( 5 C.F.R. § 1201.115 ). After f ully
considering the filings in this appeal, we conclude that the 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 no w the Board’s final decis ion. 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
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
review and the appropriate forum with which to file. 5 U.S.C. § 7703 (b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule r egarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within t he applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for re view with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If yo u submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the co urt’s Rules of Practice, and Forms 5, 6, 10, and 11.
4
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information re garding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful dis crimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. ____ , 137 S. Ct. 1975 (2017). If you have a
representative in this case, and your representative receives this decision before
you do, then you must file with the district court no later than 30 calendar days
after your representative receives this decision. If the action involves a claim of
discrimination based on race, color, religion, sex, national origin, or a disabling
condition, you may be entitled to representation by a court -appointed lawyer and
to waiver of any requirement of prepayment of fees, costs, or other security. See
42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. dist rict courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the 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
5
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case,
and your rep resentative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EE OC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in 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
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
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 Feder al Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circ uit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interes ted in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appell ants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
July 7, 2018, permanently allows appellants to file petitions for judicial 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/CourtWebsites.aspx .
FOR THE BOARD:
Washington, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board | ALONGE_HELENA_D_DC_0752_17_0021_I_2_FINAL_ORDER_2008137.pdf | 2023-03-03 | null | DC-0752 | NP |
3,428 | https://www.mspb.gov/decisions/nonprecedential/ERICKSON_RICHARD_AT_3443_07_0016_C_2_ORDER_2008224.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
RICHARD ERICKSON,
Appellant,
v.
UNITED STATES POSTAL SERVICE,
Agency.
DOCKET NUMBER
AT-3443 -07-0016 -C-2
DATE: March 3, 2023
THIS ORDER IS NONPRECEDENTIAL1
Richard Erickson , Cape Coral, Florida, pro se.
Theresa M. Gegen , Esquire, St. Louis, Missouri, for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
ORDER
¶1 The appellant has filed a petition for review and the agency has filed a cross
petition for review of the compliance initial decision , finding the agency in
partial noncompliance with the Board’s December 31, 2013 Opinion and Order .
For the reasons set fo rth below, the appellant’s petition for review is DISMISSED
as untimely filed without good c ause shown. 5 C.F.R. § 1201.114 (e), (g).
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
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
Because there is no timely petition for review befo re us, we also DISMISS the
agency’s cross petition for review for lack of jurisdiction.
BACKGROUND
¶2 The administrative judge issued a compliance initial decision on
December 10, 2021, finding the agency in partial noncompliance . Erickson v.
U.S. Postal Service , MSPB Docket No. AT -3443 -07-0016 -C-2, Compliance File
(CF), Tab 30, Compliance I nitial D ecision (CID). The compliance initial
decision specifically stated that the deadline to file a petition for review was
January 14, 2022, and provided information on how to file a petition for review.
CID at 17 -18. The decision was sent to the appellant at a street address in Cape
Coral, Florida. CF, Tab 31.
¶3 On March 21, 202 2, the appellant filed a petition for review via
Federal Express, challenging certain statements and findings in the compliance
initial decision . Erickson v. U.S. Postal Service , MSPB Docket No. AT -3443 -
07-0016 -C-2, Compliance Petition for Review ( CPFR ) File, Tab 1 .
The appellant claimed that he did not receive the compliance initial decision
until February 17, 2022, when his union representative emailed it to him in
preparation for an unrelated arbitration proceeding. Id. at 1-2. Upon receipt of
the petition for review, the Acting Clerk of the Board issued an acknowledgment
letter, setting forth the deadline for the agency to file a cross petition for review
and notifying the appellant that, because his pet ition for review appe ared to
be untimely filed , the Board’s regulations require that he file a motion to accept
the filing as timely and/or to waive the time limit for good cause. CPFR File,
Tab 2 at 1-2. On April 8, 2022, the appellant filed a motion to accept the
petition for review as timely and/or to waive the time limit for good cause,
reiterating that he did not receive the compliance initial decision until February
17, 2022 . CPFR File, Tab 3 at 1 -2. He also attached a copy of his union
3
representative’s email forwarding him the compliance initial decision on
February 17, 2022. Id. at 3-4.
¶4 The agency responded to the appellant’s petition for review, requesting ,
in part, that the petition for review be dismissed as untimel y filed . CPFR File,
Tab 4 at 5 -6. The agency also filed a cross petition for review , in case the
appellant’s petition for review was found timely filed , challenging the
administrative judge’s finding that the agency incorrectly calculated the
appellant’s back pay. Id. at 11 -14. The appellant then filed a reply to the
agency’s response and cross petition for review. CPFR File, Tab 6.
DISCUSSION OF ARGUME NTS ON REVIEW
¶5 A petition for review generally must be filed within 35 days after the date
of the issuance of the initial decision or, if the appellant shows that the initial
decision was received more than 5 days after the initial decision was issued,
within 30 days after the date the appellant received th e initial decision . 5 C.F.R.
§ 1201.114 (e). It is the appellant’s burden of proof, by a preponderance of the
evidence, to establish the timeliness of his petition for review. McPherson v.
Department of the Treasury , 104 M.S.P.R. 547, ¶ 4 (2007) (stating that the
appellant bears the burden of proof with regards to timeliness, which he must
establish by preponderant evidence) ; 5 C.F.R. § 1201.56 (b)(2)(B) .
¶6 The appellant has not established that his petition was timely filed.
The certificate of service confirms that the complianc e initial decision was sent
to the appellant, via U.S. Mail, to a street address in Cape Coral, Florida.
CF, Tab 31 . The appellant has not claimed that th e address was incorrect , nor
has he provid ed an updated address or requested another method of service .
CPFR File, Tab 1 at 1-2. In fact, the Cape Coral address is the same address
listed on the Board’s other orders, including the close of record order, which the
4
appellant confirmed he received.2 Compare CF, Tab 31 , with CF, Tab 27 at 4 ,
Tab 29 a t 20. Furthermore, after filing his petition for review, the appellant filed
a notice with the Board, requesting that all documents be sent t o the same Cape
Coral address where the compliance initial decision was sent.3 Compare CF, Tab
31, with CPFR File, Tab 6 at 14. Even though the Cape Coral address is his
correct address, the appellant has offered no explanation as to why he never
received the compliance initial decision via mail, but instead received it
2 months later from a union representative . CPFR File, Tab 1 at 1 -2, Tab 3 .
Therefore, while the appellant’s statement that he did not receive the compliance
initial decision until February 17, 2022 , was made under penalty of perjury,
CPFR File, Tab 3, given that the Board properly served him at his correct
address, a conclusory statement claiming nonreceipt does not prove that the
appellant timely filed his petition for review . For that reason, we find that the
appellant filed his petition for review approximately 2 months past the
January 14, 2022 deadline . CID at 17; CPFR File, Tab 1.
¶7 Because the appellant did not establish that he timely filed his petitio n for
review, the next issue is whether he established good cause for the 2-month
filing delay. The Board will waive a petition for review time limit only upon a
showing of good cause for t he delay in filing. 5 C.F.R. § 1201.114 (g). To
establish good cause for the untimely filing of a pe tition, a party must show that
he ex ercised due diligence or ordinary prudence under the particular
circumstances of the case. Rivera v. Social Security Administration ,
2 While the appellant claimed that there were issues with the delivery of the Board’s
orders, including that he received the close of record order “at least a week or more”
after the issuance date, he nevertheless confirmed that he received the order and filed
his close of record argument within the set timeframe . CF, Tab 29 at 20.
3 The appellant had listed a Post Office Box in Fort Myers, Florida , as his return
address on his petition for review and the timeliness motion. CPFR File, Tab 1 at 12,
Tab 3 at 5.
5
111 M.S.P.R. 581 , ¶ 4 (2009) (citing Alonzo v. Department of the Air Force ,
4 M.S.P.R. 180 , 184 (1980)). To determine whether an appellant has s hown
good cause, the Board will consider the length of the delay, the reasonableness
of his excuse and his showing of due diligence, whether he is proceeding pro se,
and whether he has presented evidence of the existen ce of circumstances beyond
his control that affected his ability to comply with the time limits or of
unavoidable casualty or misfortune which similarly shows a causal relationship
to his inability to timely file his petition. Rivera , 111 M.S.P.R. 581 , ¶ 4 (citing
Moorman v. Department of the Army , 68 M.S.P.R. 60 , 62 -63 (1995), aff’d ,
79 F.3d 1167 (Fed. Cir. 1996) (Table)).
¶8 The appellant was approximately 2 months late in fil ing his petition for
review. CPFR File, Tab 1; CID at 17. Such a delay is not insignificant . See
Madonti v. Department of the Army , 97 M.S.P.R. 660 , ¶ 8 (2004) (finding that a
nearly 2 -month delay in filing a petition for review was not minimal ); Winfrey v.
National Archives and Records Administration , 88 M.S.P.R. 403 , ¶ 6 (2001)
(finding that a 48 -day delay was not minimal ). We recognize that the appellant
is pro se, but nevertheless he has failed to offer a persuasive excuse, show that
he acted with diligence, or set forth circumstances beyond his control that
affected his ability to comply with the filing limit. There is no evidence that the
appellant made any attempt to check the status of his case , even though he was
awaiting the compli ance initial decision. This is especially noteworthy in light
of the appellant’s significant prior experience before the Board, as well as the
fact that he claimed in his close of record brief that he had not been receiving all
of the documents related to his case . CF, Tab 29 at 20 . Furthermore, t he
appellant has offered no explanation as to why he was unable to contact the
Board , or why he was unable to file his petition for review for 30 days once he
received the compliance initial decision , despite b eing on notice that the petition
for review was a t least 1 month past due. CPFR File, Tab 1.
6
¶9 The Board has found that when, as here, an appellant with significant prior
experience with Board procedures claims that he did not receive documents,
his past experience should have alerted the appellant as to possible problems
regarding service of documents, and his failure to note these problems breached
his personal duty to monitor the progress of his appeals at all times. Jones v.
Social Security Administra tion, 111 M.S.P.R. 498 , ¶ 10 (2009) . Thus, we find
that the appellant’s failure to take any action to monitor his appeal evidences a
lack of due diligence which cannot be excused . Accordingly, we find no basis to
waive the time limit for the appellant’s petition for review for good cause shown .
¶10 The appellant’s petition for review is therefore dismissed as untimely filed .
As for the agency’s cross petition for review, the Board’s regulations define a
cross petition for review as “a pleading that is filed by a party when another
party has already filed a timely petition for review.” 5 C.F.R. § 1201.114 (a)(2)
(emphasis added) . Because there is no timely petition for review at issue in this
appeal, the Board lacks any basis to consider the agency’s cross petition for
review. Castro v. Department of the Air Force , 67 M.S.P.R. 449 , 453 ( 1995).4
The agency assumed the risk of having its cross petition for review dismissed by
not filing a timely p etition for review on its own behalf in the first instance. Id.
¶11 The compliance initial decision remains the final deci sion of the Board
regarding the finding of partial noncompliance . The appellant’s petition for
enforcement will be referred to the Boa rd’s Office of General Counsel, and,
4 At the time the Board issued Castro , 5 C.F.R. § 1201.114 (b) stated “ [i]f a
party . . . files a timely petition for revi ew, any other party. . . may file a timely cross
petition for review.” Castro , 67 M.S.P.R. at 453. The Board’s regulations have been
revised several times since 1995, and the quoted language is no longer in the most
current version of 5 C.F.R. § 1201.114 (b). However, the current regulations define a
cross petition for review as “a pleading that is filed by a party when another party has
already filed a timely petition for review.” 5 C.F.R. § 1201.114 (a)(2). Accordingly,
the Board’s regulations still require a timely petition for review in order to file a cross
petition for review.
7
depending on the nature of the submissions, an attorney with the Office of
General Counsel may contact the parties to further discuss the compliance
process. The parties are required to cooperate with that individual i n good faith.
Because the purpose of the proceeding is to obtain compliance, when
appropriate, an Office of General Counsel attorney or paralegal may engage in ex
parte communications to, among other things, better understand the evidence of
compliance an d any objections to that evidence. Thereafter, the Board will issue
a final decision fully a ddressing all relevant issues in this appeal ,5 and setting
forth the appellant’s appeal rights.
ORDER
¶12 We ORDER the agency to pay the appellant the appropriate amount of back
pay and benefits, plus interest for the relevant periods, consistent with the
findings in the compliance initial decision . The agency must also provide the
appellant with an explanation of its updated back pay calculations for the
relevant time periods, consistent with the findings in the compliance initial
decision
¶13 We ORDER the agency to submit to the Clerk of the Board within 60 days
of the date of this Order satisfactory evidence of compliance. This evidence
shall adhere to the requireme nts set forth in 5 C.F.R. § 1201.183 (a)(6)(i),
including submission of evidence and a narrative statement of compliance. The
agency’s submission shall demonstrate that it paid the appel lant the correct
amount of back pay, interest on back pay, and other benefits under the Office of
Personnel Management’s regulations. The agency must serve all parties with
copies of its submission.
5 The subsequent decision may incorporate the analysis and findings set forth in this
Order.
8
¶14 The agency’s submission should be filed under the docke t number assigned
to the compliance referral matter, MSPB Docket No. AT -3443 -07-0016 -X-1.
All subsequent filings should refer to the compliance referral docket number set
forth above and should be faxed to (202) 653 -7130 or mailed to the following
address
Clerk of the Board
U.S. Merit Systems Protection Board
1615 M Street, N.W.
Washington, D.C. 20419
Submissions may also be made by electronic filing at the Board’s e -Appeal site
(https://e -appeal.mspb.gov) in accordance with its regulation at 5 C.F.R.
§ 1201.14 .
¶15 The appellant may respond to the agency’s evidence of compliance within
20 days of the date of service of the agency’s submission. 5 C.F.R.
§ 1201.183 (a)(8). If the appellant does not respond to the agency’s evidence of
compliance, the Board may assume that he is satisfied with the agency’s actions
and dismiss the petition for enforcement.
¶16 The agency is reminded that, if it fails to provide adequate evidence of
compliance, the responsible agency official and the agency’s representative may
be required to appear before the General Counsel of the Merit Systems
Protec tion Board to show cause why the Board should not impose sanctions for
the agency’s noncompliance in this case. 5 C.F.R. § 1201.183 (c). The Board’s
authority to impose sanctions include s the authority to order that the responsible
agency official “shall not be entitled to receive payment for service as an
employee during any period that the order has not been complied with.”
5 U.S.C. § 1204 (e)(2)(A).
¶17 This Order does not constitute a final order and therefore is not subject to
judicial review under 5 U.S.C. § 7703 (a)(1). Upon the Board’s final resolution
9
of all relevant issues in this petition for enforcement, a final order shall be
issued, which shall be subject to judicial review.
FOR THE BOARD:
Washington, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board | ERICKSON_RICHARD_AT_3443_07_0016_C_2_ORDER_2008224.pdf | 2023-03-03 | null | AT-3443 | NP |
3,429 | https://www.mspb.gov/decisions/nonprecedential/OGBEWI_OSADIAYE_STANLEY_DC_0752_15_0141_I_2_FINAL_ORDER_2008276.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
STANLEY OGBEWI -OSADIAYE,
Appellant,
v.
ARMED FORCES RETIREM ENT
HOME,
Agency.
DOCKET NUMBER
DC-0752 -15-0141 -I-2
DATE: March 3, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL1
C. Jude Iweanoge , Esquire, Washington, D.C., for the appellant.
Christina T. Fuentes , Washington Navy Yard, D.C., for the agency.
Natasha Anderson , Parkersburg, West Virginia, for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
FINAL ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
sustained his removal . On petition for review, with respect to Charge 1, the
appellant challenges the administrative judge’s credibility findings, argues that
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or 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
Charge 1 was defici ent on its face, and asserts that the agency did not prove its
charge because it failed to call necessary witnesses. With respect to Charge 2, the
appellant again argues the charge was deficient on its face and that he did not
provide incomplete informati on constituting the misconduct. Last, the appellant
challenges the penalty determination, claiming that the administrative judge
should have conducted an independent penalty analysis.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 ju dge’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 ar gument is available
that, despite the petitioner’s due diligence, was not available when the record
2 The appellant also argues on review that it was an error to rely on his prior
disciplinary history because some of those actions were based on misconduct that
was not similar to the misconduct alleged in this case a nd some were over 2 years
old. Petition for Review File, Tab 1 at 10. The Board need not consider these
arguments because the appellant has raised them for the first time on review and
has not shown that they are based on evidence previously unavailable despite his
due diligence. Ogbewi -Osadiaye v. Armed Forces Retirement Home , MSPB
Docket No. DC-0752 -15-0141 -I-2, Appeal File, Tab 6; see Alley v. U.S. Postal
Service , 100 M.S.P.R. 283 , ¶ 5 (2005). Nonetheless, even if we addressed the
merits of the claims and discounted the appellant’s prior disciplina ry history,
there is no evidence that the agency would have imposed a lesser penalty. Given
the nature and seriousness of the offense as it relates to the appellant’s position,
Ogbewi -Osadiaye v. Armed Forces Retirement Home , MSPB Docket No.
DC-0752 -15-0141-I-1, Initial Appeal File, Tab 8 at 6, we would still conclude
that the penalty of removal was reasonable, see Martin v. Department of
Transportation , 103 M.S.P.R. 153 , ¶ 13 (2006) (stating that, in assessing whether
the agency’s selected penalty is within the tolerable limits of reasonableness, the
most important factor is the nature and seriousness of the misconduct and its
relat ion to the employee’s duties, position, and responsibilities), aff’d , 224 F.
App’x 974 (Fed. Cir. 2007).
3
closed. Title 5 of the Code of Federal Regulations, section 1201.115 ( 5 C.F.R.
§ 1201.115 ). After fully considering the filings in this appeal, we conclude that
the petitioner has not established any basis under section 1201.115 for granting
the petition for review. Therefore, we DENY the petition for review and
AFFIRM the initial decision, which is now the Board’s final decision. 5 C.F.R.
§ 1201.113 (b).
NOTICE OF APPEAL RIG 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. § 770 3(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement o f how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order mus t file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
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 in dicated in the notice, the
Board cannot advise which option is most appropriate in any matter.
4
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Was hington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/pr obono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Feder al Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. ____ , 137 S. Ct. 1975 (2017). If you have a
representative in this case, and your representative receives this decision before
5
you do, then you must file with the district court no later than 30 calendar days
after your representative receives this decision. If the action involves a claim of
discrimination based on race, color, religion, sex, national origin, or a disabling
condition, you may be entitled to representation by a court -appointed lawyer and
to waiver of any requirement of prepayment of fees, costs, or other security. See
42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscou rts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative 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 requi ring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
6
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b ) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction .4 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(B).
If you submit a petition for judicial review to t he U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
4 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195,
132 Stat. 1510.
7
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
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 | OGBEWI_OSADIAYE_STANLEY_DC_0752_15_0141_I_2_FINAL_ORDER_2008276.pdf | 2023-03-03 | null | DC-0752 | NP |
3,430 | https://www.mspb.gov/decisions/nonprecedential/NWANNA_PATIENCE_DA_0752_15_0035_I_1_FINAL_ORDER_2008298.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
PATIENCE NWANNA,
Appellant,
v.
DEPARTMENT OF THE AR MY,
Agency.
DOCKET NUMBER
DA-0752 -15-0035 -I-1
DATE: March 3, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL1
Ewomazino Magbegor , Esquire, Dallas, Texas, for the appellant.
Karen Denise Haertl , Fort Worth, Texas, 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 her demotion appeal as settled . For the reasons set forth below, the
appellant’s petition for review is DISMISSED as untimely filed without good
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order 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
cause shown . 5 C.F.R. § 1201.114 (e), (g). We FORWARD the appellant’s claim
that the agency breached the parties’ settlement agreement to the Dallas Regional
Office for docketing as a petition for enforcement . 5 C.F.R. § 1201.182 (a).
BACKGROUND
¶2 In October 2014, the agency demoted the appellant . Initial Appeal File
(IAF), Tab 37 at 33 -43. She appealed the agency ’s action . IAF, Tab 1. The
parties thereafter entered into a settlement agreement , and on July 9, 2015, the
administrative judge approved the agreement as the final resolution of the
appeal.3 IAF, Tab 57, Initial Decision (ID) at 1. The initial decision indicated
that it would become final on August 13, 2015, unless a petition for review was
filed by that date. ID at 2.
¶3 Over 1 year later, o n October 20, 2016, the Board received a n ostensible
petition for review of the initial decision signed by an individual purporting to be
the appellant’s attorney. Petition for Review (PFR) File, Tab 1. On
December 12, 2016, the Office of the Clerk of the Board issued an
acknowledgment letter informing both the appellant and her purported attorney
representative that the petition for revi ew was untimely and explaining that the
appellant must file a motion asking the Board to accept the petition as timely
and/or to waive the time limit for good cause. PFR Fi le, Tab 2 at 2. The
acknowledg ment letter also informed both the appellant and her purported
representative that the petition did not meet the Board’s requirements because it
did not contain an official designation of the representative . Id. at 1.
Accordingly, t he letter instructed the appellant to complete a “Designation of
Representative” form and return it within 15 days. Id. The appellant did not
return the subject form, and the copy of the December 12, 2016 acknowledgment
3 The parties’ s ettlement agreement, IAF, Tab 56, also resolved a removal appeal filed
by the appellant , i.e., Nwanna v. Department of the Army , MSPB Docket No. DA-0752 -
15-0348 -I-1, which was concurrently pending before the same administrative judge.
3
letter that the Office of the Clerk of the Board had mailed to the appellant’s
purported representative was returned as undeliverable . PFR File , Tab 6 at 9.
¶4 On March 7, 2017, the Board received a notice from the appellant in which
she stated, among other things, that the individual who had filed the petition was
no longer representing her.4 PFR File, Tab 8 at 2. The appellant’s notice neither
perfected her petition for review nor address ed the untimeliness of the same . On
April 6, 2017 , the Office of the Clerk of the Board issued another order informing
the appellant that the October 20, 2016 petition for review remained deficient
under the Board’s regulations because it was not signed by either the appellant or
a properly designated representative. PFR File, Tab 9 at 2. The Office of the
Clerk of the Board informed the appellant that she could cure the deficiency by
submitting a letter bearing her signature and requesting that the Board consider
the October 20, 2016 submission as her petition for review of the initial decision.
Id. The appellant was directed to cure the deficie ncy or otherwise show good
cause as to why the Board should not dismiss the petition for review as deficient.
Id. The appellant was ordered t o submit her response within 10 days of the date
of the order and informed that if she did not adopt the petition for review, then
the Board may dismiss it without further notice. Id. The appellant did not
respond.
¶5 Over 4 years later, on November 22, 2021, the appellant designated a new
attorney , Ewomazino Magbegor, to represent her in the matter. PFR File, Tab 12
at 4. Thereafter , on December 2, 2021, the appellant submitted a filing wherein
she requested that the Board “process Ms. Magbegor as [her] designated
4 In this filing, th e appellant asserted that she had not received the December 12, 2016
acknowledgment letter , and she indicated that she found out about the status of her case
by contacting the Board “recently.” PFR File, Tab 8 at 2. The appellant seemingly
asser ted that she had not received the letter because she had recently changed
addresses; however, the Office of the Clerk of the Board ’s December 12, 2016
acknowledg ment letter was served on the appellant electronically. PFR File, Tab 2 at 6.
4
[r]epresentative”5 and “consider [ the appellant’s ] petition for initial decision
submitted in October 2016.” PFR File, Tab 13 at 4 (grammar as in original) .
This filing , which perfected the appellant’s October 20, 2016 petition for review,
did not address either the untimeliness of the petition or the appellant’s failure to
respond to the Office of the Clerk of the Board ’s April 6, 2017 Order within
10 days . The agency did not respond to the appellant’s December 2, 2021
request.
DISCUSSION OF ARGUME NTS ON REVIEW
¶6 A petition for review must be filed within 35 days after the issuance of the
initial decision, or, if the petitioner shows that she received the initial decision
more than 5 days after the date of the issuance, within 30 days after the date she
received th e initial decision. 5 C.F.R. § 1201.114 (e). Here, the initial decision
was issued on July 9, 2015, and sent to the appellant electronically the same day.
ID at 1; IAF, Tab 58 at 1. T he appellant has not alleged that she did not receive
the initial decision within 5 days of its issuance; a ccordingly, because she did not
perfect her October 20, 2016 petition for review until December 2, 2021 , her
petition is untimely by over 6 years .6 PFR File, Tabs 1, 1 3; see 5 C.F.R.
§ 1201.114 (e).
¶7 The Board will waive the time limit for filing a petition for review only
upon a showing of good cause for the delay in filing. 5 C.F.R. § 1201.114 (g). To
establish good cause for an untimely filing, the appellant must show that she
exercised due diligence or ordinary prudence under the particular circumstances
of th e case. Alonzo v. Department of the Air Force , 4 M.S.P.R. 180 , 184 (1980).
5 To date, Ms. Magbegor has not submitted any filings on behalf of the appellant.
6 We find that the filing date of the appellant’s petition for review is December 2, 2021,
i.e., the date on which she perfected her October 20, 2016 petition for review . PFR
File, Tabs 1, 13. Ho wever, even if the appellant’ s October 20, 2016 petition had not
been defective, her petition for review of the July 9, 2015 initial decision still would
have been untimely. ID at 2 ; see 5 C.F.R. § 1201.114 (e).
5
In determining whether there is good cause, the Board considers the len gth of the
delay, the reasonableness of the excuse and showing of due diligence, whether the
appellant is proceeding pro se, and whether she has presented evidence of the
existence of circumstances beyond her control that affected her ability to comply
with the time limits or of unavoidable casualty or misfortune that similarly shows
a causal relationship to her inability to file a timely petition . See Wyeroski v.
Department of Transportation , 106 M.S.P.R. 7 , ¶ 7, aff’d , 253 F. App’ x 950 (Fed.
Cir. 2007).
¶8 We find that the appellant has not demonstrated good cause for the untimely
filing of her petition for review. Indeed, h er 6-year delay in filing is significant.
See Ramos v. Office of Personnel Management , 71 M.S.P.R. 39, 41 (1996 )
(finding a n appellant’s 6-year filing delay significant ). Moreover, even assuming
that the appellant was pro se for some or all of the filing period , her pro se status
alone would not excuse this significant delay. See Dean v. U.S. Postal Service ,
100 M.S.P.R. 556 , ¶ 5 (2005) (reasoning that the appellant’s pro se status did not
excuse his 6 -month filing delay) . Moreover , the appellant provides no
explanation for her late filing despite being given an opportunity to do so. PFR
File, Tab 2 at 2. The appellant’s failure to address the t imeliness of her petition
for review and the lack of evidence of circumstances beyond her control or of
unavoidable casualty or misfortune that prevented her from filing a timely
petition for review weigh against finding good cause. See Cabarloc v.
Depart ment of Veterans Affairs , 112 M.S.P.R. 453 , ¶¶ 9-10 (2009) (finding no
good cause for the pro se appellant’s filing delay when he failed to respond to the
Office of the Clerk of the Board ’s notice regarding timeliness).
¶9 The appellant does not address h er filing delay in her petition for review ;
instead , she (1) implicitly expresses general dissatisfaction with the terms of the
parties’ settlement agreement and alleges that she was coerced into signing the
6
agreement7 and (2) argues that the agency breached the terms of the agreement by
failing to compensate her for her unused sick leave balance . PFR File, Tab 1
at 7-13. Neither the appellant’s apparent dissatisfaction with the terms of the
agreement nor her contention that she was coerced into signing the same
constitute good cause for her filing delay ; indeed, neither of these assertions is
based on any new or previously unavai lable evidence . See Eaglehart v. U.S.
Postal Service , 102 M.S.P.R. 672 , ¶¶ 3, 13 (200 6) (reasoning that the appellant,
who h ad alleged that he had been coerced into signing a settlement agreement,
had failed to show how the circumstances surrounding the execution of the
settlement agreement had interfered with his ability to timely file a petition for
review ); see also Ford v. Department of Veterans Affairs , 99 M.S.P.R. 338 , ¶ 7
(2005) (explaining that the appellant’s claimed misunderstanding of, or
dissatisfaction with, the terms of a settlement agreement did not constitute good
cause for her filing delay).
¶10 Accordingly, we dismiss the petition for review as untimely filed by 6 years
without good cause shown for the delay . This is the final decision of the Merit
Systems Protection Board regarding the timeliness of the petition for review. The
initial decision remains the final decision of the Board regarding the dismissal of
the appellant’s demotion appeal as settled.
¶11 Notwithstanding the foregoing, a s discussed above, the appellant claims that
the agency has not complied with certain terms of settlement agreement. PFR
File, Tab 1 at 11 -13. A petition for enforcement of a settlement agreement must
7 The appellant indicates that, at the time the settlement agreement was executed, she
was suffering from a psychological impairment. PFR File, Tab 1 at 9-10. In response,
the Office of the Clerk of the Board explained that, t o the extent she was alleging that
her health impacted her ability to meet filing deadlines, she needed to provide
additional information. PFR File, Tab 2 at 7 n.1. The appellant did not provide any
such information. Thus, we find that she fails to demo nstrate good cause for her
untimely filing on the basis of illness or mental or physical capacity. See Lacy v.
Department of the Navy , 78 M.S.P.R. 434 , 437 (1998) ; see also Stribling v. Department
of Education , 107 M.S.P.R. 166 , ¶ 8 (2007).
7
be filed in the first instance with the Board’s regio nal or field office that issued
the initial decision. 5 C.F.R. § 1201.182 (a). Under the circumstances, the
appropriate course is to forward the petition for review to the regional offi ce for
docketing of a petition for enforcement. See Gard v. Department of Education ,
97 M.S.P.R. 64 , ¶¶ 7 -8 (2004) (dismissing as untimely filed without good cause
shown a petition for review in which the appellant expressed dissatisfact ion with
the settlement process but forwarding the appellant’s allegations of
noncompliance to the regional office for docketing as a petition for enforcement).
NOTICE OF APPEAL RIG HTS8
You may obtain review of this final decision. 5 U.S.C. § 7703 (a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703 (b).
Although we offer the following summ ary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which case s fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
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.
8
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the 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
9
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. ____ , 137 S. Ct. 1975 (2017). If you have a
representative in this case, and your representative receives this decision befor e
you do, then you must file with the district court no later than 30 calendar days
after your representative receives this decision. If the action involves a claim of
discrimination based on race, color, religion, sex, national origin, or a disabling
condition, you may be entitled to representation by a court -appointed lawyer and
to waiver of any requirement of prepayment of fees, costs, or other security. See
42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review b y the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the
EEOC’s Office o f Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case,
and your representative receives this decision befo re you do, then you must file
with the EEOC no later than 30 calendar days after your representative 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:
10
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 whis tleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C) , or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.9 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D .C. 20439
9 The origi nal statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permane ntly allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195,
132 Stat. 1510.
11
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the 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 | NWANNA_PATIENCE_DA_0752_15_0035_I_1_FINAL_ORDER_2008298.pdf | 2023-03-03 | null | DA-0752 | NP |
3,431 | https://www.mspb.gov/decisions/nonprecedential/EASSA_SAMEER_Y_CH_0752_18_0080_I_1_FINAL_ORDER_2007856.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
SAMEER Y. EASSA,
Appellant,
v.
UNITED STATES POSTAL SERVICE,
Agency.
DOCKET NUMBER
CH-0752 -18-0080 -I-1
DATE: March 2, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL1
Sameer Y. Eassa , Oak Forest, Illino is, pro se.
James P. Verdi , Esquire, Chicago, Illinois, for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon , Member
FINAL ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
dismissed his removal appeal fo r lack of jurisdiction . On petition for review, the
appellant reasserts his claim that he is entitled to veterans’ preference , and he has
submitted a Department of Defense Form 214 (DD -214) documenting his
honorable discharge from active -duty service with the U.S. Navy . Petition for
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrat ive judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order 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 (PFR) File, Tab 1. Generally, we grant petitions such as this one only in
the following circumstances: the initial decision contains erroneous findings of
material fact; the initial decision is based on an erroneous i nterpretation 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 invol ved an 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 o f
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 decis ion. 5 C.F.R. § 1201.113 (b).
¶2 The appellant ’s conclusory claim on review that he is entitled to veterans’
preference fails to provide a reason to disturb the initial decision. PFR File,
Tab 1 at 5. Moreover, the appellant has failed to explain why he was unable to
submit his DD -214 before the record closed despite his 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 review absent a showing that it was unavailable before the record was
closed despite the party’s due diligence). Nevertheless, we find that such
evidence is imm aterial to the outcome of this appeal because it fails to constitute
a nonfrivolous allegation that he is a preference eligible within the meaning of
5 U.S.C. § 2108 (3). PFR File, Tab 1 at 4; see Winns v. U.S. Postal Service ,
124 M.S.P.R. 113 , ¶ 8 (2017) (observing that, pursuant to 5 U.S.C.
§ 7511 (a)(1)(B) , an employee with the right to appeal to the Board includes a
preference -eligible Postal Service employee who has completed 1 year of current
continuous service in the same or similar positions ), aff’d sub nom. W illiams v.
3
Merit Systems Protection Board , 892 F.3d 1156 (Fed. Cir. 2018); see also
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 war rant an outcome different from that
of the initial decision). Specifically, the DD -214 does not suggest that he is a
disabled veteran or that he served on active duty during the relevant time periods
specified in 5 U.S.C. § 2108 (1)(A) -(D). PFR File, Tab 1 at 4. Nor does it
suggest that he served on active duty “during a war [or] in a campaign or
expedition for which a campaign badge has been authorized,” pursuant to
5 U.S.C. § 2108 (1)(A). Id.
¶3 Further , to th e extent the appellant challenges the administrative judge’s
imposition of sanctions against him, we find that she did not abuse her discretion
by admonishing him for repeatedly misr epresenting his eligibility for veterans’
preference in an attempt to establish jurisdiction in his current and two prior
appeals. PFR File, Tab 1 at 5; Initial Appeal File, Tab 5, Initial Decision at 6 -7;
see Smets v. Department of the Navy , 117 M.S.P.R. 164, ¶ 11 (2011) (explaining
that, absent a showing of an abuse of discretion, an administrative judge’s
decision to impose sancti ons will not be found to constitute reversible error),
aff’d , 498 F. App’x 1 (Fed. Cir. 2012).
¶4 Accordingly, we affirm the initial decision.
NOTICE OF APPEAL RIG HTS2
You may obtain review of this final decision. 5 U.S.C. § 7703 (a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703 (b).
Although we offer the following summary of available appeal rights, the Merit
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
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how c ourts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you 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 quest ions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must fil e a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must 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
5
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.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in p art, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal C ircuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. ____ , 137 S. Ct. 1975 (2017). If you have a
representative in this case, and your re presentative receives this decision before
you do, then you must file with the district court no later than 30 calendar days
after your representative receives this decision. If the action involves a claim of
discrimination based on race, color, religion, sex, national origin, or a disabling
condition, you may be entitled to representation by a court -appointed lawyer and
to waiver of any requirement of prepayment of fees, costs, or other security. See
42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a .
Contact i nformation for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must fi le any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case,
6
and yo ur representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (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 s ection 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.3 The court of appeals must receive your petition for
3 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circu it or any other circuit court of appeals of competent jurisdiction.
7
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Fe deral Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are inte rested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board app ellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195,
132 Stat. 1510.
8
Contact information for the courts of appeals can be found at their
respectiv e 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
Acti ng Clerk of the Board | EASSA_SAMEER_Y_CH_0752_18_0080_I_1_FINAL_ORDER_2007856.pdf | 2023-03-02 | null | CH-0752 | NP |
3,432 | https://www.mspb.gov/decisions/nonprecedential/CHAUDHURI_TUHIN_K_DA_1221_14_0553_W_2_FINAL_ORDER_2007860.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
TUHIN K. CHAUDHURI,
Appellant,
v.
DEPARTMENT OF VETERA NS
AFFAIRS,
Agency.
DOCKET NUMBER
DA-1221 -14-0553 -W-2
DATE: March 2, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL1
R. Chris Pittard , Esquire, San Antonio, Texas, for the appellant.
Thomas J. Herpin , Esquire, Houston, Texas, for the agency.
Jeffrey T. Reeder , Esquire, Dallas, Texas, for the agency.
BEFORE
Cathy A. Harris , Vice Chairman
Raymond A. Limon , Member
FINAL ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
denied his request for corrective action in connection with his individual right of
action appeal . On petition for review, the appellant argues that the administrative
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
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
judge erred in finding that the agency proved by clear and convincing evidence
that it would have taken the same personnel actions absent the appellant’s
protected disclosures . 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 cours e 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 f ilings 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 one factor of the agency ’s burden of proof, we AFFIRM the initial
decision.
¶2 In finding that the agency showed by clear and convincing evidence that it
would have taken the same personnel actions absent the appellant’s
whistleblowing, the administrative judge properly relied on the three factors set
forth in Carr v. Social Security Administration , 185 F.3d 1318 , 1323 (Fed. Cir.
1999). Chaud huri v. Department of Veteran s Affairs , MSPB Docket No.
DA-1221 -14-0553 -W-2, Appeal File, Initial Decision (W-2 ID ) at 13 -51.
Regarding the third Carr factor, the administrative judge found that the appellant
had not identified any other employee who was not a whistleblower and who
remained employed by the agency after being found to have provided substandard
care to patients and having lost clinical privileges , and that, in the absence of
such evidence and in consideration of the strength of the other Carr factors, the
agency had met its burden . W-2 ID at 51. In analyzing the third Carr factor,
3
however, the administrative judge appeared to have place d the burden of proof on
the appellant , rather than on the agency where it belongs. Miller v. Department of
Justice , 842 F.3d 1252 , 1261 (Fed. Cir. 2016). In fact, the agency did not present
any specific evidence in support of the third Carr factor.
¶3 Carr does not impose an affirmative burden on the agency to produce
evidence as to each of the Carr factors to weigh them individually in the agency’s
favor , and the absence of any evidence relating to the third Carr factor can
effectively remove that factor from the analysis. Whitmore v. Department of
Labor , 680 F.3d 1353 , 1374 (Fed. Cir. 2012) . However, “the Government’s
failure to produce evidence on this factor ‘may be at the agency’s peril,’
considering the Government’s advantage in accessing this type of evidence.”
Miller , 842 F.3d at 1262 (quoting Whitmore , 680 F.3d at 1374).
¶4 On review, the appellant argues that his supervisor was a similarly situated
nonwhistleblower against whom the agency did not take action. Petition for
Revie w File, Tab 12 at 8. The appellant states that the eight physicians who
participated in what he describe d as a “blind” study of his review of six scans as
set forth in the notice of proposed removal, and his supervisor’s review of the
same scans , found errors in the latter’s readings and that his colleague and
supporter , and another physician , testified similarl y. Id. The appellant has not,
however, shown error in the administrative judge’s decision to afford little weight
to the appellant’s supporter’s testimony and the “blind” study based on the fact
that a number of physician witnesses, including the appella nt himself, testified
that, to properly read a study, complete images must be viewed on a special
computer, but that the appellant’s supporte r and the eight physicians only
examined still images.2 W-2 ID at 26. These witnesses’ opinions of the
2 The same may be said for the other physician called by the appellant to te stify.
Hearing Compact Disc 1 (Jan. 25, 2 016). The administrative judge’ s failure to mention
this testimony does not mean that he did not consider it in reaching his decision.
Marques v. Department of Health and Human Services , 22 M.S.P.R. 129 , 132 (1984),
aff’d, 776 F.2d 1062 (Fed. Cir. 1985) (Table).
4
appellant’ s supervisor’s readings are properly discounted for the same reason the
administrative judge discounted their opinions of the appellant’s readings. Thus,
the appellant’s assertions do not support an analogy to his situation. Moreover,
the totality of the agency’s evidence in support of the first Carr factor is strong
and in support of the second factor is relatively strong, and more tha n make s up
for any dearth of evidence on the third Carr factor. Therefore, to the extent the
administrative judge erred in assigning the burden of proof as to the third Carr
factor to the appellant, the error did not prejudice his substantive rights.
Panter v. Department of the Air Force , 22 M.S.P.R. 281 , 282 (1984) (finding that
an adjudicatory error tha t is not prejudicial to a party’ s substantive rights
provides no basis for reversal of an initial decision) .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 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
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
within the applicable time limit may result in the dismissal of your case by your
chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one 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 fo llowing
address:
U.S. Court of Appeals
for the Federal Ci rcuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Pe titioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit ou r website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any att orney will accept representation in a given case.
6
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. ____ , 137 S. Ct. 1975 (2017). If you have a
representative in this case, and your representative receives this decision before
you do, then you must file with the district court no later than 30 calendar days
after your representative receives this decision. If the action involves a claim of
discrimination based on race, color, religion, sex, national origin, or a disabling
condition, you may be entitled to representation by a court -appointed lawyer and
to waiver of any requirement of prepayment of fees, costs, or other security. See
42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscou rts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
7
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C . 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.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 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.
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 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 | CHAUDHURI_TUHIN_K_DA_1221_14_0553_W_2_FINAL_ORDER_2007860.pdf | 2023-03-02 | null | DA-1221 | NP |
3,433 | https://www.mspb.gov/decisions/nonprecedential/POTTER_DAVID_C_SF_0752_19_0433_I_1_FINAL_ORDER_2007868.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
DAVID C. POTTER,
Appellant,
v.
DEPARTMENT OF THE AR MY,
Agency.
DOCKET NUMBER
SF-0752 -19-0433 -I-1
DATE: March 2, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL1
David C. Potter , Tacoma, Washington, pro se.
Stephen Geringer , Esquire , and Jennifer Brewer , Esquire, Joint Base Lewis
McChord, Washington, for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
FINAL ORDER
¶1 The appellant has petitioned for review of the initial decision in this appeal.
Initial Appeal File, Tab 20, Initial Decision; Petition for Review (PFR) File,
Tab 1. F or the reasons set forth below, we DISMISS the appeal as settled.
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or dis tinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c).
2
¶2 After the filing of t he petition for review, the parties submitted a document
entitled “SETTLEMENT AGREEMENT” signed and dated by the parties on
February 15, 2023. PFR File, Tab 6 at 5. The document provides, among other
things, for the dismissal 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 f or enforcement purposes, the Board must determine whether the
agreement is lawful on its face and whether the parties freely entered into it. See
Massey v. Office of Personnel Management , 91 M.S.P.R. 289 , ¶ 4 (2002),
overruled on other grounds by Delorme v. Department of the Interior ,
124 M.S.P.R. 123 , ¶¶ 11 -21 (2017) (holding that the Board may enforce
settlement agreements that have been entered into the record, independent of any
prior finding of Board jurisdiction over the underlying matter being s ettled).
¶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 6 at 5. 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 agr eement 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 ).
3
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
been fully carried out, and shoul d include the dates and results of any
communications between the parties. 5 C.F.R. § 1201.182 (a).
NOTICE OF APPEAL RIG HTS2
You may obtain review of this final decision. 5 U.S.C. § 7703 (a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703 (b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described 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 your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
2 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is mos t appropriate in any matter.
4
(1) Judicial review in general . As a general rule, an appellant seeking
judicia l review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Ci rcuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Pet itioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any atto rney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that s uch action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
5
receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. ____ , 137 S. Ct. 1975 (2017). If you have a
representative in this case, and your representative receives this decision before
you do, then you must file with the district court no later than 30 calendar days
after your representative receives this decision. If the action involves a claim of
discrimination based on race, color, religion, sex, national origin, or a disabling
condition, you may be entitled to representation by a court -appointed lawyer and
to waiver of any requirement of prepayment of fees, costs, or other security. See
42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscou rts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative 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 protecte d activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited pe rsonnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or an y 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 b y the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of c ompetent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195,
132 Stat. 1510.
7
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained with in the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for infor mation regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtW ebsites.aspx .
FOR THE BOARD:
Washington, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board | POTTER_DAVID_C_SF_0752_19_0433_I_1_FINAL_ORDER_2007868.pdf | 2023-03-02 | null | SF-0752 | NP |
3,434 | https://www.mspb.gov/decisions/nonprecedential/EASSA_SAMEER_Y_CH_0752_18_0080_I_1_FINAL_ORDER_2007879.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
SAMEER Y. EASSA,
Appellant,
v.
UNITED STATES POSTAL SERVICE,
Agency.
DOCKET NUMBER
CH-0752 -18-0080 -I-1
DATE: March 2, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL1
Sameer Y. Eassa , Oak Forest, Illino is, pro se.
James P. Verdi , Esquire, Chicago, Illinois, for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon , Member
FINAL ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
dismissed his removal appeal fo r lack of jurisdiction . On petition for review, the
appellant reasserts his claim that he is entitled to veterans’ preference , and he has
submitted a Department of Defense Form 214 (DD -214) documenting his
honorable discharge from active -duty service with the U.S. Navy . Petition for
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrat ive judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order 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 (PFR) File, Tab 1. Generally, we grant petitions such as this one only in
the following circumstances: the initial decision contains erroneous findings of
material fact; the initial decision is based on an erroneous i nterpretation 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 invol ved an 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 o f
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 decis ion. 5 C.F.R. § 1201.113 (b).
¶2 The appellant ’s conclusory claim on review that he is entitled to veterans’
preference fails to provide a reason to disturb the initial decision. PFR File,
Tab 1 at 5. Moreover, the appellant has failed to explain why he was unable to
submit his DD -214 before the record closed despite his 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 review absent a showing that it was unavailable before the record was
closed despite the party’s due diligence). Nevertheless, we find that such
evidence is imm aterial to the outcome of this appeal because it fails to constitute
a nonfrivolous allegation that he is a preference eligible within the meaning of
5 U.S.C. § 2108 (3). PFR File, Tab 1 at 4; see Winns v. U.S. Postal Service ,
124 M.S.P.R. 113 , ¶ 8 (2017) (observing that, pursuant to 5 U.S.C.
§ 7511 (a)(1)(B) , an employee with the right to appeal to the Board includes a
preference -eligible Postal Service employee who has completed 1 year of current
continuous service in the same or similar positions ), aff’d sub nom. W illiams v.
3
Merit Systems Protection Board , 892 F.3d 1156 (Fed. Cir. 2018); see also
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 war rant an outcome different from that
of the initial decision). Specifically, the DD -214 does not suggest that he is a
disabled veteran or that he served on active duty during the relevant time periods
specified in 5 U.S.C. § 2108 (1)(A) -(D). PFR File, Tab 1 at 4. Nor does it
suggest that he served on active duty “during a war [or] in a campaign or
expedition for which a campaign badge has been authorized,” pursuant to
5 U.S.C. § 2108 (1)(A). Id.
¶3 Further , to th e extent the appellant challenges the administrative judge’s
imposition of sanctions against him, we find that she did not abuse her discretion
by admonishing him for repeatedly misr epresenting his eligibility for veterans’
preference in an attempt to establish jurisdiction in his current and two prior
appeals. PFR File, Tab 1 at 5; Initial Appeal File, Tab 5, Initial Decision at 6 -7;
see Smets v. Department of the Navy , 117 M.S.P.R. 164, ¶ 11 (2011) (explaining
that, absent a showing of an abuse of discretion, an administrative judge’s
decision to impose sancti ons will not be found to constitute reversible error),
aff’d , 498 F. App’x 1 (Fed. Cir. 2012).
¶4 Accordingly, we affirm the initial decision.
NOTICE OF APPEAL RIG HTS2
You may obtain review of this final decision. 5 U.S.C. § 7703 (a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703 (b).
Although we offer the following summary of available appeal rights, the Merit
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
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how c ourts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you 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 quest ions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must fil e a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must 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
5
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.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in p art, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal C ircuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. ____ , 137 S. Ct. 1975 (2017). If you have a
representative in this case, and your re presentative receives this decision before
you do, then you must file with the district court no later than 30 calendar days
after your representative receives this decision. If the action involves a claim of
discrimination based on race, color, religion, sex, national origin, or a disabling
condition, you may be entitled to representation by a court -appointed lawyer and
to waiver of any requirement of prepayment of fees, costs, or other security. See
42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a .
Contact i nformation for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must fi le any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case,
6
and yo ur representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (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 s ection 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.3 The court of appeals must receive your petition for
3 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circu it or any other circuit court of appeals of competent jurisdiction.
7
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Fe deral Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are inte rested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board app ellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195,
132 Stat. 1510.
8
Contact information for the courts of appeals can be found at their
respectiv e 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
Acti ng Clerk of the Board | EASSA_SAMEER_Y_CH_0752_18_0080_I_1_FINAL_ORDER_2007879.pdf | 2023-03-02 | null | CH-0752 | NP |
3,435 | https://www.mspb.gov/decisions/nonprecedential/MUHLEISEN_SHIRLEY_DE_0353_16_0067_I_1_REMAND_ORDER_2007882.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
SHIRLEY MUHLEISEN,
Appellant,
v.
DEPARTMENT OF VETERA NS
AFFAIRS,
Agency.
DOCKET NUMBER
DE-0353 -16-0067 -I-1
DATE: March 2, 2023
THIS ORDER IS NONPRECEDENTIAL1
Shirley Muhleisen , Marrero, Louisiana , pro se.
Johnston B. Walker , Jackson , Mississippi , for the agency.
BEFORE
Cathy A. Harris , Vice Chairman
Raymond A. Limon , Member
Tristan L. Leavitt , Member2
REMAND ORDER
¶1 The appellant has filed a petition for review of the initial decision, whic h
denied her restoration appeal . For the reasons discussed below, we GRANT the
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedent ial orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order 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 t he voting process prior to his March 1, 2023 departure.
2
appellant’s petition for review . We AFFIRM the administrative judge’s
determination that the appellant failed to prove the merits of her restoration
claim, but REMAND the case to the regional office for adjudication of the
appellant’s discrimination and retaliation claims in accordance wi th this Remand
Order .
BACKGROUND
¶2 The appellant first filed a claim in Federal district court, alleging that the
agency discriminated against her, subjected her to disparate treatment and a
hostile work environment, retaliated against her, and constructive ly discharged
her. See Muhleisen v. Department of Veterans Affairs , MSPB Docket
No. DE-0353 -16-0067 -I-1, Initial Appeal File (0067 IA F), Tab 6 at 6.
Ultimately, a Magistrate J udge denied each of those claims. Id. at 6-34. Most
notably, for purposes of the a ppeal currently before us, the Magistrate J udge
concluded that the appellant’s 1999 resignation was not involuntary. Id. at 29 -32.
Among other things, she noted that the appellant had been looking for
employment elsewhere in the years leading up to her resignation, applied for
early retirement months before her resignation, applied for paralegal school to
begin the same month as her resignation, and actually began attending that
program just days after her resignation. Id. at 30. The Chief J udge fo r the U.S.
District Court for the District of Colorado agreed and granted summary judgment
in favor of the agency. Id. at 36-37. On appeal, the decision was also affirmed
by the U.S. Court of Appeals for the 10 th Circuit. Id. at 42-48; see Muhleisen v.
Principi , 73 F. App’x 320 (10 th Cir. 2003).
¶3 Next, the appellant filed an individual right of action (IRA) appeal with the
Board, alleging that she was subjected to whistleblower retaliation. Muhleisen v.
Department of Veterans Affairs , MSPB Docket No. DE -1221 -13-0345 -W-1,
Initial Appeal File (0345 IAF), Tab 1. The administrative judge dismissed that
IRA appeal for lack of jurisdiction. 0345 IAF, Tab 15, Initial Decision.
3
The Board remanded for further adjudication concerning the Board’s jurisdiction
over the appellant’s alleged involuntary resignation. Muhleisen v. Department of
Veterans Affairs , MSPB Docket No. DE -1221 -13-0345 -W-1, Remand Order,
¶¶ 8-10 (Nov. 10, 2014). The Board directed the administrative judge to
determine on remand if the appellan t nonfrivolously alleged that her decision to
resign was involuntary, and thus a personnel action that could be raised in an IRA
appeal. On remand, the agency informed the administrative judge of the
appellant’s prior claims in Federal court and argued th at she should
be collaterally estopped from arguing that her resignation was involuntary.
Muhleisen v. Department of Veterans Affairs , MSPB Docket No. DE -1221 -13-
0345 -B-1, Remand File (0345 RF), Tab 20. The administrative judge agreed and
dismissed the a ppellant’s IRA appeal for lack of jurisdiction. 0345 RF, Tab 27,
Remand Initial Decision. The appellant filed a petition for review, but the Board
affirmed the remand initial decision. Muhleisen v. Department of Veterans
Affairs , MSPB Docket No. DE -1221 -13-0345 -B-1, Final Order ( Feb. 28, 2023 ).
¶4 More recently, the appellant filed the instant appeal, which the
administrative judge construed as an allegation that the agency violated 5 C.F.R.
§ 353.301 (d), a regulation requiring that agencies attempt to restore partially
recovered individuals. 0067 IAF, Tab 1, Tab 24 at 6. In concert with the instant
appeal, the following facts, as further detailed in the initial decision, appear
undisputed .
¶5 In 1984, the appellant began working fo r the agency as a Registered Nurse.
0067 IAF, Tab 39, Initial Decision (0067 ID) at 4. On more than one occasion,
between 1997 and 1998, she suffered respiratory problems while working in areas
that were under construction , requiring medical attention. Id. Around
March 1999, while the agency was offering early retirements under a Voluntary
Early Retirement Authority (VERA), the appellant elected to retire with a
proposed retirement date in September 1999. Id.
4
¶6 In April and May 1999, the appellant’s phy sician submitted letters
indicating that she should not work in areas that were under construction. 0067
ID at 5. Then, in September 1999, the agency attempted to reassign her to a
different floor within the same building. Id. The appellant withdrew he r
previously filed application for early retirement and requested an extended leave
of absence, but the agency denied the request. Id. The agency instructed the
appellant to report to work and she responded by giving her resignation notice,
effective Oct ober 1, 1999, and indicating that she would use leave for the days
leading up to that date. 0067 ID at 6. The Office of Personnel Management
approved the appellant’s VERA application. 0067 ID at 5-6.
¶7 At some point, the Department of Labor’s (DOL) Offi ce of Workers’
Compensation Programs (OWCP) accepted two on -the-job injury claims the
appellant submitted. 0067 ID at 6. The appellant has since elected to receive her
OWCP benefits in lieu of her retirement annuity. 0067 ID at 6-7. The first claim
involved the appellant’s respiratory issues and the second reportedly involved
work stress. 0067 ID at 7. Beginning in 2003, DOL worked with the appellant to
facilitate her return to the workforce. 0067 ID at 8. Over the following years,
she applied, but was not selected , for several positions with the agency. 0067 ID
at 8-9.
¶8 In the instant appeal, the appellant alleges that the agency improperly
discriminated against her and denied her restoration. 0067 ID at 9. After asking
the parties to brief the issue, the administrative judge determined that the
appellant’s prior litigation concerning the voluntariness of her retirement did not
preclude this restoration appeal. 0067 IAF, Tab 2 at 3, Tab 6 at 4 -5, Tab 8 at 2,
Tab 24 at 1.
¶9 The administrative jud ge found that the appellant met her jurisdictional
burden and held her requested hearing. 0067 ID at 1, 10; 0067 IAF, Tab 1 at 1.
He issued an initial decision denying the appellant’s request for restoration.
0067 ID at 1. He found that the appellant w as at most entitled to the restoration
5
rights of a partially recovered employee, as evidenced by her continued receipt of
OWCP benefits. Id. at 9 n.5; see 5 C.F.R. § 353.102 (defining a fully recovered
employee as one whose compensation payments have ceased because she is able
to resume all of her duties, while defining a partially recovered employee as one
who has recovered sufficiently for modified duties). He next found that the
appel lant’s restoration claim failed because she did not prove by preponderant
evidence that her separation was due to a compensable injury. 0067 ID at 11 -15.
The administrative judge further found that, to the extent the appellant was
alleging that the agenc y engaged in discrimination by not restoring her, she failed
to present nonfrivolous allegations . 0067 ID at 15 -16.
¶10 The appellant has filed a petition for review. Muhleisen v. Department of
Veterans Affairs , MSPB Docket No. DE -0353 -16-0067 -I-1, Petition for Review
(0067 PFR) File, Tab 4.3 The agency has filed a response and the appellant has
replied. 0067 PFR File, Tabs 6 -7.
3 Below, the administr ative judge did not consider several pieces of evidence that the
agency initially submitted but later moved to withdraw after determining that it was not
authorized to disclose t hose materials. 0067 IAF, Tab 31 at 4 (referencing 0067 IAF,
Tab 21 at 18 -67); 0067 ID at 3 n.1 (referencing 0067 IAF, Tab 21 at 18 -67). On
review, the appellant appears to agree that this evidence should not have been disclosed
or considered. 0067 PFR File, Tab 4 at 7. Accordingly, we will not consider the
mistakenly submitted evidence either . Because the parties appear to agree that this
evidence was mistakenly submitted and should not have been made part of the record,
0067 IAF, Tab 31 at 4; 0067 PF R File, Tab 1 at 3 -10, Tab 4 at 7, it has been sealed,
0067 PFR File, Tab 2 at 1 -2. To the extent that the appellant suggests that the Board
should seal the remainder of the record, or take further action as it relates to her
privacy, we find no reason to do so. 0067 IAF, Tab 4 at 7; see Normoyle v. Department
of the Air Force , 65 M.S.P.R. 80 , 83 (1994) (recognizing that while a Federal district
court may be able to consider claims of an alleged Privacy Act of 1974 violation, the
Board cannot); see also Doe v. Pension Benefit Guaran ty Corporation , 117 M.S.P.R.
579, ¶ 23 n.5 (2012) (explaining that case files from Board appeals are not available to
the public by e -Appeal Online or on the Board’s website). The appellant’s motion to
strike and make other changes to the record , submitted on review, is therefore denied.
0067 PFR File, Tab 9. To the extent the appellant seeks to challenge the merits of the
initial decision in this motion and another filed months later, we decline to consider her
arguments. 0067 PFR File, Tabs 9-10; see 5 C.F.R . § 1201.114 (a) (discussing the
pleadings allowed in connection with a petition for review and the limitations on
arguments made in a reply to a response to a petition f or review ); see also Hooker v.
6
DISCUSSION OF ARGUME NTS ON REVIEW
The appellant failed to meet her burden of proving the elements required for her
restoration claim.
¶11 As an initial matter, we note that the appellant attached significant evidence
to her petition for review that she did not submit during the proceedings b elow.
0067 PFR File, Tab 4 at 27 -74. On review, w e will not consider this evidence,
because the appellant has failed to show that it is new and material.4
See Avansi no v. U.S. Postal Service , 3 M.S.P.R. 211 , 214 (1980) (recognizing
that, under 5 C.F.R. § 1201.115 (d), the Board will not consider evidence
submitted for the first time on review absent a showing that it was unavailable
before the record was closed despite the party’s due diligence).
¶12 Turning to the substance of the instant appeal, the Federal Employees’
Compensation Act and its implementing regulations provide that Federal
employees who suffer on -the-job compensable injuries enjoy certain rights to be
restored to their previous or comparable positions. 5 U.S.C. § 8151 ; Tat v.
U.S. Postal Service , 109 M.S.P.R. 562 , ¶ 9 (2008); 5 C.F.R. § 353.301 .
To prevail on the merits o f a restoration appeal as a partially recovered
Department of Veterans Affairs , 120 M.S.P.R. 629 , ¶ 4 n.4 (2014) (denying an
appellant’s request to submit additional pleadings on review that did not appear
material to the dispositive issues in the case).
4 A couple of pages of the appellant’s evidence first submitted on review do appear new
in the sense that they are dated after the initial decision . 0067 PFR File, Tab 4
at 31-34, 55. However, it appears that they are merely documents created by the
appellant, as she contacted the agency to “resolve issues post hearing.” Id. at 27.
We discern no basis for concluding that the information in questi on is new and material
to the dispositive issue s in this appeal. See 5 C.F.R. § 1201.115 (d) (explaining that
“[t]o constitute new evidence, the information contained in the documents, n ot just the
documents themselves, must have been unavailable despite due diligence when the
record closed []”); see also Russo v. Veterans Administration , 3 M.S.P.R. 345 , 349
(1980) (explaining that evidence does not meet the “new and material evidence”
criterion unless it is of sufficient weight to warra nt a different outcome).
To the extent that the evidence the appellant attached to her petition for review may be
relevant to the claims of discrimination and reprisal that we are rema nding for further
adjudication, the appellant may present them to the ad ministrative judge, if and when
prompted to do so.
7
individual, an appellant must prove by preponderant evidence that: (1) she was
absent from her position due to a compensable injury; (2) she recovered
sufficiently to return to duty on a part -time basis, or to return to work in a
position with less demanding physical requirements than those previously
required of her; (3) the agency denied her request for restoration; and (4) the
agency’s denial was arbitrary and capricious. Kingsley v. U.S. Postal Service ,
123 M.S.P.R. 365 , ¶¶ 11 -12 (2016); 5 C.F.R. § 1201.57 (a)(4) , (c)(4).
¶13 For the first of the aforementioned elements, although the restoration
regulations speak only in terms of an employee separated “as a result of a
compensable injury,” the Board has interpreted this to mean that the separation
was “substantially related to” a compensable injury. See, e.g ., Mobley v.
U.S. Postal Service , 86 M.S.P.R. 161 , ¶ 6 (2000); Wright v. U.S. Postal Service ,
62 M.S.P.R. 122 , 128, aff’d , 42 F.3d 1410 (Fed. Cir. 1994) (Table);
Brown -Cummings v. Department of Health and Human Services , 39 M.S.P.R.
627, 630 (1989).5 Here, the administrative judge found that the appellant failed
to prove that her 1999 separation was sub stantially related to compensable
injuries.6 0067 ID at 12. In doing so, he largely relied on various
contemporaneous evidence, as well as some of the testimonial admissions. 0067
ID at 12-15. This evidence included the appellant’s testimony that she b egan
5 However, as the administrative judge pointed out in the initial decision, 0067 ID at 11,
a U.S. Court of Appeals for the Federal Circuit decision suggests that the Board should
apply a more stringent sta ndard, in which the appellant’s compensable injury must be
the “sole cause” of the absence from his or her position for purposes of a partial
restoration case. Walley v. Department of Veterans Affairs , 279 F .3d 1010 , 1017 n.6,
1018, 1020 (Fed. Cir. 2002). Because the appellant has failed to meet the less stringent
“substantially related to” standard, we need not further address Walley here .
6 Many of the arguments presented on review do not pertain to this dispositive issue or
the appellant’s restoration appeal, generally . For example, she appears to dispute the
findings from her prior appeals and reassert that her resignation was “involuntary .”
E.g., 0067 PFR File, Tab 4 at 2, 4, 10-12. She also presents extensive allegations of
agency impropriety, resulting in various losses, including the loss of her home, her
credit, and her pets. E.g., id. at 4-6. We will only address those arguments that
implicate the whether the appellant’s compensable injuries caused her separation.
8
pursuing other educational and career opportunities in April 1999, around the
time of her application for early retirement and approximately 6 months before
her separation. 0067 ID at 5; 0067 IAF, Tab 6 at 21, Tab 35, Hearing Recording
(testimony of appellant). In addition, August 1999 emails from the appellant
discuss her prior approval and plan for early retirement, effective
September 1999. 0067 IAF, Tab 21 at 13 -14. Those emails suggest the appellant
was second -guessing the effective date of he r early retirement, primarily because
she wanted to ensure that she received credit for all accrued leave. Id.
Those emails also contain a passing reference to a “kink” involving “a workman’s
comp issue, which has not been resolved,” but do not suggest t hat the appellant
was planning to separate as a result of her compensable injuries. Id.
¶14 In mid -September 1999, the appellant submitted a memorandum titled
“leave of absence,” indicating that she was withdrawing her application for
retirement at the end of the month and requesting the use of all available paid
leave “due to ambiguity regarding [her] job function and supervision and to
search for a professional position, for the duration of [her OWCP] issues.”
Id. at 11. The next day, the appellant submitt ed her resignation letter. Id. at 12.
That letter suggests that the appellant was dissatisfied with a requirement that she
leave her current post and begin working on a different floor of the same
building. Id. It includes a reference to “respiratory p roblems, some severe,” but
it does not clearly tie the two together or otherwise show that the appellant’s
compensable injuries were the cause of her separation. Id.
¶15 Although the appellant provided additional testimony about the reason for
her separatio n, attributing it to her compensable injuries and working conditions,
the administrative judge found that testimony not credible. 0067 ID at 2-3,
12-13. In making his credibility findings, the administrative judge considered the
16 years between the appe llant’s resignation and her testimony about that
resignation, that contemporaneous records did not support her testimony, and that
documentary evidence altogether disproved some of her specific claims.
9
Id.; see Elder v. Department of the Air Force , 124 M.S.P.R. 12 , ¶ 24 (2016)
(finding it appropriate to assign greater weight to statements that were completed
closer in time t o the events in question); Hillen v. Department of the Army ,
35 M.S.P.R. 453, 458 (1987) (identifying factors relevant to credibility
determinations, including the contradiction of a witness’s version of events by
other evidence).
¶16 On review, the appellant reasserts that the agency failed to process
numerous OWCP claims that she completed during the months leading up to her
resignation and continuously assigned her to work in construction zones, contrary
to her medical limitations. E.g., 0067 PFR File, Tab 4 at 7 -9, 11, 13, 16 -17.
However, she has failed to identify any supportive documentation. Therefore, it
appears that the appellant i s relying solely on her testimony about these matters,
which the administrative judge generally found not credible. Although we have
considered the appellant’s arguments, we find no basis for disturbing the
administrative judge’s well -reasoned credibility findings. See Haebe v.
Department of Justice , 288 F.3d 1288 , 1301 (Fed. Cir. 2002) (recognizing that the
Board must defer to an administrative judge’s credibility determinations when
they are based, 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).
¶17 Although similarly unsupported by references to documentary evidence, the
appellant’s petition for review contains several allegations that lend further
support to the administrative judge’s conclusion that she failed to prove that her
resignation was substan tially related to her compensable injuries. The appellant
acknowledges applying for paralegal school that began in April 1999, not
attending at that time due to financial constraints, but attending soon after her
October 1999 resignation. 0067 PFR File, Tab 4 at 11. She also acknowledges
applying for “fiscal service” jobs in July 1999, months before her resignation, and
asserting that she “had never had a job commensurate with the management level
10
grade [she] had worked hard to get or the [education she] had attained.” Id. at 12.
Moreover, the appellant generally describes the assignment she received just
before her resignation as unsatisfactory, both because she was needed at her old
assignment and because there was insufficient work at the new assignm ent.
Id. at 14-16. These allegations suggest the appellant planned to resign or retire
from her nursing position with the agency for reasons other than her compensable
injuries.
¶18 The appellant argues that OWCP already determined that she was absent
from h er position due to a compensable injury and the administrative judge lacked
the authority to conclude otherwise. Id. at 21 (referencing 0067 IAF, Tab 10
at 12). However, in doing so, the appellant is mischaracterizing the content and
relevance of the let ter she references. That OWCP letter does evidence that the
appellant suffered a compensable injury. 0067 IAF, Tab 10 at 12; see Frye v.
U.S. Postal Service , 102 M.S.P.R. 695 , ¶ 9 (2006) (recognizing that a
compensable injury is defined as one that is accepted by OWCP as job -related and
for which medical monetary benefits are payable from the Employees’
Compensation Fund). The OWCP l etter does not, however, include any
conclusion, much less a binding conclusion, that the appellant separated as a
result of a compensable injury. 0067 IAF, Tab 10 at 12; see Minor v. Merit
Systems Protection Board , 819 F.2d 280 , 283 (Fed. Cir. 1987) (explaining that “a
decision of OWCP . . . ‘does not bind’ the [Board] acting within its own separate
statutory sphere of deciding the propriety of r estoration”).
¶19 Finally, the appellant asserts that the administrative judge disallowed a key
witness she requested. 0067 PFR File, Tab 4 at 24. When requesting this witness
(an agency official), the appellant indicated that he would be asked to testify
about a statemen t he made during settlement discussions. 0067 IAF, Tab 20 at 2.
His statement essentially suggested it was unlikely that the agency would
reemploy the appellant. Id. Although the appellant’s petition does not contain
any substantive argument as to why the witness should have been allowed, we
11
considered the administrative judge’s ruling and find no abuse of discretion.
See Ryan v. Department of the Air Force , 117 M.S.P.R. 362 , ¶ 5 (2012)
(recognizing that the Board will not reverse an administrative judge’s rulings on
discovery matters and the exclusion of witnesses, absent an abuse of discretion).
The offered testimony is not rele vant to the dispositive issue that is before us,
whether the appellant’s separation was substantially related to her on -the-job
injuries.
¶20 In sum, it was the appellant’s burden to prove all the elements of her
restoration claim. Supra ¶ 12. Although we ha ve considered her various
arguments on review, we find no basis for disturbing the administrative judge’s
conclusion that she failed to prove at least one —that she was abse nt due to a
compensable injury.7
On remand, the administrative judge must provide no tice and an opportunity to
prove any live discrimination or reprisal claim connected to this restoration
appeal.
¶21 Throughout her pleadings below, the appellant has also referenced
discrimination, 0067 IAF, Tab 1 at 3 -4, Tab 9 at 2-5, 8, Tab 17 at 2 -5, Tab 2 3
at 3-6, 9, 14, 17, and, to a lesser extent, reprisal, 0067 IAF, Tab 9 at 3, Tab 17
at 3, Tab 23 at 4. Notably, though, it is difficult to discern the extent to which
the appellant was raising cognizable discrimination and reprisal claims in
connection w ith this restoration appeal, as opposed to her merely describing
7 As discussed further, below, we are remanding the appellant’s discrimination and
retaliation claims. To the extent the adm inistrative judge suggested that such claims are
alternate ways to show that a denial of restoration was arbitrary and capricious, this
observation was incorrect. 0067 ID at 15 -16. After the initial decision was issued, we
clarified that the fact that an agency was motivated by discrimination or reprisal is
immaterial to the determination of whether it arbitrarily and capriciously denied
restoration. Cronin v. U.S. Postal Service , 2022 MSPB 13 , ¶ 21 . In any event, the
administrative judge’s observation is dicta here. He found, and we agree, that the
appellant failed to prove her separation was substantially related to her compe nsable
injury. 0067 ID at 12.
12
litigation history or other perceived improprieties unrelated to the restoration
matter before us.
¶22 To illustrate, in her initial pleading, the appellant alleged a number of facts
which “sug gest[] discrimination in addition to violating restoration rights.”
0067 IAF, Tab 1 at 3. But a subsequent pleading repeatedly invokes
“discrimination,” while appearing to do so for the sole purpose of describing a
history unrelated to any restoration cl aim. 0067 IAF, Tab 9 at 2-5, 8. Then, in a
later pleading, the appellant alleges that the “[a]gency simply refused to rehire”
her, “stating affirmatively and with discriminatory animus . . . that
‘reemployment is not an option.’” 0067 IAF, Tab 17 at 3. The appellant’s
petition for review contains more of the same. E.g., 0067 PFR File, Tab 4 at 5 -6,
10, 18.
¶23 The administrative judge did not adjudicate the merits of the appellant’s
discrimination or reprisal claims. 0067 ID at 15 -16. In light of subsequ ent
development in our case law, we remand these claims.
¶24 While this case was pending on review, we issued a decision clarifying that
the Board is required to adjudicate discrimination and reprisal claims raised in
connection with a restoration appeal over which, as here, it has jurisdiction.
Desjardin v. U.S. Postal Service , 2023 MSPB 6 , ¶¶ 20 -21. However, the pro se
appellant in this appeal has yet to be provided with proper notice of how to prove
discrimination or reprisal in connection with this restoration appeal. E.g., 0067
IAF, Tabs 2 -4, 18, 24 . In addition, it is evident that she did not abandon such
claims because, among other things, she repeatedly referenced them both below
and on review. See supra ¶ 21. Accordingly, we find that the appellant , who was
and remains pro se, has not waived the claims , and remand is required . See
Thurm an v. U .S. Postal Ser vice, 2022 MSPB 21 , ¶¶ 17-18 (providing a
nonexhaustive list of factors the Board will examine in determining whether an
appellant waived or abandoned a previously identified affirmative defense , thus
obviating the need to remand the appeal ); see also Burgess v. Merit Systems
13
Protection Board , 758 F.2d 641 , 643 -44 (Fed. Cir. 1985) ( stating that an
appellant must receive explicit information on what is required to establish an
appealable jurisdictional issue).
¶25 On remand, the administrative judge should give the appellant proper
notice, as well as an opportunity to clarify what, if any, discrimination and
reprisal claims she intended to present in connection with her restoration claim.
Compare Melnick v. Department of Housing and Urban Development ,
42 M.S.P.R. 93 , 97 (1989) (recognizing that pro se pleadings are to be liberally
construed), aff’d , 899 F.2d 1228 (Fed. Cir. 1990) (Table) , with Williams v. U.S .
Postal Service , 116 M.S.P.R. 377 , ¶ 11 (2011) (explaining that a lack of
representation does not excuse an appellant from comply ing with Board orders ).
The administrative judge must determine in the first instance whether the
appellant has raised any discrimination and reprisal claims connected to this
restoration appeal as to which she can and is seeking additional damages or
corrective action , such that those claims are not moot . See, e.g ., Jenkins v.
Environmental Protection Agency , 118 M.S.P.R. 161, ¶¶ 13 -14 (2012) (remanding
a removal appeal for adjudication of a whistleblower retaliation affirmative
defense that could result in additional relief, notwithstanding the Board’s reversal
of the removal for other reasons); Antonio v. Department of the A ir Force ,
107 M.S.P.R. 626 , ¶¶ 1, 6, 13-15 (2008) (remanding a removal appeal,
notwithstanding the agency’s rescission of the remo val, for adjudication of a
national origin discrimination claim that could result in additional relief, but not
an age discrimination claim that could not result in additional relief).
Depending on the nature of her clarified allegations, the administrati ve judge
must also determine whether the appellant is entitled to a supplemental hearing.
See Sabio v. Department of Veterans Affairs , 124 M.S.P.R. 161 , ¶ 28 (2017)
(explaining the limited circumstances in which when an administrative judge may
dispose of a discrimination affirmative defense without a hearing).
14
ORDER
¶26 For the reasons discussed above, we REMAND this case to the regional
office for further adjudication in accordance with this Remand Order.8
FOR THE BOARD:
Washington, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board
8 In the remand initial decision, the administrative judge sh ould incorporate his prior
findings that we have affirmed, along with our other findings herein . The remand
initial decision will include appeal rights for all cla ims. | MUHLEISEN_SHIRLEY_DE_0353_16_0067_I_1_REMAND_ORDER_2007882.pdf | 2023-03-02 | null | DE-0353 | NP |
3,436 | https://www.mspb.gov/decisions/nonprecedential/LEWIS_VERNA_NY_0752_13_0408_I_1_REMAND_ORDER_2007938.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
VERNA LEWIS,
Appellant,
v.
UNITED STATES POSTAL SERVICE,
Agency.
DOCKET NUMBER
NY-0752 -13-0408 -I-1
DATE: March 2, 2023
THIS ORDER IS NONPRECEDENTIAL1
Kavin L. Edwards , Esquire, New York, New York, for the appellant.
Donald Spector , Esquire, New York, New York, for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
Tristan L. Leavitt, Member2
REMAND ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
dismissed her appeal for lack of jurisdiction. For the reasons discussed below, we
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedentia l value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order 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 d eparture.
2
GRANT the appellant’s petition for review, VACATE the initial decision, and
REMAND the case to the regional office3 for further adjudication in accordance
with this R emand Order.
BACKGROUND
¶2 On August 6, 2013, the appellant filed an appeal challenging a denial of
restoration and an alleged involuntary retirement, and she raised allegations of
disability discrimination. Initial Appeal File (IAF), Tab 1 at 2. Attache d to her
appeal, she submitted a copy of a February 14, 2013 decision removing her from
her position, effective March 23, 2013, for inability to perform the essential
functions of her position . Id. at 44 -45. She also attached a copy of a July 3, 2013
final agency decision (FAD) concerning her equal employment opportunity (EEO)
complaint in which she alleged that the agency’s removal action constituted
disability discrimination. Id. at 13-39.
¶3 The administrative judge issued a jurisdictional order inform ing the
appellant of her burden of establishing jurisdiction over her alleged involuntary
disability retirement. IAF, Tab 7. After allowing the parties an opportunity to
respond and holding a status conference, the administrative judge issued an order
finding that, because the agency had not processed the appellant’s separation as a
retirement, the appeal was not an involunta ry disability retirement appeal but
rather a timely mixed -case appeal of the appellant’s removal for inability to
perform the essent ial functions of her position. IAF, Tab 15.
¶4 The case was subsequently reassigned to another administrative judge who,
after holding the requested hearing, issued an initial decision dismissing the
appeal for lack of jurisdiction. IAF, Tab 67 , Initial Dec ision (ID). The
administrative judge characterized the appellant’s appeal as an involuntary
3 On March 23, 2016, this appeal was reassigned from the New York Field Office to the
Northeastern Regional Office. IAF, Tab 43.
3
disability retirement appeal and found that such a claim “fails” becaus e “[i] n this
case, we do not have the requisite retirement.” ID at 4 -5. The administrative
judge also address ed the appellant’s claims of improper restoration, constructive
suspension, and disability discrimination. Regarding the appellant’s alleged
improper restoration, he found that the appellant failed to establish Board
jurisdiction becaus e it was undisputed that she had been restored to a part -time
position on or about April 4, 2005. ID at 2 -3. The administrative judge found
that the appellant’s constructive suspension claim failed because there was no
evidence that the agency was unwill ing to allow he r to work in accordance with a
modified work assignment she accepted on August 5, 2005. ID at 3 -4. Finally,
the administrative j udge found that the Board lacks jurisdicti on over the
appellant’s allegations of disability discrimination prio r to December 15, 2005,
because such claims had been resolve d via a settlement agreement the appellant
had entered into with the agency on December 15, 2005. ID at 5.
¶5 The appellant has filed a petition for review. Petition for Review (PFR)
File, Tab 1. The agency has opposed the appellant’s petition. PFR File, Tab 3.
DISCUSSION OF ARGUME NTS ON REVIEW
¶6 The Board has held that an initial decision must identify all material issues
of fact and law, summarize the evidence, resolve issues of credibility, and i nclude
the administrative judge’ s conclusions of law and his legal reasoning, as well as
the authorities on which that reasoning rests. Spithaler v. Office of Personnel
Management , 1 M.S.P.R. 587 , 589 (1980) ; 5 C.F.R. § 1201.111 (b). If any of
these items is missing or substantially incomplete, the Board will remand the
appeal to the administrative judge for modification. Miller v. U.S. Postal Service ,
117 M.S.P.R. 557 , ¶ 14 (2012). Based on our r eview of the record, we find that
the initial decis ion fails to meet this standard.
¶7 The record reflects that, at the beginning of the hearing, the administrative
judge identified for the record the issues in this appeal as whether the agency
4
properly separ ated the appellant effective March 23, 2013 , by a letter of decision
dated February 14, 2013, and if not, was the agency’s failure because of the
appellant’s disability in violation of the Rehabilitation Act , 29 U.S.C. § 701 .
IAF, Tab 64, Hearing Compact Disc (HCD) at 9:11 (statement of the
administrative judge) . This is consistent with the administrative judge’s order
and summary of p rehearing conference. IAF, Tab 58. However, t he
administrati ve judge did not address the merits of the appellant’ s removal in the
initial decision. Instead, he found that the Board lacks jurisdiction over the
appeal as an involunta ry disability retirement appeal because the appellant had
not retired. ID at 5 . The initial decision fails to acknowledge the prior Board
order finding jurisdiction over the appellant’s appeal as a mixed -case removal
appeal , IAF , Tab 15, or provide any indication that the order had been overruled
or modified . Accordingly, o n remand, th e administrative judge shall adjudicate
the merits of the appellant’s removal for inability to perform the essential
functions of her position .4 The administrative judge shall also adjudicate the
appellant’s affirmative defense of disability discriminatio n.
¶8 Regarding the appellant’s improper restoration and constructive suspension
claims, p rior to holding a hearing, the record was not developed as to the nature
of these claims or whether the appellant had raised nonfrivolous allegations of
Board jurisdicti on entitling her to a hearing. Further, despite holding a hearing,
the initial decision fails to explain the factual background surrounding these
claims, including the relevant time periods for which the appellant contends she
4 A Postal Service employee has a right to appeal an adverse action to the Board if she
(1) is a preference el igible, a management or supervisory employee, or an employee
engaged in personnel work in other than a purely nonconfidential clerical capacity, and
(2) has completed 1 -year of current continuous service in the same or similar position.
39 U.S.C. § 1005 (a)(4)(A); 5 U.S.C. § 7511 (a)(1)(B)(ii); Clark v. U.S. Postal Service ,
118 M.S.P.R. 527 , ¶ 7 (2012). Although the order fin ding jurisdiction did not address
this issue, the record appears to reflect that, at the time of her removal, the appellant
had been employed a s a Supervisor, Customer Service, since 1986. IAF, Tab 1 at 1, 19,
47-49, Tab 48 at 12, HCD (testimony of the appellant).
5
was constructively suspended and denied restoration. Also unclear in the initial
decision is whether the administrative judge’s finding that such claims “fail”
refers to jurisdictional determinations versus the merits of such claims. ID at 3-4.
¶9 On review, the appellant appears to argue that following a recurrence of her
compensable injury on June 8, 2006 , she was constructively suspended after the
agency failed to accommodate her by providing ergonomic equipment or
reassigning her . PFR File, Tab 1 at 6 -13. She contends that during this time sh e
was required to use sick and annual leave against her will and placed on leave
without pay . Id. at 6, 12. She also appears to contend that she was effectively
denied restoration because the agency failed to provide her with requested
ergon omic equipment when it restored her on or about April 4, 2005 . Id. at 6.
However, because the record was not developed, o n remand, the administrative
judge should clarify the n ature of the appellant’s restoration and constructive
suspension claims, inclu ding the relevant time period s.5 The administ rative judge
shall also consider the appellant’s allegation s of disability discrimination in
connection with her alleged constructive suspension and denial of restoration.6
5 Although the exact nature of the appellant’s claims is somewhat unclear, in some
contexts, when the facts could give rise to both a constructive suspension claim
and a restoration claim, the Board has found that the constructive suspension
claim should be subsumed into the restoration claim. Kinglee v. U.S. Postal
Service , 114 M.S.P.R. 473 , ¶¶ 19-22 (2010). In a similar vein, when facts give
rise to both an enforced leave and restoration claim, the enforced leave claim is
subsumed into the restoration claim. Jenkins v. U.S. Postal Service , 2023 MSPB
8, ¶ 12.
6 The administrative judge found that the Board lacks jurisdiction to consid er the
appellant’s claims of discrimination prior to December 15, 2005 , based on a settlement
agreement she entered into on that date , resolving an October 13, 2005 informal EEO
complaint . ID at 5. The appellant’s informal EEO complaint , however, does no t appear
to be related to her discrimination claims at issue in this a ppeal. IAF, Tab 12 at 51 -56.
According to the agency , this complaint concerned “working conditions ,” and not the
appellant’s request for ergonomic equipment or reasonable accommodation . Id. at 10.
According to th e appellant, the earlier discrimination claims concerned the disrespectful
manner in which an agency representative spoke with her and the agency’s failure to
pay her on September 5, 2005. PFR File, Tab 1 at 14.
6
See, e.g., Desjardin v. U.S. Postal Service , 2023 MSPB 6 , ¶ 21 (outlining the
manner in which to adjudicate a claim of discrimination in a restoration appeal);
Bean v. U.S. Postal Service , 120 M.S.P.R. 397 , ¶¶ 8, 14 -15 (2013) (explaining
that various fact patterns may give rise to an appe alable constructive suspension,
including a situation in which an appellant claims that he was compelled to take
leave because the agency improperly failed to accommodate his medical
condition); Foley v. U.S. Postal Service , 90 M.S.P.R. 206 , ¶ 6 (2001) (stating that
a claim that restoration was effectively denied may involve allegations that a
partially recovered appellant is incapab le of performing the job duties of the
position to which he was restored ).
¶10 Finally , in assessing the appellant’s restoration appeal, t he administr ative
judge applied the nonfrivolous jurisdictional standard set forth in the Board’s
revised regulation , 5 C.F.R. § 1201.57 (a)(4), (b), which is applicable to
restoration appeals fil ed on or after March 30, 2015. ID at 2 -3; see Kingsley v.
U.S. Postal Service , 123 M.S.P.R. 365 , ¶ 10 (2016). However, b ecause the
appellant filed her Board appeal on August 6, 2013, prior to the effective date of
the Board’s revised regulation , she was required to make nonfrivolous allegations
of jurisdiction to obtain a jurisdictional hearing at which she was required to
prove jurisdiction by preponderant evidence. Bledsoe v. Merit Systems Protection
Board , 659 F.3d 1097 , 1102 -04 (Fed. Cir. 2011) . Accordingly, on remand, the
administrative judge shall assess the appellant’s restoration claim under the
prepo nderant evidence standard.
7
ORDER
¶11 For the re asons discussed above, we remand this case to the regional office
for further adjudication in accordance with this Remand Order.
FOR THE BOARD:
Washington, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board | LEWIS_VERNA_NY_0752_13_0408_I_1_REMAND_ORDER_2007938.pdf | 2023-03-02 | null | NY-0752 | NP |
3,437 | https://www.mspb.gov/decisions/nonprecedential/ZIENCIK_LAURA_L_PH_0831_17_0327_I_1_FINAL_ORDER_2007954.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
LAURA L. ZIENCIK,
Appellant,
v.
OFFICE OF PERSONNEL
MANAGEMENT,
Agency.
DOCKET NUMBER
PH-0831 -17-0327 -I-1
DATE: March 2, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL1
Laura L. Ziencik , Berlin, Maryland, pro se.
Carla Robinson , 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 filed a petition for review of the initial decision, which
found that she was not entitled to survivor benefits under the Civil Service
1 A nonprecedential order is one that the Board has determined does not add
significantly to the 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
Retirement System (CSRS). Generally, we grant petitions such as this one only
in the following circum stances: the initial decision contains erroneous findings
of material fact; the initial decision is based on an erroneous interpretation of
statute or regulation or the erroneous application of the law to the facts of the
case; the administrative judge’s rulings during either the course of the appeal or
the initial decision were not consistent with required procedures or involved an
abuse of discretion, and the resulting error affected the outcome of the case; or
new and material evidence or legal argument is available that, despite the
petitioner’s due diligence, was not available when the record closed. Title 5 of
the Code of Federal Regulations, section 1201.115 ( 5 C.F.R. § 1201.115 ). After
fully considering the filings in this appeal, we conclude that the petitioner has not
established any basis under section 1201.115 for granting the petition for review.
Therefore, we DENY the petition for review and AFFIRM the initial decision,
which is now the Board’s final decision. 5 C.F.R. § 1201.113 (b).
¶2 We agree with the administrative judge’s conclusion in the initial decision
that the appellant failed to meet her burden of proving by preponderant evidence
that she was entitled to survivor benefits under the CSRS .3 Cheeseman v. Office
of Personnel Management , 791 F.2d 138 , 140 -41 (Fed. Cir. 1986) (finding that
the burden of proving entitlement to a survivor annuity is on the applicant for
benefits) ; Initial Appeal File (IAF), Tab 6, Initial Decision (ID) . Specifically, the
appellant did not d emonstrate that her now-deceased husband’s income was below
the earning limitation amount when the Office of Personnel Management ( OPM )
terminated his disability retirement annuity for regaining earning capacity, nor
did she prove that this annuity was reinstated prior to his death. ID at 4-5; see
White v. Office of Personnel Management , 72 M.S.P.R. 672 , 674-75 (1996)
(finding that a widow of a disabilit y annuitant was not entitled to a survivor
3 Preponderan t evidence is defined as 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).
3
annuity, as the annuitant regained earning capacity but died before having his
disability annuity reinstated) . Relatedly, the appellant’s husband did not file for a
deferred retirement annuity when he became elig ible at age 62, nor was he
receiving any other benefit under the CSRS at the time of his death . ID at 2-3;
IAF, Tab 4 at 4-5; see Dickerson v. Office of Personnel Management , 47 M.S.P.R.
109, 111, 11 3-14 (1991) (holding that the appellant was not entitled to a survivor
annuity, as her former husband, who retir ed on a disability annuity and recovered,
had not filed for his deferred annuity and was not receiving payments under the
CSRS when he died) . Lastly, there were no retirement deductions left in her
husband’s account, meaning there was no lump sum payment to be made by OPM
to the appellant , as the survivor, after her husband’s death . IAF, Tab 4 at 7, 9;
see 5 U.S.C. § 8342 (d); Narvasa v. Office of Personnel Management , 47 M.S.P.R.
152, 154 (1991).
¶3 The appellant alleges on review that she ha d power of attorney for her
husband and could have signed an application for reinstatement of his annuity
when he was unable . Petition for Review (PFR) File, Tab 1 at 4. The appellant
did not raise this argument during the adjudication of her appeal before the
administrative judge. The Board generally will not consider an argument raised
for the first time in a petition for review absent a showing that it is based on new
and material evidence not previously available despite the party’s due diligence.
Banks v. Department of the Air Force , 4 M.S.P.R. 268 , 271 (1980). There has
been no showing of these circumstances here; thus, we need not consider the
appellant’s argument. Notwithstanding, as the initi al decision concludes, the
appellant failed to meet her burden of proving that her husband was ever eligible
for and applied for reinstatement of his disability annuity after its termination in
2006. ID at 4-5. The appellant now claim ing that she possess ed power of
attorney for him does not alter this outcome. Moreover, the appellant cannot now
make an election for survivor benefits on behalf of her late husband. See Diehl v.
Office of Personnel Management , 50 M.S.P.R. 519 , 522 (1991) (holding that no
4
election for a survivor annuity can be made after the death of the Federal
employee ).
¶4 On review , the appellant also claims that her husband had his annuity
reinstated before he died and took less of an amount to provide for her. PFR File,
Tab 1 at 4. This is the same argument that the appellant set forth during her
initial appeal and which the adm inistrative judge found that she failed to prove .
ID at 5; IAF, Tab 1 at 5. The appellant has not provided any evidence to support
her argument , and there is no basis to overturn the initial decision .
¶5 The appellant also states on review that as the Federal employee’s wife for
36 years, she is entitled to his annuity. PFR File, Tab 1 at 4. However, the
appellant’s deceased husband was not receiving an annuity at the time of his
death. IAF, Tab 4 at 4 -5. It is well settled that the requirements f or eligibility for
a retirement benefit are substantive legal requirements, meaning there is no room
for administrative dis cretion from OPM or the Board. Oliveros v. Office of
Personnel Management , 49 M.S.P.R. 360 , 363 (1991) , appeal dismissed , 965 F.2d
1064 (Fed. Cir. 1992 ) (Table) ; see Office of Personnel Management v. Richmond ,
496 U.S. 414 , 416, 434 (1990) (holding that a Government employee’s erroneous
advice to a claimant for benefits did not entitle that claimant to benefits he
otherwise would not have received, despite the claimant’s detrimental reliance on
that mistaken advice). While we are sympathetic to the appellant’s situation, she
has not proven that she was entitled to a CSRS benefit pursuant to any law or
regulatio n.
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
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
review and the ap propriate forum with which to file. 5 U.S.C. § 7703 (b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on whi ch option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immedi ately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of th e three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition 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.
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 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. ____ , 137 S. Ct. 1975 (2017). If you have a
representative in this case, and your representative rece ives this decision before
you do, then you must file with the district court no later than 30 calendar days
after your representative receives this decision. If the action involves a claim of
discrimination based on race, color, religion, sex, national or igin, or a disabling
condition, you may be entitled to representation by a court -appointed lawyer and
to waiver of any requirement of prepayment of fees, costs, or other security. See
42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the 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
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 rep resentative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EE OC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2 302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.5 The court of appeals must receive your pe tition for
5 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
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 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.
July 7, 2 018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court 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 websit es, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD:
Washington, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board | ZIENCIK_LAURA_L_PH_0831_17_0327_I_1_FINAL_ORDER_2007954.pdf | 2023-03-02 | null | PH-0831 | NP |
3,438 | https://www.mspb.gov/decisions/nonprecedential/CASSARELLA_CHERYL_ANN_NY_0752_20_0129_I_1_FINAL_ORDER_2007959.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
CHERYL ANN CASSARELL A,
Appellant,
v.
DEPARTMENT OF THE NA VY,
Agency.
DOCKET NUMBER
NY-0752 -20-0129 -I-1
DATE: March 2, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL1
Chungsoo J. Lee , Feasterville , Pennsylvania, for the appellant.
Paulette D. Jenkins , Esquire, Beaufort, South Carolina, for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
FINAL ORDER
¶1 The appellant has petitioned for review of the July 21, 2020 initial decision
in this appeal. Initial Appeal File, Tab 36, Initial Decision ; 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 “ NEGOTIATED SETTLEMENT AGREEMENT” signed and dated by
the appellant on February 13, 2023, and by the agency on February 15, 2023.
PFR File, Tab 5 at 7. The document pr ovides, among other things, that the
appellant would withdraw her MSPB 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 whet her they intend to have the agreement entered into the record for
enforcement by the Board. See Mahoney v. U.S. Postal Service , 37 M.S.P .R.
146, 149 (1988). In addition, before accepting a settlement agreement into the
record for enforcement purposes, the Board must determine whether the
agreement is lawful on its face and whether the parties freely entered into it. See
Massey v. Office of Personnel Management , 91 M.S.P.R. 289 , ¶ 4 (2002),
overruled on other grounds by Delorme v. Department of the Interior ,
124 M.S.P.R. 123 , ¶¶ 11 -21 (2017) (holding that the Board may enforce
settlement agreements that have been entered into the recor d, independent of any
prior finding of Board jurisdiction over the underlying matter being settled).
¶4 Here, we find that the parties have entered into a settlement agreement,
understand its terms, and agree that the agreement will be entered into the reco rd
for enforcement by the Board. PFR File, Tab 5 at 5 -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 th at the agreement is lawful on its face and freely entered into, and we
accept the settlement agreement into the record for enforcement purposes.
¶5 This is the final decision of the Merit Systems Protection Board in this
appeal. Title 5 of the Code of Fede ral Regulations, section 1201.113 ( 5 C.F.R.
§ 1201.113 ).
3
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 part y 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.
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
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S .
Court of Appeals for the Federal Circuit, which must be received by the court
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
5
receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. ____ , 137 S. Ct. 1975 (2017). If you have a
representative in this case, and your representative receives this decision before
you do, then you must file with the district court no later than 30 calendar days
after your representative receives this decision. If the action involves a claim of
discrimination based on race, color, religion, sex, national origin, or a disabling
condition, you may be entitled to representation by a court -appointed lawyer and
to waiver of any requirement of prepayment of fees, costs, or other security. See
42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscou rts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative 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 protecte d activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited pe rsonnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or an y court of appeals of
competent jurisdiction.3 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
3 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit 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
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained with in the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for infor mation regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtW ebsites.aspx .
FOR THE BOARD:
Washington, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board | CASSARELLA_CHERYL_ANN_NY_0752_20_0129_I_1_FINAL_ORDER_2007959.pdf | 2023-03-02 | null | NY-0752 | NP |
3,439 | https://www.mspb.gov/decisions/nonprecedential/LEE_EDWARD_DC_0752_16_0802_I_1_FINAL_ORDER_2006630.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
EDWARD LEE,
Appellant,
v.
DEPARTMENT OF HEALTH AND
HUMAN SERVICES,
Agency.
DOCKET NUMBER
DC-0752 -16-0802 -I-1
DATE: February 28, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL1
Edward Lee , Seat Pleasant, Maryland, pro se.
Vinayak S. Nain , Washington, D.C., for the agency.
BEFORE
Cathy A. Harris , Vice Chairman
Raymond A. Limon , Member
Tristan L. Leavitt , Member
FINAL ORDER
¶1 The appell ant has filed a petition for review of the initial decision, which
dismissed his involuntary resignation appeal for lack of jurisdiction after he
withdrew his 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.
Therefore, we DENY the petition for review . Except as expressly MODIFIED to
dismiss the appeal as withdrawn instead of for lack of jurisdiction, we AFFIRM
the initial decision .
DISCUSSION OF ARGUME NTS ON REVIEW
¶2 The appellant, a GS -9 Program Specialist, resigned from his position
effective October 1, 2015. Initial Appeal File (IAF), Tab 2 at 2. On August 15,
2016, he filed a Board appeal, alleging that his resignation was involuntary. IAF,
Tabs 1, 6. On September 24, 2016, the appellant filed a pleadi ng titled
“Withdraw [sic] of appeal” through the Board’s e -Appeal Online system, which
stated , “Please withdraw my appeal.” IAF, Tab 16 at 3. On September 26, 2016,
the administrative judge issued an initial decision finding that the appellant had
reques ted to withd raw his appeal, which removed the appeal from the Board’s
jurisdiction, and dismissing the appeal for lack of jurisdiction. IAF, Tab 17,
Initial Decision.
¶3 Approximately 3 weeks later, t he appellant filed a request to reopen an
appeal dismiss ed without prejudice and a petition for review of the initial
decision. Petition for Review (PFR) File, Tabs 1 -2. In both filings, he asserts
that his request to withdraw his appeal was filed in error and requests that his
3
case be reopened. PFR File, Tab 1 at 3, Tab 2 at 3-4. He also asserts that he was
“not allowed to speak with the judge and the agency representative via phone as
previously told.” PFR File, Tab 2 at 3.
¶4 An appellant’ s withdrawal of an appeal is an act of finality that removes the
appeal from the Board’ s jurisdiction. Lincoln v. U.S. Postal Service ,
113 M.S.P.R. 486 , ¶ 7 (2010) . Generally, the Board will not reinstate a
withdrawn appeal absent unusual circumstances , such as misinformation or new
and material evidence . Page v. Department of Transportation , 110 M.S.P.R. 492 ,
¶ 5 (2009). A voluntary withdrawal , however, must be clear, decisive, and
unequivocal. Id.
¶5 The record reflects that the appellant unequivocally expressed his intent to
withdraw the appeal when he submitted a pleading through the e -Appeal Online
system informing the administrative judge that he wished to withdraw his appeal.
IAF, Tab 16 at 3. Our review of the record does not reveal any unusual
circumstances that would warrant reinstating the appeal, and the appellant has not
alleged any unusual circumstances in his petition for review or in his request to
reopen. Rather, weeks later and without explanation, he merely asserts that his
request to withdraw his appeal was submitted in error.
¶6 In light of the above, we f ind no basis to reinstate the appellant’s withdrawn
appeal . To be consistent with the Board’s usual practice of dismissing withdrawn
appeals as withdrawn rather than for lack of jurisdiction , we modify the initial
decision to dismiss the appeal as withdra wn. E.g., Lincoln , 113 M.S.P.R. 486 ,
¶ 8. Further, we deny his request to reopen an appeal dismissed without prejudice
because , as discussed above, his appeal was not dismissed without prejudice.
4
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 r eview and the appropriate
forum with which to file. 5 U.S.C. § 7703 (b). Although we offer the following
summary of available appeal rights, the Meri t Systems Protection Board does not
provide leg al 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, y ou should immediately review the law applicable to your
claims and carefully follow all filing time limits and requirements. Failure to file
within the applicable time limit may result in the dismissal of your case by your
chosen forum.
Please read care fully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be 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. 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. ____ , 137 S. Ct. 1975 (2017). If you have a
representative in this case, and your representative rece ives this decision before
you do, then you must file with the district court no later than 30 calendar days
after your representative receives this decision. If the action involves a claim of
6
discrimination based on race, color, religion, sex, national or igin, or a disabling
condition, you may be entitled to representation by a court -appointed lawyer and
to waiver of any requirement of prepayment of fees, costs, or other security. See
42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1) . You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 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
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 des cribed in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.3 The court of appeals 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
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 websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD:
Washington, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board | LEE_EDWARD_DC_0752_16_0802_I_1_FINAL_ORDER_2006630.pdf | 2023-02-28 | null | DC-0752 | NP |
3,440 | https://www.mspb.gov/decisions/nonprecedential/KIM_MAURICE_SF_3443_17_0063_I_1_FINAL_ORDER_2006641.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
MAURICE KIM,
Appellant,
v.
DEPARTMENT OF THE AI R FORCE,
Agency.
DOCKET NUMBER
SF-3443 -17-0063 -I-1
DATE: February 28, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL1
Maurice Kim , APO /AP, pro se.
Jeremiah Cr owley and Caroline Raines Greenfield , Joint Base Andrews,
Maryland, for the agency.
BEFORE
Cathy A. Harris , Vice Chairman
Raymond A. Limon , Member
Tristan L. Leavitt , 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
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 appe al 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 thi s 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 October 30, 2016, the appellant filed an appeal in which he asserted that
the agency used an unfair selection process to fill a position for which he applied.
Initial Appeal File (IAF), Tab 1. Because it appeared that the Board lacked
jurisdiction over the appeal, the administrative judge issued an acknowledgment
order in which she informed the appellant that the Board generally lacks
jurisdiction over appeals o f non selections. IAF, Tab 2 at 2. She further informed
the appellant that there are several exceptions to this rule : namely , an appeal of
an employment practice under 5 C.F.R. § 300.103 , a suitability appeal under
5 C.F.R. § 731.104 , an individual right of action (IRA) appeal o f a personnel
action taken in retaliation for a protected disclosure or other protected activ ity, an
appeal under the Uniformed Services Employment and Reemployment Rights Act
of 1994 (USERRA) , and an appeal under the Veterans Employment Opportunities
Act of 1998 (VEOA). Id. at 2 -6. She informed the appellant how he may
establish jurisdiction ov er each of these types of appeals, and she ordered him to
file evidence and argument establishing jurisdiction over his appeal. Id.
¶3 In response, the appellant submitted a letter from the Department of
Veterans Affairs stating that he is entitled to veter ans’ preference. IAF, Tab 5
at 4. He also submitted a statement in which he alleged that the selectee for the
3
position in question was not preference eligible and was less qualified for the
position than he was and that he believed the selection process was tainted by
favoritism. Id. at 5.
¶4 After considering the parties’ submissions, the administrative judge issued
an initial decision on the written record in which she dismissed the appeal for
lack of jurisdiction. IAF, Tab 7, Initial Decision (ID) at 1, 3. She determined
that the appellant did not make any allegations of jurisdiction under any of the
authorities she identified in the acknowledgment order. ID at 3. She found that
the appellant was instead appealing the decisi on to select someone else on the
basis that the selectee was less qualified and that therefore the Board lacked
jurisdiction over the appeal. Id.
¶5 On review, the appellant asserts that the selection process violated
Department of Defense rules pertaining to overseas civilian employment and
priority placement. Petiti on for Review File, Tab 1 at 4 -5. However, he does not
raise any specific challenge s to the initial decision. Id. It is well settled that the
Board lacks juris diction over an appellant’s non selection for a position. Becker v.
Department of Veterans Affairs , 112 M.S.P.R. 516 , ¶ 5 (2009). Moreover, the
record fully sup ports the administrative judge’s finding that the appellant failed
to raise any allegations that would establish jurisdiction over this appeal as an
employment practices case, a suitability appeal, an IRA appeal, a USERRA
appeal, or a VEOA appeal. ID at 2 -3. Even if, as the appellant argues on review,
the agency violated its own procedures during the selection process , that does not
confer jurisdiction on the Board because , as previously stated , the underlying
action, a non selection, is not within the Boa rd’s jurisdiction.
¶6 Accordingly, we find that the administrative judge correctly dismissed this
appeal for lack of jurisdiction .
4
NOTICE OF APPEAL RIG HTS2
You may obtain review of this final decision. 5 U.S.C. § 7703 (a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703 (b).
Although we of fer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rul e regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file withi n the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whe ther a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition f or review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
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
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. ____ , 137 S. Ct. 1975 (2017). If you have a
representative in this case, and your representative rece ives this decision before
you do, then you must file with the district court no later than 30 calendar days
after your representative receives this decision. If the action involves a claim of
discrimination based on race, color, religion, sex, national or igin, or a disabling
condition, you may be entitled to representation by a court -appointed lawyer and
6
to waiver of any requirement of prepayment of fees, costs, or other security. See
42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancem ent Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
7
disposition of allegations of a prohibited personnel practice described in sec tion
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent j urisdiction.3 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D .C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
3 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit 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/C ourtWebsites.aspx .
FOR THE BOARD:
Washington, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board | KIM_MAURICE_SF_3443_17_0063_I_1_FINAL_ORDER_2006641.pdf | 2023-02-28 | null | SF-3443 | NP |
3,441 | https://www.mspb.gov/decisions/nonprecedential/GWYNN_GEORGE_DC_0432_16_0865_I_1_FINAL_ORDER_2006652.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
GEORGE GWYNN,
Appellant,
v.
DEPARTMENT OF THE TR EASURY,
Agency.
DOCKET NUMBER
DC-0432 -16-0865 -I-1
DATE: February 28, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL1
George Gwynn , Alexandria, Virginia, pro se.
Byron D. Smalley , Esquire, and Davina Minnix , Washington, D.C., for the
agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
Tristan L. Leavitt, Member
FINAL ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
affirmed his reduction in grade and pay under 5 U.S.C. chapter 43. Generally, we
grant petitions such as this one only in the following circumstances: the initial
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedent ial orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c).
2
decision 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 filings in
this appeal, we conclude that the petitioner has not established any basis under
section 1201.115 for granting the petition for review. Therefore, we DENY the
petition for review. Except as expressly MODIFIED regarding the agency’s
burden of p roof and the appellant’s affirmative defense of retaliation for equal
employment opportunity (EEO) activity , we AFFIRM the initial decision.
BACKGROUND
¶2 The appellant was an IR -0501 -5 Supervisory Individual Taxpayer Specialist
(ITS) for the agency , a position that he held from about 2006. Initial Appeal File
(IAF), Tab 1 at 1, Tab 7 at 15, Tab 41 at 67. In this position, the appellant was
responsible for running the daily operations of Taxpayer Assistance Centers
(TAC s) in Fredericksburg and Bailey’s C rossroads (in Fairfax County), Virginia.
IAF, Tab 9 at 54, Tab 40 at 4, Tab 41 at 109. He worked under a performance
plan with six critical elements. IAF, Tab 40 at 95 -98. His performance year ran
from October 1 through September 30. Id. at 95.
¶3 In Oct ober 2013, a new Territory Manager became the appellant’s
first-level supervisor. Id. at 58. Shortly thereafter, beginning in November 2013,
the appellant was hospitalized and took approximately 2 months of medical leave.
IAF, Tab 1 at 28, Tab 40 at 66 -67. By all accounts, the appellant’s relationship
with the Territory Manager soon became rocky. On May 20, 2014, the Territory
3
Manager issued the appellant a memorandum of counseling, criticizing the way
he was managing his subordinates and recommending that he either change his
management practices or return to a nonsupervisory position. IAF, Tab 40 at 81.
The appellant filed an informal EEO complaint in June 2014, seeking rescission
of the memorandum. IAF, Tab 7 at 29-30. The complaint went to media tion, but
when no settlement resulted, the appellant elected not to pursue it any further.
Id. at 29. The Territory Manager continued to criticize the appellant’s
performance both formally and informally throughout the year, including issuing
seven addit ional memoranda of counseling; the appellant variously attempted to
address or rebut the Territory Manager’s concerns. IAF, Tab 7 at 29-53, Tab 30
at 387 -97.
¶4 In the spring of 2015, the Territory Manager issued the appellant a poor
midyear progress review and placed him on a 60 -day performance improvement
plan (PIP). IAF, Tab 9 at 24 -31, 52 -58. The appellant filed another EEO
complaint challenging the Territory Manager’s actions, and alleging
discrimination based on race, color, and sex, and retaliation for his prior informal
EEO complaint. IAF, Tab 30 at 369. In the April 30, 2015 PIP notice, the
Territory Manager set forth the appellant’s performance standards and explained,
with examples, how he failed to meet performance expectations during the firs t
half of the 2014 -2015 performance year in the following three critical elements :
(1) Leadership and Human Capital Management, (2) Customer Service and
Collaboration, and (3) Program Management. Id. at 52-56. She informed the
appellant that he would ha ve 60 days to bring his performance to a minimally
successful level, and that his failure to do so could result in an adverse
employment action, including a reduction in grade. Id. at 58. The Territory
Manager listed numerous improvements that the appell ant needed to make du ring
the PIP period in order to demonstrate acceptable performance, as well as nine
specific “action items ,” i.e. , discrete tasks that the appellant needed to
accomplish during the PIP period. Id. at 56 -58. Some of these action items were
4
to be implemented immediately, with the others to be accomplished by
May 15 or 30, 2015, as specified. Id.
¶5 However, on June 4, 2015, before the end of the PIP period, the appellant
underwent emergency surgery and went on extended medical leave until
November 2, 2015. IAF, Tab 41 at 116. Upon his return, the appellant presented
the Territory Manager with a letter from his doctor, stating that he was cleared
for duty but would need frequent bathroom breaks, standing breaks, and an
opportunity to tele commute, especially after pain -related medical appointments.
IAF, Tab 40 at 70, Tab 41 at 35. The Territory Manager informed the appellant
that the standing and bathroom breaks were no problem, but in light of his
performance issues, she denied his reque st to telecommute. IAF, Tab 40
at 70-71. Instead, she informed the appellant that she would allow him to take
leave whenever necessary for his medical appointments. Id. at 71. After taking
some time to transition back to work, the appellant resumed the full range of his
regular supervisory duties on November 30, 2015. Id. at 70.
¶6 Because the appellant started his leave about half way into his 60 -day PIP,
the agency afforded him an additional 30 days, from December 1 through 30,
2015, to demonstrate acce ptable performance. IAF, Tab 9 at 32, Tab 30 at 364,
Tab 40 at 60, Tab 41 at 111. Action items previously due on May 15, 2015, were
now due on December 15, 2015, and action items previously due on May 30,
2015, were now due on December 30, 2015. IAF, Ta b 9 at 32. At the close of
the PIP period, the Territory Manager determined that the appellant had
successfully completed only seven of the 17 PIP tasks that she had assigned him.
IAF, Tab 30 at 364-67, Tab 40 at 61-69. She therefore recommended that th e
appellant be removed from his position. IAF, Tab 30 at 367.
¶7 On March 25, 2016, the appellant’s second -line supervisor proposed his
reduction in grade to GS -11 Senior Taxpayer Advisory Specialist based on
inadequate performance in each of the three criti cal elements underlying the PIP.
IAF, Tab 8 at 159 -67. The appellant filed a third EEO complaint that same day.
5
IAF, Tab 41 at 129. After the appellant replied to the proposal letter, his
third -line supervisor issued a decision on August 19, 2016, sust aining all the
charges and specifications and effecting the proposed reduction in grade. IAF,
Tab 7 at 22 -24. On September 4, 2016, the appellant was reduced in grade and
pay from IR -05 Supervisory Individual Tax Advisory Specialist, with an adjusted
salary of $94,453, to GS -11 Individual Taxpayer Advisory Specialist, with an
adjusted salary of $77,579. Id. at 15.
¶8 The appellant filed a Board appeal and waived his right to a hearing. IAF,
Tabs 1, 38. He challenged the merits of the agency’s action and r aised several
affirmative defenses, including disability discrimination and retaliation for EEO
activity. IAF, Tab 32 at 3 -4. After the close of the record, the administrative
judge issued an initial decision, affirming the agency’s action and finding th at the
appellant failed to prove his affirmative defenses. IAF, Tab 42, Initial Decision
(ID). The appellant has filed a petition for review, again contesting the merits of
the agency’s action, and disputing the administrative judge’s findings on his
disability discrimination and EEO retaliation claims.2 Petition for Review (PFR)
File, Tab 4. The agency has filed a response to the petition for review, PFR File,
Tab 6, and the appellant has filed a reply to the agency’s response,3 PFR File,
Tab 7.
2 The initial decision reflects that the appellant also raised affirmative defenses of
harmful procedural error or violation of due process and discrimination based on race,
color, and sex. ID at 21 -25. Although the record shows that the appellant raise d a
harmful procedural error or due process defense, IAF, Tab 1 at 8, Tab 29 at 6 -7, we
were unable to find any clear indication that he attempted to raise a discrimination
claim under Title VII. In any event, t he administrative judge found that the appellant
did not prove any of these claims, and the appellant does not contest the administrative
judge’s findings on review. ID at 21 -25; see 5 C.F.R. § 1201.115 (“The Board normally
will consider only issues raised in a timely filed petition or cross petition for review.”).
Therefore, we will not address these claims further.
3 After the close of the record on review, the appellant submitted a motion for leave to
file additional evidence in the form of “documents/evidence that refutes several of the
agency’s reasons for demoting the appellant.” PFR File, Tab 9. The appellant explains
6
ANALYS IS
The agency has proven its case by substantial evidence.
¶9 Before removing an employee for unacceptable performance under 5 U.S.C.
chapter 43, an agency must satisfy certain procedural requirements. See 5 C.F.R.
§§ 432.104 -432.105. Consequently, the agency’s case in chief consists of
numerous elements, each of which it must prove by substantial evidence. See
5 C.F.R. § 1201.56 (b)(1)(i). The Board’s case law has not been particularly
consistent in describing these elements of proof, and the Board has rendered
various formulations of them over the years. Compare, e.g. , White v. Department
of Veterans Affairs , 120 M.S.P.R. 405 , ¶ 5 (2013) , with Muff v. Department of
Commerce , 117 M.S.P.R. 291 , ¶ 5 (2012) , and Gonzalez v. Department of
Transportation , 109 M. S.P.R. 250 , ¶ 6 (2008) , and Belcher v. Department of the
Air Force , 82 M.S.P.R. 230 , ¶ 4 (1999) , and Kadlec v. Department of the Ar my,
49 M.S.P.R. 534 , 539 (1991). The administrative judge in this case used yet
another formulation of the agency’s burden as set forth in Brosseau v.
Department of Agriculture , 97 M.S.P.R. 637 , ¶ 20 (2003), according to which the
agency must show that (1) the Office of Personnel Management (OPM) has
approved the agency’s performance appraisal system; (2) the appellant’s
performance standards were communicated to him; (3) the appellant failed to
meet one or more critical element s of his position; and (4) he was given a
reasonable opportunity to improve his performance. ID at 2.
that he was unable to submit this evidence previously due to medical problems he was
experiencing, the turmoil associated with relocating for his new job, and the withd rawal
of his representative shortly before the scheduled hearing. Id. We find that the
appellant has not described this evidence with sufficient specificity to show that it
might be material to the outcome of the appeal. Nor has the appellant shown that these
circumstances persisted 7 months after the close of the record on review, which was
when he submitted his motion for leave to file. Cf. Blair v. Office of Personnel
Management , 89 M.S.P.R. 113 , ¶ 12 (2001) (holding that, to show good cause for an
untimely filing, a party must address the entire period of the delay) , aff’d , 31 F. App’x
646 (Fed. Cir. 2002) . For these reasons, we deny the appellant’s motion.
7
¶10 After the initial decision in this appeal was issued, the Board issued an
Opinion and Order in Lee v. Department of Veterans Affairs , 2022 MSPB 11,
setting forth the elements of the agency’s case in light of recent Federal Circuit
precedent in Santos v. National Aeronau tics and Space Administration , 990 F.3d
1355 (Fed. Cir. 2021). The Board held that, in an appeal of a chapter 43
performance -based action, an a gency must show by substantial evidence that
(1) OPM approved its performance appraisal system and any significant changes
thereto; (2) the agency communicated to the appellant the performance standards
and critical elements of his position; (3) the appell ant’s performance standards
are valid under 5 U.S.C. § 4302 (c)(1); (4) the appellant’s performance during the
appraisal period was unacceptable in one or more critical elements ; (5) the
agency warn ed the appellant of the inadequacies in his performance during the
appraisal period and gave him an adequate opportunity to demonstrate acceptable
performance; and ( 6) after an adequate improvement period, the appellant’s
performance remained unacceptable in at least one critical element. Lee,
2022 MSPB 11 , ¶ 15. This standard applies to all pending cases, regardless of
when the events at issue took place. Id., ¶ 16. We will address each of these
elements in turn.
¶11 In his initial decision, the administrative judge found that the agency
submitted substantial evidence that OPM had approved its performance appraisal
system, and that the m atter was not in dispute. ID at 4. The appellant does not
challenge the administrative judge’s finding on review, and for the reasons stated
in the initial decision, we agree that the agency proved the first element of its
case by substantial evidence.
¶12 The administrative judge also found that the agency proved by substantial
evidence that it communicated to the appellant the performance standards and
critical elements of his position. ID at 4 -6. He found that the agency provided
the appellant his perf ormance standards and critical elements in writing at the
beginning of the performance year in December 2014, at his midyear progress
8
review in April 2015, and at the beginning of the PIP period later that month. ID
at 5-6. He further found that the Terr itory Manager discussed these standards and
elements with the appellant on each of these occasions. Id. The appellant does
not dispute the administrative judge’s findings on review, and for the reasons
explained in the initial decision, we agree with the administrative judge that the
agency proved the second element of its case by substantial evidence.
¶13 Regarding the third element of the agency’s case, the Brosseau standard
that the administrative judge cited does not state that the agency is required to
prove that its performance standards are valid. ID at 2. Therefore, the standard
as stated in Brosse au is incomplete. Nevertheless, citing relevant precedent, the
administrative judge explicitly stated in his initial decision that the agency was
required to establish performance standards that are valid, i.e. , standards that are
reasonable, realistic, a ttainable, and clearly stated in writing, which inform the
employee of what is necessary to achieve acceptable performance, and which are
sufficiently specific to provide a firm benchmark toward which the employee
must aim his performance. ID at 4 -5; see Towne v. Department of the Air Force ,
120 M.S.P.R. 239 , ¶ 21 (2013); Greer v. Department of the Army , 79 M.S.P.R.
477, 483 (1998). Applying this standard to the facts of the case, the
administrative judge found that the agency proved by substantial evidence that its
performance standards were valid. ID at 5, 26. The appellant does not contest
the administrative judge’s finding on review, and we discern no basis to disturb
it.
¶14 Regarding the fourth element of the agency’s case, the administrative judge
found th at the agency proved by substantial evidence that the appellant’s
performance prior to the April 30, 2015 PIP was unacceptable, and that the
agency notified him of this fact. ID at 6 -7. In support of this finding, the
administrative judge cited to severa l performance counseling memoranda that the
agency issued t o the appellant between January and April 2015, as well as the
appellant’s unfavorable April 23, 2015 midyear progress review and the PIP
9
notice itself, both of which contained numerous examples of instances in which
the appellant demonstrated unacceptable performance. ID at 6 -7; IAF, Tab 9
at 24-29, 52 -58, 68 -69, 85 -88. On petition for review, the appellant disputes each
of the 13 examples of allegedly unacceptable performance that the Territory
Manager used to justify the PIP, as well as the various counseling memoranda
leading up to it. PFR File, Tab 4 at 5 -14, 17 -18, 20. We will review each of
these examples in turn.
¶15 Under example 1, the Territory Manager stated that , every month, the
appel lant was required to complete reviews for all nine of his subordinates , but in
October 2014, the appellant completed only seven . IAF, Tab 9 at 55. On review,
the appellant argues that he was unaware that he was required to complete
reviews for each and e very one of his subordinates each month because the
applicable agency manual only states that this “generally” is the case. PFR File,
Tab 4 at 6. However, the term “generally” implies that the rule that each
subordinate must be reviewed every month would apply absent an exception, and
the appellant has not identified the presence of any circumstances that would
have warranted an exception for October 2014. The appellant also argues that he
exceeded the one review per month requirement in the months follo wing
October 2014. Id. However, even if this is true, this does not make his
performance in this Leadership and Human Capital Management task acceptable
for the month of October.
¶16 Under example 2, the Territory Manager alleged that, in December 2014,
the appellant completed only three out of the seven reviews required for that
month . IAF, Tab 9 at 55. On petition for review, the appellant disputes this
allegation, arguing that he completed all seven of the required reviews. PFR File,
Tab 4 at 6. He states that he informed the Territory Manager of this fact on
May 15, 2015, in rebuttal to the PIP notice, but the Territory Manager ignored
him. Id. We have considered the appellant ’s argument, but we are not
persuaded. The specific and detailed information in the PIP notice, as
10
corroborated by the Territory Manager’s comments in the appellant’s midyear
progress review, constitutes valid evidence that the appellant, in fact, did not
complete all of the required reviews in December 2014.4 IAF, Tab 9 at 25, 55.
There appears to be no documentary evidence of these reviews, such as receipt
logs or copies of the reviews themselves, so the agency’s evidence can only be
weighed against the appellant’s statement that he completed the reviews as
required. PFR File, Tab 4 at 6. Under these circumstances, we find that the
agency has presented substantial evidence that the appellant failed to complete all
of the required reviews for December 2014.
¶17 Under example 3, the Territory Manager stated that the appellant was
demonstrating unacceptable performance in the area of Customer Service and
Collaboration, because neither the Fredericksburg nor the Bailey’s Crossroads
TACs were meeting the area goal of 5% customer satisfaction according to
customer su rveys. IAF, Tab 9 at 55. On petition for review, the appellant argues
that customer satisfaction surveys cannot reasonably be used to evaluate his
performance because he has no control over how many people fill them out, and
the customers who do fill the m out do not necessarily constitute a representative
sample of customers as a whole. PFR File, Tab 4 at 7. He also argues that the
Territory Manager failed to consider that understaffing at his location contributed
to dissatisfaction by customers. Id. For the reasons that the appellant explains
on review, we agree with him that the results of customer satisfaction surveys are
not entirely with in his control. Nevertheless, we find that even if these survey
results do not paint a complete picture of the appellant’s performance in
4 The Federal Circuit has held that s pecifications in a notice of proposed removal under
chapter 43 that are corroborated by other evidence of record and are sufficiently
detailed to be disputed by the appellant may be considered as forming part of the
agency’s valid proof. DePauw v. U.S. International Trade Commission , 782 F.2d 1564 ,
1566 -67 (Fed. Cir. 1986) ; Delancy v. U. S. Postal Service , 88 M.S.P.R. 129 , ¶ 8 (2001) .
We find it appropriate to apply the same rule to specifications of inadequate
perfor mance contained in a PIP notice.
11
Customer Service and Collaboration, they still show the end results of the
appellant’s efforts in this area and are therefore probative of the matter. The
appellant does not dispute the factual accuracy of the Territory Manager’ s
allegations, which are corroborated by her comments in the appellant’s midyear
progress review. IAF, Tab 9 at 24, 55. Furthermore, even if some of the reasons
for low customer satisfaction were attributable to understaffing, the Territory
Manager expla ined that the appellant exacerbated the problem by having his
subordinates specialize in specific tasks so that they were unable to fill in for
coworkers who specialized in other tasks when those coworkers left the team or
went on leave. Id. at 24, 26.
¶18 Under example 4, the Territory Manager stated that the appellant had
demonstrated unacceptable performance in Customer Service and Collaboration
during the first two quarters of fiscal year 2014, when waiting times at both the
Fredericksburg and Bailey’s Cro ssroads TACs exceeded the established
threshold, with waiting times of more than 30 minutes for 49% of customers and
41% of customers respectively.5 IAF, Tab 9 at 55. The appellant again attributes
these wait times to understaffing, but as explained abov e, although understaffing
likely contributed to these excessive wait times, substantial evidence shows that
the appellant’s management practices contributed to the problem as well . PFR
File, Tab 4 at 7; IAF, Tab 9 at 24, 26.
¶19 Under example 5, the Territory Manager stated that, on the morning of
February 2, 2015, she attempted to contact the appellant at the Bailey’s
Crossroads TAC but was unable to do so. Later, she got through to him at the
Fredericksburg TAC, to which he had traveled without prior manage ment or
budget approval. IAF, Tab 9 at 55. According to the Territory Manager, this
demonstrated a failure in Leadership and Human Capital Management. Id. On
5 It appears that the standard is that no more than 30% of customers should be waiting
more than 30 minutes for service. IAF, Tab 9 at 45.
12
petition for review, the appellant argues, among other things, that his practice
was to work o ut of both TACs because the previous Territory Manager had
encouraged him to do so and he was unaware , prior to March 2015 , that he
needed prior approval to work out of the Fredericksburg TAC. PFR File, Tab 4
at 8-9. Although the Territory Manager subseq uently made clear to the appellant
that he would need to obtain prior approval before traveling to , and working at ,
the Fredericksburg TAC, IAF, Tab 9 at 58, we find no evidence in the record that
the appellant was aware of this requirement prior to Februa ry 2, 2015. Nor do we
find that this requirement should have been obvious to the appellant, given that
he was responsible for managing both TAC s and they are within commuting
distance of one another. In the absence of some sort of evidence that the
appel lant had previously been instructed to obtain permission before working at
the Fredericksburg TAC, we find that the agency has failed to present substantial
evidence that the appellant’s actions on this day amounted to unacceptable
performance.
¶20 Under examp le 6, the Territory Manager stated that, on March 10, 2015, the
appellant demonstrated deficiency in Leadership and Human Capital Management
when he worked from a “remote site” without her prior knowledge or approval.
Id. at 55. On review, the appellant asserts that this “remote site” was the
Fredericksburg TAC, and March 10, 2015 was the first time that the Territory
Manager raised this concern with him. PFR File, Tab 1 at 9. However, we find
substantial evidence that the appellant should have known, b ased on his
interaction with the Territory Manager in connection with example 5, that she
expected the appellant to inform her when he was working out of the
Fredericksburg TAC. Supra ¶ 19; IAF, Tab 9 at 55. We therefore find that the
agency has shown by substantial evidence that the appellant’s failure to notify the
Territory Manager of his work location on March 10, 2015, constituted
unacceptable performance.
13
¶21 Under example 7, the Territory Manager stated that, on March 31, 2015, the
appellant exhibited a deficiency in Program Management Responsibility when he
attempted to improve wait time statistics by having his subordinates take
customers out of order. IAF, Tab 9 at 55. She stated that only managers are
allowed to search for and select customer tick ets in this way, and when the
appellant refused her counseling about this, she reset the workstations and
changed the passwords to prevent it from happening again . Id. The Territory
Manager’s statements are corroborated by other evidence in the record. IAF,
Tab 9 at 69 -71. On petition for review, the appellant argues that there is no
agency manual that prohibits this practice and that he should have been praised
for his initiative rather than placed on a PIP because of it. PFR File, Tab 4 at 9.
Howeve r, we find substantial evidence that the appellant knew or should have
known that this practice was improper; although it might work to improve his
TACs’ statistics by reducing median wait times, it would also necessarily result
in inordinately long wait t imes for some customers. Indeed, the Territory
Manager stated in the appellant’s April 23, 2015 midyear progress review that the
agency’s computer system showed that some of his customers were experiencing
wait times in excess of 5 hours.6 IAF, Tab 9 at 24, 26.
¶22 Under example 8, the Territory Manager stated that the appellant was
exhibiting unacceptable performance in Program Management Responsibility by
not having the two Senior ITSs under his supervision conduct non -evaluative
reviews of junior -level ITSs. IAF, Tab 9 at 55. According to the Territory
Manager, each Senior ITS is required to conduct two non -evaluative reviews
every month, but the Senior ITSs under the appellant’s supervision had never
done so, even though they had both been in the job for more than 2 years. Id.
6 Although not mentioned in the PIP notice, the record also contains substantial
evidence that the appellant attempted to manipulate the wait time statistics by having
certain customers wait without a ticket so their wait times would not be captured by the
system. IAF, Tab 9 at 41, 63.
14
at 55, 68. On petition for review, the appellant argues that this requirement is not
located in the agency’s Internal Revenue Manual, and although nonevaluative
reviews are permitted, they are not mandatory. PFR File, Tab 1 a t 10 -11.
However, we find that the agency has provided substantial evidence of Field
Assistance expectations under which such reviews are, in fact, required. IAF,
Tab 9 at 26, 30.
¶23 Under example 9, the Territory Manager stated that, between August 2014
and February 2015, the appellant had f ailed to ensure that one of his subordinates
had obtained a proper identification badge. IAF, Tab 9 at 56, 85. On petition for
review, the appellant argues that he timely sent an email to the relevant Security
Officer requesting that this employee be issued a badge , but the badge was never
issued. PFR File, Tab 4 at 11. The appellant states that he did not become aware
of the situation until January 2016, when he received an untimely email from the
Territory Manager’s office regarding this employee’s travel request for the
previous month. Id. We are not persuaded by the appellant’s attempt to blame
the Territory Manager for this state of affairs. Furthermore, although the
Security Officer and the employee herself ma y be partly to blame, we find
substantial evidence that the appellant also failed to carry out his responsibilities
by following up to ensure that the credentialing he requested had been completed.
¶24 Under example 10, the Territory Manager stated that one of the appellant’s
subordinates engaged in travel card abuse, and on January 7, 2015, the appellant
was presented with “overwhelming evidence” of this abuse , including the
subordinate’s admission of misconduct. IAF, Tab 9 at 56. She stated that she
forwarded the appellant a disciplinary recommendation to sign and return, with
any additional comments, but the appellant refused to do so. Id. According to
the Territory Manager, this represented a failure in the Leadership and Human
Capital Management element because the appellant failed to accept his
managerial responsibilities and failed to follow her instructions on the matter. Id.
at 88. On petition for review, the appellant alleges that the disciplinary
15
recommendation that the Territory Manager forwarded him was for a 3 -day
suspension, and that he refused to sign it because it contained factual
inaccuracies about the investigation and should have been is sued by the Territory
Manager herself . PFR File, Tab 4 at 12 -13. However, to the extent that this
document contained factual inaccuracies, the appellant could have worked with
the Territory Manager and Human Resources personnel to correct them, or he
could have pointed them out in the additional comments that he was authorized to
make. Furthermore, it does not appear to us that the appellant had a good faith
belief that he was not authorized to sign the document, both because his Territory
Manager gave h im explicit authorization and because his duties and
responsibilities specifically provide that he “[d]ecides and enforces minor
disciplinary measures, such as warnings and reprimands, [and] recommends other
action in more serious cases.” IAF, Tab 9 at 54 . We find substantial evidence
that the acts described in example 10 represent unacceptable performance.
¶25 Under Example 11, the Territory Manager alleged that, on the afternoon of
Friday, January 30, 2015, at approximately 4:00 p.m., she was alerted to “an
incident ” involving two of the appellant’s subordinates. Id. at 56. Although she
“immediately and repeatedly” attempted to contact the appellant by telephone,
email, and Office Communications Server about the situation, she was unable to
reach him until the following Monday. Id. According to the Territory Manager,
this represented unacceptable performance in Leadership and Human Capital
Management. Id. On petition for review, the appellant argues that he handled
the situation appropriately. PFR File , Tab 4 at 13. He states that both he and the
Territory Manager were alerted to the problem by the same email, and so he went
to the parking garage at around 4:30 p.m. to ensure that both employees left for
the day without incident. Id. When the appella nt returned to his desk after
5:00 p.m. and saw the Territory Manager’s messages, her Office Communications
Server indicator light showed that she had already left for the day, so the
appellant waited until Monday to follow up with her. Id. Even acceptin g the
16
appellant’s explanation, we find substantial evidence that his failure to
communicate with the Territory Manager in a timely manner represented
unacceptable performance. The appellant knew as soon as he received the email
in question that the Territ ory Manager had been alerted to this incident, so he
should have notified her at that time that he was handling it, or failing that, he
should have at least replied to her email or attempted to call her after he returned
to his desk and before he left for the day.
¶26 Under example 12, the Territory Manager alleged that, on October 3, 2014,
the appellant directed two Individual Taxpayer Assistance Specialists (ITAS s) to
do the work of an Initial Assistance Representative (IAR) until further notice.
IAF, Tab 9 at 56. She stated that the appellant instituted this directive to avoid
addressing the performance and conduct issues of the IAR and that he should not
have assigned lower -level work to higher -level employees for an indefinite period
of time. She therefo re asked that the appellant rescind his directive.7 Id. On
petition for review, the appellant explains that this was a short -term solution to
an interpersonal conflict that had erupted between the IAR and another employee
and was intended to separate the se two employees physically until they had both
calmed down. PFR File, Tab 4 at 13 -14. He states that he assigned one ITAS to
this role because her computer access had been restricted pending investigation,
and she was unable to perform the full range of her proper duties anyway . He
assigned the second ITAS only to fill in for the first ITAS when she was on break
or otherwise away from the desk. Id. at 14. Although we understand the
appellant’s rationale, we still find substantial evidence that his act ions constituted
unacceptable performance in the area of Program Management. Specifically, we
agree with the Territory Manager that the appellant was attempting to avoid
7 According to the appellant, ITASs perform a techn ical role in addressing substantive
tax issues, whereas IARs are clerical employees who manage the front desk of the TAC.
PFR File, Tab 4 at 13.
17
taking disciplinary action against the IAR in question by hoping that his behavior
would improve and shifting office resources in the meantime. IAF, Tab 9 at 56.
¶27 Under example 13, the Territory Manager alleged that, during an April 9,
2015 operational review of the Bailey’s Crossroads TAC, she discovered that the
appellant had not had a r egular workgroup meeting with his subordinates for at
least a month. Id. She stated, “I understand if a weekly meeting is cancelled due
to unforeseen circumstances and even then a manager should prepare an email
containing information sharing items, but going a month without communicating
to your workgroup results in uninformed employees producing poor operational
performance .” Id. On petition for review, the appellant argues that he normally
conducted regular group meetings but had not done so in the m onth preceding
April 9, 2015 , because it was tax season and everyone was very busy. PFR File,
Tab 4 at 14. Nevertheless, the appellant did walk around to each employee, have
brief discussions with them , and send informative emails during this time period .
Id. We find that the agency has failed to provide substantial evidence that the
appellant’s failure to hold a group meeting between March 9 and April 9, 2015,
constituted unsatisfactory performance. As an initial matter, there does not
appear to be an y evidence of a rule or policy that requires TACs to have weekly
meetings for their employees. The appellant’s Leadership and Human Capital
Management performance standard requires that he “[p]romote[] open and honest
exchange of information, taking emplo yee perspective into account,” but even the
Territory Manager admitted that this can sometimes be accomplished through
email or other means, especially when circumstances prevent a formal group
meeting. IAF, Tab 9 at 21, 56. Her assertion that the appell ant had “gon[e] a
month without communicating to [his] workgroup” is not supported by the
record. The appellant’s failure to communicate to his workgroup through a
formal meeting does not equate to a failure to communicate to his workgroup at
all. Moreov er, the agency does not contest the appellant’s assertion that he
18
actually held regular workgroup meetings outside of the spring tax season. PFR
File, Tab 4 at 14.
¶28 Regarding the performance counseling memoranda, the Territory Manager
sent the appellant s ix of these between January and April 2015. IAF, Tab 9
at 68-69, 85 -88. The subjects of these memoranda correspond to examples 5 and
7-11 of the PIP notice , discussed above. The appellant states on petition for
review that, on April 8, 2015, he submitte d a rebuttal to each memorandum,
which he states is located at “Exhibit A.” PFR File, Tab 4 at 18. We have
carefully reviewed the extensive record in this appeal, and we have located two
different documents labeled “Exhibit A,” but neither of them is the rebuttal
memorandum to which the appellant is referring, IAF, Tab 29 at 10 -13, Tab 41
at 28-31. Nor have we otherwise been able to locate this memorandum in the
record. In any event, for the reasons explained above, we find that, with the
exception of examples 5 and 13, the agency has provided substantial evidence
that the appellant exhibited performance deficiencies leading up to the PIP, as
alleged in the PIP notice. Even if some of the details contained in the counseling
memoranda are inaccurate, we still find, based on the record as a whole, that the
agency proved the fourth element of its case by substantial evidence.
¶29 Regarding the fifth and final element of the agency’s case in chief, the
administrative judge found that the agency proved by substa ntial evidence that
the PIP period provided the appellant a reasonable opportunity to demonstrate
acceptable performance, but the appellant’s performance during that period
remained unacceptable. ID at 7 -12. Specifically, she found that the appellant
failed to achieve numerous PIP requirements, as set forth in the notice of
proposed removal, despite being given a reasonable amount of time to do so and
biweekly coaching sessions to assist him. IAF, Tab 8 at 159 -67; ID at 10 -12.
The appellant disputes the se findings on review.
¶30 Between December 11 and 17, 2015, the Bailey’s Crossroads TAC moved to
a new office in Vienna, Virginia. IAF, Tab 41 at 109, 124. The appellant argues
19
on review that this move caused a major disruption in operations and that it was
unreasonable to expect him to fulfill the PIP expectations during that time. PFR
File, Tab 4 at 35-36. In particular, he disputes charge 1, specification 2,
charge 2, specifications 3 and 4, and charge 3, specification 2 of the proposed
reduction in gra de. Id. at 36; IAF, Tab 8 at 160, 163, 166. He characterizes these
specifications as concerning failure to respond to one email within an hour,
failure to respond to another email within 3 hours, failure to complete all monthly
employee reviews for Decem ber, and “lost equipment” that was merely misplaced
by the movers. PFR File, Tab 4 at 36. We agree with the appellant that the
office move was an extenuating circumstance that might excuse some lapses in
performance during the relevant time period. We f ind, however, that it does not
entirely excuse these particular lapses. First, regarding the emails, the disruption
surrounding the office move might explain the appellant’s failure to respond
promptly to the two “High Priority” emails, but it does not ex plain his failure to
request extensions or his failure to give reasons for the late responses as charged.
IAF, Tab 8 at 163. Likewise, although it might be understandable or even
expected that some items will be misplaced during an office move, this does not
excuse the appellant’s failure to take appropriate steps to locate the equipment
prior to ordering new equipment, as specified. Id. at 166. Finally, even if the
office move might have interfered with the appellant’s ability to submit quality
reviews for his subordinates in December 2015, it appears that this was the
appellant’s second chance to do so –the first one being in May 2015, which was
the first half of the PIP period before he went on medical leave. IAF, Tab 8
at 160, Tab 9 at 57. The Decem ber 2015 office move does not explain the
appellant’s failure to submit the quality reviews during the May 2015 time
period.
¶31 Again, regarding charge 1, specification 3, the appellant asserts that the
notice of proposed removal is inaccurate because he did submit the quality
reviews as directed. PFR File, Tab 4 at 36. However, the only evidence in the
20
record regarding these reviews appears to be the Territory Manager’s declaration
stating that they were never submitted, and the appellant’s admission during his
response to the proposed reduction in grade that he did not complete them. IAF,
Tab 8 at 11, Tab 40 at 61 -62. We find that the agency has provided substantial
evidence that the appellant did not complete this action item as directed.
¶32 The appellant a lso challenges charge 2, specification 1, which states that he
failed to complete one of the PIP action items by not taking a particular training
course as directed by the Territory Manage r. PFR File, Tab 4 at 36; IAF, Tab 8
at 162, Tab 9 at 57. The appe llant argues on review, as he did below, that he
attempted to take the course, but it was not available, and the training officials
did not offer him any alternatives when he brought this to their attention. PFR
File, Tab 4 at IAF, Tab 8 at 25. However, the appellant admitted below that he
failed to contact the Territory Manager about the matter so that she could locate
an alternative course for him or otherwise provide him assistance in completing
this task. IAF, Tab 8 at 25. The appellant’s difficult working relationship with
the Territory Manager does not excuse his failure to attempt to work with her in
resolving this matter. We find that the agency has proven by substantial evidence
that the appellant did not complete this PIP action item as direct ed.
¶33 The appellant also challenges charge 3, specification 4, which states that, in
May 2015, the Territory Manager found a stale check at the Bailey’s Crossroads
TAC that had been mishandled. PFR File, Tab 4 at 36; IAF, Tab 8 at 165-66.
The agency allege d that when the Territory Manager instructed the appellant to
give one of his subordinates an evaluative review to provide guidance on
processing stale checks, the appellant refused, challenging the Territory
Manager’s determination. IAF, Tab 8 at 166. O n review, the appellant argues
that the check was, in fact, processed, and that he had never been informed of any
bright -line rule for when a check is considered stale. PFR File, Tab 4 at 36. We
find, however, that the specification did not state that th e check had not been
processed –only that it had not been processed correctly. IAF, Tab 8 at 165-66.
21
We also find that the check at issue here was dated exactly 1 year before the date
it was processed, and even in the absence of a bright -line rule for ide ntifying
stale checks, the appellant should have known that this particular check was at
risk of not being honored by the bank. IAF, Tab 30 at 71, Tab 40 at 20. We
note, however, that the record shows the appellant did not refuse to issue the
evaluative review as alleged. IAF, Tab 8 at 60 -61, Tab 9 at 64 -65. We therefore
find that the agency did not provide substantial evidence to support this portion
of the specification. Nevertheless, the agency provided substantial evidence to
show that the stale ch eck was processed incorrectly and that the appellant failed
to take initiative to address the matter, even after the Territory Manager brought
it to his attention. IAF, Tab 40 at 45.
¶34 Finally, the appellant disputes charge 1, specification 5 and charge 2,
specification 2.8 PFR File, Tab 4 at 36; IAF, Tab 8 at 161 -63. However, these
matters pertain to incidents that occurred after the PIP period ended. IAF, Tab 8
at 161 -63. We therefore find that they are immaterial to the central issue of
whether the ap pellant demonstrated acceptable performance during the PIP
period.
¶35 As a general matter, the appellant challenges the credibility of the Territory
Manager’s declaration. PFR File, Tab 4 at 15; IAF, Tab 40 at 56 -74.
Specifically, he argues that the Territo ry Manager’s statement that his previous
supervisor communicated some performance concerns to her is not believable in
light of his prior performance accolades, and that this should cast doubt on the
veracity of the remainder of the Territory Manager’s dec laration. PFR File,
Tab 4 at 15. However, we do not find it inherently improbable that the
appellant’s former supervisor harbored some concerns about the appellant’s
performance, even if these did not figure prominently in the appellant’s prior
8 The appellant mistakenly refers to charge 2, specification 2 as charge 2, specification
1. PFR File, Tab 4 at 36.
22
performan ce evaluations. In any event, in a chapter 43 appeal, an agency is only
required to present substantial evidence in support of its action; it is not required
to present evidence which is more persuasive than that presented by the
appellant. Shuman v. Dep artment of the Treasury , 23 M.S.P.R. 620 , 624 (1984).
¶36 The appellant also argues that the notice of proposed removal was based
partly on performance issues that preceded the PIP. PFR File, Tab 4 at 18, 20.
However, as long as the appellant failed to demonstrate acceptable performance
during the PIP period, t here is nothing to prevent the agency from relying on
performance deficiencies that occurred at any time during the year preceding the
notice of proposed removal. See Brown v. Veterans Administration , 44 M.S.P.R.
635, 640 (1990). For these reasons, we find that the appellant has provided no
basis to disturb the administrative judge’s finding that the agency proved by
substantial evidence all the elements of its case as set forth in Lee, 2022 MSPB
11, ¶ 15. ID at 4 -12.
The appellant has not proven his affirmative defenses of disability discrimination.
¶37 The appellant raised affirmative defenses of disability discrimination under
both reasonable accommodation and status -based treatment theories. ID at 14 -23.
The administrative judge considered both of these affirmative defe nses, but found
that the appellant failed to prove them. Id. The appellant challenges the
administrative judge’s findings on review. PFR File, Tab 4 at 5 -6, 15 -17, 19 -20.
¶38 To prove a disability discrimination claim based on failure to accommodate,
the ap pellant must show that: (1) he is an individual with a disability, as defined
by 29 C.F.R. § 1630.2 (g); (2) he is a qualified individual with a disability, as
defined by 29 C.F.R. § 1630.2 (m); and (3) the agency failed to provide a
reasonable accommodation. Miller v. Department of the Army, 121 M.S.P.R.
189, ¶ 13 (2014). In this case, the administrative judge found that the appellant is
an individual with a disability, but that he is not a qualified individual with a
disability, and in any eve nt, the agency did not refuse him any reasonable
accommodation. ID at 14 -21.
23
¶39 On petition for review, the appellant argues that the Territory Manager
ignored his request for reasonable accommodation, i.e., that he needed frequent
bathroom breaks and an opt ion to telework. PFR File, Tab 4 at 20; IAF, Tab 41
at 35. However, the record shows that the Territory Manager did not ignore the
appellant’s request for accommodation. She did respond to it, even though she
offered the appellant leave as needed in lie u of the telework he requested. IAF,
Tab 8 at 121 -22, Tab 40 at 70 -71; Tab 41 at 51. An employee is not entitled to
the accommodation of his choice, but is only entitled to a reasonable and
effective accommodation. Miller , 121 M.S.P.R. 189 , ¶ 21. The appellant has
provided no basis to disturb the administrative judge’s finding that the agency
provided him reasonable accommodat ions for his disability. ID at 20 -21. In any
event, the appellant does not contest the administrative judge’s finding that he
was not a “qualified individual” with a disability, i.e. , one who is able to perform
the essential functions of the position he holds or desires with or without
reasonable accommodation. ID at 16 -18; 42 U.S.C. § 12111 (8) (defining the term
“qualified individual”). We see no basis to disturb the administrative judge’s
finding on this issue, which is itself dispositive. See Haas v. Department of
Transportation , 2022 MSPB 36, ¶¶ 28-30.
¶40 To prove a status -based disability discrimination claim, the appellant must
prove, at a minimum, that he is a qualified individual with a disability , and that
his disability was a motivating factor in t he challenged personnel action. See id.;
Pridgen v. Office of Management and Budget , 2022 MSPB 31, ¶¶ 2 1-22, 40 . In
this case , the administrative judge found that the appellant provided insufficient
evidence to show that his disability was a motivating factor in the agency’s
action. ID at 21-23.
¶41 On petition for review, the appellant asserts several times that the Territory
Manager knew of his disability, that she treated him more harshly that other
non-disabled Supervisory ITASs , and that her actions were motivated by
disability discrimination. PFR File, Tab 4 at 5 -6, 9, 14 -17, 19 -20. We have
24
considered the appellant’s arg uments, but we find that they provide no basis to
disturb the initial decision. The administrative judge found that, although the
Territory Manager was aware of the appellant’s disability, she had a legitimate
reason for treating him differently than the other Supervisory ITASs because
none of them were exhibiting the same performance issues as the appellant. ID
at 22; IAF, Tab 40 at 73; see Alford v. Department of Defense , 118 M.S.P.R. 556 ,
¶ 10 n.6 (2012). The appellant’s arguments on review are based on little more
than the fact of his disability and the Territory Manager’s knowledge of it. We
find that this is insufficient to show that discrimination was a motivating factor in
his reduction in grade, and that his arguments constitute mere disagreement with
the initial decision. See Weaver v. Department of the Navy , 2 M.S.P.R. 129 ,
133-34 (1980). Moreover, as explained above, the appellant has not shown that
he is a “qualified individual” with a disability. Supra ¶ 39. Therefore, even if
his disability were a motivat ing factor in his removal, he would not be able to
prove this affirmative defense. See Haas , 2022 MSPB 36, ¶¶ 28-30.
The appellant has not proven his affirmative defense of retaliation for equal
employment opportunity activity.
¶42 It is a prohibited personnel practice to take a personnel action in retaliation
for EEO activity. See 5 U.S.C. § 2302 (b)(1), (b)(9)(A)(ii).9 To prove an
affirmative defense of retaliation for engaging in activity protected by Title VII,
the appellant must show that retaliation was a motivating factor in the agency’s
9 During the pendency of this appeal, the National Defense Authorization Act for Fiscal
Year 2018, Pub. 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
investigations or review.” Pub. L. No. 115-91, § 1097(c)(1)(A), 131 Stat. 1283, 1618.
We need not consider whether that expansion would 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, ¶¶ 29-34 (finding that the changes to section
2302(b)(9)(C) do not apply retroactively).
25
action.10 Id., ¶ 49. If the appellant can carry this burden, the agency may limit
relief by showing that it would have taken the same action notwithstanding the
protected activity. Id., ¶¶ 49 -51. In this case, the administrative judge found it
undisputed that the a ppellant engaged in EEO activity, and that the Territory
Manager knew about the activity. ID at 25. However, he found that the
appellant’s claim failed because neither the proposing official nor the deciding
official was aware of his protected activity. Id. On petition for review, the
appellant argues that the Territory Manager’s actions were retaliatory because
they intensified after he filed his first EEO complaint in May 2014. PFR File,
Tab 4 at 17, 20. In the face of the agency’s evidence regardin g his performance
issues, we find that the appellant’s argument is insufficient to establish that his
reduction in grade was retaliatory. Nevertheless, we disagree with the
administrative judge’s finding that:
[T]he appellant’s claim must fail because [th e Territory Manager]
did not propose the appellant’s demotion, and was not the deciding
official. [The Territory Manager] stated she had “no input” into the
appellant’s proposal letter, and there is no evidence to demonstrate
that she had any influence in the final decision to demote the
appellant.
ID at 25. Even assuming that the Territory Manager was not directly involved in
drafting the proposal or decision letters and did not discuss this case directly with
the proposing or deciding officials, we find that her actions are nevertheless
10 After the initial decision was issued, the Board issued its decision in Pridgen ,
2022 MSPB 31, ¶¶ 35, 44-47, adopting a “but -for” causation standard for claims of
retaliation for activity protected under the Rehabilitation Act of 1973 (Rehabilitation
Act) . Both requesting a reasonable accommodation and opposing disability
discrimination are activities protected by the Rehabilit ation Act . Id., ¶ 44. Although
not entirely clear, the appellant’s June 2014 informal EEO complaint may have raised
an alleged denial of accommodation. IAF, Tab 29 at 6. To the extent it did, we find
that the application of the higher “but -for” causati on standard to the appellant’s claim
of retaliation for that complaint would not result in a different finding here . See
Pridgen , 2022 MSPB 31 , ¶ 48 (recognizing that “motivating factor ” is a lower standard
for causation than “but -for”) .
26
sufficient to show her involvement in the reduction -in-grade decision. She was
the person who placed the appellant on a PIP, determined that he did not
complete the PIP successfully, and initially recommended that he be removed
from his position. IAF, Tab 9 at 52-58, Tab 30 at 364 -67. We find that these
actions were the proximate cause of the reduction -in-grade action, and that the
Territory Manager’s role in the decision -making process leading up to the
adverse action could be enough to show that the adverse action itself was tainted
by retaliatory animus. See Naval Station Norfolk -Hearing 2 v. Department of the
Navy , 123 M.S.P.R. 144 , ¶ 30 (2016).
¶43 Nevertheless, considering all of the relevant evidence together, we still
agree with the administrative judge that the appellant’s EEO activity was not a
motivating factor in the agency ’s decision. See Sabio v. Department of Veterans
Affairs , 124 M.S.P.R. 161 , ¶ 36 (2017) (holding that the Board will consider all
of the relevant evidence as a whole when determining whether an appellant has
proven an affirmative defense under Title VII). We find that the Territory
Manager was aware of the appellant’s first two EEO complaints during the
relevant time period.11 IAF, Tab 7 at 29 -30, Tab 30 at 369, Tab 40 at 71-72. We
also find that, as the official accused of discrimination, she would have had some
motive to retaliate against the appellant. See Dorsey v. Department of the Air
Force , 78 M.S.P.R. 439 , 450 (1998). However, neither of these complaints
appears to have resulted in a finding of discrimination, and the Territory Manager
does not seem to have faced any discipline or other adverse consequences as a
result of these complaints, apart from having to take the time to respond to them.
We therefore find that the Territory Manager’s retaliatory motive was not
particularly strong. See Simien v. U.S. P ostal Service , 99 M.S.P.R. 237 , ¶ 30
11 The appellant filed his third EEO complaint against the Territory Manager on
March 25, 2016, after her involvement in the performance -based ac tion had ended.
IAF, Tab 41 at 129.
27
(2005). In addition, the Territory Manager began expressing her concerns about
the appellant’s performance before his EEO activity began, and she expressly
denied retaliating against the appellant for his EEO activity. IAF, Tab 40 at 73,
81. Considering on the one hand, the Territory Manager’s motive to retaliate,
and on the other hand, the substantial evidence that the agency presented of the
appellant’s performance deficiencies and the lack of any retaliatory motive by the
proposing and deciding offici als, we agree with the administrative judge that the
appellant has not established that his EEO activity was a motivating factor in his
reduction in grade and pay. ID at 25; see Sabio , 124 M.S.P.R. 161 , ¶¶ 36-44.
¶44 Accordingly, we affirm the initial decision as modified by this Final Order.
NOTICE OF APPEAL RIG HTS12
The initial decision, as supplemented by this Final Order, constitutes the
Board’s final decision in this matter. 5 C.F.R. § 1201.113 . You may obtain
review of this final decision. 5 U.S.C. § 7703 (a)(1). By statute, the nature of
your claims determines the time limit for seeking such review and the appropriate
forum with which to file. 5 U.S.C. § 7703 (b). Although we offer the following
summary of available appeal rights, the Merit Systems Protection Board does not
provide legal advice on which option is most appropriate for your situation and
the rights described below do not represent a statement of how courts will rule
regarding which ca ses fall within their jurisdiction. If you wish to seek review of
this final decision, you should immediately review the law applicable to your
claims and carefully follow all filing time limits and requirements. Failure to file
within the applicable tim e limit may result in the dismissal of your case by your
chosen forum.
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
Please read carefully each of the 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:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the 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 EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. ____ , 137 S. Ct. 1975 (2017). If you have a
representative in this case, and your 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 race, color, religion, sex, 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 only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
30
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C . 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.13 The court of appeals must receive your petition for
13 The 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.
31
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court 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.
Contact information for the courts of appeals can be 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 | GWYNN_GEORGE_DC_0432_16_0865_I_1_FINAL_ORDER_2006652.pdf | 2023-02-28 | null | DC-0432 | NP |
3,442 | https://www.mspb.gov/decisions/nonprecedential/JHA_ARUNA_CH_0752_15_0472_I_2_FINAL_ORDER_2006664.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
ARUNA JHA,
Appellant,
v.
DEPARTMENT OF VETERA NS
AFFAIRS,
Agency.
DOCKET NUMBER
CH-0752 -15-0472 -I-2
DATE: February 28, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL1
Steven Glink , Esquire, Northbrook, Illinois, for the appellant.
Janet M. Kyte , Hines, Illinois, for the agency.
Timothy B. Morgan , Esquire, Chicago, Illinois, for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymo d A. Limon, Member
Tristan L. Leavitt, Member
FINAL ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
affirmed her removal . On petition for review, the appellant argues that the
administrative judge erred in sustaining the c harges, in finding that t he 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 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
did not establish her affirmative defenses, and in finding that removal was a
reasonable penalty. 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
administrat ive 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 le gal 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 M ODIFIED
regarding the administrative judge’s analysis of the appellant’s whistleblower
defense , we AFFIRM the initial decision.
¶2 The agency removed the appellant from her GS -12 Social Worker position
based on: (1) failure to follow agency policies by sending 27 unencrypted emails
containing patients’ personal identifying information (PII) and medical
information to her personal email account, her attorney, and her daughter
(10 specifications ); (2) requesting Home Health Aide services for veterans who
were not eligible for such s ervices (2 specifications); (3) lack of candor
(2 specifications) ; (4) failure to follow supervisory directions (1 specification);
and (5) failure to complete assigned work (1 specification). MSPB Docket
No. CH-0752 -15-0472 -I-1, Initial Appeal File (IAF), Tab 6, Subtabs A, D. In
effecting the appellant’s removal, the agency considered her past disciplinary
record consisting of a 3 -day suspension in 2013 , and a 14 -day suspension in 2014 ,
for performance and conduct issues. Id., Subtab D at 6. On appeal, the appellant
3
challenged the charges and alleged retaliation for EEO activity and for
whistleblowing. IAF, Tabs 1, 9.
¶3 In her initial decision, the administrative judge sustained charges (1), (2),
and (5). MSP B Docket No. CH -0752 -15-0472 -I-2, Appeal File, Tab 13, Initial
Decision (ID) at 4-17. She found that specification 2 of charge (2) was virtually
identical to charge (4), and she therefore merged them and sustained the merged
charge . ID at 20-24. The administrative judge di d not sustain charge (3). ID
at 17-20. The administrative judge found that the appellant failed to establish her
EEO retaliation affirmative defense. ID at 24-28. Regarding the appellant’s
whistleblower reprisal claim, the administrative judge found th at the appellant
established her prima facie case, but that the agency proved by clear and
convincing evidence that it would have removed her despite her protected
disclosure. ID at 28-37. Finally, the administrative judge found that a nexus
existed betw een the sustained charges and the efficiency of the service, ID at 37-
38, and that removal was a reasonable penalty , ID at 38-42.
¶4 On review, the appellant has challenged virtually all of the administrative
judge’s findings. Petition for Review (PFR) Fil e, Tab 1 at 1-27. We have
considered the appellant’ s claims regarding the sustained charges but find that her
claims do not establish error in the administrative judge ’s well -reasoned findings .
See Clay v. Department of the Army , 123 M.S.P.R. 245, ¶ 6 (2016) (finding no
reason to disturb the administrative judge’s findings when she considered the
evidence as a w hole, drew appropriate inferences, and made reasoned conclusions
on the issue of credibility ); Crosby v. U.S. Postal Service , 74 M.S.P.R. 98, 105 -06
(1997) (same).
¶5 The appellant disputes the administrative judge’s credibility findings. PFR
File, Tab 1 at 3-4. The Board must defer to an administrative judge’s credibility
determinations when , as here, they are based 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
4
of Justice , 288 F.3d 1288 , 1301 (Fed. Cir. 2002). Here, after describing the
testimony of the relevant witnesses, including the appellant, regarding the
charged misconduct, the administrative judge made reasoned credibility
determinations based on the factors set forth in Hillen v. Department of the Army ,
35 M.S.P.R. 453, 458 (1987). ID at 12-13, 16 -17, 2 3. In fact, she made specific
demeanor findings to explain why she credited the testimony of the appellant’s
first- and second -level supervisors over that of the appellant. Id. Although the
appellant disputes the administrative judge’s findings, the app ellant has not
presented sound reasons for the Board to revisit the administrative judge’s
demea nor-based and other credibility findings.
¶6 The appellant also challenges the administrative judge’ s finding that she
did not establish her claim of retaliation for EEO activity. She alleges that the
administrative judge failed to give proper weight to her supervisors’ “motive to
fabricate,” that she filed an EEO complaint and a Federal lawsuit against them
over their decisions to impose upon her several success ive suspensions, PFR File,
Tab 1 at 4, and that the 14 -day suspension and removal followed soon after her
filings. Id. at 18.
¶7 To prove an affirmative defense of retaliation for EEO activity protected
under Title VII, an appellant must show that the proh ibited consideration was a
motivating factor in the agency’s action. Pridgen v. Office of Personnel
Management , 2022 MSPB 31, ¶¶ 21-22, 30. However, to obtain full relief under
the statute, including reinstatement, back pay, and damages, an appellant must
show that retaliation was a but -for cause of the agency’s action. Id., ¶ 22. An
appellan t may prove a claim of retaliation under Title VII through direct
evidence, circumstantial evidence, or some combination of the two. Id., ¶ 24.
¶8 In finding that the app ellant did not establish th at retaliation for her EEO
activity was a motivating factor in her removal, the administrative judge found
that the appellant provided no evidence of such retaliation apart from her
testimony that she filed an EEO complaint again st her supervisors in May 2014
5
and was disciplined shortly thereafter, and that she also filed a Federal lawsuit
against her supervisors and the agency in November 2014. ID at 27. The
administrative judge considered evidence that the appellant’s performance
problems began in 2 013, Hearing Transcript (HT) at 308-15 (testimony of the
appellant’s second -level supervisor), before she filed her EEO complaint. ID
at 26. The administrative judge also considered the deciding official’s testimony
that she did not assume her duties as Acting Medical Director until just after the
agency issued the appellant’s notice of proposed removal, and that, although she
was not sure that she knew of the appellant’s EEO complaint when she rendered
her decision, she did not know about the Feder al lawsuit at that time. HT
at 555-56 (testimo ny of deciding official); ID at 26. The administrative judge
found no evidence that the appellan t’s supervisors influenced the deciding official
to remove the appellant based o n her prior EEO activity, ID at 27, no eviden ce
that other employees who did not file EEO complaints or Federal civil actions
were treated differently, and no evidence that the charged misconduct was not the
real reason for the a gency’s action, ID at 27-28.
¶9 Contrary to the appellant’s claim on revie w, the administrative judge
did not fail to consider that the appellant’s supervisors were the subject of her
EEO complaint and Federal lawsuit. To the extent that that factor provided them
with a motive to retaliate against the appellant, the administrative judge found
that all three supervisors testified clearly and consistently that they did not
retaliate against the appellant an d that the decision to remove her was based upon
her serious misconduct , which is well documented in the record. ID at 27. In
reaching her finding on the appellant’s claim, the administrative judge considered
the witnesses’ demeanor. ID at 27. As noted earlier , absent sufficiently sound
reasons for doing so, the Board will not overturn credibility determinations based
upon demeanor. Haebe , 288 F.3d at 1301 . The appellant has presented no such
6
reasons here. Therefore, she has not shown error in the ad ministrative judge ’s
analysis of this affirmative defense.2
¶10 The appellant also challenges the administrative judge’s finding that she did
not establish her claim of retaliation for whistleblowing. The appellant argues
that the administrative judge erred in finding that her supervisors had only a
“slight” motive to retali ate against her. PFR File, Tab 1 at 4; ID at 36.
¶11 The administrative judge found that the appellant disclosed what she
reasonably believed was a violation of law, rule, or regulation when she told her
senator that : (1) she had documented that a quadriplegic veteran’s wife had
expressed concerns to her that the facility was not responsive to her requests
regarding her husband’s care; (2) sometime later the wife committed suicide in
the patient’s room; and (3) the appellant’s supervisors subsequently directed her
to “redact and revise” her notes on the patient and his wife. ID at 29-30. The
administrative judge further found that, based upon the timing and knowledge
test, the appellant established that her disclosure was a contributing factor to her
remov al. ID at 30-31. These findings have not been challenged on review and
we find no basis upon which to disturb them.
¶12 The administrative judge further found that the agency proved by clear and
convincing evidence that it would have removed the appellant even absent h er
protected disclosure. ID at 32-37. In making her finding, the administrative
judge considered the “ Carr ” factors, specifically : (1) the strength of the agency’s
evide nce in suppo rt of the personnel action; (2) the existence and strength of a
motive to retaliate on the part of the agency officials who were in volved 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.
2 Because we affirm the administrative judge’s finding that the appellant failed to show
that retaliation for EEO activity was a motivating factor in her removal , we need not
resolve the issue of whether the appellant prove d that retaliation was a but-for cause of
the agency’s decisions. See Pridgen , 2022 MSPB 31 ¶¶ 20-22, 30 -33.
7
Soto v. Department of Veterans Affairs , 2022 MSPB 6 , ¶ 11; see Carr v. Socia l
Security Administration , 185 F.3d 1318 , 1323 (Fed. Cir. 1999).3 In so doing, the
administrative judge acknowledged the requirement that she consider all the
pertinent evidence in examining whether the agency has met its burden . ID
at 32-37; see Soto , 2022 MSPB 6 , ¶ 11.
¶13 Addressing Carr factor (3) first, the administrative judge , referencing a
previous Board decision involving a medical professional at the Departm ent of
Veterans Affairs, found that Dr. Parikh, the appellant in that case who was
removed for releasing confidential medical information, was not similarly
situated to the appellant in this case , as the appellant disputed below and on
review. ID at 33; PFR File, Tab 1 at 17. The administrative judge acknowledged
that Dr. Parikh’s removal was reversed by the Board because of retaliation for
whistleblowing. ID at 33; Parikh v. Department of Veterans Affairs ,
116 M.S.P.R. 197 (2011) . She found that, although one charge in the Parikh case
was similar, the agency in the instant case proved two additional charges of
misconduct against the appellant , and that, because s he and Dr. Parikh occupied
different positions at different medical centers such that there were different
proposing and deciding officials, the appellant and Dr. Parikh were not s imilarly
situated. ID at 33. The Board has held that the requirement that comparator
employees for Carr factor purposes be “similarly situated” does not require
“virtual identity” and “[d]ifferences in kinds and degrees of conduct between
otherwise similarly situated persons within an agency can and should be
3 Historically, the Board has been bound by the precedent of the U.S. Court of Appeals
for the Federal Circuit on this issue. However, as a result of changes initiated by the
Whistleblower Protection Enhancement Act of 2012 , Pub. L. No. 112-199, 126 Stat.
1465, extended for 3 years in the All Circuit Review Extension Act, Pub. L .
No. 113-170, 128 Stat. 1894, and eventually made permanent in the All Circuit Review
Act, Pub. L. No. 115-195, 132 Stat. 1510 appellants may file petitions for judicial
review of Board decisions in whistleblower reprisal cases with any circuit court of
appeals of competent jurisdiction. See 5 U.S.C. § 7703 (b)(1)(B). We are unaware of
other circuit courts that have considered this issue.
8
accounted for.” Chavez v. Department of Veterans Affairs , 120 M.S.P.R. 285 ,
¶ 34 (2013) (quoting Whitmore v. Department of Labor , 680 F.3d 1353 , 1373
(Fed. Cir. 20 12)). Notwithstanding, we agree with the administrative judge that
the appellant and Dr. Parikh were not similarly situated for these purposes. ID
at 33; cf. Chavez , 120 M.S.P.R. 285, ¶ 34 (finding that the appellant and the other
Licensed Vocational Nurse were similarly situated in that both were pr obationary
employees with the same supervisor). We also agree with the administrative
judge that, because of the additional charges against the appellant , Dr. Parikh’s
deficiencies were not sufficiently similar to the combination of reasons for the
appell ant’s removal to provide persuasi ve evidence regarding Carr factor (3). ID
at 33.
¶14 As to Carr factor (1), the strength of the agency’s evidence in support of its
action, the administrative judge found the evidence to be very strong. ID
at 33-36. She fou nd that the agency proved four of the five charges it brought,
and that the appellant ’s prior two suspensions for similar misconduct had failed to
correct her behavior. ID at 33-34. The administrative judge noted that, because
of the appellant ’s misconduct in charge (1), the a gency was required to notify
27 individuals of the PII disclosure and offer them credit monitoring. ID at 35.
Other than arguing that no veterans were “harmed” by her admitted disclosure of
their PII, PFR File, Tab 1 at 7, the appellant has not directly challenged the
administrative judge ’s analysis of Carr factor (1), and w e see no reason to disturb
this analysis .
¶15 Regarding Carr factor (2), the existence and strength of any motive to
retaliate on the part of agency offici als involved in the decision, the
administrative judge found that the appellant’s second -level supervisor could
have had a slight motive to retaliate based on the appellant’s continual insistence
on perform ing her duties as she thought best, and not confor ming to agency
policies and procedures, but that the “repeated serious ness” of the appellant’s
misconduct outweighed any slight motivation her second -level supervisor might
9
have had to retaliate against her. ID at 36. The administrative judge found no
motive to retaliate on the part of the deciding official because she had been
Acting Director of the facility for only a short time, there were approximately
4,000 employees at that facility, and the appellant’s disclosure did not involve the
deciding offici al because she was the director at another facility at that time. ID
at 37.
¶16 On review, the appellant argues that her supervisors had “enormous”
motives to retaliate against her because she named them in her whistleblowing
complaint with the Office of Special Counsel , in her EEO complaint, and in her
Federal lawsuit alleging that they improperly directed her to alter a patient’s
medical record and committed other irregularities. PFR File, Tab 1 at 4. We
agree that the administrativ e judge erred in not considering this information when
she described the appellant’s supervisors’ moti vation to retaliate as “slight. ”
Rather, we believe that the appellant’s filings, particularly to the extent that they
named her second -level supervisor, provided him with a significant motive to
retaliate against her when he proposed her removal. Phillips v. Department of
Transportation , 113 M.S.P.R. 73 , ¶ 23 (2010) . However, we nonetheless agree
with the administrative judge that, weighing the Carr factors, the agency has met
its burden to show by clear and convincing evidence that it would have removed
the appellant, absent her disclosure . ID at 33-37. Although the proposing official
had a clear motive to retaliate, the deciding official did not. Most significantly,
the agency had a strong basis upon which to remove the appellant based on the
four sustained charges of seri ous misconduct and her two prior suspensions for
similar misconduct , both of which occurred within a year prior to the misconduct
that led to her removal. IAF, Tab 6, Subtab D; Phillips , 113 M.S.P.R. 73, ¶ 31.
Employees who engage in protected activity are not granted immunity from the
ordinary consequences of mi sconduct or poor performance. Mt. Healthy City
School District Board of Education v. Doyle , 429 U.S. 274 , 285 -86 (1977);
Lachance v. White , 174 F.3d 1378 , 1381 (Fed. Cir. 1999) . Therefore, we
10
conclude that the a dministrative judge’s error did not prejudice the appellant’s
substantive rights. See Panter v. Department of the Air Force , 22 M.S.P.R. 281 ,
282 (1984).
¶17 Finally, in addressing the reasonableness of the penalty, the administrative
judge found, and we agree, that the deciding official carefully considered the
factors set forth by the Board in Douglas v. Veterans Administr ation , 5 M.S.P.R.
280, 305-06 (1981). ID at 41-42; HT at 528-37 (testimony of the deciding
official) . W e have considered the appellant’s challenges to this finding, PFR
File, Tab 1 at 19-26, but find that t hey do not establish error .
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 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 Meri t Systems Protection Board does not
provide legal advice on which option is most appropriate for your situation an d
the right s described below do not represent a statement of how courts will rule
regarding which cases fall within their 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
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 op tion is most appropriate in any matter.
11
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court 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.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
12
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. ____ , 137 S. Ct. 1975 (2017). If you have a
representative in this case, and your representative receives this decision before
you do, then you must file with the distric t court no later than 30 calendar days
after your representative receives this decision. If the action involves a claim of
discrimination based on race, color, religion, sex, national origin, or a disabling
condition, you may be entitled to representation by a court -appointed lawyer and
to waiver of any requirement of prepayment of fees, costs, or other security. See
42 U.S.C. § 2000e-5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district courts can be found at their respective
websites, which 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
13
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be ad dressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited 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.5 The court of appeals must receive your
petition for review within 60 days of the date of issuance of this decision.
5 U.S.C. § 7703 (b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
5 The 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 in to 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.
14
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D .C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the 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 | JHA_ARUNA_CH_0752_15_0472_I_2_FINAL_ORDER_2006664.pdf | 2023-02-28 | null | CH-0752 | NP |
3,443 | https://www.mspb.gov/decisions/nonprecedential/TANTER_APRIL_R_DC_0752_19_0755_I_1_FINAL_ORDER_2006687.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
APRIL R. TANTER,
Appellant,
v.
DEPARTMENT OF THE IN TERIOR,
Agency.
DOCKET NUMBER
DC-0752 -19-0755 -I-1
DATE: February 28, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL1
April R. Tanter , Greenbelt, Maryland, pro se.
William Hughes , Esquire, Boston, Massachusetts, for the agency.
BEFORE
Cathy A. Harris , Vice Chairman
Raymond A. Limon , Member
Tristan L. Leavitt , Member
Member Limon recus ed himself and
did not participate in the adjudication of this appeal.
FINAL ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
sustained the agency action removing her from Federal service . For the reasons
1A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c).
2
set forth below, the appellant’s petition for review is DISMISSED as untimely
filed without good cause shown. 5 C.F.R. § 1201.114 (e), (g).
BACKGROUND
¶2 The appellant was employed by the a gency as an Administrative Support
Assistant in Washington, D.C. Initial Appeal File (IAF), Tab 4 at 11. Effective
July 25, 2019, the agency removed her from Federal service based on the charge
of excessive absence. Id. at 11 -15. The appellant timely f iled an appeal with the
Board, challenging the removal action and arguing that her removal was the result
of discrimination based on her race, gender, and disability. IAF, Tab 1 at 4. She
also argued that the agency failed to accommodate her disability. Id.
¶3 On April 2, 2020, after holding the requested hearing, IAF, Tab 1 at 3,
Tab 15, Hearing Recording (HR), the administrative judge issued an initial
decision, finding that the agency proved its charge, that the penalty of removal
promoted the efficien cy of the service and was reasonable, and that the appellant
failed to establish her affirmative defenses, IAF, Tab 16, Initial Decision (ID)
at 5-11. Accordingly, he affirmed the removal action. ID at 11. The
administrative judge informed the appellant that the initial decision would
become final on May 7, 2020, unless a petition for review was filed by that date.
Id.
¶4 On June 13, 2020, the appellant filed a petition for review again disputing
the charge and reasserting her affirmative defenses. Peti tion for Review (PFR)
File, Tab 1.2 In an acknowledgment letter, the Office of the Clerk of the Board
2 The Board’s Washington Regional Office received the appellant’s petition for review
on June 15, 2020, and promptly forwarded it to the Office of the Clerk of the Board.
PFR File, Tab 1 at 1. For p urposes of timeliness, when an appellant erroneously files a
petition for review with a regional office instead of with the Office of the Clerk of the
Board, the Board considers the date of filing with the regional office to determine
whether the petition for review was timely filed. See Ryan v. Office of Personnel
Management , 49 M.S.P.R. 126 , 128 (1991). Here, the pleading filed with the
Washington Regional Office was postmarked on June 13, 2020. PFR File, Tab 1 at 2.
Under 5 C.F.R. § 1201.4 (l), the “date of filing by mail is determined by the postmark
3
informed the appellant that her petition for review was untimely filed because it
was not postmarked or received by the Board on or before May 7, 2020.
PFR File, Tab 2 at 1. It explained that the Board’s regulations require that a
petition for review that appears to be untimely filed be accompanied by a motion
to accept the filing as timely or to waive the time limit for good cause. Id. at 1 -2.
It furt her provided the appellant with information on how to file such a motion
and provided a blank motion form for her to complete. Id. at 2, 7 -8. The motion
form explained how to show good cause based on an illness. Id. at 7 n.1.
¶5 In response, the appellant filed a motion to accept her filing as timely or to
ask the Board to waive the time limit for good cause. IAF, Tab 3. In the motion,
as well as in her petition for review initially explaining her delay, the appellant
claims that she had been experiencing emotional distress due to a prior assault
that resulted in post -traumatic stress disorder (PTSD), that she was hospitalized
between April 22 and April 25, 2020, and that she could not visit her public
library during the COVID -19 pandemic to use a computer , printer, and scanner to
file her appeal because she is an “at -risk patient.” IAF, Tab 1, Tab 3 at 1. She
also submits with her motion a document from her hospital showing that she was
seen there on April 22, 2020, for acute pancreatitis, an appointment confirmation
document from Howard University for a June 24, 2020 medical appointment, and
a general document from a home health care establishment unaddressed to any
particular patient regarding basic home care considerations . PFR File, Tab 3 at
3-5. Th e agency has not filed a response to the appellant’s petition for review on
the merits or to her motion to accept her filing as timely or to waive the time limit
for good cause.
date.” Accordingly, we have treated the date of filing for the appellant’s petition for
review as June 13, 2020. PFR File, Tab 1 at 2; see Ryan , 49 M.S.P.R. at 128; see also
5 C.F.R. § 1201.4 (l).
4
DISCUSSION OF ARGUME NTS ON REVIEW
The appellant’s petition for review is untimely filed without good cause shown.
¶6 The Board’s regulations provide that a petition for review must be filed
within 35 days after the date of the issuance of the initial decision, or, if the
petitioner shows tha t the initial decision was received more than 5 days after the
date of issuance, within 30 days after the date the petitioner received the initial
decision. See 5 C.F.R. § 1201.114 (e); see also Palermo v. Department of the
Navy , 120 M.S.P.R. 694 , ¶ 3 (2014). Here, the initial decision was issued on
April 2, 2020. ID at 1. Thus, as the administrative judge correctly informed the
appellant, she was required to file any petition for review no later than May 7,
2020. ID at 11. The appellant’s petition for review of the initial decision was
filed on June 13, 2020. PFR File, Tab 1. As such, we find that the petition for
review is untimely filed by 37 days.
¶7 The Board may waive its timeliness regulations only upon a showing of
good cause for the untimely filing. Palermo , 120 M.S.P.R. 694 , ¶ 4; 5 C.F.R.
§§ 1201.12 , 1201.114(g). The party who submits an untimely petition for rev iew
has the burden of establishing good cause by showing that she exercised due
diligence or ordinary prudence under the particular circumstances of the case.
Palermo , 120 M.S.P.R. 594 , ¶ 4; Alonzo v. Department of the Air Force ,
4 M.S.P.R. 180 , 184 (1980). To determine whether an appellant has shown good
cause, the Board will consider the length of the delay, the reasonableness of her
excuse and her showing of due diligence, whether she is proceeding pro se, and
whether she has presented evidence of the existence of circumstanc es beyond her
control that affected her ability to comply with the time limits or of unavoidable
casualty or misfortune which similarly shows a causal relationship to her inability
to timely file her petition. Palermo , 120 M.S.P.R. 694 , ¶ 4; Moorman
v. Department of the Army , 68 M.S.P.R. 60 , 62-63 (1995), aff’d , 79 F.3d 1167
(Fed. Cir. 1996) (Table).
5
¶8 Alth ough the appellant is proceeding pro se, we find that her 37 -day delay
in filing is significant. See, e.g. , Crook v. U.S. Postal Service , 108 M.S.P.R. 553 ,
¶ 6 (2008) (stating that a 1-month delay in filing is significant), aff’d ,
301 F. App’x. 982 (Fed. Cir. 2008). Addi tionally, in examining the
reasonableness of the appellant’s excuses, we have considered her claims of
PTSD -related illness and inability to get to a public library due to the COVID -19
pandemic, but, as explained below, we are not persuaded that she has sh own good
cause based on those excuses, nor has she shown that she exercised due diligence
or ordinary prudence in filing a petition for review under the circumstances of
this case.
¶9 As explained above, the appellant asserts on review that she suffers from
PTSD. PFR File, Tab 1, Tab 3 at 1. She further claims that her February 2020
hearing before the Board had caused “unwanted thoughts” and nightmares, that
she was admitted to the hospital between April 22 through April 25, 2020, and
that, thereafter, she was receiving “home health care.” PFR File, Tab 1, Tab 3
at 1. In the blank motion form the Office of the Clerk of the Board included for
the appellant in its acknowledgement letter, the appellant was informed that, in
order to establish good cause for a n untimely filing due to illness, she must : (1)
identify the time period during which she suffered from the illness; (2) submit
medical evidence showing that she suffered from the alleged illness during that
time period; and (3) explain how the illness pr evented her from timely filing her
appeal or a request for an extension of time. PFR File, Tab 2 at 7 n.1; see Lacy
v. Department of the Navy , 78 M.S.P.R. 434 , 437 (1998).
¶10 Here, although the appellant explains that she suffers from PTSD, an
assertion that is generally supported by the record below and apparently
undisputed insofar as it relates to the time period prior to the appellant’s initial
appeal , IAF, Tab 4 at 34 -35; ID at 2, the documentation submitted on review
shows that she was admitted to the hospital for acute pancreatitis —not for
6
symptoms related to her PTSD,3 PFR File, Tab 3 at 3. In any event, the appellant
has not explained how her PTSD prevented her from timely filing her petition for
review prior to her hospitalization or after her hospitalization, after which she
still had more than a week left before th e end of the filing period, or from filing it
with less significant delay thereafter. PFR File, Tabs 1, 3. Nor has the appellant
explained why she was unable to file a request for an extension of time to file a
petition for review. For example, she has not alleged or provided any evidence,
medical or otherwise, demonstrating that she was unable to focus or sleep for the
duration of the filing period based on her PTSD or that she exhibited other
specific symptoms related to her PTSD that prevented her fro m timely filing.
PFR File, Tabs 1, 3. At most, the appellant merely alleges that she could not
timely file or ask the Board for an extension because she had “been ill and
dealing with rehabilitation after hospitalization while experiencing acute PTSD
symptoms.” PFR File, Tab 3 at 2. Accordingly, although we are sympathetic to
the appellant’s medical condition, we find that she has failed to meet the
standards set forth in Lacy to establish good cause based on illness. See, e.g. ,
Stribling v. Department of Education , 107 M.S.P.R. 166 , ¶¶ 10 -11 (2007) (finding
that an appellant failed to establish good cause for an untimely filin g despite her
assertion that she suffered from anxiety and depression because she did not
present any evidence that specifically addressed her condition during the relevant
time period , even though other evidence showed that she suffered from symptoms
prior to the filing period , and because she failed to explain how her medical
conditions prevented her from making a timely filing or requesting an extension).
3 Because the appellant’s PTSD was relevant to the agency’s underlying charge of
excessive absence, it was sufficiently considered and litigated below. IAF, Tab 4
at 34-35; HR (testimony of the appellant). The record shows that the appellant’s
physician d etermined that her symptoms were “not predictable.” IAF, Tab 4 at 34.
However, the appellant is required to show, among other things, that she suffered from
the symptoms of her illness during the time period relevant to filing a timely petition
for revie w in order to establish good cause for her delay. See Lacy , 78 M.S.P.R. at 437.
She has not done so.
7
¶11 The appellant also argues on review that, due to the COVID -19 pandemic,
she was unable to go to t he public library to use the computer, printer, or scanner
because she is an “at -risk patient.” PFR File, Tab 1 at 1. We acknowledge that
the appellant appears to live in Greenbelt, Maryland, and that, during the early
months o f the pandemic, including i n April and May of 2020, it is possible that
public facilities such as libraries were closed to the public in Maryland.
However, the appellant has not explained why she was unable to pursue a timely
filing by other avenues. PFR File, Tabs 1, 3. For exam ple, she has not explained
why she was unable to submit a handwritten petition for review or request for an
extension .4 PFR File, Tabs 1, 3. Although we are sensitive to the challenges
presented by the COVID -19 pandemic, we find that the appellant has failed to
show that she took any measures or exercised due diligence, as required, to effect
a timely filing.
¶12 In sum, considering the appellant’s substantial 37 -day delay in filing her
petition for review, her failure to sufficiently substantiate her cl aim that health
issues prevented her from submitting a timely filing, and her failure to exercise
due diligence either in light of her health issues or the COVID -10 pandemic, we
find that the appellant has failed to establish good cause for her untimely fi ling.
Therefore, we dismiss her petition for review as untimely filed without good
cause shown. See, e.g. , Via v. Office of Personnel Management , 114 M.S.P.R.
632, ¶ 7 (2010) (dismissing a petition for review as untimely filed without good
cause shown for the delay in filing).
¶13 This is the final decision of the Merit Systems Protection Board regarding
the timeliness of the petition fo r review. The initial decision remains the final
decision regarding the merits of this appeal.
4 The appellant’s response to the Office of the Clerk of the Board’s notice regarding the
timeliness of the petition for review is handwritten. PFR Fi le, Tab 3 at 1 -2.
8
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. 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 quest ions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must fil e a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for 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.
9
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.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a gi ven case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in pa rt, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Ci rcuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. ____ , 137 S. Ct. 1975 (2017). If you have a
representative in this case, and your representative receives this decision before
you do, then you must file with the district court no later than 30 calendar days
after your repres entative receives this decision. If the action involves a claim of
discrimination based on race, color, religion, sex, national origin, or a disabling
condition, you may be entitled to representation by a court -appointed lawyer and
10
to waiver of any requir ement of prepayment of fees, costs, or other security. See
42 U.S.C. § 2000e -5(f) 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
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
11
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for ju dicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.6 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
6 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction .
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195,
132 Stat. 1510.
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 | TANTER_APRIL_R_DC_0752_19_0755_I_1_FINAL_ORDER_2006687.pdf | 2023-02-28 | null | DC-0752 | NP |
3,444 | https://www.mspb.gov/decisions/nonprecedential/DITCH_RANDAL_J_DE_0752_15_0022_I_1_FINAL_ORDER_2006694.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
RANDAL J. DITCH,
Appellant,
v.
FEDERAL DEPOSIT INSU RANCE
CORPORATION,
Agency.
DOCKET NUMBER
DE-0752 -15-0022 -I-1
DATE: February 28, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL1
Robert J. Truhlar , Esquire, Centennial, Colorado, for the appellant.
Johnathan P. Lloyd , Esquire, Dallas, Texas, for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
Tristan L. Leavitt, Member
FINAL ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
affirmed the agency’s demotion and reassignment action. Generally, we grant
petitions such as this one only in the following circumstances: the i nitial decision
contains erroneous findings of material fact; the initial decision is based on an
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
require d to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c).
2
erroneous 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 c onsidering 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 ex parte communication considered by the
deciding official was cumulative of the information provid ed to the appellant and
therefore did not violate his due process rights , we AFFIRM the initial decision.
BACKGROUND
¶2 On April 11, 2014, the agency proposed to remove the appellant from his
CG-0570 -13 Supervisory Examiner po sition, based on the charge of c onduct
unbecoming a s upervisor (21 specifications) and lack of c andor (3 specifications).
Initial Appea l File (IAF), Tab 10 at 24 -31. After reviewing the r ecord, including
the appellant’s written and oral replies , the deciding official only sustained 10 of
the specifications under the charge of conduct unbecoming a supervisor , finding
that: (1) the appellant had sex with a subordinate female employee, off d uty, on
two occasions (Specifications 1 and 2); (2) on October 31, 2013, the appellant,
the subordinate female employee, and another employee whom the appellant
supervised went to a bar and drank during duty hours (Specification 9); (3) while
at the bar, t he appellant insisted that the subordinate female employee drink a
shot of whiskey, saying , “drink it , come on, don’t be a pussy ” (Specification 10);
(4) the appellant and the female subordinate employee kissed while at the bar
(Specification 11); (5) the appellant certified the subordinate female employee’s
3
timesheet for October 31, 2013, as working her regular 8 -hour shift, instead of
accounting for the time she spent with him at the bar (Specification 13);
(6) despite the subordinate employee having advi sed the appellant that she was
interested in only a professional rela tionship, on November 22 and 23, 2013,
while they both were on duty, the appellant expressed his continued romantic
feelings to her, and , the next day, sent her a text message saying that he still had
feelings for her and stating that he was going to find a way to reassign her
(Specifications 14 and 15); (7) on November 27, 2013, the appellant instructed
the subordinate employee to meet with him d uring duty hours, at which time he
asked he r if they had a chance for a personal relationship and if she had feelings
for him (Specification 17); and (8) on December 2, 2013, the appellant, during
duty hours, told another subordinate employee of his romantic feelings for the
female subordinate empl oyee and that he had slept with her (Specification 18).
Id. at 26 -28; IAF, Tab 5 at 37 . The deciding official did not sustain the charge of
lack of c andor. IAF, Tab 5 at 38. Based on the sustained misconduct, the
deciding official mitigated the penalty to a demotion to a CG -0570 -12
nonsupervisory Risk Examiner position and a reassignment from the Denver,
Colorado Field Office to the Tulsa, Oklahoma Field Office. Id. at 39.
¶3 The appellant filed a Board appeal chall enging the agency action , and , after
holding a hearing, the administrative judge issued an initial decision affirming the
appellant’s demotion and reassignment . IAF, Tab 73, Initial Decision (ID) . First,
the administrative judge found that the agency pro ved the misconduct set forth in
the 10 specifications sust ained by the deciding official. ID at 4-18. Then, he
found that the agency established a nexus between the misconduct and the
efficiency of the service because the charged misconduct occurred subs tantially
while the appellant was on duty.2 ID at 18 -19. The administrative judge further
2 To the extent that the specifications involved off -duty misconduct, the administrative
judge found that the agency established nexus because the deciding official credibly
4
found that t he appellant failed to prove that his se x was a motivating factor in his
demotion and reassignment . ID at 19 -27.
¶4 With respect to the appellant’s claims that the agency violated his due
process rights , the administrative judge found that the re was no credible evidence
that certain ex parte communications, i.e. , three time lines created by agency
employees, records of electronic toll collections on a Denver area highway, and
information on an employee’s airline travel , were provided to the deciding
official. ID at 30 -33. As for the ex parte communication that the deciding
official did consider —a memorandum detailing the subordinate female
employee’s incons istent statements during the investigation —the administrative
judge found that the information was favorable to the appellant because it led the
deciding official not to sus tain some of the specifications and, thus, such
consideration was not a due process violation. ID at 33-34. Furthermore, she
noted that the memorandum was “largely duplicative” of the information already
provided to the appellant. ID at 34. The administrative judge also found that the
deciding official’s consideration of the memorandum did not constitute harmful
error. ID at 35 -36. Finally, the administrative judge found that the agency
established that the unified penalty of demotion and reassignment was within the
bounds of reasonableness a nd that the appellant failed to establish his claim of
disparate penalty. ID at 36 -42.
¶5 In his petition for review, the appellant asserts , among other things, that the
agency failed to show that the unified penalty was reasonable and that the
deciding offi cial violated his due process rights by improperly considering new
and material ex parte communications . Petition for Review (PFR) File, Tab 1 .
The agency has responded to the petition for review, and the appellant has replied
to the response. PFR File, Tabs 3 -4.
testified that the appell ant’s conduct undermined her confidence in the appellant . ID
at 19.
5
DISCUSSION OF ARGUME NTS ON REVIEW
The deciding official did not violate the appellant’s due process rights by
considering the memorandum about inconsistencies in the subordinate’s
statements because it was cumulative of the information given to the appellant.
¶6 The administrative judge found that the deciding official’s consideration of
a memorandum outlining the subordinate female employee’s inconsistent
statements during the administrative investigation was not improper because
“there is no [due process] violation when the ex parte information is favorable to
the appellant.” ID at 29-30, 33 -34. In doing so, the administrative judge relied
on a nonprecedential Board decision3 interpreting the language in Ward v. U.S.
Postal Service , 634 F.3d 1274 , 1280 (Fed. Cir. 2011), in which the U.S. Court of
Appeals for the Federal Circuit (Federal Circuit) held, in part, that an employee
must receive “notice of any aggravating factors supporting an enhanced penalty.”
ID at 29 -30. Specifically, the administrative judge const rued this language to
mean that due process requires only that an agency give an employee notice of
aggravating fac tors, not mitigating factors that are beneficial to him. Id. On
review, the appellant contends that knowledge of the memorandum would have
been important to his ability to respond to the specifications of misconduct based
on these statements and would ha ve allowed him to argue the weight to be given
to this important mitigating factor . PFR File, Tab 1 at 21-23.
¶7 We find that the administrative judge took an overly restrictive view of an
agency’s due process requirements . The U.S. Supreme Court in Cleveland Board
of Education v. Loudermill , 470 U.S. 532 , 546 (1985), described “ [t]he essential
requirements of due process” as “notice and an o pportunity to resp ond,”
explaining that the employee “is entitled to oral or written notice of the charges
against him, an explanation of the employer’s evidence, and an opportunity to
3 Nonprecedential decisions do not constitute binding authority on the Board. 5 C.F.R.
§ 1201.117 (c)(2) ; see Thurm an v. U.S. Postal Service , 2022 MSPB 21 , ¶ 12 n.5 (noting
that the Board was not citing nonprecedential decisions as precedent) . Thus, the
administrative judge should not have relied on the nonprecedential decision.
6
present his side of the story.” Building on the holdings in Loudermill , the Federal
Circuit’s decisions in Ward , 634 F.3d at 1279 -80, and Stone v. Federal Deposit
Insurance Corporation , 179 F.3d 1368 , 1376 -77 (Fed. Cir. 1999), found that a
deciding official violates an employee’s due process rights when she relies upon
new and material ex parte information as a basis for her decisions on either the
merits of a proposed charge or the penalty to be imposed . See Johns on v.
Department of the Air Force , 50 F.4th 110 , 115 -16 (Fed. Cir. 2022); Norris v.
Securities and Exchange Commission , 675 F.3d 1349 , 1354 (Fed. Cir. 2012); see
also Gray v. Department of Defense , 116 M.S.P.R. 461 , ¶ 6 (2011).
¶8 Ward , Stone , and their progeny recognize, however, that not all ex parte
communications rise to the level of due process violations; rather, only ex parte
communications that introduce new a nd material information to the deciding
official are constitutionally infirm. Gray , 116 M.S.P.R. 461 , ¶ 6. In Stone , the
Federal Circu it identified the following factors to be used to determine if ex parte
information is new and material: (1) whether the ex parte information introduced
cumulative, as opposed to new, information; (2) whether the employee knew of
the information and had a n opportunity to respond to it ; and (3) whether the
communication was of the type likely to result in undue pressure on the deciding
official to rule in a particular manner. Stone , 179 F.3d at 1377 . Ultimately, we
must determine whether the ex parte comm unication is “so substantial and so
likely to cause prejudice that no employee can fairly be required to be subjected
to a deprivation of property under such circumstances.” Id. A deciding official
does not commit a due process violation when she considers ex parte information
that merely “confirms or clarifies information already contained in the record. ”
Blank v. Department of the Army , 247 F. 3d 1225 , 1229 (Fed. Cir. 2001). Thus,
the essential question is whether an ex parte communication is new and
material —the favorability of the information is not relevant .
¶9 We find that the ex parte communication at issue here , i.e., the
memora ndum summarizing inconsistent statements by the female subordinate , is
7
not new because it is cumulative of the information contained in the record
provided to the appellant . The memorandum, which was drafted by the agency’s
Assistant Regional Director and Senior Hu man Resources Specialist , was based
on the evidence gathered during the agency’s investigation, including the
transcripts of the subordinate’s two interviews . IAF, Tab 44 at 7 1-80; Hearing
Transcript (HT) , April 7, 2015 , at 198-99 (testimony of the Assistant Regional
Director) ; HT, April 8, 2015 , at 172, 183 (testimony of the Sen ior Human
Resources Specialist); HT, April 9, 2015 , at 11 -12 (testimony of the deciding
official ). The documents the agency used to draft the memorandum , including the
transcripts of the subordinate’s interviews, were provided to the appellant.4 IAF,
Tab 6 at 15 -43, Tab 13 a t 50-106, Tab 14 at 4 -65. In fact, the appellant focused
his replies extensively on the subordinate’s inconsistent statements . IAF, Tab 5
at 72 -85, Tab 6 at 59, 64 -66, Tab 7 at 18 -20. He even created a document with a
table setting forth the inconsistent statements, the evidence that contradicted
them , and citations for the contradictory evidence . IAF, Tab 5 at 80 -85.
¶10 Thus, the appellant had the information relied on by the agency, which
allowed him to draw the same conclusions as those contained in the agency
memorandum. The deciding official considered this argument, as demonstrated
by the fact that she did not sustai n sev eral of the specifications against the
appellant , citing “conflicting testimony .” Id. at 37; HT, April 9, 2015 , at 14
(testimony of the deciding official) . The Board has found that a deciding official
does not violate an employee’s due process rights whe n she considers issues
4 The transcript of the female subordinate’s first interview was included in the materials
relied on, which were given to the appellant and to which he responded in his written
reply. IAF, Tab 6 at 77 -88, Tab 7 at 4 -20, Tab 13 at 50 -106, Tab 14 at 4 -65. Because
of the appellant’s written and oral replies , which noted some inconsistencies in the
female subordinate ’s statements, the deciding official requested tha t the female
subordinate be interviewed again. HT , April 9, 2015 , at 9 (testimony of the deciding
official) . The appellant was provided with a transcript of the second interview and
afforded an opportunity to respond, which the appellant did . IAF, Tab 5 at 72-85, Tab 6
at 15 -43.
8
raised by the employee in his response to the proposed adverse action . See
Grimes v. Department of Justice , 122 M.S.P.R. 36, ¶ 13 (2014) ; see also Blank ,
247 F.3d at 1229 . Thus, the appellant, having thoroughly raised the issue of the
inconsistent statements in his replies , cannot now claim that he was unaware of
the issue and that the administrativ e judge’s consideration of it constitutes a due
process violation .5
¶11 In conclusion , the memorandum, while an ex parte communication, was not
new, because it was cumulative of the information provided t o the appellant.
Therefore, consideration of this ex parte communication did not violate the
appellant’s due process rights .6
5 To the extent that the appell ant argues that the memorandum includes references to the
investigators’ impression of the subordinate ’s demeanor during the interview , which
constitutes new and material information , the argument is misplaced. PFR File, Tab 1
at 22. First, there is only one reference to the subordinate’s deme anor during the
interviews in the memorandum, i.e., that her demeanor during the interviews “did not
suggest[] that she [was] in any way intimidated by management. ” IAF, Tab 44 at 78.
Nevertheless, upon review of the memorandum, it appears that the subordinate ’s lack of
intimidation was discerned from several sources other than just her demeanor, including
text messages that the appellant had in his pos session . Id. at 71 -80. Accordingly , this
information is also cumulative , and consideration of it is not a violation of the
appellant’s due process rights .
6 The appellant also argued on review that the administrative judge did not address his
allegation that the deciding official violated his due process rights by considering ex
parte information concerning the agency’s potential financial liability as a result of the
female subordinate filing a sexual harassment eq ual employment opportunity complaint
against the appe llant. PFR File, Tab 1 at 23 -25. The administrative judge, however,
did address this argument , finding that the deciding official credibly testified that the
language was expunged from the notice and that she did not consider it with respec t to
the appellant’s discipline. ID at 25 n. 23. The appellant has not presented sufficiently
sound reasons to disturb the administrative judge’s findings , and , thus, we defer to the
administrative judge’s credibility determination . See Haebe v. Departme nt of Justice ,
288 F.3d 1288 , 1301 (Fed. Cir. 2002) (explaining that the Board must defer to an
administrative judge’s credibility determinations when they are based, explicitly or
implicitly, on observing the demeanor of witnesses testifying at a hearing , and the
Board may overturn such determinations onl y when it has “sufficiently sound” reasons
for doing so) .
9
The unified penalty of demotion and reassignment is reasonable.
¶12 The appellant has not challenged, and we discern no basis to disturb , the
administrative judge’s findings with resp ect to the merits of the charge ,7 nexus,
his affirmative defense of sex discrimination,8 or his claims of harmful procedural
error .9 ID at 4-27, 34 -36. The appellant instead challenges the administrative
judge’s findings regarding the reasonableness of the penalty , arguing that the
agency did not consider all of the relevant Douglas factors, emphasizing the
consistency of the penalty . PFR Fi le, Tab 1 at 9 -20.
¶13 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
tolera ble limits of reasonableness. Archerda v. Department of Defense ,
121 M.S.P.R. 314, ¶ 25 (2014) ; Douglas v. Veterans Administrati on, 5 M.S.P.R.
7 The appellant did argue that the administrative jud ge failed to give the words of
certain stipulation s the appropriate meaning and weight , and, if he had done so, he
would not ha ve sustained Speci fication 9 . PFR File, Tab 1 at 7 -9. However, even if we
were to assume that the administrative committed this error, it did not have any effect
on the appellant’s substantive right s because it is well established that , when there is
one charge with multi ple factual specificat ions, proof of one or more, but not all, of the
supporting specifications is sufficient to sustain the charge. Miller v. U.S. Postal
Service , 117 M.S.P.R. 557 , ¶ 17 (2012); see Burroughs v. Department of the Army ,
918 F.2d 170 , 172 (Fed. Cir. 1990). Accordingly, we need not decide whether the
administrative judge failed to give proper weight to the parties’ stipulations.
8 After the initial decision was issued, the Board clarified its analytical framework for
Title VII status -based discrimination claims in Pridgen v. Office of Management and
Budget , 2022 MSPB 31 , ¶¶ 20-25. However, because the administrative judge’s
analysis of the appellant’s affirmative defense of sex discrimination is thorough,
well -reasoned, and consistent with our findings in Pridgen , we d iscern no reason to
disturb it . ID at 19 -27.
9 The administrative judge found that the agency did not commit harmful error because
its consideration of the memorandum was favorable to the appellant as it resulted in the
deciding official rejecting several specifications, and the information contained in the
memorandum was largely duplicative of the information provided to the appellant. ID
at 35 -36. The parties do not dispute the administrative judge’s findings on review, and
because they a re well -reasoned and supported by the record, we discern no basis to
disturb them. Id.
10
280, 306 (1981). The Board will modify a penalty only when it finds that the
agency failed to weigh the relevant factors or that the imposed penalty clearly
exceeded the bounds of reasonableness. Archerda , 121 M.S.P.R. 314, ¶ 25.
Additionally, when , as here, an agency imposes a penalty of an adverse action
combined with a reassignment, the Board must consider the reasonableness of the
unified penalty, despite the fact that the Board generally lacks jurisdiction over
reassignment actions. See Brewer v. American Battle Monuments Commission ,
779 F.2d 663 , 665 (Fed. Cir. 1985); Tamburello v. U.S. Postal Service ,
45 M.S.P.R. 455 , 471 (1990).
¶14 We agree with the administrative judge t hat the deciding official carefully
considered the pertinent Douglas factors and exercised management discretion
within tolerable limits of reasonableness in imposing the unified penalty of
demotion and reassignment. ID at 36 -42. As the deciding official ’s statements
demonstrate , she considered the appellant’s misconduct very serious as it caused
“significant disruption to the efficiency of the Denver” office , particularly
because as a supervisor the appellant was entrusted with significant
responsibilities, including acting as a role model, demonstrating good judgment,
developing members of his team, fostering a positive workplace culture, and
promo ting teamwork. IAF, Tab 5 at 38 -45. It is well settled that supervisors may
be held to a higher standard of conduct because they occupy positions of trust and
responsibility. Edwards v. U.S. Postal Service , 116 M.S.P.R. 173 , ¶ 14 (2010);
Martin v. Department of Transportation , 103 M.S.P.R. 153 , ¶ 13 (2006), aff’d ,
224 F. App’x 974 (Fed. Cir. 2007). The deciding official also considered the
factors that weighed in favor of mitigation, to include that the appellant had no
past disciplinary record, he had 25 years of service, he got along with fellow
workers, he was depen dable, and, due to his 25 years of satisfactory performance
as a Bank Examiner, she believed that he had t he ability to perform in that
position. IAF, Tab 5 at 41 -42, 44.
11
¶15 With respect to his claims of disparate penalty, in his oral reply and in
hearing testimony, the appellant identified a number of a gency supervisors who
had dated, and, in some instances , had eventually married subordinate employees.
IAF, Tab 6 at 60; HT , May 20, 2015 , at 48 -53 (testimony of the appellant).
Although the deciding official did not address the comparators identified by the
appellant ,10 the administrative judge did, finding that these individuals were not
proper comparators , in part because these incidents took plac e approximately
15 to 20 years ago under a differ ent Regional Director. ID at 40-42. Because the
administrative judge’s findings are supported by the record, we discern no basis
to disturb them .11
¶16 Thus, because we agree with the administrative judge that the agency
considered all relevant factors and that the unified penalty of demotion and
reassignment was well within the tolerable bounds of reasonableness, the
agency’s action was properly affirmed. ID at 42 .
10 To the extent the deciding official may have committed procedural error in not
considering the comparators identified by the appellant, the appellant failed to show
that such error was harmful , because, for the reasons articulated by the administrative
judge , the appellant failed to show that consideration of such comparators likely would
have caused the agency to reach a conclusion different from the one that it rea ched in
the absence of the error. See 5 C.F.R. § 1201.4 (r) (stating that to prove harmful
procedural error, an appellant must show that the agency committed an error in
applying its proce dures 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); see
also Forte v. Department of the Navy , 123 M.S.P.R. 124 , ¶ 19 (2016).
11 In adjudicating the appellant’s disparate penalty claim, th e administrative judge cited
Lewis v. Depar tment of Veterans Affairs , 113 M.S.P.R. 657 , ¶ 15 (2010). ID at 40 -42.
In Singh v. U.S. Postal Service , 2022 MSPB 15 , ¶¶ 10-17, issued after the initial
decision, we overruled Lewis to find that, when analyzing disparate penalty claims,
broad similarity between empl oyees is insufficient to establish that they are appropriate
comparators, and to reaffirm that the relevant inquiry is whether the agency knowingly
and unjustifiably treated employees who engaged in the same or similar offenses
differently. Nevertheless, the administrative judge’s reference to the standard set forth
in Lewis was not pr ejudicial in this case because he properly found that the appellant
failed to satisfy even that less onerous standard. ID at 40 -42.
12
NOTICE OF APPEAL RIG HTS12
The initial decisio n, 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 re quirements. Failure to file
within the applicable time limit may result in the dismissal of your case by your
chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
12 Since the issuance of the initial deci sion in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.
13
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful 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. ____ , 137 S. Ct. 1975 (2017). If you have a
representative in this case, and your representative receives this decision before
you do, then you must file with the district court no later than 30 calendar days
after your representative receives this decision. If the action involves a claim of
14
discrimination based on race, color, religion, sex, 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 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
15
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (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.13 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “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
13 The original statutory provision that provided f or judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petition s for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 2 6, 2017. Pub. L. No. 115 -195,
132 Stat. 1510.
16
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 | DITCH_RANDAL_J_DE_0752_15_0022_I_1_FINAL_ORDER_2006694.pdf | 2023-02-28 | null | DE-0752 | NP |
3,445 | https://www.mspb.gov/decisions/nonprecedential/ALSOOFI_OMAR_CH_0752_17_0193_I_1_FINAL_ORDER_2006760.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
OMAR ALSOOFI,
Appellant,
v.
DEPARTMENT OF THE TR EASURY,
Agency.
DOCKET NUMBER
CH-0752 -17-0193 -I-1
DATE: February 28, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL1
Omar Alsoofi , Dearborn, Michigan, pr o se.
Joshua A. Dombrow , Esquire, and Pamela D. Langston -Cox, Esquire ,
Chicago, Illinois, for the agency.
BEFORE
Cathy A. Harris , Vice Chairman
Raymond A. Limon , Member
Tristan L. Leavitt , Member
FINAL ORDER
¶1 The appellant has filed a petition for review o f the initial decision, which
dismissed his reduction in grade and pay claims 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 dist inguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c).
2
the initial decision is based on an erroneous interpretation of statute or regulation
or the erroneous application of the law to the facts of the case; the administrative
judge’s rulings during either the course of the appeal or the initial decision
were not consistent with required procedures or involved an abuse of discretion,
and the resulting error affected the outcome of the case; or new and material
evidence or legal argument is available that, despite the petitioner’s due
diligence, was not 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 The essential undisputed facts, as set forth by the administrative judge in
the initial decision, are as follows: The appellant was e mployed as a GS -11,
Step 4 Revenue Officer in De troit, Michigan. Initial Appeal File (IAF), Tab 26,
Initial Decision (ID) at 2. Effective July 1, 2012, he accepted a position as a
GL-09, Step 10 Criminal Investigator.2 Id. He reported for training in Georgia
for his new Criminal Investigator positio n. Id. On November 29, 2012, the
agency removed the appellant from training after he failed three examinati ons in
violation of its “three strike s” rule. Id. Following the appellant’s removal from
training, the agency afforded him the option to resign, face a proposed removal,
or return to his former position as a Revenue Officer. Id. From November 29,
2012 , to March 10, 2013, the appella nt retained his Criminal Investigator title ,
but report ed to an office in Pontiac, Michigan , for an interim placemen t away
from the training facility in Georgia. Id. The appellant declined to resign, and
2 The initial decision mistakenly identifies the appellant’s Criminal Investigator
position as a GS -09 instead of a GL -09. Compare ID at 2 , with IAF, Tab 10 at 36 -42.
3
the agency transferred him back to his former Revenue Officer position , effective
March 10, 2013, in lieu of removing him. Id.
¶3 The appellant filed a Board appeal alleging that his involuntary transfer
from the Criminal Investigator position to his former Revenue Officer position
was a reduction in grade and pay . IAF, Tabs 1, 11 . He contended that he
suffered a reduction in pay because his rate of basic pay was r educed and he lost
Law Enforcement Availability Pay ( LEAP). Id. He also argued that his locality
pay was incorrectly calculated during his interim placement from November 29,
2012 , to March 10, 2013, and had the agency properly afforded him locality pay
for the Detroit area, his transfer back to his Revenue Officer position would have
resulted in a decrease in pay. IAF, Tab 21 at 3, Tab 23 at 3. Finally, he argued
that the agency’s decision to remove hi m from training was discriminatory. IAF,
Tab 1, Ta b 10 at 45.
¶4 Without holding the appellant’s requested hearing, the administrative judge
issued an initial decision, dismissing the appea l for lack of jurisdiction. ID
at 5-8. The administrative judge found that the appellant did not suffer a
reduction in grade because his Standard Form 50 ( SF-50) indicated that his
acceptance of the Criminal Investigator position was a “change to lower grade,
level, or band” and , thus, his return to his Revenue Officer position from the
Criminal Investigator position am ounted to a grade increase. ID at 5. The
administrative judge further found that the appellant did not suffer a reduction in
pay when he was involuntarily transferred back to his Revenue Officer position
because his adjusted basic pay increased from $63, 259 to $6 8,640. ID at 5 -6.
She also found that LEAP or availability pay is not part of basic pay and the loss
of such pay is not appealable to the Board. ID at 5. Finally, she rejected the
appellant’s argument that he would have suffered a reduction in pay from $68,738
to $68,640 had the agency properly afforded him locality pay for the Detroit area
after he was removed from his Criminal Investigator training . ID at 6 -7. She also
4
found that, absent an otherwise appealable action, the Board lacks juris diction to
consider the appellant’s discrimination claim. ID at 7 -8.
¶5 The appellant has filed a petition for review. Petition for Review (PFR)
File, Tab 1. The agency has opposed the appellant’s petition, and the appellant
has filed a reply. PFR File, T abs 3 -4.
DISCUSSION OF ARGUME NTS ON REVIEW
¶6 On review, the appellant reiterates his argument below that the agency
incorrectly assigned his locality pay and , but for that mistake, his involuntary
transfer from his Criminal Investigator position to his Reven ue Officer position
would have amounted to a reductio n in pay. PFR File, Tab 1 at 4 -5. Such an
argument, however, is unavailing. The right to appeal reductions in pay to the
Board has been narrowly construed and requires the appellant to show a
demonstr able loss, such as an actual reduction in pay, to establish jurisdiction.
See Broderick v. Department of the Treasury , 52 M.S.P.R. 254 , 258 (1992) ; see
also Chaney v. Veterans Administration , 906 F.2d 697 , 698 (Fed. Cir. 1990)
(finding that an appealable reduction in pay occurs only when there is an
ascerta inable lowering of the employee’ s pay at the time of the action). Here, it
is undisputed that the appellant’s adjusted basic pay increased from $63,259 to
$68,640 as a result of his involuntary transfer back to his Revenue Off icer
position . We find, therefore, that the appellant has not made a nonfrivolous
allegation that he suffered a reduction in pay and, thus, the administrative judge
properly dismissed the appeal without a hearing. Cf. Caven v. Merit Systems
Protection Bo ard, 392 F.3d 1378 , 1381 -82 (Fed. Cir. 2004) ( finding that the
denial of a promotion that would have resulted in an increase in pay is not an
appealable reduction in pay).
¶7 The appellant also arg ues for the first time on review that he suffered a
reduction in pay when (1) the agency reduced his pay by $5 a day in supplemental
pay after he was removed from Criminal Investigator training in Georgia; and
5
(2) his pay for pay period 4 of 2013 was reduced from $68,640 to $63,259. PFR
File, Tab 1 at 4. We decline to consider such arguments in the first instance
because they do not appear to be based on new information to the ex tent they
relate to events that occurred in 2012 and 2013, and the appellant has not
explained why he could not have raised them below. See Banks v. Department of
the Air Force , 4 M.S.P.R. 268 , 271 (1980) (stating that the Board will not
consider an argument raised for the first time in a petition for review absent a
showing that it is based on new and material evidence not previously available
despite the party’s due diligen ce); Avansino v. U.S. Postal Service , 3 M.S.P.R.
211, 214 (1980) (stating that the Board will not consider evidence submit ted for
the first time with a petition for review absent a showing that it was unavailable
before the record was closed despite the party’s due diligence).
¶8 Accordingly, we affirm the initial decision.
NOTICE OF APPEAL RIGHTS3
You may obtain review of this final decision. 5 U.S.C. § 7703 (a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703 (b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described 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.
3 Since the issuance of the initial decision in t his matter, the Board may have updated
the notice 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 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 attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
7
were affected by an action that is appealable to the Board and th at such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. ____ , 137 S. Ct. 1975 (2017). If you have a
representative in this case, and your representative receives this decision before
you do, then you must file with the district court no later than 30 calendar days
after your representative receives this decision. If the action involves a claim of
discrimination based on race, color, religion, sex, national origin, or a disabling
condition, you may be entitled to representation by a court -appointed lawyer and
to waiver of any requirement of prepayment of fees, costs, or other security. See
42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district courts can be found at their respective
websites, which can be acces sed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) o f your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after yo u receive
this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for 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 77 960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “ra ises 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 judic ial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.4 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(B).
4 The original statutory provision that provided for judici al review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for jud icial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court 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 th e court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Fed eral Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any atto rney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be 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 | ALSOOFI_OMAR_CH_0752_17_0193_I_1_FINAL_ORDER_2006760.pdf | 2023-02-28 | null | CH-0752 | NP |
3,446 | https://www.mspb.gov/decisions/nonprecedential/BAILEY_VERONICA_L_CH_0752_16_0215_I_1_FINAL_ORDER_2006778.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
VERONICA L. BAILEY,
Appellant,
v.
DEPARTMENT OF
TRANSPORTATION,
Agency.
DOCKET NUMBER
CH-0752 -16-0215 -I-1
DATE: February 28, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL*
Justin Prato , Esquire, San Diego, California, for the appellant.
David Kessler , Esquire, Kansas City, Missouri, for the agency.
BEFORE
Cathy A. Harris , Vice Chairman
Raymond A. Limon , Member
Tristan L. Leavitt, Me mber
FINAL ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
dismissed for lack of jurisdiction her appeal of an allegedly involuntary
separation from her position. Generally, we grant petitions such as this one only
in the following circumstances: the initial decision contains erroneous findings
* A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
require d to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c).
2
of material fact; the initial decision is based on an erroneous interpretation of
statute or regulation or the erroneous application of the law to the facts of the
case; the admi nistrative 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 evidenc e 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 i nitial decision,
which is now the Board’s final decision. 5 C.F.R. § 1201.113 (b).
¶2 On October 27, 2015, the agency proposed to remove the appellant from her
Program Analyst position for unsatisfactory performance and placed her on
administrative leave. Initial Appeal File (IAF), Tab 21, Subtab 1, Exhibit 5 ,
Subtab 4e . On December 15, 2 015, the agency asked the appellant to report for
duty to turn in her badge, keys, and other agency property. IAF, Tab 11 at 16.
Meanwhile, the appellant had been searching for another position and, on
December 17, 2015, she informed the agency that she had accepted a position
with another Federal agency. IAF, Tab 21 , Subtab 1, Exhibit 9 at 2. The
appellant was separated effective December 26, 2015 . Id., Exhibit 1. She was
appointed to her new position effective December 27, 2015. Id., Exhibit 9.
¶3 The appellant filed a Board appeal in which she asserted that her separation
was involuntary because the agency knew or should have known that a
performance -based action against her could not be sustained, both on the merits
and because of procedural deficien cies. IAF, Tab 1 at 10 -11. She further alleged
that her separation was involuntary because the agency maintained a hostile work
environment due to race and sex discrimination. Id., at 10 -11, 14 -15. After a
3
hearing, the administrative judge found that t he appellant failed to show that her
separation was involuntary . The appellant petitions for review.
¶4 A decision to resign is presumed to be a voluntary act outside the Board’s
jurisdiction, and the appellant bears the burden of showing by preponderant
evidence that her resignation was involuntary and therefore tantamount to a
forced removal. Baldwin v. Department of Veterans Affairs , 111 M.S.P.R. 586 ,
¶ 15 (2009) (citing Garcia v. Department of Homeland Security , 437 F.3d 1322 ,
1329 -30 (Fed. Cir. 2006) (en banc)) . If the appellant can show that she resigned
and transferred to another agency to avoid a threatened removal ac tion, and i f she
can show that the agency knew or should have known that the action could not be
substantiated, then her decision to resign may be considered coerced and
therefore involuntary. Harris v. Department of Veterans Affairs , 114 M.S.P.R.
239, ¶ 8 (2010) .
¶5 The appellant contends that the agency knew or should have known that its
proposed removal could not be substantiated because the instances of poor
performance that the agency identified made no sense. After considering the
record, including the appellant ’s testimony, we conclude that the appellant’s
argument that she did not understand the agency’s position is actually an
argument that she did not agree that the cited events constituted poor
performance. She appears to admit that the events occurred; she simply provides
her excuse for why her errors were not errors or why she was not responsible for
them. The fact that the appellant has a defense —that may or may not be
successful —against the agency’s allegations of poor performance is insufficient
to est ablish t hat the agency knew or should have known that its allegations could
not be substantiated. Barthel v. Department of the Army , 38 M.S.P.R. 245, 251
(1988) (explaining that to show that the agency knew or should have known that
its action could not be substantiated, the appellant must do more than merely
rebut the agency’s reasons for the action).
4
¶6 An appellant who claims that her re signation was involuntary also may
rebut the presumption of voluntariness in a variety of ways, including by showing
that the resignation was the result of intolerable working conditions. Putnam v.
Department of Homeland Security , 121 M.S.P.R. 532 , ¶ 21 (2014). The Board
will find an action involuntary on the basis of intolerable working conditions only
if the appellant proves that the agency engaged in a cour se of action that made
working conditions so difficult or unpleasant that a reasonable person in the
appellant’s position would have felt compelled to resign. Markon v. Department
of State , 71 M.S.P.R. 574 , 577 -78 (1996). The appellant contended that the
agency created a hostile working environment based on race and se x
discrimination , which created intolerable working conditions that left her with no
choice but to resign. However, the appellant introduced evidence of a single
incident in which her supervisor shouted at a co -worker “Get your butt in here.”
This exclam ation may have been inappropriate, but it is not obviously sex - or
race-based, and the appellant provided no other evidence that might place the
statement in the context of a hostile working environment. Moreover, the
statement was not directed at the app ellant; she overheard her supervisor make
the statement to someone else. We agree with the administrative judge that a
reasonable person would not have found working conditions so intolerable that a
single statement of this nature directed at someone else left her with no choice but
to resign.
¶7 On review, the appellant alleges that the administrative judge improperly
denied her request for particular witnesses who would have testified in support of
her claim of discrimination. PFR File, Tab 1 at 3. Absen t jurisdiction over the
underlying action, the Board lacks jurisdiction to adjudicate allegations of
discrimination. Garcia , 437 F.3d at 1342 -43. However, it is appropriate to
consider the appellant’s allegations to the extent they bear on the question o f
involuntariness. Hosozawa v. Department of Veterans Affairs , 113 M.S.P.R. 110 ,
¶ 5 (2010) . Thus, we have considered the appellant’s assertions in terms of her
5
allegation that the agency created intolerable working conditions by fostering a
hostile working environment.
¶8 The administrative judge did not docum ent her reasons for denying th e
witnes ses in question . IAF, T ab 25 at 4. However, she provided the parties with
two opportunities to submit objections to her witness rulings (contained in the
memorandum of prehearing conference ), once in writing, and again at the
beginning of the hearing. Id. at 5. The appellant did not object to th ose rulings.
Therefore, she has not preserved an objection for review. Miller v. U.S. Postal
Service , 117 M.S.P.R. 557 , ¶ 8 (2012) (finding that when a party did not object to
the administrative judge’s witness rulings, it is precluded from doing so on
review).
¶9 In any event, we review an administrative judge’ s rulings on witnesses
under an abuse of discretion standard. Lee v. Environmental Protection Agency ,
115 M.S.P.R. 533, ¶ 7 (2010). Because the appellant herself provided evidence of
only one incident that was not directed at her, these witnesses could only
corroborate her evidence of that single incident and/or provide evidence about
other incidents that she did not witness. The appella nt did not claim that she was
aware of other incidents that she did not witness, and any incidents of which she
was not aware could not have affected her perception that the working
environment was hostile. Therefore, the appellant has not explained why t hese
witnesses would have offered relevant testimony, and she has not shown that the
administrative judge abused her discretion by denying them. Id., ¶ 16 ( stating
that the administrative judge did not abuse her discre tion in denying witnesses
when it had not been shown that their testimony wo uld be relevant, material, and
nonrepetitious).
¶10 Accordingly, we agree with the administrative judge that the appellant
failed to establish that her resignation was involuntary. We further find that the
administrative judge correctly dismissed the appeal for lack of jurisdiction.
6
NOTICE OF APPEAL RIG HTS1
You may obtain review of this final decision. 5 U.S.C. § 7703 (a)(1) . By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703 (b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable t ime
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular fo rum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U .S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a peti tion for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
1 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise w hich 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 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.
(2) Judicial or EEOC r eview of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. I f so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. ____ , 137 S. Ct. 1975 (2017). If you have a
representative in this case, and your representative receives this decision before
you do, then you must file with the district court no later than 30 calendar days
after your representative receives this decision. If the action involves a claim of
discrimination based on race, color, religion, sex, national origin, or a disabling
condition, you may be entitled to representation by a court -appointed lawyer and
8
to waiver of any requirement of prepayment of fees, costs , or other security. See
42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative 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
9
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.2 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)( B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must 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.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a gi ven case.
2 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit 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
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Loca tor/CourtWebsites.aspx .
FOR THE BOARD:
Washington, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board | BAILEY_VERONICA_L_CH_0752_16_0215_I_1_FINAL_ORDER_2006778.pdf | 2023-02-28 | null | CH-0752 | NP |
3,447 | https://www.mspb.gov/decisions/nonprecedential/MAYS_ANDREW_S_PH_0752_14_0630_I_2_FINAL_ORDER_2006796.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
ANDREW S. MAYS,
Appellant,
v.
DEPARTMENT OF HOMELA ND
SECURITY,
Agency.
DOCKET NUMBER
PH-0752 -14-0630 -I-2
DATE: February 28, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL1
Joshua L. Klinger , Esquire, Denver, Colorado, for the appellant.
Lorna J. Jerome , Esquire, Washington, D.C., for the agency.
BEFORE
Cathy A. Harris , Vice Chairman
Raymond A. Limon , Member
Tristan L. Leavitt , Membe r
FINAL ORDER
¶1 The appellant has filed a petition for revie w 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 distinguish them in any future decisions. In contra st, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c).
2
or regulation or the erroneous application of the law to the facts of the case; the
administrative judge’s rulings during either the course of the appeal or the initial
decision were not consistent with required procedures or involved an abuse of
discretion, and the resulting error affected the outcome of the case; or new and
material evidence or legal argument is available that, despite the petitioner’s due
diligence, was not available when the record closed. Title 5 of the Code of
Federal Regulations, section 1201.115 ( 5 C.F.R. § 1201.115 ). After fully
considering the filings in this appeal, we conclude that the petitioner has not
established any basis under section 1201.115 for granting the petition for review.
Therefore, we DENY the petition for review. Except as expressly MODIFIED to
apply the correct legal standard to the agency’s charge of medical inability to
perform , we AFFIRM the initial decision.
BACKGROUND
¶2 Effective March 7, 2014, the agency removed the appellant from his
Electronics Mechanic position based upon his medical inabi lity to perform the
duties of his position . Mays v. Department of Homeland Security , MSPB Docket
No. PH -0752 -14-0630 -I-1, Initial Appeal File (IAF), Tab 7 at 17 -18. The
appellant filed the instant appeal challenging his removal. IAF, Tab 1. The
adminis trative judge dismissed the appeal without prejudice to refiling. IAF,
Tab 13, Initial Decision . The appellant subsequently requested that the appeal be
reopened. Mays v. Department of Homeland Security , MSPB Docket No. PH -
0752 -14-0630 -I-2, Appeal File (I-2 AF) , Tab 1. After holding the appellant’s
requested hearing, the administrative judge issued an initial decision sustaining
his removal. I-2 AF, T ab 32, Initial Decision (I -2 ID).
3
¶3 The appellant has filed a petition for review. Mays v. Department of
Homeland Security , MSPB Docket No. PH -0752 -14-0630 -I-2, Petition for Review
(PFR) File, Tab 1.2 The agency has not responded.
DISCUSSION OF ARGUME NTS ON REVIEW
We agree with the administrative judge’s conclusion that the agency proved that
the appellan t was medically unable to perform the duties of his position;
however, we modify the initial decision to apply the correct legal standard.
¶4 The appellant asserts that the agency failed to prove that he was medically
unable to perform the duties of his posit ion because a physician and a physical
therapist supported the fact that his condition was improving to the point that he
would be able to perform his duties . PFR File, Tab 1 at 14-15. He also asserts
that there was no evidence that his condition would r ecur and that it did not pose
a reasonable probability of substantial harm. Id. at 1 6.
¶5 In her initial decision, the administrative judge stated that, to prove its
charge of physical inability to perform, 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
were such that a recurrence would pose a reasonable probability of substantial
harm. I -2 ID at 5 (ci ting 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 .3 Following the issuance of the initial decision, however, the Board
determined that this standard applies only when an employee who occupies a
2 The appe llant has not challenged the administrative judge’s finding that he failed to
prove his claim of disability discrimination , and we find no reason to disturb th is
finding on review. PFR File, Tab 1; see Broughton v. Department of Health and Human
Services , 33 M.S.P.R. 357 , 359 (1987) .
3 Subsequent to the appellant’s removal, the Office of Personnel Management amended
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 findings 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.
4
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, 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 deficiencie s 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.
¶6 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 also concluded, and the appellant does not chal lenge, that his
painful disc disease and painful lumbar facet syndrome rendered him unable to
safely and efficiently perform his core duties . I-2 ID at 5 , 7 n.7 ; see Haas ,
2022 MSPB 36, ¶ 15. We agree with this finding. Indeed, as set forth in the
initial decision, the appellant’s position contained several physical requirements,
including frequent lifting of up to 40 pounds, I -2 ID a t 5; IAF, Tab 8 at 24, and
the appellant’s treating physician opined that he was “not physically capable of
meeting the demands of [his] position,” I -2 ID at 5 -6; IAF, Tab 8 at 16 -17.
Moreover, the appellant sent an email to his supervisor acknowledging t hat
certain aspects of his condition caused him concern for his own safety in the
course of his duties . IAF, Tab 8 at 31.
¶7 On review, the appellant aver s that his condition was “improving
dramatically .” PFR File, Tab 1 at 15. To this end, he contends that the
5
administrative judge improperly discounted the testimony of a physician who
opined that, based on the appellant’s ability to work as a lobster fisherman shortly
before the hearing , he was healthy enough to return to work . Id. at 15 n.7. He
also contends that his physical therapist testified that his conditions were
improving. Id. at 15. We find these contentions unavailing. Indeed, we discern
no basis to disturb the administrative judge’s finding that the appellant’s ability
to work as a lobst er fisherman was not particularly probative ; the appellant had
previously worked as such during the same timeframe that his treating physician
stated that the appellant was physically unable to perform the duties of his
position with the agency. I-2 ID at 8. Similarly , although a physical therapist
testified that he had assigned the appellant a series of exercises that were
reportedly helping, the physical therapist acknowledged that he was not a doctor
and did not make medical diagnoses. I -2 ID at 6 n.6 . Moreover , the appellant’s
treating physician opined, and the appellant himself acknowledged, that his
conditions were incurable and would only worsen with time. IAF, Tab 8 at 17,
31. Considering the appellant’s 10-month absence with no end in sight , we find
that the agency established a nexus between the appellant’s medical conditions
and a deficiency in his attendance .
The administrative judge correctly found that the agency provided the appellant
with due process.
¶8 The appellant next challenges the ad ministrative judge’s finding that the
agency provided him with due process. PFR File, Tab 1 at 7-12. The
administrative judge addressed the appellant’s assertions that the deciding official
improperly considered a telephone conversation between the human resources
specialist and his physician ; a meeting among the appellant, the proposing
official, and the human resources specialist ; and a Douglas4 factors worksheet
4 In Douglas v. Veterans Administration , 5 M.S.P. R. 280 , 306 (1981), the Board
articulated a nonexhaustive list of 12 factors to be considered when evaluating the
penalty to be imposed for certain acts of misconduct, hereinafter the Douglas factors.
6
that had been presented to the deciding official for completion . I-2 ID at 17. We
agree that these considerations did not constitute due process violations.5
¶9 In Stone v. Federal Deposit Insurance Corporation , 179 F.3d 1368 , 1377
(Fed. Cir. 1999), the U .S. Court of Appeals for the Federal Circuit held that, if
the deciding official receives ex parte new and material evidence, this constitutes
a violation of the employee’s due process rights.6 To determine whether the
informa tion constituted new and material evidence, the Board will consider the
following : (1) whether the ex parte information merely introduces “cumulative
information” or new information; (2) whether the employee knew of the error and
had a chance to respond to it; and (3) whether the ex parte information was of the
type likely to result in undue pressure upon the deciding official to rule in a
particular manner. Ward v. U.S. Postal Service , 634 F.3d 1274 , 1279 (Fed. Cir.
2011) ; Stone , 179 F.3d at 1377 .
¶10 Regarding the phone conversation, the administrative judge found that the
human resources specialist merely clarified with the appellant’s physician that the
appellant was undergoing physical therapy and might be able to return to work at
some point, and thus , this information was virtually identical to that which was
contained in the doctor’s letter. I-2 ID at 17 -18; IAF, Tab 7 at 17. We agree that
the deciding official did not violate the appellant’s due process rights in this
5 We also have considered whether the deciding official’s consideration of the
conversation, the meeting, and the Douglas factors worksheet constituted harmful error.
However, we do not find harmful error in this respect because we find that the deciding
official’s consideration was not likely to have caused the agency to reach a conclusion
different from the one it would have reached in the absence or cure of any alleged error .
Forte v. Department of the Navy , 123 M.S.P.R. 124 , ¶ 19 (2016); 5 C.F.R. §§ 1201.4 (r),
1201.56(c)(1) .
6 The Federal Circuit’s reasoning rests o n 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 te nured public employee has a constitutionally protected property
interest in ongoing public employment and that an agency may not deprive such an
employee of his property interest without providing him with due process of law,
including the right to advance notice of the charges against him, an explanation of the
agency’s evidence, and an opportunity to respond.
7
respec t because the conversation did not convey any new information to the
deciding official . See Blank v. Department of the Army , 247 F.3d 1225 , 122 9
(Fed. Cir. 2001).
¶11 The administrative judge also found that the deciding official did not
violate the appellant’s due process rights by citing the meeting among the
appellant, the human resources specialist, and the proposing official in which they
discussed the need for additional medical documentation. I -2 ID at 1 8; IAF,
Tab 7 at 17. She found, and we agree, that this information was confirming and
clarifying , rather than new . Specifically, the conversation at this meeting merely
confirmed that the agency informed the appellant that he needed to provide
additional medical evidence before he could return to duty . I-2 ID at 1 8; see
Blank , 247 F.3d at 1229 . We also agree with the administrative judge that the
appellant was given an opportunity to respond by submitting medical
documentation after the meeting. I -2 ID at 18. Further, we agree t hat this
information in no way appears t o be the type likely to result in undue pressure on
the deciding official. Id.
¶12 The appellant next asserts that th e deciding official considered a Douglas
facto rs worksheet that was presented to him for completion , which he asserts
constituted new and ma terial evidence. PFR File, Tab 1 at 9-10; I-2 AF, Tab 11
at 7-9. He also asserts that it was clear that this evidence resulted in undue
pressure on the deciding official because he actually considered it. PFR File,
Tab 1 at 11 -12. As the administrative judge stated, a deciding official’s
knowledge of information only raises due process or procedural concerns whe n
that knowledge is a basis for the deciding official’s determinations on either the
merits of the underlying charge or t he penalty to be imposed. Bennett v.
Department of Justice , 119 M.S.P.R. 685 , ¶ 10 (2013). The administrative judge
found that th e deciding official credibly testified that he did not actually consider
8
the factors listed in the worksheet.7 I-2 ID at 19. We will defer to this
determination, which is implicitly based upon the deciding official’s demeanor.
See Haebe v. Department of Justice , 288 F.3d 1288 , 1301 (Fed. Cir. 2002) .
Accordingly, we agree with the administrative judge that the agency did not
violate the appellant’s du e process rights .
The appellant has not provided a reason to disturb the finding that the agency
proved by clear and convincing evidence tha t it would have removed him absent
his protected disclosure.8
¶13 On or about March 6, 2014, the appellant informed a local newspaper, the
Mount Desert Islander, that agency investigators had seized the global positioning
system from his boat, causing signific ant damage in the process. I -2 AF, Tab 10
at 8-9; I-2 ID at 9. The newspaper printed this story, in which the appellant was
highly critical of the agency’s conduct and motive . I-2 AF, Tab 10 at 8 -9. The
administrative judge found that this disclosure w as protected and was a
contributing factor in the appellant’s removal, but that the agency proved by clear
and convincing evidence that it would have removed him notwithstanding the
disclosure . I-2 ID at 10-16.
¶14 On petition for review, the appellant contes ts the administrative judge’s
clear and convincing evidence analysis . PFR File, Tab 1 at 13-14. In
determining whether an agency has met its burden of proving that it would have
imposed the penalty absent the appellant’s protected disclosure , the Board w ill
consider 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
7 The Board has held that the Douglas factors generally do not apply when, as here, the
removal is based upon a nondisciplinary reason. See Munoz v. Department of
Homeland Security , 121 M.S.P.R. 483 (2014) . Accordingly, even if the deciding
official considered this information, it would not constitute the type of information that
would cause undue pressure on the deciding official because it is largely ir relevant to
the penalty determination.
8 We have reviewed the relevant legislation enacted during the pendency of this appeal
and have concluded that it does n ot affect the outcome of the appeal.
9
any motive to retaliate on the part of the agency officials who were involved in
the d ecision; and (3) any evidence that the agency takes similar actions against
employees who are not whistleblowers but who are otherwise similarly situated.
Soto v. Department of Veterans Affairs , 2022 MSPB 6 , ¶ 11 ; see also Carr v.
Social Security Administration , 185 F.3d 1318 , 1323 (Fed. Cir. 1999) .9
¶15 The appellant argues that the agency did not have strong evidence to
support the removal action given that he had started to receive new treatments
and therapies during th e reply period and that he received a favorable report from
his physician . PFR File, Tab 1 at 14. To the contrary, as the administrative judge
properly found, evidence from both the appellant and his providers detailed the
nature of his conditions and ho w those conditions pr evented him from performing
his duties while the other evidence demonstrated that the appellant might b e able
to return to work at an unspecified point. I -2 ID at 15. Thus, we agree that the
agency had strong evidence in support of i ts action at the time of the removal .
¶16 Regarding the second Carr factor, t he administrative judge found that the
proposing official did not have a motive to retaliate because the removal had been
proposed prior to the appellant’s disclosure to the newspap er. I -2 ID at 15. She
found that the deciding official had some motive to retaliate because the
appellant’s disclosure portrayed the agency in a negative light, see Chavez v.
Department of Veterans Affairs , 120 M.S.P.R. 285 , ¶ 32 (2013) , but that this
retaliatory motive was not particularly strong because the disclosure was not
directed at the deciding official personally or at anyone in the deciding official’ s
chain of command, I -2 ID at 15. On petition for review, the appellant argues that
9 Historically, the Board has been bound by the precedent of the U.S. Court of Appeals
for the Federal Circuit on these types of whistleblower issues. However, pursuant to
the All Circuit Review Act , Pub. L. No. 115-195, 132 Stat. 1510, appellants may file
petitions for judicial review of Board decisions in whistleblower reprisal cases with any
circuit court of appeals of competent jurisdiction. See 5 U.S.C. § 7703 (b)(1)(B).
Therefore, we must consider these issues with the view that the appellant may seek
review of this decision before any appropriate court of appeal.
10
there was evidence of a strong retaliatory motive because the deciding official
mentioned the newspap er article when he handed the appellant the removal
decision.10 PFR File, Tab 1 at 14. However, the deciding official testified that
the newspaper article played no role in his decision, and record shows that he had
already drafted the removal decision be fore he learned of the article. Hearing
Recording at 23:10 , 24:20 (testimony of the deciding official). For the reasons
explained in the initial decision, w e agree that there was not a strong motive to
retaliate in this case . See Runstrom v. Department of Veterans Affairs ,
123 M.S.P.R. 169, ¶ 15 (2016).
¶17 The appellant next states that the agency did not put forth any evidence
regarding nonwhistleblowers. PFR File, Tab 1 at 14. The agency is not required
to produce evidence regarding each Carr factor and “the absence of any evidence
relating to Carr factor three can effect ively remove that factor from the analysis.”
Whitmore v. Department of Labor , 680 F.3d 1353 , 1374 (Fed. Cir. 2012).
Nevertheless, the failure to produce such evidence if it exists “may be at the
agency’s peril,” and may cause the agency to fail to meet its clear and convincing
burden. Id. Moreover, because it is the agency’s burden of proof, when the
agency fails to introduce relevant comparat or evidence, the third Carr factor
cannot weigh in favor of the agency. Smith v. General Services Administration ,
930 F.3d 1359 , 1367 (Fed. Cir . 2019); Siler v. Environmental Protection Agency ,
908 F.3d 1291 , 1299 (Fed. Cir. 2018). Although this factor adds little to our
analysis, we find that the agency has failed to introduce comparator evidence ;
therefore, Carr factor 3 does not weigh in the agency’s favor . However ,
considering the strong evidence in support of the agency’s action and the lack of
a strong motive to retaliate, we agree with the administrative judge that the
10 The record does not appear to reflect how this topic came up or what the deciding
officia l said about it.
11
agency has shown by clear and convincing evidence that it would have removed
the appellant absent his protected disclosure.11
NOTICE OF APPEAL RIG HTS12
The initial decision, as supple mented by this Final Order, constitutes the
Board’s final decision in this matter. 5 C.F.R. § 1201.113 . You may obtain
review of this final decision. 5 U.S.C. § 7703 (a)(1). By statute, the nature of
your claims determines the time limit for seeking such review and the appropriate
forum with which to file. 5 U.S.C. § 7703 (b). Although we offer the following
summary of available appeal rights, the Merit Systems Protection Board does not
provide legal advice on which option is most appropriate for your situation and
the rights described below do not represent a statement of how courts will rule
regarding which cases fall within their jurisdiction. If you wish to seek review of
this final decision, you should immediately review the law applicable to your
claims and carefully follow all filing time limits and requirements. Failure to file
within the applicable time limit may result in the dismissal of your case by your
chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you hav e questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
11 The appellant asserts that, because his appeal was pending before the Board for more
than 1 year after his removal became effective, he did not have the choice of filing a
petition for review or applying for disability retirement within the 1 year time period
prescribed by statute. PFR File, Tab 1 at 4 n.1; see 5 U.S.C. § 8453 ; 5 C.F.R.
§ 844.201 (a)(1). We find that this argument does not provide a basis for disturbing the
initial decision.
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.
12
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order m ust file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov /probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
13
receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. ____ , 137 S. Ct. 1975 (2017). If you have a
representative in this case, and your representative receives this decision before
you do, then you must file with the district court no later than 30 calendar days
after your representative receives this decision. If the action involves a claim of
discrimination based on race, color, religion, sex, national origin, or a disabling
condition, you may be entitled to representation by a court ‑appointed lawyer and
to waiver of any requirement of prepayment of fees, costs, or other security. See
42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district courts can be found at their resp ective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employm ent
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the
EEOC’s Office of Federal Operation s within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative 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 Op portunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
14
Office of Federal Operations
Equal Employment Opportunit y Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (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.13 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the 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
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. Th e All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195,
132 Stat. 1510.
15
Additional information about the U.S. Court of Appeals for the Federal
Circ uit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interes ted in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appell ants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
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 | MAYS_ANDREW_S_PH_0752_14_0630_I_2_FINAL_ORDER_2006796.pdf | 2023-02-28 | null | PH-0752 | NP |
3,448 | https://www.mspb.gov/decisions/nonprecedential/MUHLEISEN_SHIRLEY_DE_1221_13_0345_B_1_FINAL_ORDER_2006797.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
SHIRLEY MUHLEISEN,
Appellant,
v.
DEPARTMENT OF VETERA NS
AFFAIRS,
Agency.
DOCKET NUMBER
DE-1221 -13-0345 -B-1
DATE: February 28, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL1
Shirley Muhleisen , Marrero, Louisiana , pro se.
Johnston B. Walker , Jackson, Mississippi , for the agency.
BEFORE
Cathy A. Harris , Vice Chairman
Raymond A. Limon , Member
Tristan L. Leavitt , Member
FINAL ORDER
¶1 The appellant has filed a petition for review of the remand initial decision,
which found that her individual right of action (IRA) appeal concerning an
alleged involuntary resignation was barred based on the doctrine of collateral
estoppel . Generally, we gra nt 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 o f the case; or new and material
evidence or legal argument is available that, despite the petitioner’s due
diligence, was not available when the record closed. Title 5 of the Code of
Federal Regulations, section 1201.115 ( 5 C.F.R. § 1201.115 ). After fully
considering the filings in this appeal, we conclude that the petitioner has not
established any basis under section 1201.115 for granting the petition for review.
Therefore, we DENY the petition for review and AFFIRM the remand initial
decision, which is now the Board’s final decision. 5 C.F.R. § 1201.113 (b).
¶2 The appellant filed the instant IRA appeal, alleging that the agency took a
number of actions against her in reprisal for whistleblowing. Muhleisen v.
Department of Veterans Affairs , MSPB Docket No. DE -1221 -13-0345 -W-1,
Initial Appeal File (IAF), Tab 1 . The administrative judge dismissed the appeal
for lack of jurisdiction. IAF, Tab 15, Initial Decision (ID). On review, the Board
affirmed in part. Muhleisen v. Department of Veterans Affairs , MSPB Docket
No. DE-1221 -13-0345 -W-1, Remand Order (RO), ¶¶ 6-7 (Nov. 10, 2014).
However, based on a new argument first presented on review, the Board found
that the appellant had presented nonfrivolous allegations that she made a
protected disclosure that was a contributing factor in her allegedly involuntary
resignation in 1999. RO, ¶¶ 8 -9. Therefore, the Board remanded that lone
remaining claim and instructed the administrative judge to give the appellant an
opportunity to establish that her resignation was involuntary and recognizable as
a personnel action w ithin the Board’s jurisdiction over IRA appeals. RO,
¶¶ 10-11.
3
¶3 On remand, the agency argued that the appellant should be collaterally
estopped from further pursuing her involuntary resignation claim before the
Board. Muhleisen v. Department of Veterans Affairs , MSPB Docket
No. DE-1221 -13-0345 -B-1, Remand File (RF), Tab 20, Tab 27, Remand Initial
Decision (RID) at 3 -4. In support of that argument, the agency presented
evidence of a lawsuit the appellant pursued against the agency many years ago in
Feder al court. Muhleisen v. Principi , 73 F. App’x 320 (10th Cir. 2003); RF,
Tab 14 at 83 -89, Tab 20 at 6 -40. After holding a jurisdictional hearing, the
administrative judge dismissed the appellant’s involuntary resignation claim
based on collateral estoppel. RID at 7 -12. The appellant has filed a petition for
review. Muhleisen v. Department of Veterans Affairs , MSPB Docket
No. DE-1221 -13-0345 -B-1, Remand Petition for Review (RPFR) File, Tab 3. The
agency has filed a response.2 RPFR File, Tab 5.
¶4 Under the doctrine of collateral estoppel, once an adjudicatory body has
decided a factual or legal issue necessary to its judgment, that decision may
preclude relitigation of the issue in a case concerning a different cause of action
involving a party to the initi al case. Hau v. Department 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) . Collateral estoppel, or issue p reclusion,
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 party
2 Long after the time allotted for her to submit a reply brief, the appellant filed two
motions. The first, which she titled as a motion to strike, contains a lengthy list of
alleged improprieties o n the part of the agency and adjudicators to her various appeals,
ranging from fraud to violations of due process and the Privacy Act of 1974. RPFR
File, Tab 8 at 2 -9. The second, which she titled as a motion to add new information and
exhibits, ambiguou sly refers to a recent email from the Office of Personnel
Management as a “very important piece of information,” before providing another
lengthy list of alleged wrongdoings. RPFR File, Tab 9 at 2 -5. These motions are
denied.
4
against whom issue preclusion is sought had a full and fair op portunity 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. Id. As further detailed
below, we find no basis for disturbing the administrative judg e’s decision to
dismiss the appellant’s remaining IRA claim based on collateral estoppel.
¶5 According to the August 2002 recommendations of the presiding Magistrate
Judge, the appellant’s prior lawsuit against the agency included allegations that
she was sub jected to gender discrimination, resulting in a number of
improprieties, including her constructive discharge. RF, Tab 20 at 6. The
Magistrate Judge recognized that “[a]n employee is constructively discharged
when her working conditions are so intolerabl e that a reasonable person would
feel compelled to resign.” Id. at 29. The Magistrate Judge observed that it was
the appellant’s burden of proving that her “employment conditions were
‘objectively intolerable,’ such that she ‘had no other choice but to q uit.’” Id.
at 30 (quoting Sanchez v. Denver Public Schools , 164 F.3d 527 , 534 ( 10th Cir.
1998 )). Using that legal standard, the Magistrate Judge concluded that the
appellant’s resignation was not, in fact, involuntary. Id. at 30 -32. Among other
things, she considered the appellant’s allegations that she had been denied
promotions, step increases , favorable work assignments, and leave requests. Id.
at 30. She found that the appellant had been looking for employment elsewhere
in the years leading up to her resignation and had applied for early retirement
months before her resignation. Id. In ad dition, the Magistrate Judge found that
the appellant had applied for admission to a paralegal school scheduled to begin
the same month as her resignation and actually began attending that program as a
day student just days after her resignation. Id. Acc ording to the Magistrate
Judge, the appellant thus failed to establish “a genuine material fact issue about
the objective reasonableness of her working conditions.” Id. at 32.
¶6 The Chief Judge for the U.S. District Court for the District of Colorado
reviewed the Magistrate Judge’s recommendations and concluded that they were
5
correct. Id. at 35-36. Therefore, he granted the agency’s motion for summary
judgment and dismissed the appellant’s complaint . Id. at 36 -39. The U.S. Court
of Appeals for the Tent h Circuit affirmed that decision in July 2003. Muhleisen ,
73 F. App’x at 320; RF, Tab 14 at 83 -89. Among other things, the court held that
the appellant’s subjective expectations had not been met and she had personal
conflicts with both supervisors and c oworkers, but she did not establish
objectively unreasonable working conditions. Muhleisen , 73 F. App’x at 325 -26;
RF, Tab 14 at 89.
¶7 We agree with the administrative judge’s conclusion that the dispositive
issue in the instant IRA appeal, the voluntarines s of the appellant’s resignation in
1999, is identical to that which was adjudicated in her prior lawsuit. RID at 8 -9.
Although she reasserts various allegations about her working conditions on
review, and suggests that the issues are not identical, we d iscern no meaningful
distinction between the allegations and legal principles in her prior lawsuit and
those in this IRA appeal, even though the former relied on a theory of gender
discrimination and the latter relied on a theory of whistleblower retaliati on. E.g.,
RPFR File, Tab 3 at 2 -3, 10, 19 -20; see Tanner v. U.S. Postal Service ,
94 M.S.P.R. 417 , ¶ 11 (2003) (recognizing t hat b efore a party can invoke
collateral estoppel, the legal matter raised in the subsequent proceeding must
involve the same set of events or documents and the same bundle of legal
principles that contributed to rendering the first judgment). It is also evide nt, as
the administrative judge found, that whether the appellant’s resignation was
voluntary was actually litigated in her prior lawsuit and the finding of
voluntariness was necessary to the resulting judg ment. RID at 9; RF, Tab 20
at 29-32; see Miller v. Department of the Army , 121 M.S.P.R. 189 , ¶ 20 (2014)
(finding that the “actually litigated” element and all others were met for purp oses
of collateral estoppel when an iss ue raised in a Board appeal previously was
disposed of in District Court via summary judgment). On review, the appellant
seems to implicate the fourth element of collateral estoppel, arguing that she was
6
provided poor representation during a portion of her lawsuit and proceeded pro se
during the remainder. E.g., RPFR File, Tab 3 at 21 -22. Nevertheless, we agree
with the administrative judge’s conclusion that the appellant had a full and fair
opportunity to litigate the issue in the prior action. RID at 9 -11; see McNeil v.
Department of Defense , 100 M.S.P.R. 146 , ¶¶ 13 -15 (2005) (clar ifying that the
fourth element of collateral estoppel does not require that the appellant have been
represented in the earlier action, but instead requires that the appellant had a full
and fair opportunity to litigate the issue).
¶8 Although we have review ed the appellant’s remaining arguments, including
attacks on the validity of the judgment in her prior lawsuit and complaints
concerning the timing of the agency’s assertion of collateral estoppel in this
appeal, we find no basis for reaching a different r esult. See generally RPFR File,
Tab 3 at 2 -25.
¶9 Accordingly, we find that t he administrative judge properly determined that
the appellant’s involuntary resignation claim was barred under the doctrine of
collateral estoppel.3
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 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 fo r your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
3 We have reviewed the relev ant legislation enacted during the pendency of this appeal
and have determined that none impact the outcome.
4 Since the issuance of the remand initial decision in this matter, the Board may have
updated the notice of review rights included in final deci sions. As indicated in the
notice, the Board cannot advise which option is most appropriate in any matter.
7
jurisdiction. If you wish to seek review of this final decision, you 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
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 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. ____ , 137 S. Ct. 1975 (2017). If you have a
representa tive in this case, and your representative receives this decision before
you do, then you must file with the district court no later than 30 calendar days
after your representative receives this decision. If the action involves a claim of
discrimination b ased on race, color, religion, sex, national origin, or a disabling
condition, you may be entitled to representation by a court -appointed lawyer and
to waiver of any requirement of prepayment of fees, costs, or other security. See
42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Cour t_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702 (b)(1). If you have a represent ative in this case,
and your representative receives this decision before you do, then you must file
9
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEO C via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
other protect ed activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited p ersonnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or a ny court of appeals of
competent jurisdiction.5 The court of appeals must receive your petition for
5 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdicti on expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Cour t of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195,
132 Stat. 1510.
10
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained 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/Cour tWebsites.aspx .
FOR THE BOARD:
Washington, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board | MUHLEISEN_SHIRLEY_DE_1221_13_0345_B_1_FINAL_ORDER_2006797.pdf | 2023-02-28 | null | DE-1221 | NP |
3,449 | https://www.mspb.gov/decisions/nonprecedential/MEEKINS_ERIC_SF_0432_17_0005_I_1_REMAND_ORDER__2006802.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
ERIC MEEKINS,
Appellant,
v.
DEPARTMENT OF VETERA NS
AFFAIRS,
Agency.
DOCKET NUMBER
SF-0432 -17-0005 -I-1
DATE: February 28, 2023
THIS ORDER IS NONPRECEDENTIAL1
Justin Prato , Esquire, San Diego, California, for the appellant.
Joseph Manuel Briones , Esquire, Los Angeles, California, for the agency.
BEFORE
Cathy A. Harris , Vice Chairman
Raymond A. Limon , Member
Tristan L. Leavitt , Member
REMAND ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
affirmed his removal from his position as a Rating Veterans Service
Representative (RVSR) for unacceptable performance under 5 U.S.C. chapter 43
and found that he failed to prove his affirmative defenses of (1) disability
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
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
discrimination on the basis of failure to accommodate , (2) disparate treatment
disability discrimination, and (3) retaliation for prior protected equal employment
opportunity (EEO ) activity. For the reasons set forth below, we GRANT the
petition for review. We MODIFY the initial decision to clarify the legal standard
applicable to the appellant’s claim of retaliation for prior protected EEO activity,
and we REMAND the appeal to t he regional office for further adjudication
consistent with the U.S. Court of Appeals for the Federal Circuit’s decision in
Santos v. National Aeronautics and Space Administration , 990 F.3d 1355 (Fed.
Cir. 2021) .
DISCUSSION OF ARGUME NTS ON REVIEW
The appellant’s arguments on review do not provide a basis to disturb the initial
decision.
¶2 On petition for review, the appellant first argues that the a dministrative
judge erred in denying two of his requested witnesses. Petition for Review (PFR)
File, Tab 1 at 6 -7. He contends that the testimony of these two Veterans Service
Representative (VSR) employees was relevant to show that he was not afforded a
reasonable opportunity to improve his performance because they would have
testified as to how his supervisor manipulated work numbers and took away work
from employees as well as tactics they witnessed the appellant’s supervisor use to
retaliate against o ther employees. Id. The record reflects that the administrative
judge initially denied these requested witnesses because their proffered testimony
concerning the appellant’s supervisor’s actions in removing work from the
appellant would have been duplica tive of the appellant’s testimony and testimony
of another VSR employee, who the appellant proffered would testify that he
witnessed the appellant’s supervisor remove work from the appellant and give
other RVSR’s credit for the appellant’s work. Initial A ppeal File (IAF), Tab 14
at 2-3.
¶3 However, the administrative judge indicated that he would reconsider
denied witnesses based on a more detailed proffer of the relevance of their
3
testimony and a statement indicating that the requesting party discussed and /or
attempted to discuss the anticipated testimony with the requested witness. Id.
at 3. The appellant objected to the administrative judge’s ruling regarding these
witnesses and provided a more detailed proffer. IAF, Tab 15 at 4 -5. The
administrative judge then denied the appellant’s request on the basis that he failed
to indicate that he attempted to discuss the anticipated testimony with either of
the individuals as required by the order. IAF, Tab 17 at 1-2. We find no abuse of
discretion in the administrative judge’s denial of the appellant’s witness es based
on his failure to discuss their anticipated testimony in advance. See Lopes v.
Department of the Navy , 119 M.S.P.R. 106 , ¶ 11 (2012) (stating that r ulings
regarding the exclusion of evidence are subject to review by the Board under an
abuse of discretion standard). Without talking to the witness es, the appellant
could no t confirm the accuracy of his proffers. See Franco v. U.S. Postal Service ,
27 M.S.P.R. 322 , 325 (1985) (finding that an administrative judge has wide
discretion to exclude witnesses when it has not been shown that their testimony
would be relevant, material, and nonrepetitious).
¶4 Next, the appellant challenges the administrative judge’s conclusion that he
failed to prove his affirmative d efense of disability discrimination on the basis of
failure to accommodate. PFR File, Tab 1 at 7 -9. To this end, the appellant
argues that the administrative judge erred in finding that he failed to show that he
was a qualified individual with a disabili ty and contends that the agency should
have accommodated him by granting his request for a voluntary change to a
lower -graded position as a Military Service Coordinator (MSC). Id. The record
reflects that the appellant requested an accommodation in the f orm of a transfer to
a new position away from his current supervisor with flexible hours, the option to
telework, and/or a change to a new work environment in which he would be able
to interact with other coworkers, veterans, and the general public. IAF, Tab 6
at 99-100. In addressing the appellant’s claim that the agency failed to
reasonably accommodate him, the administrative judge found that, assuming that
4
the appellant met the definition of disabled, he was not a qualified individual with
a disability because he did not identify any accommodation or manner of
modifying his RVSR position that would have allowed him to perform the
essential functions of his position and he failed to explain how he was qualified
to fill the MSC position based on his résum é and personnel file. IAF, Tab 19 ,
Initial Decision (ID) at 19 -21. The administrative judge also credited testimony
that RVSRs and MSCs review similar documents and follow a similar process of
examining and evaluating cases at the intake level and, thus, found that the
appellant was not qualified for the MSC position based on his unacceptable
performance as an RVSR. ID at 20 -21. We discern no material error in the
administrative judge’s analysis and, therefore, discern no basis to disturb his
conclusion that the appellant failed to show that the agency discriminated against
him by failing to provide him with a reasonable accommodation .
¶5 Moreover, to the extent the appellant’s request for a transfer amounted
merely to a request for reassignment to a new supervisor, such a request does not
constitute a request for reasonable accommodation. See, e.g. , Roberts v.
Permanente Medical Group , Inc., 690 F. App’x 535, 536 (9th Cir. 2017) (holding
that a request for a new supervisor is per se unreasonable under Equal
Employment Opportunity Commission guidelines); Gaul v. Lucent Technologies
Inc., 134 F.3d 576 , 581 (3d Cir. 1998) (holding that a request to be transferred
away from a supervisor who was causing a plaintiff stress was unre asonabl e as a
matter of law ); Weiler v. Household Finance Corporation , 101 F.3d 519 , 526 -27
(7th Cir. 1996) ( holding that failure to grant the pl aintiff’s request for
reassignment to a different supervisor did not constitute a failure to grant a
reasonable accommodation).
¶6 Finally, the appellant’s contention on review that the agency failed to
engage in the interactive process, PFR File, Tab 1 at 8 -9, is not supported by the
record, which demonstrates that the agency repeatedly sought clarification from
5
the appellant concerning the nature and effect of his disabilities and the particular
accommodations he was seeking, IAF, Tabs 6 -7.
We modify the initial decision to clari fy the legal standard applicable to the
appellant’s claim of EEO reprisal.
¶7 The appellant does not discernably challenge the administrative judge’s
conclusion that he failed to prove his affirmative defense of reprisal for prior
protected EEO activity ; howe ver, we modify the initial decision to clarify the
applicable legal standard.
¶8 Here, the appellant alleged before the administrative judge that the agency
had retaliated against h im due to numerous instances of prior EEO activity , i.e.,
requesting a reasona ble accommodation and filing complaints wherein he alleged
disability discrimination . ID at 23 . In analyzing the appellant’s EEO reprisal
claim , the administrative judge relied on the motivating factor standard set forth
in Savage v. Department of the Army , 122 M.S.P.R. 612 (2015), overruled in part
by Pridgen v. Office of Management and Budget , 2022 MSPB 31, ¶¶ 23-25.2 ID
at 21-26. Although the motivating factor standard enumerated in Savage is
applicable to claims alleging retaliation for EEO activi ty pertaining to
discrimination on the basis of sex, race, and age , EEO activity alleging disability
discrimination is protected by the Americans with Disabilities Act, as amended by
the Americans with Disabilities Act Amendments Act of 2008 ( ADAAA ), and,
therefore, subject to a different legal standard. See Pridgen , 2022 MSPB 31,
¶¶ 35, 37, 40 (recognizing that complainin g of disability discrimination is an
activity protected by the ADAAA and explaining that the motivating factor
standard is therefore inapplicable to claims of retaliation related thereto ). In
2 In so doing, the administrative judge referenced direct evidence and types of
circumstantial evidence ; however, we find no indication that he disregarded any
evidence because of its direct or circumstantial nature. ID at 22-23; see Gardner v.
Department of Veterans Affairs , 123 M.S.P.R. 647 , ¶ 30 (2016) , clarified by Pridgen ,
2022 MSPB 31 , ¶¶ 23 -24.
6
Pridgen , the Board recognized that, for an ADAAA retaliation cl aim, the
appellant must prove “but for” causation. Id., ¶ 40.
¶9 Although the administrative judge here did not consider or apply the more
stringent “but for” standard, b ecause we agree with his conclusion that the
appellant failed to meet the lesser burden of proving that any of h is protected
activity was a motivating factor in his removal, the appellant necessarily failed to
meet the more stringent “but for” standard that applies to his ADAAA retaliation
claim .3 ID at 2 5; see Clay v. Department of the Army , 123 M.S.P.R. 245 , ¶ 9
(2016) .
Remand is required in light of Santos .
¶10 In affirming the appellant’s performance -based removal, the administrative
judge correctly cited and applied the Board’s precedent setting forth the relevant
legal standard for such actions under chapter 43. ID at 5 -13. In so doing, he
acknowledged that the appellant had challenged whether his placement on the PIP
was justified , but he explained that the agency was not required to demonstrate
that the appellant’s pre -PIP performance had been unacceptable. ID at 8 -9.
Subsequent to the initial decision, however , the Federal Circuit held for the first
time that , to support an adverse action under chapter 43, an agency “must justify
institution of a PIP” by showing that the employee’s performance was
unacceptable prior to the PIP. Santos , 990 F.3d at 1360 -61. Therefore, to defend
an action under chapter 43, an agency must now also prove by substantial
evidence that the appellant’s performance dur ing the appraisal period prior to the
PIP was unacceptable in one or more critical elements. See Lee v. Department of
Veterans Affairs , 2022 MSPB 11, ¶ 15. The Federal Circuit’s decision in Santos
applies to all pending cases, including this one, regardless of when the events
3 Because we discern no error with the administrative judge’s motivating factor analysis
or conclusion regarding this claim , it is unnecessary for us to address whether the
appellant’s alleged disability was a “but for” cause of the removal action. See Pridgen ,
2022 MSPB 31 , ¶¶ 20 -25, 30 .
7
took place. Id., ¶ 16. We therefore remand this case for further adjudication of
the appellant’s removal unde r the standard set forth in Santos . See Santos ,
990 F.3d at 1363 -64 (remanding the appeal for further proceedings under the
modified legal standard); see also Lee 2022 MSPB 11, ¶ 16 (remanding the
appellant’s chapter 43 appeal because the parties were not informed of the
modified standard set forth in Santos ).
¶11 On remand, the administrative judge shall accept evidence and argument on
whether the agency proved by substantial evidence that the appellant’s pre -PIP
performance was unacceptable. The administrative judge shall hold a
supplemental hearing if appropriate. The administrative judge shall then issue a
new initial decision consistent with Santos . If the agency makes the additional
showing required under Santos on remand, the administra tive judge may
incorporate his prior findings on other elem ents of the agency’s case in the
remand initial decision. However, regardless of whether the agency meets its
burden, if the argument or evidence on remand regarding the appellant’s pre -PIP
performance affects the analysis of the app ellant’s affirmative d efenses, the
administrative judge should address such argument or evidence in the remand
initial decision. See Spithaler v. Office of Personnel Management , 1 M.S.P.R.
587, 589 (1980) (explaining that an initial decision must identify all material
issues of fact and law, summarize the evidence, re solve issues of credibility, and
include the administrative judge’s conclusions of law and his legal reasoning, as
well as the authorities on which that reasoning rests ).
8
ORDER
¶12 For the reasons discussed above, we grant the appellant’s petition for
review, modify the initial decision to clarify the legal standard applicable to the
appellant’s claim of EEO reprisal , and remand this case to the regional office for
further adjudication consistent with Santos .
FOR THE BOARD:
Washington, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board | MEEKINS_ERIC_SF_0432_17_0005_I_1_REMAND_ORDER__2006802.pdf | 2023-02-28 | null | SF-0432 | NP |
3,450 | https://www.mspb.gov/decisions/nonprecedential/CLINE_LORI_Y_SF_0845_15_0690_I_2_FINAL_ORDER_2006834.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
LORI Y. CLINE,
Appellant,
v.
OFFICE OF PERSONNEL
MANAGEMENT,
Agency.
DOCKET NUMBER
SF-0845 -15-0690 -I-2
DATE: February 28, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL1
Lori Y. Cline , Huntington Beach, California, pro se.
Jane Bancroft , Washington, D.C., for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
Tristan L. Leavitt, Member
FINAL ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
affirme d the June 30, 2015 reconsideration decision of the Office of Personnel
Management (OPM) terminating her Civil Service Retirement System (CSRS)
disability annuity because she was restored to earning capacity and finding her
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such or ders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significan tly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c).
2
ineligible for a waiver of a res ulting overpayment of her disability benefits or a
repayment schedule adjustment . 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 re quired 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 clos ed. Title 5
of the Code 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 est ablished any basis under section 1201.115 for granting the petition for
review. Therefore, we DENY the petition for review . We VACATE in part and
AFFIRM in part the initial decision, as MODIFIED , to more fully address the
appellant’s claimed entitlement to a waiver .
BACKGROUND
¶2 The appellant retired on disability from her PS-05 Clerk position with the
U.S. Postal Service in 2007. Cline v. Office of Personnel Management ,
SF-0845 -15-0690 -I-1, Initial Appeal File ( IAF), Tab 8 at 87. On June 3, 2013,
OPM not ified her that it had determined that her private -sector income for 2011
exceeded the amount she could earn and remain eligible for a disability retirement
annuity . Id. at 68. On July 17, 2013, OPM advised her that it terminated her
annuity effective Jun e 30, 2012, because , based on this income, she had been
restored to earning capacity in 2011 . Id. at 50; see 5 U.S.C. § 8337 (d) (providing,
in pertinent part, that a CSRS disability retirement an nuity terminates 180 days
after the end of a calendar year in which an annuitant under 60 years old is
restored to earning capacity) . OPM further notified her that because her
3
payments should have terminated effective June 30, 2012, she received an
overpa yment , totaling $20,128.16. IAF, Tab 8 at 50. On June 30, 2015, OPM
issued a reconsideration decision affirming its earlier finding s.2 Id. at 6-8. OPM
denied her request for a waiver because she was not entirely without fault for the
overpayment and re covery would not be against equity and good conscience . Id.
at 7-8. OPM offered to allow her to repay the overpayment in full or to pay $100
in 201 monthly installments with one final installment of $28. 16 through its
voluntary repayment program. Id. at 8.
¶3 The appellant filed a Board appeal challenging OPM’s reconsideration
decision. IAF, Tab 1. She admitted to exceeding the restoration to earning
capacity (REC ) threshold for her Postal position and to receiving an overpayment .
Cline v. Office of Pers onnel Management , MSPB Docket No. SF-0845 -15-0690 -I-
2, Refiled Appeal File (RAF) , Tab 9 at 5; see 5 C.F.R. § 831.1209 (a) (defining
the REC threshold as income that is 80 percent or more of the current rate of
basic pay for the position from which an annuitant retired ). However, she
claimed that in considering her request for a waiver, OPM should have used a
different Postal position with a higher pay rate. RAF, Tab 9 at 5. According t o
the appellant, if the higher pay rate were used, she would have exceeded her REC
threshold by approximately $200, rather than by $1,000. Id. She also alleged
that she only exceeded the threshold because OPM failed to respond to her
questions about her Postal pay rate and her non -Federal employer unexpectedly
forced her to work overtime. Id. at 6-9. She further argued that repayment would
cause her financial hard ship because her claimed expenses significantly exceed ed
her average monthly income ; that s he detrimentally relied on her disability
annuity in incurring su bstantial student loan debt ; and that it would be unjust to
2 OPM’s reconsideration decision apparently erroneously identified the appellant as a
Federal Employee Retirement System (FERS) disability annuitant . However, t he
appellant’s application for retirement, OPM’s letter granting her retirement, and OPM’s
initial decision all indicate that the appellant was receiving CSRS disability annuity
benefits. IAF , Tab 8 at 6, 50, 73-89.
4
require her to repay a debt vastly disproportionate to the $200 by which she went
over the threshold , given her personal, health, a nd financial condition s. Id.
at 10-17. OPM challenged the appellant’s claimed expenses for her storage unit,
transportation, student loans, and adult children . IAF, Tab 8 at 5.
¶4 After the appellant withdrew her request for a hearing, the administrative
judge issued an initial decision affirming OPM’ s reconsideration decision based
on the written record. RAF, Tab 7 at 4, Tab 13, Initial Decision (ID) at 1-2, 15 .
He found that OPM established by preponderant evidence an overpayment of
$20,128.16. ID at 5. He further found that the appellant was not without fault as
to the overpayment because she did not disclose her non-Federal earnings when
she contacted OPM between January and March 2011 to inquire about her REC
threshold or pursue her inquiry after Ma rch 2011, de spite not receiving an answer
from OPM. ID at 6-9. He further found that her age, her physical and mental
condition, and the nature of her contacts with OPM did not mitigate her
culpability . Id. As such, he did not address the appellant’s a rguments that
recovery would be against equity and good conscience . Finally, he found that the
appellant was not entitled to a schedule adjustment because , after adjusting and
disallowing some of her claimed expenses, she had sufficient monthly income to
meet the repayment schedule . ID at 9-15.
¶5 The appellant has filed a petition for review, to which the agency has
submitted a pro forma response. Cline v. Office of Personnel Management ,
MSPB Docket No. SF-0845 -15-0690 -I-2, Petition for Review (PFR ) File, Tabs 1,
4.
5
DISCUSSION OF ARGUME NTS ON REVIEW
The administrative judge correctly found that OPM met its burden of proving that
the appellant received an overpayment.3
¶6 On review, the appellant advances no arguments contesting the
administrative judge’s deter mination that her 2011 income was more than 80% of
the current rate of pay for her most recent Postal position or that she continued to
receive disability annuity payments after the June 30, 2012 effective termination
date until July 17, 2013. PFR File, T ab 1 ; ID at 5 . She therefore has shown no
error , and we discern none, in the administrative judge’s finding that OPM met its
burden of proving by preponderant evidence an overpayment of $20,128.16 . ID
at 5; see 5 U.S.C. § 8337 (d) (stating that a CSRS disability annuity terminates
180 days after the end of the calendar year in which the annuitant’s income equals
at least 80% of the current rate of pay of the position occupied immediately
before re tirement); 5 C.F.R. § 831.1209 (a) (same) .
Although t he administrative judge erred in finding the appellant at fault in
causing the overpayment, she still is not entitled to a waiver .
¶7 The appellant argues that the administrative judge erred in finding her at
fault in causing the overpayment because she did not and should not have been
expected to know that she exceeded her 2011 REC threshold before OPM
contacted her about the issue in Jun e 2013 .4 PFR File, Tab 1 at 4-8. Recovery of
3 We find that the administrative judge’s reliance on FERS statutes and regulations, as
opposed to CSRS , in analyzing the appellant’s disability retirement appeal does not
affect the outcome of the appeal, as the statutes, regulations, and case law generally are
parallel. Compare 5 U.S.C. §§ 8337 (d), 8346(b) (contai ning relevant CSRS
provisions), with 5 U.S.C. §§ 8455 (a)(2), 8470( b) (containing relevant FERS
provisions); see James v. Office of Personnel Management , 72 M.S.P.R. 211 , 216 n.3
(1996) (observing th at the Board may rely on case law developed under the CSRS in
deciding FERS overpayment appeals because the relevant regulations generally are
parallel ); 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) .
4 The appellant also argues that finding her at fault for the overpayment because she did
not continue to inquire with OPM about her 2011 REC threshold contradicts the
6
an overpayment from the Civil Service Retirement and Disability Fund may be
waived if the annuitant is without fault and recovery would be against equity and
good conscience. 5 U.S.C. § 8346 (b); 5 C.F.R. § 831.1401 . The appellant bears
the burden of establishing her entitlement to a waiver by substantial evidence .5
5 C.F.R. § 831.1407 (b).
¶8 Under 5 C.F.R. § 831.1402 (a), pertinent cons iderations in finding fault are
whether the payment result ed from the annuitant ’s incorrect but not necessarily
fraudulent statement, which she should have known to be incorrect; whether
payment resulted from the individual’s failure to disclose material facts in her
possession which she should have known to be m aterial; or whether she accepted
a payment which she knew or should have known to be erroneous.
¶9 As here, in Fearon v. Office of Personnel Management , 107 M.S.P.R. 122 ,
¶¶ 3, 6 (2007), the Board considered whether an appellant, who had been restored
to earning capacity after exceeding her REC threshold, was at fault for an
overpayment that accrued after her benefit s should have been terminated . In
Fearon , the appellant signed a sworn statement averring that she correctly
reported her earned income, whereas OPM failed to submit a copy of the
appellant’s earned income report for the relevant year or pro vide any evidence
indicating tha t she underreported her income. Id., ¶ 9. As a result, the Board
found that the appellant had not made any incorrect statement of omissions of
material fact that delayed the termination of her disability benefits. Id.
Supreme Court’s holding in Office of Personnel Management v. Richmond , 496 U.S.
414 (1990), which she claims stands for the proposition that OPM must disclose
accurate information in response to inquiries and that inquirers may reasonably rely on
this inform ation . PFR File, Tab 1 at 7. We disagree. In Richmond , the Supreme Court
held that OPM could not be equitably estopped from denying benefits not otherwise
permitted by law, even if the claimant was denied monetary benefits because of his
relian ce on the mistaken advice of a G overnment official . 496 U.S. at 430-32.
5 Substantial evidence is defined as the degree of relevant evidence that a reasonable
person, considering the record as a whole, might accept as adequate to support a
conclusion, even though other reasonable persons might disagree. This is a lower
standard of proof than preponderance of the evidence. 5 C.F.R. § 1201.4 (p).
7
Similarly, here, OPM did not provi de the appellant’s 2011 earning statement or
claim that she failed to provide this information , and she stated that she submitted
all of the relevant information to OPM.6 IAF, Tab 8 at 69 -70; RAF, Tab 9 at 8,
Tabs 10, 12 .
¶10 Furthermore, even if the appellan t was on notice of the 80% income
limitations, it does not necessarily mean that she knew or should have known that
her earnings exceeded the limit. Zelenka v. Office of Personnel Management ,
107 M.S.P.R. 522, ¶ 8 (2007). While she could have visited OPM ’s website,
located the relevant Postal Service salary table on the internet , and made the
requisite calculations, it was not h er responsibility to do so. Id. Rather, it was
OPM ’s responsibility to determine her continued entitlement to payments based
on her earned income report. Id.; 5 C.F.R. § 831.1209 (i). The appellant alleged
that because OPM did not respond to her inquiries and she submitted what she
believed to be the relevant information, she presumed that her continued receipt
of benefits was appropriate . RAF , Tab 9 at 8-9. Once an appellant fulfil ls her
obligations by submitting an earnings report to OPM, she has reason to expect
that OPM will make the correct determination on her eligibility and, if the
payments continue, to presume that she is entitled to them, unless OPM notifies
her otherwise . Zelenka , 107 M.S.P.R. 522, ¶ 8.
¶11 Hence, the record does not establish that the appellant made any incorrect
statements or omiss ions of material fact that delayed the termination of her
disability annuity , or that she knew or should have known that the payments
received after June 30, 2012, constituted an overpayment , at least until OPM’s
June and July 2013 notices . Id. We find t hat the appellant met her burden to
prove that she was without fault in causing the overpayment and modify the
initial decision accordingly .
6 Although OPM’s June 2013 letter generally referenc es a potential discrepancy in the
earnings that the appellant reported to OPM and to SSA, OPM did not further explain
the apparent error. IAF, Tab 8 at 68 -69.
8
¶12 Nonetheless, the appellant is not entitled to a waiver of the overpayment
because she has not shown that recovery w ould be against equity and good
conscience. Generally, recovery is against equity and good conscience if it would
cause financial hardship, the annuitant can show that she relinquished a valuable
right or changed positions for the worse because of the ove rpayment, or recovery
would be unconscionable under the circumstances. 5 C.F.R. § 831.1403 (a). The
appellant alleges that the administrative judge improperly reduced her claimed
month ly expenses and failed to consider her additional arguments supporting her
claims that recovery would be against equity and good conscience . PFR File,
Tab 1 at 8 -9. We find that these allegations provide no basis for reversing the
administrative judge’s denial of the appellant’s request for a waiver of the
overpayment .
¶13 Financial hardship warrants waiver of an overpayment of disability
retirement benefits if the appellan t needs substantially all of her current income
and liquid assets to meet current ordin ary and necessary living expenses and
liabilities. 5 C.F.R. § 831.1404 . Although t he administrative judge did not reach
the appellant’s arguments that recovery would be ag ainst equity and good
consci ence , his adjudication of her entitlement to an adjustment of the recovery
schedule is instructive in determining her entitlement to a waiver based on
financial hardship. ID at 9-15; see Derrico v. Office of Personnel Management ,
42 M.S.P.R. 491 , 499 , nn.8 -9 (1989) (finding that an appellant who has not
established entitlement to waiver based on financial hardship may stil l be entitled
to an adjustment of her recovery schedule based on a less demanding showing of
financial hardship) ; 5 C.F.R. § 831.1401 (explaining that an individual ineligible
for a wai ver may be entitled to a repayment schedule adjustment based on
financial hardship) . Although we are free to reweigh the evidence and substitute
our own judgment on credibility issues involving these claims because the
administrative judge’s findings are not based on observations of witnesses’
9
demeanor , we generally agree with his analysis . See Haebe v. Department of
Justice , 288 F.3d 1288 , 1302 (Fed. Cir. 2002).
¶14 The appellant challenges the administrative judge’s disallowance of her
children’s education and transportation expenses , and contend s that he
significantly undervalued two of her monthly student loan obligations because he
relied on ou tdated monthly payment schedules for these loans . PFR File, Tab 1
at 8-9. Car and student loan payments may be ordinary and necessary expense s if
incurred before th e appellant became aware of the overpayment and the appellant
is legally responsible for t he loan s. Wagner v. Office of Personnel Management ,
83 M.S.P.R. 355 , ¶ 11 (1999).
¶15 The administrative ju dge allowed the actual educ ation expenses for the
appellant’s son ; therefore, we discern no error in this finding. ID at 11.
Additionally, the appellant apparently is not legally responsible for the car loan,
insurance, or other payments related to the vehic les titled in the names of her
adult children, whom she does not claim on her taxes as dependents. ID at 11-13.
We therefore find no error in the administrative judge’s disallowance of those
claims , and we note that he allowed reasonable expenses related to the appellant’s
vehicle. ID at 13-14; see Wagner , 83 M.S.P.R. 355 , ¶ 11 (observing that
repayment of car loans may be a necessary and ordinary expens e and instructing
the administrative judge on remand to consider whether the appellant could
discharge the loan by selling his car) .
¶16 Despite the appellant’s arguments otherwise, the information provided does
not indicate that her designated monthly obligat ion for student loan s 1153 and
1161 have increased. IAF, Tab 25 at 58-60, Tab 26 at 4-19; PFR File, Tab 1
at 5-6. Rather, the higher figures apparently reflect a past due amount. IAF,
Tab 25 at 59. The appellant has not indicated any change in the rema ining acti ve
loans, which total $92.77 per month . IAF, Tab 26 at 20-27. Her future
obligations throughout the overpayment collection period for the student loans
without current monthly installments are too indeterminate to be factored into her
10
present o rdinary and necessary expenses. IAF, Tab 25 at 52 -57; RAF, Tab 9 at 6;
see Malone v. Office of Personnel Management , 113 M.S.P.R . 104 , ¶ 11 (2010)
(holding that speculative estimates of potential future expenditures should not be
included in the appellant’s ordinary and necessary expenses). We agree with the
administrative judge that the appellant has identified an actual monthly student
loan obligation of $458.74, as opposed to the $1,045 .18 that she claimed. ID
at 14-15. As such, the appellant’s average monthly expenses, includ ing $50 for
emergencies, total $1,904.39, leaving her with an excess income of $385.78 per
month.7 We therefore find that she is not entitled to a waiver based on financial
hardship.8
¶17 The appellant also reasserts that she detrimentally relied on her disability
payments in incurring her student loan debt. RAF, Tab 9 at 11 -13; PFR File,
Tab 1 at 10 . We d isagree. To qualify for a waiver on this basis, the appellant
must meet all of the following criteria: (1) s he must have relinquished a valuable
right or changed positions for the worse as a direct result of the overpayment or
the notice that such paymen t would be made; (2) the loss or change must have
been detrimental to her; (3) the loss or change must be material; and (4) the loss
7 The monthly expense total calculated by the administrative judge does not include the
$50 for emergency expenses, despite his contention otherwise. ID at 14 -15; see
Maseuli v. Office of Personnel Management , 111 M.S.P.R. 43 9, ¶ 12 (2009) (explaining
that OPM allows $50 in emergency expenses per month in calculating repayment
schedules) . We therefore add the $50 to the appellant’s average monthly expenses of
$1,854.39, for a total of $1 ,904.39. We have not made any further adjustments to the
administrative judge’s calculations of the appellant’s expenses.
8 Although the appellant generally disagrees with the administrative judge’s
adjustments, she does not directly challenge, and we discern no error in, his remaining
adjust ments to her claimed expenses for her utilities, storage unit, personal vehicle,
beauty/gym/other health, or therapy dog. PFR File, Tab 1 at 8. The administrative
judge allocated the actual amount for the appella nt’s storage unit. ID at 13 . The
appella nt did not provide sufficient explanation for the claimed amount for her car in
response to OPM’s inquiry , despite having an opportunity to do so . IAF, Tab 24
at 13-17, 25 -26, Tab 29; RAF, Tabs 3, 8. The remaining expen ses were facially
unreasonable base d on the amount claimed, especially given that the appellant
apparently shares hous ehold expenses with her parents . ID at 11 -14.
11
or change must be irrevocable . Maples v. Office of Personnel Management ,
48 M.S.P.R. 572 , 577 (1991). Here, the appellant has made no such showing.
Her student loans originated in 2001, 2007, 2008, and 2009, at least 3 years
before the overpayment occurr ed. IAF, Tab 26 at 4, 10, 15, 20, 24 -25. Thus, her
student loan debt was a preexisting obligation. See Maples , 48 M.S.P.R. at 578
(finding that , although t he appellant used the overpayment to repay her home
mortgage loan, she did not detrim entally rely on the overpayment because the
loan predated the overpayment). We therefore find that the appellant did not
relinquish a valuable right as a direct result of the overpayment.
¶18 Next , the appellant alleges that recovery would be unconscionable given her
recent personal circumstances, inability to pursue gainful employment due to her
disabling conditions, compounding student loan debt , and OPM’s failure to timely
notify her of her 2011 earning capacity . RAF, Tab 9 at 13-17; PFR File, Tab 1
at 8, 10 -11. She may be entitled to a waiver if she can show that rec overy would
be unconscionable. 5 C.F.R. § 831.1403 (a)(3). The Board consider s all re levant
factors using a totality of the circumsta nces approach to determine if recovery of
an annuity overpayment is unconscionable in a given case. Maples , 48 M.S.P.R.
at 578. Such circumstances include, but are not limited to, when there has been
an exceptionally lengthy delay by OPM in adjusting an annuity, or when OPM is
otherwise grossly negligent in handling the case. Spinella v. Office of Personnel
Management , 109 M.S.P.R . 185 , ¶ 7 (2008). The Board also considers general
principles of equity and fairness, such as the appellant’s personal circumstances,
including her lack of education, disability, or some other factor that makes
collection manifestly unfair. Maples , 48 M.S.P.R. at 578-79. However , the
unconscionability standard is a high one, and a waiver based on this standard will
be granted only under exceptional circumstances. Spinella , 109 M.S.P.R. 185 ,
¶ 7.
¶19 While we do not excuse OPM for not conducting a timelier audit , we find
that its 1-year delay between the June 30, 2012 effective termination date and the
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June 2013 audit and the June a nd July 2013 overpayment notice s does not
constitute an exceptionally lengthy delay . See id., ¶¶ 8, 10 (finding that a
79-month delay alone was insufficient to establish unconscionability ).
Furthermore, although OPM did not respond to the appellant’s inq uiries about her
2011 REC threshold, she has not shown that OPM handled her case in a grossly
negligent manner. The appellant does not claim that OPM provided her with the
information based on which she miscalculated her REC threshold . PFR File,
Tab 1 at 5 n.2. As the appellant is highly educated, currently 53 years old , and
according to OPM, no longer suffering from a disabling condition qualifying her
for CSRS disability retirement benefits , we cannot find that collection against her
would be manifestl y unfair. IAF, Tab 8 at 27; RAF, Tab 5 at 5, Tab 9 at 13 ; see
Maples , 48 M.S.P.R. at 578-79 (discussing the factors relevant to a finding that
collection is manifestly unfair ). As a result, we find that the appellant has not
met her burden of showing by substantial evidence her entitlement to a waiver
based o n unconscionability.
¶20 Except as modified, w e agree with the administrative judge’s affirmance of
OPM’s denial of the appellant’s request for a waiver.
The Board lacks authority to adjust the appellan t’s repayment schedule.
¶21 The administrative judge analyzed and made findings concerning the
appellant’s entitlement to a s chedule adjustment. ID at 9-15. Yet, the scope of
this appeal is limited to determinations of actions or orders b y OPM that affect
the appellant’ s “rights or interests” under the CSRS. 5 U.S.C. § 8347 (d)(1);
Zelenka , 107 M.S.P.R. 522 , ¶ 13. If she were receiving a CSRS annuity or some
other administrative benefit from which her overpayment may be administratively
offset, then a reduction in that benefit to recover an overpayment would affect her
rights and interests under the CSRS an d fall within the Board’s jurisdiction.
Alexander v. Office of Personnel Management , 114 M.S. P.R. 122 , ¶¶ 11-12
(2010) ; Zelenka , 107 M.S.P.R. 522 , ¶¶ 11-13. However, she is not receiving such
an annuity, and OPM’s atte mpts to recover the overpayment by other means,
13
whether by persuading her to enter into a repayment agreement, or by referring
the matter to the Department of the Treasury or the Department of Justice, do not
affect her rights or interest under the CSRS. IAF, Tab 24 at 4 -8; Zelenka ,
107 M.S.P.R. 522 , ¶ 13. We therefore lack the authority to adjudicate the
appellant’s entitlement to an adjustment of the recovery schedule , and we vacate
the initial decision regarding these finding s. Id.
¶22 Accordingly, we deny the petition for review , and we vacate in part and
affirm in part , as modified, the initial decision affirming OPM’s June 30, 2015
reconsideration decision.9
NOTICE OF APPEAL RIG HTS10
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 w ith which to file. 5 U.S.C. § 7703 (b). Although we offer the following
summary of available appeal rights, the Merit Systems Protection Board does not
provide legal advice on which option is mos t appropriate for your situation and
the rights described below do not represent a statement of how courts will rule
regarding which cases fall within their jurisdiction. If you wish to seek review of
this final decision, you should immediately review the law applicable to your
9 OPM has advised the Board that it may seek recovery of any debt remaining upon an
appellant’s death from the appellant’s est ate or other responsible party. A party
responsible for any debt remaining upon the appellant’s death may include an heir
(spouse, child , or other) who is deriving a benefit from the appellant’s Federal benefits,
an heir or other person acting as the repr esentative of the estate if, for example, the
representative fails to pay the United States before paying the claims of other creditors
in accordance with 31 U.S.C. § 3713 (b), or transferees or d istributers of the appellant’s
estate. Pierotti v. Office of Personnel Management , 124 M.S.P.R. 103 , ¶ 13 (2016).
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.
14
claims and carefully follow all filing time limits and requirements. Failure to file
within the applicable time limit may result in the dismissal of your case by your
chosen forum.
Please read carefully each of the three main possi ble choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review i n general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of is suance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S . Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
15
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were aff ected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a ci vil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703 (b)(2); see Per ry v. Merit Systems
Protection Board , 582 U.S. ____ , 137 S. Ct. 1975 (2017). If you have a
representative in this case, and your repre sentative receives this decision before
you do, then you must file with the district court no later than 30 calendar days
after your representative receives this decision. If the action involves a claim of
discrimination based on race, color, religion, se x, national origin, or a disabling
condition, you may be entitled to representation by a court -appointed lawyer and
to waiver of any requirement of prepayment of fees, costs, or other security. See
42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a .
Contact info rmation for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of th e EEOC is:
16
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in sec tion 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.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 st atutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently a llows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195,
132 Stat. 1510.
17
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Feder al Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circ uit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interes ted in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appell ants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
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 | CLINE_LORI_Y_SF_0845_15_0690_I_2_FINAL_ORDER_2006834.pdf | 2023-02-28 | null | SF-0845 | NP |
3,451 | https://www.mspb.gov/decisions/nonprecedential/MYERS_WANDA_L_AT_3443_17_0039_I_1_FINAL_ORDER_2006845.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
WANDA L. MYERS,
Appellant,
v.
DEPARTMENT OF VETERA NS
AFFAIRS,
Agency.
DOCKET NUMBER
AT-3443 -17-0039 -I-1
DATE: February 28, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL1
Fateen Anthony Bullock , Esquire, and James Jones , Atlanta , Georgia, for
the appellant.
Deetric M. Hicks , Decatur, Georgia, for the agency.
BEFORE
Cathy A. Harris , Vice Chairman
Raymond A. Limon , Member
Tristan L. Leavitt , Member
FINAL ORDER
¶1 The appellant has filed a petition for revie w of the initial decision, which
dismissed the appeal for lack of jurisdiction . Generally, we grant petitions such
as this one only in the following circumstances: the initial decis ion contains
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
require d to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c).
2
erroneous findings of material fact; the initial decision is based on an erroneous
interpretation of statute or regulation or the erroneous application of the law to
the facts of the case; the administrative judge’s rulings during either the c ourse of
the appeal or the initial decision were not consistent with required procedures or
involved an abuse of discretion, and the resulting error affected the outcome of
the case; or new and material evidence or legal argument is available that, despite
the petitioner’s due diligence, was not available when the record closed. Title 5
of the Code of Federal Regulations, section 1201.115 ( 5 C.F.R. § 1201.115 ).
After fully considering t he filings in this appeal, we conclude that the petitioner
has not established any basis under section 1201.115 for granting the petition for
review. Therefore, we DENY the petition for review and AFFIRM the initial
decision, which is now the Board’s fina l decision. 5 C.F.R. § 1201.113 (b).
¶2 The appellant filed the instant appeal challenging her nonselection for a
promotion following a desk audit and requested a hearing . Initial Appea l File
(IAF), Tab 1. The administrative judge informed the appellant that she ha d the
burden of establishing jurisdiction by preponderant evidence and ordered her to
file evidence and argument that this appeal wa s within the Board’s jurisdiction .2
IAF, T ab 4. Although the appellant did not respond, the agency responded and
moved to dismiss the appeal for lack of jurisdiction. IAF, Tab 5. Without
holding the appellant ’s requested hearing , the administrative judge dismissed the
2 The administrative judge did not notify the appellant that the Board has jurisdiction
over certain nonselection appeals , such as when the appellant alleges that her veterans’
preference rights have been violated, claims of discrimination based upon her military
service, or assertions of whistleblower re prisal . IAF, Tab 4. However, because the
initial decision put the appellant on notice of what she must do to meet her
jurisdictional burden regarding such claims , this omission has been cured. See
Caracciolo v. Department of the Treasury , 105 M.S.P.R. 663 , ¶ 12 (2007) (finding that
the administrative judge’s failure to inform the appellant that she was required to show
an actual lowering of pay to establish jurisdiction in a reduction -in-pay appeal was
cured because the administrative judge mentioned this requirement in the initial
decision) , overruled on other grounds by Brookins v. Department of the Interior ,
2023 MSPB 3 .
3
appeal for lack of jurisdi ction , finding that the Board generally does not have
jurisdiction over nonselections such as this one and that the appellant failed to
allege jurisdiction under any of the exceptions to th is general rule . IAF, Tab 6,
Initial Decision (ID).
¶3 The appellant has filed a petition for review and a supplement thereto , and
the agency has responded in opposition to the appellant’s petition. Petition for
Review (PFR) File, Tabs 1 -2, 4.3 In her petition for review, the appellant
challenges the merits of her nonselection. PFR File, Tab 1. However, as
discussed below, these contentions do not provide a basis for disturbing the initial
decision.
¶4 As the administrative judge stated, t he Board’s jurisdiction is limited to
those matt ers over which it has been given jurisdiction by law, rule , or regulation .
ID at 2; see Maddox v. Merit Systems Protection Board , 759 F.2d 9 , 10 ( Fed. Cir.
1985). We agree with the administrative judge that the Board generally does not
have jurisdiction over promotion denials or classification matters. ID at 2; see
5 U.S.C. §§ 7512 , 7513; Mapst one v. Department of the Inter ior, 106 M.S.P.R.
691, ¶ 7 (2007). Further, we agree with the administrative judge that, although
the Board has jurisdiction over certain nonselections under the Veterans
Employment Opportunities Act of 1998 and the Uniformed Services Employment
and R eemployment Rights Act of 1994 (USERRA) , the Board does not have such
jurisdiction here becaus e of the following: the appellant indicated that she was
not entitled to veterans’ preference , she did not claim that the agency violated her
rights under USERRA , and there is otherwise no indication that she is asserting
such claims . ID at 3; IAF, Tab 1 ; see 5 U.S.C. §§ 3330a , 3330b; 38 U.S.C.
§§ 4301 -4335 . Additionally, we agree with the administrative judge that the
Board does not ha ve jurisdiction over this appeal as an individual right of action
3 On review, the appellant attaches evidence that she previously submitted below . PFR
File, Tabs 1 -2. Because this evidence is neither new nor material, we have not
considered it. 5 C.F.R. § 1201.115 (d).
4
(IRA) appeal because there is no evidence that the appellant exhausted her
administrative remedies before the Office of Special Counsel (OSC) or made
nonfrivolous allegations of the required elements in such an appeal. ID at 3 n.2;
see 5 U.S.C. §§ 1214 (a)(3) , 1221 (e)(1), 2302 (a), (b)(8),(9) (A)(i),(B),(C),(D); see
also Salerno v. Department of the Interior , 123 M.S.P.R. 230, ¶ 5 (2016).4
Finally , absent an otherwise appealable action, the appellant ’s other claim s do not
provide an indepe ndent basis for finding Board jurisdiction. Davis v. Department
of Defense , 103 M.S.P.R. 516 , ¶ 11 (2006).
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
appropria te for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applic able to your claims and carefully follow all
filing 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 Under the Whistleblower Protectio n Enhancement Act of 2012 , the Board has
jurisdiction over an IRA appeal if the appellant has exhausted h er administrative
remedies before OSC and makes nonfrivolous allegations of the following: (1) she
made a protected d isclosure described under 5 U.S.C. § 2302 (b)(8) or engaged in
protected activity described under 5 U.S.C. § 2302 (b)(9)(A )(i), (B), (C), or (D), and
(2) the disclosure or protected activity was a co ntributing factor in the agency’ s
decision to take or fail to take a personnel action as defined by 5 U.S.C. § 2302 (a). See
Salerno , 123 M.S.P.R. 230 , ¶ 5.
5 Since the issuance of the initial decis ion in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.
5
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 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
6
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. ____ , 137 S. Ct. 1975 (2017). If you have a
representative in this case, and your representative rece ives this decision before
you do, then you must file with the district court no later than 30 calendar days
after your representative receives this decision. If the action involves a claim of
discrimination based on race, color, religion, sex, national or igin, or a disabling
condition, you may be entitled to representation by a court -appointed lawyer and
to waiver of any requirement of prepayment of fees, costs, or other security. See
42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebs ites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
addr ess of the EEOC is:
7
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be ad dressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to yo u only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.6 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(B).
6 The original statutory provision that provided fo r judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court 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 Federa l
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are i nterested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the 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
respec tive 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 | MYERS_WANDA_L_AT_3443_17_0039_I_1_FINAL_ORDER_2006845.pdf | 2023-02-28 | null | AT-3443 | NP |
3,452 | https://www.mspb.gov/decisions/nonprecedential/GRANT_HAROLD_J_NY_0752_15_0234_I_1_FINAL_ORDER_2006853.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
HAROLD J. GRANT,
Appellant,
v.
UNITED STATES POSTAL SERVICE,
Agency.
DOCKET NUMBER
NY-0752 -15-0234 -I-1
DATE: February 28, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL1
Harold J. Grant , Bronx, 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
Tristan L. Leavitt , Member
FINAL ORDER
¶1 The appe llant has filed a petition for review of the initial decision, which
affirm ed 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 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.2 5 C.F.R. § 1201.113 (b).
¶2 Effective June 6, 2015, the agency remo ved the appellant, a
preference -eligible Letter Carrier, based on three charges: (1) absence without
leave beginning on May 20, 2014; (2) conduct unbecoming a Postal employee
based on his having submitted a fraudulent medical document to support an
absence; and (3) failure to follow instructions —four specifications wherein the
agency alleged that the appellant failed to re port for duty or provide supporting
documentation for his absenc e as directed on July 18, 2014 —and failed to report
for a Pre -Disciplinary interview as directed on August 19, September 13, and
December 18, 2014. Initial Appeal File (IAF), Tab 8 at 12 -15, 18-22. The
appellant challenged the action on appeal , IAF, Tab 1 , and alleged that the agency
committed harmful procedural error when it accessed his medical information as
part of the investigation it conducted into charge (2) , IAF , Tab 14. The appellan t
requested a hearing. IAF, Tab 1 at 2.
2 The appellant also filed a motion for leave to file additional pleadings. Petition for
Review File, Tab 6 at 2. In this motion, the appellant is seeking leave to submit “new
medical information.” Although the information he seeks leave to submit may be new,
he has failed to explain how the “new medical information” would warrant an outcome
different from that of the initial decision. Accordingly, the appellant’s motion for leave
to submit additi onal evidence is denied.
3
¶3 Thereafter, the administrative judge issued an initial decision affirming the
agency’s action. IAF, Tab 24, Initial Decision (ID) at 1, 20. Regarding
charge (1), s he found , based on the agency’s documentation and the hearing
testimony of the Manager, Customer Service, the Area Manager, and the
appellant’s Supervisor, and the appellant’s failure to refute th at evidence or
present any contrary evidence, that he was absent without authorization since at
least May 20, 2014. ID at 6. The administrative judge further found that, while
the appellant did submit leave requests covering several days of the time he was
absent, the agency fairly denied those requests as not properly submitted and that ,
other than the appellan t’s unsubstantiated claim that the agency lost the medical
documentation he submitted, there was no evidence to show that he requested
leave for the remainder of the time charged. ID at 6 -8. Accordingly, the
administrative judge found charge (1) sustaine d. See Savage v. Department of the
Army , 122 M.S.P.R. 612 , ¶ 28, n.5 (2015) , overruled in part by Pridgen v. Office
of Management and Budget , 2022 MSPB 31 , ¶¶ 23 -25.
¶4 The administrative judge analyzed char ge (2) , the “conduct unbecoming”
charge, as a charge of falsification. See C anada v. Department of Homeland
Security , 113 M.S.P.R. 5 09, ¶ 9 (2010) ; ID at 8 -10. She considered the results of
the report of i nvestigation that included interviews with , and sworn statements of ,
the clinic administrator and the medical professional whose name appeared on the
medical note the appellant submitted , along with testimony of the Special Agent
who conducted the investigation and the Manager , Customer Service . The
administrative judge found that, in support of a leave request, the appellant
submitted incorrect information relati ng to his alleged treatment by a medical
professional at a clinic on May 12, 2014 ,3 ID at 10 -12, that the incorrect
3 The administrative judge found , based on the record evidence, that the appellant was
seen twice at the clinic by an optometrist in 2007, not 2012, as the note indicated, that
the individual who allegedly signed the medical note worked there, but as a Physician’s
Assistant in the Dermatology Department, and so would not likely have given a
4
information coupled with a lack of any credible explanation or contrary action on
the appellant’s part constituted circumstantial evidence t hat he intended to
deceive the agency, O’Lague v. Department of Veterans Affairs , 123 M.S.P.R.
340, ¶ 6 (2016) , aff’d per curiam , 698 F. App’x 1034 (Fed. Cir. 2017) ; ID
at 12-13, and that , in doing so, he was seeking private material gain, that is, being
paid for leave to which he was not entitled, such that the falsification charge was
sustained, Boo v. Department of Homeland Securi ty, 122 M.S.P.R. 100 , ¶ 13
(2014) ; ID at 13 .
¶5 Regarding charge (3), the administrative judge found that all four
specifications were supported by documentary evidence showing that the
appellant received three of the letters and that, although the fourth was refused , it
was sent by certified mail , as well as by testimony from the appellant’s
Supervisor and the Manager, Customer Ser vice. ID at 14-15. The administrative
judge further found that, through these letters, the agency gave the appellant
instructions to follow but that he failed to follow them, Archerda v. Department
of Defense , 121 M.S.P.R. 314 , ¶ 22 (2014), and that therefore the charge was
sustained , ID at 15.
¶6 The administrative judge next addressed the a ppellant’s claim of harmful
procedural error. Here, the administrative judge found that the appellant failed to
set forth a regulation or a collective bargaining agreement statement that he
believed the agency violated, how it was violated, and that he wa s harmed
thereby. ID at 15 -16. The administrative judge considered the appellant’s
general claim that the agency violated his rights under the Health Insurance
Portability and Accountability Act of 1996 (HIPAA) and that , in conducting the
investigation, the investigator acted outside the scope of the Inspector General
prognosis of “back and blood pressure,” that she had never seen the appellant, and that
the signature on the note was not hers. ID at 10 -12; IAF, Tab 8 at 42.
5
Act of 1978 (IG Act).4 The administrative judge found, based on the testimony of
the investigator that the investigation was authorized by her supervisor who
reviewed it for authorization u nder the IG Act, that the investigator provided the
clinic administrator with a HIPAA Request for Information Letter before
speaking with her, and that both she and the individual who the appellant falsely
claimed signed his medical note were provided with the letter . ID at 16; IAF,
Tab 8 at 48 -49. The administrative judge further considered testimony of the
investigator to the effect that the records accessed included no medical records or
tests, but rather information as to when and by whom the appellan t was, or was
not, seen at the clinic , and the lack of any contrary evidence from the appellant.
The administrative judge concluded, therefore, that the appellant failed to
establish his claim of harmful procedural error. Lee v. Department of Labor ,
110 M.S.P.R. 355, ¶ 10 (2008) ; ID at 16 .
¶7 The administrative judge found that the ag ency proved that a nexus exists
between the sustained charges and the efficiency of the service . Archerda ,
121 M.S.P.R. 314 , ¶ 4; Valenzuela v. Department of the Army , 107 M.S.P.R. 549 ,
¶ 14 (2007); Tanner v. Department of Transportation , 65 M.S.P.R. 169 , 172
(1994); ID at 17 -18. Regarding the reasonableness of the penalty, t he
administrative judge further found that the deciding official considered the
relevant Douglas5 factors, both aggravating and mitigating, and that , therefore,
she need not independently weigh them . ID at 18 -19. Nonetheless, she found
that the multiplicity of charges w as sufficient to support the penalty of removal .
ID at 19 -20.
4 The IG Act of 1978 authorizes the agency’s OIG to investigate allegations of fraud,
waste, and abuse in programs and operations of the U.S. Postal Service, including
inve stigations of suspected workers’ compensation and leave benefits f raud and a buse .
IAF, Tab 8 at 48 .
5 Douglas v. Veterans Administration , 5 M.S.P.R. 280 , 306 (1981), sets forth a
nonexhaustive list of factors deemed appropriate for consideration in determining the
reasonableness of an agency -imposed penalty.
6
¶8 The appellant has filed a petition for review, Petition for Review (PFR)
File, Tab 1, to which the agency has responded in opposi tion, PFR File, Tab 4.
¶9 The appellant does not, on review, challenge the administrative judge’s
findings on the merits of the charges, nexus, or t he reasonableness of the penalty,
and we discern no basis upon which to disturb those findings. 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).
¶10 On review, t he appellant argues that he did not recei ve a copy of the
“[investigator’s] written testimony” until 3 days after the hearing. PFR File,
Tab 1 at 1. The appellant’s claim on this point is unclear , and he has no t
expla ined it . To the extent he is referring to the investigator’s summary of her
findings, that document, which a ppears at the beginning of the report of
investigation, is a part of the file below, IAF, Tab 8 at 38 -40, and was properly
served on the appellant 6 weeks before the hearing. If the appellant is referring to
the investigato r’s testimony, the appellant was present at the hearing when the
investigator provided her testimony. He has not indicated that he requested a
transcript of the proceedings. Most importantly, he has failed to show, or
suggest, how he was harmed by the ma nner in which he received the
investigator’s “written testimony.”
¶11 The appellant next contends that HIPAA 1996 “overides” (sic) HIPAA
1974. PFR File, Tab 1 at 1. Again, the appellant has failed to explain his claim .
In any event, he did not raise such an argument below , and therefore we will not
now consider it. See Banks v. Department of the Air Force , 4 M.S.P.R. 268 , 271
(1980).
¶12 The appellant also alleges on review that the agency violated his rights
under the Privacy Act. PFR File, Tab 1 at 1. He contends that “the Privacy
Act . . . overides [sic] the HIPPA 1974.” Id. The Board lacks jurisdiction to
adjudicate Privacy Act claims. Calhoon v. D epartment of the Treasury ,
7
90 M.S.P.R. 375 , ¶ 15 (2001) (stating that Federal district courts, not the Board,
are the appropriate forum for adjudication of a Privacy Act claim). Thus, we
need not consider the appellant’s allegations pertaining to the Privacy Act under
the circumstances of this case .6
¶13 Finally, the appellant argues that the Manager , Customer Service, testified
that she was concerned with the findings in the report of i nvestigation because the
appellant previously was suspected of providing a fraudulent doctor’s note at his
prior station and that the investigator’s testimony was in accord . PFR File, Ta b 1
at 1. During the investigation in this case, t he Manager, Customer Service , did
express concerns about the authenticity of the doctor’s note the appellant
submitted because he previously had been suspected of providing fraudulent
doctors’ notes. IAF, Tab 8 at 41. Also, the investigator noted those concerns in
her summary of the investigation. Id. at 39. As such , the appellant was aware
when he received a copy of the report of i nvestigation that at least one agency
official was considering his prior misconduct . However, to the extent the
appellant suggests that such consideration was improper, he did not raise that
claim before the administrative judge in this case , and h is failure to do so then
precludes his doing so on review. Banks , 4 M.S.P.R. at 271. With his petition,
the appellant submitted a copy of a settlement agreement reached in his 2013
Board appeal, pursuant to which an earlier notice of proposed removal and letter
of decision were rescinded.7 PFR File, Tab 1 at 12. This document i s neither
6 The Board has considered alleged violations of the Privacy Act when the Act is
directly implicated in matters over which it has jurisdiction. See Herman v. Department
of Justice , 115 M.S.P.R. 386 , ¶ 10 (2011) (determining that the appellant raised a
nonfrivolous allegatio n of a protected disclosure based on an alleged violation of the
Privacy Act); Gill v. Department of Defense , 92 M.S.P.R. 23 , ¶¶ 21 -24 (2002) (finding
in a demotion appeal that the agency failed to prove its charge that the appellant
violated the Privacy Act). This is not the case here.
7 The appeal was dismissed as settled, Grant v. U.S. Postal Service , MSPB Docket No.
NY-0752 -12-0169 -B-1, Initial Decision at 1 -2 (May 13, 2013), and the initial decision
became the Board’s final decision on June 17, 2013, when neither party filed a petition
for review.
8
new nor material. See Avansino v. U.S. Postal Service , 3 M.S.P.R. 211 , 214
(1980); Russo v. Veterans Administration , 3 M.S.P.R. 345 , 349 (1980). To the
extent the appellant is suggesting that the agency’s considering his prior
misconduct is improper under the terms of t he settlement agreement, he failed to
raise that argument below and therefore cannot be heard to raise it now. See
Banks , 4 M.S.P.R. at 271.
¶14 The appellant has also submitted on review copies of various pages of the
report of i nvestigation. PFR File, Tab 1 at 2 -8. Evidence that is already a part of
the record is not new . See Meier v. Department of the Interior , 3 M.S.P.R. 247 ,
256 (1980); IAF, Tab 8 at 37 -41, 48 .
NOTICE OF APPEAL RIG HTS8
You may obtain review of this final decision. 5 U.S.C. § 7703 (a)(1) . By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703 (b).
Although we offer the following summar y of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
8 Since the issuance of the initial decision in this matter, the Board may have update d
the notice 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 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
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. ____ , 137 S. Ct. 1975 (2017). If you have a
representative in this case, and your representative receives this decision before
you do, then you must file with the district court no later than 30 calendar days
after your represe ntative receives this decision. If the action involves a claim of
discrimination based on race, color, religion, sex, national origin, or a disabling
condition, you may be entitled to representation by a court -appointed lawyer and
to waiver of any require ment of prepayment of fees, costs, or other security. See
42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
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
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. 2 0507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Cour t of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.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
9 The original statutory provision that provided for judicial review of certain
whistleblower cl aims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in cer tain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court 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
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the 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.
Contact information for the courts of appeals can be 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 | GRANT_HAROLD_J_NY_0752_15_0234_I_1_FINAL_ORDER_2006853.pdf | 2023-02-28 | null | NY-0752 | NP |
3,453 | https://www.mspb.gov/decisions/nonprecedential/CHUPKO_WILLIAM_A_PH_0841_17_0099_I_1_FINAL_ORDER_2006876.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
WILLIAM A. CHUPKO,
Appellant,
v.
OFFICE OF PERSONNEL
MANAGEMENT,
Agency.
DOCKET NUMBER
PH-0841 -17-0099 -I-1
DATE: February 28, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL1
William A. Chupko , Dunmore, Pennsylvania, pro se.
Jane Bancroft , Washington, D.C., for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
Tristan L. Leavitt, Member
FINAL ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
affirmed the final decision of the Office of Personnel Management (OPM)
recomputing his retirement annuity under the Civil Service Retirement System
(CSRS) to exclude credit for his post-1956 military service . 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 on e only in the following circumstances: the initial decision
contains erroneous findings of material fact; the initial decision is based on an
erroneous interpretation of statute or regulation or the erroneous application of
the law to the facts of the cas e; the administrative judge’s rulings during either
the course of the appeal or the initial decision were not consistent with required
procedures or involved an abuse of discretion, and the resulting error affected the
outcome of the case; or new and mater ial evidence or legal argument is available
that, despite the petitioner’s due diligence, was not available when the record
closed. Title 5 of the Code of Federal Regulations, section 1201.115 ( 5 C.F.R.
§ 1201.115 ). After fully considering the filings in this appeal, we conclude that
the petitioner has not established any basis under section 1201.115 for granting
the petition for review. Therefore, we DENY the petition for review and
AFFIRM the initial decision, which is now the Board’s final decision. 5 C.F.R.
§ 1201.113 (b).
BACKGROUND
¶2 Effective July 2, 2012, the appellant retired under the CSRS from Federal
civilian service with the Department of the Army. Initial Appeal File (IAF),
Tab 6 at 18, 40. He also served in the U.S. Air Force from 1972 to 1975. Id.
at 46. He did not make a deposit for that military service before he retired. Id.
at 21. After determining that he was eligible for Social Security benefits at
age 62, OPM notified him that it was recomputing his CSRS annuity to eliminate
credit for his post-1956 military service because he did not make a deposit for
such service prior to his retirement. Id. at 5. The recomputation , effective
November 1, 2016, resulted in a reduction in the gross monthly amount of his
CSRS annuity . Id. at 5-6.
¶3 The appellant filed a Board appeal challenging OPM’s final decision to
recompute his CSRS annuity, and he requested a hearing. IAF, Tab 1. He
asserted that , before he enlisted in the Pennsylvania Air National Guard (National
3
Guard) in 1990, a recruiter told him that his payment into the Social Security
program would not aff ect his retirement because he would be serving in the
military and that his National Guard service would not amount to any quarters of
coverage for Social Security purposes . IAF, Tab 1 at 4, Tab 8 at 3. The appellant
further alleged that he served part -time in the National Guard for more than
9 years , during which he did not earn income above the poverty level. IAF, Tab 8
at 3. In addition , he asserted that he has neither filed nor intend s to file for Social
Security benefits and that OPM erroneously cited Collins v. Office of Personnel
Management , 45 F.3d 1569 (Fed. Cir. 1995) , to support its final decision . IAF,
Tab 6 at 4, 6, Tab 8 at 3.
¶4 After the appellant failed to appear for the scheduled hearing, the
administrative judge issued an initial decision based on the written record that
affirmed OPM’s final decision. IAF, Tab 1 1, Initial Decision (ID) at 1 -5.
Specifically, t he administrativ e judge found that the appellant did not elaborate
on or offer support for his claim that, when he served in the National Guard, he
was told that his payment into the Social Security program would not have any
effect on his retirement because he was servin g in the military . ID at 4. She
further found that he compl eted the Standard Form (SF) 2801 , Application for
Immediate Retirement , and that he did not offer any evidence or argument that he
was incapable of understanding the form’s plain language . Id. She concluded
that he did not prove by preponderant evidence that OPM or his former
employing agency committed administrative error that caused his failure to make
a military service deposit prior to his separation from Federal civilian service . Id.
¶5 The a ppellant has filed a petition for review challenging the initial decision .
Petition for Review (PFR) File, Tab 1. OPM has filed a response opposing his
petition . PFR File, Tab 4.
4
DISCUSSION OF ARGUME NTS ON REVIEW
¶6 An appellant bears the burden of proving by preponderant evidence his
entitlement to retirement benefits. Sanderson v. Office of Personnel
Management , 72 M.S.P.R. 311 , 317 (1996) , aff’d , 129 F.3d 134 (Fed. Cir. 1997)
(Table) ; 5 C.F.R. § 1201.56 (b)(2)(ii). An annuitant who retires after
September 7, 1982, like the appellant here, is entitl ed to receive credit for
active -duty military service performed after 1956 under both the CSRS and the
Social Security program if he deposits an amoun t equal to 7% of his total
post-1956 military pay with the Civil Service Retirem ent and Disability Fund.
McDevitt v. Office of Personnel Management , 118 M.S.P.R. 204, ¶ 6 (2012); see
5 U.S.C. § 8334 (j). If the annuitant fails to make such a deposit, OPM must
recalculate the CSRS annuity payments when he first becomes eligible for Social
Security benefits to exclude credit for the post-1956 military service. 5 U.S.C.
§ 8332 (j); McDevitt , 118 M.S.P.R . 204, ¶ 6. Employee s who retire on or after
October 1, 1983, must make such deposit before their separation from service
upon which title to an annuity is based. McDevitt , 118 M.S.P.R. 204, ¶ 6;
5 C.F.R. § 831.2104 . The Board will ord er OPM to permit a post -separation
deposit, however, if there was administrative error by the individual’s employing
agency or OPM, and the failure to make the deposit prior to retirement was the
product of the administrative error. King v. Office of Pers onnel Management ,
97 M.S.P.R. 307, ¶¶ 4, 15 (2004), aff’d sub nom. Grant v. Office of Personnel
Management , 126 F. App’x 945 (Fed. Cir. 2005) ; 5 C.F.R. § 831.2107 (a)(1) .
¶7 For the following reasons, we agree with the administrative judge’s finding
that the appellant did not prove by preponderant evidence that OPM or his former
employing agency committed administrative error that caused his failure to make
a military service deposit prior to his retirement. ID at 4. The appellant has not
alleged that OPM or his former employing a gency committed any administrative
error. Although he reasserts on review his claim that he was told that his
National Guard service would not amount to enough quarters of coverage to be
5
eligible for Social Security benefits , PFR File, Tab 1 at 3, w e find that this
allegation is insufficient to prove by preponderant evidence that administrative
error caused his failure to make a deposit for his military service with the U.S.
Air Force before he retired. See King , 97 M.S.P.R. 307, ¶ 28 (finding that the
appellant did not show by preponderant evidence that an administrative error
caused his failure to make a military service deposit before his separation from
Federal service).
¶8 Moreover, the Board has held that there is no administrative error when an
employee is provided with and completes the 1990 version of SF -2801, electing
to make or not make a deposit for his post -1956 military service. Id., ¶¶ 16-17.
Here, although the appellant completed the 2007 version of SF -2801, we find that
it is similar to the 1990 version, in relevant part, and that it provided him with
accurate and complete information about the deposit requ irement for post -1956
military service and the consequences of not making a deposit before separation .
Compare IAF, Tab 6 at 10, 21, with King , 97 M.S.P.R. 307, ¶¶ 25, 27. In
particular, on the appellant’s completed SF -2801 , he checked “No” in response to
the clear ly wor ded question in Schedule A that asked if he paid a deposit to his
agency for any of his military service that occurred on or after January 1, 1957 .
IAF, Tab 6 at 21. The parenthetical following that question informed him that he
must pay the deposi t to his agency and that he cannot pay OPM after he retires.
Id. Further, t he instructions for Schedule A explained to him that he may pay a
deposit to cover his post-1956 military service, that the deposit must be paid to
his agency while he is still em ployed, and that, if he does not make the deposit
and becomes eligible for Social Security benefits at age 62, his annuity will be
recomputed at age 62 to eliminate credit for his post-1956 military service. Id.
at 10.
¶9 In his petition for review, t he appellant reasserts his argument that he is not
eligible for Social Security benefits based on his National Guard service, nor does
he intend to apply for Social Security benefits. PFR File, Tab 1 at 3 -5. A fully
6
insured individual who has attained the a ge of 62 and files a proper application is
entitled to Social Security benefits. Hicks v. Office of Personnel Management ,
44 M.S.P.R. 340, 343 (1990); see 42 U.S.C. § 402(a). However, there is no
requirement under 5 U.S.C. § 8332 (j) that an individual actually receive or apply
for Social Security benefits before OPM recomputes his CSRS annuity to exclude
credit for his post -1956 military service. See Hicks , 44 M.S.P.R. at 343. Instead,
that statutory provision provides for an adjustment of an individ ual’s annuity
when he “becomes entitled, or would on proper application be entitled,” to Social
Security benefits. 5 U.S.C. § 8332 (j)(1) .
¶10 Here, it is undisputed that the appellant was 62 years old when OPM issued
its final decision. IAF, Tab 6 at 5, 18. Further , the record shows that the Social
Security Administration certified to OPM that the appellant is a fully insured
individual because he has more than 40 quarters of coverage under the Socia l
Security program. Id. at 32; see 42 U.S.C. § 414(a)(2). Therefore, w e find that
OPM properly determined that the appellant became eligible for Social Security
benefits at age 62 and thus that OPM was required to recompute his CSRS
annuity pursuant to 5 U.S.C. § 8332 (j) because he failed to make a deposit for his
military service with the U.S. Air Force before he retired .
¶11 Moreover, t o the extent the appellant believes he is entitled to credit under
the CSRS for his National Guard service, we find that he has failed to prove that
such service constitutes creditable military service . For purposes of the CSRS,
“military service” means “hono rable active service . . . but does not include
service in the National Guard except when ordered to activ e duty in the service of
the United States or full-time National Guard duty .” 5 U.S.C. § 8331 (13). The
appellan t has not alleged or provided evidence that his National Guard service
7
meets this limited exception .2 To the contrary, he maintains that he served
part-time with the National Guard. PFR File, Tab 1 at 3, 5 .
¶12 The appellant further reasserts on review his belief that Collins , 45 F.3d
1569 , is distinguishable from the instant appeal. PFR File, Tab 1 at 5.
Specifically, he claims that the service of the appellant in Collins , consisting of
13 years of full -time Federal civilian service and 20 years of full -time military
service , would have amounted to more quarters of coverage under the Social
Security program than for his 10 years of part -time service with the National
Guard. Id. As discussed above, OPM properly determined that the appellant here
became eligible for Social Security benefits when he turned 62 years old . Thus,
we find that his attempt to distinguish Collin s based on his alleged in eligibility
for Social Security benefits is unavailing. Moreover, we find that OPM and the
administrative judge properly cited Collins as relevant case law . ID at 3; IAF,
Tab 6 at 4, 6.
¶13 Finally, the appellant disputes the admini strative judge’s denial of his
request to reschedule the hearing . PFR File, Tab 1 at 3-4. The administrative
judge warned the appellant below that the appeal would be decided without a
hearing if he failed to appear for the scheduled hearing without good cause. IAF,
Tab 7 at 1. After the appellant failed to appear for the hearing, he claimed that he
confused the date and time of the Board hearing with a separate court -ordered
appearance, submitted supporting evidence, and requested a rescheduled hearing.
IAF, Tab 10. The administrative judge found that he did not justify his failure to
appear for the hearing, and thus, she adjudicated the appeal based on the written
record. ID at 2 -3. We find that the appellant’s new claim on review that his
confusion resulted from Alzheimer’s disease , without supporting evidence, is
insufficient to justify his failure to appear for the scheduled hearing. PFR File,
Tab 1 at 3-4; see Fisher v. Department of Defense , 59 M.S.P.R. 165, 172 (1993)
2 The appellant submitted evidence below of his National Guard service, however, part
of it is illegible. IAF, Tab 8 at 4.
8
(finding that the appellant’s claim of incapacity was not substantiated by any
medical evidence and thus was insufficient to justify his failure to appear for the
hearing) ; see also Banks v. Department of the Air Force , 4 M.S.P.R. 268 , 271
(1980) (finding that the Board generally will not consider an a rgument raised for
the first time in a petition for review absent a showing that it is based on new and
material evidence not previously available desp ite the party ’s due diligence) .
Therefore, we find that the administrative judge did not abuse her discr etion in
denying the appellant’s request to reschedule the hearing. See Fis her,
59 M.S.P.R. at 171-73 (finding that the administrative judge did not abuse his
discretion in refusing to reschedule the hearing after the appellant failed to appear
for the he aring) .
¶14 Accordingly, we find that the administrative judge properly affirmed OPM’s
final decision.3
3 The appellant reasserts on review a claim of discrimination based on military service.
PFR File, Tab 1 at 3; IAF, Tab 8 at 3. If he chooses to do so , he may file a Board
appeal pursuant to the Uniformed Services Employment and Reemployment Rights Act
of 1994 (codified as amended at 38 U.S.C. §§ 4301 -4335) (USERRA) . Under
USERRA , a person who has performed “service in a uniformed service shall not be
denied initial employment, reemployment, retention in employment, promotion, or a ny
benefit of employment . . . on the basis of that . . . performance of service.” 38 U.S.C.
§ 4311 (a); Searcy v. Department of Agriculture , 115 M.S.P.R. 260 , ¶ 6 (2010). The
statute further provides that an employer (including a Federal agency) shall be
considered to have engaged in a prohibited activity if the individual ’s military status is
a motivating factor for one of the actions identified above, unless the employer can
prove that the action would have been taken in the absence of the military status.
38 U.S.C. § 4311 (c)(1) ; Searcy , 115 M.S.P.R. 260 , ¶ 6. An individual who believes that
he has been the victim of a violation of section 4311(a) may file an appeal with the
Board. 38 U.S.C. § 4324 (b); Searcy , 115 M.S.P.R. 260 , ¶ 6. To establish Board
jurisdiction over a USERRA discrimination appeal, an appellant must allege the
following : (1) he performed duty or has an obl igation to perform duty in a uniformed
service of the United States; (2) the agency denied him initial employment,
reemploy ment , retention, promotion, or any benefit of employment; and (3) the denial
was due to the performance of duty or obligation to perf orm duty in the uniformed
service. Searcy , 115 M.S.P.R. 260 , ¶ 7.
9
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 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 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:
4 Since the issuance of the initial decision in this matter, th e Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.
10
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is 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. ____ , 137 S. Ct. 1975 (2017). If you hav e a
representative in this case, and your representative receives this decision before
you do, then you must file with the district court no later than 30 calendar days
after your representative receives this decision. If the action involves a claim of
discrimination based on race, color, religion, sex, national origin, or a disabling
condition, you may be entitled to representation by a court -appointed lawyer and
11
to waiver of any requirement of prepayment of fees, costs, or other security. See
42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancem ent Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
12
disposition of allegations of a prohibited personnel practice described in sec tion
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent j urisdiction.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 ab out the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice , and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono repres entation
for Merit Systems Protection Board appellants before the 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 c ertain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review o f
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 1 15-195,
132 Stat. 1510.
13
Contact information for the co urts of appeals can be 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 | CHUPKO_WILLIAM_A_PH_0841_17_0099_I_1_FINAL_ORDER_2006876.pdf | 2023-02-28 | null | PH-0841 | NP |
3,454 | https://www.mspb.gov/decisions/nonprecedential/KING_LISA_A_NY_0845_15_0291_I_2_FINAL_ORDER_2006915.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
LISA A. KING,
Appellant,
v.
OFFICE OF PERSONNEL
MANAGEMENT,
Agency.
DOCKET NUMBER
NY-0845 -15-0291 -I-2
DATE: February 28, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL1
Lisa A. King , Stone Mountain, Georgia, pro se.
Michael Shipley , Washington, D.C., for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
Tristan L. Leavitt, Member
FINAL ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
dismissed her refiled appeal as untimely, without good cause . Generally, we
grant petitions such as this one only in the following circumstances: the initial
decision contains erroneous findings of material fact; the initial decision is based
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c).
2
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 by this Final Order to incorporate the proper standard for
establishing good cause in the case of an untimely refiled appe al, we AFFIRM the
initial decision.
¶2 The appellant initially filed her appeal in August 2015 challenging an
Office of Personnel Management (OPM) reconsideration decision pertaining to
her retirement annuity and an overpayment. King v. Office of Personn el
Management , MSPB Docket No. NY -0845 -15-0291 -I-1, Initial Appeal File (IAF),
Tab 1. After OPM submitted its response, the appellant moved to dismiss the
appeal because she needed additional time to locate relevant documents from
storage. IAF, Tabs 6 -7. Accordingly, the administrative judge dismissed the
appeal without prejudice in September 2015. IAF, Tab 8, Initial Decision (ID).
The administrative judge explained that the dismissal was “subject to the
appellant’s refiling no later than December 10, 2015.” ID at 3.
¶3 In June 2016, OPM informed the appellant that it would begin collecting the
overpayment, citing her failur e to refile the Board appeal. King v. Office of
Personnel Management , MSPB Docket No. NY -0845 -15-0291 -I-2, Refiled
Appeal File ( I-2 AF), Tab 10 at 5. Many months later, in January 2017, the
appellant refiled her appeal. I-2 AF , Tab 1. She indicated that OPM’s
withholdings were causing financial hardship, asserting that she “was homeless
3
for the past couple of years [and does not] w ant to be homeless again.” I-2 AF ,
Tab 2 at 2.
¶4 The administrative judge issued an order indicating that the refiled appeal
appeared untimely by more than a year and instructing the appellant to establish
good cause. I-2 AF , Tab 4. The appellant responde d, asserting that she tried to
make contact in December 2015, “calling to find out what [she] neede d to do.”
I-2 AF, Tab 8 at 1. According to the appellant, she left messages but no one ever
contacted her. Id. The appellant did not indicate who at the Board, if anyone, she
tried to contact. She did, however, present argument and evidence that she
contacted OPM in the weeks just after the administrative judge dismissed her
Board appeal without prejudice. Id. at 1, 5 -8.
¶5 The administrative judge dismisse d the appellant’s refiled appeal as
untimely, without good cause. I-2 AF , Tab 11, Initial Decision (I -2 ID). The
appellant has filed a petition for review. King v. Office of Personnel
Management , MSPB Docket No. NY -0845 -15-0291 -I-2, Petition for Review
(PFR) File, Tab 1.
¶6 When the administrative judge found that the appellant failed to establish
good cause for her untimeliness, she relied on the Board’s general timeliness
standards, rather than those that apply to an untimely refiled appeal.2 I-2 ID at 3
(citing Alonzo v. Department of the Air Force , 4 M.S.P.R. 180 , 184 (1980);
Moorman v. Department of the Army , 68 M.S.P.R. 60 , 62 -63 (1995), aff’d ,
79 F.3d 1167 (Fed. Cir. 1996) (Table)). We modify the initial decision to
incorporate the correct standard but reach the same co nclusion; the appellant
failed to establish good cause.
¶7 The Board has identified specific standards for determining whether good
cause exists for excusing an untimely refiled appeal of a matter previously
2 Although the administrative judge cited the wrong standards in the initial decision, she
prov ided the proper standard in the order instructing the appellant how to establish
good cause for her untimeliness. I-2 AF , Tab 4 at 2 -3.
4
dismissed without prejudice. Sherman v. U.S. Posta l Service , 118 M.S.P.R. 265 ,
¶ 9 (2012). These include the following: the appellant’s pro se status; the
timeliness of the ini tial appeal; the appellant’s demonstrated intent throughout the
proceedings to refile the appeal; the length of the delay in refiling; confusion
surrounding and arbitrariness of the refiling deadline; the number of prior
dismissals without prejudice; the a gency’s failure to object to the dismissal
without prejudice; and the lack of prejudice to the agency in allowing the refiled
appeal. Id.
¶8 The appellant is pro se , and the appeal was dismissed without prejudice
only once . E.g., IAF, Tab 1; I-2 AF , Tab 1. In addition , OPM did not object to
the dismissal , nor did it present evidence that it would be prejudiced b y allowing
the refiled appeal. ID at 2; I-2 AF , Tab 10. However, the other factors weigh
against the appellant. First, it appears that the appellant’s initial appeal was also
untimely. OPM issued its reconsideration decision in March 2015, with notice
that she could appeal the decision to the Board within 30 days, but the appellant
did not do so until August 2015. Compare IAF, Tab 6 at 6 -9, with IAF, Tab 1;
see 5 C.F.R. § 1201.22 (b) (providing the time limits for filing a Board ap peal).
Next, while we could speculate about the appellant’s intent to refile after she
requested dismissal without prejudice, she has failed to present any persuasive
evidence of the same. Instead, the appellant presented argument and evidence
showing on ly that she contacted OPM in the weeks just after the dismissal of her
appeal. I-2 AF , Tab 8 at 1, 6 -8; PFR File, Tab 1 at 4. The evidence consists of
cursory emails in which the appellant simply asked, “has the installment
agreement been adjusted?” I-2 AF, Tab 8 at 6 -8. Finally, the length of the
appellant’s delay in refiling, more than a year, is significant , and we find no basis
for concluding that there was any confusion or arbitrariness surrounding the
deadline. The administrative judge provided t he dismissal without prejudice to
accommodate the appellant’s unpreparedness , and the administrative judge clearly
explained the appellant’s deadline for refiling. ID at 2 -3.
5
¶9 In sum, after considering the relevant factors, we find that the appellant has
not established good cause for her untimely refiled appeal. See Nelson v. U.S.
Postal Service , 113 M.S.P.R. 644 , ¶¶ 9 -10 (2010) (fin ding no good cause for a
pro se appellant’s 4 -month delay in refiling his appeal whe n the initial decision
clearly identified the date for refiling , and the appellant failed to provide any
evidence justifying any confusion over the deadline), aff’d , 414 F. App’x 292
(Fed. Cir. 2011). We therefore affirm the initial decision, as modified.
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
summar y of available appeal rights, the Meri t Systems Protection Board does not
provide legal advice on which option is most appropriate for your situation an d
the rights described below do not represent a statement of how courts will rule
regarding which cases fall within their jurisdiction. If you wish to seek review of
this final decision, you should immediately review the law applicable to your
claims and carefully follow all filing time limits and requirements. Failure to file
within the applicable time li mit may result in the dismissal of your case by your
chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
3 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights inc luded in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.
6
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the 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
7
receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. ____ , 137 S. Ct. 1975 (2017). If you have a
representative in this case, and your representative receives this decision before
you do, then you must file with the district court no later than 30 calendar days
after your representative receives this decision. If the action involves a claim of
discrimination based on race, color, religion, sex, national origin, or a disabling
condition, you may be entitled to representation by a court -appointed lawyer and
to waiver of any requirement of prepayment of fees, costs, or other security. See
42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
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:
8
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 2 0507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Cour t of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.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 c ompetent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court 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
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the 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 | KING_LISA_A_NY_0845_15_0291_I_2_FINAL_ORDER_2006915.pdf | 2023-02-28 | null | NY-0845 | NP |
3,455 | https://www.mspb.gov/decisions/nonprecedential/CAGAN_TEUBER_KALMAN_SAMUEL_PH_315H_17_0410_I_1_FINAL_ORDER_2006917.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
KALMAN SAMUEL CAGAN -
TEUBER,
Appellant,
v.
DEPARTMENT OF THE AI R FORCE,
Agency.
DOCKET NUMBER
PH-315H -17-0410 -I-1
DATE: February 28, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL1
Peter Ball , Esquire and Laura K. Hennessey , Esquire, Boston,
Massachusetts, for the appellant.
Todd M. Sparks and Paul Clawson , Chicopee, Massachusetts, for the
agency.
BEFORE
Cathy A. Harris , Vice Chairman
Raymond A. Limon , Member
Tristan L. Leavitt , 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
1 A nonpreced ential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c).
2
as this one only in th e 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 admin istrative 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 in itial
decision, which is now the Board’s final decision. 5 C.F.R. § 1201.113 (b). We
also DENY the appellant’s motions to supplement his petition for review.
DISCUSSION OF ARGUME NTS ON REVIEW
¶2 The agency appointed the appellant to the position of Police Officer in
June 2017. Initial Appeal File (IAF), Tab 14 at 5. On July 10, 2017, the agency
proposed to terminate the appellant during his probationary period based on a
charge of makin g a false statement. IAF, Tab 1 at 38. The agency specified that
the appellant had falsely stated on his Optional Form (OF) 306, Declaration for
Federal Employment, that he had not been convicted by a military court -martial
in the past 7 years when in fact he had been convicted in 2011, as he
acknowledged after his appointment. Id. The agency provided the appellant
notice of his right to reply to the proposal in writing, orally, or both and to submit
evidence within 5 workdays. Id. at 39. On July 25, 2017, after the appellant
replied both in writing and orally, the agency issued a decision terminating him.
Id. at 40 -43. The termination was effective July 28, 2017. IAF, Tab 8 at 23.
3
¶3 The appellant filed this Board appeal on August 24, 2017. IAF, Tab 1. He
argued that the agency committed harmful procedural error by failing to notify
the Office of Personnel Management (OPM) of its intent to terminate him for
making a material, intentional false statement. Id. at 13 -14. He also argued that
the agency terminated him “without reason” because it failed to conclude that he
actually made a material, intentional false statement. Id. at 14 -15. The appellant
further argued that the agency failed to adequately consider his response to the
propos ed termination, id. at 15 -16, and that it denied him due process, id. at 17.
¶4 The administrative judge informed the appellant that the Board might not
have jurisdiction over his termination appeal and ordered him to address the
jurisdictional issue. IAF, Tab 2. In response, the appellant argued that the Board
had jurisdiction over his appeal because his termination was based at least in part
on matters occurring before his appointment and the agency violated the
procedures set forth in 5 C.F.R. § 315.805 . IAF, Tab 3 at 4 -11. In addition, he
argued that the agency failed to clarify the regulatory authority under which it
took the termination action. Id. at 11. The agency moved to dismiss the appeal
for lack of jurisdiction, arguing that the appellant failed to nonfrivolously allege
that his termination was procedurally deficient and that any procedural errors it
may have made did not establish Board jur isdictio n over the appeal. IAF, Tab 8
at 6-11.
¶5 The administrative judge issued an initial decision dismissing the appeal for
lack of jurisdiction. IAF, Tab 15, Initial Decision (ID). He found that the Board
lacked the authority to review the merits of t he appellant’s termination and that
the agency had complied with the procedural requirements for a termination based
on matters arising preappointment. ID at 5. The administrative judge further
found that any failure by the agency to timely notify OPM th at it had terminated
the appellant did not provide a basis for Board jurisdiction. Id.
¶6 The appellant timely filed a petition for review of the initial decision.
Petition for Review (PFR) File, Tab 1. On petition for review, he argues that the
4
Board has jurisdiction over his appeal due to several procedural errors the agency
made in effecting his termination. Id. at 15 -26. He also submits, for the first
time on petition for review, a letter from his commanding officer at the time of
his court -martial. Id. at 30.
¶7 The record on petition for review closed on December 2 9, 2017. PFR File,
Tab 2. In July 2018, the appellant moved for leave to supplement his petition for
review with argument based on the U.S. Supreme Court’s decision in Lucia v.
Securities and Exchange Commission , 138 S. Ct. 2044 (2018), which was issued
in June 2018. PFR File, Tab 5. In May 2019, the appellant again moved to
supplement his petition for review. PFR File, Tab 7. In his second motion to
supplement, the appellant sought to submit argument regarding the nature of the
court -martial proceedings against him. Id. The appellant filed a third motion to
supplement his petition f or review in March 2020. PFR File, Tab 10. In his third
motion, the appellant seeks to argue that the Board’s delay in deciding his
petition for review constitutes a denial of due process. Id. at 6. The appellant
filed a fourth motion to supplement his petition for review in May 2022. PFR,
Tab 18. In his fourth motion, the appellant argues that the administrative judge
allegedly lacked the authority to issue the initial decision based on a
separation -of-powers theory . Id. at 5-7.
The appellant faile d to establish Board jurisdiction over his termination appeal.
¶8 When an agency intends to terminate a probationary employee for reasons
based in whole or in part on conditions arising before his appointment, it must
provide him advanced written notice of th e reasons for the proposed action, a
reasonable opportunity to submit a written response, and written notice of the
agency’s decision. 5 C.F.R. § 315.805 . “A probationer whose terminati on is
subject to § 315.805 may appeal on the ground that his termination was not
effected in accordance with the procedural requirements of that section.”
5 C.F.R. § 315. 806(c). In such appeals, the merits of the agency’s termination
decision are not before the Board. LeMaster v. Department of Veterans Affairs ,
5
123 M.S.P.R. 453, ¶ 7 (2016). Rather, the only issue is whether the agency’s
failure to follow the procedures prescribed in section 315.805 was harmful error.
Id. If there was harmful error, then the agency’s action must be set aside. Id.
Harmful error cannot be presumed; an agency error is harmful only when the
record shows that it was likely to have caused the agency to reach a conclusion
different from the one it would have reached in the absence or cure of the error.
Id., ¶ 14; 5 C.F.R. § 1201.4 (r).
¶9 The appellant argues on review that although the agency charged him with
simply “making a false statement,” it could only have properly terminated him for
making a materia l, intentional false statement. PFR File, Tab 1 at 7 -8. OPM’s
suitability regulations require i n relevant part that an agency notify OPM if it
wants to take, or has taken, an action under 5 C.F.R. part 315 in cases involving
material, intentional false s tatement in examination or appointment. 5 C.F.R.
§ 731.103 (g). However, nothing in OPM’s suitability regulations purport to limit
an employing agency’s authority to terminate an employe e for making a false
statement irrespective of whether the false statement was material or intentional.
We therefore find that the agency had the authority under part 315 to terminate
the appellant for making a false statement. Accordingly, we reject the appellant’s
argument that the proposal notice was inadequate because it failed to allege that
his false statement was material and intentional.
¶10 The appellant also argues that the agency failed to comply with 5 C.F.R.
§ 315.805 by failing to consider his response to the proposed termination and by
failing to provide reasons for its decision to terminate him. PFR File, Tab 1
at 11. However, the record reflects that the agency clearly did consider his
response and provide reasons for its decision. IAF, Tab 1 at 40 -43. The
appellant acknowledges this, but argues that the agency’s failure to specifically
state in the decision let ter that he made a false statement makes the decision
procedurally insufficient. PFR File, Tab 1 at 12. However , it is apparent from
the decision letter that the agency found that the appellant made a false statement
6
and it rejected his explanations for doing so. IAF, Tab 1 at 40 -41. The appellant
is attempting to reframe his substantive objections to the agency’s decision as
procedural shortcomings in order to bring his appeal within the Board’s
jurisdiction. However, our jurisdiction in cases like th is one is limited to whether
the agency complied with the minimal procedural requirements set forth in the
regulation, and the record reflects that it did so. We therefore find that the
appellant failed to make a nonfrivolous allegation that the agency fa iled to
comply with the procedural requirements of 5 C.F.R. § 315.805 .2
The appellant’s motions to supplement his petition for review are denied.
¶11 In his first motion to supplement his petition for review , the appellant seeks
to challenge the appointment of the administrative judge in light of the Supreme
Court’s decision in Lucia . PFR File, Tab 5. In Lucia , the Court held that
administrative law judges (ALJs) of the Securities and Exchange Commission
(SEC) qualify as Officers of the United States subject to the Appointments
Clause, rather than mere employees. 138 S. Ct. at 2049. Because SEC ALJs were
appointed by SEC staff members rather than the Commi ssion itself, the Court
held that the appointment of those ALJs violated the Appointments Clause. Id.
at 2050, 2053 -55. The Court held that because Lucia had made a timely
challenge to the constitutional validity of the appointment of the ALJ who
adjudicated his case, he was entitled to relief in the form of a new hearing before
a different, properly appointed official. Id. at 2055.
¶12 The Court in Lucia did not specifically define what constitutes a time ly
challenge to an appointment. In McClenning v. Department of the Army ,
2022 MSPB 3, ¶¶ 5-15, we held that an Appointments Clause challenge regarding
2 The appellant also argues that the agency failed to provide proper notice to OPM of its
termination action. PFR File, Tab 1 at 11. However, even if such notice was required,
it was a requirement of OPM’s suitability regulations, not one of the procedura l
requirements in 5 C.F.R. § 315.805 . Thus, any failure to provide required notice to
OPM would not provide a basis for Board jurisdiction under 5 C.F.R. § 315.806 (c).
7
a Board administrative judge must be raised to the administrative judge before the
close of the record in order to be timely. In McClenning , as he re, the appellant
raised her Appointments Clause claim shortly after the Supreme Court issued its
decision in Lucia . However, w e held that the discovery of a new legal argument
is not itself sufficient to justify the appellant’s failure to raise the Appoi ntments
Clause argument before the administrative judge. Id., ¶¶ 11-13. We therefore
find that the appellant failed to timely raise his Appointments Clause claim.
¶13 As we recognized in McClenning , the Board’s regulations reserve to it the
authority to consider any issue in an appeal before it. Id., ¶ 16; 5 C.F.R.
§ 1201.115 (e). Here, as in McClenning , we find no basis to exercise that
discretion on the facts of this cas e. Accordingly, we deny the appellant’s motion
to supplement his petition for review to raise an Appointments Clause challenge
for the first time on petition for review .
¶14 In his second motion to supplement his petition for review, the appellant
seeks to ra ise a new argument addressing the merits of his termination. PFR File,
Tab 7. In effect, he seeks leave to raise a new argument on petition for review.
The Board will not consider an argument raised for the first time in a petition for
review absent a s howing that it is based on new and material evidence not
previou sly available despite the party’ s due diligence. Banks v. Department of
the Air Force , 4 M.S.P.R. 268 , 271 (1980). Additionally, the Board will not grant
a petition for review based on new evidence absent a showing that it is of
sufficient weight to warrant an outcome different from that of the initial decision .
Russo v. Veterans Admini stration , 3 M.S.P.R. 345 , 349 (1980). The appellant has
not shown that the argument he seeks to raise on petition for review is based on
evidence that was previously unavailable to him despite his due diligence, nor has
he shown that his argument regarding the merits of his termination would warrant
reversal of the initial decision. Accordingly, we deny the appellant’s second
motion to supplement h is petition for review.
8
¶15 In his third motion to supplement his petition for review, the appellant
seeks to argue that the Board’s delay in deciding his petition for review
constitutes a denial of due process. PFR File, Tab 10. The delay in deciding the
petition for review is due primarily to the Board’s lack of quorum, which began
several months before the administrative judge issued the initial decision in this
case. In fact, t he initial decision included a notice informing the appellant that
the Board c ould not issue decisions at that time due to a lack of quorum. ID at 7.
Thus, the appellant was aware of the possibility of a delay before he filed his
petition for review. In any event, b ecause we are now resolving the appellant’s
petition for review, we need not reach the merits of his due p rocess claim .
Accordingly, we deny the appellant’s third motion to supplement his petition for
review.3
¶16 In his fourth motion to supplement his petition for review, the appellant
raises an additional constitutional argument. PFR File, Tab 18 at 5 -7. His
argument, however, is based on a Supreme Court decision from 2010, not new
and material evidence not previously available despite his due diligence. Banks ,
4 M.S.P.R. at 271. In any event, we are unable to adjudic ate the appellant’s
argument that the removal protections provided by statute to Board members and
other Board officials, including administrative judges, violates constitutional
separation -of-powers principles. See Malone v. Department of Justice ,
3 In light of the length of time it had been without a quorum , the Board in 2018 adopted
a policy authorizing the Clerk of the Board to grant requests to withdraw certain
petitions for review upon the request of a petitioner that had previously been
adjudicated by the ful l Board . MSPB, Policy Regarding Clerk’s Authority to Grant
Requests for Withdraw Petitions for Review ,
https://www.mspb.gov/appeals/files/Policy_Regarding_Withdrawal_of_a_Petition_for_
Review_1515773.pdf (last visited Feb. 28, 2023) ; MSPB, Frequently Asked Questions
about the Lack of Board Quorum and Lack of Board Members (Mar. 4,
2022) , https://www.mspb.gov/FAQs_Absence_of_Board_Quorum_March_4_2022.pdf
(last visited Feb. 28, 2023) . Here, although the a ppellant sought to submit legal
argument regarding the delay in deciding his petition for review, he did not seek to
withdraw his petition.
9
14 M.S.P.R. 403 , 406 (1983) (declining to address the constitutionality of a
statute relating to veterans preference). An administrative agency “has no
authority to entertain a facial constitutional challenge to the validity of a law.”
Jones Brothers, Inc. v. Secretary of Labor , 898 F.3d 669 , 673 (6th Cir. 2018).
The eviden ce submitted by the appellant for the first time on review is not new
and material.
¶17 With his petition for review, the appellant has submitted a November 2017
letter from his commanding officer at the time of his court -martial. PFR File,
Tab 1 at 30. He h as also submitted an OF -306 that he submitted in June 2017 in
connection with a different Federal position for which he had applied. Id.
at 32-33. Under 5 C.F.R. § 1201.115 (d), the Board will not consider evidence
submitted for the first time with the petition for review absent a showing that it
was unavailable before the record was closed despite the party ’s due diligence.
Avansino v. U.S. Postal Service , 3 M.S.P.R. 211 , 214 (1980). Additionally, t he
Board will not grant a petition for review based on new evidence absent a
showing that it is of sufficient weight to warrant an outcome different from that
of the initial decision . Russo , 3 M.S.P.R. at 349. Although the appellant claims
he was unable to obtain the letter from his commanding officer at an earlier date,
he does not explain why he could not have submitted the OF -306 before the
record closed. Moreover, even if the appellant’s evidence was unavailable, both
documents go to the merits of the agency’s termination decision. He has
therefore failed to establish that they would warrant a different outcome from that
of the initial decision.
10
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 suc h
review and the appropriate forum with which to file. 5 U.S.C. § 7703 (b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision , you 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 c arefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit , you must submit your petition to the court at the
following address:
4 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.
11
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is 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. ____ , 137 S. Ct. 1975 (2017). If you have a
representative in this case, and your representative receives this decision before
you do, then you must file with the district court no later than 30 calendar days
after your representative receives this decision. If the action involves a claim of
discrimination based on race, colo r, religion, sex, national origin, or a disabling
condition, you may be entitled to representation by a court -appointed lawyer and
12
to waiver of any requirement of prepayment of fees, costs, or other security. See
42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWeb sites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the
EEOC’s Office 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, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C . 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
13
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.5 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal 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
5 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals o f competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal ca ses with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195,
132 Stat. 1510.
14
Board neither endorses the services provided by any attorney nor warrants that
any 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 | CAGAN_TEUBER_KALMAN_SAMUEL_PH_315H_17_0410_I_1_FINAL_ORDER_2006917.pdf | 2023-02-28 | null | PH-315H | NP |
3,456 | https://www.mspb.gov/decisions/nonprecedential/TITO_TANYA_SF_0752_15_0684_I_1_FINAL_ORDER_2006922.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
TANYA TITO,
Appellant,
v.
DEPARTMENT OF THE IN TERIOR,
Agency .
DOCKET NUMBER
SF-0752 -15-0684 -I-1
DATE: February 28, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL1
Thomas R. Wickwire , Esquire, Fairbanks, Alaska, for the appellant .
Kevin D. Mack , Esquire, Sacramento, California , for the agency .
Rachel Weighaus , Washington, D.C. for the agency.
BEFORE
Cathy A. Harris , Vice Chairman
Raymond A. Limon , Member
Tristan L. Leavitt , Member
Member Limon recused himself and
did not participate in the adjudication of this appeal.
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
require d to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c).
2
FINAL ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
sustain ed the charge of possessing a firearm in a Federal facility without
authorization, found that she did not prove any of her affirmative defenses, and
upheld the removal penalty. Generally, we grant petitions such as this one only
in the following circumsta nces: 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 rul ings 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 ). A fter
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 MODIFY the initial decision to
supplement the administrative judge’s analysis of the claim of reprisal for
whistleblowing disclosures and protected activity and to clarify the administrative
judge’s disparate penalty analysis. Except as expressly MODIFIED by this Final
Order, we AFFIRM the initial decision.
BACKGROUND
¶2 The following background information, as recited in the initial decision, is
generally undisputed. Initial Appeal File (IAF), Tab 45, Initial Decision (ID).
The appellant was employed at the agency as an Administrative Officer. ID at 2.
On or around October 24, 2014, t he appellant received a purple 0.22 caliber
Beretta hand gun as a birthday present. Id. On October 27, 2014, the appellant
brought the handgun to work at the Tetlin National Wildlife Refuge (TNWR) in
3
Tok, Alaska , to show her coworkers . Id. On December 9, 2014, the appellant
brought the same handgun in one of her bags to the Fish and Wildlife Service
regional office in Anchorage. Id. The next morning, at the agency’s request,
officers from the Federal Protective Service (FPS) initiated an inquiry into the
matter , and the appellant was placed on administrative leave. ID at 3. Following
an investigation, FPS issued the appellant a U.S. District Court Violation Notice
that charged her with violating 41 C.F.R. § 102-74.440, by knowingly bringing a
handgun into a Federal facility on December 9, 2014. Id. The appellant paid a
$125.00 fine in lieu of appearing in court. Id.; IAF, Tab 6 at 195.
¶3 The agency proposed and effected the appellant’s removal based on the two
incidents described above. ID at 3; IAF, Tab 6 at 40-46, 149 -55. After the
appellant filed a Board appeal, the agency rescinded the removal, and the
administrative judge dismissed the appeal as moot over the appellant’s objection .2
ID at 3-4; Tito v. Department of the Interior , MSPB Docket No. SF-0752 -15-
0523 -I-1, Initial Decision (Jul. 10, 2015).
¶4 On June 5, 2015, the agency again proposed the appellant’s removal based
on a single charge of possessing a firearm in a Federal facility wi thout
authorization, and the charge included two specific ations. ID at 4; IAF, Tab 6
at 28-31. The appellant did not reply to the proposal notice, and the agency
sustained the charge and removed the appellant, effective July 8, 2015. ID at 4;
IAF, Tab 6 at 19, 21 -26.
¶5 The appellant filed a Board appeal. ID at 5; IAF, Tab 1. A hearing was
held. ID at 5; Hearing Transcripts (HTs). The administrative judge issued an
initial decision that sustained the two specifications and the charge of possessing
a firearm in a Federal facility without authorization, concluded that the appellant
did not prove any of her affirmative defenses, and upheld the removal. ID
2 Neither party filed a petition for review of the initial decision, and the initial decision
became final on August 14, 2015.
4
at 6-76. The appellant has filed a petition for review, the agency has filed a
response, and the ap pellant has filed a reply. Petition for Review (PFR) File,
Tabs 1, 3-4.
DISCUSSION OF ARGUME NTS ON REVIEW
We agree with the administrative judge that the agency proved the charge and
both specifications.
¶6 The appellant did not challenge below or on review the administrative
judge’s finding that the elements of the charge included (1) possession of a
firearm, (2) in a Federal facility, and (3) without authorization, or that the charge
did not include an intent element. ID at 6-7; IAF, Tab 24 at 2-3; PFR File, Tab 1
at 16. The appellant also does not dispute that she brought her handgun into the
Federal facilities on the dates in question or that carrying a firearm was not part
of her duties. ID at 7-8; PFR File, Tab 1 at 4.
¶7 The appellant challenge s the administrative judge’s conclusion that she
was not authorized to bring the firearm into the TNWR facility on October 27,
2014 .3 PFR File, Tab 1 at 4. Instead , she asserts that she had apparent
authorization to carry a firearm because she had seen numerous other individuals
carrying firearms in the facility who were not disciplined . Id. at 6-7. The record
reflects the administrative judge ’s conscientious consideration of the witness
testimony and documentary evidence, including the appellant’s position
description . ID at 6-9; IAF, Tab 6 at 249-55. We discern no error with the
administrative judge’s conclusion that the appellant was not authorized to bring in
her personal firearm into the res pective Federal facilities on either date . ID at 6-9
& n.6. Accordingly, we affirm the administrative judge’s decision to sustain both
specifications and the charge .
3 In her discussion of the charge, the appellant raises issues of notice, intent, and
disparate treatment, and she asserts that the penalty was too severe for the second
specification. We will address these issues in our penalty analysis, below.
5
We agree with the administrative judge that the appellant did not prove any of her
affirmative defenses.
¶8 The appellant does not challenge on review the administrative judge’s
conclusion that she did not prove her affirmative defenses of harmful procedural
error, laches, or prohibited personnel practices pursuant to 5 U.S.C. § 2302 (b)(2)
and (11). ID at 9-21. Because the appellant is not pursuing these claims on
review, we need not analyze them in this order. See 5 C.F.R. § 1201.115 (stating
that the Board normally will consider only issues raised in a timely filed petition
or cross petition for review). Accordingly, we affirm the administrative j udge’s
decision regarding these affirmative defenses .
¶9 The appellant’s petition for review appears to primarily challenge the
administrative judge’s analysis of her claim of reprisal for whistleblowing
disclosures and/or protected activity. PFR File, Tab 1 at 17-20. When
whistleblower retaliation claims are made in the context of an otherwise
appealable action, as here, the appellant must prove by preponderant evidence4
that she made a protected disclosure pursuant to 5 U.S.C. § 2302 (b)(8) or engaged
in protected activity as defined in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), and (D)
and th at th e disclosur e or protected activity was a contributing factor in the
personnel action(s) at issue .5 Pridgen v. Office of Management and Budget ,
2022 MSPB 31 , ¶ 49; Ayers v. Department of the Army , 123 M.S.P.R. 11, ¶ 12
(2015); Alarid v. Department of the Army , 122 M.S.P.R. 600, ¶ 12 (2015); see
5 U.S.C. § 1221 (e)(1) . If the appell ant makes this showing, the burden shifts to
4 Prepon derant evidence is the degree o f relevant evidence that a reasonable person,
considering the record as a whole, would accept as sufficient to find that a contested
fact is more likely to be true than untrue. 5 C.F.R. § 1201.4 (q).
5 We have reviewed the relevant legislation amending the whistleblower protection
statutory scheme enacted during the pendency of this appeal and have concluded that it
does not affect the outcome of the appeal .
6
the agency to prove by clear and convincing evidence6 that it would have ta ken
the personnel action absent the protected disclosure or activity. Pridgen ,
2022 MSPB 31 , ¶ 49; Ayers , 123 M.S.P.R. 11, ¶ 12; Alarid , 122 M.S.P.R. 600,
¶ 12; see 5 U.S.C. § 1221 (e)(2) .
¶10 In the initial de cision, the administrative judge found that the appellant
made a protected whistleblowing disclosure when she orally disclosed to her
former supervisor that his plan to purchase a quantity of oil from a former agency
employee was precluded by purchasing ru les and regulations. ID at 25-31. The
administrative judge also found that the appellant’s January 14, 2014
memorandum to the Office of Inspector General (OIG) that was critical of the
Human Resources Manager and four Human Resources Specialists constitu ted
activity protected by 5 U.S.C. § 2302 (b)(9)(C).7 ID at 36-37; IAF, Tab 6
at 81-84. He further found that the appellant proved that her whistleblowing
disclosure and protected activity were a contributing factor in the agency’s
decision to remove her.8 ID at 37-39. The administrative judge found, however,
that the agency proved by clear and convincing evidence that it would have
removed her absent her whistleblowing disclosure or protected activity. ID
at 39-47.
¶11 On review, the appellant argues that the administrative judge improperly
analyzed the agency’s clear and convincing burden. PFR File, Tab 1 at 11, 17 -20.
In determining whether an agency has shown by clear and convincing evidenc e
6 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.”
5 C.F.R. § 1209.4 (e).
7 The administrative judge concluded that the appellant did not prove that her
disclosures regarding a violation of the agency’s housing manual and her former
supervisor’s directive to teach only creationism were protected whistleblowing
disclosures. ID at 31-36. The appellant does not challenge these findings on review,
and we affirm the administrative judge’s findings in this regard.
8 The agency does not challenge this finding, and we affirm it herein .
7
that it would have taken the same personnel action in the absence of a
whistleblowi ng disclosure or protected activity, the Board will co nsider all of the
relevant factors, including the following factors (“ Carr factors”): (1) the strength
of the agency ’s evidence in support of its action; (2) the existence and strength of
any motive to retaliate on the part of the agency officials who were involved in
the decision; and (3) any evidence that the agency takes similar actions against
employees who did not engage in such protected activity , but who are otherwise
similarly situated. Soto v. Department of Veterans Affairs , 2022 MSPB 6 , ¶ 11;
see Carr v. Social Security Administration , 185 F.3d 1318 , 1323 (Fed. Cir. 1999);
Alarid , 122 M.S.P.R. 600 , ¶ 14.9 The appellant does not challenge the
administrative judge’s conclusion that the agency’s evidence was “very strong ”
and “weighed significantly” in its favor , ID at 39-40, and we affirm that finding .
¶12 Regarding the second Carr factor, the administrative judge noted that the
proposing official —who was the appellant’s supervisor —could have a strong
motive to re taliate because he was involved in the oil transaction that was the
subject of the appellant’s whistleblowing disclosure and that transaction later
became the subject of agency criminal and non -criminal investigation s. ID at 41.
The administrative judge made demeanor -based credibility determinations in
favor of the proposing official in part because he (the proposing official) initia ted
the criminal inquiry and had no knowledge that the appellant made a disclosure
regarding the transaction. ID at 41-42. The administrative judge further found
that the Human Resources Manager could have a somewhat strong motive to
retaliate if she knew of the appellant’s OIG disclosure. ID at 42. The
9 Historically, the Board has been bound by the precedent of the U.S. Court of Appeals
for the Federal Circuit on these types of whistleblower issues. However, pursuant to
the All Circ uit Review Act (Pub. L. No. 115-195), appellants may file petitions for
judicial review of Board decisions in whistleblower reprisal cases with any circuit court
of appeals of competent jurisdiction. See 5 U.S.C. § 7703 (b)(1)(B). Therefore, we
must consider these iss ues with the view that the appellant may seek review of this
decision before any appropriate court of appeal.
8
administrative judge also found that there was , at most, a negligible m otive to
retaliate that could be imputed to the deciding official because of the proposing
official’s involvement in the oil transaction and the involvement of the Human
Resources Manager in the removal action . ID at 46.
¶13 The appellant ’s arguments on rev iew regarding the motive to retaliate factor
appear to focus on the proposing official and the Human Resources Manager. For
instance, she asserts that the proposing official was motivated to “get her” well
before the two handgun incidents occurred. PFR F ile, Tab 1 at 18. As support
for this assertion, however, she focuses on evidence that the administrative judge
considered in his discussion of her claim of repri sal for activity protected by
5 U.S.C . § 2302 (b)(10),10 including her participation in the Tok Community
Umbrella Corporation (TCUC), the fact that several individuals involved in the
dispute between the TCUC and the Tok Chamber of Commerce told the proposing
official to fire h er, and the p roposing official draft ed, but did not issue , a
proposed 7 -day suspension based on community complaints about her. PFR File,
Tab 1 at 18 (citing ID at 49-50). By including such evidence under the heading
“Retaliation for Whistleblowing,” however, the appellant is improperly conflating
the two different claims. Because the allegations relating to her
section 2302(b)(10) claim are distinct from the allegations relating to her claim of
reprisal for whistleblowing disclosure s and protected activity, such allegations
do not change our view of the administrative judge’s analysis of the motive to
retaliate factor .11
10 Section 2302(b)(10) makes it a prohibited personnel practice to “discriminate for or
against any employee or applicant for employment on the b asis of conduct which
does not adversely affect the performance of the employee or applicant or the
performance of others.”
11 Even if we construe the appellant’s assertion as a challenge to the administrative
judge ’s evaluation of her claim of retaliati on for activity protected by
section 2302(b)(10) , a different outcome is not warranted. The initial decision reflects
the administrative judge’s careful consideration of the relevant case law and the
9
¶14 In the initial decision, the administrative judge credited the testimony of the
proposing official as “direct, forthright, and persuasive” r egarding his decision to
take responsibility for the oil transaction, and he rejected as speculative the
appellant’s attorney’s suggestion that the proposing official’s acceptance of
responsibility was a ploy to protect the appell ant’s former supervisor. ID
at 41-42 & n.15. The Board defer s to an administrative judge’s credibility
determinations when they are based, e xplicitly or implicitly, on obser ving the
demeanor of witnesses testifying at a hearing; the Board overturn s such
determinations only when it has “sufficiently sound” reasons for doing so. See
Haebe v. Department of Justice , 288 F.3d 1288 , 1301 (Fed. Cir. 2002) . The
appellant has not presented any such reasons. We have considered her assertion
that the initial decision does not explain why the proposing official’s motive to
protect the appellant’s former supervisor and the agency’s “interest in
maint aining control over subordinates” should not be imputed to the proposing
official as a possible reason for the proposing official taking responsibility for the
oil transaction that the former supervisor initiated. PFR File, Tab 1 at 20.
However, there is no evidence to support this assertion, and we find it unavailing.
¶15 We have considered the appellant’s contention that the administrative judge
should have penalized the agency —by applying the “usual inference [that the
agency was ] trying to hide something ”—because the agency did not call the
Human Resources Manager as a witness. Id. at 19. The appellant does not
indicate on review whe n she requested below that the administrative judge issue
such a sanction, and we could not find such a request in the record. Nevertheless,
we are not persuaded that any such sanction is necessary to serve the ends of
evidence, and we discern no error with his conclusion that the appellant failed to prove
that her TCUC activity played a role in he r removal or that the removal action
constituted a prohibited personnel practice as described in 5 U.S.C. § 2302 (b)(10) . ID
at 47-53.
10
justice. 5 C.F.R. § 1201.43 . Indeed, as noted above, the administrative judge
acknowledged that the Human Resources Manager could have a “somewhat
strong” motive to retaliate if she was aware of the disclosure . Based on the
testimony of the proposing and deciding officials, however, the administrative
judge found that there was nothing in the record to suggest that the Human
Resources Manager influenced either of them . ID at 42-45; HT 1 at 75 (testimony
of the proposing official), 282 -83, 285 -87, 296 -97 (testimony of the deciding
official). Under these circum stances, we find that it was unnecessary for the
Human Resources Manager to testify regarding any of the issues in this matter ,
and we decline to sanction the agency for not calling her as a witness .
¶16 Regarding the third Carr factor, the administrative judge noted in the initial
decision that the agency did not present any evidence regarding this factor , the
charged misconduct was unique to the experience of both the proposing and
deciding officials, and none of the purported c omparators identified by the
appellant were valid comparators. ID at 45-46. He therefore concluded that this
factor was of “relatively little import.” ID at 46. We agree. The absence of
evidence on the third Carr factor can render that factor neutral, but an agency’s
failure to produce such evidence if it exists may prevent it from carrying its
burden overall. Soto , 2022 MSPB 6 , ¶ 18; see Whitmore v. Department of Labor ,
680 F.3d 1353 , 1374 -75 (Fed. Cir. 2012). Thus , the administrative judge
correctly determined that the absence of evidence on the third Carr factor in th e
record is a neutral factor . Soto , 2022 MSPB 6, ¶ 18; see Rickel v. Department of
the Navy , 31 F.4th 1358 , 1365 (Fed. Cir. 2022) (holding that “[t]he lack of
evidence on the third Carr factor appears neutral” ). Overall , based on the
administrative judge’s findings regarding the strength of the agency’s evidence as
to Carr factors 1 and 2, and concurring with his analysis of Carr factor 3, we
defer to the administrative judge’s demeanor -based credibility determinations,
and we agree wi th his conclusion that the agency proved by clear and convincing
11
evidence that it would have removed the appellant absent her whistleblowing
disclosure and/or protected activity. ID at 39-47; see Haebe , 288 F.3d at 1301 .
¶17 The appellant also asserts on review that the agency violated her due
process and equal protection rights by punishing her for violating a rule for which
she had no notice and for behavior that other people engaged in and for which
they were not punished. PFR File, Tab 1 at 5, 8-10. Contrary to the appellant’s
assertion, we agree with the administrative judge that the appellant received
minimum due process because the agency gave her advance notice of the charge
against her, evidence that it relied upon to support the charge and penalty, and an
opportunity to respond. ID at 11-13; see Cleveland Board of Education v.
Loudermill , 470 U.S. 532 , 546 (1985) (explaining that tenured public employees
cannot be deprived of their property right in continued employment without du e
process of law, i.e., notice and an opportunity to respond). Additionally, the
appellant’s allegation that the agency treated her disparately to other employee s,
without a claim of prohibited discrimination, is an allegation of disparate
penalties to be proven by the appellant and considered by the Board in
determining the reasonableness of the penalty, but it is not an affirmative defense.
Vargas v. U.S. Postal Service , 83 M.S.P.R. 695, ¶ 9 (1999). The appellant
has not persuaded us that the administrative judge erred when he found that she
did not prove an equal protection violation in this regard , ID at 13-14; however,
we will address her disparate penalty claim in our penalty analysis , below .
We agree with the administrative judge that there was a nexus between the
sustained misconduct and the efficiency of the service .
¶18 On review, the appellant challenges the administrative judge’s nexus
analysis and contends that the two incidents had a minimal effect on the
efficiency of the service. PFR File, Tab 1 at 20-22; ID at 53-54. This argument
is unavailing. For purposes of whether an agency has shown that its action
promotes t he efficiency of the service, the nexus requirement means there must be
a clear and direct relationship between the articulated grounds for an adverse
12
action and either the employee’ s ability to accomplish his or her duties
satisfact orily or some other leg itimate G overnment interest. Merritt v.
Department of Justice , 6 M.S.P.R. 585, 596 (1981), modified by Kruger v.
Department of Justice , 32 M.S.P.R. 71, 75 n.2 (1987). Sufficient nexus exists
between an employee’s conduct and the efficiency of the service when the
conduct occurred at work , as in this case . Parker v. U.S. Postal Service , 819 F.2d
1113 , 1116 (Fed. Cir. 1987) ; see HT 1 at 245 (testimony of the deciding official)
(explaining that the appellant’s conduct in the second incident was “very
disruptive” because “many of [the employees] were concerned about the safety
for the staff ” and “people were unable to do their regular job until things were
figured out” ). Accordingly , we affirm the administrative judge’s nexus analysis.
We agree with the administrative judge that the removal penalty is reasonable for
the sustained misconduct .
¶19 The Board will review an agency -imposed penalty only to determine if the
agency considered all the relevant factors and exercised management discretion
within tolerable limits of reasonableness . Douglas v. Veterans Administration ,
5 M.S.P.R. 280 , 306 (1981). On review , the appellant challenges the
administrative judge’s eva luation of intent, notice, the consistency of the penalty
with those imposed upon other employees for the same or similar offenses , and
the agency’s failure to apply progressive discipline . PFR File, Tab 1 at 6-17,
23-24. For the following reasons, a dif ferent outcome is not warranted .
¶20 The administrative judge discussed at length the appellant’s contention that
the agency treated her differently from several other agency employees and
members of the public who brought f irearms into the TNWR building or on an
agency airplane without any consequences. ID at 66-71. The administrative
judge noted that the alleged comparators did not engage in substantial ly similar
misconduct —either because the y were not agency employees or because they
were authorized to carry firearms for survival, protection, or other work -related
purposes —and any difference in treatment by the proposing and deciding officials
13
was not knowing or intentional because such prior conduct predated their roles as
agency managers. ID at 67-71.
¶21 In analyzing the appellant’s disparate penalty claim, the administrative
judge cited Boucher v. U.S. Postal Service , 118 M.S.P.R. 640 (2012), which , in
turn, cited Lewis v. Department of Veterans Affairs , 113 M.S.P.R. 657 (2010 ), for
the proposition that, to trigger the agency’s burden to show a leg itimate reason
for the difference in treatment in a disparate treatment claim, there must be
enough similarity between the nature of the misconduct and other factors to lead a
reasonable person to conclude that the agency treated similarly situated
employees differently. ID at 67. The Board has since overruled Lewis to clarify
that, when analyzing disparate penalty claims, broad similarity between
employees is insufficient to establish that they are appropriate comparators, and
the relevant inquiry is whether the agency knowingly and unjustifiably treated
employees who engaged in the same or similar offenses differently. Singh v. U.S.
Postal Service , 2022 MSPB 15 ¶¶ 9-18. However, t he administrative judge’s
discussion of the standard set forth in Boucher and Lewis was not prejudic ial in
this case because, as the administrative judge properly found, the appellant failed
to satisfy ev en that less onerous standard. ID at 67-71.
¶22 On review, the appellant does not contest the administrative judge’s finding
that the law enforcement off icer who was authorized to carry firearms as part of
his duties and the two nonemployees were not proper comparators. PFR File,
Tab 1 at 11-12. She asserts, however, that there was a pattern of allowing
employees to bring handgun s into the building for s ocial purposes . Id. at 6, 11.
Indeed, the record reflects that around Christmas 2013, J.E. , who was a pilot,
brought in a .22 rifle to the workplace to show other employees the gift that he
had purchased for his son. HT 2 at 8-9 (testimony of J.E.). However, the
circumstances surrounding this incident are easily distinguishable. Importantly,
as a pilot, J.E. was authorized to carry a firearm for protection, he was one of the
“few employees that could open a handgun safe,” and he “inven toried the
14
firearms.” HT 2 at 5-7 (testimony of J.E.). Moreover, there was no evidence that
anyone in management observed J.E. bringing in the rifle on that date or
otherwise realized the circumstances under which he brought it to work. HT 1
at 149, 152, 155 (testimon y of a Federal wildlife officer). There is also no
evidence that J.E. brough t in a personal firearm for non -work -related reasons on
more than one occasion. Under these circumstances, the appellant failed to show
that the agency knowingly or unjustifiably treated employees who engaged in
similar offenses differently. Singh , 2022 MSPB 15 , ¶ 14.
¶23 In discussing issues of condonation, notice, and intent, the administrative
judge noted that the parties’ accounts varied and he had to make credibility
determinations. ID at 60 (discussing the relevant credibility factors as described
in Hillen v. Depart ment of the Army , 35 M.S.P.R. 453, 458 (1987)). Regarding
condonation, the administrative judge made demeanor -based credibility
determ inations in favor of the proposing official and another agency witness that
the proposing official told the appellant on the day of the October 27, 2014
incident that she had to leave her handgun in her car and could not bring it into
the office. ID at 60-62. Regarding notice, the administrative judge found that it
was inherently improbable that the appellant, because of her Administrative
Officer position, was unaware of any agency rules prohibiting firearms in the
workplace absent authorization. ID at 63. The administrative judge made
credibility determinations against the appellant based on her demeanor and stated
that he was “left . . . with the impression [that] her testimony was contrived and
less than forthright on the issues of notice and intent. ” ID at 64. He determined
that the appellant’s explanation that she did not know that it was a problem to
bring her handgun to work on October 27, 2014, and “feigned inadvertence”
regarding her decision to bring in her handgun to the regional office on
December 9, 2014 , “derogated common sense, [F]ederal law, the reality of her job
duties and work environs.” ID at 64-65. He further found “unworthy of
credence” her accounts involving condonation, lack of notice, and lack of intent,
15
and concluded that su ch claims “rang hollow” because they were inconsistent
with and/or contradicted by other evidence, inherently improbable, and/or
appeared contrived and less than forthright. ID at 64-65. Here, too, the appellant
has not identified sufficiently sound reasons for overturning the administrative
judge’s demeanor -based credibility determinations. Haebe , 288 F.3d at 1301 .
Accordingly, we affirm the administrative judge’s analysis of the issues of
condonation, notice, and intent .
¶24 The appellant also contends on review that the p enalty of removal was too
harsh , particularly since the FPS deemed the second incident “inadvertent ”
because she paid a $125 .00 fine in lieu of appearing in court . PFR File, Tab 1
at 4-5. There is no support for the appellant’s assertion that FPS found that she
had no intent to violate the law . To the contrary , the violation notice itself
identified the relevant offense as knowingly bringing a handgun into a Federal
facility and, as support, specifically cites to a law, 41 C.F.R. § 102-74.440.12
IAF, Tab 6 at 195. Thus, this argument does not warrant a different outcome.
¶25 Finally, t he appellant argues that the “author of th e [proposal notice] has
stated that progressive discipline was skipped because she believes it would not
work ”; instead, the appellant contends that her past evaluations and letters of
support warrant a penalty less than removal.13 PFR File, Tab 1 at 23-24
(emphasis supplied) . This argument is confusing because the proposing official is
12 “Federal law prohibits the possession of firearms or other dangerous weapons in
Federal facilities . . . by all persons not specifically a uthorized by 18 U.S.C. § 930.”
The appellant does not contend that she was authorized by 18 U.S.C. § 930 to bring a
firearm to work.
13 To the extent that the appellant argues that the administrative judge erred in
analyzing her harmful procedural error claim based on the agency’s failure to follow its
own internal policy regarding progressive discipline, PFR File, Tab 1 at 23-24, the
appellant has not persuaded us that the administrative judge applied the wrong legal
standard or improperly concluded that she failed to prove this aff irmative defense, ID
at 14-15.
16
male and the deciding official is female , and the appellant did not cite to any
documentary evidence or testimony to support this assertion . We need not
resolve this discr epancy, however, because the record reflects that both the
proposing and deciding official s considered the appellant’s potential for
rehabilitation , the adequacy and effectiveness of alternative sanctions to deter
such conduct in the future, and her two pr ior superior ratings .14 IAF, Tab 6
at 22-24, 35 -38.
¶26 We discern no error with the administrative judge’s conclusion that the
deciding official considered the relevant penalty factors and exercised her
discretion within tolerable limits of reasonableness . ID at 54-75; see, e.g. ,
Coleman v. Department of Defense , 100 M.S.P.R. 574, ¶ 16 (2005) (noting that
the Board has found removal to be a reasonable penalty when an appellant has
violated an agency’s security regulations by his unauthorized possession of a
firearm on agency premises) .
Conclusion
¶27 We have considered the appellant’s remaining argument s on review but a
different outcom e is not warranted. The record reflects that the administrative
judge considered the evidence as a whole, drew appropriate inferences, and made
reasoned conclusions on the issue of credibility. See, e.g ., Crosby v. U.S. Postal
Service , 74 M.S.P.R. 98, 105 -06 (1997) (finding no reason to disturb the
adminis trative judge’s findings when she considered the evidence as a whole,
drew app ropriate inferences, and made reasoned conclusions); Brou ghton v.
14 We recognize that the deciding official’s analysis of the relevant penalty factors
largely agrees with the proposing official’s analysis. IAF, Tab 6 at 22-24. However,
the administrative judge noted that the testimony of the deciding official regarding the
penalty assessment was “direct, forthri ght, and persuasive,” and he concluded that the
deciding official “agreed with [the proposing official’s] assessment upon conducting
her own, independent assessment of the situation.” ID at 44. The appellant has not
persuaded us that the administrative j udge’s credibility determination or his conclusion
was in error. See Haebe , 288 F.3d at 1301 .
17
Department of Health and Human Services , 33 M.S.P.R. 357, 359 (198 7) (same).
Accordingly , we affirm as modified the administrative judge’s decision to sustain
the charge and both specifications, to find that the appellant did not prove any of
her affirmative defenses, and to uphold the removal penalty .
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 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.
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 .
18
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional 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 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. ____ , 137 S. Ct. 1975 (2017). If you have a
19
representative in this case, and your repres entative receives this decision before
you do, then you must file with the district court no later than 30 calendar days
after your representative receives this decision. If the action involves a claim of
discrimination based on race, color, religion, sex , national origin, or a disabling
condition, you may be entitled to representation by a court -appointed lawyer and
to waiver of any requirement of prepayment of fees, costs, or other security. See
42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a .
Contact informa tion for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702 (b)(1) . If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for revi ew to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
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
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
section 2302(b) other than practices described in section 2302(b)(8), or
2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial
review either with the U.S. Court of Appeals for the Federal Circuit or any court
of appeals of competent jurisdiction.16 The court of appeals must receive your
petition for review within 60 days of the date of issuance of this decision.
5 U.S.C. § 7703 (b)(1)(B).
If you submit a petition for 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.
16 The original statutory provision that provided for ju dicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 20 17. 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 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 | TITO_TANYA_SF_0752_15_0684_I_1_FINAL_ORDER_2006922.pdf | 2023-02-28 | null | SF-0752 | NP |
3,457 | https://www.mspb.gov/decisions/nonprecedential/CARRIER_TAL_DONNA_LOU_DC_1221_12_0642_P_1_FINAL_ORDER_2006934.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
DONNA LOU CARRIER -TAL,
Appellant,
v.
DEPARTMENT OF THE AR MY,
Agency.
DOCKET NUMBER
DC-1221 -12-0642 -P-1
DATE: February 28, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL1
Donna Lou Carrier -Tal, Yorktown, Virginia, pro se.
Linda D. Taylor , Savannah, Georgia, for the agency .
Thomas X. McHugh , Esquire, Pittsburgh, Pennsylvania, for the agency.
BEFORE
Cathy A. Harris , Vice Chairman
Raymond A. Limon , Member
Tristan L. Leavitt , Member
FINAL ORDER
¶1 The appellant has filed a petition for review of the damages initial decision,
which awarded her $713.15 and 30 hours of sick leave as consequential damages .
For the reasons discussed below, we GRANT the appellant’s petition for review .
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
require d to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c).
2
Except as expressly MODIFIED by this Final Order to increase the amount of
leave restored and to award copying and printing costs, we AFFIRM the initial
decision. We ORDER the agency to pay the appellant a total of $856.59 and
restore a total of 192 hours of leave in consequential damages.
BACKGROUND
¶2 In July 2012, the appellant filed an individual right of action appeal ,
alleging that her November 23, 2011 letter of reprimand was the result of
whistleblower retaliation. Carrier -Tal v. Department of the Army , MSPB Docket
No. DC -1221 -12-0642 -W-1, Initial Appeal File (IAF), Tab 1. The administrative
judge dismissed the appeal for lack of jurisdiction, but the Board granted the
appellant’s petition for review and remanded the case for a hearing on the merits.
IAF, Tab 17, Initial Decision (ID); Carrier -Tal v. Department of the Army , MSPB
Docket No. DC -1221 -12-0642 -W-1, Remand Order (Sept. 13, 2013).
¶3 On remand, the administrative judge granted the appellant’s request for
corrective action. Carrier -Tal v. Department of the Army , MSPB Docket No.
DC-1221 -12-0642 -B-1, Remand File (RF), Tab 52, Remand Initial Decision
(RID). She found that the appellant met her burden of proving that her protected
activity was a c ontributing factor in the agency’s letter of reprimand and the
agency failed to meet its burden of proving that it would have taken the same
action in the absence of her protected activity. RID at 5 -18.
¶4 The agency filed a petition for review of the remand initial decision, but
there were only two Board members at the time and they could not agree on an
outcome. Carrier -Tal v. Department of the Army , MSPB Docket No.
DC-1221 -12-0642 -B-1, Order (Jan. 6, 2017). Accordingly, the remand initial
decision granti ng the appellant’s request for corrective action became the Board’s
final decision.
¶5 In March 2017, the appellant filed a motion for damages. Carrier -Tal v.
Department of the Army , MSPB Docket No. DC -1221 -12-0642 -P-1, Damages File
3
(DF), Tab 1. In sum, she requested consequential and compensatory damages
totaling approximately $1,000,00 0. DF, Tab 1 at 17, Tab 3 at 7. The
administrative judge granted the request, in part. DF, Tab 14, Damages Initial
Decision (DID) at 2 -14. She ordered the agency to pay consequential damages in
the amount of $713.15 and restore 30 hours of sick leave. DID at 15.
¶6 The appellant has filed a petition for review of the damages initial decision.
Carrier -Tal v. Department of the Army , MSPB Docket No. DC -1221 -12-0642 -
P-1, Damag es Petition for Review (DPFR) File, Tab 1. The agency has filed a
response and the appellant has replied. DPFR File, Tabs 5, 9.
ANALYSIS
The administrative judge properly recognized that the appellant is not entitled to
compensatory damages.
¶7 The appell ant argues that the administrative judge erred in altogether
denying her request for compensatory damages. DPFR File, Tab 1 at 6. We
disagree. The instant motion for damages concerns the appellant’s
November 2011 reprimand. Supra , ¶ 2 . At that time, t he Board had the authority
to award consequential damages to an appellant in whistleblower cases. See King
v. Department of the Air Force , 119 M.S.P.R. 663 , ¶ 11 (2013) (discussing the
Whistleblower Protection Act (WPA)). Although Congress later provided for
compensatory as well as consequential damages in whistleblower cases, the Board
has concluded that this expansion of consequen tial damages for past events does
not apply retroactively. Id., ¶¶ 15 -18 (discussing the Whistleblower Protection
Enhancement Act of 2012, Pub. L. No. 112-199, 126 Stat. 1465, (WPEA), and
5 U.S.C. § 1 221(g)(1)(A)(ii)).
¶8 The appellant suggests that the administrative judge summarily dismissed
damages that the appellant labeled as compensatory, without considering the
underlying substance of those damages. DPFR File, Tab 1 at 6, 8. However, t his
argument is not supported by the record. The administrative judge did explain
that compensatory damages are not permissible in this appeal. DID at 2.
4
Nevertheless, she went on to consider the appellant’s alleged damages,
individually, to determine w hether they were recoverable. For example, the
appellant requested a total of $975,000 for lost professional opportunities, pain,
and suffering. DF, Tab 1 at 12 -16. The administrative judge explicitly
considered the request and found it not recoverable. DID at 14 (citing Bohac v.
Department of Agriculture , 239 F.3d 1334 , 1343 (Fed. Cir. 2001) (explaining that
the “consequential damages” provis ion of the relevant statute, 5 U.S.C. § 1221 (g),
was “limited to reimbursement of out -of-pocket costs”)). Accordingly, the
appellant’s suggestion that the administrative judge altogether dismissed some of
her damages requests based on their labeling, rather than their substance, is
incorrect.
The administ rative judge erred in calculating the amount of leave the agency must
restore to the appellant.
¶9 As the prevailing party, the appellant is entitled to “back pay and related
benefits, medical costs incurred, travel expenses, and any other reasonable and
foreseeable consequential [damages].” 5 U.S.C. § 1221 (g)(1)(A)(ii); King v.
Department of the Air Force , 122 M.S.P.R. 531 , ¶ 7 (2015) . Those damages are
limited to out -of-pocket costs and do not include nonpecuniary damages.
King , 122 M.S.P.R. 531 , ¶ 7. The phr ase “any other reasonable and foreseeable
consequential [damages]” covers only items similar in nature to the specific items
listed in the statute, i.e., back pay and related benefits, medical costs incurred,
and travel expenses. Id. The Board has explai ned that, to receive a consequential
damages award, an appellant must prove that she incurred consequential damages
and that her claimed damages were reasonable, foreseeable, and causally rela ted
to the agency’ s prohibited personnel practice. Id.
¶10 Among th e appellant’s requests for damages was a request that the agency
restore 396.25 hours of leave in the years following the November 23, 2011
reprimand, up to and including 2016. DF, Tab 1 at 10 -12, 37. The administrative
judge correctly recognized that si ck leave used as a result of an agency’s
5
whistleblower reprisal is a recoverable consequential damage as a medical cost
incurred under section 1221(g)(1)(A). DID at 12 -13 (referring to King ,
122 M.S.P.R. 531 , ¶ 13). She further found that other leave would similarly be
recoverable if the appellant could prove that it was taken in lieu of sick leave.
DID at 13. On review, the appel lant does not appear to dispute this standard. She
does, however, argue that the administrative judge erred in calculating the
appropriate amount of leave the agency should restore. DPFR File, Tab 1
at 13-16. We agree.
November 23, 201 1—January 11, 2012
¶11 The appellant’s evidence in support of her request for restored leave
includes a December 5, 2011 letter from her psychologist, dated just days after
the retaliatory reprimand of November 23, 2011. DF, Tab 1 at 23. In that letter,
the appellant’s psycho logist recommended that the appellant be relieved of her
work responsibilities for 30 days. Id. He attributed this to “mental confusion,
anxiety, and posttraumatic stress related symptoms due to ongoing work related
stress.” Id. The same psychologist p rovided an update on January 4, 2012,
recommending further medical leave, while describing the underlying cause of the
appellant’s continued symptoms as rela ted to work incidents in which s he felt she
had been discriminated against. Id. at 24 -25. The nex t update, from a different
psychologist, concurred that the appellant had required medical leave for
work -related symptoms “following a period of intense conflict at work” including
“retaliatory actions and a written reprimand.” Id. at 26. However, based on a
January 11, 2012 follow -up, that psychologist concluded in a medical note dated
February 27, 2014, that the appellant’s condition had improved enough for her to
return to work full -time. Id. He went on to describe the appellant as being able
to wor k without disruption since January 2012 , despite her continued symptoms
and treatment. Id.
¶12 In addition to the medical evidence described above, the appellant created a
table of her leave during the relevant period. Id. at 37. According to that table,
6
the appellant used 192 hours of leave during the pay periods spanning her
November 23, 2011 reprimand and her recovery on January 11, 2012. Id. Those
calculations are supported by accompanying leave records. Id. at 70-71.
¶13 The administrative judge cons idered the first medical record, and its
recommendation of 30 days of leave, but she then concluded that the appellant
should be credited with 30 hours of leave. DID at 13. It appears that this may
have been a typographical error. The administrative jud ge provided no
explanation for why it would be appropriate to grant 30 hours of leave despite her
psychologist recommending 30 days of leave. Accordingly, we modify the initial
decision to find that the agency must restore the 192 hours of leave the appel lant
used between November 23, 2011 , and January 11, 2012.
January 29, 201 2—July 28, 2012, and 201 3—2016
¶14 In addition to requesting restoration of leave for the period immediately
following her written reprimand, the appellant also requested that the agency
restore 108.25 hours of leave for the period between January 29 and July 28,
2012. DF, Tab 1 at 37. She further requested restoration of another 96 hours for
the period between 2013 and 2016. Id.
¶15 On review, the appellant correctly observes that the a dministrative judge
failed to substantively address these additional periods. DPFR File, Tab 1
at 14-16; see DID at 12 -13. However, the appellant has not identified persuasive
evidence establishing the cause of this leave. As observed above, although the
appellant’s prior psychologist recommended a lengthier absence, a different
psychologist released her to work, full -time, as of January 11, 2012. DF, Tab 1
at 24-26. We find the second prognosis more per suasive. We further note that
the appellant’s tr eating psychologist provided an update in February 2017, in
which he described caring for the appellant “with some regularity . . . until
August 2014.” Id. at 27. Yet, he did not mention any required leave during that
period.
7
¶16 It was the appellant’s bur den to prove not only that she took leave after
January 11, 2012, but also that the leave was reasonable, foreseeable, and
causally related to the agency’ s prohibited personnel practice. We find that the
appellant has failed to do so.
The administrative judge erred in denying the appellant’s requested copying and
printing costs.
¶17 The appellant’s request for damages included $143.44 in copying and
printing costs. DR, Tab 1 at 11 -12. To support that request, the appellant created
a spreadsheet detailing th e 1,304 pages associated with her appeal, beginning
with her December 2011 OSC complaint and ending with a January 2 017
certificate of s ervice from the Board. Id. at 33 -35. The appellant estimated the
cost of those pages a s 11 cents each, or $143.44. Id. at 35. The administrative
judge denied the app ellant’s request for these alleged costs because the appellant
failed to attach receipts showing that they were actually incurred. DID at 13 -14.
¶18 On review, the appellant reasserts her alleged copying and pr inting costs.
DPFR File, Tab 1 at 16 -18. She acknowledges that the record did not contain
receipts to corroborate those costs, but argues that she nevertheless proved them
through her own sworn statements. Id. at 16. We agree.
¶19 The Board has found tha t the costs associated with photocopying are
recoverable under 5 U.S.C. § 1221 (g)(1). Smit v. Department of the Treasury ,
61 M.S.P.R. 612 , 623 -24 (1994). In addition to the table described above, the
record does include a sworn statement in which the appellant asserts that she
incurred printing and copying damages and those costs totale d $143.44. DF,
Tab 3 at 6. Based on that sworn statement and the absence of any contrary
evidence, we modify the damages initial decision to find that the agency must
reimburse the appellant for the reasonable copying and printing costs of $143.44.
8
The appellant has failed to establish any other error in the administrative judge’s
findings regarding damages.
Medical costs
¶20 The appellant requested $4,846.82 for medical visits and another $2,465.49
for medications. DF, Tab 1 at 6 -8, 12, 29 -30, Tab 3 at 7. The administrative
judge found that the appellant was only entitled to $230. DID at 3 -6, 8-9. She
explained that while the record reflected a number of medical visits or treatments,
$230 worth of co -pays were the only documented out -of-pocket costs to t he
appellant. DID at 5 -6.
¶21 On review, the appellant asserts that she is entitled to the entire cost of her
medical appointments, not just her co -pays.2 DPFR File, Tab 1 at 18 -19. We
disagree. The appellant is entitled to actual monetary losses or out -of-pocket
expenses. King , 122 M.S.P.R. 531 , ¶ 7. Costs paid by her insurer do not qualify
as recoverable consequential damages. Id., ¶ 14. The appellant also asserts that
the administrative judge erred by allowing reimbursement for treatment
associated with one psychologist, but not her other medical providers. DPFR
File, Tab 1 at 19 -21. Again, we disagree. As the administrative judge explained,
even if these other visits were attributable to the agency’s prohibited personnel
practice, the appellant failed to present evidence of her resulting out -of-pocket
costs. DID at 6. For example, while the appellant submitted numerous
statements from her insurer, she redacted fields that would have shown her
out-of-pocket costs, if there were any, leaving only the total cost of the visit.
E.g., DF, Tab 1 at 50.
¶22 Regarding her alleged medical costs, the appellant next argues that she
should be reimbursed for her gym membership and a number of massages. DPFR
File, Tab 1 at 20. The administrative judge found that the appellant failed to
establish that these were damages that stemmed from the agency’s retaliation.
2 The appellant does not appear to challenge the administrative judge’s finding that the
appellant was not entitled to reimbursement for the cost of medications. DID at 8 -9.
9
DID at 6. We agree. Th e appellant has not identified persuasive evidence, such
as medical documentation showing that these services were attributable to the
agency’s actions. See DF, Tab 1 at 11, 36, Tab 6 at 10. The appellant also argues
that the administrative judge erred i n denying her request for future medical
costs. DPFR File, Tab 1 at 21 -23. However, in doing so, the appellant has
generally argued that the administrative judge failed to consider all her evidence
pertaining to the mental and physical effects she has su ffered. Id. She has not
identified specific evidence in support of these claimed damages. Accordingly,
we find no basis for disturbing the administrative judge’s conclusion that the
appellant failed to prove her future medical costs. See Pastor v. Depa rtment of
Veterans Affairs , 94 M.S.P.R. 353 , ¶¶ 9, 22 -30 (2003) (finding that future medical
costs may be a recoverable consequential damage, but the appellant failed to
prove such costs with reasonable certainty); Pastor v. Department of Veterans
Affairs , 87 M.S.P. R. 609 , ¶ 17 (2001) (recognizing that consequential damages
encompasses future provable expenses, but they cannot be based on conjecture,
surmise, or speculatio n—they must be proven with reasonable certainty).
Transportation costs
¶23 Among her request for dam ages, the appellant alleged $689.36 in
transportation costs associated with her medical care. DF, Tab 1 at 8 -9, 29 -30.
Using the General Services Administration’s mileage rates, the administrative
judge found that the appellant met her burden for substan tiating a portion of the
mileage alleged, totaling $483.15. DID at 6 -8. On review, the appellant argues
that the administrative judge should have awarded her the full mileage costs she
alleged. DPFR File, Tab 1 at 21. However, the appellant provided no substantiv e
explanation and her mere disagreement does not warrant a different result. See
Weaver v. Department of the Navy , 2 M.S.P.R. 129 , 133 (1980) (recognizing that
mere disagreement with the administrative judge’s findings of fact and
conclusions of law does not warrant full review by the Board).
10
Lost performance awards, quality step increases, and other opportunities
¶24 The appellant alle ged that , if it were not for the agency’s retaliatory
reprimand, she would have received both a $3,200 performance award and a
quality step increase (QSI) valued at more than $18,000. DF, Tab 1 at 9 -10, 12.
The administrative judge denied these alleged d amages. DID at 11 -12. She
found that the appellant’s claim for these damages was, at best, speculative. Id.
Moreover, the administrative judge found that they were not back pay or a related
benefit recoverable under the WPA. Id. Although the appella nt reasserts these
alleged damages on review, DPFR File, Tab 1 at 23 -24, we find no basis for
disturbing the administrative judge’s conclusion. The appellant has not proven
that these alleged losses were causally related to the agency’s retaliation. See
King , 122 M.S.P.R. 531 , ¶ 7.
¶25 As previously discussed, the appellant also alleged $375,000 in lost career
opportunities, as well as another $550,000 in pain and suffering. DF, Tab 1
at 12-16. The administrative judge found that these types of damages were not
recoverable under the WPA. DID at 14. On review, the appellant first argues
that these types of damages are recoverable unde r the WPA, based upon the
clarification provided by the WPEA. DPFR File, Tab 1 at 25 -27. But as we
stated above, the Board has explicitly rejected this interpretation of the WPEA;
while the WPEA did provide for compensatory damages, that expansion of leg al
consequences is not a clarification, retroactive to cases governed by the WPA.
Supra , ¶ 7. The appellant also argues, in the alternative, that her alleged
$375,000 in lost career opportunities is recoverable as a consequential damage.
DPFR File, Tab 1 at 27 -28. Once more , we disagree. The appellant has merely
speculated that if it was not for the agency’s retaliatory reprimand, she could have
been promoted to a GS -15 and earned an additional $125,000 over 5 years, then
she could have moved to privat e practice and earned an additional $250,000 over
5 years, for a total of $375,000. DF, Tab 1 at 14 -15. In essence, the appellant is
assigning monetary damages to an alleged injury to her reputation, but our
11
reviewing court has found that injury to reput ation, like pain and suffering, is not
recoverable under the WPA. Bohac , 239 F.3d at 1336.
The administrative judge did not abuse her discretion by rejecting one of the
appellant’s pleadings and failing to strike one of the agency’s pleadings.
¶26 On review, the appellant alleges that the administrative judge erred by
striking one of her initial pleadings from the record and accepting an untimely
filed pleading from the agency. DPFR File, Tab 1 at 11 -13. Regarding her own
pleading, the appellant a sserts that she initially filed both a motion for
consequential damages and a motion for compensatory damages. Id. at 11.
According to the appellant, the administrative judge struck the former, “creat[ing]
confusion and prejudice.” Id. However, the app ellant has not explained what
nonduplicative information or argument was included in that motion, nor has she
explained why the motion’s exclusion was prejudicial.
¶27 Regarding the agency’s untimely pleading, the appellant correctly notes that
the acknowled gment order did not provide for the agency to submit a reply brief,
but the agency nevertheless submitted one, after the record was scheduled to
close. Compare DF, Tab 2 at 3, with DF, Tab 8. However, it appears that the
administrative judge did not rely on that pleadin g—it is not cited or referred to in
the administrative judge’s damages initial decision. See DID. Moreover, an
administrative judge has wide discretion to control the proceedings, including the
discretion to accept late -filed submissions that contribute to the development of
the record. E.g., Henry v. U.S. Postal Service , 100 M.S.P.R. 399 , ¶ 7 (2005),
overruled on o ther grounds by Fernandez v. Department of Justice , 105 M.S.P.R.
443 (2007). Thus, the appellant’s procedural arguments are not pe rsuasive.
ORDER
¶28 We concu r with the administrative judge’ s decision to grant the appellant’ s
motion for an award of consequential damages, and we ORDER the agency to pay
the appellant $ 856.59 and to restore to her 192 hours of leave. See Kerr v.
12
National Endowment for the Art s, 726 F.2d 730 (Fed. Cir. 1984). The agency
must complete this action no later than 20 days after the date of this decisio n.
¶29 We further ORDER the agency to tell the appellant promptly in writing
when it believes it has fully carried out the Board ’s Order and to describe the
actions it took to carry out the Board ’s Order. The appellant, if not notified,
should ask the agency about its progress. See 5 C.F.R. § 1201.181 (b).
¶30 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 petit ion for enforcement
with the office that issued the initial decision in this appeal if the appellant
believes that the agency did not fully carry out the Board ’s Order. The petition
should contain specific reasons why the appellant believes that the agenc y 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).
NOTICE TO THE APPELL ANT
REGARDING YOUR RIGHT TO REQUES T
ATTORNEY FEES AND CO STS
You may be entitled to be paid by the agency for your reasonable attorney
fees and costs. To be paid, you must meet the requirements set out at Title 5 of
the United States Code (U.S.C.), sections 7701(g), 122 1(g), 1214(g) or 3330c(b);
or 38 U.S.C. § 4324 (c)(4). The regulations may be found at 5 C.F.R.
§§ 1201.201 , 1202.202, and 1201.203. If you believe you meet these
requirements, you must file a motion for attorney fees 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.
13
NOTICE OF APPEAL RIGHTS3
The initial decision, as supplemented by this Final Order, constitutes the
Board’s final decision in this matter. 5 C.F.R. § 1201.113 . You may obtain
review of this final decision. 5 U.S.C. § 7703 (a)(1). By statute, the nature of
your claims determines the time limit for seeking such review and the appropriate
forum with which to file. 5 U.S.C. § 7703 (b). Although we offer the following
summary of available appeal rights, the Merit Systems Protection Board does not
provide legal advice on which option is most appropriate for 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 re view
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this de cision. 5 U.S.C.
§ 7703 (b)(1)(A).
3 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.
14
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. ____ , 137 S. Ct. 1975 (2017). If you have a
representative in this case, and your representative receives this decision before
you do, then you must file with the district court no later than 30 calendar days
after your representative receives this decision. If the action involves a claim of
15
discrimination based on race, color, religion, sex, national origin, or a disabling
condition, you may be entitled to representation by a court -appointed lawyer and
to waiver of any requirement of prepayment of fees, costs, or other security. See
42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district courts can be found at their resp ective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employm ent
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the
EEOC’s Office of Federal Operation s within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative 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
16
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.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 t o the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, ww w.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
4 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroacti ve to November 26, 2017. Pub. L. No. 115 -195,
132 Stat. 1510.
17
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD:
Washington, D.C. /s/ for
Jennifer Everlin g
Acting Clerk of the Board | CARRIER_TAL_DONNA_LOU_DC_1221_12_0642_P_1_FINAL_ORDER_2006934.pdf | 2023-02-28 | null | DC-1221 | NP |
3,458 | https://www.mspb.gov/decisions/nonprecedential/WILLIAMS_RENEE_T_PH_0752_17_0194_I_1_REMAND_ORDER_2006946.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
RENEE T. WILLIAMS,
Appellant,
v.
DEPARTMENT OF VETERA NS
AFFAIRS,
Agency.
DOCKET NUMBER
PH-0752 -17-0194 -I-1
DATE: February 28, 2023
THIS ORDER IS NONPRECEDENTIAL1
Renee T. Williams , Douglassville, Pennsylvania, pro se.
Angela Madtes , Esquire, Pittsburgh, Pennsylvania, for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
Tristan L. Leavitt, Member
REMAND ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
dismissed her appeal for lack of jurisdiction. For the reasons discussed below, we
GRANT the appellant’s petition for review , VACATE the initial decision, and
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
require d to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c).
2
REMAND this appeal to the Board’s Northeaster n Regional O ffice for further
adjudication in accordance with this Remand Order.
BACKGROUND
¶2 In June 2014, the agency appointed the appellant to a career -conditional
position as a Program S upport C lerk, GS -0303 -04, and on November 16 , 2014,
the agency converted her to a career -conditional position as a Medical
Reimbursement T echnician, GS -0503 -06. Initial Appeal File (IAF) , Tab 3 at 38,
Tab 7 at 7. The positions the appellant occupied were covered by a collective
bargain ing agreement (CBA) between the agency and the America n Federation of
Government Employee s, Local 1966 (union). IAF, Tab 7 at 10. In August 2015,
the appellant’s supervisor issued her a 90-day performance improvement plan
(PIP) . Id. at 51-54. On Octobe r 14, 2015, the appellant’s supervisor notified her
that she would not receive a within -grade increase (WIGI) that was to b e effective
on November 1, 2015; two days later, the union filed a grievance regarding the
propose d WIGI denial. IAF, Tab 3 at 47 -49. On December 11, 2015, the
appellant contacted an agency equal employment opportunity (EEO) counselor,
and on February 1, 2016, the appellant filed a forma l complaint of discrimination.
Id. at 12, 18. On February 4, 2016, following the appellant’s unsu ccessful
completion of the PIP, the agency proposed her removal for unacceptable
performance. IAF, Tab 7 at 28 -30. The appellant provided a written reply to the
proposed removal, and on February 29, 2016, the agency issued a decision
sustaining the propo sed removal, effective March 9, 2016. Id. at 14, 16 -18,
22-26.
¶3 By letter dated September 29, 2016, the agency notified the appellant of her
rights regarding the issues raised in her February 1, 2016 complaint of
discrimination; in particular, the agency notified her that two of her claims, which
concerned the denial of the WIGI and the removal, were appealable to the Board
3
and provided her rights to appeal these claims to the Board .2 IAF, Tab 3 at 2 -6.
On January 6, 2017, the agency issued a final agen cy decision (FAD) finding that
the appellant had failed to prove discrimination and providing her rights to appeal
the decision, and on February 2, 2017, the agency issued a corrected FAD, which
corrected the date the FAD was issued. Id. at 8-36.
¶4 On March 1, 2017, the appellant filed a Board appeal challenging the denial
of the WIGI and the removal, and she requested a hearing. IAF, Tab 1. The
agency moved to dismiss the appeal, arguing that the appeal was untimely
because it was not filed within 30 days of her removal, and she had elected to
contest her removal under EEO procedures . IAF, Tab 7 at 7 -8. The
administrative judge issued orders requiring the appellant to file evidence and
argument showing that the Board had jurisdiction over the app eal under 5 U.S.C.
§ 7511 and because she had elected to proceed with an EEO complaint. IAF,
Tabs 2, 8. The appellant’s response argued that the agency had notified her in its
September 29, 2016 letter of her right to appeal the WIGI denial and removal to
the Board and that she timely filed her appeal after she received the corrected
FAD. IAF, Tab 10 at 5-11. The administrative judge then issued an initial
decision dismissing the appeal . IAF, T ab 11, Initial Decision (ID). She found
that the appellant was serving under a competitive appointment and had
completed over 1 year of service with the agency, and thus she was eligible to file
a Board appeal. ID at 2 -3. However, the administrative jud ge found that the
appellant’s filing of an EEO complaint following her removal demonstrated that
she elected to proceed with the EEO process, which prevented her from appealing
to the Board. ID at 3 -4.
2 The formal complaint of discrimination is not in the record; however, it appears that
the appellant amended her February 1, 2016 discrimination complaint to include a claim
that the agency removed her because of her race and in reprisal for protected EEO
activity. IAF, Tab 3 at 2 .
4
¶5 The appellant has filed a petition for review in whic h she disagrees with the
agency’s motion to dismiss because she timely filed her appeal within 30 days of
the issuance of the corrected FAD , and she argues the merits of her appeal.
Petition for Review (PFR) File, Tab 1. The agency has not filed a respon se. For
the reasons below, we conclude that the administrative judge erred in dismissing
the appeal.
DISCUSSION OF ARGUME NTS ON REVIEW
¶6 The administrative judge’s finding that the appellant qualified as an
employee with appeal rights under 5 U.S.C. chapter 75 is not in dispute, and we
discern no reason to disturb this finding. ID at 2 -3. The record reflects that , at
the time of her removal, the appellant was serving under an appointment to the
competitive service and had completed 1 year of current, conti nuous service
under an appointment other than a temporary one limited to 1 year or less, and
thus had standing to challenge the WIGI denial and removal. IAF, Tab 3 at 38,
Tab 7 at 7 ; see 5 U.S.C. § 7511(a)(1)(A); Dodson v. Department of the Navy ,
111 M.S.P.R. 504 , ¶ 4 (2009).
¶7 However, the administrative judge erred in findin g that the appellant’s
election to file an EEO complaint divested the Board of jurisdiction over the
appeal. ID at 3 -4. Here, the appellant was covered by a CBA , and she has
alleged that the agency denied her a WIGI because of her race and removed her
because of her race and as reprisal for protected EEO activity. IAF, Tab 7 at 10,
Tab 10 at 5. The Board has jurisdiction over a reconsideration decision
sustaining a negative det ermination of competence for a G eneral Schedule
employee, resulting in the denial of a WIGI , 5 U.S.C. § 5335 (c); 5 C.F.R.
§ 1201.3 (a)(8), and a removal for una cceptabl e performance, 5 U.S.C. § 4303 (e);
5 C.F.R. § 1201.3 (a)(5). Further, d iscrimination on the basis of race and reprisal
based on a n employee’s participation in EEO activity are prohibited personnel
5
practi ces under 5 U.S.C. § 2302 (b)(1). Goodwin v. Department of
Transportation , 106 M.S.P.R. 520 , ¶ 16 n.8 (2007) .
¶8 Under 5 U.S.C. § 7121 (d), an employe e affected by a prohibited personnel
practice und er 5 U.S.C. § 2302 (b)(1), which also falls under the coverage of the
negotiated grievance procedure of a CBA that covers the employee , may raise the
matter under the negotiated procedure or a statutory procedure, but not both.3
Galloway v. Social Security Administration , 111 M.S.P.R. 78 , ¶ 14 (2009);
Goodwin , 106 M.S.P.R. 520 , ¶ 19. The statutory procedures contemplated by
section 7121(d) include an ap peal to the Board or the filing of an EEO complaint.
Goodwin , 106 M.S.P.R. 520 , ¶ 19; Weslowski v. Department of the Army ,
80 M.S.P.R. 585 , ¶ 9, aff’d , 217 F.3d 854 (Fed. Cir. 1999) (Table) . Thus, when
an employee is covered by a CBA and alleges that an o therwise appealable
adverse action was based on prohibited discrimination, the employee’s choice of
forum under section 7121(d) is between the negotiated grievance procedure, a
Board appeal, and a formal EEO complaint. Galloway , 111 M.S.P.R. 78 , ¶ 14.
An employee is deemed to have elected a forum under section 7121(d) at such
time as the employee timely files a grievance in writing, in accordance with the
provisions of the parties’ negotiated procedure, or timely initiates an action under
the applicable statutory procedure, whichever occurs first. Id., ¶ 15.
¶9 Even if the appellant initially elects to file a formal EEO complaint
regarding an action otherwise appealable to the Board , she may file a Board
appeal upon exhaustion of the agency EEO process. 5 U.S.C. § 7702 (a)(1)-(2);
Goodwin , 106 M.S.P.R. 520, ¶¶ 19-21; see Checketts v. Department of the
3 Although the CBA is not in the record, the union cited portions of the CBA in grieving
the proposed WIGI denial an d in resp onse to the appellant’s proposed removal,
suggesting that the adverse actions at issue are covered by the negotiated procedure set
forth in the CBA . IAF, Tab 3 at 48, Tab 7 at 22 -23. Even if the actions at issue are not
covered by the negotiated procedur e, the procedures regarding mixed -case complaints,
as set forth at 5 C.F.R. § 1201.154 (b) and 29 C.F.R. § 1614.302 , and discussed below,
would nevertheless apply to this appeal .
6
Treasury , 91 M.S.P.R. 89 , ¶ 5 (stating that, once the appellant made an informed
election to proceed through the agency’s EEO process, she was bound to exhaust
that process prior to filing a Board appeal), aff’d , 50 F. App’x 979 (Fed. Cir.
2002). Under 5 C.F.R. § 1201.154 (b), if an appellant has filed a timely formal
complaint of discrimination with her agency relating to or stemming from an
action that can be appealed to the Board, also known as a mixed -case complaint,
an appeal to the Board must be filed within 30 days after the appellant receives
the agency resolution or final decision on the discrimination issue. McCoy v. U.S.
Postal Service , 108 M.S.P.R. 160 , ¶¶ 10, 12 (2008); see 29 C.F.R.
§ 1614.302 (b), (d). Fur ther, if the agency has not resolved the matter or issued a
final decision on the formal complaint within 120 days, the appellant may appeal
the matter directly to the Board at any time after the expiration of 120 calendar
days. McCoy , 108 M.S.P.R. 160, ¶ 10; 5 C.F.R. § 1201.154 (b)(2); see 29 C.F.R.
§ 1614.302 (d).
¶10 Here, although the appellant initially elected to file a formal EEO complaint
regarding the denial of the WIGI and her removal, after receiving the agency’s
final decision on the discrimination issues she raised, the appellant was entitled to
appeal the ma tter to the Board within the time period specified in 5 C.F.R.
§ 1201.154 (b). Accordingly, we find that the administrative judge erred in
dismissing the appeal as precluded by election of the EEO process, and we
remand this matter for further proceedings , as set forth below .
¶11 Upon remand, the administrative judge shall determine whether the appeal
of the FAD was timely filed. As set forth above, when an appellant has tim ely
filed a mixed -case complaint with her agency prior to filing a Board appeal, the
timeliness of the Board ap peal is analyzed under 5 C.F.R. § 1201.154 . Augustine
v. Department of Jus tice, 100 M.S.P.R. 156 , ¶ 7 (2005). The agency iss ued its
initial FAD on January 6 , 2017, and it issued a corrected FAD on F ebruary 2,
2017. IAF, Tab 3 at 8 -36. Although the errata order issuing the corrected FAD
informed the appellant that the correction did not change the applicable time
7
limits for appealing the decision, she did not appeal the FAD unt il March 1, 2017.
IAF, Tab 1 , Tab 3 at 8 . Neither the initial FAD, nor a complete copy of the
corrected FAD, is in the record. IAF, Tab 3 at 8 -36. Thus, the administrative
judge shall determine whether the initial January 6, 2017 FAD or the corrected
February 2, 2017 FAD constituted the agency’s final decision on the
discrimination issue s. If the January 6, 2017 FAD constituted the agency’s final
decision, the administrative judge shall determine whether the appellant has
shown good cause for the delay in appealing the deci sion, such that a waiver of
the time limit to appeal is warranted . 5 C.F.R. §§ 1201.12 , 1201.22(c),
1201.154(b)(1) ; see Little v. U.S. Postal Service , 124 M.S.P.R. 183 , ¶ 10 (2017)
(stating that to establish good cause for the untimely filing of a n appeal , a party
must show that she exercised due diligence or ordin ary prudence under the
particu lar circumstances of the case ).
¶12 On remand, the administrative judge also shall determine whether the Board
has jurisdiction over the denial of the WIGI. The record reflects that on
October 14, 2015, the appellant received notice that she would not receive a
WIGI due on November 1, 2015, and it appears that on November 3, 2015, the
appellant’s supervisor notified her that the WIGI was denied. IAF, Tab 3
at 2, 47-49. The record does not indicate whether the appellant sought
reconsideration of the WIGI denial . An employee is ordinarily not entitled to
appeal the denial of a WIGI to the Board unless she first has timely sought and
received a reconsideration deci sion from the agency. 5 U.S.C. § 5335 (c); Goines
v. Merit Systems Protection Board , 258 F.3d 1289 , 1292 (Fed. Cir. 2001). The
administrative judge thus shall determine whether the appellant sought
reconsideration of the WIGI , and whether the agency issued a reconsideration
decision . Should the administrative judge find in the negative, the administrative
judge then shall decide whether the Board does or does not have the authority to
review the denial of the WIGI under the circumstances. Should the
administrative judge find in the affirmative , to the extent the record reflects that
8
the appellant may have filed a grievance prior to filing an EEO compl aint
conc erning the denial of the WIGI, the administrative judge shall address whether
the appellant made a valid election of a di fferent forum for pursuing this claim .
See 5 U.S.C. § 7121 (d); Galloway , 111 M.S.P.R. 78, ¶¶ 14-15.
ORDER
¶13 For the reasons discussed above, we remand this case to the Northeastern
Regional Offic e for further adjudication in accordance with this Remand Order.
FOR THE BOARD:
Washington, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board | WILLIAMS_RENEE_T_PH_0752_17_0194_I_1_REMAND_ORDER_2006946.pdf | 2023-02-28 | null | PH-0752 | NP |
3,459 | https://www.mspb.gov/decisions/nonprecedential/MOSS_LEWIS_DC_0752_17_0189_I_1_FINAL_ORDER_2006959.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
LEWIS MOSS,
Appellant,
v.
DEPARTMENT OF DEFENS E,
Agency.
DOCKET NUMBER
DC-0752 -17-0189 -I-1
DATE: February 28, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL1
Lewis Moss , Kaiserslautern, Germany, pro se.
Sally R. Bacon , Esquire, Fort Lee, Virginia, for the agency.
BEFORE
Cathy A. Harris , Vice Chairman
Raymond A. Limon , Member
Tristan L. Leavitt , Member
FINAL ORDER
¶1 The appellant has filed a petition for review of the January 19, 2017 initial
decision, which dismissed his appeal of an alleged involuntary retirement as
barred by the doctrine of res judicata . Generally, we grant petitions such as this
one only in the following circumstances: the initial decision contains erroneous
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
require d to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c).
2
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 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 appellant’s claim regar ding an
alleged performance -based removal , we AFFIRM the initial decision.
BACKGROUND
¶2 Before filing the above -captioned appeal , the appellant filed a Board appeal
in August 2009 of his removal from the Qua lity Control Handler Leader position ,
effective Jul y 31, 2009. Moss v. Department of Defense , MSPB Docket No. DC -
0752 -09-0823 -I-1, Initial Decision ( 0823 ID) at 1 (Dec. 30, 2009) ; Moss v.
Department of Defense , MSPB Docket No. DC -0752 -17-0189 -I-1, Initial Appeal
File (IAF), Tab 5 at 9. He disputed the ag ency’s charge of misconduct and raised
claims of harmful error, a violation of his due process rights , and retaliation for
whistleblowing. 0823 ID at 4. After holding a hearing, the administrative judge
assigned to the appellant’s removal appeal issued a n initial decision in
December 2009 that affirm ed the agency’s removal action. 0823 ID at 1, 26. The
appellant filed a petition for review, which the full Board denied in a Final Order
issued in July 2010 . Moss v. Department of Defense , MSPB Docket No. DC-
0752 -09-0823 -I-1, Final Order (0823 Final Order) at 1-2 (July 27, 2010).
3
¶3 In December 2016, t he appellant filed the instant appeal of an alleged
involuntary retirement and he did not request a hearing . IAF, Tab 1. In an Order
to Show Cause, the adminis trative judge informed the appellant that his appeal
may be barred by the doctrines of res judicata or collateral estoppel based on his
prior removal appeal , apprised him of the elements and burden of proof regarding
the doctrines , and order ed him to respo nd on the applicability of the doctrines .
IAF, Tab 2. The appellant responded and provided , among other things, evidence
that he had filed multiple complaints with the Office of Special Counsel (OSC) .
IAF, Tabs 5 -11. The agency moved to dismiss the appeal. IAF, Tab 12. The
appellant responded in opposition and filed additional argument and evidence .
IAF, Tabs 13 -16.
¶4 Based on the written record , the administrative judge issued an initial
decision on January 19, 2017 , which dismissed the instant appeal as barred by res
judicata. IAF, Tab 17, Initial Decision (0189 ID) at 1, 6. Specifically, he found
that the elements required for the application of res judicata have been met.
0189 ID at 3 -6. He further found t hat the appellant’s evidence of OSC close -out
notices and submissions filed in response to the agency’s motion to dismiss did
not affect the disposition of the appeal . 0189 ID at 2 nn.1 -2.
¶5 The appellant has filed a petition for review of the initial decis ion. Petition
for Review (PFR) File, Tab 1. The agency has not filed a response.
DISCUSSION OF ARGUME NTS ON REVIEW
The appellant’s involuntary retirement claim is barred by res judicata.
¶6 Unde r the doctrine of res judicata , a valid, final judgment on the merits of
an action bars a second action involving the same parties or their privies based on
the same cause of action. Peartree v. U.S. Postal Service , 66 M.S.P.R. 332, 337
(1995) . Res judicata precludes parties from relitigating issues that were, or could
have been, raised in the prior action and is applicable if (1) the prior judgment
was render ed by a forum with competent jurisdiction , (2) the prior judgment was
4
a final judgment on the merits , and (3) the same cause of action and the same
parties or their privies were involved in both cases. Id. For res judicata
purposes, a cause of action is the set of facts that gives an appellant the right to
seek relief from an agency . Jennings v. Social Security Administration ,
123 M.S.P.R. 577, ¶ 25 (2016) .
¶7 For the following reasons, we agree with the administrative judge’s finding
that the criterion for res judicata has been met . 0189 ID at 3 -6. A removal is an
adverse action subject to the Board’s jurisdiction. See 5 U.S.C. §§ 7512 (1),
7513(d) , 7701(a) . Moreover, the parties have not disputed on review, and we find
no reason to disturb, the administrative judge’s findings that the appellant is an
employee with Board appeal rights under 5 U.S.C. chapter 75 and that the same
parties were involved in both the prior and presen t appeals. 0189 ID at 3 -4; PFR
File, Tab 1. Thus, we agree that the Board had jurisdiction over the appellant’s
prior removal appeal, which resulted in a final judgment on the merits.
0823 Final Order at 2; 0823 ID at 1, 26 ; 0189 ID at 4 ; see 5 C.F.R. § 1201.113 (b)
(providing that an initial decision becomes final when the Board issues its last
decision denying a petition for review) .
¶8 We further agree with the administrative judge’s finding that both the prior
and present appeals invo lved the same cause of action because they were based on
the same set of facts , i.e., the agency’s removal action in July 2009 . 0189 ID
at 4. In the instant appeal , the appellant claimed that he suffered an involuntary
retirement based on “misleading statements ,” “lies,” and “reprisals” by three
agency employees. IAF, Tab 1 at 4 -6. He speci fically alleged errors in the
agency’s notice of proposed removal and decision letter and errors in the
adjudication of his prior removal appeal . Id. An involuntary retirement claim
may be appealable to the Board as a constructive removal under 5 U.S.C.
chapter 75. See Vitale v. Department of Veterans Affairs , 107 M.S.P.R. 501, ¶ 17
(2007) ( observing that an involuntary retire ment i s tantamount to a removal and
thus subject to the Board’s jurisdiction); see also Bean v. U.S. Postal Service ,
5
120 M.S.P.R. 397, ¶ 7 (2013) (explaining that the Board may have jurisdiction
over certain employee -initiated actions under 5 U.S.C. chapter 75 as
“constructive” adverse actions) . Because the appellant based his prior appeal on
his July 2009 removal , we find that his prese nt attempt to appeal an alleged
involuntary retirement as a constructive removal is based on the same cause of
action. See Townes v. U.S. Postal Service , 99 M.S.P.R. 350, ¶ 8 (2005) (finding
that, when the appellant was approved for disability retirement after he was
removed, his claim of an involuntary disability retirement should have been
considered an appeal of his removal) ; see also Williams v. Department of Health
and Human Services , 112 M.S.P.R. 628 , ¶¶ 7-8 (2009) (finding that, when the
appellant retired on the effective date of her removal, it was error for the
administrative judge to adjudicate the appellant ’s involuntary retirement claim as
a ma tter distinct from her removal) .
¶9 Therefore , we find that the administrative judge properly applied res
judicata to bar any claims that the appellant had raised, or could have raised, in
his prior removal appeal. 0189 ID at 5 -6; see Peartree , 66 M.S.P.R. at 337; see
also Jennings , 123 M.S.P.R. 577 , ¶ 25 (affirming the administrative law judge’s
finding that res judicata does not require that the prior decision expressly address
a particular claim on the merits, even if that claim had been properly raised) .
Moreover, we agree with the administrative judge’s conclusion that the
appellant’s allegation regarding errors in the adjudication of his prior removal
appeal does not preclude the application of res judicata. 0189 ID at 5.
¶10 In his petition for review , the appellant challenges the dismissal of his
appeal based on res judicata . First, the appellant reasserts his argument that, in
his prior appeal , the Board did not adjudicate his alleged “removal” on June 12,
2008, for unacceptable performance. PFR File, Tab 1 at 4-6, 9; IAF, Tab 13
at 4-5, Tab 15 at 4 -5. He further argues that his alleged performance -based
removal violated 5 U.S.C. § § 2301(b)(9) and 2302(b)(12). PFR File, Tab 1 at 6.
We modify the initial decision to address this argument. Based on the appellant’s
6
submissions, it seems that the agen cy relieved hi m of some of his duties on
June 12, 2008, and there is no indication that he suffered a performance -based
removal . IAF, Tab 10 at 11, Tab 15 at 1 0-11; see 5 C.F.R. § 432.103 (f) (defining
“removal” as “the involuntary separation of an employee from employment with
an agency”) . Moreover, the appellant submit ted evidence that he raised his
change in duties as a potentially retaliatory personnel action in his prior removal
appeal and before OSC . IAF, Tab 9 at 4, 7, 15, Tab 13 at 22 ; see Moss v.
Department of Defense , MSPB Docket No. DC -0752 -09-0823 -I-1, Initial Appeal
File, Tab 9 at 16.
¶11 We find that the appellant’s claim regarding an alleged performance -based
removal fails to pro vide a reason to disturb the initial decision. Even if his claim
was not litigated in his prior removal appeal, it does not preclude the application
of res judicata in the present appeal. Further, merit system principles under
5 U.S.C. § 2301 and prohibited personnel practices under section 2302(b) are not
independent sources of Board jurisdiction. Davis v. Department of Defense ,
105 M.S.P.R. 604 , ¶ 15 (2007); Wren v. Department of the Army , 2 M.S.P.R. 1 , 2
(1980), aff’d , 681 F.2d 867 , 871 -73 (D.C. Cir. 1982) . In addition , a change in
duties without a reduction in grade is not an independently appealable action
under 5 U.S.C. chapter 43 or 75 . See 5 U.S.C. §§ 4303 (e), 7512, 7513(d) .
However, it may constitute a personnel action upon which an individual right of
action (IRA) appeal may be based.2 See 5 U.S.C. §§ 1221 (a), 2302(a)(2)(A) . If
2 Before it was amended in 2012, the Whistleblower Protection Act of 1989 (WPA),
Pub. L. No. 101 -12, 103 Stat. 16, afforded certain Federal employees the right to bring
an IRA appeal when an agency e ngaged in any of the prohibited personnel practices
described in 5 U.S.C. § 2302 (b)(8). Hicks v. Merit Systems Protection Board , 819 F.3d
1318 , 1320 (Fed. Cir. 2016). Effective December 27, 2012, the Whistleblower
Protection Enhancement Act o f 2012, Pub. L. No. 112 -199, 126 Stat. 1465, expanded
the IRA appeal right provided by the WPA to include claims for corrective action based
on the prohibited personnel practices described in sections 2302(b)(9)(A)(i), (B), (C),
and (D). See Hicks , 819 F.3d at 1320. Before seeking corrective action from the Board
through an IRA appeal, however, an e mployee must first seek corrective action from
7
the appellant chooses to file an IRA appeal, we express no opinion on whether
such an appeal would be within the Board’s jurisdiction or be precluded by the
doctrines of res judicata or collateral estoppel.3
¶12 Next , the appellant asserts on review that he did not have an opportunity in
the prior removal appeal to litigate claims related to his July 2009 removal of
ex parte communications, harmful error, and prohib ited personnel practices . PFR
File, Tab 1 at 7, 10 -12. We find that the appellant ’s claims regarding his removal
do not preclude the application of res judicata . Moreover , he has not explained
why he could not have raised claims of ex parte communications, harmful error,
and prohibited personnel practices in the prior removal appeal when he was able
to file a petition for review of that appeal . Thus, we find that these claims are
precluded by res judicata. See Peartree , 66 M.S.P.R . at 337.
¶13 Further, t he appellant alleges that the agency violated statutory and
regulatory procedures in proposing and deciding to suspend him multiple times
for 14 days or less. PFR File, Tab 1 at 9 ; IAF, Tab 5 at 19 -20, Tab 13 at 22. The
record contain s evidence that he raised these suspensions as potentially retaliatory
personnel actions in his prior removal appeal. IAF, Tab 13 at 22. We find that
the appellant’s argument regarding his suspensions does not preclude the
application of res judicata in the present appeal . Moreover , a suspension of
OSC. 5 U.S.C. § 1214 (a)(3); see Miller v. Federal Deposit Insurance Corporation ,
122 M.S.P.R. 3 , ¶ 6 (2014), aff’d , 626 F. App’x 261 (Fed. Cir. 2015).
3 The appellant ha s filed three prior IRA appeals. See Moss v. Department of Defense ,
MSPB Docket No. DC -1221 -13-0151 -W-2, Final Order, ¶¶ 9-13 (Aug. 26, 2022 )
(denying the appellant’s request for corrective action ); Moss v. Department of Defense ,
MSPB Docket No. DC -1221 -14-0567 -W-1, Final Order, ¶¶ 1, 3 -4 (Nov. 5, 2014)
(affirming the administrative judge’s finding that the B oard lacked jurisdiction over the
appellant’s claim of reprisal for filing an equal employment opportunity complaint);
Moss v. Department of Defense , MSPB Docket No. DC -1221 -12-0192 -W-1, Final Order
at 2-3 (June 22, 2012) (affirming the administrative judg e’s finding that the Board
lacked jurisdiction over the IRA appeal because the appellant failed to show that he
exhausted his administrative remedy with OSC).
8
14 days or less is not an independently appealable action. Lefavor v. Department
of the Navy , 115 M.S.P.R. 120 , ¶ 5 (2010) ; see 5 U.S.C. §§ 7512 (2), 7513(d) .
¶14 In additi on, t he appellant disputes the administrative judge’s finding that
the appellant’s submission of OSC close -out notices did not affect the disposition
of the instant appeal. PFR File, Tab 1 at 8; 0189 ID at 2 n.1 . The appellant
further argues that the adm inistrative judge failed to adjudicate his whistleblower
reprisal claim. PFR File, Tab 1 at 8. We note that the administrative judge
assigned to the appellant’s prior removal appeal adjudicated his claim that he was
removed in reprisal for whistleblowing . 0823 ID at 18 -24. Moreover, the
appellant is barred from relitigating reprisal claims that he raised, or could have
raised, in his prior removal appeal. See Peartree , 66 M.S.P.R. at 337 . To the
extent the appellant is r aising claims of retaliation unrelated to his July 2009
removal , he may have a right to file a separate IRA appeal, as described above .
¶15 Finally, the appellant disputes the administrative judge’s finding that the
appellant filed submissions past the close -of-record date that were not i n response
to the agency’s new argument or evidence. PFR File, Tab 1 at 8 -9; 0189 ID at 2
n.2. It appears that the appellant filed his submissions in accordance with the
administrative judge’s instructions . IAF, Tab 2 at 3; see 5 C.F.R. § 1201. 59(c).
However, because the administrative judge accepted the appellant’s submissions
into the record and considered them, we find that his substantive rights have not
been harmed . See Karapinka v. Department of Energy , 6 M.S.P.R. 124 , 127
(1981) (holding that the administrative judge’s procedural error is of no legal
consequence unles s it is shown to have adversely affected a party’s substantive
rights) .
¶16 Accordingly, we affirm the dismissal of this appeal based on res judicata.
9
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
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).
4 Since the issuance of the initial decision in this matter, the Board may have updated
the notic e 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 Ci rcuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Pe titioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit ou r website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any att orney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. ____ , 137 S. Ct. 1975 (2017). If you have a
representative in this case, and your representative receives this decision before
you do, then you must file with the district court no later than 30 calendar days
after your representative receives this decision. If the action involves a claim of
11
discrimination based on race, color, religion, sex, national origin, or a disabling
condition, you may be entitled to representation by a court -appointed lawyer and
to waiver of any requirement of prepayment of fees, costs, or other security. See
42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district courts can be found at their respective
websites, which can be accesse d through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you r eceive
this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later tha n 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This 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 n o 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 re view either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.5 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
5 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistl eblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195,
132 Stat. 1510.
13
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD:
Washington, D.C. /s/ for
Jennifer Everling
Acting Clerk o f the Board | MOSS_LEWIS_DC_0752_17_0189_I_1_FINAL_ORDER_2006959.pdf | 2023-02-28 | null | DC-0752 | NP |
3,460 | https://www.mspb.gov/decisions/nonprecedential/BROWN_DEENA_C_SF_0752_16_0386_I_1_FINAL_ORDER_2006963.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
DEENA C. BROWN,
Appellant,
v.
DEPARTMENT OF DEFENS E,
Agency.
DOCKET NUMBER
SF-0752 -16-0386 -I-1
DATE: February 28, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL1
Bradley R. Marshall , Charleston, South Carolina, for the appellant.
Douglas W. Frison , Esquire , and Jonathan A. Beyer , Esquire, APO,
APO/FPO Pacific, for the agency.
BEFORE
Cathy A. Harris , Vice Chairman
Raymond A. Limon , Member
Tristan L. Leavitt , Member
FINAL ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
sustained her removal . Generally, we grant petitions such as this one only in the
following circumstances: the initial decision contains erroneous findings of
material fact; the initial decision is based on an erroneous interpretation of statute
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or 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 erroneou s application of the law to the facts of the case; the
administrative judge ’s rulings during either the course of the appeal or the initial
decision were not consistent with required procedures or involved an abuse of
discretion, and the resulting error af fected the outcome of the case; or new and
material evidence or legal argument is available that, despite the petitioner ’s due
diligence, was not available when the record closed. Title 5 of the Code of
Federal Regulations, section 1201.115 ( 5 C.F.R. § 1201.115 ). After fully
considering the filings in this appeal, we conclude that the petitioner has not
established any basis under section 1201.115 for granting the petition for review.
Therefore, we DENY the petition for review . Except as expressly MODIFIED to
address the appellant’s due process claim, we AFFIRM the initial decision, which
is now the Board ’s final decision. 5 C.F.R. § 1201.113 (b).
BACKGROUND
¶2 The agency removed the appellant from the p osition of School Principal at a
Department of Defense school in Korea based on two charges, conduct
unbecoming a school principal and lack of candor. Specificall y, regarding the
conduct unbecoming charge , the agency alleged as follows:
On December 30, 2 015, while at the Millezoo Animal Supply Shop,
Chinhae, Korea, you violently swept merchandise off the sales
counter to the floor. Then, when the Korean shopkeeper t ried to get
you to remain at the shop until the local police arrived, you swung
and hit him with a dog leash and pushed him. You again swept your
arm across the counter and more merchandise fell from the counter.
Your confrontation with the store owner c ontinued outside the store
and you swung and kicked at him. This was visible to the public. As
a result of your disorderly behavior, the shopkeeper ’s cell phone was
damaged and the shopkeeper ’s dog was seriously injured. This
conduct is unsuitable for a school principal.
Initial Appeal File ( IAF), Tab 14 at 81.
¶3 Regarding the charge o f lack of candor , the agency brought two
specification s as follows:
3
Specification 1: Later on December 30, 2015 you reported the
incident as an “FYI” to the Korea District Superintendent Office
(KDSO), stating:
This afternoon (off -duty) I had a brief disagreement with a Korean
store owner. We both voluntarily went to the police station to
resolve the matter and although we ’ve both apologized and realized
gross miss communication [sic] was the root cause a local police
report was started. We both left on amicable terms; I wanted to give
you a heads up. I will let you know if/when more information
becomes available.
You failed to disclose facts which under the circumstances should
have been disclosed to make your account of what happened accurate
and complete. You impermissibly left KDSO with the impression
that your interaction with the shopkeeper was a minor event.
Specification 2 : On January 14, 2016, when the Korean National
Police (KNP) questioned you regarding the December 30, 2015
incident with the shopkeeper you stated that you accidentally hit the
items off the counter and that you did not do it intentionally . A
review of the closed circuit TV footage of the incident shows that
your claim that you accidentally hit the items of [sic] the counter is
implausible.
Id. at 8 1-82. In selecting the removal penalty, the agency relied on the
appellant ’s prior discipli ne, a 5 -day suspension for unprofessional conduct,
failure to follow instructions, and lack of candor. Id. at 82.
¶4 The appellant appealed the agency ’s action to the Board , alleging that the
agency did not prove the charged misconduct. IAF, Tab 1 at 6 -7.2 She also
2 An employee who believes that he or she has been subjected to a discriminatory
personnel action must elect between filing an appeal directly with the Board, or filing a
formal equal employment opportunity (EEO) comp laint with the agency and appealing
to the Board upon exhaustion of that complaint process. 5 U.S.C. § 7702 (a); 5 C.F.R.
§ 1201.154 (a), (b) ; 29 C.F.R. § 1614.302 (b); see Peltier v. Department of Justice ,
79 M.S.P.R. 674, ¶ 7 (1998) . The record reflects that, in October 2015, the appellant
filed a formal EEO complaint alleging race and color discrimination, and reprisal for
having filed earlier EEO complaints . IAF, Tab 14 at 17. Subsequently, on March 31,
2016 , she attempted to amend the complaint to include an allegation that the agency
discriminated against her in taking the removal action. Id. at 17, 21 -23. The agency
denied the appellant ’s attempt to amend her complaint, treated her allegation that the
removal action was discriminatory as a new complaint, requiring that she begin the
complaint process by contacting a counselor. Id. at 18. The appellant filed this appeal
4
alleged that the agency violated her due process rights. Id. at 11 -16.
Additionally, she alleged that the agency did not prove nexus between the
misconduct and the efficiency of the service and argued that the penalty was
unreasonable.3 Id. at 7-11, 16-18.
¶5 The administrative judge found that the agency proved the charge of
conduct unbecoming a school principal. IAF, Tab 27 , Initial Decision (ID) a t 7-9.
Her finding relied on the closed -circuit television recording of the majority of the
appellant ’s interactions with the store owner.4 ID at 8 -9. She also found that the
appellant reacted to what amounted to a minor disappointment, that the store
owner w ould not allow her to return a dog leash that she had purchased earlier , by
damaging store property, and, when the owner/clerk calml y tri ed to keep her
inside the store until police arrived, the appellant again overreacted by kicking
the owner. ID at 9.
¶6 The administrative judge further found that the agency proved only
specification 2 of the lack of candor charge. ID at 9 -12. She found that the video
showed that the appellant twice intentionally hit items off the store counter. ID
at 12. Thus, she found that the appellant ’s statement that she accidentally
knocked items off the counter showed a lack of c andor. Id. The administrative
judge found that, because the agency proved specification 2 of the lack of candor
charge, it proved the charge. Id.
¶7 The administrative judge als o found that the agency afforded the appellant
her due proces s rights and that the appellant failed to prove that the agency
before she filed a formal EEO complaint alleging that her removal was discriminatory .
Thus, she elected to file the appeal of her removal directly with the Board.
3 The appellant also alleged discrimination and harassment by the agency. IAF, Tab 1
at 11 -14. However, she withdrew these affirmative defenses in her prehearing
submissions. IAF, Tab 20 at 11.
4 The camera captured the entirety of the appellant ’s interaction with the store owner
inside the store. IAF, Tab 26. However, when the appellant exited the store and
continued her altercation with the store owner, the outside camera was sometimes
blocked by a flag that was flying. Id.
5
committed harmful procedural error. ID at 12 -17. Finally, the administrative
judge found that the agency proved nexus between the appellant ’s off -duty
misconduct and the efficiency of the se rvice , and that the removal penalty was
within the bounds of reasonableness. ID at 17 -25.
¶8 In her petition for review, the appellant alleges that the administrative judge
improperly denied witnesses that she requested , denied a motion to facilitate
deposition s, and failed to caution agency counsel against contu macious and
unethical conduct. Petition for Review (PFR) File, Tab 3 at 23-28. She also
asserts that the administrative judge erred in finding that the agency proved its
charges , that the age ncy afforded the appellant due process, and that the agency
proved nexus and the reasonableness of the penalty. Id. at 10 -23, 28 -30. The
agency has responded in opposition to the petition, PFR File, Tab 5, and the
appellant ha s replied to the response, P FR File, Tab 6.
DISCUSSION OF ARGUME NTS ON REVIEW
The administrative judge did not abuse her discretion in conduct ing the
proceedings before her .
¶9 In a May 10, 2016 order, the administrative judge directed the parties to file
a list of witnesses on or befor e August 1, 2016. IAF, Tab 16 at 3. The appellant
submitted a witness list and a supplemental witness list on August 3, 2016,
blaming the 2-day untimeliness of her submission on computer issues experienced
by her representative . IAF, Tab 20 at 11 -13, Tab 21 at 4, Tab 22 at 3. The
administrative judge found that the appellant failed to show good cause for her
delayed submission and did not consider the appellant ’s5 witness requests. IAF,
Tab 22 at 3.
5 The administrative judge stated that she was not considering “the agency ’s witness
requests. ” IAF, Tab 22 at 3. It is clear, ho wever, that she meant that she was not
considering the appellant ’s witness requests, as she considered all of the witness
requests submitted by the agency. Id.
6
¶10 On review, the appellant asserts that the administrative judge erred in
denying her witness requests. PFR File, Tab 3 at 23 -25. We disagree. An
administrative judge has broad discretion to control the proceedings and to rule
on witnesses. Doe v. Department of Justice , 118 M.S.P.R. 434 , ¶ 38 (2012). This
includes the power to deny witnesses requested after the deadline for filing
prehearing submissions. Stewart–Maxwell v. U.S. Postal Service ,
56 M.S.P.R. 265, 270 (1993) (finding that the administrative judge did not abuse
her wide discretion to con trol the proceedings before her by denying a witness
requested by the appellant after the deadline for filing prehearing submissions);
see Gardner v. Department of Veterans Affairs , 123 M.S.P.R. 647 , ¶ 18 (2016)
(finding that the administrative judge did not err by ruling that the appellant
could not present witnesses at the hearing when she did not submit a prehearing
submission) , clarified by Pridgen v. Office of Management and Budget ,
2022 MSPB 31 , ¶¶ 23-24. Here , the administrative judge ’s May 10, 2016 order
afforded the parties until August 1 , 2016 to submit their witness lists. Thus, the
appellant had ample time to comply , and the administrative judge properly found
the submission untimely filed without good cause shown.
¶11 The appellant also asserts on review that the administrative judge
improperly denied her motion to facil itate depositions. PFR File, Tab 3 at 25 -26;
IAF, Tab 1 0 at 4 -5. In her motion, the appellant complained that the agency
representative was not cooperating in finding a mutually a greeable date to depose
several agency witnesses and that her representative had listed several possible
dates for the deposition. IAF, Tab 10 at 5. In her order denying the motion, the
administrative judge noted that the appellant ’s counsel had noticed depositions on
dates that he knew agency counsel was unavailable.6 IAF, Tab 12 at 2 n.1. She
6 According to the administrative judge, one of the alternative dates proposed by the
appella nt’s representative was a day on which both the appellant ’s representative and
the agency ’s representative would be appearing for a hearing in another case. IAF,
Tab 12 at 2 n.1.
7
informed the parties that she would not intervene in discovery disputes until the
representatives had engaged in a meaningful “meet and confer ” over the issues.
Id. The administrative judge ’s order is consistent with the Board ’s regulatory
guidance regarding discovery that the parties “are expected to start and complete
discovery with a minimum of Board intervention. ” 5 C.F.R. § 1201.71 .
Moreover, there is no indication that the appellant filed a motion to compel
discovery following the administrative judge ’s order for the parties to “meet and
confer” and thus the appellant is p recluded from raising discovery -related matters
on review. Gardner , 123 M.S.P.R. 647, ¶ 26.
¶12 The appellant contends that the administrative judge improperly failed to
caution agency counsel for his repeated disparaging comments about the
appellant ’s representative. PFR File, Tab 3 at 26. The administrative judge
mentioned in discussing her denial of the appellant ’s motion to facilitate
depositions that the parties ’ representatives had litigated matters against each
other in the past, and their interactions during the course of this appeal were
tempered by the se past experiences. IAF, Tab 12 at 2. She cautioned both
representa tives that this was no excuse for failing to genuinely meet and confer
regarding issues, for not treat ing each other with professionalism and respect, and
for not present ing their perspectives in a respectful tone. Id. We find that the
appellant ’s mere a ssertion that the agency counsel made disparaging remarks,
especially without identifying whether they post -dated the administrative judge ’s
language encouraging cooperation between the representatives , does not rise to
the level of allegations of contuma cious conduct requiring sanction ing of the
agency counsel by the administrative judge . See Bernstein v. Department of the
Army , 82 M.S.P.R. 375 , ¶12 (1999); West v. U.S. Postal Service ,
44 M.S.P.R. 551, 560 -61 (1990); 5 C.F.R. § 1201.43 (d) (providing that an
administrative judge may exclude or limit the participation of a representative or
other person in a case for contumacious conduct or conduct prejudicial to the
administration of justice).
8
The administrative judge properly found that the agency proved its charge of
Conduct Unbecoming a School Principal .
¶13 To prove a charge of conduct unbecoming, the agency is required to
demonstrate that the appellant engaged in the underlying conduct alleged in
support of the broad label. Canada v. Department of Homeland Security ,
113 M.S.P.R. 509 , ¶ 9 (2010). Conduct unbecoming includes conduct which was
improper, unsuitable or detracting from one ’s character or reputation. See Social
Security Administration v. Long , 113 M.S.P.R. 190, ¶ 42 (2010) , aff’d,
635 F.3d 526 (Fed. Cir. 2011) . The appellant contends that the agency failed to
prove the conduct unbecoming charge , alleging that the agency provided no
evidence of the chain of custody of the video s showing the appellant ’s action s in
the pet store, and she generally challenges its accuracy. PFR File, Tab 3 at 14 -15.
As explained below, we find that t he appel lant’s assertion s are unavailing.
¶14 The appellant raised this issue below, and the administrative judge carefully
considered the matter . She explained that t he videos were obtained by the K orean
police during its investigation of the appellant ’s conduct at the pet store an d were
provided to the agency by th e police . ID at 8. She acknowledged that the agency
could not attest to the precise chain of custody of the videos. Id. She explained
further that the agency has produced two separate sets of video s in this appeal:
the first is two short videos that appear to be the store ’s recording as it played on
a screen ( i.e., an individual appears to have recorded the video while the closed
circuit television (CCTV) video was playing on the screen at the store); and the
second is two longer sets of video that appear to be the CCTV video of the
appellant ’s visit to the pet store in its entirety. Id.
¶15 The administrative judge found that the short clips of the video recorded
from the CCTV while the ap pellant was pr esent with the police at the store match
those por tions of the longer video . ID at 9. The appellant’s general disagreement
with this finding is insufficient to show that what was presented on the video is
not reliable evidence of her actions in the pet s tore. Id. We therefore agree with
9
the administrative judge’s finding that there is no reason to doubt the reliability
of these recordings.
¶16 The appellant contends that the administrative judge improper ly admitted
the investigative record developed by th e proposing official as proof of the
charged misconduct because that investigative record is wholly hearsay. PFR
File, Tab 3 at 10 -11. Hearsay evidence is admissible in Board proceedings, and
the assessment of the probative value of hearsay evidence nece ssarily depends on
the circumstances of each case. Shannon v. Department of Veterans Affairs ,
121 M.S.P.R. 221, ¶ 15 (2014); Borninkhof v. Dep artment of Justice ,
5 M.S.P.R. 77, 83 -87 (1981). The administrative judge properly admitted the
proposing official ’s investiga tive notes as part of the agency ’s prehearing
submissions , IAF, Tab 19 at 44, but there is no evidence that the administrative
judge gave it any weight .
¶17 Thus, we find that the agency demonstrate d that the appellant engaged in
the underlying conduct alleg ed in support of the conduct unbecoming charge.
Canada , 113 M.S.P.R. 509 , ¶ 9. The appellant ’s conduct in the pet store was
improper and unsuitable , espe cially for a school principal. See Long ,
113 M.S.P.R. 190, ¶ 42. The appellant ’s assertions that the agency did not prove
the conduct unbecoming charge are unavailing.
The administrative judge properly found that the agency proved the charge of
lack of candor .
¶18 An agency alleging lack of candor must pr ove the following elements:
(1) that the employee gave incorrect or incomplete information; and (2) that she
did so knowingly. Fargnoli v. Department of Commerce , 123 M.S.P.R. 330 , ¶ 17
(2016). As noted, the administrative judge found that the agency proved only one
of the two specifications of the lack of candor charge, i.e., that , in response to
questions from the KNP regarding the December 30, 2015 incident w ith the
shopkeeper, she stated that she accidentally hit the it ems off the counter and that
she did not do it intentionally. IAF, Tab 14 at 102. We agree with the
10
administrative judge that the video evidence of the appellant ’s conduct shows that
she intentionally hit items off the pet store counter twice. IAF, Tab 26 (Video
Recording) . Thus, the administrative judge properly found that the appellant
gave the police i ncorrect information and did so knowingly. See Fargnoli ,
123 M.S.P.R. 330 , ¶ 17. Because the agency proved one specification under the
lack of candor charge , the agency proved the charge. See Miller v. U.S. Postal
Service , 117 M.S.P.R. 557, ¶ 17 (2012) (finding that when there is one charge
with multiple factual specificat ions set out in suppor t of the charge, proof of one
or more, but not all, of the supporting specifications is sufficient to sustain the
charge ). The appellant ’s assertion that the agency failed to prove the lack of
candor charge is unavailing.
The appellant ’s assertion that the agency denied her due process is unavailing.
¶19 The appellant asserts on review , as she did below, that the agency denied
her constitutional due process and violated 5 U.S.C. § 7513 by refusing to
schedule an oral response to the notice of proposed removal. PFR File, Tab 3
at 28. The notice of proposed removal , which was received by the appellant on
February 2, 2016, informed her that she had 10 calendar days to reply in writing
or “personally ” to the deciding official . IAF, Tab 14 at 82 -84. S ubsequently , the
appellant requested a 30 -day extension to reply to the proposed removal, but the
deciding official granted a 10 -day extension for the appellant to make both her
written and oral replies . IAF, Tab 19 at 122. The appellant made a detailed
written response to the proposed removal, but did not make an oral response.
IAF, Tab 14 a t 58-79.
¶20 In her initial decision, the administrative judge found that the agency
granted the appellant ample opport unity, 20 days, to make an oral reply, but she
elected not to do so. ID at 17. The administrative judge found that the appellant
did not identify any agency policy or procedure that require d that the appellant be
granted more than 20 days to present an o ral reply . Id. Thus, the administrative
judge concluded that she did not discern a procedural error. Id.
11
¶21 The administrative judge did not specifically address whether the deciding
official ’s refusal to extend the time for the appellant to make an oral reply
violated the appellant ’s constitutional or statutory due process rights. We find
that the deciding official ’s refusal did not violate those rights. The Constitution
affords the appellant , as part of minimum due process , an opportun ity to reply to
the proposed removal either in writing or in person , but does not guarantee her a
right to both an oral and written reply. Cleveland Board of Education v.
Loudermill , 470 U.S. 532 , 546 (1985) (finding that due process requires that ,
prior to deprivation of a property interest in employment , a tenured employee is
entitled to “[t] he opportunity to present reasons, either in person or in writing,
why proposed action should not be taken ”) (emphasis suppl ied); Ray v.
Department of the Army , 97 M.S.P.R. 101 , ¶ 22 (2004) , aff’d , 176 F. App’x 110
(Fed. Cir. 2006) . Section 7513 (b) provides that an employee is entitled to “a
reasonable time, but not less than 7 days,” to respond to a proposed discip linary
action “orally and in writing.” Here , the agency afforded the appellant 20 days to
make a reply and, as noted, the appellant made a written reply. The appellant has
not shown how 20 days was not a reasonable period of time to make her oral
reply. Thus, we find the appellant ’s contention without merit.
The administrative judge properly found that the agency proved nexus between
the appellant ’s misconduct and the efficiency of the service .
¶22 In addition to the requirement that the agency prove its c harges, the agency
also must prove that there is a nexus, i.e., a clear and direct relationship between
the articulated grounds for an adverse action and either the appellant ’s ability to
accomplish his duties satisfact orily or some other legitimate G overn ment interest.
Ellis v. Department of Defense , 114 M.S.P.R. 407 , ¶ 8 (2010). An agency may
show nexus between off -duty misconduct and the efficiency of the service by
three means : (1) a rebuttable presumption in certa in egregious circumstances;
(2) preponderant evidence that the misconduct adversely affects the appellant ’s or
co-workers ’ job performance or the agency ’s trust and confid ence in the
12
appellant ’s job performance; or (3) preponderant evidence that the misconduct
interfered with or adversely affected the agency ’s mission. Id., ¶ 9.
¶23 We agree with the administrative judge that the agency established that the
appellant ’s conduct in the pet store o n December 30, 2015, and her subsequent
lack of candor with the KNP adversely affected the agency ’s trust and confidence
in the appellant ’s job performance. ID at 18. As the administrative judge found,
the agency established through the credible testimony of those in the appellant ’s
supervisory chain that the appellant ’s misconduct had caused them to lose
confidence in her ability to perform the specific duties of her position as school
principal, which required h er to serve as the face of the school with the military
community and the local Korean community. The appellant ’s altercation with the
pet store owner required the involvement of on-base resources and local police
involvement , and became known by locals i n the community. ID at 17 -21. Thus,
the agency established that the appellant ’s misconduct adversely affected the
agency ’s trust and confidence in her ability to perform her job. See Ellis ,
114 M.S.P.R. 407 , ¶ 9.
The administrative judge properly found that the agency established that the
removal penalty was within the bounds of reasonableness.
¶24 When all of the agency ’s charges are sustained, but some of the underlying
specifications are not sustained, the agency ’s penalty determination is entitled to
deference and should be reviewed only to determine whether it is within t he
parameters of reasonableness. Payne v. U.S. Postal Servic e, 72 M.S.P.R. 646 ,
650 (1996) . In determining whether the selected penalty is reasonable, the Board
defers to the agency ’s discret ion in exercising its managerial function of
maintaining employee discipline and efficiency. Archerda v. Department of
Defense , 121 M.S.P.R. 314 , ¶ 25 (2014) . The Board recognizes that its function
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 agency ’s selec ted penalty does not exceed the maximum limits of
13
reasonableness. Id. Thus, the Board will modify a penalty only when it finds that
the agency failed to weigh the relevant factors or that the imposed penalty clearly
exceeded the bounds of reasonableness. Id.
¶25 Among the factors that an agency may weigh is an appellant ’s past
disciplinary record. Douglas v. Veterans Administration , 5 M.S.P.R. 280 , 306
(1981). The appellant argues that the agency improperly considered her prior
suspension for unprofessional conduct becaus e the suspension remains an issue in
EEO litigation . PFR File, Tab 3 at 31. The Board ’s review of a prior discipli nary
action in determining whether it may be considered in a penalty Douglas analysis
is limited to determining whether that action is clearly erroneous, if the employee
was informed of the action in writing, the action is a matter of record, and the
emplo yee was permitted to dispute the charges before a higher level of authority
than the one that imposed the discipline. Bolling v. Department of the Air Force ,
9 M.S.P.R. 335 , 339 -40 (1981). Here, the agency has shown that it informed the
appellant in writing of the prior suspension , it was a matter of record, and the
appellant was permitted to dispute the charges in it before a higher authority.
IAF, Tab 14 at 122 . That the suspension is an issue in a pending EEO complaint
does not establish that the prior suspension was clearly erroneous. Thus, the
agency properly relied on the appellant ’s prior suspension in determining a
reasonable penalty.
¶26 The appellant contends that the deciding official did not sufficiently
consider the appellant ’s medical condition. PFR File, Tab 3 at 29. Contrary to
the appellant ’s assertion, the deciding official considered the information that the
appellant provided regarding the medication that she was taking in determining
the appropr iate penalty. IAF, Tab 14 at 56. The deciding official considered the
information mitigating, but did not find that it warranted mitigating the penalty ,
in part because the information about the appellant ’s medical conditions
conflicted in some respects with her subsequent statement to police that she
accidentally knocked items off the pet store counter. Id.
14
¶27 The deciding official considered that , moreover, the appellant ’s serious
misconduct resulted in a negative impression of the agency in the community ,
with base command , and with parents who have students in the school. Id. at 54.
She also considered that the appellant ’s conduct undermined the relationships that
the mi litary and agency civilians had built over time, and damaged the good will
that the agency had developed with Korean neighbors and allies. Id. Further, s he
considered that the appellant was aware of the importance of fostering positive
community relations and of conducting herself in a professional manner as
partnership with the community was an element of her performance appraisal. Id.
The deciding official appended a Douglas factors analysis to the removal
decision, which ref lects that she carefully considered the Douglas factors and
how each one applied to the appellant ’s situation. Id. at 54 -57. We find that the
deciding official weighed the relevant factors in arriving at the pen alty of
removal . The appellant ’s assertion that the removal penalty exceeds the bounds
of reasonableness is unavailing.
¶28 Accordingly, we affirm the initial decision.
NOTICE OF APPEAL RIG HTS7
The initial decision, as supplemented by this Final Order, consti tutes 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 t ime limit for seeking such review and the appropriate
forum with which to file. 5 U.S.C. § 7703 (b). Although we offer the following
summary of available appeal rights, the Merit Systems Protection Board does not
provide legal advice on which option is most appropriate for your situation and
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 rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.
15
regarding which cases fall within their jurisdiction. If you wish to seek 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 quest ions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must fil e a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our 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
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of 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. ____ , 137 S. Ct. 1975 (2017). If you have a
representative in this case, and your representative receives this decision before
you do, then you must file with the district court no later than 30 calendar days
after you r representative receives this decision. If the action involves a claim of
discrimination based on race, color, religion, sex, national origin, or a disabling
condition, you may be entitled to representation by a court -appointed lawyer and
to waiver of an y requirement of prepayment of fees, costs, or other security. See
42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
17
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
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
dispos ition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court o f Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.8 The court of appeals must receive your petition for
8 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB d ecisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court 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
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the 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.
Contact informatio n for the courts of appeals can be 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 | BROWN_DEENA_C_SF_0752_16_0386_I_1_FINAL_ORDER_2006963.pdf | 2023-02-28 | null | SF-0752 | NP |
3,461 | https://www.mspb.gov/decisions/nonprecedential/CARNEY_AUBREY_M_NY_0752_17_0187_I_1_FINAL_ORDER_2006987.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
AUBREY M. CARNEY,
Appellant,
v.
DEPARTMENT OF VETERA NS
AFFAIRS,
Agency.
DOCKET NUMBER
NY-0752 -17-0187 -I-1
DATE: February 28, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL1
Robert C. Laity , Tonawanda, New York, for the appellant.
Amber Groghan , Esquire, Akron, Ohio, for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
Tristan L. Leavitt, Member
FINAL ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
dismissed her constructive removal appeal for lack of jurisdiction without a
hearing. Generally, we grant petitions such as this one only in the following
circumstances: the ini tial 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 ei ther 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 tha t, 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 Grade -2 Food Service Worker for the agency,
appointed under 38 U.S.C. § 7802 . Initial Appeal File (IAF), Tab 9 at 4. On
July 11, 2017, the Assistant Canteen Chief called the appellant into his office and
showed her a video of her giving a drink to a customer without remuneration. Id.
at 17. According to the appellant, the Assistant Chief gave her an ultimatum —
resign immediately, or he would call the agency police. IAF, Tab 1 at 6, Tab 5
at 6. The appellant also stated that the Assistant Chief told her that the agency
had been watching her for a long time and had additional unspecified evidence
against her. IAF, Tab 3 at 5 -6, Tab 5 at 6. She further stated that the union
representative , who was not of her own choosing, acted in concert with the
agency to pressure her resignati on. IAF, Tab 1 at 6, Tab 3 at 5. The appellant
relented. She wrote and signed a brief note, stating “I Aubrey Carney quit today
on 7/11/17 asap.” IAF, Tab 9 at 18. On July 24, 2017, the agency issued a
Standard Form 50 documenting the appellant’s resi gnation effective July 11,
2017. Id. at 20.
3
¶3 The appellant filed a Board appeal and requested a hearing. IAF, Tab 1
at 2, 4. She claimed that her resignation was involuntary and that the agency
coerced her resignation because of her disability and becaus e of her
father -in-law’s prior union, equal employment opportunity, and whistleblowing
activity at the agency. Id. at 4, 6. The administrative judge issued a show cause
order, notifying the appellant that the Board might lack jurisdiction over her
appeal , and informing her of how to establish jurisdiction over a constructive
removal appeal. IAF, Tab 4. The appellant responded, providing additional
support and detail to her allegations of involuntariness. IAF, Tabs 5 -7. The
agency also responded, addre ssing the appellant’s arguments pertaining to
voluntariness and also arguing that, as a title 38 employee, the appellant lacked
adverse action appeal rights. IAF, Tab 10. The appellant replied to the agency’s
response. IAF, Tabs 11 -12.
¶4 The administrativ e judge issued an initial decision dismissing the appeal for
lack of jurisdiction without a hearing. IAF, Tab 15, Initial Decision (ID) at 15.
She found that, because of the nature of her appointment, the appellant lacked a
statutory right to appeal her alleged constructive removal. ID at 3. She further
found that the appellant failed to make a nonfrivolous allegation that her
resignation was involuntary. ID at 3 -5.
¶5 The appellant has filed a petition for review, disputing the administrative
judge’s fin dings. Petition for Review (PFR) File, Tab 1. The agency has fil ed a
response to the petition, PFR File, Tab 2, and the appellant has filed a reply to the
agency’s response, PFR File, Tab 4. After the close of the record on review, the
appellant filed a motion for leave to file additional evidence regarding her “status
as a covered union member of [the Service Employees International Union]
entitled to appeal rights to the [Merit Systems Protection Board].” PFR File,
Tab 5.
4
ANALYSIS
The appellant’s moti on for leave to file additional evidence is denied.
¶6 Based on the appellant’s description of the additional evidence that she
wishes to submit, we find that it would not be material to the outcome of the
appeal. PFR File, Tab 5. Contrary to the appellant’ s assertion, her union
membership has no bearing on whether she is an “employee” with Board appeal
rights under 5 U.S.C. chapter 75. The appellant’s motion for leave to file
additional evidence is therefore denied .
The appellant lacks Board appeal rights under 5 U.S.C. chapter 75.
¶7 On petition for review, the appellant argues that she has a statutory right to
appeal her constructive removal under 5 U.S.C. chapter 75, because she fits the
definition of “employee” under 5 U.S.C. § 7511 (a)(1)(C). PFR File, Tab 1 at 4 -5,
7. However, for the reasons explained below, we find that the appellant lacks
Board appeal rights not because she fails to meet the basic definition of
“employee” under section 7511(a) (1), but because she is specifically excluded
from coverage under section 7511(b)(10). See Thomas v. Department of Veterans
Affairs , 78 M.S.P.R. 304 , 306 (1998).
¶8 Only an “employee” as defined in 5 U.S.C. § 7511 can appeal a constructive
adverse action to the Board. Mfotchou v. Department of Veterans Affairs ,
113 M.S.P.R. 317, ¶ 8 (2010). This right of appeal does not accrue to an
individual “who holds a position within the Veterans Health Administration
which has been excluded from the competitive service by or under a provision of
title 38, unless such employee was appointed to such position under section
7401(3) of such title.” 5 U.S.C. § 7511 (b)(10); Falso v. Office of Personnel
Management , 77 M.S.P.R. 207, 210 (1997).
¶9 In this case, it is undisputed that the appellant was an excepted -service
employee, appointed under 38 U.S.C. § 7802 . IAF, T ab 1 at 1, Tab 9 at 14; PFR
File, Tab 1 at 4. That section specifically states tha t employees appointed under
it may be “ removed by the Secretary [of Veterans Affairs] without regard to the
5
provisions of title 5 governing a ppointments in the competitive service .”
38 U.S.C. § 7802 (e). We therefore agree with the administrative judge that the
Board lacks jurisdiction over the appellant’s constructive removal appeal.2 ID
at 3; see Mfotchou , 113 M.S.P.R. 317, ¶¶ 11-12.
¶10 Because we affirm the initial deci sion on this basis, we decline to reach the
issue of whether the appellant made a nonfrivolous allegation that her resignation
was involuntary.
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 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 Although the administrative judge did not apprise the appellant of this jurisdictional
issue prior to issuing the initial decision, we find that the appellant ’s substantive rights
were not prejudic ed because the agency’s submissions were sufficient to notify her of
her burden in this regard. IAF, Tab 9 at 7, Tab 10 at 6 -8; see Herbert v. U.S. Postal
Service , 86 M.S.P.R. 80 , ¶ 10 (2000). Furthermore, any defect in the notice was cured
in the initial decision, thus affording the appellant an opportunity to meet her
jurisdict ional burden on review. ID at 3; s ee Easterling v. U.S. Postal Service ,
110 M.S.P.R. 41 , ¶ 11 (2008).
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 matte r.
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 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
7
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so , you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. ____ , 137 S. Ct. 1975 (2017). If you have a
representative in this case, and your representative receives this decision before
you do, then you must file with the district court no later than 30 calendar days
after your representative receives this decision. If t he action involves a claim of
discrimination based on race, color, religion, sex, national origin, or a disabling
condition, you may be entitled to representation by a court -appointed lawyer and
to waiver of any requirement of prepayment of fees, costs, or other security. See
42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
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:
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. 2 0507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Cour t of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.4 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(B).
4 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195,
132 Stat. 1510.
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 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 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 | CARNEY_AUBREY_M_NY_0752_17_0187_I_1_FINAL_ORDER_2006987.pdf | 2023-02-28 | null | NY-0752 | NP |
3,462 | https://www.mspb.gov/decisions/nonprecedential/BEECH_MICHAEL_L_DA_3443_17_0420_I_1_FINAL_ORDER_2007014.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
MICHAEL L. BEECH, SR ,
Appellant,
v.
DEPARTMENT OF THE AI R FORCE,
Agency.
DOCKET NUMBER
DA-3443 -17-0420 -I-1
DATE: February 28, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL1
Michael L. Beech, Sr. , Pleasanton, Texas, pro se.
Lawrence Lynch , Esquire, Joint Base San Antonio, Randolph Air Force
Base , Texas, for the agency.
BEFORE
Cathy A. Harris , Vice Chairman
Raymond A. Limon , Member
Tristan L. Leavitt , Member
FINAL ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
dismissed for lack of Board jurisdiction his appeal claiming that the manner in
which the agency assessed his application , leading to his nonselection, was an
employment practice that violated a basic requirement of 5 C.F.R. § 300.103 .
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
require d to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c).
2
Generally, we grant petitions such as this one only in the following
circumstances: the initial decision contains erroneous findings of material fact;
the initial decision is based on an erroneous interpretation of statute or regulation
or the erroneous application of the law to the facts of the case; the administrative
judge’s rulings durin g either the course of the appeal or the initial decision
were not consistent with required procedures or involved an abuse of discretion,
and the resulting error affected the outcome of the case; or new and material
evidence or legal argument is available that, despite the petitioner’s due
diligence, was not available when the record closed. Title 5 of the Code of
Federal Regulations, section 1201.115 ( 5 C.F.R. § 1201.115 ). After fully
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 ap pellant’s claim that the agency failed to apply an Office of
Personnel Management (OPM) policy requiring a comprehensive evaluation of his
background during the selection process , we AFFIRM the initial decision.
BACKGROUND
¶2 On April 23, 2017, the appell ant applied for a competitive service
GS-1750 -11 Instructional Systems Specialist position with the agency , under
vacancy announcement 8Z -AFPC -1945278 -796741 -ASC. Initial Appeal File
(IAF), Tab 11 at 52-53, Tab 14 at 1 . The position had qualifying educat ional
requirements set by OPM consisting of a degree that included or was
supplemented by 24 semester hours of specific coursework in at least 4 of 5 focus
areas. IAF, Tab 11 at 67 , Tab 12 at 9.
¶3 The agency interviewed the appellant for the position on June 12, 2017.
IAF, Tab 1 at 5. The following day, the agency requested additional information
to verify the appellant’s eligibility. IAF, Tab 11 at 51. The agency had subject
matter experts on t he position review the appellant’s educational qualifications.
3
Id. at 15 -16. Each agreed that the appellant failed to meet the educational
requirements set by OPM , as he had only completed 21 semester hours in 3 of the
5 focus areas. Id. at 15-16, 25 -27. Accordingly, the agency deemed the appellant
ineligible for the position and did not consider his application further. Id. at 14.
¶4 On July 18, 2017, the appellant filed an appeal with the Board and
requested a hearing, alleging that the manner in which the agency assessed his
application , leading to his nonselection, was an employment practice that violated
a basic requirement of 5 C.F.R. § 300.103 . IAF, Tab 1 at 3, 5, Tab 4 at 4. The
appellant also claimed that he met the educational requirements for the position.
IAF, Tab 1 at 5, Tab 14 at 1 -2. He further allege d that the agency failed to apply
an OPM policy re lating to 5 U.S.C. § 3308 , because it did not conduct a
comprehensive evaluation of his background during the selection process . IAF,
Tab 1 at 5 -7; Tab 4 at 4; Tab 14 at 2.
¶5 On September 8, 2017, the administrative judge issued an initial decision on
the writte n record, finding that the appellant failed to meet his burden of
establishing Board jurisdiction over his appeal . IAF, Tab 15, Initial Decision
(ID) at 1-8. Specifically, the administrative judge held that the appeal did not
concern an employment practi ce that OPM is involved in administering . ID
at 3-8. The appellant t hen filed a petition for review largely reiterating his
arguments before the administrative judge. Petition for Review (PFR) File,
Tab 1. The agency has responded in opposition to the petition for review. PFR
File, Tab 3.
DISCUSSION OF ARGUME NTS ON REVIEW
The standard for an employment practices appeal to be within the Board’s
jurisdiction.
¶6 The term “employment practic e” is defined by regulation as practice s that
affect the recruitment, measurement, ranking, and selection of individuals for
initial appointment and competitive promotion in the competitive service.
4
5 C.F.R. § 300.101 . Employment practic es include the development and use of
examinations, qualification standards, tests, measurement instruments, and
practices other than merit -based tests impacting selection. Holse v. Department
of Agriculture , 97 M.S.P.R. 624 , ¶ 6 (2004) ; 5 C.F.R. § 300.101 .
¶7 Pursuant to 5 C.F.R. § 300.103 , each empl oyment practice of the Federal
Government generally must adhere to the following basic requirements. First, an
employment practice must be based on a job ana lysis identifying the basic duties
of the position; the knowledge, skills, and abilities necessary to perform those
duties; and the factors that are important in evaluating candidates for the position.
5 C.F.R. § 300.103 (a). Second, a rational relationship must exist between
performance in the position and the employment practice used to fill the position
and such relationship must be demonstrated by showing that the employment
practice was professionally developed. 5 C.F.R. § 300.103 (b). Third, an
employment practice must not discriminate on the basis of any prohibited factor
listed in 5 C.F.R. § 300.103 (c). A candidate for employment who believes that an
employment practice applied to him by OPM violates an aforementioned basic
requirement may file an appeal with the Board. 5 C.F.R. § 300.104 (a).
¶8 To establish Board jurisdiction over an employment practices appeal, an
appellant’s appeal must concern an employment practice that OPM is involve d in
administering and an appellant must make a nonfrivolous allegation that the
employment practice violated one of the basic requirements set forth in 5 C.F.R.
§ 300.103 . Sauser v. Dep artment of Veterans Affairs , 113 M.S.P.R. 403 , ¶ 6
(2010). OPM need not be immediately involved in the practice in question, as an
agency’s misapplication of a valid OPM requirement may constitute an
appealable employment practice , assuming the other jurisdictional element s are
met. See Scott v. Department of Justice , 105 M.S.P.R. 482 , ¶¶ 10, 12 (200 7)
(noting that OPM can be sufficiently involved in an agency’s selection process in
an employment pr actices appeal when OPM formulated the qualification standard
at issue) .
5
The appellant failed to meet his burden of establishing Board jurisdiction over his
employment practices appeal.
¶9 As the administrative judge correctly held in the initial decision, the
appellant’s challenge of the agency’s decision that he did not meet the
educational requirements for the Instructional Systems Specialist position is not
an employment practices appeal within the Board’s jurisdiction. ID at 6 -8; IAF,
Tab 1 at 5, Tab 1 4 at 1-2. While the term “employment practice” is to be
construed broadly, it does not encompass the agency’s rating and handling of an
individual applicatio n. Richardson v. Department of Defense , 78 M.S.P.R. 58 , 61
(199 8) (holding that the Board lacked jurisdiction over an employment practic es
appeal when the appellant m erely contested the agency’s rating and handling of
her individual application); see Sutton v. Department of Veterans Affairs , 671 F.
App’x 781 , 783 (Fed. Cir. 2016) (Table) (finding that the appellant’s employment
practices appeal was not within the Board ’s jurisdiction because the appellant
challenged the individual determination that his transcript was insufficient to
show that he met the educational requirement s).2
¶10 Relatedly, as determined by the administrative judge in the initial decision,
the appell ant does not challenge the validity or applicability of the educational
requirements for the position at issue. ID at 6 -7. I n an employment practices
appeal, misapplication of a valid OPM requirement by an agency does not mean
that an agency inaccurately evaluated a candidat e using a valid OPM requirement;
instead , it means that the very application of the requirement to the candidate
violated 5 C.F.R. § 300.103 . See Sauser , 113 M.S.P.R. 403 , ¶¶ 8-10 (finding that
an appellant established jurisdiction over an employment practices appeal when
alleging that an agency improperly applied OPM qualification standards because
2 The Board may rely on unpublished U.S. Court of Appeals for the Federal Circuit
decisions if, as here, it finds the reasoning persuasive. Vores v. Department of the
Army , 109 M.S.P.R. 191 , ¶ 21 (2008 ), aff’d , 324 F. App’x 883 (Fed. Cir. 2009).
6
he alleged that the standards were not rationally related to performance in the
position at issue). The appellant makes no such claim here.
¶11 The appellant did however allege in his appeal and on review that the
agency failed to apply an OPM policy re lating to 5 U.S.C. § 3308 because it did
not conduct a comprehensive evaluation of his background during the selection
process .3 IAF, Tab 1 at 5 -7; Tab 4 at 4; Tab 14 at 2; PFR File, Tab 1 at 4 -5.
While noting this issue in both an order and in the initial decision, the
administrative judge did not reach a conclusion on the matter. ID at 4; IAF,
Tab 14 at 2. Initial decisions must contain findings of fact and conclusions of
law for the material issues presented in the record, along with 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). We modify the initial
decision to include analysis and conclusion on this issue.
¶12 The appellant continuously references the OPM policy that states that in
rare occasions, agencies must conduct a more comprehensive evaluation of an
applicant who does not meet the required educational requirements, but is
demonstrably well qualif ied for the position due to a combination of education
and experience. IAF, Tab 1 at 5 -7; Tab 4 at 4; Tab 14 at 2; PFR File, Tab 1
at 4-5; see OPM, Classification & Qualifications, General Schedule Qualification
Policies, Educational and Training Provisio ns or Requirements, Interpreting
Minimum Educational Requirements, https://www.opm.gov/policy -data-
oversight/classification -qualifications/general -schedule -qualification -policies/
(last visited February 28, 202 3). In this case, the appellant claims that he is
3 In accordance with 5 U.S.C. § 3308 , agencies may not prescribe minimal education al
requirements for competitive -service positions unless OPM decides that the duties are
of a scientific, technical, or professional pos ition that cannot be performed by an
individual who does not have a prescribed minimum education. OPM determined that
the competitive service GS -1750 -11 Instructional Systems Specialist position in this
appeal falls under the exception of 5 U.S.C. § 3308 and established educational
requirements as a result. IAF, Tab 11 at 67. The appellant does not challenge the
validity or applicability of the se educational requirements. ID at 7.
7
demonstrably well qualified and the agency did not conduct a comprehensive
evaluation of his background . IAF, Tab 1 at 5 -7; Tab 4 at 4; Tab 14 at 2 ; PFR
File, Tab 1 at 5 -6.
¶13 An individual agency action or decision that is not made pursuant to or as
part of a rule or practice of some kind does not qualify as an “employment
practice.” Prewitt v. Merit Systems Protection Board , 133 F.3d 885 , 887 (Fed.
Cir. 1998); see Banks v. Department of Agriculture , 59 M.S.P.R. 157 , 159 -60
(1993) ( finding that failure to consider the appellant’s relevant education and
experience and other alleged irregularities in the selection process do es not
constitute an “em ployment practice” ), aff’d , 26 F.3d 140 (Fed. Cir. 1994) (Table).
Here, the appellant claimed that the agency did not complete a comprehensive
evaluation of his background, but has not alleged or shown that the supposed
failure to do so was pursuant to or part of any rule or practice by the agency. We
therefore find that the appellant’s allegation, even if true, does not show that the
agency’s actions constituted an employment practice. See Manno v. Department
of Justice , 85 M.S.P.R. 696 , ¶ 7 (2000) (finding that because the contested agency
action was not made pursuant to or as part of a rule or practice, it did not
constitute an emp loyment practice).4
¶14 Because the record contains undisputed evidence on the jurisdictional issue
and the appellant failed to make a nonfrivolous allegation of jurisdiction, the
administrative judge correctly dismissed this appeal without holding a hear ing.
See O’Neal v. U.S. Postal Service , 39 M.S.P.R. 645 , 649 (dismissing an appeal
without a hearing when the appellant failed to raise a nonfrivolous allegation of
jurisdiction and the jurisdictional issue could be resolved on written
submissions) , aff’d , 887 F.2d 1095 (Fed. Cir. 1989) (Table) .
4 Even if the appellant did adequately allege that the agency’s failure to apply this OPM
policy to his individual circumstance is an employment practice, he still does not
establish Board jurisdiction over his claim, as he did not make a nonfrivolous allegation
that the employment practice at issue violated one of the basic requirements set forth in
5 C.F.R. § 300.103 . Saus er, 113 M.S.P.R. 403 , ¶ 6.
8
¶15 We have considered t he appellant’s arguments o n review , many mirroring
the ones he set forth be fore the administrative judge, and we discern no basis to
disturb the administrative judge’s conclusion that the appellant failed to establish
Board jurisdiction over his employment practices appeal . PFR File, Tab 1 at 4 -7.
See Hsieh v. Defense Nuclear A gency , 51 M.S.P.R. 521 , 524 -25 (1991) (holding
that mere reargument of the same issues does not constitute a basis to grant a
petition for review), aff’d , 979 F.2d 217 (Fed. Cir. 1992) (Table).
¶16 Accordingly, we affirm the initial decision.
NOTICE OF APPEAL RIGHTS5
The initial decision, as supplemented by this Final Order, constitutes the
Board’s final decision in this matter. 5 C.F.R. § 1201.113 . You may obtain
review of this final decision. 5 U.S.C. § 7703 (a)(1). By statute, the nature of
your cla ims determines the time limit for seeking such review and the appropriate
forum with which to file. 5 U.S.C. § 7703 (b). Although we offer the following
summary of available appeal rights, the Mer it Systems Protection Board does not
provide legal advice on which option is most appropriate for your situation an d
the rights described below do not represent a statement of how courts will rule
regarding which cases fall within their jurisdiction. If y ou wish to seek review of
this final decision, you should immediately review the law applicable to your
claims and carefully follow all filing time limits and requirements. Failure to file
within the applicable time limit may result in the dismissal of yo ur case by your
chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
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
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant 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 Appe als for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems 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
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. ____ , 137 S. Ct. 1975 (2017) . If you have a
representative in this case, and your representative receives this decision before
you do, then you must file with the district court no later than 30 calendar days
after your representative receives this decision. If the action involves a claim of
discrimination based on race, color, religion, sex, national origin, or a disabling
condition, you may be entitled to representation by a court -appointed lawyer and
to waiver of any requirement of prepayment of fees, costs, or other security. See
42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702 (b)(1 ). If you have a representative in this case,
and your representative receives this decision before you do, then 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
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
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
competent jurisdiction.6 The court of appeals must receive your petition for
review within 60 days of the date of is suance of this decision. 5 U.S.C.
§ 7703 (b)(1)(B).
If you submit 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
6 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 201 8, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The Al l Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195,
132 Stat. 1510.
12
717 Madison Place, N.W.
Washington, D.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 | BEECH_MICHAEL_L_DA_3443_17_0420_I_1_FINAL_ORDER_2007014.pdf | 2023-02-28 | null | DA-3443 | NP |
3,463 | https://www.mspb.gov/decisions/nonprecedential/GORMAN_TROY_DE_0752_16_0340_I_1_FINAL_ORDER_2007020.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
TROY GORMAN,
Appellant,
v.
DEPARTMENT OF VETERA NS
AFFAIRS,
Agency.
DOCKET NUMBER
DE-0752 -16-0340 -I-1
DATE: February 28, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL1
Lawrence Berger , Esquire, Glen Cove, New York, for the appellant.
Thomas R. Kennedy , Esquire, Denver, Colorado, for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
Tristan L. Leavitt, Member
FINAL ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
affirmed his removal . Generally, we grant petitions such as this one only in the
following circumstances: the initial decision contains erroneous findings of
materia l 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
decisio n were not consistent with required procedures or involved an abuse of
discretion, and the resulting error affected the outcome of the case; or new and
material evidence or legal argument is available that, despite the petitioner ’s due
diligence, was not available when the record 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 is 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 Police Officer with the Veterans Affairs (VA) Medical
Center Police Service . Initial Appeal File (IAF) , Tab 8 at 15. On February 19,
2016, Patient A (we have not identified patients by name to protect their privacy)
at the agency’s Community Living Center in Grand Junction, Colorado, turned
over his medication to a nurse to be destroyed. Id. at 50. The nurse, in turn,
handed in the medication to the appellant in the company of Patient A. Id.
Patient A alleged that Patient B had stolen the medication, but later returned it
when Patient A had confronted him about the alleged theft . Id. at 69. The
appellant completed a VA Form 352 4, Police Property Held Evidence Record
(Evidence Record Form ), which incorrect ly stated that he received the medication
from Patient A instead of from the nurse . Id. at 69, 75-78. The appellant did not
report the alleged theft of Patient A’ s medication , which occurred off VA
property, to the local police. Id. at 50 -51. Another officer reported the alleged
crime to local police 4 days later. Id. at 51.
¶3 On February 26 , 2016, a nother nurse from the Community Living Center
handed in to the appellant a bag of marijuana that she obtained from Patient C’s
3
room. Id. at 50 , 61. The appellant completed an Evidence Record Form , which
incorrectly stated that he received the bag from Patient C. Id. at 61 -63.
¶4 Based on these incidents, t he agency proposed to remove the appellant
effective May 12, 2016, for two charges. Id. at 16 -19, 50. The agency alleged in
charge 1 that the appellant failed to accurately complete the two Evidence Record
Forms , and in charge 2 that he failed to notify local authorities of the alleged
theft of Patient A’s medication in a timely manner. Id. In finding removal to be
the appropriate penalty, t he deciding official considered the appellant’s prior
discipline , consisting of a September 2015 letter of reprimand for disrespectful
behavior and a December 2015 seven -day suspension for inaccurately recording a
police journal entry, failure to follow instruction, an d disrespectful behavior. Id.
at 20-21, 95-96, 113-14. The appellant filed a Board appeal challenging the
removal. IAF, Tab 1.
¶5 After holding a hearing, the administrative judge issued an initial decision
that affirmed the appellant ’s removal, finding that the agency proved by
preponderant evidence that the appellant failed to record accurately the recei pt of
evidence as sp ecified in c harge 1. IAF, Tab 26, Initial Decision ( ID) at 3-6. The
admini strative judge di d not sustain c harge 2 because the agency did not present
sufficient proof that there was a time period within which agency police officers
were required to report crimes to local police . ID at 8. The administrative judge
determined that the penalty of removal was taken for such cause as would
promote the efficiency of the service and that it was reasonable under the
circumstances for the one sustained charge. ID at 9 -10. The appellant has filed a
petition for review disputing the administrative judge ’s decision to sustain
charge 1. P etition for Review (PFR) File, Tab 1. The agency has filed a response
in opposition to h is petition. PFR File, Tab 3.
4
DISCUSSION OF ARGUME NTS ON REVIEW
The admin istrative judge correctly found that the agency proved charge 1 .2
¶6 On review , the appellant argues that his Evidence Record Forms were
“materially accurate .” PFR File, Tab 1 at 5. In support of his position, h e states
that he correctly identified Patient A as the owner of the medication , and that
Patient A was present wh en the nurse on duty transferred the medication to the
appellant . Id. at 5 . He argues that the nurse was acting as a “mere conduit” for
Patient A, who is disabled. Id. He further argues that he correctly identified
Patient C as the owner of the marijuana taken into evidence . Id. at 5-6. In both
cases, he contends that although a staff member physically handed him the
evidence owned by Patients A and C, this fact is immaterial and does not render
his Evidence Record Form s inaccurate or inadmissible for purposes of
prosecution. Id. at 6-7. For the reasons discussed below, however, we agree with
the administrative judge that the agency proved charge 1 .
¶7 Here, the appellant has admit ted that he received the items in question from
nurses but recorded them as received from Patients A and C. IAF, Tab 8
at 25-26; PFR File, Tab 1 at 5 -6. This admission suffice s as proof of a charge
without additional proof from the agency. Cole v. Department of the Air Force ,
120 M.S.P.R. 640, ¶ 9 (2014). To the extent that the appellant alleges that the
information was “materiall y accurate,” we find that this mischaracterizes the
admitted facts . PFR File, Tab 1 at 5 -6. In any event, the material accuracy of the
recorded information is not an element of the charge. See Boo v. Department of
Homeland Security , 122 M.S.P.R. 100, ¶ 14 (2014) (observing that a charge
regarding the substantive submission of inaccurate information does not involve
an element of intent ).
2 The parties do not challenge on review the administrative judge ’s finding regarding
charge 2 , and we discern no bas is for disturbing that finding . See 5 C.F.R. § 1201.115
(indicating that the Board generally will consider only issues raised in a timely filed
petition or cross petition for review).
5
We affirm the administrative judge ’s finding that the removal penalty was
reasonable.
¶8 As stated above, t he administrative judge found that the agency established
a nexus between its decision to discipline the app ellant for the sustained charge
and the efficiency of the service. ID at 8-9. On review, neither party challenges
this finding, and we discern no reason to disturb it.
¶9 The administrative judge also found that the penalty of removal was
reasonable. ID at 10. The appellant does not allege any specific error in the
administrative judge’s penalty analysis . However, he appears to dispute that his
misconduct was serious based on his argument that the deciding official
wrongfully concl uded that his recording errors tainted the evid ence and made it
inadmissible for prosecution. PFR File, Tab 1 at 6. F or the reasons discussed
below, we find that the administrative judge considered all of the relevant factors
set forth in Douglas v. Veterans Administration , 5 M.S.P.R. 280 , 305-06 (1981) ,
in finding that removal was reasonable for the sustained charge .3
¶10 When , as here, the Board does not sustain all of the charges, it will
carefully consider whether the sustained charges merit the penalty imposed by the
agency. ID at 9; Boo, 122 M.S.P.R. 100 , ¶ 17. The Board may mitigate the
agency’s imposed penalty to the maximum extent that is reasonable in light of the
sustained charges as long as the agency has not indicated in either its final
decision or in proceedings before the Board that it desires that a lesser penalt y be
imposed for fewer charges. Boo, 122 M.S .P.R. 100 , ¶ 17. Because the deciding
official here did not express whether he would have imposed either the same or a
lesser penalty for fewer sustained charges, the Board must apply the Douglas
factors to determine the maximum reasonable penalty for the sustained charges.
Id.; IAF, Tab 8 at 17, 51 -52.
3 In Douglas , 5 M.S.P.R. at 305-06, the Board articul ated a nonexhaustive list of
12 factors that are relevant in assessing the penalty to be imposed for an act of
misconduct.
6
¶11 The most important of the Douglas factors is the nature and seriousness of
the offense . Boo, 122 M.S.P.R. 100 , ¶ 18. Among the considerations included in
this factor are the relationship of the offense to the employee ’s duties, position,
and responsibilities, and whether the offense was intention al or was frequently
repeated. Id. Here, the administrative judge agreed with the deciding official
that the appellant’s misconduct was serious, considering that he is a law
enforcement officer and the evidence custodian for the faci lity and that he
received two prior disciplinary actions. ID at 9 -10, 95 -96, 113 -14; Hearing
Transcript (HT) at 33 -44 (testimony of the deciding official). The administrative
judge also observed that the appellant received prior t raining in evidence
collection , and did not exhibit the potential for rehabilitation, there were no
viable alternatives to removal, and the removal penalty was consistent with the
agency’s table of penalties. ID at 9 -10; IAF, Tab 8 at 17, 21 -23, 151; HT
at 33-44 (testimony o f the deciding official). In reaching her conclusion, the
administrative judge weighed the mitigating factor of the appellant’s 14 years of
combined military and Federal service. ID at 9 -10; IAF, Tab 8 at 21.
¶12 Accordingly, we agree with the administrati ve judge’s finding that the
removal penalty is reasonable for the appellant’s repeated failure to accurately
complete the Evidence Record Forms. ID at 9 -10. We have considered the
appellant’s argument on review that the inaccuracies on his Evidence Recor d
Forms did not render the evidence that he collected inadmissible for prosecution
purposes . PFR File, Tab 1 at 7. Under the circumstances presented by the
appellant’s misconduct, however, we still find that removal is warranted for the
sustained charge . ID at 9-10; see generally O’Lague v. Department of Veterans
Affairs , 123 M.S.P.R. 340 , ¶ 20 (2016) (finding that law enforcement officers
may be held to a higher standard of conduct than other employees) , aff’d per
curiam , 698 F. App’x 1034 (Fed. Cir. 2017) ; Chandler v. Social Security
Administration , 80 M.S.P.R. 542, ¶ 12 (1999) (recognizing the potential for harm
to the agency’s basic mission as aggravating in a penalty analysis) .
7
¶13 We therefore affirm the initial decision sus taining the agency ’s removal
action.
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.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
4 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.
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. ____ , 137 S. Ct. 1975 (2017). If you have a
representative in this case, and your representative receives this decision before
you do, then you must file with the district court no later than 30 calendar days
after your representative receives this decision. If t he action involves a claim of
9
discrimination based on race, color, religion, sex, national origin, or a disabling
condition, you may be entitled to representation by a court -appointed lawyer and
to waiver of any requirement of prepayment of fees, costs, or other security. See
42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
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 . 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
10
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.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 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
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 Al l Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195,
132 Stat. 1510.
11
Board neither endorses the services provided by any attorney nor warrants that
any 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 | GORMAN_TROY_DE_0752_16_0340_I_1_FINAL_ORDER_2007020.pdf | 2023-02-28 | null | DE-0752 | NP |
3,464 | https://www.mspb.gov/decisions/nonprecedential/GILLINS_SABRA_V_CH_0353_14_0337_I_2_REMAND_ORDER_2006038.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
SABRA V. GILLINS,
Appellant,
v.
UNITED STATES POSTAL SERVICE,
Agency.
DOCKET NUMBER
CH-0353 -14-0337 -I-2
DATE: February 27, 2023
THIS ORDER IS NONPRECEDENTIAL1
Sidney M. Fulwood , Supply, North Carolina, for the appellant.
Roderick D. Eves , Esquire, St. Louis, Missouri , for the agency.
BEFORE
Cathy A. Harris , Vice Chairman
Raymond A. Limon , Member
Tristan L. Leavitt, Member
REMAND ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
dismissed her restoration appeal for lack of Board jurisdiction . For the reasons
discussed below, we GRANT the appellant’s petition for review , REVERSE the
initial decision, FIND that the appellant has shown by preponderant evidence that
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c).
2
the agency arbitrarily and capriciously denied her restoration, and order the
agency to conduct a search of the local commuting area for available positions
within the appellant ’s medical restrictions . We REMAND the appellant’s
disability discrimination claim to the regional office for further adjudication in
accordance with this Remand Order.
DISCUSSION OF ARGUME NTS ON REVIEW
¶2 The following facts, as further detailed in the initial decision, do not appear
to be materially disputed. The appellant most recently held a level 4 Mail
Handler position. Gillins v. U.S. Postal Service , MSPB Docket No. CH -0353 -14-
0337 -I-1, Initial Appeal File (IAF), Tab 1 at 1; Gilli ns v. U.S. Postal Service ,
MSPB Docket No. CH -0353 -14-0337 -I-2, Refiled Appeal File (RAF), Tab 60,
Initial Decision (ID) at 2.2 She injured her left shoulder in 2008 and again in
2009. ID at 2; RAF, Tab 6 at 24 -27. The Office of Workers ’ Compensation
Programs (OWCP) accepted the associated claim in 2009, and the appellant began
working in a limited -duty capacity. ID at 2-3; RAF, Tab 6 at 27. She filed a
separate OWCP claim in 2012, for a different injury, but the OWCP denied that
claim. ID at 3; RAF, Tab 6 at 105.
¶3 The appellant periodically provided the agency with OWCP Forms CA -17,
Duty Status Report, describing her restrictions stemming from the 2009 claim,
and the agency provided her with work. ID at 2 -3; e.g., RAF, Tab 6 at 110. After
a period of absence for unrelated reasons, the appellant submitted another Form
CA-17, in December 2012, and the agency provided her a limited -duty
assignment of 1 hour per day. ID at 3; RAF, Tab 6 at 20 -22, 112. The appellant
worked in that assignment between De cember 20, 2012, and February 8, 2013, but
then stopped reporting to work and requested unpaid leave. ID at 4; RAF, Tab 49
2 The appellant’s initial appeal was dismissed without prejudice and subsequently
refiled, at the parties’ request, resulting in the separate docket num bers associated with
this one matter. See, e.g ., IAF, Tab 20; ID at 6 -7.
3
at 15 -20. On April 24, 2013, the appellant submitted another Form CA -17
containing similar restrictions to others dating back to he r 2009 injury. ID at 4;
RAF, Tab 6 at 113. Days later, she returned to work with documentation from a
different physician, which described the appellan t’s need for short breaks in case
of an asthma attack, but did not discuss her accep ted injury in any w ay. ID
at 4-5; RAF, Tab 6 at 98, 104 .
¶4 In May 2013, the agency conducted a search but found no available work
within the appellant’s restrictions. ID at 5; RAF, Tab 6 at 102. Also in
May 2013, the agency denied the appellant’s bid for a Platform Operation
position on the basis that she failed to provide medical certification showing that
she was capable of performing that job.3 ID at 5; RAF , Tab 6 at 97.
¶5 The appellant filed an equal employment opportunity (EEO) claim
concerning the se events, al leging that the agency engaged in improper disability
discrimination or retaliation for prior EEO activity by ending her limited -duty
assignment and denying her bid for the Platform Operation position in May 2013.
RAF, Tab 6 at 44 -45. In a final agency d ecision (FAD) denying her claim, the
agency characterized the matter as a mixed -case complaint and informed her of
the Board’s jurisdiction over restoration appeals. Id. at 44-45, 66-67. The instant
appeal followed. IAF, Tab 1.
¶6 The administrative judge issued an initial decision dismissing the ap peal for
lack of jurisdiction. ID at 1; RAF, Tab 46. Because the appellant withdrew her
hearing request, the administrative judge issued the decision on the written
3 It is unclear what happened after May 2013. In the initial decision, the administrative
judge indicated that the OWCP began providing the appellant with wage replacement
benefits for 8 hours per day on June 15, 2013, and the appellant never requested
restoration after that date. ID at 5. It appears that the administrative judge may have
provided those facts based on a chronology included in an earlier prehearing summary,
but we w ere unable to find clear evidentiary support for the chronology of events and,
for reasons that are somewhat unclear, the appellant objected to that portion of the
prehearing summary. Compare RAF, Tab 44 at 2 -3, with RAF, Tab 46 at 1.
4
record. RAF, Tab 47; ID at 1. She first fo und that the appellant was absent from
her position due to a compensable injury during the relevant period. ID at 10 -12.
Next, the administrative judge found that the appellant recovered sufficiently to
return to work in a position with physical requirem ents less demand ing than those
required by her Mail H andler position. ID at 12 -13. She also concluded that the
agency denied the appellant’s request for restoration when the appellant appeared
for work after her extended absence but the agency instructed her to go home
because it did not have any available work. ID at 13-14. However, the
administrative judge found that the appellant failed to prove the final element of a
restoration clai m—that the agency’s denial of her restoration request was
arbitrary and capricious. ID at 14-17.
¶7 Separately, the administrative judge also found that while the appellant
presented allegations that the agency improperly denied her bid for a position in
May 2013, that matter was not a valid restoration claim, nor was the denial
improper. ID at 17 -18. Based on these findings, the administrative judge
dismissed the appellant’s appeal for lack of jurisdiction. ID at 19. The appellant
has filed a petition for review. Petition for Review ( PFR ) File, Tab 1.4 The
agency has filed a response. PFR File, Tab 3.
The administrative judge properly limited the scope of this appeal.
¶8 As previously discussed, this appeal followed a January 2014 FAD
concerning allegations that the a gency engaged in improper disability
4 With her petitio n for review, the appellant submitted evidence that the admini strative
judge rejected below. Gillins v. U.S. Postal Service , MSPB Docket No. CH-0353 -14-
0337 -I-1, Petition for Review File, Tab 1 at 26 -36; see RAF, Tab 58; ID at 7. However,
the appellant has not explained , nor are we aware of, how the evidence is relevant to the
instant appeal and the dispositive issue of whether the agency’s denial of her restoration
request s during the pertinent period was arbitrary and capricious. See generally Russo
v. Veterans Administration , 3 M.S.P.R. 345 , 349 (1980) (recognizing that the Board will
not grant a petition for review based on new evidence absent a showing that it is of
sufficient weight to warrant an outcome different from that of the initial decision).
5
discrimination or retaliation for prior EEO activity by ending the appellant’s
limited -duty assignment and denying her bid for the Platform Operation position.
RAF, Tab 6 at 44 -67; IAF, Tab 1. Accordingly, the administrative judge
construed this as a re storation appeal stemming from and limited to that FAD and
the appellant’s compensable shoulder injury. E.g., IAF, Tab 11 at 1; ID at 6. At
issue in the FAD was the agency’s alleged denial of restoration on May 20, 2013.
RAF, Tab 6 at 45. The appellant did not object to the administrative judge’s
statement of her claims below , despite an opportunity to do so . IAF, Tab 15 ; see
Kingsley v. U.S. Postal Service , 123 M.S.P.R. 365, ¶ 14 (2016) (declining to
consider alleged denials of restoration which did not fall within the time period
identified in orders issued by the administrative judge, because the appellant
failed to raise he r objection to the scope of her claims below).
¶9 On review, the appellant appears to suggest that the administrative judge
improperly limited the scope of he r appeal and alleges that the agency denied her
reasonable accommodation based on her “mental disabil ity” beginning in 2007.
PFR File, Tab 1 at 13-15. We are not persuaded. The appellant has not presented
any basis for us to conclude that her mental condition might be a compensable
injury, cognizable in the context of a restoration claim. See Hamilton v. U.S.
Postal Service , 123 M.S.P.R. 404, ¶ 14 (2016) (explaining that a compensable
injury is defined as one that is accepted by OWCP as job-related and for which
medical or monetary benefits are payable from the Employees’ Compensation
Fund ). Nor has she explained her prior failure to correct the administrative judge
as to the scope of the appeal below when she had an opportunity to do so .
Accordingly, we find that the administrative judge properly limited the scope of
this appeal.
The applicable burden of proof to establish jurisdiction in the appellant’s
restoration claim is preponderant evidence.
¶10 To establish jurisdiction in a restoration appeal filed before March 30,
2015, an appellant must prove by preponderant evidence that : (1) she was absent
6
from her position due to a compensable injury; (2) she recovered sufficiently to
return to duty on a part -time basi s or to return to work in a position with less
demanding physical requirements than those previously required of her; (3) the
agency denied her request for restoration; and (4) the denial was arbitrary and
capricious. Bledsoe v. Merit Systems Protection B oard , 659 F.3d 1097 , 1102,
1104 (Fed. Cir. 2011). Effective March 30, 2015, the Board adopted a lower
jurisdictional standard in restoration appeals. Kingsley , 123 M.S.P.R. 365, ¶ 10 ;
5 C.F.R. § 1201.57 (a)(4), (b). For those more recently filed appeals, jurisdiction
and the merits are no longer satisfied by the same burden. Kingsley ,
123 M.S.P.R. 365 , ¶¶ 10, 12 ; 5 C.F.R. § 1201.57 (c)(4) . Instead, the nonfrivolous
standard applies to jurisdiction and the preponderant e vidence standard applies to
the merits. Kingsley , 123 M.S.P.R. 365 , ¶¶ 10, 12 ; 5 C.F.R. § 1201.57 (a)(4), (b),
(c)(4) .
¶11 Because the appellant filed the instant appeal prior to March 30, 2015, the
new standard does not apply in this case. IAF, Tab 1; see Rules and Regulations
of the Merit Systems Protection Board, 80 Fed. Reg. 4,489 , 4,489 (Jan. 28, 2015).
However, at times, the administrative judge mistakenly referenced the new
jurisdictional standard. Compare ID at 7 (properly cit ing the old preponderant
evidence standard), with ID at 8 -9 (improperly referring to the new nonfrivolous
standard). To be clear, the old standard applies, requiring that the appellant prove
the elements of her restoration claim by preponderant evidence t o establish
jurisdiction.
¶12 On review, the appellant suggests that it was improper to dismiss her appeal
on jurisdictional grounds and not reach the merits becau se the administrative
judge already had found jurisdiction over the matter. PFR File, Tab 1 at 2-4
(referencing IAF, Tab 19 at 3). The appellant is mistaken, possibly due to the
aforementioned confusion and changed standards. Although the admi nistrative
judge did find that the appellant presented nonfrivolous allegations and was
entitled to a hear ing, if she wanted one, IAF, Tab 19 at 3, the administrative judge
7
did not find that the appellant proved the elements of her restoration appeal by
preponderant evidence, as required to establish jurisdiction in this case, ID
at 18-19.
The appellant met he r burden of proving the merits of her claim that the agency
arbitrarily and capriciously denied her restoration.
¶13 Because the appellant may establish both jurisdiction and the merits of her
appeal by preponderant evidence as to the same four factors, we wil l proceed
directly to a discussion of the merits of her restoration claim. See Kingsley ,
123 M.S.P.R. 365, ¶ 10-12 (explaining an appellant’s burden of proof under the
Board’s prior and amended regulations). As detailed above, the administrative
judge found that the appellant met her burden for the first three elements of her
restoration claim, and we discern no basis for conclud ing otherwise. ID at 10-14.
However, the administrative judge found that the claim generally failed because
the appellant did not prove the final elemen t—that the agency’s denial of her
restoration request was arbitrary and capricious. ID at 14 -17. Among other
things, the administrative judge noted that the agency only denied the appellant’s
restoration request after an unsuccessful sear ch for available work within her
extensive medical restrictions and commuting area. ID at 15; RAF, Tab 6
at 99-103. For the reasons that follow, we disagree.
¶14 We first recognize a change in the standard that applies in this appeal.
While this appeal was pending review, we issued a decision clarifying the proper
standard for the fourth prong of a partial restoration a ppeal such as this. Cronin
v. U.S. Postal Service , 2022 MSPB 13, ¶ 14. In Cronin , we clarified that a denial
of restoration is arbitrary and capricious if , and only if, the agency failed to meet
its obligations under 5 C.F.R. § 353.301 (d). Id. We explicitly overturned prior
precedent, including Latham v. U.S. Postal Service , 117 M.S.P.R. 400 (2012), to
the extent that such precedent held that a denial of restoration may be arbitrary
and capricious based on an agency’s failure to comply with its self -imposed
restoration obligations, such as those provided in the Postal Service’s Employee
8
and Labor Relations Manual (ELM). Cronin , 2022 MSPB 13 , ¶¶ 15 -20.
Accordingly, an agency is only obliged to “make every effort to restore” a
partially recovered employee “in the local commuting area” and “according to the
circumstances in each case.” Id., ¶ 14; 5 C.F.R. § 353.30 1(d). To the extent that
the administrative judge relied on Latham and considere d whether the agency
complied with ELM provisions, that analysis was improper in light of Cronin .
See, e.g ., ID at 12, 17, 19. Similarly, we decline to review the appellant’s claim
that the agency violated the applicable collective bargaining agreement w hen it
denied her a position on which she bid. IAF, Tab 7 at 36 -37. Any such failure
does not fall within the agency’s restoration obligation s under 5 C.F.R.
§ 353.301 (d). See Cronin , 2022 MSPB 13, ¶ 20.
¶15 Next, we find that the administrative judge erred in concluding that the
agency conducted a proper search fo r available vacant positions . Pursuant to
5 C.F.R. § 353.301 (d), the agency was obligated to search the local commuting
area for positions . Yet, all of the documentation pertaining to t he agency’s search
in and around May 2013, when the appellant returned from her lengthy absence,
suggests that the agency only searched its Youngstown facility, where she had
previously worked. RAF, Tab 6 at 99 -103. The documentation contains no
indicati on that the agency expanded its search to include any other facility within
the local commuting area. At times, the agency appears to have conceded as
much, arguing that the appellant failed to identify available work within the half -
hour driving restrict ion her physician prescribed. RAF, Tab 53 at 9; see, e.g .,
RAF, Tab 6 at 110 -14. However, that half -hour driving restriction was prescribed
in the context of the appellant’s workday, not her commute. RAF, Tab 6
at 110-14. Moreover, even if the appellan t was restricted to a half hour of driving
per calendar day, we discern no basis for concluding that the appellant was
restricted from traveling throughout the local commuting area in some other way.
¶16 We further find the agency’s search improper for anoth er reason. The
appellant has argued that the Form CA -17 describing her medical restrictions
9
during the relevant period did not preclude her from working an 8 -hour workday.
PFR File, Tab 1 at 4 -5. The administrative judge disagreed, finding that the
CA-17 Form explicitly stated otherwise. ID at 2 n.2. We conclude that this
finding was in error.
¶17 The form at issue lists a variety of functional activities and the number of
hours they are required for the appellant’s position, providing spaces in which th e
appellant’s physician could indicate whether or to what extent the appellant’s
condition prevented her from performing those activities. RAF, Tab 6 at 112 -13.
For example, in the December 2012 and April 2013 forms, the physician’s
markings indicated th at the appellant could only twist for 1 of the 2 hours
typically required of her position. Id. The physician left blank the spaces in
which he could describe any limitations on the appellant’s ability to sit, stand,
and walk a total of 8 hours per day. Id.
¶18 Based upon the restrictions identified on these forms, the administrative
judge concluded that the appellant could not complete an 8 -hour workday. ID
at 2 n.2. However, on the Form CA -17, the appellant’s physician indicated that
she required 3 minu tes to stretch for every 20 minutes of repetitive work, but
could work overtime within her restrictions. RAF, Tab 6 at 112-13. Because he
indicated that the appellant could work overtime, it is evident that the physician
had not concluded she was unable to complete an 8 -hour workday. Id.
¶19 The distinction described above is particularly relevant because the record
strongly suggests that the agency made the same mistake. The limite d-duty
assignment the agency gave the appellant in December 2012 was for on ly 1 hour
of work per day. Id. at 106. Then, after her absence that began in February 2013,
when the appellant attempted to return to work in May 2013, agency officials
exchanged emails about her return, repeatedly alluding to an ability to work an
hour or less. Id. at 99, 101. Additionally, in an affidavit submitted in concert
with the appellant’s EEO claim, her supervisor repeatedly asserted that the
10
appellant was only able to work an hour per day, with breaks and other
restrictions. RAF, Tab 15 at 1 57-58, 161.
¶20 We were unable to locate any explanation for the agency’s belief that the
appellant was only capable of working 1 hour per day. Instead, our conclusion
that the appellant was not so limited is compounded by the fact that the
appellant’s Marc h 2011 CA -17 Form included virtually identical restrictions, to
which the agency offered and the appellant seemingly accepted a full -time
position. Compare RAF, Tab 6 at 110, with RAF, Tab 45 at 118 -20. In other
words, the record suggests that the appell ant’s limitations remained the same
between 2011 and 2013, but the agency conducted vastly more restricted searches
for available work in 2013.
¶21 The Board considered similar circumstances in Scott v. U.S. Postal Service ,
118 M.S.P.R. 375 , ¶ 13 (2012). In that case, the agency only searched for 2 hours
of work per day based on medical restrictions indicating that the appellant was
limited to 2 hours per day for certain tasks. Id., ¶¶ 8, 13. The Board found that
the agency’s failure to search for tasks that could provide the appellant with a
40-hour workweek was an improper search and an arbitrary and capricious denial
of restoration. Id., ¶ 13. We reach the same conclusion here. The record shows,
by preponderant evidence, that the agency conducted an improper search in
May 2013, the period at issue in the FAD and this appeal. Accordingly, we find
that the appellant met her burden o f proving that the agency’s May 2013 denial of
restoration was arbitrary and capricious.
¶22 In a case like this one, in which the denial of restoration was arbitrary and
capricious for lack of a proper job search, the appropriate remedy is for the
agency to conduct an appropriate search within the local commuting area
retroactive to the date of the appellant ’s request for restoration, and to consider
her for any suitable vacancies. Scott , 118 M.S.P.R. 375, ¶ 14. The remedy of a
retroactive search for available positions will be sufficient to correct the wrongful
action and substitute it with a correct one based on the appropriate search . Davis
11
v. U.S. Postal Service , 120 M.S.P.R. 122 , ¶ 14 (2013). It will not, however, put
the appellant in a better position than she was in before the wrongful action
because the agency may not find an appropriate available position. The appellant
may be entitled to back pay only if the agency’s restor ative search uncovers an
available position to which it could have restored her. Id.
The record must be further developed to address the appellant’s claim of
disability discrimination.
¶23 As recognized in the initial decision, the appellant has, at times, presented
allegations of harmful error, hostile work environment, and race discrimination.
ID at 6. On review, the appellant has not clearly identified anything in the
voluminous record s upporting those allegations. Therefore, we will not address
them further. See Tines v. Department of the Air Force , 56 M.S.P.R. 90 , 92
(1992) (explaining that a petition for review must contain sufficient specificity to
enable the Board to ascertain whether there is a serious evidentiary challenge
justifying a complete review of the record) ; Weaver v. Department of the Navy ,
2 M.S.P.R. 129 , 133 (1980) (finding that, before the Board will undertake a
complete review of the record, the petitioning party must explain why the
challenged factual determination is incorrect and identify the specific evidence in
the recor d which demonstrates the error) .
¶24 The appellant has, however, reasserted her allegation that the agency
engaged in disability discrimination by failing to accommodate her. PFR File,
Tab 1 at 14 -15. To the extent that this allegation pertains to the sole matter
before us—the May 20, 2013 denial of restoratio n—we find that the record
requires further development.
¶25 The Board adjudicates claims of disability discrimination raised in
connection with an otherwise appealable action under the substantive standards of
section 501 of the Rehabilitat ion Act of 1973 . Pridgen v. Office of Management
and Budget , 2022 MSPB 31, ¶ 35. The Rehabilitation Act has incorporated the
standards of the Americans with Disabilities Act ( ADA ), as amended by the
12
Americans with Disabilities Act Amendments Act of 2008 . Id. Therefore, the
Board applies those standards here to determine if there has been a Rehabilitation
Act violation. Id. In particular, the ADA provides that it is illegal for an
employer to “discriminate against a qualified individual on the basis of
disability.” 42 U.S.C. § 12112 (a). A qualified individual with a disability is one
who can “perform the essential functions of the . . . position that such individual
holds or desires” with or without reasonable accommodation. 42 U.S.C.
§ 12111 (8). An empl oyer is also required to provide reasonable accommodations
to an otherwise qualified individual with a disability. 42 U.S.C. § 12112 (b)(5).
Therefore, a n appellant may establish a disability di scrimination claim based on
failure to ac commodate by showing that: (1) sh e is a disabled person; (2) she is a
qualified individual with a disability; (3 ) the action appealed was based on h er
disability; and (4 ) to the extent possible, that there was a reason able
accommodation under which s he believes she could per form the essential duties
of her position or of a vacant position to which she could be reassigned. See
Haas v. Department of Homeland Security , 2022 MSPB 36, ¶¶ 28-29. Because
the agency did not conduct a proper search for avai lable work , it would be
premature to resolve the appell ant’s claim of failure to accommodate .
Accordingly, we must remand that claim for further adjudication.
ORDER
¶26 We remand this appeal for further consideration of the appellant ’s failure to
accommodate claim after additional record development as described above. In
light of this remand, the administrative judge should provide the appellant with an
opportunity to request a hearing on her disability discrimination claim. If the
appellant requests a hearing, the administrative judge should convene the hearing
to address the failure to accommodate issue. On remand, the administrative judge
should issue a new initial decision that makes findings regarding the appellant’s
disability discrimination claim.
13
¶27 In addition, we ORDER the agency to conduct a proper job search
retroactive to May 20, 2013. See Kerr v. National Endowment for the Arts ,
726 F.2d 730 (Fed. Cir. 1984). Th e agency must complete this action no later
than 20 days after the date of this decision.
¶28 In the event that the agency’s restorative job search uncovers an available
position to which it could have restored the appellant, we ORDER the agency to
pay the app ellant 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 i n good faith in the agency’s efforts to calculate the
amount of back pay, interest, and benefits due, and to provide all necessary
information the agency requests to help it carry out 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.
¶29 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).
¶30 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 app ellant
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).
¶31 For agencies whose payroll is administered by either the National Finance
Center of the Department of Agriculture (NFC) or the D efense Finance and
Accounting Service (DFAS), two lists of the information and documentation
14
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
documenta tion necessary to process payments and adjustments resulting from the
Board’s decision in accordance with the attached lists so that payment can be
made within the 60 -day period set forth above.
NOTICE TO THE APPELL ANT REGARDING
YOUR RIGHT TO REQUES T
ATTORNEY FEES AND CO STS
You may be entitled to be paid by the agency for your reasonable attorney
fees and costs. To be paid, you must meet the requirements set forth at title 5 of
the United States Code (5 U.S.C.), sections 7701(g), 1221(g), or 1214(g). The
regulations may be found at 5 C.F.R. §§ 1201.201 , 1201.202, and 1201.203. If
you believe you meet these requirements, you must file a motion for attorney fees
and costs WITHIN 60 CALENDAR DAYS OF THE DATE OF THIS DECISION.
You must file your motion for attorney fees and costs with the office that issued
the initial decision on your appeal.
FOR THE BOARD:
Washington, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board
DEFENSE FINANCE AND ACCOUNTING SERVICE
Civilian Pay Operations
DFAS BACK PAY CHECKLIST
The following documentation is required by DFAS Civilian Pay to compute and pay back pay
pursuant to 5 CFR § 550.805. Human resources/local payroll offices should use the following
checklist to ensure a request for payment of back pay is complete. Missin g documentation may
substantially delay the processing of a back pay award. More information may be found at:
https://wss.apan.org/public/DFASPayroll/Back%20Pay%20Process/Forms/AllItems.aspx.
NOTE: Attorneys’ fees or other non -wage payments (such as d amages) are paid by
vendor pay, not DFAS Civilian Pay.
☐ 1) Submit a “SETTLEMENT INQUIRY - Submission” Remedy Ticket. Please identify the
specific dates of the back pay period within the ticket comments.
Attach the following documentation to the Remedy Ticket, or provide a statement in the ticket
comments as to why the documentation is not applicable:
☐ 2) Settlement agreement, administrative determination, arbitrator award, or order.
☐ 3) Signed and completed “Employee Statement Relative to Back Pay”.
☐ 4) All required SF50s (new, corrected, or canceled). ***Do not process online SF50s
until notified to do so by DFAS Civilian Pay.***
☐ 5) Certified timecards/corrected timecards. ***Do not process online timecards until
notified to do so by DFAS Civilian Pay.***
☐ 6) All relevant benefit election forms (e.g. TSP, FEHB, etc.).
☐ 7) Outside earnings documentation. Include record of all amounts earned by the employee
in a job under taken during the back pay period to replace federal employment.
Documentation includes W -2 or 1099 statements, payroll documents/records, etc. Also,
include record of any unemployment earning statements, workers’ compensation,
CSRS/FERS retirement annuit y payments, refunds of CSRS/FERS employee premiums,
or severance pay received by the employee upon separation.
Lump Sum Leave Payment Debts: When a separation is later reversed, there is no authority
under 5 U.S.C. § 5551 for the reinstated employee to keep the lump sum annual leave payment
they may have received. The payroll office must collect the debt from the back pay award. The
annual leave will be restored to the employee. Annual leave that exceeds the annual leave
ceiling will be restored to a separate leave account pursuant to 5 CFR § 550.805(g).
2
NATIONAL FINANCE CEN TER CHECKLIST FOR BA CK PAY CASES
Below is the information/documentation required by National Finance Center to process
payments/adjustments agreed on in Back Pay Cases (settlement s, restorations) or as ordered by
the Merit Systems Protection Board, EEOC, and courts .
1. Initiate and submit AD -343 (Payroll/Action Request) with clear and concise information
describing what to do in accordance with decision.
2. The following information must be included on AD -343 for Restoration:
a. Employee name and social security number.
b. Detailed explanation of request.
c. Valid agency accounting.
d. Authorized signature (Table 63).
e. If interest is to be included.
f. Check mailing address.
g. Indicate if case is prior to conversion. Computations must be attached.
h. Indicate the amount of Severance and Lump Sum Annual Leave Payment to be
collected (if applicable).
Attachments to AD -343
1. Provide pay entitlement to incl ude Overtime, Night Differential, Shift Premium, Sunday
Premium, etc. with number of hours and dates for each entitlement (if applicable).
2. Copies of SF -50s (Personnel Actions) or list of salary adjustments/changes and amounts.
3. Outside earnings document ation statement from agency.
4. If employee received retirement annuity or unemployment, provide amount and address
to return monies.
5. Provide forms for FEGLI, FEHBA, or TSP deductions. (if applicable)
6. If employee was unable to work during any or part of t he period involved, certification of
the type of leave to be charged and number of hours.
7. If employee retires at end of Restoration Period, provide hours of Lump Sum Annual
Leave to be paid.
NOTE: If prior to conversion, agency must attach Computation Worksheet by Pay Period and
required data in 1 -7 above.
The following information must be included on AD -343 for Settlement Cases: (Lump Sum
Payment, Correction to Promotion, Wage Grade Increase, FLSA, etc.)
a. Must provide same data as in 2, a -g above.
b. Prior to conversion computation must be provided.
c. Lump Sum amount of Settlement, and if taxable or non -taxable.
If you have any questions or require clarification on the above, please contact NFC’s
Payroll/Pe rsonnel Operations at 504 -255-4630. | GILLINS_SABRA_V_CH_0353_14_0337_I_2_REMAND_ORDER_2006038.pdf | 2023-02-27 | null | CH-0353 | NP |
3,465 | https://www.mspb.gov/decisions/nonprecedential/HAYDEN_ANGELA_D_SF_0843_21_0521_I_1_FINAL_ORDER_2006072.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
ANGELA D. HAYDEN,
Appellant,
v.
OFFICE OF PERSONNEL
MANAGEMENT,
Agency.
DOCKET NUMBER
SF-0843 -21-0521 -I-1
DATE: February 27, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL1
Angela D. Hayden , Lancaster, California, pro se.
Alison Pastor , Washington, D.C., for the agency.
BEFORE
Cathy A. Harris, Vice Chair man
Raymond A. Limon, Member
Tristan L. Leavitt, Member
FINAL ORDER
¶1 The appellant has filed a petition for review of the initial decision,
which dismissed as untimely filed her appeal from a final decision issued by the
Office of Personnel Management (OPM) . Generally, we grant petitions such as
this one only in the following circumstances: the initial decision contains
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or 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
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 argu ment is available that,
despite the petitioner’s due diligence, w as not available when the record closed.
Title 5 of the Code of Federal Regulations, section 1201.115 ( 5 C.F.R.
§ 1201.115 ). After fully considering the filings in this appeal, we conclude that
the petitioner has not established any basis under section 1201.115 for granting
the petition for review. Therefore, we DENY the petition for review and
AFFIRM the initial decision, which is now the Boar d’s final decision. 5 C.F.R.
§ 1201.113 (b).
BACKGROUND
¶2 On May 1, 2021, OPM issued a final decision finding the appellant
ineligible for survivor or death benefit s under the Federal Employees’ Retirement
System (FERS) because of the death of her former spouse . Initial Appeal File
(IAF), Tab 1 at 10. OPM’s final decision notice advised that a Board appeal
could be filed contesting the disposition within 30 calendar days after the date of
the decision or 30 calendar days a fter receipt of the decision, whichever was later.
Id.; see 5 C.F.R. § 1201.22 (b).
¶3 On July 19, 2021 , the appellant filed a Board appeal challenging OPM’s
final decision.2 IAF, Tab 1. She indicated on her appeal form that she received
the final decision on June 28, 2021. Id. at 4. The administrative judge issued
orders informing the appellant that her appeal appeared to be untimely , appris ing
2 The appellant mailed her appeal , postmarked July 19, 2021, to OPM rather than the
Board, and OPM forwarded the appeal to the Board . IAF, Tab 1 at 1-2. The appeal
was docketed on August 23, 2021 , and the Board ackn owledged her filing date as
July 19, 2021. IAF, Tabs 1, 3 .
3
her of her burden to prove timeliness , and seeki ng clarification as to when
she received OPM’s final decision . IAF, Tab 3 at 1 -2, Tab 8 at 3 -4. He also
noted a discrepancy between the address listed for the appellant on OPM’s
decision and her Board appeal. IAF, Tab 8 at 4. Thus, he ordered h er to file
evidence and argument demonstrating that her appeal was timely filed or that
good cause existed for her delay in filing . IAF, Tab 3 at 2-4; Tab 8 at 3 -4.
Without addressing when she received OPM’s final decision, t he appellant
responded that she filed h er appeal late because her father died and she had issues
securing legal representation. IAF, Tab 4 at 3, Tab 9 at 2 .
¶4 The administrative judge issued an initial decision, without holding the
appellant’s requested hearing, dismissing the appeal as untimely filed .
IAF, Tab 1 at 3, Tab 12, Initial Decision (ID) at 1, 6. In so holding,
the administrative judge reasoned that she failed to prove by preponderant
evidence that she received OPM’s final decision more than 5 days after its
mailing. ID at 5. He also found that, absent any explanation that she pursued her
appeal rights with due diligence and there were circumstances beyond her control ,
she failed to establish good cause to waive the filing deadline. Id.
¶5 The appellant has filed a timely petit ion for review .3 Petition for Review
(PFR) File, Tabs 1, 3. The agency filed a nonsubstantiv e response . PFR File,
Tab 5.
DISCUSSION OF ARGUME NTS ON REVIEW
¶6 The parties do not dispute the administrative judge’s finding that the appeal
was untimely filed, and we decline to disturb this finding on review.4 PFR File,
3 The appellant incorrectly assert s on review that she untimely filed her petition for
review . Petition for Review ( PFR ) File, Tab 3 at 2. The initial decision indicated that
it would become final on November 17, 2021, unless she filed a petition for review by
that date. ID at 6. The appellant’s petition for review is postmarked October 30, 2021,
and the Board acknowledge d that as the filing date. PFR File, Tab 1 at 16 , Tab 2 at 1.
Thus, her petition for review is timely filed .
4
Tab 3 at 2-3, 9, 13; ID at 1, 6. The appellant asserts on review that she does not
believe the initial decision misapplied the law bu t that she would not know.
PFR File, Tab 3 at 3. Instead, she appears to argue that the administrative judge
erred in declining to find good cause for her untime ly filing . ID at 5-6; PFR File,
Tab 3 at 2-3, 9, 13 . For the reasons explained below, we disagree .
The administrative judge correctly found that the ap pellant untimely filed her
appeal.
¶7 An appellant bears the burden of proving by preponderant evidence that her
appeal has been timely filed. 5 C.F.R. § 1201.56 (b)(2)(i)(B). The Board’s
regulations provide that an appeal must be filed with the Board no later than
30 days after the effective date of the agency’s action, or 30 days after the date of
the appellant’s receipt of the agency decision, whichever is later. Pirkkala v.
Department o f Justice , 123 M.S.P.R. 288 , ¶ 13 (2016); 5 C.F.R. § 1201.22 (b)(1).
In the absence of evidence to the contrary, an appellant is presumed to have
received an agency ’s final decision 5 calendar days after the decision was issued.
Williamson v. U.S. Postal Service , 106 M.S.P.R. 502 , ¶ 7 (2007) . Here, t he
administrative judge found that the appellant failed to rebut the presumption that
she received the final decision letter 5 days after the agency placed it in the mail
stream. ID at 5. We agree.
¶8 The date of the letter advising the appellant of the agency’s decision finding
her ineligible for FERS survivor or death benefits was May 1 , 2021. IAF, Tab 1
at 10. She claimed on the appeal form that she received the decision letter on
June 28, 2021 , fifty -nine days after its issuance. IAF, Tab 1 at 4. On August 26
and September 28, 2021, the administrative judge ordered the appellant to file
4 Although the appellant claim s that she received documents after the due date because
of an incorrect mailing address, PFR File, Tab 1 at 9, 13, she is not addressing her
receipt of OPM’s final decision. Instead, it appears that she is conflating the
October 12, 2021 filing deadline in the administrative judge’s order dated
September 28, 2021, and initial decision dated October 13, 2021, that she received on
October 1 5, 2021 . Id. at 14; ID at 1; IAF, Tab 13 .
5
evidence and argument sho wing either that her appeal was timely filed or that
good cause existed for the delay. IAF, Tab s 3, 8. The administrative judge
acknowledged that she indicated that she received the final decision late,
there were discrepancies in her mailing address , and she addressed the good cause
for her delay. ID at 5; IAF, Tab 8 at 3 -4. However, he requested additional
details and evidence to prove when she received the decision. IAF, Tab 8 at 4.
The appellant, however, resubmitted her previous response that onl y addressed
the good cause for her delay and not when she received the final decision . IAF,
Tab 9. Therefore, the appellant cannot meet her burden on timeliness.
Hubbard v. Merit Systems Protection Board , 605 F.3d 1363 , 1366 (Fed. Cir.
2010) (finding that the pro se appellant’s failure to respond to an order “directing
her to ‘file evidence and argu ment demonstrating that the appeal was timely filed
or that good cause existed for the delay’ justified the administrative judge’s
conclusion that her appeal was untimely and should be dismissed ”). Thus, the
administrative judge properly presumed that she received the final decision on
May 6, 2021. ID at 5. Consequently, the deadline for filing this appeal was
June 7, 2021.5 See 5 C.F.R. § 1201.22 (b). The appellant filed her appeal on
July 19, 202 1, approximately 42 days late. IAF, Tab 1. Therefore, we discern no
basis to disturb the administrative judge’s finding that the appeal was untimely
filed.
The appellant has not established good cause for her untimeliness.
¶9 As the administrative judge correctly noted, an untimely appeal will be
dismissed as untimely filed unless good cause for the delay is shown, and the
appellant has the burden of establishing by preponderant evidence that h er appeal
was timel y filed or that good cause existed for the belated filing. 5 C.F.R.
§§ 1201.22 (c), 1201.56(2)(i)(B). To establish good cause for the untimely filing
5 The 30th day from May 6, 2021, was Saturday, June 5, 2021 . Thus, to be timely, the
appellant’s appeal had to be filed by Monday, June 7, 2021 . See 5 C.F.R. § 1201.23 .
6
of an appeal, a party must show that she exercised due diligence or ordinary
prudence under the particular circumstances of the case. Pirkkala , 123 M.S.P.R.
288, ¶ 13. To determine whether an appellant has shown good cause, the Board
will consider the length of the delay, the reasonableness of h er excuse and h er
showing of due diligence, whether she is proceeding pro se, and whether she has
presented evidence of th e existence of circumstances beyond h er control that
affected her ability to comply with the time limits or of unavoidable casualty or
misfortune which similarly shows a causal relationship to her inability to timely
file her petition. Moorman v. Departme nt of the Army , 68 M.S.P.R. 60 , 62-63
(1995), aff’d , 79 F.3d 1167 (Fed. Cir. 1996) (Table).
¶10 Applying the relevant factors set for th in Moorman , we find that the
appellant has not made a showing of good cause. Although the appellant was pro
se, a 42-day delay in filing is significant. Dow v. Department of Homeland
Security , 109 M.S.P.R. 633 , ¶ 8 (2008) (finding a pro se appellant’s delay of more
than 1 month significant). Further, we find that the appellant’ s inability to secure
an attorney is not good cause for an untimely filing . IAF, Tab 4 at 3, Tab 9 at 2;
see Houghton v. Department of the Army , 55 M.S.P.R. 682 , 684 (1992) (finding
the inability to secure legal counsel does not establish good cause for an untimely
filing) .
¶11 The appellant also reasserts on review that the death of her father and her
subsequent grief were factor s in her untimeliness and constitute good cause.
PFR File, Tab 4 at 1 -2; IAF, Tab , 4 at 3, Tab 9 at 2. Specifically on review
she claims that “[she] was a mental wreck . . . .[and] incapacitated for 6 weeks and
incapable of dealing with anything else. ” PFR File, Tab 3 at 3 . However,
she also states on review that her father died on July 16, 2021 , which was 39 days
after the filing deadline and just 3 days before she filed her appeal. PFR File,
Tab 3 at 13; IAF, Tab 1 at 2. While we are sympathetic towar d her situation,
her father’s death and her subsequent grief does not show how the appellant was
unable to meet the June 7, 2021 filing deadline. Thus, under the circumstances of
7
this case, we find that the appellant has failed to show that she exercised due
diligence or ordinary prudence that would justify waiving the filing deadline.
¶12 Accordingly, we deny the appellant’s petition for review and affirm the
initial decision, which dismissed her appeal as untimely filed without good cause
shown.
NOTICE OF AP PEAL 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 forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order 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.
8
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the 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. ____ , 137 S. Ct. 1975 (2017). If you have a
representative in this case, and your representative receives this decision befor e
9
you do, then you must file with the district court no later than 30 calendar days
after your representative receives this decision. If the action involves a claim of
discrimination based on race, color, religion, sex, national origin, or a disabling
condition, you may be entitled to representation by a court -appointed lawyer and
to waiver of any requirement of prepayment of fees, costs, or other security. See
42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative 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
10
(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 personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(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.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,” whi ch is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
7 The orig inal statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, perman ently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195,
132 Stat. 1510.
11
If you are interested in securing pro bono 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 | HAYDEN_ANGELA_D_SF_0843_21_0521_I_1_FINAL_ORDER_2006072.pdf | 2023-02-27 | null | SF-0843 | NP |
3,466 | https://www.mspb.gov/decisions/nonprecedential/DAQUINO_ANTHONY_J_DE_1221_12_0487_W_2_REMAND_ORDER_2006133.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
ANTHONY J. DAQUINO,
Appellant,
v.
DEPARTMENT OF VETERA NS
AFFAIRS,
Agency.
DOCKET NUMBER S
DE-1221 -12-0487 -W-2
DE-1221 -13-0087-W-2
DATE: February 27, 2023
THIS ORDER IS NONPRECEDENTIAL1
Eric L. Pines , Esquire, and Stephen Goldenzweig , Esquire , Houston, Texas,
for the appellant.
Mark S. Jaffe , Esquire, Albuquerque, New Mexico, for the appellant.
Steven Snortland , Esquire, Los A ngeles, California , for the agency.
Deanna Livingston , Albuquerque, New Mexico, for the agency.
BEFORE
Cathy A. Harris , Vice Chairman
Raymond A. Limon , Member
Tristan L. Leavitt , Member
Member Leavitt issues a separate dissenting opinion.
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
require d to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c).
2
REMAND ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
denied his request for corrective action based on alleged whistleblower reprisal .
For the reasons discussed below, we GRANT the appellant’s petition for rev iew.
We AFFIRM the in itial decision IN PART, VACATE the initial decision IN
PART and REMAND the case to the Board’s field office for further adjudication
in accordance with this Remand Order.
BACKGROUND
¶2 At all times relevant to this appeal, the appellant was employed as a nu rse
in the gastrointestinal (GI) studies section at an agency medical center in
Albuquerque, New Mexico. After joining the GI section in 2009, the appellant
became concerned about some practices within the section. The appellant
initially reported those concerns within his chain of command at the Albuquerque
facility, but after receiving what he considered inadequate responses to those
complaints, he forwarded his complaints regarding the GI section in Albuquerque
to the agency’s Chief Nu rse Executive. M SPB Docket No. DE-1221 -12-0487 -
W-2, Appeal File (0487W2 AF), Tab 105 at 145-46; January 13, 2014 Hearing
Transcript (HT) (1/13/14 HT) at 59-61 (testimony of the appellant).
¶3 In response to the appellant’s complaints, the Chief Nurse Executive sent
represe ntatives of the Veterans Integrated Service Network (VISN) to
Albuquerque. 1/13/14 HT at 65-66 (testimony of the appellant) . The appellant’s
supervisors understood that his complaints were the impetus for the VISN visit.
January 14, 2014 HT (1/14/14 HT) at 93 (testimony of the proposing official);
January 16, 2014 HT (1/16/14 HT) at 182-83 (testimony of the supervisor). In
December 2009, after the VISN visit to Albuquerque, the Chief Nurse Executive
sent the appellant a letter informing him that correct ive actions would be taken in
response to some of his complaints. 0487W2 AF, Tab 105 at 148. The appellant
testified that he felt his supervisor began scrutinizing and criticizing his
3
performance and giving him less favorable work assignments following t he VISN
visit. 1/13/14 HT at 66-69 (testimony of the appellant).
¶4 In February 2010, in response to an anonymous complaint to the agency’s
Inspector General (IG), the regional VISN manager requested that the Associate
Director of Patient Care from another agency medical center visit the
Albuquerque facility to conduct an inquiry. 0487W2 AF, Tab 105 at 151. The
appellant was one of more than 50 employees who provided information as part
of that inquiry, but the resulting report did not identify the appell ant, or any other
employee, by name as the source of any particular complaint. Id. at 151-65.
¶5 Also in February 2010, the appellant’s immediate supervisor observed that
he had violated privacy standards by leaving a computer unattended. She
testified that she warned the appellant that he would receive a written counseling
if he did the same thing again. 1/16 /14 HT at 152 (testimony of the supervisor).
¶6 The following month, a coworker of the appellant allegedly overheard a
conversation among a group o f GI section doctors and the appellant’s supervisor.
According to the coworker, one of the doctors2 asked, “Why don’t we get rid of
him?” The supervisor allegedly responded, “There is a thing called the
Whistleblower Act.”3 The coworker reported the inc ident in writing,
0487W2 AF, Tab 106 at 18, which report the appellant provided to two senior
officials at the Albuquerque facility, but no formal investigation of the alleged
conversation took place. 1/13/14 HT at 83 (testimony of the appellant); 1/14/14
HT at 10, 78 (testimony of the proposing official); 159 (testimony of the GI
section chief). The appellant’s union subsequently filed a grievance on his behalf
asserting that the agency failed to investigate the incident adequately. 1/13 /14
HT at 103 (t estimony of the appellant).
2 The coworker did not identify the person who made this statement, and he testified to
not knowing whether it was a doctor. 1/13/14 HT at 19 (testimony of the coworker).
3 The supervisor denies that this conversation ever took place. 1/16/14 HT at 161
(testimony of the supervisor).
4
¶7 A few weeks after the alleged conversation involving “the Whistleblower
Act,” the appellant sent an email to the Federal Bureau of Investigation (FBI)
titled “Safety Concerns Regarding Middle Eastern Origin MDs at the
[New Mex ico] VA Ho spital in Albuquerque.” 0487W2 AF, Tab 106 at 180-81.
In the email, the appellant described his history of reporting safety concerns in
the GI section before reporting the alleged conversation among the GI section
doctors and his supervisor. Id. at 180. The appellant then noted that there were
at least three GI doctors who were “of Middle Eastern origin,” and that one of
them was a citizen of Syria (which, he noted, was on the list of state sponsors of
terrorism). However, he acknowledged tha t there was no particular reason to
believe any of those three doctors was the person who asked “Why don’t we get
rid of him?” Id. The appellant asked the FBI to investigate who asked that
question, what was meant by it, and to whom it referred. Id. He indicated that he
had struggled with whether to report this matter to the FBI, but explained that
“the recent events at Fort Hood and the CIA compound in Afghanistan,” both of
which were carried out by “Middle East Origin DOCTORS” (capitalization in
origi nal)4 led him to report it. Id. at 180-81.
¶8 In March 2010, the supervisor observed that the appellant walked away
from a computer to respond quickly to another nurse’s call for help, but in doing
so he left unsecured a computer containing patient informa tion. The appellant
received a written counse ling for these actions on April 2, 2010, just over a
month after the incident. 0487W2 AF, Tab 104 at 5.
4 “Fort Hood” is an apparent reference to a November 2009 mass shooting carried out in
Texas by an Army psychiatrist. See History, Army major kills 13 people in F ort Hood
shooting spree , https://www.history.com/this -day-in-history/army -major -kills -13-
people -in-fort-hood -shooting -spree (last visited Feb. 27, 2023 ). “The CIA compound in
Afghanistan” is an apparent reference to a December 2009 suicide bombing carried out
by a Jordanian physician. See CNN, Jordanian doctor called double agent behind CIA
attack , http://www.cnn.com/2010/WORLD/meast/01/05/jordan.cia.bombing/index.html
(last visited Feb. 2 7, 2023 ).
5
¶9 During a staff meeting on April 15, 2010, the appellant made comments that
largely mirr ored the substan ce of his March 2010 email to the FBI, including a
reference to state -sponsored terrorism. While the substance of the appellant’s
comments at the staff meeting were not generally in dispute, there were
conflicting accounts of the manner in which he made t hem. One attendee
described the appellant’s comments as an “outburst,” 1/14/14 HT at 162
(testimony of the GI section chief), while the appellant claimed they were made
in a “passive informational tone,” 1/13/14 HT at 205 (testimony of the appellant).
Later the same day, the appellant’s supervisor gave him a letter recommending
that he contact the Employee Assistance Program (EAP) because of “deficiencies
in your performance and/or conduct.” 1/13/14 HT at 97 (testimony of the
appellant) ; 0487W2 AF, Tab 106 at 20. T he date on the letter was April 13, 2010,
2 days before the staff meeting. 0487W2 AF, Ta b 106 at 20.
¶10 On May 25, 2010, the appellant received a letter proposing to admonish him
for disresp ectful conduct during the April 15, 2010 staff meetin g. 0487W2 AF,
Tab 104 at 7-8. The appellant filed a written response to the proposal, with
attachments that included statements of support from coworkers. 0487W2 AF,
Tab 105 at 5-26. In a decision letter del ivered to the appellant on July 12, 2010,
the deciding official sustained the charge but mitigated the proposed
admonishment to a written counseling. Id. at 28-29.
¶11 The appellant testified that during the remainder of 2010 and early 2011, he
received increasingly unfavorable work assignments. 1/13 /14 HT at 127
(testimony o f the appellant). On September 15, 2011, the appellant’s counsel sent
a letter to agency counsel detailing what the appellant believed to be a pattern of
intimidation and r etaliation against him. 0487W2 AF, Tabs 102-03.
¶12 On Oct ober 31, 2011, the appellant had a conversation with a coworker (a
staff nurse) near the beginning of his shift. Although the exact words they used
are in dispute, both testified that the staff nurse asked the appellant why he
looked so upset, and the app ellant replied that he had been having thoughts about
6
harming or killing his supervisor and that he would be taking leav e starting the
following day to seek medical care. 1/13/14 HT at 131-32 (testi mony of the
appellant); 1/16/14 HT at 75-76, 84-85 (testi mony of the staff nurse).
¶13 The staff nurse did not immediately report the appellant’s comments to
management or law enforceme nt. She testified that she did not feel the appellant
was an immediate threat, although she did feel “his emotions were getting o ut of
control, and it needed to be addressed.” 1/16/14 HT at 79 (testimony of the staff
nurse). Within the hour, she asked a registered nurse whom she considered a
mentor, whose opinion she sought in part because he was a veteran like the
appellant, whet her she should take the appellant’s comment seriously and whether
she should report it. Id. at 96. The registered nurse advised her to report the
comment, although he agreed that it did not seem to represent an immediate
threat. Id. at 97. About an hou r later, she told a GI nurse that she was plannin g
to report the comment but did not think she needed to do so immediately. Id.
The GI nurse testified that she felt that anyone aware of the appellant’s comments
was obliged to report them, repeatedly urge d the staff nurse to do so, and
eventually, reported the comments herself. Id. at 117-18 (testimony of the
GI nurse).
¶14 The supervisor learned of the appellant’s comments from the GI nurse a few
hours after the appellant spoke to the staff nurse. 1/16/14 HT at 169 (testimony
of the supervisor). The supervisor’s understanding was that the appellant told the
staff nurse he had been thinking “a lot” about killing her.5 The supervisor
reported the m atter to agency police. 0487W2 AF, Tab 106 at 30. As the
appellant was leaving at the end of his regular shift that day, the supervisor gave
the appellant an EAP letter.6 1/16/14 HT at 172 (testimony of the supervisor).
5 The staff nurse does not recall the appellant saying he had been having those thoughts
“a lot.” 1/16/14 H T at 93 (testimony of the staff nurse).
6 The supervisor was instructed by human resources to give EAP letters to not only the
appellant, but also to the staff nurse, the registered nurse, and the GI nurse, the
7
She said he was not angry or disrespectful when she gave him the letter, and he
did not make her feel unsafe. Id. at 224.
¶15 The appellant did not report to work the following day because he had
appr oved leave. Effective November 1, 2011, the agency placed the appellant in
a paid nonduty status pending an investigation into the even ts of the pre vious day.
0487W2 AF, Tab 105 at 57. The agency also barred the appellant from entering
the grounds of the Albuquerque facility during his authorized absence, except as
necessary to seek medical care or under other specified conditions. Id. The
appella nt learned of his status when he teleph oned his supervisor on November 2,
2011. 1/13/14 HT at 138 (testimony of the appellant).
¶16 On November 22, 2011, the Director of the Albuquerque facility appointed
three employees to an Administrative Investigative Board (AIB) to ascertain the
veracity of reports that the appellant stated his intention to harm his supe rvisor.
0487W2 AF, Tab 131 at 1. The Director also asked the AIB “to report whether
other such statements or related statements have been made that w ould potentially
constitute a danger to employee safety.” Id. The Director also instructed the AIB
to address the following question: “Whether a nurse assigned to the GI clinic
represents a danger to the safety of the GI clinic supervisor or other staff .” Id.
The AIB was not specifically directed to recommend what discipline, if any, the
appellant should rec eive for his comments. January 15, 2014 HT (1/15/14 HT)
at 189 (tes timony of the AIB investigation chair).
¶17 During its investigation, the AIB rev iewed a number of documents and
interview ed 20 agency employees. 0487W2 AF, Tab 106 at 126. In its repo rt
dated March 19, 2012, the AIB made findings regarding the appel lant’s
conversations on October 31, 2011, with the staff nurse and a separate
convers ation later the same morning with the registered nurse to whom the
appellant allegedly stated that he had written the supervisor’s name on fruit,
colleagues who were aware of the appellant’ s comments earlier that day. 1/16/14 HT
at 172 (testimony of the supervisor).
8
which he then shot with a gun for target practice. Id. at 131. The AIB concluded,
inter alia, that the appel lant’s statements to the staff nurse and the registered
nurse on October 31, 2011, violated the agency’s policy against “[b]ehavior that
is hostile or of a volatile nature (e.g., verbal or physical aggression).” Id. at 134.
The AIB found that, although i t was not clear how credible a threat the appellant
actually was to the supervisor, “[s]ignificant administrative action” was
warranted for his comments. Id. at 136.7
¶18 On June 8, 2012, the agency proposed to remove the appellant based on the
AIB’s findin gs. 0487W2 AF, Tab 105 at 31. Specifically, the agency charged the
appellant with “Inappropriate behavior causing disruption in the workplace” for
his comments to the staff nurse about having thoughts of killing the supervisor.
Id. The agency also char ged the appellant with “Inappropriate behavior” for his
comments to the registered nurse about writing the supervisor’s name on frui t he
used for target practice. Id.
¶19 The appellant, through counsel, responded to the prop osed removal in
writing on June 22, 2012. 0487W2 AF, Tab 105 at 72-121. On July 27, 2012, the
appellant and his counsel met with the deciding official. During that meeting, the
appellant informed the deciding official that he was g oing to retire. 1/13/14 HT
at 146 (testimony of the ap pellant). The a ppellant retired effective July 31, 2012,
before any final action was taken regarding his proposed removal. MSPB Docket
No. DE-1221 -12-0487 -W-1, A ppeal File (0487W1 AF), Tab 13 at 26.
¶20 The appellant filed a complaint with the Office of Sp ecial Counsel (OSC)
alleging whistleblower reprisal in August 2010 (almost 2 years before his
proposed removal) . 0487W1 AF, Tab 21. He filed his first individual right of
action (IRA) appeal , MSPB Docket No. DE -1221 -12-0487 -W-1, with the Board in
7 The AIB faulted the agency for failing to respond more quickly to the appellant’s
comments and for having the supervisor approach the appellant alone to give him the
EAP letter later the same day. 0487W2 AF, Tab 106 at 134-35. The AIB also
concluded tha t agency managers in the GI section “may have contributed to the
atmosphere of tension and distrust” in the section. Id. at 136.
9
August 2012 (about a month after he retired) . 0487W1 AF, Tab 1. In his first
IRA appeal, the appellant raised the April 2010 written reprimand, the May 2010
letter of admonishment, and the June 2012 proposed removal as alleged
retaliatory personnel actions. 04 87W2 AF, Tab 23 at 5. The appellant also
alleged in his first IRA appeal that his retirement was involuntary, although it did
not appear that he had exhausted that alleged personnel action before OSC prior
to filing the first IRA appeal. 0487W1 AF, Tab 2 8 at 2. In November 2012, the
appellant filed a second IRA appeal , MSPB Docket No. DE -1221 -13-0087 -W-1,
in which he again alleged that his retirement was involuntary. MSPB Docket
No. DE-1221 -13-0087 -W-1, A ppeal File (0087W1 AF), Tab 1. He filed a second
OSC complaint on November 25, 2012, in which he specifically raised his alleged
involuntary retirement and the access restrictions. 0487W1 AF, Tab 23 at 37.
Because the appellant’s second OSC complaint was pending, the administrative
judge dismissed the secon d IRA appeal without prejudice to refiling.
0087 W1 AF, Tab 9, Initial Decision . The administrative judge simultaneously
dismissed the first IRA appeal without prejudice so that both appeals could be
heard together. 0487W1 AF, Ta b 28, Initial Decision . After both appeals were
timely refiled, t he administrative j udge joined the two IRA appeals. 0487W2 AF,
Tab 23.8
¶21 After holding a hearing, the administrative judge issued an initial decision
denying the appellant’s request for corr ective action. 0487W2 AF, Tab 133,
8 The Board’s field office also docketed a chapter 75 appeal , MSPB Docket
No. DE-0752 -14-0122 -I-1, to address the appellant’ s involuntary retirement claim.
However, it is undisputed that the appellant was appointed to his position under
38 U.S.C. § 7401 (1), and that he therefore does not have chapter 75 Board appeal
rights. Accordingly, the administrative judge dismissed the chapter 75 appeal for lack
of jurisdiction. 0487W2 AF, Tab 51. The appellant does not challenge that dismissal
on petition for review. The Clerk of the Board initially docketed a petition for r eview
regarding the chapter 75 appeal. However, the Clerk subsequently informed the parties
that it was administrative error to docket a petition for review in the chapter 75 appeal,
and that it was therefore rescinding the docketing of a petition for rev iew in MSPB
Docket No. DE -0752 -14-0122 -I-1. Petition for Review ( PFR ) File, Tab 3.
10
Initial Decision (ID). The administrative judge found that the appellant made
protected disclosures that were a contr ibuting factor in (1) the April 2010 written
counseling for leaving his c omputer unattended, (2) the M ay 2010 proposed
admonishment —later mitigated to a written counselin g—for his behavior at the
April 15, 2010 staff meeting, and (3) his proposed removal. ID at 16-22. The
administrative judge found, however, that the appellant failed to establish that hi s
retirement was involuntary and therefore did not constitute a personnel action. ID
at 19-21.9 Finally, the administrative judge found that the agency proved by clear
and convincing evidence that it would have issued the written counselings and the
prop osed removal in the absence of the appellant’s disclosures. ID at 22-29.
¶22 The appellant has filed a timely petition for review of the initial decision.
Petition for Review (PFR) File, Tab 1. The appellant challenges the
administrative judge’s findings and credibility determinations in connection with
the proposed removal. Id. at 9-26. He also argues that his retirement was
involuntary at least in part because the agency denied him due process. Id.
at 26-27. The agency has not responded to the petiti on for review.
DISCUSSION OF ARGUME NTS ON REVIEW
¶23 On petition for review, the appellant does not specifically challenge the
administrative judge’s findings regarding the written counselings or the
restrictions on entering the Albuquerque facility. We hav e reviewed those
9 The appellant also had claimed as personnel actions (1) the restrictions placed on his
access to the Albuquerque facility, and (2) a series of nonselections. The administrative
judge found that the access restrictions were subsumed by the appellant’s pla cement on
administrative leave (which he did not challenge before the Board) for the period prior
to his retirement, and that, to the extent they remained in effect after the appellant’s
retirement, they no longer constituted personnel actions. ID at 19. The appellant
withdrew his claim regarding the nonselections during the hearing. 1/13/14 HT
at 210-11 (testimony of the appellant). On petition for review, the appellant does not
challenge the administrative judge’s resolution of the access restrictions or
nonselections, and we see no reason to disturb them.
11
findings, and we find no basis to disturb them.10 For the reasons set forth below,
however, we find that this appeal should be remanded for further consideration
regarding the proposed remo val and the alleged involuntary retirement.
Further adjudication is required concerning the appellant’s claim that the agency
proposed his remova l in reprisal for his protected disclosures.
¶24 As our reviewing court has held, in determining whether the agency proved
by clear and convincing evidence that it would have taken the same actions
against the appellant, even absent any protected disclosures, the Board should
consider the following factors: (1) the strength of the agency’s evidence in
support of its action; (2) the existence and strength of any m otive to retaliate on
the part of agency officials involved in the decision; and (3) any evidence that the
agency takes similar actions against employees who are not whistleblowers but
who are otherwise similarly situated. Carr v. Social Security Administ ration ,
185 F.3d 1318 , 1323 (Fed. Cir. 1999); Schnell v. Department of the Army ,
114 M.S.P.R. 83, ¶ 23 (2010).11 Our reviewing court has stated that “[e]vidence
only clearly and convincingly supports a conclusion wh en it does so in the
aggregate considering all the pertinent 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). The court in Whitmore further
stated that “[i]t is error for the [Board] to not evaluate all the pertinent evidence
in determining whether an element of a claim or defense h as been proven
adequately.” Id. Building on this directive from the court in Whitmore , the
Board has held that a proper analysis of the clear and convincing evidence issue
requires that all of the evidence be weighed together —both the evidence that
10 Similarly, although the agency has not filed a cross petition for review, we have
reviewed the administrative judge’s finding that the appellant established a prima facie
case of whistleblower re prisal, and we see no reason to disturb that finding.
11 We have reviewed the relevant legislation enacted during the pendency of this appeal
and have concluded that it does not a ffect the outcome of the appeal, nor does it affect
the relevant holding s in the authorities cited herein.
12
suppo rts the agency’s case and the evidence that detracts from it. Shibuya v.
Department of Agriculture , 119 M.S.P.R. 537 , ¶ 37 (2013) (citing Whitmore ,
680 F.3d at 1368 ).
¶25 In assessing the strength of the agency’s evidence in support of the
proposed removal, the administrative judge cited the AIB, witness statements
provided to police, and the fact that the supervisor obtained a restraining order
against the appellant. ID at 23. He also fou nd that, because the agency did not
specifically charge the appellant with making a threat against the supervisor, it
did not need to prove that the appellant actually intended to threaten har m against
her. Id. The administrative judge dismissed as “not material” an assessment
perfor med by an agency psychiatrist 2 days after the October 31, 2011 comments.
ID at 24. In that assessment, the agency psychiatrist opined in part that the
appellan t “currently poses low risk of acting on his earlier state d [homicidal
ideation],” 0487W2 AF, Tab 60 at 63, but that “[t]his could change rapidly should
events change in a way to endanger his long term insurance/work at the
[agency],” id. The administrati ve judge also dismissed as “not material” the fact
that the agency allowed the appellant to work his entire shift and had the
supervisor interact directly with him on the day he made the comments. ID
at 24-25.
¶26 On review, the appellant argues that the ad ministrative judge failed to
acknowledge the distinction between present threats of violence and past thoughts
of violence. PFR File, Tab 1 at 10-13. He also argues that it was not his
statements themselves, but rather their embellished retelling by othe rs, that
caused any disruption in the workplace. Id. at 13-15.
¶27 We find that the administrative judge’s assessment of the first Carr factor
in connection with the proposed removal requires further analysis in order to
comply with Whitmore . In particular , the administrative judge should
acknowledge and weigh those factors that detract from the strength of the
agency’s evid ence, including those set forth below.
13
¶28 The proposing official testi fied that he did not read the AIB report or the
supporting evidenc e before proposing the appellant’s removal, and that the Chief
of Staff gave him an oral summary of the AIB’s recommendation, which he
recalled to be “that [the appellant] posed a threat to a coworker and supervisor.”
1/14/14 HT at 43-44 (testimony of the proposing official). He testi fied at one
point that he could not remember whether the Chief of Staff informed him that the
AIB had recommended the appellant’s termination, id. at 47, but he later testified
that he “agreed with this recommendation to term inate,” id. at 126. Under
questioning from the administrative judge, the proposing official testified that the
Chief of Staff informed him that the AIB had recommended “significant
administrative action” be taken in response to the appellant’s statements about
harming the supervisor, and he interpreted that phrase to mean termination.12 Id.
at 148. In explaining his decision to propose the appellant’s removal, the
proposing official described the appellant’s actions as “making a threat at the
workplace to kill a coworker.” Id. at 127. He testified that there are really no
options besides termination “[w]hen someone threatens to kill another person at
work.” Id. at 150. He was not aware of an agency doctor’s assessment 2 days
after the incident stating that the appellant posed a low risk of acting on his
thoughts. Id. at 47. The proposing offi cial also testified that he did not consider
any mitigating factors or any alternatives to removal before writing the proposal.
Id. at 47-48.
¶29 It appears that i n proposing the removal, the proposing official relied almost
entirely upon the AIB’s recommendation that “significant administrative action”
be taken against the appellant. While there is nothing inherently improper about
relying on such a recommendation , the fact that the proposing official proposed a
removal without reviewing the underlying evidence weighs against the agency in
12 The Chief of Staff testified that she also did not read the AIB report or the supporting
evidence, and that her understanding of the AIB’s findings came from her discussions
with the Director . 1/14/14 HT at 366-67, 370 (te stimony of the Chief of Staff).
14
analyzing the first Carr factor. See Shibuya , 119 M.S.P.R. 537 , ¶ 33 (citing the
proposing official’s failure to review the evidentiary package supporting a
proposed action as a factor weighing against the agency in analyzing the first
Carr factor ). The administrative judge should consider this fact in analyzing the
first Carr factor on remand.
¶30 The appellant cites Caronia v. Department of Justice , 78 M.S.P.R. 201
(1998), overruled on other grounds by Carter v. Department of Justice ,
88 M.S.P.R. 641, ¶ 25 n.5 (2001), and Brott v. General Services Administration ,
116 M.S.P.R. 410 , ¶ 13 n.* (2011), in support of his argument that the agency’s
evidence in support of the proposed r emoval was weak. PFR File, Tab 1 at 11-12.
The appellant in Caronia was on leave from work when he informed coworkers
who inquired about his health that, before he went on leave, he had thoug hts of
killing his supervisor. Caronia , 78 M.S.P.R. at 205. The agency removed the
appellant based on charges including a charge of conduct unbecoming a law
enforcement of ficer based on his comments to his coworkers while he was on
leave. Id. at 206. The agency did not specifically charge the appellant in that
case with making a threat. Id. at 206 n.1. In holding that the agency did not
prove the conduct unbecoming char ge, the Board in Caronia noted that the
appellant’s comments did not appear to cause anxiety and disruption for the
coworkers who heard them directly. Id. at 208. Rather, those coworkers
understood the appellant’s comments to be about thoughts he had had in the past
for which he had successfully sought treatment. Id. Those coworkers did not
understand the appellant’s comments to be a serious threat against his supervisor.
Id. The Board found that any disruption and anxiety in the workplace occurred
only after the appellant’s comments were relayed to another coworker, who then
embellished them in such a way that the appellant’s supervisor understood them
to be an actual threat. Id. at 208-09.
¶31 There are distinctions between the present case and Caroni a. For example,
the appellant in Caronia was already on leave at the time of his comments and
15
already had sought treatment for the thoughts he expressed to his coworkers,
whereas here the appellant was still in the workplace when he made his
comments. Ad ditionally, the statements made in Caronia were found to refer to
that appellant’s thoughts in the past, whereas here it is not clear whether the
appellant was still having thoughts about harming or killing the supervisor when
he made his comments. Nevert heless, we find that the parallels between Caronia
and the present case are sufficient to merit further consideration in assessing the
strength of the agency’s evidence in support of the proposed removal. In
assessing the applicability of Caronia to the f acts of the present case, the
administrative judge may need to make additional findings and credibility
determinations regarding the appellant’s comments, the effects those comments
had on those to whom they were made,13 and the extent to which those commen ts
may have been embellished by those who did not hear them directly.
¶32 Regarding the second Carr factor, the existence and strength of any motive
to retaliate, the administrative judge found that , although the appellant’s
disclosures did not result in for mal adverse consequences for any of the
management officials involved in the decision to propose his removal, those
officials were aware of, and resented, the appellant’s disclosures. ID at 25-27.
The administrative judge therefore found that those offic ials had a motive to
retaliate against the appellant, although he described that motive as “not as strong
as the appellant suggests.” Id. On review, the appellant argues that the
administrative judge failed to consider additional evidence bearing on the
strength of the moti ve to retaliate. PFR File, Tab 1 at 16-17. We find nothing in
the administrative judge’s analysis of the second Carr factor that itself would
13 The registered nurse, the individual to whom the appellant commented about putting
his supervisor’s name on a fruit, was approved as a witness but was withdrawn by the
agency at the hearing. 1/15/14 HT at 177 (statement of agency counsel). A different
employee who reported the comment about the fruit also testified that he did not think
the appellant would ever harm the supervisor. 1/14/14 HT at 223 (testimony of the
health technician) .
16
require remand. Nevertheless, because we are remanding the appeal for further
consideration of the other Carr factors, the administrative judge also may
supplement his analysis of the second Carr factor on remand to address the
appellant’s obj ections, should he choose to do so.
¶33 Regarding the third Carr factor —evidence that the agency takes sim ilar
actions against employees who are not whistleblowers but who are otherwise
similarly situated —the administrative judge found that “[t]he agency has removed
employees who made threats to kill others.” ID at 28. He acknowledged that the
evidence showe d the agency’s enforcement of its “zero tolerance” policy on
workplace violence was “uneven,” but found that the agency had consistently
removed employees who had threatened to kill another employee. ID at 29. On
petition for review, the appellant argues that the comparators cited by the
administrative judge were not similarly situated to him because of the nature of
their misconduct and other factors. PFR File, Tab 1 at 18-21.
¶34 To the extent the appellant argues that the cited comparators are not
similar ly situated because the agency used different labels in charging them, see
id. at 18-19, his argument is misplaced. See Aquino v. Department of Homeland
Security , 121 M.S.P.R. 35 , ¶ 30 (2014) (rejecting an agency’s assertion that the
third Carr factor rests solely on a comparison of the charges’ labels of
misconduct). The court in Whitmore warned that the “importance and utility [of
the third Carr factor] should not be marginalized by reading it so narrowly as to
eliminate it as a helpful analytical tool.” Whitmore, 680 F.3d at 1374 . Thus, the
administrative judge properly considered the agency’s proffered comparators in
assessing the third Carr factor. However, putting aside the labels assigned to
their respective conduct, the appellant correctly notes that there are differences in
the nature of the conduct alleged against him and that o f the cited comparators.
Specifically, one of the cited comparators was charged with telling coworkers,
inter alia, “I will shoot everybody if I need to and I will blame it on” Post
Traumatic Stress Disorder. 0487W2 AF, Tab 85 at 23. That comparator als o was
17
charged with disrespectful language toward coworkers and disrespectful
comments of a sexual nature. Id. at 23-24. The second cited comparator was
charged with making multiple statements in reference to his plan to kill a
particular veteran patient, including telling his supervisor that he had brought a
weapon to work on a day when he knew the veteran patient in quest ion had an
appointment. 0487W2 AF, Tab 86 at 61. Thus, the cited comparators’ conduct
appears to have involved more direct threats of violence against coworkers or
patients than the comments the appellant made in the present case. Rather than
acknowledging the differences between the appellant’s conduct and that of the
cited comparators, the administrative judge simply grouped them all together
under the category of “threats to kill others.” ID at 28. We find that Whitmore
requires a more nuanced view of the evidence. On remand, the administrative
judge should consider the differences between the appellant and the cited
comparators, and determine whether, and to what extent, those differences affect
the weigh t to be given to the comparator evidence.
¶35 Next, w e find that the relevant evidence regarding the proposed removal
must be re -weighed as a whole. We further find that the admini strative judge is
in the best position to do so because he is the one who heard the live testimony
and made credibility determinations.14 See Shibuya , 119 M.S.P.R. 537 , ¶ 37. In
conducting his analysis, the administrative judge should be mindful of the court’s
decision in Whitmore , 680 F.3d at 1368 -72, and consider all the relevant evidence
as a whole, including the evidence discussed above, supra ¶¶ 28-34, as well as
14 The appellant argues on revi ew that the administrative judge’s ability to make
credibility determinations was impaired due to the passage of more than 2 years
between the hearing dates and the issuance of the initial decision. PFR File, Tab 1
at 25. We see no reason to discount the administrative judge’s credibility
determinations on that basis alone. The administrative judge may have made his
credibility determinations during or shortly after the hearing. Even if he did not do so,
the administrative judge is still in a better pos ition to make those determinations than
the Board members, who did not have the opportunity to observe the witnesses.
Because we are remanding the appeal, we need not address the appellant’s other
challenges regarding credibility determinations at this st age.
18
any other evidence he finds relevant. See Shibuya , 119 M.S.P.R. 537 , ¶ 37.
Because the clear and convincing evidence determination may require the
administrative judge to make additional credibility and factual determinations, we
leave it to the administrative jud ge to determine in the first instance whether to
reconvene the hearing to take more testimony on this issue.
¶36 Our decision to remand this appeal should not be read as excusing or
minimizing the appellant’s conduct that gave rise to his proposed removal. Th e
comments attributed to the appellant are completely inappropriate and deserving
of significant disciplinary action. Nor should our decision to remand this appeal
be read as a suggestion that the appellant should ultimately prevail in this appeal.
We ar e remanding the appeal to the administrative judge because further legal
analysis is requ ired, not because we believe the outcome of the appeal should
necessarily change.
The administrative judge should reconsider the appellant’s involuntary retirement
claim in light of his f indings concerning the proposed removal.
¶37 The administrative judge found that the appellant failed to prove that his
retirement was involuntary. ID at 19-20. In doing so, the administrative judge
found that the appellant (1) was not coerced into retiring by intolerable working
conditions, and (2) did not retire after the agency threatened a removal action it
knew or should have known could not be substantiated. ID at 20. Although we
agree with the administrative judge’s analysis of the involuntary retirement claim,
we nevertheless remand that claim for possible reconsideration in light of the
administrative judge’s findings o n remand regarding the proposed removal.
¶38 An employee -initiated action, such as a retirement, is presumed to be
voluntary and therefore outside the Board’s jurisdiction. Vitale v. Department of
Veterans Affairs , 107 M.S.P.R. 501, ¶ 17 (2007). An involuntary retirement is
tantamount to a removal, however, and it therefore is subject to the Board’s
jurisdiction. Id. “[A]ll constructive adverse action claims . . . have two things in
common: (1) the employee lacked a meaningful choice i n the matter; and (2) it
19
was the agency’s wrongful actions that deprived the employee of that choice.”
Bean v. U.S. Postal Service , 120 M.S.P.R. 397, ¶ 8 (2013).
¶39 Intolerable working conditions may render an action involuntary if the
employee demonstrates that the agency engaged in a course of action that made
working conditions so difficult or unpleasant that a reasonable person in his
position would have felt compelled to retire. Vitale , 107 M.S.P.R. 501 , ¶ 20. We
agree with the administrative judge that t he appellant failed to establish that his
working conditions were intolerable. In addition, because the appellant was on
administr ative leave for approximately 9 months before he reti red, his working
conditions are not particularly relevant to the volunta riness of his retirement. See
Axsom v. Department of Veterans Affairs , 110 M.S.P.R. 605 , ¶ 16 (2009) (finding
that alleged inciden ts of harassment figured only tangentially into an appellant’s
decision to resign, if at all, when they preceded the decision to resign by several
months). Rather, the key factor in the appellant’s decision to retire was the
proposal to rem ove him, which came less than 2 months prior to his retirement.
¶40 To prove that a retirement in the face of a proposed adverse action was
involuntary, the appellant must show that the agency knew or should have known
that the action could not be substantiated, Schultz v. U.S. Navy , 810 F.2d 1133 ,
1136 -37 (Fed. Cir. 1987); Barthel v. Department of the Army , 38 M.S.P.R. 245,
251 (1988), or that the agency lacked an arguable basis for the proposed action,
see Garland v. Department of the Air Force, 44 M.S.P.R. 537 , 540 (1990). While
we recognize that there may be some weaknesses in the agency’s case for
removing the appellant , see supra ¶¶ 28-31, we find that the appellant failed to
establish that the agency knew or should have known that its proposed removal
could not be substantiated or that the agency lacked an arguable basis for
removin g the appellant in light of his comme nts.15
15 The appellant argues that his primary reason for retiring was the agency’s failure to
provide him with the full AIB investigative file, and that the agency’s failure to provide
that full file constituted denying him due process. PFR File, Tab 1 at 26-27. Pursuant
20
¶41 Nevertheless, further adjudication of the involuntary retirement claim may
be required on remand. Allegations of reprisal for whistleblowing, when made in
an IRA appeal in support of an assertion that an agency coerced an appellant’s
resignation o r retirement, should be considered for the limited purpose of
determining whether they support a finding of coercion. Heining v. General
Services Administration , 61 M.S.P.R. 539 , 551 (1994); Burke v. Department of
the Treasury , 53 M.S.P.R. 434 , 439 (1992). If the administrative judge
determines on remand that the agency failed to meet its burden by clear and
convincing evidence regarding the proposed removal, and that the proposed
removal was therefore retaliatory, he then should reconsider the voluntarine ss of
the appellant’s retirement in light of that finding. See Diefende rfer v. Department
of Transportation , 108 M.S.P.R. 6 51, ¶ 37 (2008) (remanding an IRA appeal for
further consideration of an alleged involuntary resignation when that claim was
intertwined with other claims that were being remanded).
The administrative j udge’s discovery rulings did not constitute an abuse of
discretion.
¶42 The appellant argues that the administrative judge erred in denying his
motion to compel documents and testimony relating to the VIS N investigation.
PFR File, Tab 1 at 25-26. The administrative judge found that the agency
properly withh eld the documents as privileged under 38 U.S.C. § 5705 , which
prohibits disclosure of agency records and documents “created . . . as part of a
medical quality -assurance program.” 38 U.S.C. § 5705 (a). 04 87W2 AF, Tab 52
to the U.S. Court of Appeals for the Federal Circuit’s decisions in Ward v. U.S. Postal
Service , 634 F.3d 1274 , 1279 -80 (Fed. Cir. 2011), and Stone v. Federal Deposit
Insurance Corporation , 179 F.3d 1368 , 1376 -77 (Fed. Cir. 1999), a deciding official
violates an employ ee’s due process rights when he relies upon new and material
ex parte information as a basis for his decisions on the merits of a proposed charge or
the penalty to be imposed. See Norris v. Securities & Exchange Commission , 675 F.3d
1349 , 1354 (Fed. Cir. 2012). Absent a final decision on the proposed removal, we are
unable to find a due process violation because we do not know what information t he
deciding official would have relied upon had he or she been given the opportunity to
render a final decision.
21
at 2-3. The administrative judge also denied the appellant’s request to depose
VISN officials, finding that, although the statutory privilege applies only to
“records and documents,” allowing the depositions would be contrary to the
public policy concerns that led to the creation of the privilege. Id. at 3. The
appellant sought reconsideration of the administrative judge’s ruling denying his
motion to compel, arguing that the documents in question do not fall under the
statutory privilege . 0487W2 AF, Tab 54. The administrative judge denied the
appellant’s motion for reconsideration, finding that the appellant was aware when
he filed his motion to compel that the agency w as asserting the statutory privilege
as the basis for not producing the requested materials and that he therefore should
have addressed the privilege issue in his initial motion. 0487W2 AF, Tab 111.
¶43 Under 5 C.F.R. § 1201.41 (b)(4), an administrative judge has broad
discretion in ruling on discovery matters and, absent an abuse of discretion, the
Board will not find reversible error in such rulings. Wagner v. Environmental
Protection Agency , 54 M.S.P.R. 447, 452 (1992), aff’d , 996 F.2d 1236 (Fed. Cir.
1993) (Table). The Board will not find reversible error in an administra tive
judge’s discovery rulings absent an abuse of discretion that prejudiced the
appellant’s substantive rights. See Jones v. Department of Health and Human
Services , 119 M.S.P.R. 355, ¶ 18, aff’d , 544 F. App’x 976 (Fed. Cir. 2013).
¶44 We find that the administrative judge acted within his discretion in denying
both the appellant’s motion to compel and his motion to reconsider. Based on the
submissions before him when he ruled on the motion, the administrative judge
properly determined that the documents in question were subject to the statutory
privilege and could therefore not be produced before the Board. Although the
appellant ac knowledged in his motion to compel that the agency had invoked the
privilege, he did not address the applicability of the privilege in his argument in
support of the motion. 0487W2 AF, Tab 43. Given the appellant’s failure to
raise arguments regarding th e privilege issue in his motion to compel, we find
that the administrative judge acted properly within his discretion in denying the
22
appellant an opportunity to raise those arguments for the first time on
reconsideration.
¶45 The appellant also asked the adm inistrative judge to draw an adverse
inference against the agency as to the contents of the documents withheld
pursuant to a claim of privilege. The administrative judge denied that request,
finding that the agency properly withheld those documents as pri vileged and
therefore the sanction of an adverse inference was not warranted. ID at 25 n.17.
We agree with the administrative judge and find no abuse of discretion in his
failure to draw an adverse inference.16
ORDER
¶46 For the reasons discussed abo ve, we remand this case to the field office for
further adjudication in accordance with this Remand Order.17
FOR THE BOARD:
Washington, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board
16 The primary remaining issue in this case is whether the agency proved by clear and
convincing evidence that it would have proposed the appe llant’s removal absent his
disclosures. The documents in question may have assisted the agency in meeting that
burden, and therefore the absence of those documents from the record due to a statutory
privileg e actually may disadvantage the agency.
17 The administrative judge should incorporate in the remand initial decision any of his
earlier findings that have not been disturbed by the Board.
DISSENTING OPINION O F TRISTAN L. LEAVITT
in
Anthony J. Daquino v. Department of Veterans Affairs
MSPB Docket Nos. DE -1221 -12-0487 -W-2, DE -1221 -13-0087 -W-2
¶1 For the reasons set forth below, I respectfully dissent from the majority
opinion in this case.
¶2 The majority makes the following findings of fact, which I discern no
reason to disturb. On October 31, 2011, the appellant told a coworker “that he had
been having thoughts about harming or killing his supervisor and that h e would be
taking leave starting the following day to seek medical care.” Remand Order (RO),
¶ 12. An Administrative Investigation Board (AIB) was convened in
November 2011. Id., ¶ 16. The AIB found the appellant made the aforementioned
statement and h ad also told a different coworker that “he had written the
supervisor’s name on fruit, which he then shot with a gun for target practice.” Id.,
¶ 17. The AIB concluded the appellant’s comments to his coworkers violated
agency policy and warranted signifi cant administrative action. Id. The agency
proposed the appellant’s removal based on two charges of Inappropriate Behavior —
one for his comments to the staff nurse about having thoughts of killing his
supervisor1 and one for his comments to the other cowo rker about writing his
supervisor’s name on fruit he then used for target practice. Id., ¶ 18. The appellant
subsequently retired and, in his appeals, he alleged the proposed removal and his
involuntary retirement were retaliatory based on protected whis tleblowing activity.
Id., ¶¶ 18-20.
¶3 The majority finds the administrative judge’s assessment of the first Carr
factor in connection with the proposed removal requires further analysis because
1 The agency asserted this inappropriate behavior caused disruption in the workplace.
2
the proposing official proposed a removal without reviewing the underlying
evidence, instead relying on an oral summary of the AIB’s recommendation,
including that the AIB concluded the appellant posed a threat to other employees
and recommended significant administrative action. Id., ¶¶ 27-29. The majority
also di scusses in detail Caronia v. Department of Justice , 78 M.S.P.R. 201
(1998), overruled on other grounds by Carter v. Department of Justice ,
88 M.S.P.R. 641 , ¶ 25 n.5 (June 25, 2001), and by Brott v. General Services
Administration , 116 M.S.P.R. 410 (2011), and remands the appeal for the
administrative judge to assess Caronia ’s applicability “to the facts of the present
case” and potentially m ake “additional findings and credibility determinations
regarding the appellant’s comments, the effects those comments had on those to
whom they were made, and the extent to which those comments may have been
embellished by those who did not hear them dire ctly.”2 RO, ¶¶ 30-31.
¶4 In my view, Caronia is inapplicable in the instant individual right of action
(IRA) appeal because it involved a removal action taken under chapter 75.
Unlike in chapter 75 appeals, the Board lacks the authority in an IRA appeal to
adjudicate the merits of the underlying personnel action; rather, the Board’s
jurisdiction is limited to adjudicating the whistleblower allegations. Lu v.
Department of Homeland Security , 122 M.S.P.R. 335, ¶ 7 (2015); see also
5 C.F.R. § 1209.2 (c) (in an IRA appeal that concerns an adverse action under
chapter 75, “the agency need not prove its charges”). The agency must show by
clear and convincing evidence that it would have taken the personnel action(s)
even absent the appellant’s protected activity, which differs from other Board
2 In his petition for revie w, the appellant cited Caronia in support of his assertions that:
(1) the agency “did not meet its burden of proof that Appellant had made a threat;”
(2) the alleged threat needs to be analyzed with regard to whether the thoughts were
present or past thou ghts; and (3) the administrative judge should have analyzed whether
the appellant’s comments “were the actual cause of the disruption in the workplace or
whether the disruption was the result of embellishments on the Appellant’s comments
by other coworkers and managers.” P etition for Review File, Tab 1 at 9-15.
3
proceedings where agencies m ust prove the merits of their actions by
preponderant evidence. Marren v. Department of Justice , 51 M.S.P.R. 632, 641
(1991), aff’d , 980 F.2d 745 (Fed. Cir. 1992) (Table), and modified on other
grounds by Robinson v. U.S. Postal Service , 63 M.S.P.R. 307, 323 n.13 (1994).
¶5 The Carr factors are not discrete elements which the agency must prove by
clear and convincing evidence. See Phillips v. Department of Transpo rtation ,
113 M.S.P.R. 73, ¶ 15 (2010). While the existence or lack of evidence supporting
a charge is relevant to the agency’ s overall burden on the clear and convincing
evidence issue, the Board does not review the reasonableness of the penalty as it
would in a chapter 75 appeal. Aquino v. Department of Homeland Security ,
121 M.S.P.R. 35, ¶ 29 (2014); Shibuya v. Department of Agriculture ,
119 M.S.P.R. 537, ¶ 36 (2013); Weaver v. Department of Agriculture ,
55 M.S.P.R. 569, 575 (1992) (the appropriateness of the penalty imposed is not at
issue in an IRA appeal); 5 C.F.R. § 1209.2 (c) (“the Boa rd may consider the
strength of the agency’s evidence in support of its adverse action in determining
whether the agency has demonstrated by clear and convincing evidence that it
would have taken the same personnel action in the absence of the whistleblowi ng
or other protected activity”). “[T]he relevant inquiry is not whether the appellant
committed any actual misconduct, but whether the agency had strong evidence in
support of its personnel action.” Phillips , 113 M.S.P.R. 73, ¶ 15. Thus, even
where an appellant is later found not to have engaged in misconduct as charged,
the agency may nonetheless have had a legitimate basis for imposing a penalty at
the time it acted. See id. ; cf. Redschlag v. Department of the Army ,
89 M.S.P.R. 589, ¶ 69 (2001) (“the proper perspective when weighing the gravity
of the misconduct against the motive to retaliate is to view the gravity of the
misconduct as it appeared to the deciding official at the time he took the removal
action”).
¶6 The fact that the proposing official only relied on an oral summary of the
AIB investigation, without reviewing the actual report himself, is not sufficient to
4
find the agency did not have strong reasons for its action.3 Notably, the
information the proposing official received and relied on appears largely
consistent with what is contained in the AIB report. The AIB investigation noted
the appellant admitted he “fantasized about killing” his supervisor, which he
disclosed to both his coworker and a police officer. MSPB Docket No. DE -1221 -
12-0487 -W-2, Appeal File, Tab 106 at 134. The AIB concluded :
Mr. Daquino has violated a basic tenet of professional conduct by
verbalizing such physically threatening statements towards his nurse
manager . . . returning Mr. Daquino to GI would not be in th e best
interests of the staff or patients of this clinical area. While it is
unclear how credibly dangerous Mr. Daquino might be towards his
manager, the fact is that no level of threat is to be tolerated and must
be assumed to be actionable. Significant administrative action is
warranted.
Id. at 137. I would find the agency has presented strong evidence supporting its
decision to propose the appellant’s removal for inappropriate behavior. I believe
the appellant’s conduct, which is not substantially in dispute, was objectively
inappropriate, as charged, regardless of any mitigating factors or the presence or
absence of an actual threat.
¶7 Regarding the third Carr factor, the majority suggests that the
administrative judge did not properly assess whether proffered comparators were
similarly situated to the appellant. RO, ¶¶ 33-34. The majority remands for the
administrative judge to “consider the differences between the appellant and the
cited comparators, and determine whether, and to what extent, thos e differences
affect the weight to be given to the comparator evidence.” Id. In this case, the
relevant question is whether the agency presented any evidence that it proposed
3 Indeed, in Shibuya , 119 M.S.P.R. 537, ¶ 33, which the majority cites, the proposing
official’s failure to review the evidentiary package was just one of many factors
supporting a finding that the agency failed to meet its clear and convincing burden. For
instance, the proposing official also failed to order a customary case analysis and the
deciding official lacked understanding of the evidence supporting the demotion at
issue. Id.
5
removal against similarly situated employees who did not engage in protected
activity. I see no error in the administrative judge’s “group[ing]” the proffered
comparators “all together under the category of ‘threats to kill others,’” as it
relates to proposed discipline. See id. , ¶ 34. The agency’s charges are based on
the appella nt’s statements concerning killing his supervisor, which I would find
sufficiently similar to the proffered comparators for purposes of finding the
agency has shown it has proposed removal in cases of similarly situated
non-whistleblowers.4
¶8 The majority also “agree[s] with the administrative judge’s analysis of the
involuntary retirement claim” and his finding “that the appellant failed to
establish that his working conditions were intolerable,” ultimately concluding
“the appellant failed to establish tha t the agency knew or should have known that
its proposed removal could not be substantiated or that the agency lacked an
arguable basis for removing the appellant in light of his comments.” RO,
¶¶ 37-40. I agree with the majority in this regard.
¶9 The ma jority goes on to remand the appellant’s involuntary retirement claim
so that the administrative judge may reconsider the voluntariness of the
appellant’s retirement in the event he finds, on remand, that the proposed removal
was retaliatory. Id., ¶ 41. For the reasons previously stated, I do not agree with
remanding this appeal and would instead affirm the initial decision. However, as
the appeal is being remanded, I note that I would not require, on remand,
additional analysis concerning the appellant’ s involuntary retirement claim. The
mere allegation that one was retaliated against for whistleblower activities is
insufficient to demonstrate that working conditions were made so intolerable by
the alleged retaliation as to render a retirement involunta ry by reason of coercion.
4 To the extent that none of the proffered comparators are similarly situated, given the
agency’s strong evidence in support of proposing removal —namely, the appellant’s
undisputed, objectively inappropriate comments —I would alternatively find the third
Carr factor neutral and that the agency met its overall clear and convincing burden.
6
See Burke v. Department of the Treasury , 53 M.S.P.R. 434, 439 (1992). Evidence
of retaliation goes to the ultimate question of coercion —whether under all of the
circumstances working conditions were made so difficult by the agency that a
reasonable person in the employee ’s position would have felt compelled to retire.
See Markon v. Department of State , 71 M.S.P.R. 574, 577 -80 (1996) (the fact that
the appellant made a prima facie case of age discrimination was not “in -and-of-
itself” relevant to the appellant’s burden of proof on the voluntariness issue); see
also Axsom v. Department of Veterans Affairs , 110 M.S.P.R. 605, ¶ 16 (2009)
(considering how the appellant’s claims of harassment, retaliation, and
discrimination figured into his decision to resign, including that he “had the
option to stand and fight the alle ged discrimination, harassment, and retaliation
rather than resign”). Accordingly, a finding that the proposed removal was
retaliatory would not require revising the aforementioned bases for finding the
agency did not coerce the appellant to retire.
/s/
Tristan L. Leavitt
Member | DAQUINO_ANTHONY_J_DE_1221_12_0487_W_2_REMAND_ORDER_2006133.pdf | 2023-02-27 | null | S | NP |
3,467 | https://www.mspb.gov/decisions/nonprecedential/AVERY_CECIL_DC_3330_17_0206_I_1_FINAL_ORDER_2006171.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
CECIL AVERY,
Appellant,
v.
DEPARTMENT OF THE AR MY,
Agency.
DOCKET NUMBER
DC-3330 -17-0206 -I-1
DATE: February 27, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL1
Cecil Avery , Union, Kentucky, pro se.
Judith A. Fishel , APO, AE, for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
Tristan L. Leavitt, Member
FINAL ORDER
¶1 The appellant has filed a petition for r eview 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 contain s erroneous
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c).
2
findings of material fact; the initial decision is based on an erroneous
interpretation of statute or regulation or the erroneous application of the law to
the facts of the case; the administrative judge’s rulings during either the course of
the appeal or the initial decision were not consistent with required procedures or
involved an abuse of discretion, and the resulting error affected the outcome of
the case; or new and material evidence or legal argument is available that, despite
the petiti oner’s due diligence, was not available when the record closed. Title 5
of the Code 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 t o provide the appellant with notic e of the elements of a
right -to-compete claim and clarify that we also consider his claim as a
right -to-compete claim , we AFFIRM the initial decision.
BACKGROUND
¶2 The appellant applied and was tentatively selected for the Information
Technology ( IT) Specialist ( INFOSEC), GS -2210 -12, position under vacancy
announcement number EUJD163424411675 519. Initial Appeal File (IAF) , Tab 6
at 33 -34, 56-61. The agency subsequently withdrew its tentative offer on the
basis that the appellant had retired from Federal service and that it did not intend
to pursue hiring him as a reemployed annuitant .2 Id. at 25. As support, t he
agency provided a copy of the Department of Defense (DOD) Instruction , which
stated that reemployed annuitants should be hired “ to meet critical mission
needs ,” such as when positions are hard to fill. Id. at 62-64.
¶3 The appellant filed a VEOA complaint with the Department of Labor
(DOL) , but DOL notified him that it did not find evidence that the agency had
2 A reemployed annuitant is a person who is receiving a retirement annuity and, at the
same time, is earning a paycheck as a Federal employee.
3
violated his rights. IAF, Tab 6 at 1 4-17, Tab 10 at 24 -25. He subsequently filed
this timely Board appeal and did not request a hearing . IAF, Tab 1. On the basis
of the written record, the administrative judge issued an initial decision denying
the appellant’s request for corrective actio n. IAF, Tab 17, Initial Decision (ID) .3
¶4 The appellant has filed a petition for review, the agency has responded in
opposition to the appellant’s petition, and the appellant has replied. Petition for
Review (PFR) File, Tabs 1, 3 -4.4
DISCUSSION OF ARGUME NTS ON REVIEW
¶5 The appellant argues that the agency should not have withdrawn its offer as
he was willing to forfeit his disability annuity to accept the position and waive
simultaneous compensation as an annuitant and as an employee .5 PFR File, Tab 1
3 Neither the administrative judge nor the agency provide d the appellant notice of the
elements of a right -to-compete claim and instead provided only the notice for a
veterans’ preference claim. ID at 2; IAF, Tab 3 at 2 -3, Tab 6 at 7, Tab 8 at 2, Tab 9
at 9, Tabs 12, 15. This error is not prejudicial, however, because the appellant has
established jurisdiction over his claim , and the record is sufficiently developed such
that there is no genuine dispute of material fact and the agency must prevail as a matter
of law. See Panter v. Department of the Air Force , 22 M.S.P.R. 281 , 282 (1984)
(finding that an adjudicatory error that is not prejudicial to a party’s substantive rights
provides no basis for reversing an initial decision).
4 Citing the Board’s regulation regarding the 10 -day timeframe for filing a reply to a
response to a petition for review , the appellant asserts that the agency’s response to his
petition for review is untimely. PFR File, Tab 4 at 4; see 5 C.F.R. § 1201.114 (e).
However, the agency timely filed its response on May 8, 2017, within the 25 -day
timeframe for doing so. PFR File, Tabs 1, 3; see 5 C.F.R. § 1201.114 (e).
5 On review, the appellant has attached the DOD Instruction entitled “Policy guidance
on the reemployment of civilian retirees under the National Defense Authorizat ion Act
for Fiscal Year 2010,” w hich was dated Friday, December 9, 2011. PFR File, Tab 1
at 6-9. In his reply, he has submitted evidence regarding a portable building that he
could not afford to move due to his financial state as a result of the agency r escinding
its offer. PFR File, Tab 4 at 8 -9. The Board generally will not consider evidence
submitted for the first time on review absent a showing that the documents and the
information contained in the documents were unavailable before the record close d
below despite due diligence and that the evidence contained therein is of sufficient
weight to warrant an outcome different from that of the initial decision. See Cleaton v.
Department of Justice , 122 M.S.P.R. 296 , ¶ 7 (2015), aff’d , 839 F.3d 1126 (Fed. Cir.
2016). We do not consider these documents as the Instruction and the information
4
at 4-5. He further states that, even if the Board finds that he was seeking an
appointment as a reemployed annuitant, the agency should have hired him
through the reemployed annuitant program for positions that are hard to fill . Id.
at 5.
¶6 The appellant a sserted that the agency denied him the opportunity to
compete for the IT Specialist (INFOSEC) position as a rehired annuitant .6 IAF,
Tab 1 at 4. To establish Board jur isdiction over a right -to-compete claim under
5 U.S.C. § 3330a (a)(1)(B), an appellant must (1) show that he exhausted his DOL
remedy and (2) make nonfrivolous allegations that (i) he is a veteran w ithin the
meaning of 5 U.S. C. § 3304 (f)(1), (ii) the actions at issue took place on or after
the December 10, 2004 enactment date of the Veterans’ Benefits Improvement
Act of 2004, and (iii) the agency denied him the opportunity to compete under
merit promotion procedures for a vaca nt position for which the agency accepted
applications from individuals outside its own workf orce in violation of 5 U.S.C.
§ 3304 (f)(1). 5 U.S.C. § 3330a (a)(1)(B); Becker v. Department of Veterans
Affairs , 115 M.S.P.R. 409 , ¶ 5 (2010) ; 5 C.F.R. § 335.106 . It is undisputed that
the appellant exhausted his remedy with DOL and that the action at issue took
place after December 10, 2004. IAF, Tab 12 at 2. We also find that the appellant
is a veteran within the meaning of 5 U.S.C. § 3304 (f)(1) as he retired from the
U.S. Air Force after over 20 years of service. IAF, Tab 6 at 82. Further, the
appellant has nonfrivo lously alleged that the agency denied him the opportunity
to compete for a vacant position for which it accepted applications from
individuals outside its own workf orce as it advertised a position for status
candidates (merit promotion and VEOA eligible) , accepted outside applicants,
contained therein is not new , and the information regarding the building is immaterial
to the issue of whether the agency properly considered the appellant’s application.
6 We clarify t hat we consider the appellant’s claim that the agency violated his right
under 5 U.S.C. § 3304 (f)(1) to comp ete for the position . 5 U.S. C. § 3330a (a)(1)(B); see
Becker v. Department of Veterans Affairs , 115 M.S.P.R. 409 , ¶ 5 (2010) ; 5 C.F.R.
§ 335.106 .
5
and did not ultimately select him for the position . Id. at 40-44, 56-61; see
Montgomery v. Department of Health and Human Services , 123 M.S.P.R. 216 , ¶ 5
(2016) (finding that the Board had jurisdictio n over the appellant’s
right -to-compete claim).
¶7 Nevertheless, although we find jurisdiction over the appellant’s claim , we
find that he is not entitled to corrective action as there is no genuine dispute of
material fact and the agency must prevail as a matter of law.7 5 U.S.C.
§§ 3330a -3330c; see Haasz v. Department of Veterans Affairs , 108 M.S.P.R. 349 ,
¶ 9 (2008) (stating that the Board may decide a VEOA appeal on the merits,
without a hearing, when there is no genuine dispute of material fact and one party
must prevail as a matter of law) .8 Here, the undisputed evidence establishes that
the agency accepted the appellant’s application, reviewed it, initially determined
he was qualified, and even tent atively offered him the position. IAF, Tab 6
at 33-35. Under these circumstances, we must find that the agency considered the
appellant’s application sufficiently such that it afforded him the opportunity to
compete for the position.9 See Downs v. Depar tment of Veterans Affairs ,
110 M.S.P.R. 139 , ¶ 13 (2008) (finding that the agency allowed the appellant the
7 A factual dispute is “material” if, in light of the governing law, its resolution could
affect the outcome. Waters -Lindo v. Department of Defense , 112 M.S.P.R. 1 , ¶ 5
(2009). A factual dispute is “genuine” when there is sufficient evidence favoring the
party seeking an evidentiary hearin g for the administrative judge to rule in favor of that
party should that party’ s evidence be credited. Id.
8 In this case, the appellant did not request a hearing. IAF, Tab 1. Thus, regardless of
the Board’s authority, the case would have been disposed of without a hearing.
9 The Board has held that the right to compete does not preclude an agency from
eliminating a veteran or a preference eligible from further consideration for a position
based on his qualifications for the position. See, e.g. , Harellson v. U.S. Postal Service ,
113 M.S.P.R. 534 , ¶ 11 (2010) (finding that the agency could properly consider
problems with the appellant’s past performance in determining that he was no t qualified
for the vacant position). Thus, to the extent that the agency asserted that the appellant
was not qualified for the position on the basis of his status as an annuitant, we find that
it was entitled to exclude him on this basis.
6
opportunity to compete for the position at issue when he was interviewed for the
position and his name was forwarded to the selecting official).
¶8 Further, we find no merit to the appellant’s argument that the agency was
required to seek an exception to its general hiring proces s by using it s authority to
hire him as a reemployed annuitant. A gencies are permitted to fill vacancies by
any authorized method. Montgomery , 123 M.S.P.R. 216, ¶ 6. The Board will
review the method used by an agency to fill a vacancy to determine if it is
authorized wh en the use of an unauthorized method could have denied covered
individuals the right to compete . Id. We find that the agency’s refusal to make a
special exception to its generally and undisputedly authorized procedures does
not constitute such an unautho rized method .
¶9 We conclude that the appellant has failed to demonstrate a genuine dispute
of material fact as to whether the agency violated his right to compete because the
agency properly considered his application and did not use an unauthorized
method of hiring . Accordingly, we deny his request for corrective action.10 See
Downs , 110 M.S.P.R. 139, ¶¶ 13-14 (denying the appellant’s request for
corrective action on the basis that there was no genuine dispute of material fact
because he was clearly afforded the right to compete in that his name was among
those forwarded to the selecting official for consideration).
NOTICE OF APPEAL RIG HTS11
The initial decision, as supplemented by this Final Order, constitutes the
Board’s final decision i n this matter. 5 C.F.R. § 1201.113 . You may obtain
review of this final decision. 5 U.S.C. § 7703 (a)(1). By statute, the na ture of
10 We find no reason to disturb the administrative judge’s finding that the agency did
not improperly pass over the appellant’s application. ID at 5 -6; see 5 U.S.C. § 3318 (a);
Goodin v. Department of the Army , 123 M.S.P.R. 316 , ¶ 3 n.1 (2016) (describing the
passover proc ess).
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.
7
your claims determines the time limit for seeking such review and the appropriate
forum with which to file. 5 U.S.C. § 7703 (b). Although we offer the following
summary of available appeal rights, the Merit Systems Protection Board does not
provide legal advice on which option is most appropriate for your situation and
the rights described below do not represent a statement of how courts will rule
regarding which cases fall within their jur isdiction. If you wish to seek review of
this final decision, you should immediately review the law applicable to your
claims and carefully follow all filing time limits and requirements. Failure to file
within the applicable time limit may result in the dismissal of your case by your
chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for th e Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
8
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 1 0, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judici al review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decisi on. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. ____ , 137 S. Ct. 1975 (2017). If you have a
representative in this case, and your representative receives this decision before
you do, then you must file with the district court no later than 30 calendar days
after your representative receives this decision. If the action involves a claim of
discrimination based on race, color, religion, sex, national origin, or a disabling
condition, you may be entitled to representation by a court ‑appointed lawyer and
to waiver of any requirement of prepayment of fees, costs, or other security. See
42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
9
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial revi ew pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8 ) or
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8 ), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
10
competent jurisdiction.12 The court of appeals must receive your petition f or
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal 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.
12 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All C ircuit 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/CourtWebsit es.aspx .
FOR THE BOARD:
Washington, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board | AVERY_CECIL_DC_3330_17_0206_I_1_FINAL_ORDER_2006171.pdf | 2023-02-27 | null | DC-3330 | NP |
3,468 | https://www.mspb.gov/decisions/nonprecedential/HAGAN_MARVIN_DC_0752_16_0705_I_1_FINAL_ORDER_2006224.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
MARVIN HAGAN,
Appellant,
v.
DEPARTMENT OF THE AR MY,
Agency.
DOCKET NUMBER
DC-0752 -16-0705 -I-1
DATE: February 27, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL1
Marvin Hagan , APO, pro se.
Kim E. Dixon , Esquire, Scott A ir Force Base , Illinois, for the agency.
BEFORE
Cathy A. Harris , Vice Chairman
Raymond A. Limon , Member
Tristan L. Leavitt , Member
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 in itial 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 con sistent 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 petition er 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 analyze the appellant’s discrimination claim under the
appropria te standard, we AFFIRM the initial decision.
BACKGROUND
¶2 The appellant was employed as a Supervisory Traffic Management
Specialist, GS -2130 -12, with the agency’s Transportation Brigade in Izmir,
Turkey. Initial Appeal File (IAF), Tab 10 at 14. On February 8, 2016, the
agency proposed the appellant’s removal on one charge of lack of candor (three
specifications). IAF, Tab 8 at 43 -46. The agency alleged that when the appellant
initially pursued his position, he completed the Optional Form (OF) 306,
Declaration for Federal Employment and answered question 12 untruthfully ,
which read:
During the last 5 years, have you been fired from any job for any
reason, did you quit after being told that you would be fired, did you
leave any job by mutual agreement becau se of specific problems, or
were you debarred from Federal employment by the Office of
Personnel Management or any other Federal agency? If “Yes,” use
item 16 to provide the date, an explanation of the problem, reason for
leaving and the employer’s name a nd address [.]
Id. at 43. Specification one alle ged that the appellant marked the “no” box in
response to question 12, but was previously terminated from a probationary
3
appointment at the U.S. Army Garrison Dugway, at Dugway Proving Ground,
Utah, on March 14, 2012. Id. at 43 -44. Specification two alleged that despite
answering “no” to question 12, he had an additional termination from a position
at the Pensacola Navy Air Station in May 2010. Id. at 44. Specification three
alleged that , on his Standard Form 144, compl eted at the same time as the
OF-306, the appellant certified that “[t]he prior Federal civilian and uniformed
service listed on my application/résumé and listed above constitutes my entire
record of Federal emp loyment,” and that he failed to list his prior Federal service
with the agency at the Dugway Proving Ground between November 7, 2011 , and
March 14, 2012. Id.
¶3 In his response to the proposal, the appellant explained that he answered
“no” to the question because of a previous conversation he had with a human
resources representative at the Dugway Proving Ground, wherein the
representative told the appellant that the termination d id not constitute a firing,
and therefore, the appellant believed that he did not need to include it on the
OF-306. IAF, Tab 8 at 5. To support this expla nation, the appellant provided the
deciding official with a February 2016 email between himself and the human
resources representative wherein the two discussed the nature of a p robationary
termination and how it relate s to an application for unemployment compensation .
Id. at 7 -8; IAF, Tab 10 at 87 -88. To verify the email, the deciding official
contacted the human resources representative to inquire about the alleged
conversatio n. IAF, Tab 10 at 73.
¶4 The deciding official provided the appellant with a notice of consideration
of additional material, which included the February 2016 email from the human
resources representative and a previous OF -306 that the appellant completed i n
2011, after his termination from the Pensacola Navy Air Station in 2010, on
which he marked “yes” to question 12. Id. at 73 -76. The appellant responded,
reiterating his claim that the human resources representative told him that his
termination was not considered a firing, but acknowledging that the conversation
4
also included a discussion regarding applications for unemployment
compensation. Id. at 55 -56. In his response, he also challenged the human
resources representative’s memory of the conversation. Id. at 56. The appellant
also submitted an additional email from the human resources representative ,
written after the deci ding official’s notice of consideration of additional material ,
wherein the human resources representative confirms that his February 2016
email was intended to communicate his understanding of the rules applicable to
applications for unemployment compensa tion. Id. at 71-72.
¶5 Approximately one week later, the deciding official issued a second notice
of consideration of additional mate rial, including another OF -306 for a position at
Guantanamo Bay, Cuba , for which the appellant applied after the probationa ry
termination from the Dugway Proving Ground but before completing the OF-306
at issue in this appeal . Id. at 49 -52. The form showed that the appellant
answered “yes” to question 12 , indicating that he had been fired from a position.
Id. at 51. The ap pellant responded to the notice and claimed that he marked “yes”
on the Guantanamo Bay OF-306 “to keep things simple an d address questions on
[the] OF -306 in more detail by calling the hiring official .” Id. at 34. He also
stated that despite his earlier conversation with the human resources
representative from the Dugway Proving Ground , he “did not feel [he] had
sufficient knowledge ” regarding the differences between a firing and a separation
during a probationary period. Id. The appellant also stated that it was only after
his time at Guantanamo Bay that he gained the information and experience that
led him to answer “no” on the OF-306 at issue in this appeal . Id.
¶6 On June 13, 2016, the deciding official issued a decision finding that the
agency prov ed specifications one and two but dismissing specification three as
unsupported by the evidence.2 IAF, Tab 10 at 15-17. He stated that he
2 The deciding official issued a final decision on June 10, 2016, IAF, Tab 10 at 26 -28,
but, at the request of the appellant, rescinded the decision to allow the appellant to
5
considered the appellant’s written and oral responses and concluded that the
penalty of removal was reasonable and p romoted the efficiency of the service . Id.
at 15.
¶7 The appellant timely appealed his removal action to the Board , arguing that
the agency committed harmful procedural error and engaged in prohibited
personnel practices and that the removal was in retali ation for other protected
activities under 5 U.S.C. § 2302 . IAF, Tab 1 at 3. After holding a hearing, IAF,
Tab 36, Hearing Compact Disc (HCD), the administrative judge issued an initial
decision sustaining specifications one and two, and therefore, the single charge of
lack of candor, IAF, Tab 37, Initial Decision (ID) at 9-10. The administrative
judge also found that the penalty of removal was reasonable and promoted t he
efficiency of the service. ID at 12 -15. He found , moreover, that the appellant
failed to prove his discrimination claim. ID at 10 -12.
¶8 The appellant has filed a petition for review of the initial decision. Petition
for Review (PFR) File, Tab 5. The appellant argues that the administrative judge
improperly sustained a charge of falsification rather than lack of candor and that
he erred i n his credibility determinations. Id. at 5 -6, 9-11. The appellant also
makes various arguments regarding due process, procedural error, discrimination,
and the appropriateness of the penalty of removal. Id. at 6 -9, 11 -20. The agency
has filed a respo nse to the appellant’s petition. PFR File, Tab 7.
DISCUSSION OF ARGUME NTS ON REVIEW
The administrative judge properly found that the agency proved its charge.
¶9 Generally, an agency is required to prove its charges in an adverse action
appeal by prepondera nt evidence.3 5 U.S.C. § 7701 (c)(1)(B). To prove lack of
return from overseas before the effective date of the removal, id. at 23 -25. The
deciding official reissued an updated final decision on June 13, 2016. Id. at 15 -22.
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).
6
candor, the agency must demonstrate that the employee gave incorrect or
incomplete information and that he did so knowingly. Fargnoli v. Department of
Commerce , 123 M.S.P.R. 330, ¶ 17 (2016). Although it is a broader and more
flexible concept than falsification and does not require an affirmative
misrepresentation, lack of candor does involve an element of deception. Ludlum
v. Department of Justice , 278 F.3d 1280 , 1284 (Fed. Cir. 2002) .
¶10 There is no dispute that the appellant was terminated from two different
positions or that he check ed “no” to question 12 on the OF -306 at issue here.
IAF, Tab 8 at 48 -50, 52, 57. Rather, the crux of this case deals with the
appellant’s intentions and explanations for why he answered “no” on that form.
¶11 To resolve that question, the administrative judge considered hearing
testimony from the human resources specialis t at the Dugway P roving Ground
regarding the conversation he had with the appellant concerning that termination.
ID at 3 -5; HCD (testimony of the human resources specialist). That witness
testified that it was unlikely that he told the appellant he was not fired and that it
was not uncommon to speak with a terminated employee ab out unemployment
compensation. HCD (testimony of the human resources specialist) . He discussed
the February 2016 email s between him and the appellant and explained that the
rules applicable to un employment compensation applications differ from those
applicable to Federal employment applications. Id. He further testified that if he
had been a terminated probati oner completing a subsequent OF -306, he would
find it necessary to answer “yes” to ques tion 12. Id. The administrative judge
also considered testimony from the director of the agency’s civilian pe rsonnel
office regarding the OF -306. ID at 5 -6; HCD ( testimony of the director of
civilian personnel ). She testified that answering “yes” to qu estion 12 would not
automatically result in the withdrawal of an employment offer and that she would
consider a probationary termination a firing. Id.
¶12 The administrative judge also considered testimony from the appellant, who
stated that the human resou rces specialist from the Dugway Proving Ground told
7
him that he had not been fired and could answer “no” to a question of whether he
had been fired on any unemployment compensation forms. ID at 6; HCD
(testimony of the appellant). He further testified th at after his termination from
the Dugway Proving Ground, he applied to a position at Guantanamo Bay and
answered “yes” to question 12 on the OF -306 to “keep things simple,” despite his
earlier conversation with the human resources specialist. Id. He stat ed that it
was only after his time at Guantanamo Bay that he formed the belief that he could
answer “no” to question 12 on subsequent Federal employment applications. Id.
¶13 The administrative judge did not credit the appellant’s explanations of his
varyin g responses to question 12 and found that “there are too many contradictory
events in his own behavior” to conclude that he made his representation
unknowingly.4 ID at 7. Accordingly , the administrative judge issued an initial
decision finding that the a gency proved specifications one and two by
preponderant evidence and sustained the charge. However, instead of referring to
the charge as “lack of candor,” the administrative judge wrote that “the charge of
falsification is sustained.” ID at 9.
¶14 On revi ew, the appellant argues that the administrative judge erred in
sustaining a falsification charge. PFR File, Tab 5 at 5-6. He argues that he was
not on notice of a falsification charge and that , for the administrative judge to
sustain a falsification cha rge, the agency would have had to prove that he
intended to defraud the agency, which it did failed to do. Id.; see O’Lague v.
Department of Veterans Affairs , 123 M.S.P.R. 340 , ¶ 6 (2016) , aff’d per curiam ,
698 F. App’x 1034 (Fed. Cir. 2017) . We agree with the appellant that the
administrat ive judge erred in his finding, but only to the extent that he mislabeled
the charge by referring to it as a charge of “falsification ,” rather than one of “lack
4 The administrative judge’s finding regarding the appellant’s credibility reads: “There
are too many contr adictory events in his own behavior to conclude that he made the
representation, “YES,” unknowingly.” ID at 7. We find the administrative judge’s
using the word “yes” to be a typ ographical error.
8
of candor.” In the initial decision, the administrative judge correctly discussed
the charge o f lack of candor, ID at 2 -10, and explained that it requires proof that
the appellant gave incorrect or incomplete informatio n and that he did so
knowingly, ID at 9 ( citing Fargnoli , 123 M.S.P.R. 330 , ¶ 17). Moreover, p rior to
the hearing, the administrative judge issued a summary of the telephonic
prehearing conference wherein he provided the parties with their burdens of
proof, i ncluding the correct standard for the agency to prove a lack of candor
charge. IAF, Tab 28 at 2. Therefore, we find that the administrative judge’s
error did not prejudice the appellant’s substantive rights and provides no basis for
revers ing the initial decision. See Panter v. Department of the Air Force ,
22 M.S.P.R. 281 , 282 (1984).
¶15 The appellant also challenges the administrative judge’s credibility
determinations regarding his own testimony and the human resources specialist’s
testimony. PFR File, Tab 5 at 9 -11. Specifically, the appellant argues that he had
no reason to mislead t he agency for his own gain because he was hired for two
other positions despite answering “yes” to q uestion 12 on the respective OF -306s.
Id. at 10. He also argues that the human resource specialist’s testimony is
inconsistent and reflects “a poor memory .” Id. at 9 -10. When an administrative
judge has made credibility determinations that were explicitly or implicitly based
on the witness’s demeanor while testifying at the hearing , the Board must defer to
those credibility determinations and may overturn such determinations only when
it has “sufficiently sound” reasons for doing so. Purifoy v. Department of
Veterans Affairs , 838 F.3d 1367 , 1372 -73 (Fed. Cir. 2016); Haebe v. Department
of Justice , 288 F.3d 1288 , 1301 (Fed. Cir. 2002). Here, the administrative judge
appropriately relied on the factors set forth in Hillen v. Department of the Arm y,
35 M.S.P.R. 453 , 458 (1987) , to assess witness credibility and found the appellant
to be not credible. ID at 6 -10. Given the admin istrative judge’s implicit
demeanor -based findings and our considering the appellant’s arguments on
9
review, we find that the appellant has failed to provide a “sufficiently sound”
reason to disturb these conclusions.
¶16 Accordingly , we agree with the adminis trative judge that the agency proved
the charge of lack of candor by preponderant evidence, and we will not disturb
the initial decision in that regard.
The appellant failed to prove that any ex parte communications violated his due
process rights.
¶17 The a ppellant appears to argue on review that there may have been ex parte
communications between his previous employer at the Dugway Proving Grounds
and the proposing and deciding officials in this case .5 PFR File, Tab 5 at 8, 19.
He as serts that these communications had an adverse impact against him. Id. at 8.
He also argues that the proposing and deciding officials considered statements
from his coworkers regarding his “manner of operating and [] conduct” and
details surrounding a ship loading missio n. Id. at 14; IAF, Tab 8 at 44 . The
appellant argues that these communications created a negative opinion of him in
the proposing and deciding official s’ minds and that he had no opportunity to
address the coworkers’ statements, which constituted a due p rocess violation.6 Id.
at 15.
¶18 Although an appellant’s right to due process can extend to ex parte
information provided to a deciding official, only ex parte communications that
5 On review, the appellant alleges that the proposing off icial stated in his proposal
notice that “previous employers” complained about the appellant. PFR File, Tab 5 at 6.
However, upon review of the proposal notice, the proposing official referenced
“co[]workers and multiple employees.” IAF, Tab 8 at 44. N onetheless, we will address
the appellant’s allegations regarding communications with previous employers.
6 The agency argues in its response to the appellant’s petition for review that the
appellant failed to raise this issue below, and therefore, the B oard should not consider
it. PFR File, Tab 7 at 19; see Banks v. Department of the Air Force , 4 M.S.P.R. 268 ,
271 (1980). We have reviewed the reco rd, and although the appellant did not actively
pursue a due process claim as an affirmative defense, his prehearing submission briefly
discussed his concern regarding the coworkers’ statements and his inability to rebut
them . IAF, Tab 26 at 3 -4. Accordi ngly , we will consider his due process claim here.
10
introduce new and material evidence to the deciding official constitute due
process violations. Ward v. U.S. Postal Service , 634 F.3d 1274 , 1279 -80 (Fed.
Cir. 2011); Stone v. Federal Deposit Insurance Corporation , 179 F.3d 1368 ,
1376 -77 (Fed. Cir. 1999). The ultimate question is whether the information is “so
substantial and so likely to cause prejudice that no employee can fairly be
required to be subjected to a depriva tion of prop erty under such circumstances.”
Stone , 179 F.3d at 1377.
¶19 Regarding the appellant’s speculation that the proposing or deciding official
spoke with his previous employer at the Dugway Proving Grounds, the appellant
has failed to present any evid ence that any communications occurred at all. He
did not provide any names of the parties involved in the alleged communications,
nor did he provide evidence of the contents of the alleged communications.
¶20 Regarding the appellant’s allegation that the de ciding official relied on
statements made by the appellant’s coworkers concerning his manner of operating
and conduct and an incident regarding a ship loading mission, the deciding
official stated in his Douglas7 factor analysis that he did not consider those
statements for the purpose of the instant removal action, IAF, Tab 10 at 19, and
the appellant did not question the deciding official on this matter at the hearing to
establish otherwise, HCD ( the appellant’s questioning of the deciding official).
Based on the foregoing, we find that the appellant has failed to prove that any ex
parte communications occurred or that , if any communications did occur, they
introduced new and material evidence or information tha t was so substantial and
so likely to cause prejudice to the appellant that he could not fairly be re quired to
be subjected to a deprivation of property under the circumstances. Ward ,
634 F.3d at 1279 -80; Stone , 179 F.3d at 1376 -77. Therefore, we find th at the
appellant has failed to prove that the agency violated his due process rights.
7 In Douglas v. Veterans Administration , 5 M.S.P.R. 280 , 305 -06 (1981) , the Board
established criteria to consider when imposing a penalty.
11
The appellant failed to prove that the agency engaged in any harmful procedural
error.
¶21 The appellant also argues on review that the agency committed various
procedural errors. Specifically, he alleges that, d espite it being standard agency
procedure, the agency neve r asked him to recertify his OF -306. PFR File, Tab 5
at 6. He also argues that the agency failed to exercise due diligence when it did
not contact prior e mployer s as references , id. at 6 -7, and that it mishandled his
security clearance paperwork , id. at 8 . Regarding the appellant’s first two
arguments, it does not appear that he raised these issues below, and generally, the
Board will not consider an argum ent raised for the first time on review absent a
showing that it is based on new and material evidence not previously available
despite the party’s due diligence . Banks v. Department of the Air Force ,
4 M.S.P.R. 268 , 271 (1980). Here, the appellant has failed to prove that any
evidence surrounding the agency’s alleged errors was not available to him below
despite his due diligence.
¶22 Regarding the appellant’s assertion that the agency mishandled his security
clearance paperwork, the appellant appears to have raised the issue briefly in his
prehearing submission, IAF, Tab 26 at 5, and we will consider it here. For a
procedural error to warrant revers ing an agency action, the appellant must
establish that the agency committed a procedural error that likely had a harmful
effect on the outcome of the case before the agency. Powers v. Department of the
Treasury , 86 M.S.P.R. 256 , ¶ 10 (2000); 5 C.F.R. § 1201.56 (c). H ere, the
appellant has failed to show that any error in the agency’s proces sing of his
security clearance occurred at all or that it had a harmful effect on the outcome of
his removal.8 Therefore, we find that the appellant has failed to prove that the
agency committed harmful procedural error.
8 As to the appellant’s argument that the agency committed harmful procedural error
when it failed to ask him to recertify his OF -306, PFR File, Tab 5 at 6, we find that he
has failed to show that it had a harmful effect on the outcome of his removal action.
12
The appellant failed to prove his discrimination claim.
¶23 The appellant also argues that his removal was the result of discrimination
based on his race and religion. PFR File, Tab 5 at 18 -21. He claims that,
althou gh he may have engaged in unrelated misconduct, other employees of
another race and religion had engaged in the same conduct. Id. He argues that
the agency, however, chose to remove him on the lack of candor charge so that it
would not have to remove the other employees for the same unrelated
misconduct . Id. at 18. He also asserts that because the proposing official had
been in contact with a previous employer, and that employer allege dly had
discriminated against the appellant in the past , it was reasonable to assume that
the employer’s communication influenced the proposing official in a
discriminatory way. Id. at 7 -8.
¶24 The administrative judge considered the appellant’s discriminat ion claim
and found that the appellant failed to present preponderant evidence that the
agency’s action was due to racial discrimination. ID at 12. In analyzing the
appellant’s discrimination claim, he applied the burden -shifting analysis of
McDonnell Do uglas Corp. v. Green , 411 U.S. 792 , 802 -04 (1973). ID at 20 -21.
¶25 Because the administrative judge did not also consider the appellant’s
discrimination claim under the motiva ting factor framework set forth in Pridgen
v. Office of Management and Budget , 2022 MSPB 31 , we modify the initial
decision to do so.9 Based on our review of the record, we find that the appellant
failed to meet his initial burden of showing by preponderant evidence that any
prohibited consideration was a motivating factor in his removal. He has failed to
provide any evidence that the agency declined to impose discipline for the
Notably, he has not even alleged that he would have changed his answer on question 12
from “no” to “yes” if given the opportunity to recertify.
9 In the summary of the telephonic p rehearing conference, the administrative judge
correctly informed the appellant of his burden of proof. IAF, Tab 28 at 2-4. Thus, the
appellant was on proper notice of what he was required to prove. See Burgess v. Merit
Systems Protection Board , 758 F.2d 641 , 643 -44 (Fed. Cir. 1985) .
13
unrelated misconduct in which several employees allegedly engaged simply to
avoid disciplining employees of a different race or religion than the appellant. He
also has failed to present any evidence showing that the agency lied about its
reasons to remove him for lack of candor , and he has failed to present any
incriminating s tatements from agency employees in support of this claim . He has
failed , moreover, to pro vide any evidence that the agency’s general treatment of
employees in the same protected classes as the appellant differs from any other
class of employees who have committed similar misconduct. See Pridgen ,
2022 MSPB 31 , ¶¶ 23 -25. Therefore, we agree w ith the administrative judge’s
finding that the appellant failed to prove his affirmative defense.
¶26 On review, the appellant argues that the administrative judge restricted his
examination of the proposing and deciding officials to exclude questions
regard ing discrimination. PFR File, Tab 5 at 7. W e find the appellant’s argument
to be meritless. Regarding the proposing official, the administrative judge
explicitly informed the appellant on the record that one of the reasons the
proposing official was approved as a witness to testify at the hearing was to
respond to the appellant’s questions concerning discrimination. HCD (statement
of the administrative judge). Further, we have reviewed the hearing testimony
from the deciding official, and it appears that the appellant did not pursue any
line of questioning directed at his discrimination claim. HCD ( the appellant’s
questioning of the deciding official). Therefore, we find that the administrative
judge provided the appellant with a sufficient opportunity to question those two
witnesses on the issue of discrimination.
¶27 The appellant further argues on review that the administrative judge erred
when he only considered the appellant’s allegation of race discrimination and that
he also should have considered religious discrimination. PFR File, Tab 5 at 8.
To the extent that the administrative judge limited his review of the appellant’s
discrimination claim, we find no reversible error. The appellant failed to provide
any evidence of a prohibited consideration —racial or religious —and the
14
appellant’s burden of proof as established in 42 U.S.C. § 2000e -16 is the same
regardless of whether the alleged discrimination was based on race or on religion.
Accordingly, we find no basis to disturb the initial decision in this regard. See
Panter , 22 M.S.P.R. at 282 (stating that an adjudicatory error that is not
prejudicial to a party’s substantive rights provides no basis for revers ing an initial
decision).10
The penalty of re moval was reasonable.
¶28 In his petition for review, the appellant renews his arguments concerning
the penalty of removal. PFR File, Tab 5 at 11 -17. When all of the agency’s
charges are sustained, the Board will review the agency -imposed penalty only to
determine if the agency considered all relevant factors and exercised management
discretion within the tolerable limits of reasonableness. Ellis v. Department of
Defense , 114 M.S.P.R. 407 , ¶ 11 (2010). In determining whether the selected
penalty is reasonable, the Board defer s to the agency’s discretion in exerc ising its
managerial function of maintaining employee discipline and efficienc y. Archerda
v. Department of Defense , 121 M.S.P.R. 314, ¶ 25 (2014) . Th e Board recognizes
that its function 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 by the agency does not exceed
the maximum limits of reasonableness. Id. Thus, the Board will modify a
penalty only when it finds that the agency failed to weigh the relevant factors or
that the penalty the agency imposed clearly exceeded the bounds of
reasonableness. Id.
10 The appellant also argues on review that he did not file an equal employment
opportunity (EEO) complaint with the agency’s EEO office becau se it informed him
that any discrimination claim could be adjudicated by the Board. PFR File, Tab 5 at 18.
However, the appellant has failed to provide any evidence of this assertion .
Additionally, he argues that he did not strenuously pursue his discri mination claim
before the Board because he feared that the Board may view his appeal negatively due
to his religion. Id. We find this argument unpersuasive , as the appellant has offered no
legal or logical reason for his presumption.
15
¶29 In the re moval notice and hearing testimony, the deciding official
emphasized the nature of the appellant’s supervisory position, which meant that
he was held to a higher standard of conduct. HCD (testimony of the deciding
official); IAF, Tab 10 at 18 -19. He also stated that the appellant’s potential for
rehabilitation was low because there was no way to avoid the lack of trust and
confidence that the appellant’s actions created. HCD (testimony of the deciding
official); IAF, Tab 10 at 20 -21. The deciding offici al also considered lesser
penalties, but he believed that there would still be a lack of confidence. HCD
(testimony of the deciding official). Based on the deciding official’s testimony
and the decision notice , the administrative judge found that he prop erly
considered the Douglas factors, that the penalty of removal was within the
tolerable bounds of reasonableness, and that it promoted the efficiency of the
service. ID at 15.
¶30 On review, the appellant argues that the penalty of removal was too harsh
and that the deciding official did not correctly consider the Douglas factors. PFR
File, Tab 5 at 12-17. He argues that it was “a stretch” for the deciding official to
claim he lost trust and confidence in him and that the deciding official provided
no ba sis for conclu ding that he lacked the potential for rehabilitation. Id.
at 13-14, 16. He also argues that the deciding official ignored mitigating factors
such as the alleged discrimination. Id. at 16 -17.
¶31 We have reviewed the record and , like the administrative judge, find no
error in the deciding official’s selecti ng removal as the appropriate penalty. The
deciding official provided a sufficient discussion regarding why he lost trust and
confidence in the appellant, explaining that the appellant was in a supervisory
position serving overseas and, therefore, “his ethical character and
trustworthiness must be beyond reproach” and “his integrity and candor cannot be
compromised.” IAF, Tab 10 at 30. The deciding official also explained his
conclusio n that the appellant lacked the potential for rehabilitation and stated that
the appellant’s decision to omit information when applying to the position made
16
him unsure that he would not omit information in the performance of his daily
duties. Id.
¶32 Insofa r as the appellant argues that the alleged discrimination should be
considered a mitigating factor, we already have considered that allegation as an
affirmative defense. Supra ¶¶ 23-25. To the extent that he is attempting to assert
a dispar ate penalty ar gument on the base s of race and religion, the Board has held
that appropriate comparators must have engaged in the same or similar offense as
the appellant . Singh v. U.S. Posta l Service , 2022 MSPB 15, ¶ 10. Here, the
appellant alleges that he and other employees of a different race all engaged in
conduct unrelated to a charge of lack of candor. PFR File, Tab 5 at 18. He
asserts that, if the agency had disciplined the appellant for that misconduct ,
instead of for lack of candor, it would have been required to discipline the other
employees of a different race as well. Id. Thus, the appellant argues that the
agency’s charg ing him with lack of candor indicates he was treated differently
from other employees so that the agency could properly remove him without
having to remove others of a different race. Id. The appellant’s argument fails,
however, because the relevant inquiry for a disparate penalty analysis
concentrates on the conduct charged in the disciplinary action and not on any
ancillary misconduct in which the appellant and others may have engaged. See
Singh , 2022 MSPB 15, ¶¶ 10, 17 ; Douglas , 5 M.S.P.R. at 305 . T here is no
evidence, nor has the appella nt asserted, that the all eged comparators engaged in
lack of candor or any conduct similar thereto. Accordingly, we find the
appellant’s argument to be meritless.
¶33 Next, t he appellant argues that the penalty of removal is not consistent with
the agency’s table of penalties. PFR File, Tab 5 at 11. Specifically, he argues
that agency’s table of pena lties has no section that includes “lack of candor,” and
that its reliance on a category of misconduct concerning a refusal to cooperate in
an authorized inquiry or investigation is misplaced. Id. at 12. He states that he
was “completely open, honest, and straight forward” during an October 2015
17
Army Regulation 15 -6 investigation. Id. We find the appellant’s argument to be
meritless. The agency’s charge does not reference or include any intern al
investigation, but rather relies solely on the appellant’s Federal employment
application form. Moreover, the Board is not bound by an agency’s table of
penalties, and it is only one factor to be considered in assessing the
reasonableness of a penalty. Phillips v. Department of the Interior , 95 M.S.P.R.
21, ¶ 17 (2003), aff’d , 131 F. App’x 709 (Fed. Cir. 2005).
¶34 After consideri ng the appellant’s arguments related to the penalty on
review , we agree with the administrative judge’s conclusion that the deciding
official properly considered the Douglas factors before selecting the penalty of
removal. Further, given the seriousness o f a lack of candor charge and the
appellant’s supervisory role, w e also agree with the administrative judge that the
penalty of removal is within the tolerable bounds of reasonableness and promotes
the efficiency of the service. See Wrocklage v. Departmen t of Homeland
Security , 769 F.3d 1363 , 1370 ( Fed. Cir. 2014) (stating that lack of candor is a
serious charge that carries with it the possibility of sever e penalties); Edward s v.
U.S. Postal Service , 116 M.S.P.R. 173 , ¶ 14 (2010 ) (expressing that agencies are
entitled to hold supervisor s to a higher standard than non supervisors because they
occupy positions of trust and responsibility) . Although the appellant may
disagree with the penalty, none of his arguments on review provide any basis to
disturb the initial decision.11
¶35 We have cons idered the appellant’s other arguments on review, but we
conclude that a different outcome is not warranted. Accordingly, we affirm the
initial decision.
11 The appellant al so argues on review that the deciding official only relied on one
Douglas factor in arriving at his decision to remove the appellant. PFR File, Tab 5
at 14. He points to the Douglas factors worksheet wherein the deciding official states
that he “decided this removal action for the reasons stated in Douglas factor #1 [sic]
only.” Id.; IAF, Tab 10 at 19. However, the worksheet itself makes clear that the
deciding official considered multiple factors. Id. at 18 -21.
18
NOTICE OF APPEAL RIG HTS12
The initial decision, as supplemented by this Final Order, constitutes the
Board’s final decision in this matter. 5 C.F.R. § 1201.113 . You may obtain
review of this final decision. 5 U.S.C. § 7703 (a)(1). By statute, the nature of
your claims determines the time limit for seeking such review and the appropriate
forum with which to file. 5 U.S.C. § 7703 (b). Although we offer the following
summary of available appeal rights, the Meri t Systems Protection Board does not
provide legal advice on which option is most appropriate for your situation an d
the rights described below do not represent a statement of how courts will rule
regarding which cases fall within their jurisdiction. If you wish to seek review of
this final decision, you should immediately review the law applicable to your
claims and carefully follow all filing time limits and requirements. Failure to file
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).
12 Since the issuance of the initial decisi on in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.
19
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
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(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
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receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. ____ , 137 S. Ct. 1975 (2017). If you have a
representative in this case, and your representative receives this decision before
you do, then you must file with the district court no later than 30 calendar days
after your representative receives this decision. If the action involves a claim of
20
discrimination based on race, color, religion, sex, national origin, or 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 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
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
21
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (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.13 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
13 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.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195,
132 Stat . 1510.
22
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 | HAGAN_MARVIN_DC_0752_16_0705_I_1_FINAL_ORDER_2006224.pdf | 2023-02-27 | null | DC-0752 | NP |
3,469 | https://www.mspb.gov/decisions/nonprecedential/MCLAUGHLIN_LAUREN_PH_844E_20_0282_I_1_FINAL_ORDER_2006258.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
LAUREN MCLAUGHLIN,
Appellant,
v.
OFFICE OF PERSONNEL
MANAGEMENT,
Agency.
DOCKET NUMBER
PH-844E -20-0282 -I-1
DATE: February 27, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL1
Leah Bachmeyer Kille , Esquire, Lexington, Kentucky, for the appellant.
Moraima Alvarez , Washington, D.C., for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
Tristan L. Leavitt, 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) denying her application for disability retirem ent under the Federal
Employees’ Retirement System (FERS) . For the reasons discussed bel ow, we
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
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
GRANT the appellant’s petition for review and REVERSE the initial decision and
OPM’s reconsideration decision .
BACKGROUND
¶2 The appellant served as a Consumer Safety Officer with the Food and Drug
Administration (FDA) from March 24, 2002 , until she r esigned effective May 7,
2018. Initial Appeal File (IAF), Tab 4 at 77, 100, 102 . In this position, she
inspected, investigated, and collected samples of commodities that go “on or in
[the human] body.” IAF, Tab 20, Hearing Recording (HR) at 3:05 (testim ony of
the appellant). Her position required “quite a bit of travel. . . . Probably a 2 hour
drive . . . each way ” on a typical day. HR at 4:50 (testimony of the appellant) .
On May 6, 2019 , she applied for disability retirement under FERS base d on the
following conditions: post-traumatic stress disorder (PTSD), major depressive
disorder, segmental myoclonus, cervicalgia, and regional myoclonic jerks . IAF,
Tab 4 at 55-56, 79 -81, 83 -86.
¶3 Since 1987, t he appellant has suffered from depression “ on and off over the
years .” IAF, Tab 15 at 37 ; HR at 59:50 (testimony of the appellant) . Her PTSD
began in 1988. IAF, Tab 15 at 37 ; HR at 59:50 (testimony of the appellant) . In
2008, she was diagnosed with segmental myoclonus caused by carbon monoxide
poisoning , resulting in regional myoclonic jerks, back and neck pain
(cervicalgia), and fatigue. HR at 19:00 (testimony of the appellant) ; IAF, Tab 4
at 80 , Tab 15 at 19 -20. Myoclonus is a condition that causes sudden muscular
contractions, “generally due to a central nervous system lesion.” Myoclonus,
Stedman’s Medical Dictionary 584030, accessed via westlaw.com (last visited
Feb. 27, 2023). According to the appellant, her medical conditions prevented her
from perform ing various duties of her position, including driving. HR at 29:00
(testimony of the appellant) .
¶4 OPM issued a reconsideration decision, denying the appellant’s application
for disability retirement. IAF, Tab 4 at 5-8. The a ppellant appealed OPM’ s
3
reconsiderat ion decision to the Board and requested a hearing. IAF, Tab 1. After
holding a telephonic hearing, the administrative judge issued an initial decision
that affirmed OPM’ s decision . IAF, Tab 17 at 4, Ta b 22, Initial Decision (ID)
at 1, 12-13. She reason ed that the appellant did not show that her segmental
myoclonus caused a service deficiency in performance, conduct, or attendance .
ID at 4-12. She also appears to have determined that the appellant did not show
that the agency could not reasonably accommodate her myoclonus. ID at 9 -10.
She did not make a finding as to the whether the appellant’s PTSD and depression
were disabling . ID at 12 -13.
¶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. The appellant has filed
a reply to OPM’s response and a motion to submit additional evidence.2 PFR
File, Tab 4.
DISCUSSION OF ARGUME NTS ON REVIEW
¶6 In an appeal from an OPM decision on a volu ntary disability retirement
application, the appellant bears the burden of proof by preponderant evidence.
Thorne v. Office of Personnel Management , 105 M.S.P.R. 171 , ¶ 5 (2007) ;
2 The appellant moves to introduce documents from September 2010 through
August 2012 relating to her medical conditions and restrictions . PFR File, Tab 4 at 6-7,
9-25. She argues that these documen ts were unavailable at the close of record because
“they were archived in a retired and inactive email address” and that she only realized
the importance of these documents after the initial decision and the agency’s response
to her petition for review mad e it clear that the administrative judge and agency gave
little weight to her hearing testimony . PFR File, Tab 4 at 7. Under 5 C.F.R.
§ 1201.115 , the Board generally will not consider evidence submitted for the first time
with a petition for review absent a showing that it was unavailable before the record
was closed before the administrative judge despite the party’s due diligence. Avansino
v. U.S. Postal Service , 3 M.S.P.R. 211 , 213 -14 (1980). An appellant’s failure, as here,
to realize the need for more complete documentation is a lack of due diligence. Black
v. Department of the Treasury , 26 M.S.P.R. 529 , 530 -31 (1985). T he appellant has not
provided any explanation as to why she could not attempt to log onto this email account
prior to the close of record. Therefore, we deny the appellant ’s motion to submit new
evidence , and we decline to consider those documents here.
4
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) s he completed at least
18 months of creditable civilian service; (2) while employed in a position subject
to FERS, she became disabled because of a medica l 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 e xpected 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
reasonabl e 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 did not decline a reasonable offer of reassignment to
a vacant position . ID at 4, 9 -10; IAF, Tab 4 at 60 -61, 97-100, 102 , Tab 14 at 4-5,
Tab 15 at 24; HR at 34:00, 43:00 (testimony of the appellant). Thus, the
appellant’ s entitlement to a disability retirement annuity depends on whether she
had a disabling medical condition that was expected to last for at least 1 year
from May 2019 and whether accommo dating that condition was unreasonable .
Thorne , 105 M.S.P.R. 171 , ¶ 5 .
The administrative judge erred in finding that there was in sufficient evidence that
the appellant’s medical conditions prevented her from rendering useful and
efficient service.
¶8 There are two ways to meet the statutory requirement that the employee “be
unable, because of disease or injury, to render useful and ef ficient service in the
employee’s position.” Henderson v. Office of Personnel Management ,
117 M.S.P.R. 313 , ¶¶ 16 (2012) ; Jackson v. Office of Personnel Management ,
118 M.S.P.R. 6 , ¶¶ 6 -7 (2012) ( applying Henderson to FERS cases). First, a n
5
appellant c an establish that the medical condition caused a deficiency in
performance, attendance, or conduct, as evidenced by the effect of her medical
condition on her ability to perform specific work requirements, or that her
medical condition prevented her from b eing regular in attendance or caused her to
act inappropriately. Rucker v. Office of Personnel Management , 117 M.S.P.R.
669, ¶ 10 (20 12); Henderson , 117 M.S.P.R. 313 , ¶ 17 . Alternatively, the
employee can show that her medical condition is inconsistent wi th 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; Henders on, 117 M.S.P.R. 313 , ¶ 17.
¶9 In her initial decision, the administrative judge found insufficient evidence
to show that the appellant’s segmental myoclonus prevented her from rendering
useful and efficient service. ID at 4 -13. The appellant disputes this finding. PFR
File, Tab 1 at 5-10. We agree with the appellant and conclude that she proved
that her myoclonus, combined with her mental health conditions, caused a
deficiency in performance, as evidenced by the effect of her medical condition s
on her ability to perform the driving requirements of her position .
The appellant established that her position required extensive driving .
¶10 An appellant’s inability to perform the extensive driving requirements of
her position can render her disabled from rendering useful and efficient service .3
See Wom mack v. Office of Personnel Management , 8 M.S.P.R. 218 , 220-22
(1981) (finding the evidence sufficient to support the appellant’s contention that
he was disabled based on a medical condition that rendered him unable to fulfill
the extensive driving requirements of his position). The appellant testified
without contradiction that her position “require[d] at least 50% travel. ” HR
3 To the extent that the appellant also had difficulty driving to and from work, we do
not consider those limitations here. IAF, Tab 4 at 30. Difficulty in commuting is not a
relevant consideration in a disability retirement determination. Jolliffe v. Office of
Personnel Management , 23 M.S.P.R. 188 , 191 (1984), aff’d , 785 F.2d 320 (Fed. Cir.
1985) (Table).
6
at 29:20 (testimony of the appellant). She added that typical driving during the
work day was “about 2 hours each way.” HR at 5:10 & 28:00 (testimony of the
appellant) . This testimony was corroborated by her position description , which
specified that appro ximately 50% of her duties involved travel in order to conduct
inspections and investigations. IAF, Tab 5 at 4 -9. The administrative judge
appears to have found that driving was a requirement of the appellant’s position,
and we agree. ID at 11 -12.
The a dministrative judge erred in discounting the appellant’s medical evidence.
¶11 The administrative judge appeared to find that the appellant failed to
provide sufficient medical evidence to support her claim that she was unable to
perform the duties of her posi tion. ID at 4-12. The appellant argues that she met
her burden to prove that she was medically unable to drive . PFR File, Tab 1
at 6-8, 9-10, 12-13. We agree with the appellant .4
¶12 In her initial decision , the administrative judge applied a “general” rule that
medical evid ence must show how the employee’s conditions affect her ability to
perform speci fic job duties and requirements, and she determined that the
appellant’s medical evidence failed to make this showing . ID at 4, 6, 8. For
exam ple, she found that the medical opinion of the appellant’s treating
neurologist did not support the appellant’s disability retirement application
because he did not “address[] . . . the impact of the appellant’s condition on her
specific work requirements ,” and “he had not reviewed the [ap pellant’s] position
description ” or materials related to her disability retirement application. ID at 8.
In finding the neurologist ’s opinion deficient, the administrative judge cited to
the Board’s decision in Henderson , 117 M.S.P.R. 313 , ¶¶ 12, 14. ID at 4.
4 Because, as discussed below, we find the appellant met her burden to prove eligibility
for a dis ability retirement annuity based on her driving restriction, we do not reach the
issue of whether, as she argues on review, her medical conditions also caused
deficiencies in her attendance and conduct. PFR File, Tab 1 at 5 -8.
7
¶13 In fact, t he Henderson decision rejected this approach . In Henderson , the
Board overruled the line of cases that indicated there was a “general” rule that an
appellant’s entitlement to a disability retirement is conditioned on her providing
evidence from a medical provider explaining specifically how her medical
conditions af fected specific work requirements. Henderson , 117 M.S.P.R. 313 ,
¶¶ 17 -18.
¶14 The administrative judge also appears to have f ound the appellant’s
neurologist’s notes insufficient because they reiterate d what the appellant said to
him during their session s and did not state that the appellant was medically
impaired . ID at 6 -9. This determination was also in error. Although obj ective
medical evidence must be considered, such evidence is not required to establish
disability. Doe v. Office of Personnel Management , 109 M.S.P.R. 86 , ¶ 10 (2008)
(citing Vanieken -Ryals v. Office of Personnel Management , 508 F.3d 1034 ,
1040 -44 (Fed. Cir. 2007)). As stated by the U.S. Court of Appeals for the Federal
Circuit , “an applicant may prevail based on medical evidence that . . . consists of
a medical prof essional’s conclusive diagnosis, even if based primarily on his/her
analysis of the applicant’s own descriptions of symptoms and other indicia of
disability.” Vanieken -Ryals , 508 F.3d at 1041.
¶15 Similarly, the administrative judge erred in disregarding the appellant’s
documentation from the healthcare providers who treated her PTSD and
depression . ID at 7, 10 -11. At one point, the administrative judge suggested that
this documentation was not relevant because the se healthcare providers did not
treat the appellant’s myoclonus. ID at 7 -8. However, the conditions based upon
which the appellant sought a disability retirement annuity included not only
myoclonus , but also PTSD and depression. IAF, Tab 4 at 80. The requisite
showing of medical disability may be made based on the existence of a
combination of medical conditions . Hunt v. Office of Personnel Management ,
105 M.S.P.R. 264 , ¶ 35 (2007). Further, it is appropriate to rely on the causal or
exacerbating effect of various medical conditions on one another . Id. Thus, the
8
appellant’s medical evidence related to her mental health conditions is relevant in
this appeal.
¶16 Further , to the extent that the administrative judge indicated that the
medical documentation related to the appellant’s mental health should be
discounted because her conditions arose out of “her traumatic experiences and
relationship and financial difficulties ,” we are not persuaded . ID at 7, 10 -11.
The cause of a condition is not relevant in determining whether an applicant is
eligible for disability retirement. Marucci v. Office of Personnel Management ,
89 M.S.P.R. 442 , ¶ 9 (2001). Thus, we cannot agree with the administrative
judge that this medical documentation does not warrant serious consideration .
¶17 Finally , the administrative judge erred in giving little to no weight to the
appellant’s medical evidence of her mental health conditions because the notes
from her mental health providers began when the appellant was still employed,
but no longer reporting to work, an d continued afte r her resignation. ID at 7,
10-11. The appellant need only establish that she became disabled while
employed in a position subject to FERS. 5 C.F.R. § 844.103 (a)(2) (providing, as
relevant here, that to be eligible for a FERS disability retirement annuity, the
applicant “must, while employed in a position subject to FERS, have become
disabled because of a medical condition, resulting in a deficiency in performance,
condu ct, or attendance ”). The appellant’s absence from work does not indicate a
lack of disability, and indeed a deficiency in attendance may be a basis for
finding an employee has a disabling condition. Id. Thus, the appellant’s medical
evidence dating from after she began a period of extended leave is relevant here .
¶18 Further, as to medical evidence dating after her resignation , post-separation
medical evidence can be probative of whether the appellant became disabled
while serving in a FERS position when “proximity in time, lay testimony, or some
other evidence provides the requisite link to the relevant period.” Reilly v. Office
of Personnel Management , 571 F.3d 1372 , 1382 (Fed. Cir. 2009 ). We have
considered the appellant’s post -resignation medical evidence here because she
9
provided testimony linking her worsening mental conditions and myoclonus to the
period of time when she resigned. HR at 1 2:20, 27:00, 29:20, 32:00 & 47:00
(testimony of the appellant) .
The appellant established that her medical conditions caused her to be unable to
perform the driving requirements of her position .
¶19 The Board will consider all pertinent evidence in determining an appellant’s
entitlement to disability retirement: objective clinical findings, diagnoses and
medical opinions, subjective evidence of pain and disability, and evidence
relating to the effect of the applicant’s condition on her ability to perform the
duties of her position. Henderson , 117 M.S.P.R. 313 , ¶ 19. Nothin g in the law
mandates that a single provider tie all of this evidence together. Id. For example,
if the medical provider sets forth clinical findings, a diagnosis, and a description
of how the medical condition affects the appellant’s activities in gener al terms,
the Board could consider that evidence, together with the appellant’s subjective
account of how the condition has affected her ability to do her job and her daily
life, testimony or statements from supervisors, coworkers, family members, and
friends, and the appellant’s position description. Id.
¶20 Here, the appellant testified that her myoclonic jerks cause d her to have two
car accidents, one in her personal vehicle in 2010, when her arm jerked and she
drove into a pole, and one in a Government v ehicle on an unspecified date in
2017, when she “dragged a car through a fence gate and took out the whole left
side of the vehicle .” HR at 12:20 & 32:00 (testimony of the appellant). The
second accident led her to conclude that she could no longer drive. Id. at 12:20
(testimony of the appellant) . She explained , “as the stress . . . increase d, my
symptoms were increasing . . . and it became a vicious cycle —with my
symptoms exacerbating, stressing about driving. ” Id. at 27:00 ( testimony of the
appellant). She testified that as a result, she was unable to perform the driving
requirement of her job s tating , “I was sick . . . I was really struggling, the
commute, and drive and to not crash a car and I was under a lot of stress” an d
10
“traveling is my difficulty. I can’t drive, I don’t drive, and I won’t drive.” Id.
at 29:20 (testimony of the appellant) . She also testified that her job requires a
high level of concentration and that she “had difficulty thinking straight and
staying focused ” because of medication she was taking for her depression. Id.
at 47:00 (testimony of the appellant) . On the Agency Certification of
Reassignment and Accommodation Efforts completed by the appellant’s
supervisor in connection with her disability retirement application, he observed,
in essence, that the appellant’s medical conditions prevented her from
“perform[ing] the functions of her job as described in her position description .”
IAF, Tab 18 at 34, 36. Similarly, the Supervisor’s Statement he completed
reflected his assessment that her performance was less than fully successful. Id.
at 47 -48. Eventually, in November 2017 , the appellant stopped reporting to work
for medical reasons and was on leave without pay thr ough her resignation. Id.
at 46; HR at 49:00 (testimony of the appellant) .
¶21 Consistent with the appellant’s testimony, both the appellant’s mental
healthcare providers and her neurologist indicate d that her mental health
conditions exacerbated her myoclonus , and vice versa, to the point where she was
no longer able to perform her job functions . For instance, i n January 2018, the
appellant’s treating licensed clinical social worker ( LCSW ) completed a Family
and Medical Leave Act of 1993 certificatio n form stating that the appellant
should take extended leave from January 23, 2018 , through January 23, 2019 .
IAF, Tab 15 at 32 -35. The LCSW explain ed that the appellant “displays tics,
tremors, spasms and seizures which cause embarrassment, shame, inadequacy,
and worthlessness ,” which in turn “cause [] her to have daily panic attacks and
severe anxiety which interrupts dail y functioning.” Id. at 33-34.
¶22 The appellant’s neurologist , who has treated her since at least 2012, also
corroborate d her test imony . His January 17, 2018 notes reflect that, “starting in
October or November [the appellant] had a re -exacerbation of her depression and
she [has] undergone a number of different medication changes. ” IAF, Tab 4
11
at 30. He stated that her myoclonus “had been under control ” with the medication
Lamictal “but unfortunately as her mood disorder worsened so to [o] did her
segmental myoclonus . . . . [S]he has been out of work since late November 2017
and believes that she will be unable to return to work in the capacity that she had
been secondary to her [myo] clonus and mood disorder.”5 Id. His notes reflected
that the medications she was taking for h er conditions negatively affected her
judgment and driving. Id. Shortly thereafter, in February 2018, he recommended
that the appellant work from home “due to limitations on driving for long periods
of time.” IAF, Tab 15 at 25 . After the appellant resig ned, her neurologist
expressed his belief that she stopped working because her work environment
caused stress, which in turn exacerbated her myoclonus “such that [she] could not
perform her job.” Id. at 21 -23.
¶23 As discussed above, the administrative judg e appears to have found the
appellant’s medical evidence to be lacking. We do not agree. I n assessing the
probative weight of medical opinion, the Board considers whether the opinion
was based on a medical examination, whether the opinion provided a reas oned
explanation for its findings as distinct from mere conclusory assertions, the
qualifications of the expert rendering the opinion, and the extent and duration of
the expert’ s familiarity with the appellant’ s treatment. Wren v. Department of the
Army , 121 M.S.P.R. 28 , ¶ 9 (2014). Here, the appellant provided medical
documentation from her treating neurologist and LCSWs. She had a longstanding
treatment relationship with her neurologist , beginning in 2012. IAF, Tab 15
at 19. Her neurologist’s station ery identified him as a medical doctor with a
board certification in neurology and a Ph.D. , and we have no reason to question
those qualifications . Id. at 25.
5 He referred to this anti -seizure medication by its generic name, lamotrigine. See
https://www.mayoclinic.org/drugs -supplements/lamotrigine -oral-route/description/drg -
200674 49 (last visited Feb. 27, 2023 ). For the sake of clarity and consistency, we will
refer to it in this decision by the brand name Lamictal.
12
¶24 The appellant began treatment at the clinic that was the source of her mental
health documentation in December 2017 . Id. at 33, 37. She received counseling
from a particular LCSW at that clinic beginning as early as July 201 8. Id. at 37 ,
46. Thus, the clinic and LCSW’s familiarity with the appellant began months
prior to her May 2019 application for disability retirement . IAF, Tab 4 at 55 -56,
79-81, 83 -86. While we have less information about the qualifications of the
appellant’s treating LCSW, we have no reason to doubt that she was qualified to
treat depression and PTSD .
¶25 The medical notes, discussed above, are specific, discuss relevant medical
factors, and are not contradic ted. See Confer v. Office of Personnel Management ,
111 M.S.P.R. 419 , ¶ 20 (2009) (indicating that these factors, as well as others, are
consideration s in determining the probative value of medical evidence) . Thus, we
find that the opinion of the appellant’s healthcare provider s is entitled to
significant probative weight and that , based on this evidence in combination with
the appellant’s testimony and her supervisor ’s statements, she established that her
medical conditions caused her to be unable to perform the driving requirements of
her position . ID at 6, 8.
The evidence does not support the administrati ve judge’s conclusion that the
appellant refused to take medi cation that controlled her myoc lonus.
¶26 The administrative judge also appeared to find that the appellant’s
myoclonus became disabling as a result of the appellant’s refusal to take
Lamictal, agai nst the advice of her neurologist. ID at 8-9. The appellant
challenges this finding on review, arguing that she stopped taking the Lamictal
after it stopped working effectively. PFR File, Tab 1 at 11. She argues that her
neurologist approved of this ch ange in medication. Id. at 11 -12.
¶27 A voluntary refusal to accept facially reasonable treatment can bar
entitlement to disability retirement benefits. Frontan v. Office of Personnel
Management , 90 M.S.P.R. 427 , ¶ 8 (2001). However, the Board has held that an
appellant need not take medications that do not enable her , with or without
13
accommodation, to perform the duties of her position. Doe, 109 M.S.P.R. 86 ,
¶ 20. For example, the has Board found that an appellant established entitlement
to disability retirement when both she and her doctor testified that prescribed
medications did not control her PTSD . Id. Similarly, the Board has accepted
appellants’ arguments that side effects prevented them from takin g their
prescribed medication , and the Board has not denied disability retirement when
drugs are no longer taken for this reason . Confer , 111 M.S.P.R. 419 , ¶¶ 23-24.
Thus, the has Board found insufficient evidence that an appellant refused to
follow treatment recommendati ons when she alleged that she stopped taking two
different medications for depression because one caused nausea and the other
caused dizziness. Id.
¶28 Initially, Lamictal helped to control the a ppellant ’s myoclonic jerks. HR
at 13:30 (testimony of the app ellant); IAF, Tab 4 at 28 , Tab 5 at 127 -28.
However, according to the appellant, despite this medication, she began to have
“break -through tics” or jerks in 2017 . HR at 14:30 (testimony of the appellant).
She indicated that o ne such incident caused her to have her 2017 accident in a
Government -owned vehicle . HR at 12:20 & 32 (testimony of the appellant). It
was at that time that she determined she could no longer drive. Id.; IAF, Tab 4
at 80. In her disability retirement application, s he stated that she became disabled
from her position in October 2017 , and she testified that she last report ed to work
in November 2017 . IAF, Tab 4 at 79 ; HR at 49:00 (testimony of the appellant).
¶29 In November 2017, t he appellant advised her neurologist that she h ad
reduced her Lamictal. IAF, Tab 4 at 28. Although initially her neurologist stated
that the appellant’s myoclonus reemer ged around November 2017 because she cut
back on her Lamictal in January 2018, he stated that it was her worsening mood
disorder tha t caused her myoclonus to worsen. IAF, Tab 4 at 30, Tab 15 at 26.
We have considered this co nflicting explanation, but we find that the appellant
has established by a preponderance of the evidence that she did not refuse to
follow treatment recommendations .
14
¶30 First, t he appellant testified that she stopped taking the medication in
January 2018 because, in addition to no longer preventing her myoclonic jerks, it
was difficult to take and caused stomach pain . HR at 14:16 & 1:20:00 (testimony
of the appellant ). She also testified that her neurologist was on board with her
decision to stop taking Lamictal. Id. at 14:16 (testimony of the appellant) .
Consistent with that testimony, at the time of her resignation in May 2018, the
appellant’s neurologist stopped recommending Lamictal and prescribed her only
clonazepam on an as -needed basis for her myoclonus. IAF, Tab 4 at 32 -33. In
September 2020, her neurologist confir med via interrogatories that the appellant
has been compliant with reasona bly prescribed medical treatment. IAF, Tab 15
at 23. Thus, u nder the circumstances of this case, we find that the evidence does
not show that the appellant refused to follow treatment recommendations. Even if
she had, we would find that her uncontrovert ed explanation that the Lamictal
became less eff ective and caused stomach pain is a legitimate basis for stopping
the medication.
The appellant’s medical condition was not situational or confined to a single
work environment .
¶31 OPM argues that the appellant’s depression and anxiety were situational
based on “troubles at work stemming from the Weintgarten [sic] Investigation ,
reprimands and leave restriction .” PFR File, Tab 3 at 6. Among OPM’s
prehearing exhibits is a November 1, 2017 Memorandum of Weingarten
Invest igative Interview regarding the appellant’s alleged unauthorized use of a
Government -owned vehicle on August 24, 2017 , and her failure to account for her
whereabouts on A ugust 30, 2017. IAF, Tab 18 at 12-14. There was no testimony
during the hearing explaining the relevance of this memorandum, nor did the
administrative judge discuss it in her initial decision. HR; ID .
¶32 The Board has rejected disability claims when the appellant’ s conditions
were largely situational , i.e. , appare nt only in her work environment or in the
context of what she perceives as a hostile work environment. Luzi v. Office of
15
Personnel Management , 109 M.S.P.R. 79 , ¶ 9 (2008) ; Cosby v. Office of
Personnel Management , 106 M.S.P.R. 487 , ¶¶ 7, 10 (2007) . However, the Board
has distinguished such circumstances from ones in which job-related stress
precipitated and exacerbated an appellant’s condition, which was itself disabling.
Doe, 109 M.S.P.R. 86 , ¶ 18 ; Thorne , 105 M.S.P.R. 171 , ¶ 15 . The Board has
repeatedly held that job -related stress resulting in physical or mental impairments
that prevent an employee from performing the duties required in her position can
warrant the granting of disability retirement. Doe, 109 M.S.P.R. 86 , ¶ 18;
Thorne , 105 M.S.P.R. 171 , ¶ 15 ; Kimble v. Office of Personnel Management ,
102 M.S.P.R. 604 , ¶ 14 (2006) .
¶33 Here, the medical evidence and testimony do not support a finding that the
appellant’s segmental myoclonus and depression were a reaction to her particular
workplace , “troubles” from th e Weingarten investigation , or attendance -related
reprimands and leave restriction . Rather, these conditions were apparent outside
of the specific work environment at the FDA. The record shows that the
appellant was suffering from worsening depression since 2012 and , according to
December 2017 notes from a treating LCSW, “ ha[d] been isolating herself for . . .
years to the point where she [was] in danger of losing her job. ” IAF, Tab 15
at 37. The appellant suffer ed from depression both before and after her
resignation , causing her to isolate herself, “not leav [e] her bed o r home for days,”
and not shower or otherwise care for herself. Id. at 46 -77, 84 . The appellant
similarly testified that she continues to suffer from her mental health conditions,
despite complying with treatment and incorporating changes to diet and exercise .
HR at 35:00 (testimony of the appellant). The appellant also testified that her
myoclonus is permanent, she has not driven since 2018, and she no longer has a
valid driver’s license due to her myoclonic je rks. Id. at 12:20 , 35:00 (testimony
16
of the appellant) . Thus, we do not find that her depression and anxiety were
situational.6
¶34 Similarly, t o the extent OPM is arguing that the appellant did not resign
until she was at risk of discipline, thereby detracti ng from her claims of
disability , we are not persuaded. The Board has held that an appellant’s
application for disability retirement in the face of an impending removal for
misconduct may cast doubt on the veracity of her application. Henderson v.
Office of Personnel Management, 109 M.S.P.R. 529 , ¶¶ 2-3, 9, 21 (2008) (finding
that the appellant established an entitlement of disabilit y retirement despite the
suspicious timing of his application , which occurred after he was indefinitely
suspended pending the outcome of a criminal charge of marijuana distribution) .
¶35 The investigative interview into the appellant’s alleged unauthorized use of
a Government vehicle a nd unexplained unavailability occurred in
November 2017, the same month she began a period of extended leave that ended
with her May 2018 resignation. IAF, Tab 4 at 102, Tab 18 at 12 -14; HR at 49:00
(testimony of the appellant ). The fact that less than 1 month passed between the
appellant being accused of misconduct and her initiating a lengthy absence ending
6 In its response to the petition for review, OPM also alleges that the appellant “has a
history of alcohol abuse, that apparently . . . had a flare up during her performance and
attendance issues at work.” PFR File, Tab 3 at 6. The administrative judge n oted “the
appellant’s history of overusing alcohol” in her decision. ID at 7. However, there is
nothing in the record to support OPM’s allegation that the appellant’s alcohol use
caused her performance and attendance issues. Moreover, as previously disc ussed, the
appellant has established that her conditions prevented her from performing the driving
requirements of her position . The Board will only consider medical conditions listed in
the appellant’s disability retirement application. Ballenger v. Off ice of Personnel
Management , 101 M.S.P.R. 138 , ¶¶ 12 -13 (2006) ( clarifying that the Board may not
consider evidence relating to a medical condition that was never the subject of the
disability retirement application in question). Further, we decline to find that addiction
alone necessarily disqualifies an appellant from disability retirement based on other
medical conditions. See Bemiller v. Office of Personnel Management , 119 M.S.P.R.
653, ¶¶ 2, 8 -16 (2013) (finding an appellant eligible for disability retirement based on
her fibromyalgia and chronic pain despite her prior dependency on Oxycodone and
Oxycontin).
17
in resignation casts some doubt on whether she stopped working for medical
reasons or to avoid potential discipline for her alleged serious misconduct. Dias
v. Department of Veterans Affairs , 102 M.S.P.R. 53 , ¶ 16 (2006) (describing
absence without leave as a serious offense) , aff’d per curiam , 223 F. App’x 986
(Fed. Cir. 2007) ; Garcia v. Department of the Air Force , 34 M.S.P.R. 539 , 540 -42
(1987) ( finding that an administrative judge improperly mitigated the penalty of
removal for two instances of willful unauthorized use of a Government -owned
vehicle). However, we find that t he fact that she did not apply for a disability
retirement annuity until a year after her resignation , combined with the medical
evidence and her subjective reports of the effect of her myoclonus and depression
on her ability to drive , outweighs any such doubt. IAF, Tab 4 at 55 -56, 79 -81,
83-86; see Henderson , 109 M.S.P.R. 529 , ¶ 21 (determining that although the
timing of an appellant’ s disability retirement application was suspect , he
presented overwhelming medical evidence that corroborated his subjective
complaints and establis hed that his medical condition wa s incompatible with
either useful and efficient service or retention in his former position ).
¶36 Lastly, on review , the appellant challe nges the administrative judge’s
implicit finding that the appellant’s conditions are not disabling because , in
April 2019 , she took a 3 -day consulting job in India inspecting the man ufacturing
process of meclizine and because she sells Christmas trees. ID at 12.
¶37 Subsequent work history is relevant to whether an individual’s condition is
confined to a single work environment. Confer , 111 M.S.P.R. 419 , ¶ 16 . One is
not entitled to a disability 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 result ed from a perceived hostile work environment
due to workload or understaffing. Id. However, an appellant i s 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). T he relevant
positio n for determining the appellant’ s qualification for d isability retirement
18
benefits i s the pos ition she last held before filing her application. Id. Here, the
appellant testified that although the consulting job involved similar
responsibilities, it was less demanding and involved less pressure and scrutiny
than her Consumer Safety Officer position with the FDA because she worked
from a checklis t, which the FDA does not use or provide to Consumer Safety
Officers. HR at 51:30 and 1:10 :00 (testimony of the appellant) ; PFR File, Tab 1
at 12 -13. She also stated that observation work in the co nsulting job was less
intense because people were not as nervous to see a consultant as they were to see
an FDA Consumer Safety Officer. HR at 1:10 :00 (testimony of the appellant) .
Most importantly , the consulting job did not require her to drive because she flew
to India and had an assigned driver while there . Id.
¶38 With regard to the Christmas tree farm, the administrative judge relie d on a
December 2017 assessment completed by one of the appellant’s treating LCSWs,
stating , “she lives on a farm and does sell Christmas trees,” and the fact that the
appellant’s email address for the appeal contain ed the name of the farm , to
implicitly find that she was not disabled from working . ID at 12; IAF, Tab 1 at 1,
Tab 15 at 43. However, there is nothing in the record regarding the appellant’s
alleged involvement with this business and, on review, the appellant clarifies
without contradiction that her fiancé handles that business. PFR File, Tab 1
at 13. Therefore, we find that the appellant’s employment after her resignation
does not undermine the evidence that she was unable to work in her Consumer
Safety Officer position .
The appellant met her burden to prove that her conditions were expected to last
for at least 1 year from her May 2019 application for a disability retirement
annuity .
¶39 The administrative judge did not make a determination as to whether the
appellant met her burden to prove that her medical conditions were expected to
last for at least 1 year from her application for disability retirement. The parties
19
also do not address this issue on review. As discussed above, this is an element
of her burden. Thorne , 105 M.S.P.R. 171 , ¶ 5 .
¶40 Here, t he appellant testified that her myoclonus is permanent, she has not
driven since 2018, and she no longer has a valid driver’s license due to her
myoclonic jerks.7 HR at 12:20, 35:00 (testimony of the appellant). Also, in
September 2020, over a year after submitting her May 6, 2019 appl ication, her
neurologist certified that her myoclonus and the associated symptoms are
expected to continue for a year. IAF, Tab 15 at 24. Similar ly, on the appellant’s
FMLA request , her LCSW certified that she would be unable to work from
January 2018 through January 2019 due to her psychological conditions, which
the appellant testified were still present as of the hearing i n October 2020 . Id.
at 33; HR at 34:00 (testimony of the appellant). Thus, we find that the appellant
has proven that her condition s are expected to last for at least 1 year from her
application.
We disagree with the administrative judge that the appellant failed to meet her
burden to prove that accommodation of her conditions was unreasonable .
¶41 On review, the appellant argues that the administrative judge erred in
essentially finding that the appellant failed to establish that she could not be
accommodated because she resigne d before the reasonable accommodation
process had been completed. PFR File, Tab 1 at 8 -9; ID at 9 -10. We agree with
the appellant .
¶42 An appellant must establish that she cannot be accommodated in her current
position and is not qualified for reassignment to a vacant position at the same
7 The administra tive judge questioned whether the appellant failed to renew her license
or whether it was taken away by the state. ID at 12 & n.9. She suggested that if the
appellant failed to renew it after it expired, her lack of a license was not caused by her
medica l conditions. Id. We are not persuaded that whether the appellant or the state
initiated her license loss is relevant to whether she lost it due to her myoclonus.
Therefore, we do not rely on this distinction here.
20
grade or level in which she could render useful and efficient service.8 Pettye v.
Office of Personnel Management , 83 M.S.P.R. 260 , ¶ 6 (1999) ; 5 C.F.R.
§ 844.103 (a)(4). “[A] ccomm odation requires adjustments that allow an employee
to continue to perform her official position. ” Gooden v. Office of Personnel
Management , 471 F.3d 1275 , 1279 (Fed. Cir. 2006) (citing, among other
authorities, 5 C.F.R. § 844.102 (“Accommodation means a reasonable adjustment
made to an employee ’s job or work environment that en ables the employee to
perform the duties of the position. ”)). The Federal Circuit has held that “a
‘light -duty ’ assignment which does not involve the critical or es sential elements
of an employee’ s official position cannot be considered an ‘accommodation .’”
Id.
¶43 As discussed above, the appellant’s position required significant driving .
On February 26, 2018, the appellant’s neurologist provided medical
documentation in support of the appellant’s request to work from home “due to
limitations on driving fo r long periods of time. ” IAF, Tab 15 at 25. The
appellant sought reasonable accommodation later that month, requesting full -time
telework. IAF, Tab 18 at 4 , 36 . The agency did not offer the appellant
reasonable accommodation while she was employed. IAF, Tab 4 at 79, Tab 18
at 36. On May 7, 2018, the appellant resigned , and therefore the agency closed
her accommodation request file . IAF, Tab 4 at 74 -46, Tab 18 at 36; HR at 42:00
(testimony of the appellant). However, on May 1, 2018, a labor relations
specialist advised the appellant’s supervisor that “the [reasonable accommodation
request ] in of itself seems almost improper since [the agency’s equal employment
opportunity] office has information about this employee not being able to perform
all the es sential functions of her position .” IAF, Tab 18 at 113 (emphasis added ).
8 The agency did not offer the appella nt reassignment. IAF, Tab 18 at 35. Therefore,
we agree with the administrative judge she met to this element of her burden to prove
eligibility for a disability retirement annuity. ID at 9 -10; Thorne , 105 M.S.P.R. 171 ,
¶ 5.
21
¶44 When an agency certification that accommodation is unavailable is
unrebutted and the record supports the conclusion that accommodation would not
be possible, the Board has held that this criterion for obtaining disability
retirement is met . Chavez v. Office of Personnel Management , 111 M.S.P.R. 69 ,
¶ 15 ( 2009). Here, in describing the reasonable accommodation efforts made by
the FDA, the appellant’s supervisor observed, in essence, that the appellant’s
medical conditions prevented her from “perform[ing] the functions of her job as
described in her positio n description.” IAF, Tab 18 at 34, 36. Based on the
FDA’s unrebutted belief that the appellant could not be provided with a
reasonable accommodation to perform her duties and the evidence of record that
the appellant could not drive as required for her job , we find that the appellant
met her burden to prove that she could not be reasonably accommodated in her
position of record .
¶45 Accordingly , we REVERSE the administrative judge’s initial decision and
OPM’s reconsideration decisi on.
ORDER
¶46 We ORDER OPM to award the appellant disability retirement. OPM must
complete this action no later than 20 days after the date of this decision.
¶47 We also ORDER OPM to tell the appellant promptly in writing when it
believes it has fully carried out the Board’s Order and to describe the actions it
took to carry out the Board’s Order. We ORDER the appellant to provide all
necessary information OPM requests to help it carry out the Board’s Order. The
appellant, if not notified, should ask OPM about its progress. See 5 C.F.R.
§ 1201.181 (b).
¶48 No later than 30 days after OPM tells the appellant it has fully carried out
the Board’s Order, the appellant may file a petition for enforcement with the
office that issued the initial decision on this appeal if the appellant believes that
OPM did not fully carry out the Board’s Order. The petition should contain
22
specific reasons why the appellant believes OPM has not fully carried out the
Board’s Order, and should include the dates and results of any communications
with OPM. See 5 C.F.R. § 1201.182 (a).
¶49 This is the final decisio n of the Merit Systems Protection Board in this
appeal. Title 5 of the Code of Federal Regulations, section 1201.113(c) ( 5 C.F.R.
§ 1201.113 (c)).
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
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
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.
23
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a peti tion for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional inform ation about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC r eview of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. I f so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. ____ , 137 S. Ct. 1975 (2017). If you have a
representative in this case, and your representative receives this decision before
24
you do, then you must file with the district court no later than 30 calendar days
after your rep resentative receives this decision. If the action involves a claim of
discrimination based on race, color, religion, sex, national origin, or a disabling
condition, you may be entitled to representation by a court -appointed lawyer and
to waiver of any req uirement of prepayment of fees, costs, or other security. See
42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representati ve 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
25
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (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
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison P lace, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appell ants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
10 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
Decembe r 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195,
132 Stat. 1510.
26
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http:// www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept re presentation 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.usc ourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD:
Washington, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board | MCLAUGHLIN_LAUREN_PH_844E_20_0282_I_1_FINAL_ORDER_2006258.pdf | 2023-02-27 | null | PH-844E | NP |
3,470 | https://www.mspb.gov/decisions/nonprecedential/HUNTINGTON_LUANNE_DE_844E_14_0314_B_1_FINAL_ORDER_2006264.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
LUANNE HUNTINGTON,
Appellant,
v.
OFFICE OF PERSONNEL
MANAGEMENT,
Agency.
DOCKET NUMBER
DE-844E -14-0314 -B-1
DATE: February 27, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL1
LuAnne Huntington , Layton, Utah, pro se.
Linnette L. Scott , Washington, D.C., for the agency.
BEFORE
Cathy A. Harris , Vice Chairman
Raymond A. Limon , Member
Tristan L. Leavitt , Member
FINAL ORDER
¶1 The appellant h as filed a petition for review of the remand initial decision,
which affirmed the reconsideration decision of the Office of Personnel
Management (OPM) , denying her application for disability retirement . Generally,
we grant petitions such as this one only in the following circumstances: the
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or dis tinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c).
2
initial decision contains erroneous findings of material fact; the initial decision is
based on an erroneous interpretation of statute or regulation or the erroneou s
application of the law to the facts of the case; the administrative judge’s rulings
during either the course of the appeal or the initial decision were not consistent
with required procedures or involved an abuse of discretion, and the resulting
error af fected the outcome of the case; or new and material evidence or legal
argument is available that, despite the petitioner’s due diligence, was not
available when the record closed. Title 5 of the Code of Federal Regulations,
section 1201.115 ( 5 C.F.R. § 1201.115 ). After fully considering the filings in this
appeal, we conclude that the petitioner has not established any basis under
section 1201.115 for granting the petition for review. Therefore, we DENY the
petition for review . Except as expressly MODIFIED to find that the appellant’s
Fully Successful rating was not emblematic of her abilities to perform her duties
under the specific circumstances of this case , we AFFIRM the remand initial
decision.
¶2 As an initial matter, we find that the appellant has established good cause
for her untimely filed petition for review. A petition for review must be filed
within 35 days after the date of issuance of the initial decision or, if the peti tioner
shows that the initial decision was received more than 5 days after the date of
issuance, within 30 days after the date the petitioner received the initial decision.
5 C.F.R. § 1 201.114 (e). The Board will waive this time limit only upon a
showing of good cause for the delay in filing. 5 C.F.R. § 1201.114 (g). To
establish good cause for the untimely filing of an appeal, a party must show that
she exercised due diligence or ordinary prudence under the particular
circumstances of the case. Alonzo v. Department of the Air Force , 4 M.S.P.R.
180, 184 (1980).
3
¶3 The appellant asserts that she faxed her petition for review to the Board on
November 3, 2016, before the November 7, 2016 deadline.2 Remand Petition for
Review (RPFR) File, Tab 3 at 3, 9, Tab 4 at 3-4. Although the appellant provided
no further explanation as to why the Board did not receive a faxed petition for
review on November 3, 2016, but did receive her petition for review 2 weeks
later, she included another fax cover sheet that sheds some li ght on the matter.
That handwritten cover sheet includes the date of November 3, 2016, the Board’s
correct fax number, and the Board’s correct pho ne number. RPFR File, Tab 3
at 1. Printed separately on the same sheet is a “Transaction Report,” listing a
date of “Nov/03/2016” and a “Receiver” that matches the Board’s phone (not fax)
number. Id. Therefore, it appears that the appellant attempted to file a timely
petition but failed to do so due to her own clerical error in dialing the wrong
number. The “Transaction Report” does not clearly show whether the fax
transmission was successful. Id.
¶4 We recognize that the appellant is pro se and it appears that she tried to fax
her petition to the Board’s phone (not fax) number on November 3, 2016, before
the filing deadline. Ordinarily, such a mistake would result in an error message,
indicating that the fax transmission was unsuccessful. However, there is no
indication on the “Transaction Report” that the fax transmission was
unsuccessful . Accordingly, u nder these unique circumstances, we find good
cause to excuse the untimeliness of the appellant’s petition for review .
2 In addition to recognizing the appellant’s untimeliness, the Acting Clerk observed that
the appellant failed to serve her petition for review on the agency. Remand Petition for
Review ( RPFR ) File, Tab 2 at 1. The Acting Clerk informed the appellant that the
Board would serve the agency with a copy of the petition for review but warned that the
appellant was responsible for serving the agency with any additional pleadings. Id.
The appellant responded that she was under the impression she was only required to
serve her petition for review on the Board. RPFR File, Tab 3 at 9, Tab 4 at 3 -4. To the
extent that the appellant construed the Acting Clerk’s notice concerning timeline ss as
resulting from the appellant’s failure to serve the agency, she is mistaken. Her failure
to serve the agency with the petition has no bearing on her untimeliness.
4
¶5 Furthermore, we find that the administrative judge did not err in cancelling
the hearing on remand. On review, the appellant does not deny that she withdrew
her hearing request. She does, however, assert that the administrative judge
advised her that the hearing “would probably not help.” RPFR File, Tab 1 at 4 -5.
We are not persuaded. The record demonstrates the administrative judge’ s
willingness to hold a hearing. Id. Not only did the administrative judge approve
the appellant’s requested witnesses, he also indicated that he would issue
subpoenas for those witnesses, if necessary. Id. In addition, he stated that he
would take all reasonable steps to accommodate their schedules. Id.
Accordingly, to the extent that the appellant argues that the administrative judge
erred by not holding a hearing, we disagree.
¶6 Finally, we conclude that the administrative judge properly affirmed OPM ’s
reconsideration decision denying the appellant’s application for disability
retirement. The appellant has not provided a basis on review for disturbing the
administrative judge’s decision in this regard.3 To the extent, however, that the
administrative judge relied upon the appellant’s Fully Successful performance
rating in sustaining OPM’s reconsideration decision, we modify the initial
decision to find that the rating was not emblematic of the appellant’s abilities to
perform her duties under the specific circumstances of this case.
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
3 On July 21, 2022, the Board issued an order providing the appellant with the
opportu nity to submit evidence pertaining to her current employment or retirement
status and any evidence relating to the issue of whether the appeal should be dismissed
as moot. RPFR File, Tab 5. The appellant did not respond.
4 Since the issuance of the initi al decision in this matter, the Board may have updated
the notice 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
your claims determines the time limit for seeking such review and the appropriate
forum with which to file. 5 U.S.C. § 7703 (b). Although we offer the following
summary of available appeal rights, the Merit Systems Protection Board does not
provide legal advice on which option is most appropriate for your situation and
the rights described below do not represent a statement of how courts will rule
regarding which cases fall within their jurisdiction. If you wish to seek 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 file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of partic ular
6
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by a n action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. ____ , 137 S. Ct. 1975 (2017). If you have a
representative in this case, and your representative receives this decision before
you do, then you must file with the district court no later than 30 calendar days
after your representative receives this deci sion. If the action involves a claim of
discrimination based on race, color, religion, sex, national origin, or a disabling
condition, you may be entitled to representation by a court -appointed lawyer and
to waiver of any requirement of prepayment of fees , costs, or other security. See
42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
7
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review 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
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.
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.
5 The original statutory provision that pro vided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file p etitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to Nov ember 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_L ocator/CourtWebsites.aspx .
FOR THE BOARD:
Washington, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board | HUNTINGTON_LUANNE_DE_844E_14_0314_B_1_FINAL_ORDER_2006264.pdf | 2023-02-27 | null | DE-844E | NP |
3,471 | https://www.mspb.gov/decisions/nonprecedential/STONER_NORMAN_R_CH_1221_14_0418_W_1_REMAND_ORDER_2006306.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
NORMAN R. STONER,
Appellant,
v.
DEPARTMENT OF
TRANSPORTATION,
Agency.
DOCKET NUMBER
CH-1221 -14-0418 -W-1
DATE: February 27, 2023
THIS ORDER IS NONPRECEDENTIAL1
James P. Baker , Esquire, Springfield, Illinois, for the appellant.
Russell B. Christensen , Esquire, and Mindy A. Kaiden , Esquire,
Washington, D.C., for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
Tristan L. Leavitt, Member
REMAND 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 denied the appellant’s request for
corrective action in this individual right of action (IRA) appeal . For the reasons
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c).
2
set for th below, we GRANT the petition for review and DENY the cross petition
for review, VACATE the initial decision, and REMAND the appeal to the Central
Regional Office for further adjudication in accordance with this Remand Order .
BACKGROUND
¶2 The appellant was the Division Administrator (DA) for the Illinois Division
of the agency’s Federal Highway Administration (FHWA). Initial Appeal File
(IAF), Tab 1 at 1, 11, Tab 18 at 24 of 38 . Historically, the Illinois Division
did not approve the use of project lab or agreements (PLAs), which are collective
bargaining agreements between procuring organizations (such as state
departments of transportation) and labor organizations that establish the terms
and conditions of employment for specific construction projects. IAF, Tab 23
at 123; Hearing Transcript, Day 1 (HT1) at 230 (testimony of the appellant). On
February 6, 2009, President Obama signed an Executive Order that encouraged
the use of PLAs in connection with large -scale construction projects,2 provided
the u se was consistent with law. IAF, Tab 23 at 123-25. Prior to the Order,
agencies were prohibited from allowing states to require that contractors use
PLAs on projects receiving Federal funds. Id. at 119. The Order reversed this
prohibition. Id. at 119-20.
¶3 In July of 2009, President Obama appointed a new FHWA Administrator.
Hearing Transcript, Day 2 (HT2 ) at 359 (testimony of the FHWA Administrator ),
438 (testimony of the appellant’s first -level supervisor). The FHWA
Administrator, Deputy Administrat or, and Office of the Chief Counsel had
authority over the agency’s review of PLAs. HT1 at 79 (testimony of the
appellant’s second -level supervisor). On May 7, 2010, the FHWA Administrator
issued interim guidance on the use of PLAs . IAF, Tab 23 at 119-22. This
2 The Executive Order defined the term “large -scale construction project” as “a
construction project where the total cost to the Federal Government is $25 million or
more.” IAF, Tab 23 at 123.
3
guidance assigned to the DAs the role of approving state use of PLAs. Id.; HT2
at 412 (testimony of the FHWA Administrator). Under the guidance, DAs were
to ensure that the use of a PLA for a particular project complied with all the
requirements of Titles 23 and 49 of the U.S. Code and Code of Federal
Regulations, including FHWA’s prohibition on one state discriminating against
the employment of labor from any other state. IAF, Tab 23 at 121; 23 C.F.R.
§ 635.117 (b). The interim guidance also directed division offices to ensure that
PLAs were used and structured in a manner so as to be “effective in securing
competition,” as required by 23 U.S.C. § 112, which governs the process for
awarding Federal -aid highway contracts. IAF, Tab 23 at 121.
¶4 In 2009 and 2010, the appellant, in coordination with FHWA’s Office of
Chie f Counsel, was responsible for reviewing and approving requests by the
Illinois Department of Transportation (IDOT) to use PLAs on Federal -aid
highway projects. IAF, Tab 1 at 11-12, Tab 18 at 28 of 38 ; HT1 at 81-82, 137
(testimony of the appellant’s secon d-level supervisor). Following the May 7,
2010 interim guidance, the FHWA Administrator and Deputy Administrator
centralized the approval process at FHWA headquarters. IAF, Tab 20 at 21; HT1
at 239-40 (testimony of the appellant); HT2 at 360, 413-14 (tes timony of the
FHWA Administrator ). Although the Illinois Division was no longer responsible
for approving PLA requests, it continued to receive them, and the appellant
provided recommendations and analysis regarding the requests before referring
them to F HWA’s Deputy Administrator. HT1 at 240-41 (testimony of
the appellant).
¶5 The number of PLAs in Illinois increased dramatically after the PLA
approval process was centralized, see IAF, Tab 23 at 190-99, and the appellant
became concerned that IDOT was usi ng PLAs to thwart competitive bidding and
discriminat e against out -of-state labor, HT1 244-48 (testimony of the appellant) .
On June 20, 2011, he met with two agents from the agency’s Office of Inspector
General (OIG) and alleged various improprieties rega rding implement ing PLAs in
4
Illinois. Id. at 8-9, 13 (testimony of an OIG agent), 249-51 (testimony of the
appellant); IAF, Tab 23 at 159-63. In particular, he alleged that State
Government, organized labor, and the Federal Government were conspiring to use
PLAs in Illinois to undermin e competitive bidding on Federal -aid highway
projects, as required by 23 U.S.C. § 112(a) and (b), by preventing nonunion
companies from working on large -scale construction projects. HT1 at 14
(testimony of an OIG agent) ; IAF, Tab 1 at 13, Tab 23 at 159. He further alleged
that PLAs were being used to prevent contractors outside the Stat e of Illinois
from bidding on Federal -aid projects , effectively discriminating against
out-of-state labor in violation of 23 C.F.R. § 635.117 (b). HT1 at 21-22
(testimony of an OIG agent ); IAF, Tab 1 at 13, Tab 23 at 160-61.
¶6 The appellant continued to provide the OIG with information during its
investigation . HT1 at 15 (testimony of an OIG agent ), 252 (testimony of the
appellant) ; IAF, Tab 45 at 77-78. In the meantime, on J uly 19, 201 2, the
appellant’s second -level supervisor informed the appellant that he was
reassigning him to the DA position in Indiana because a change in leadership in
Illinois was necessary due to “increasing tensions and issues ” between the
appellant and the Illin ois Division’s stakeholders. IAF, Tab 18 at 28-30 of 38 ;
HT1 at 107-09 (testimony of the appellant’s second -level supervisor ). The
appellant’s second -level supervisor testified that he decided to reassign the
appellant because of feedback the second -level supervisor received “over an
extended period of time” from (1) the FHWA Administrator regarding FHWA’s
“relationships with [its] partners and stakeholders in Illinois” and (2) the
appellant’s first -level supervisor about the appellant’s “leadership style .”
HT 108-09 (testimony of the appellant’s second -level supervisor). The
appellant’s request for reconsideration of this decision was unsuccessful, and he
filed an administrative grievance of his reassignment. IAF, Tab 18 at 7-15 of 20 ,
5-15 of 28, Tab 23 at 188-89.
5
¶7 The individual assigned by the agency as the fact -finder in connection with
the appellant’s grievance recommended to the appellant’s second -level supervisor
that he not reassign the appellant. IAF, Tab 26 at 16-19. He noted that the
agency’s action was inconsistent with the appellant’s past performance
evaluations, which were positive; the ap pellant was not provided with a formal
opportunity to improve his perceived performance deficiencies; the decision to
reassign him to another lead ership position contradicted the stated reasons for his
reassignment; and his reassignment may have been “politically motivated.” Id.
On December 20, 2012, the appellant’s second -level supervisor denied the
grievance but laterally reassigned the appellan t to a position as Senior Advisor to
the Director of Field Services North, effective January 13, 2013. IAF, Tab 18
at 22, 30 of 38, 17-18 of 28. This position allowed the appellant to remain in
Illinois. Id. at 22-24 of 38.
¶8 The appellant then filed a c omplaint with the Office of Special Counsel
(OSC), alleging that the agency reassigned him in retaliation for his disclosures to
the OIG. IAF, Tab 33 at 21-69. After OSC issued a close -out letter advising the
appellant of his right to file a n appeal with the Board, id. at 95-96, the appellant
timely filed this IRA appeal , IAF, Tab 1.
¶9 On Febr uary 11, 2014, the OIG completed a report of investigation
regarding the appellant’s allegations. IAF, Tab 45 at 74-82. Three days later, it
issued a letter to the new FHWA Illinois DA stating that it was closing its
investigation into the complaint, which it identified as anonymous, because the
U.S. Department of Justice had declined to pursue any civil or criminal actions in
connection with the matter. IAF, Tab 33 at 16-17. The OIG stated in this letter
that “inter views and analyses were inconclusive” regarding the allegations of
misuse of PLAs. Id. at 17. It went on to indicate that it had uncovered evidence
that the IDOT had suspended a nonunion contractor ba sed “solely on information
from an Illinois union rather than relying on the IDOT’s audit report, which had
no findings.” Id.
6
¶10 Following a hearing, the administrative judge issued an initial decision in
which she found that the Board has jurisdiction o ver the appeal but denied the
appellant’s request for corrective action. IAF, Tab 54, Initial Decision (ID)
at 8-11, 23. The administrative judge found that the appellant made a protected
disclosure under the Whistleblower Protection Enhancement Act of 2 012
(WPEA), Pub. L. No. 112-199, 126 Stat. 1465 ; ID at 12-14, but failed to prove
that his disclosure was a contributing factor in the decision to reassign him , ID
at 14-19. The administrative judge further found, however, that if the appellant
had met hi s burden of proving contributing factor, he would have been entitled to
corrective action because the agency failed to prove by clear and convincing
evidence that it would have reassigned him absent his whistleblowing activity.
ID at 20-22.
¶11 On petition for review, the appellant challenges the administrative judge’s
finding that he did not prove the contributing factor element of his claim.
Petition for Review (PFR) File, Tab 1. In particular, he alleges that the
administrative judge improperly credited the testimony of the agency officials
involved in his reassignment, who denied knowledge of his disclosures. Id.
at 17-21. He also argues that the administrative judge erred by treating the
knowledge/timing test as the exclusive method for proving contr ibuting factor, id.
at 12, and he asserts that he met the burden of proving contributing factor based
on circumstantial evidence , id. at 13-16, 21 -26. In addition, he contends that the
administrative judge abused her discretion by denying his request to c all various
witnesses. Id. at 26-27.
¶12 The agency has filed a response to the petition for review and a cross
petition for review . PFR File, Tabs 3-4. It asserts that the appellant failed to
make a protected disclosure under the Whistleblower Protection Act (WPA) or
the WPEA, and it further contends that the administrative judge improperly
applied the WPEA retroactively. PFR File, Tab 3 at 5, 11 -26. The appellant has
7
filed a response to the cross petition for review3 and a reply to the agency’s
respons e to the petition for review. PFR File, Tabs 6-7.
ANALYSIS
The administrative judge correctly found that the appellant’s disclosures to the
OIG were protected.
¶13 Because the administrative judge properly concluded that jurisdiction exists
in this matter, the appellant is required to 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. Mastrullo v. Department of Labor , 123 M.S.P.R. 110 , ¶ 12 (2015);
see 5 U.S.C. § 1221 (e)(1). To establish that he made a protected disclosure , the
appellant must demonstrate by preponderant evidence that he disclosed
information that he reasonably believ ed evidenced a violation of law, rule, or
regulation, gross mismanagement, a gross waste of funds, an abuse of authority,
or a substantial or specific danger to public health or safety . 5 U.S.C.
§ 2308(b)(8)(A) -(B); Mithen v. Department of Veterans Affairs , 119 M.S.P.R.
215, ¶ 13 (2013). If the appellant makes out a prima facie case, then the agency
is given an opportunity to prove, by clear and convincing evidence, that it would
have taken the same personnel action in the absence of the protected disclosure.
5 U.S.C. § 1221 (e)(1) -(2); Mastrullo , 123 M.S.P.R. 110 , ¶ 12.
¶14 As previously noted, in its cross petition for review, the agency argues that
the administrative judge improperly applied the WPEA retroactively. PFR File,
Tab 3 at 5, 22 -26; ID at 9-11. It further asserts that the appe llant’s disclosures to
the OIG were not protected under the prior WPA because he made them during
the normal course of his duties . Id. at 6, 11-17. We disagree.
3 Given our finding below that the appellant made a protected disclosure, we need not
address his assertion that the agency is estopped from arguing his disclosures are not
protected. PFR File, Tab 7 at 6-7.
8
¶15 The WPEA was signed into law on November 27, 2012, with an effective
date of December 27, 2012. Pub. L. No. 112-199, 126 Stat. 1465 . Section 101(b)
of the WPEA provided, as relevant here, that a disclosure made by an employee
in the “normal course of [his] duties” was not excluded from protection if the
employee could show that “in reprisal for the disclosure” the agency took a
perso nnel action. 126 Stat. at 1466 (codified as amended at 5 U.S.C.
§ 2302 (f)(2)); see Salazar v. Department of Veterans Affairs , 2022 MSPB 42 ,
¶¶ 9, 21 (concluding that the National Defense Authorization Act for 2018, Pub.
L. No. 115-91, § 1097(c)(1)(B)(ii), 131 Stat. 1283, 1618 , clarified that the
slightly higher “in reprisa l for” burden set forth in 5 U.S.C. § 2302 (f)(2) applies
only to employees whose principle job functions are regularly investigating and
disclosing wrongdoing). This case is unusual in that the ag ency issued the
decision reassigning the appellant to the Senior A dvisor position before
December 27, 2012 , but his directed reassignment did not become effective until
January 13, 2013. IAF, Tab 18 at 22 of 38, 17 -18 of 28. However, even before
the WPEA was enacted, the U.S. Court of Appeals for the Federal Circuit
interpreted the WPA as protecting an employee who reports wrongdoing outside
of normal channels. Huffman v. Office of Personnel Management , 263 F.3d 1341 ,
1354 (2001), superseded by the WPEA as stated in Schoenig v. Department of
Justice , 120 M.S.P.R. 318 , ¶¶ 11-12 (2013) ; see Ontivero v. Department of
Homeland Security , 117 M.S.P.R. 600, ¶¶ 16-17 (2012) (finding that an
employee’s disclosures to agency officials in upper management were protected
regardless of whether they were within the normal course of her duties because
she did not make them within normal channels) . Here the appe llant made the
disclosures at issue to the agency’s OIG, which was outside of normal channels.
HT1 at 248-50 (testimony of the appellant). Therefore, the administrative judge
properly found that the appellant’s disclosures were protected.4 ID at 9-11.
4 The WPEA also expanded the Board’s IRA jurisdiction to include claims of reprisal
9
¶16 The agency further argues on review, as it did below, that the appellant’s
disclosures to the OIG were not protected because he did not allege wrongdoing
by any Federal employee or entity. PFR File, Tab 3 at 17-19; IAF, Tab 53
at 12-13. The administrati ve judge properly rejected this argument in the initial
decision. ID at 12-14. Disclosures of wrongdoing by a state entity may
constitute protected disclosures when the Federal Government’ s interests and
good name are implicated in the alleged wrongdoing . Miller v. Department of
Homeland Security , 99 M.S.P.R. 175 , ¶¶ 3, 12 -13 (2005). As previously noted, in
his disclosures, the a ppellant alleged that the approval process for PLA requests
in Illinois was contrary to 23 U.S.C. § 112(a) and (b ) and 23 C.F.R. § 635.117 (b).
Because FHWA was responsible for approving PLA requests, these disclosures
implicated the legality of its actions. IAF, Tab 20 at 21.
¶17 On review, the agency also reiterates its argument from below that the
appellant’s disclosures were not protected because they merely expressed his
disagreement with the agency’s policy of encouraging the use of PLAs on
Federal -aid highway projects. PFR File, Tab 3 at 19-22; IAF, Tab 53 at 14-17;
see Webb v. Department of the Interior , 122 M.S.P.R. 248 , ¶ 8 (2015) (holding
that policy disagreements with agency decisions or actions are not protected
unless they separately constitu te a protected disclosure of one of the categories of
wrongdoing listed in 5 U.S.C. § 2302 (b)(8)(A)). The administrative judge
correctly rejected this argument in the initial decision, finding tha t the appellant’s
objection to the PLA approval process extended beyond a belief that it was “a
for a personnel action taken as a result of a prohibited personnel practice described in
5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D). Colbert v. Department of Veterans
Affairs , 121 M.S.P.R. 677 , ¶ 6 (2014). Because we agree with the administrative
judge’s finding that the appellant made protected disclosures over which the Board has
IRA jurisdiction, we find it unnecessary to determine whether the Board alternatively
has IRA juri sdiction over the appellant’s cooperation with the agency’s OIG, which is a
protected activity under 5 U.S.C. § 2302 (b)(9)(C). See Colbert , 121 M.S.P.R. 677 ,
¶¶ 2, 7 (declining to give retroactive effect to the WPEA’s expanded IRA appeal rights
over protected activities described in section 2302(b)(9)(A)(i) and (b)(9)(C) when all of
the relevant events took place prior to the effective date of the WPEA).
10
radical departure from former practice,” as argued by the agency. ID at 14
(quoting IAF, Tab 53 at 15); PFR File, Tab 3 at 20. Rather, as the administrative
judge found, the appellant’s allegations concerned violations of Federal laws and
regulations regarding the competitive bidding process. ID at 14; see 23 U.S.C.
§ 112; 23 C.F.R. § 635.117 . Thus, we find no reason to disturb the administrative
judge’s finding that the appellant met his burden of proving that his disclosures to
the OIG were protected.
The administrative judge cor rectly found that the appellant failed to prove that his
disclosures were a contributing factor in his reassign ment under the
knowledge/timing test.
¶18 Having found that the appellant proved by preponderant evidence that his
disclosures to the OIG were prot ected, we turn to the question of whether he
proved that they were a contributing factor in the agency’s decision to reassign
him. A protected disclosure is a contributing factor if it in any way affects an
agency’s decision to take a person nel action. Dorney v. Department of the Army ,
117 M.S.P.R. 480 , ¶ 14 (2012) . One way to establish contributing factor is the
knowledge/timing test. Wadhwa v. Department of Veterans Affairs , 110 M.S.P.R.
615, ¶ 12, aff’d per curiam , 353 F. App’x 435 (Fed. Cir. 2009) . Under tha t test,
an appellant can prove the contributing factor element through evidence showing
that the official taking the personnel action knew of the disclosure and that the
personnel action occurred within a period of time such that a reasonable person
could conclude that the disclosure was a contributing factor in the personnel
action. Id.
¶19 An appellant also may satisfy the knowledge prong of the knowledge/timing
test by proving that the official taking the action had constructive knowledge of
the protected disclosure, even if the official lacked actual knowledge. Nasuti v.
Department of State , 120 M.S.P.R. 588, ¶ 7 (2014). An appel lant may establish
constructive knowledge by showing that an individual with actual knowledge of
the disclosure influenced the official accused of taking the retaliatory action. Id.
11
¶20 The appellant’s second -level supervisor testified that he decided to reassign
the appellant based on the feedback of the appellant’s immediate supervisor and
the FHWA Administrator. HT1 at 110, 116 (testimony of the appellant’s
second -level supervisor ); HT2 at 439-40 (testimony of the appellan t’s immediate
supervisor). T he administrative judge found credible the hearing testimony of the
appellant’s first - and second -level supervisors and of the FHWA Administrator
that they did not know about the appellant’s disclosure or his involvement with
the OIG until after his reassignment . ID at 15-16; HT1 at 169 (testimony of the
appellant’s second -level supervisor ); HT2 at 421-22 (testimony of the FHWA
Administrator ), 502-03 (testimony of the appellant’s immediate supervisor ).
Applying the factors for resolving credibility issues set forth in Hillen v.
Department of the Army , 35 M.S.P.R. 453 , 458 (1987), the administrative judge
foun d that these witnesses “gave unrebutted, forthright, and unequivocal
testimony that was consistent and unambiguous regarding their lack of knowledge
about the appellant’s OIG complaint.” ID at 15.
¶21 The appellant challenges these findings on review, reite rating his argument
from below that these witnesses were not credible because of inconsistencies in
their testimony. PFR File, Tab 1 at 17-19; IAF, Tab 52 at 36-40. More
specifically, the appellant asserts that his second -level supervisor’s testimony tha t
he received continuous feedback from the Administrator —concerning
congressional and stakeholder complaints about the appellant over an extended
period of time —is inconsistent with the Administrator’s testimony that he
received , and passed on, only three such complaints.5 PFR File, Tab 1 at 17-21;
5 The appellant also argues that his second -level supervisor contradicted himself by
testifying at one point that he received feedback from the appellant’s immediate
supervisor prior to making the reassignment decision, and at a different poin t that he
did not have any discussions with her during the relevant timeframe. PFR File, Tab 1
at 19 (citing HT1 at 110-112 (testimony of the appellant’s second -level supervisor) ).
However, our review of the testimony reveals that the appellant’s second -level
supervisor consistently testified that he received feedback from the appellant’s
12
HT1 at 86-89, 108 -10 (testimony of the appellant’s second -level supervisor ); HT2
at 396-402 (testimony of the FHWA Administrator ); IAF, Tab 52 at 37-38.
¶22 The administrative judge addressed this argument in the initial decision and
found that any differences w ere “attributable more to the length of time between
the events in question and the hearing , than to any attempt at deception or lack of
forthrightness. ”6 ID at 15. The appellant challenges this finding on review,
arguing that it is unlikely that his second -level supervisor would “suffer a
memory lapse” during the hearing because FHWA attorneys and human resources
professionals previously coached the supervisor for a September 2012 meeting he
had with the a ppellant to explain the reason for his reassignment. PFR File,
Tab 1 at 20.
¶23 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 he aring; the Board overturn s such determinations only
when it has “sufficiently sound” reasons for doing so. See Haebe v. Department
of Justice , 288 F.3d 1288 , 1301 (Fed. Cir. 2002). Here, the administrative
judge’s credibility determinations were based explicitly on her observing and
assessing the agency officials’ demeanor during the hearing. ID at 15-16. While
the appellant disagrees with the credibility determinations, we find his challenges
are not sufficiently sound to overturn them. The inconsistencies in the hearing
testimony cited by the appellant do not involve the issue of whether the agency
officials had knowledge of the appellant’s disclosure, and the appellant does not
challenge the administrative judge’s finding that the witnesses consistently
testified that they did not know about his disclosures. ID at 15. Thus, we agree
with the administrative judge that the appellant did not show that his second -level
immediate supervisor. E.g., HT1 at 83-84, 86 -88, 108, 110 -112, 141 (testimony of the
appellan t’s second -level supervisor).
6 The hearing in this case took place in June 2015, four years after the appellant’s initial
disclosure to the OIG and almost 2½ years after his reassignment. ID at 1.
13
supervisor had actual knowledge of his protected disclosures when he decided to
reassign the appellant. ID at 16.
¶24 The administrative judge then considered whether the appellant proved
contributing factor by showing that his se cond -level supervisor had constructive
knowledge of his whistleblowing. ID at 17-19. The appellant argued that
officials in the Office of the Secretary of Transportation (OST) who knew or
should have known of his disclosures directed FHWA officials to re place him as
Illinois DA. ID at 18; IAF, Tab 52 at 46. The administrative judge observed that,
in support of his argument that OST officials were aware of his disclosures, the
appellant relied on a letter to the Secretary of Transportation from a union o fficial
dated December 18, 2012, i.e., before the appellant’s upcoming transfer became
public knowledge, asking the Secretary to consider IDOT’s Chief Counsel for the
Illinois DA position. ID at 18; IAF, Tab 33 at 100-03; HT1 at 348 (testimony of
the appellant) . The administrative judge found that no reasonable person could
conclude that OST officials had constructive knowledge of the appellant’s
disclosures based on this letter , as it did not reference any whistleblowing
matters . ID at 18. The admi nistrative judge further found that it was likely that
IDOT officials were aware that the appellant’s position could become vacant
“long before” the letter because the appellant apparently informed IDOT in
October 2012 that the FHWA was reviewing his effec tiveness in his position, and
he had asked his second -level supervisor to contact IDOT’s Secretary of
Transportation about his working relationship with her. Id.
¶25 The appellant challenges this finding on review, arguing that neither he nor
his second -level supervisor notified IDOT of his reassignment before it became
public knowledge. PFR File , Tab 1 at 23 n.8 (citing HT1 at 116-18, 120, 156 -57
(testimony of the appellant’s second -level supervisor )). He reasons that, because
his reassignment was not pub licly known when the letter was sent, the labor
official could have been aware of the upcoming vacancy in the Illinois DA
position only through FHWA Headquarters or OST. PFR File, Tab 1 at 23 n.8.
14
¶26 This argument is unavailing. Even assuming that OST off icials were aware
of the appellant’s reassignment, he still has not shown that they were aware of his
disclosures. Thus, we discern no reason to disturb the administrative judge’s
finding that the appellant failed to show that anyone in FHWA or OST had ac tual
or constructive knowledge about his disclosures. ID at 18.
We remand this appeal for further findings as to whether the appellant
proved contributing factor notwithstanding his failure to satisfy the
knowledge/timing test.
¶27 We next consider the ap pellant’s argument on review that the administrative
judge improperly treated the knowledge/timing test as the exclusive method for
proving contributing factor. PFR File, Tab 1 at 12. The agency argues that,
absent evidence that anyone with knowledge of the appellant’s OIG disclosures
was involved in or influenced the reassignment decision , the appellant cannot
prove contributing factor. PFR File, Tab 4 at 19-20. Yet the knowledge/timing
test is not the only way an appellant can establish that his protected disclosures
were a contributing factor in the agency’s decision to take a personnel action
against him. It is the agency, not its individual officials, from whom an appellant
seeks corrective action, and actual knowledge by a single official is not
dispositive. See Dorney , 117 M.S.P.R. 480 , ¶ 12. An employee is not required to
prove retaliatory motive. Rather, he “only needs to demonstrate . . . that the fact
of, or the content of, the protected disclosure was one of the factors that tended to
affect in any way the personnel action.” Marano v. Department of Justice , 2 F.3d
1137 , 1141, 1143 (Fed. Cir. 1993).7 Any weight given to a whistleblowing
7 Historically, the Board has been bound by the prece dent of the U.S. Court of Appeals
for the Federal Circuit on these types of whistleblower issues. However, pursuant to
the All Circ uit Revie w Act, Pub. L. No. 115-195, 132 Stat. 1510 , appellants may file
petitions for judicial review of Board decisions in whistleblower reprisal cases with any
circuit court of appeals of competent jurisdiction. See 5 U.S.C. § 7703 (b)(1)(B) .
Therefore, we must consider these issues with the view that the appellant may seek
review of this decision before any appropriate court of appeal.
15
disclosure, either alone or in combination with other factors, can satisfy the
contributing factor standard. Dorney , 117 M.S.P.R. 480 , ¶ 15.
¶28 The Board has held that, if an administrative judge determines that an
appellant has failed to satisfy th e knowledge/timing test, she shall consider other
evidence, such as evidence pertaining to the strength or weakness of the agency’s
reasons for taking the personnel action, whether the whistleblowing was
personally directed at the proposing or deciding off icials, and whether they had a
desire or motive to retaliate against the appellant. Id., ¶ 15; Powers v.
Department of the Navy , 69 M.S.P.R. 150 , 156 (1995). We note that these factors
are a nonexhaustive list of the evidence that may be relevant to a contributing
factor determination. See Dorney , 117 M.S.P.R. 480 , ¶ 15 (reflecting that the
listed factors are the types of factors to be considered). The administrative judge
did not address the alternative to the knowledge/timing test set forth in Dorney .
ID at 14-19.
¶29 As discussed above, i f the appellant makes out a prima facie case, then the
agency is given an opportunity to prove, by clear and convincing evidence, that it
would have taken the same personnel action in the absence of the protected
disclosure. Mastrullo , 123 M.S.P.R. 110 , ¶ 12. Althou gh the administrative
judge did not make findings as to whether the appellant proved contributing
factor by means other than the knowledge/timing test, she did find that the agency
failed to prove by clear and convincing evidence that it would have reassigned the
appellant absent his disclosures. ID at 20-22. Specifically, she found tha t the
record did not support the appellant’s second -level supervisor’s purported reasons
for the reassignment. ID at 21-22. She observed that the appellant’s
reassignment “appears to have been made for political expedience,” rather than
for the agency’s stated reasons. ID at 22.
¶30 We note that some of the factors to be considered in assessing whether the
agency has proven that it would have taken an action in the absence of protected
activity are similar to those to be considered at the contributing fact or stage in a
16
Dorney analysis. See Carr v. Social Security Administration , 185 F.3d 1318 ,
1323 (Fed. Cir. 1999) (in determining whether an agen cy has shown by clear and
convincing evidence that it would have taken the same personnel action in the
absence of whistleblowing, the Board will consider all the relevant factors,
including the following: the strength of the agency’s evidence in support of its
action; the existence and strength of any motive to retaliate on the part of the
agency officials who were involved in the decision; and any evidence that the
agency takes similar actions against employees who are not whistleblowers but
who are othe rwise similarly situated). However, the Board may not proceed to
the clear and convincing evidence test unless it has first made a finding that the
appellant established his prima facie case. Clarke v. Department of Veterans
Affairs , 121 M.S.P.R. 154 , ¶ 19 n.10 (2014), aff’d per curiam , 623 F. App’x 1016
(Fed. Cir. 2015).8 Accordingly, the administrative judge should not have
proceeded to the clear and convincing analysis without first determining whether
the appellant proved contributing factor pursuant to Dorney , and we must vacate
the initial decision’s findings regarding whether the agency met its burden by
clear and convincing evidence.
¶31 Further constraining us from relying on the administrative judge’s clear and
convincing findings in assessing the Dorney factors is the fact that the appellant,
and not the agency, bear s the burden of proving contributing factor, and that
burden is preponderant evidence. Wadhwa , 110 M.S.P.R. 615 , ¶ 12. Relying on
the administrative judge’s now -vacated findings would effectively shift the
burden of proof on the contributing factor element to the agency.
¶32 On review, the parties dispute the strength of the agency’s reasons for
reassigning the appellant. PFR File, Tab 1 at 25-26, Tab 4 at 15-19, 24. The
8 Although the U.S. Court of Appeals for the 7th Circuit has disagreed with the Board’s
decision in Clar ke, it did so other grounds. Delgado v. Merit Systems Protection Board ,
880 F.3d 913 , 923 -25 (7th Cir.), as amended on denial of reh’g and reh’g en banc
(7th Cir. 2018).
17
appellant also addresses other factors he believes are relevant to a determination
of contributing factor under Dorney . PFR File, Tab 1 at 14-17. We find that we
are un able to resolve these issues on review.
¶33 During th e hearing , the appellant’s second -level supervisor testified that he
reassigned the appellant because the Illinois Division needed new leadership so
that it could improve its relationship with its stakeholders. HT1 at 87-89, 107-12,
151-52, 158 (testimony of the appellant’s second -level supervisor ). The FHWA
Administrator and the appellant’s first -level supervisor provided similar
testimony. The FHWA Administrator testified that the appellant was not
sufficiently innovative or collaborative, HT2 at 406-07 (testimony of the FHWA
Administrator ), and the appellant’s first -level supervisor testified that the
appellant was not collaborative and that his relationship with IDOT “wasn’t
exactly where it needed to be” when he was reassigned , id. at 450-51, 46 2-63
(testimony of the appellant’s first -level supervisor ). The agency argues on review
that these explanations justified its reassignment decision. PFR File, Tab 4
at 15-19.
¶34 As the administrative judge observed in conducting her analysis of the
agency’s ca se, there is evidence undermining the agency’s rationale. ID at 22.
For example, on July 5, 2012, just 2 weeks before the appellant’s second -level
supervisor advised him that he intended to reassign him, the appellant’s first -level
supervisor presented t he appellant with his performance appraisal for the period
from June 1, 2011, to May 31, 2012. IAF, Tab 5 at 58. She provided him with a
summary rating of Exceeds Expectations. Id. She also rated him as Exceeds
Expectations in his critical performance element of “National Leadership,”
commenting that the appellant “is now regularly meeting with the IDOT Secretary
and various Deputy Directors of Highways” and “is building a strong relationship
with the Chicago DOT commissioner.” Id. at 59, 65. Accordin g to her hearing
testimony, by the spring of 2012, while “still not great,” the appellant’s
relationship with his state partners was “getting better.” HT2 at 528-29.
18
Similarly, i n his hearing testimony, the appellant disputed the agency’s claim that
he w as not receptive to innov ation, and he asserted that he collaborated and built
relationships with his state partners and stakeholders throughout his career. HT1
at 193-96, 196, 261 -62, 273, 292-93 (testimony of the appellant) . On remand, the
administrative judge must make credibility findings to resolve the
conflicting testimony.
¶35 We next consider whether the disclosures were personally directed at the
agency officials involved in the appellant’s reassignment. See Dorney ,
117 M.S.P.R. 480 , ¶ 15. The agency argues that the agency officials wh o
reassigned the appellant were not personally named in, or impa cted by, the OIG
complaint. PFR File, Tab 4 at 22. It also asserts that t he OIG “did not
substantiate ” the appellant ’s allegations.9 Id. The administrative judge did not
address this issue. Therefore, we must remand it for her to assess the evidence
and make credibility findings in the first instance.
¶36 The final factor specifically listed in Dorney , 117 M.S.P.R. 480 , ¶ 15, is
whether the individuals involved in the appellant’s reassignment had a desire or
9 We are not persuaded by the agency’s suggestion that the OIG’s report, in essence,
cleared the agency of wrongdoing. The issue before the Board is how the OIG
investigation may have contributed to the agency’s actions at the time that it took them,
rather than when the rep ort was concluded, which was 13 months after the appellant
was already in his new position. IAF, Tab 18 at 22, Tab 45 at 74; see Sherman v.
Department of Homeland Security , 122 M.S.P.R. 644 , ¶¶ 5, 8-11 (2015) (analyzing the
issue of whether the appellant nonfrivolously alleged he met the knowledge/timing test
by looking at whether the acting agency official knew of the appellant’s disclosure at
the time he took the action). The OIG determined that the appellant’s allegations were
serious enough to warrant an investigation. HT1 at 56-57 (testimony of an OIG agent).
While the OIG’s re port was ultimately inconclusive as to whether PLAs were being
used improperly in Illinois, there was enough information to refer to the U.S.
Attorney’s Office for possible action. HT1 at 11-12 (testimony of an OIG agent); IAF,
Tab 33 at 16-17. Further, the investigation was extensive, resulting in approximately
12 in -person interviews and taking over 2 years. HT1 at 40, 43 (testimony of an OIG
agent); IAF, Tab 45 at 74-83. Finally, the investigation uncovered an instance when the
IDOT suspended a contractor based on insufficient information. IAF, Tab 33 at 17.
Therefore, the agency’s argument regarding the OIG’s findings appears to be neither
accurate nor relevant to the contributing factor criterion.
19
motive to retaliate against him. However, as discussed above, we have found the
administrative judge properly determined that those involved in the reassignment
decision had n o actual or constructive knowledge of the appellant’s disclosures.
Therefore, at the time they made the decision, these officials could have had no
desire or motive to retaliate. Geyer v. Department of Justice , 70 M.S.P.R. 682 ,
693 (1996) (observing that disclosures of which a deciding official has neither
knowledge nor constructive knowledge cannot contribute toward any retaliatory
motive on his part), aff’d per curiam , 116 F.3d 1497 (Fed. Cir. 1997) (Table).
¶37 Other evidence may be relevant to a contributing factor determination. For
example, the appellant argues that the timing of the agency’s action is suspicious.
PFR File, Tab 1 at 14-17. He disagrees with the agency’s contention that the
timing was related to the availability of the Indiana DA position , pointing to
testimony by his first -level supervisor that this was just one of approximately
20 DA position s that became open during the 4 years preceding his reassignment.
PFR File, Tab 1 at 26; HT2 at 535 (testimony of the appellant’s first -level
supervisor). To the extent that the agency justified its timing based on the
complaints of stakeholders, he argues that his allege d difficulties with the IDOT
and unions dated back to February 11, 2011 and prior, while the only “thing of
significance” that occurred closer to when his reassignment was first proposed in
July 2012 was “the OIG’s investigation.” PFR File, Tab 1 at 14-16; HT1
at 90-91, 108 -12 (testimony of the appellant’s second -level supervisor), 254 -55
(testimony of the appellant); HT2 at 367-68, 374 -82, 394 -402, 415 -16 (testimony
of the FHWA Administrator); IAF, Tab 23 at 111, 116 -17, 129, 136.
¶38 In connection with its investigation, the OIG began to interview IDOT
officials in December 2011, approximately 7 months prior to the July 2012
reassignment decision. HT1 at 51-53 (testimony of an OIG agent). Further, the
OIG interviewed other IDOT officials and a state repre sentative before
December 2012, when the appellant’s second -level supervisor denied the
appellant’s administrative grievance of his reassignment. HT1 at 51-53
20
(testimony of an OIG agent) ; IAF, Tab 18 at 30. We agree with the appellant that
the administra tive judge should make findings regarding whether and to what
extent the timing suggests the appellant’s protected disclosures led to the
agency’s decision.
¶39 The record in this appeal was fully developed below and, as outlined above,
the parties have presented extensive arguments regarding contributing factor on
review . Because the appellant and the agency ’s witnesses provided co nflicting
testimony regarding the agency’s purported reasons for reassigning the appellant,
i.e., his management style and his relationship with the Illinois Division’s
stakeholders, credibility remains an issue. Accordingly, we remand this appeal to
the admin istrative judge to make further findings.
¶40 On remand, the administrative judge must consider whether the appellant
has established that his protected disclosures were a contributing factor in the
agency’s decision to reassign him. This analysis shou ld include consideration of
the relevant evidence. See Dorney , 117 M.S.P.R. 480 , ¶ 15. Further, it should
include a discussion o f any evidence that the appellant’s OIG disclosures set in
motion a course of events that led to his reassignment. See Marano , 2 F.3d
at 1141 -43. If, after this analysis, the administrative jud ge finds that the
appellant has not established that his protected disclosures were a contributing
factor in the agency’s decision to reassign him, the administrative judge must find
that the appellant is not entitled to corrective action.
The appellant has not shown that the administr ative judge abused her di scretion
by denying his witness requests.
¶41 Finally, we consider the appellant’s argument on review that the
administrative judge abused her discretion by disapproving as witnesses FHWA’s
Deputy Administrator10 and four IDOT employe es, three of whom were
10 The appellant’s contention that the administrative judge disapproved his witness
request for FHWA’s Deputy Administrator appears to be incorrect. In her May 26,
2015 status conference summary, the administrative judge s tated that the appellant
21
interviewed by the OIG before the appellant’s reassignment. PFR File, Tab 1
at 26-27. The appellant contends that the testimony of these witnesses would
have established that persons involved in his reassignment had knowledge of hi s
disclosure s. Id. at 27.
¶42 During a prehearing conference, the administrative judge stated that she
would defer ruling on the appellant’s witness requests for the IDOT employees
until she received his response to her order directing him to set forth facts which,
if true, would show that his second -level supervisor was impro perly influenced by
an IDOT official . IAF, Tab 28 at 3, Tab 30 at 4-5, Tab 37 at 1. In his response to
that order, the appellant alleged that his second -level supervisor informed him
during their July 2012 meeting that the decision to reassign him had been made
by the FHWA Administrator in consultation with unnamed persons in OST. IAF,
Tab 33 at 44, 98 -99. The administrative judge denied the appellant’s witness
requests for the IDOT e mployees because he di d not allege that any of them
consulted with or influenced the Administrator or the appellant’s second -level
supervisor . IAF, Tab 37. Because the appellant did not file any objections to the
administrative judge’s ruling, he is prec luded fro m raising this issue on review.
See Tarpley v. U.S. Postal Service , 37 M.S.P.R. 579 , 581 (1988) (holding that the
appellant ’s failure to timely object to rulings on witnesses preclud es his doing so
on petition for review).
ORDER
¶43 For the reasons discussed above, we remand this case to the Central
Regional Office for the administrative judge to issue a new remand initial
decision in accordance with this Remand Order. The administrative judge may
adopt in her remand initial decision her prior findings that the appellant met his
withdrew this request. IAF, Tab 44 at 2 n.1. The appellant had an opportunity to object
to the accuracy of the summary, id. at 4, but failed to do so. Consequently, we need not
address this witness request further. Tarpley v. U .S. Postal Service , 37 M.S.P.R. 579 ,
581 (1988).
22
burden to prove that the Board has jurisdiction over this appeal and that he met
his burden to prove by preponderant evidence that he made a protected disclosure.
If she determines that the appellant met his burden to prove contributing factor,
she may also adopt her prior finding that the agency did not prove by clear and
convincing evidence that it would have reassigned the appellant absent his
protected disclosures.
FOR THE BOARD:
Washington, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board | STONER_NORMAN_R_CH_1221_14_0418_W_1_REMAND_ORDER_2006306.pdf | 2023-02-27 | null | CH-1221 | NP |
3,472 | https://www.mspb.gov/decisions/nonprecedential/MATTISON_LAWRENCE_E_DC_0752_16_0350_I_3_REMAND_ORDER_2006334.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
LAWRENCE E. MATTISON ,
Appellant,
v.
DEPARTMENT OF VETERA NS
AFFAIRS,
Agency.
DOCKET NUMBER
DC-0752 -16-0350 -I-3
DATE: February 27, 2023
THIS ORDER IS NONPRECEDENTIAL1
Lawrence E. Mattison , Hampton, Virginia, pro se.
Timothy M. O’ Boyle , Esquire, Hampton, Virginia, for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
Tristan L. Leavitt, Member
REMAND ORDE R
¶1 The appellant has filed a petition for review of the initial decision, which
sustained his removal . For the reasons discussed below, we GRANT the
appellant’s petition for review , VACATE the initial decision, and REMAND 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 administ rative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c).
2
case to the regional office fo r further adjudication in accordance with this
Remand Order.
DISCUSSION OF ARGUME NTS ON REVIEW
¶2 The appellant held the position of Housekeeping Aid (Leader) at an agency
medical center in Hampton, Virginia. Mattison v. Department of Veterans
Affairs , MSPB Docket No. DC -0752 -16-0350 -I-1, Initial Appeal File (IAF),
Tab 12 at 10. In August 2015, the agency indefinitely suspended him in
connection with his arrest for violating a protective order and stalking another
agency employee.2 Id. at 36 -40. Later , the agency proposed and effectuated his
removal based on the same underlying circumstances. Id. at 10-34.
¶3 The appellant filed a Board appeal challenging his removal. IAF, Tab 1.
The administrative judge dismissed the initial appeal, without prejudice , while the
appellant faced related criminal charges. IAF, Tab 14. The Board affirmed.
Mattison v. Department of Veterans Affairs , MSPB Docket No. DC-0752 -16-
0350 -I-1, Final Order (July 15, 2016). After the resolution of his criminal matter,
the appell ant requested additional time to refile his removal appeal. Mattison v.
Department of Veterans Affairs , MSPB Docket No. DC-0752 -16-0350 -I-2, Appeal
File (I -2 AF), Tab 1. The administrative judge granted that request, and the
appellant refiled in November 2016. I -2 AF, Tab 2; Mattison v. Department of
Veterans Affairs , MSPB Docket No. DC-0752 -16-0350 -I-3, Appeal File (I -3 AF),
Tab 1.
¶4 Because the appellant was convicted of his criminal charges, the agency
requested that the administrative judge apply col lateral estoppel and preclude the
appellant from relitigating the administrative charges at issue in this removal
appeal. I -3 AF, Tab 15. Over the appellant’s objections, e.g., I-3 AF, Tabs 11,
25, the administrative judge granted that request , I-3 AF, T ab 44 at 2. Therefore,
2 The appellant unsuccessfully challenged his indefinite suspension in a separate appeal.
Mattison v. Department of Veterans Affairs , 123 M.S.P.R. 492 (2016).
3
she held a hearing that was limited to evidence pertaining to the agency’s choice
of penalty and the appellant’s affirmative defenses. Id. After doing so, the
administrative judge affirmed the appellant’s removal. I -3 AF, Tab 59, Initial
Decision (ID). She sustained the agency’s charges based on collateral estoppel
and found no merit to the appellant’s various affirmative defenses and other such
claims. ID at 4-15. Finally, the administrative judge found that removal was a
reasonable penalty and that the appellant failed to establish his disparate penalty
claim. ID at 15-19.
¶5 The appellant has filed a petition for review. Mattison v. Department of
Veterans Affairs , MSPB Docket No. DC -0752 -16-0350 -I-3, Petition for Review
(PFR) File, Tabs 1, 3. The agency has filed a response and the appellant has
replied. PFR File, Tabs 6 -7. The appellant has requested leave to submit
additional pleadings, PFR File, Tabs 11 -12, 17, but that request is denied.3
The administrative judge erred in applying collateral estoppel.
¶6 The agency removed the appellant based on two charges, conduct
unbecoming and failure to follow supervisory instructions. IAF, Tab 12 at 11, 27.
The administrative judge sustained the charges, finding that the appellant was
collaterally estopped from relitigating the facts underlying his Virginia Circuit
Court conviction under Va. Code Ann. § 18.2 -60.3, stalking, and Va. Code Ann.
§ 18.2 -429, causing telephone or pager to ring with intent to annoy. ID at 4 -9; I-3
AF, Tab 15 at 14 -15, Tab s 30, 43.
3 In his first request to submit additional pleadings on review, the appellant cites his pro
se status and asserts that he intended to present “a potential illegal act in the initiation
of criminal proceedings that would nullify the agency’s use of any outcome from those
proceedings.” PFR File, Tab 11 at 4. In the second, t he appellant appeared to indicate
that an additional pleading he wished to submit was a request for subpoena. PFR File,
Tab 12 at 4. In a much later filing, the appellant requested permission to present
additional argument regarding collateral estoppel and to amend his request for relief in
this appeal. We find no basis for allowing any pleadings beyond those already accepted
into the record. See 5 C.F.R. § 1201.114 (a)(5) (limiting the pleadings parties may
submit in connection to a petition for review, and providing that additional pleadings
will not be accepted absent leave of the Clerk of the Board) .
4
¶7 Though not raised by either party on review, we find that the administrative
judge mistakenly relied on the wrong standards for collateral estoppel. I -3 AF,
Tab 8 at 2 -3, Tab 30, Tab 43; ID at 4 -9. As further detailed below, u nder the
proper standards, the requirements for collateral estoppel are not satisfied in this
case.
¶8 Under the Board’s standards for collateral estoppel, a party is barred from
relitigating an issue that was previously litigated if: (1) the issue is iden tical to
that involved in the prior action; (2) the issue was actually litigated in the prior
action; (3) the determination on the issue in the prior action was necessary to the
resulting judgment; and (4) the party against whom issue preclusion is sought had
a full and fair opportunity to litigate the issue in the prior action, either as a party
to the earlier action or one whose interests were otherwise fully represented in
that action. McNeil v. Department of Defense , 100 M.S.P.R. 146 , ¶ 15 (2005).
However, in a case such as this, in which the prior action resulted in a criminal
conviction in state court, the Board must apply tha t state’s collateral estoppel
standards. Mosby v. Department of Housing and Urban Development ,
114 M.S.P.R. 674 , ¶¶ 5 -6 (2010) (applying District of Columbia collateral
estoppel standards ).
¶9 As the U.S. Court of Appeals for the Federal Circuit has recognized, “[t] he
Full Faith and Credit Clause of the Federal Constitution, as implemented by
28 U.S.C. § 1738 , requires that state court judgments be given the same
preclusive effect in later federal actions as they would be given under the laws of
the state in which the judgments were rendered .” Graybill v. U.S. Postal Serv ice,
782 F.2d 1567 , 1571 -73 (Fed. Cir. 1986) (applying Maryland collateral estoppel
standards ); cf. Miles v. Department of the Navy , 102 M.S.P.R. 316 , ¶¶ 4, 9 -10
(2006) (applying the Board’s collateral estoppel standards in the context of a
Federal court conviction for state and Federal crimes). Accordingly, it is
Virginia ’s collateral estoppel standards that govern in this appeal .
5
¶10 Under Virginia law, collateral estoppel is appropriate if: (1) the same
parties or their privies were involved in both actions ; (2) “the factual issue sought
to be litigated [was] actually litigated in the prior action ”; (3) the factual issue
was necessary to the judgment rendered in the prior case; and (4) “the prior
action . . . resulted in a valid, final judgment against the party so ught to be
precluded in the present action. ” Weinberger v. Tucker , 510 F.3d 486 , 491 (4 th
Cir. 2007); see Whitley v. Commonwealth , 538 S.E.2d 296 (Va. 2000). However,
in Virginia, collateral estoppel also requires one additional element —mutuality .4
Weinberger , 510 F.3d at 491.
¶11 The Supreme Court of Virginia discussed the mutuality requirement in
Selected Risks Insurance Co. v. Dean , 355 S.E.2d 579 (Va. 1987) . The court
recognized its longstanding conclusion that mutuality is lacking in the context of
a criminal judgment and subsequent civil action arising from the same
circumstances. Id. at 580-81. In doing so, the court explained, “[t]he principle of
mutu ality limits the influence of the initial adjudication by requiring that to be
effective the estoppel of the judgment must be mutual. Thus, a litigant is
generally prevented from invoking the preclusive force of a judgment unless he
would have been bound had the prior litigation of the issue reached the opposite
result.” Id. at 581; see Weinberger , 510 F.3d at 494 (discussing the mutuality
requirement) .
¶12 Here, even if the other elements were satisfied, it is evident that the
mutuality requirement is not met. The agency would not have been bound by the
opposite resul t—a not guilty verdict in Virginia Circuit Cour t—so it may not
invoke the preclusive force of the appellant’s conviction. See Selected Risk s
4 The administrative judge acknowledged the possibility of Virginia law governing in
this case. I -3 AF, Tab 43 at 3 n.1. However, in doing so, she cited Whitley , a case that
included no discussion of Virginia’s mutuality requirement. Id. Subsequent cases
verify that Virginia sti ll requires mutuality . E.g. , Ayala v. Aggressive Towing
& Transport , Inc., 661 S.E.2d 480 , 482 (Va. 2008); Rawlings v. Lopez , 591 S.E.2d 691 ,
692 (Va. 2004).
6
Insurance Co ., 355 S.E.2d at 581 (discussing the a bsence of mutuality in the
context of a criminal ac tion followed by a civil action because a criminal
acquittal would reflect an inability to prove intent beyond a reasonable doubt but
would leave open the question of whether intent could be proven by prep onderant
evidence). Accordingly, remand is required here for the agency to prove its
charges without the benefit of collateral estoppel.5
¶13 On remand, the administrative judge should allow the parties to further
develop the record and hold a supplemental hearing , if the appellant requests
one.6 If appropriate, the administrative judge may incorporate her other findings,
such as those pertaining to the appellant’s affirmative defenses, into a remand
initial decision.7
The administrative judge did not commit any other procedural errors, nor did she
exhibit bias.
¶14 The appellant’s petition for review raises other procedural matters from
below. First, he argues that the administrative judge erred in denying his request
5 We recognize that the record already includes evidence pertaining to the agency’s
charges. E.g., IAF, Tab 12. Nevertheless, we find that it would be premature for us to
decide whether the agency proved those charges in this context, whe n both parties
relied on the administrative judge’s collateral estoppel rulings in determining what
evidence to submit and wh at testimony to elicit. See, e.g. , IAF, Tabs 30, 37, 44.
6 On review, t he appellant argues that the administrative judge erred in refusing to
admit some of the evidence he submitted here . PFR File, Tab 1 at 1 -3, Tab 3 at 10, 17,
22-23. The evidence he c ites, “A ppellant’s exhibit 9 -1,” reportedly consists of text
messages between the appellant and his accuser, as transcribed by the appellant in
preparation for this appeal. I-3 AF , Tab 36 at 120 -25. It appears that the administrative
judge may have exclu ded this evidence, at least in part , because of her co llateral
estoppel ruling. Therefore, the administrative judge should on remand revisit the matter
to explain whether and why she did or did not consider this evidence .
7 Because we are remanding for the agency to prove its charges, it would be premature
for us to address the appellant’s arguments concerning the penalty and his various
affirmative defenses. See, e. g., PFR File, Tab 3 at 21 -25. However, if her
misapplicat ion of collateral estoppel contributed to these matters, the administrative
judge should revisit her previous rulings on these issues .
7
for a courtesy copy of a hearing transcript, based on his indigence. PFR File,
Tab 3 at 18 -19 (referring to I-3 AF , Tab 55). We disagree.
¶15 Pursuant to the Board’s regulations, a recording of the hearing is genera lly
prepared by a court reporter and included in the appeal file as the offi cial hearing
record. 5 C.F.R. § 1201.53 (a). The Board’s regulations do not require the
creation of a hearing transcript. Instead, they provide that a party may request
that the court r eporter (not the Board) prepare a transcript, at the requesting
party’s expense. 5 C.F.R. § 1201.53 (b). The Board will provide c opies of
existing transcripts to the parties, free of cha rge. 5 C.F.R. § 1201.53 (c)
(emphasis added). Because there was no transcript created , neither the Board nor
the agency are required to provide one to the appellant .
¶16 Throughout his peti tion, the appellant also refers to the fact that he
repeatedly requested to certify issues for interlocutory appeal . E.g., PFR File,
Tab 3 at 10 -11, 16-17; I-3 AF , Tab 27, 34, 45 -46, 57 -58. To the extent that he is
suggesting that the administrative judge erred in denying those requests, we
disagree. See Lee v. Environmental Protection Agency , 115 M.S.P.R. 533 ,
¶¶ 22-23 (2010) (explaining that an administrative judge did not abuse her
discretion by denying the appellant’s request to certify for interlocutory appeal
the administrative judge’s denial of his recusal motion ); 5 C.F.R. § 1201.92
(explaining the limited circumstances in which certifying a ruling for
interlocutory review is appropriate ).
¶17 In addition to his procedural arguments , the appellant argues that the
administrative judge exhibited bias or otherwise acted inappropriately during the
adjudication of his appeal. For example, he alleges that the administrative judge
falsified the chronology of events to justify collateral estoppel. PFR File, Tab 3
at 9. He also referred to the administrative judge as a “prosecutor or cohort for
the agency” and alleged that she showed “extreme bias in favor of the agency.”
Id. at 17 -18. The appellant further alleged that the administrative judge was
8
“colluding with the agency to deny [him the] right to work at any department of
[the agency].” Id. at 21.
¶18 In making a claim of bias or prejudice against an administrative judge, a
party must overcome the presumption of honesty and integrity that accompani es
administrative adjudicators. Oliver v. Department of Transportation , 1 M.S.P.R.
382, 386 (1980). An administrative judge’s conduct during the co urse of a Board
proceeding will warrant a new adjudication only if her comments or actions
evidence “a deep -seated favoritism or antagonism that would m ake fair judgment
impossible.” Bieber v. Department of the Army , 287 F.3d 1358 , 1362 -63 (Fed.
Cir. 2002) (quoting Liteky v. United States , 510 U.S. 540 , 555 (1994)). Although
we have considered the appellant’s allegations, we are not persuaded. We find no
basis for concluding that the administrative judge exhibited bias or otherwise
acted inappropriately.
ORDER
¶19 For the reasons discussed above, we remand this case to the regional office
for further adjudication in accordance with this Remand Order.
FOR THE BOARD:
Washington, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board | MATTISON_LAWRENCE_E_DC_0752_16_0350_I_3_REMAND_ORDER_2006334.pdf | 2023-02-27 | null | DC-0752 | NP |
3,473 | https://www.mspb.gov/decisions/nonprecedential/DAY_JACOB_B_DA_0752_19_0078_I_3_FINAL_ORDER_2006355.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
JACOB B. DAY,
Appellant,
v.
DEPARTMENT OF AGRICU LTURE,
Agency.
DOCKET NUMBER
DA-0752 -19-0078 -I-3
DATE: February 27, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL1
Joshua A. Verde , Houston, Texas, for the appellant.
Stephanye Snowden , Washington, D.C., for the agency.
BEFORE
Cathy A. Harris, Vice Chair man
Raymond A. Limon, Member
Tristan L. Leavitt, Member
Member Leavitt issues a separate dissenting opinion.
FINAL ORDER
¶1 The agency has filed a petition for review of the initial decision, which
mitigated the appellant’s removal from his Consumer Safety Inspector position to
a 60 -day suspension without pay . Generally, we grant petitions such as this one
only in the following circumstances: the initial decision contains erroneous
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
require d to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c).
2
findings of material fact; the initial decision is based on an erroneous
interpretation of statute or regulation or the erroneous a pplication of the law to
the facts of the case; the administrative judge’s rulings during either the course of
the appeal or the initial decision were not consistent with required procedures or
involved an abuse of discretion, and the resulting error affec ted the outcome of
the case; or new and material evidence or legal argument is available that, despite
the petitioner’s due diligence, was not available when the record closed. Title 5
of the Code of Federal Regulations, section 1201.115 ( 5 C.F.R. § 1201.115 ).
After fully considering the filings in this appeal, we conclude that the petitioner
has not established any basis under section 1201.115 for granting the petition for
review. The refore, we DENY the petition for review and AFFIRM the initial
decision, which is now the Board’s final decision. 5 C.F.R. § 1201.113 (b).
¶2 The administrative judge’s findings regardin g the charges, nexus, and
affirmative defenses are unchallenged on review, and we discern no reason to
disturb them. On review, the agency argues that the administrative judge erred in
finding that the deciding official did not properly consider the relev ant factors set
forth in Douglas v. Veterans Administration , 5 M.S.P.R. 280 , 305-06 (1981) , and
also erred in finding that the agency’ s penalty determination was not entitled to
deference. Petition for Review (PFR) File, Tab 8 at 5. Among other things, the
agency asserts that , absent more, the fact that the agency did not receive
complaints from an entity the appellant was charg ed with inspecting and that said
entity wrote a letter praising the appellant are not mitigating factors. Id. at 22 .
¶3 Before undertaking our review of the penalty , we note that , since the
issuance of Douglas over 40 years ago, the Board and the U.S. Court of App eals
for the Federal Circuit have held that the Board’s statutory power includes the
authority to modify or reduce a penalty imposed on an employee by an agency’s
adverse action. See, e.g., Mitchum v. Tennessee Valley Authority , 756 F.2d 82 , 84
(Fed. Cir. 1985) (requiring an administrative judge to ascertain whether the
agency responsibly balanced the relevant factors in the individual case and
3
selected a penalty within the tolerable limits of reasonableness); Van Fossen v.
Department of Housing and Urban Development , 748 F.2d 1579 , 1581 (Fed. Cir.
1984) (noting that the Board’s failure to consider a significant mitigating
circumstance constituted an abuse of discretion, and remanding for the Board to
determine a n appropriate lesser penalty). That authority is deriv ed from 5 U.S.C.
§ 1205 (a)(1), as enacted by the Civil Service Reform Act of 1978, which provides
that the Board is authorized and directed to “take final action” on any m atter
within its jurisdict ion. Douglas , 5 M.S.P.R. at 284, 296. Such authority is also
consistent with the same broad authority that the former Civil Service
Commission had, dating back to at least 1947, and that Congress wanted to
“remain with the Board” upon its creation. Id. at 285 -86, 290 -94. Congress
“clearly intended the Board to function in an independent, nonpartisan,
quasi -judicial role,” id. at 287, and exercise a “degree of independent
discretionary judgment,” id. at 298. In essence, and after briefing on the issue
from a dozen Federal departments and agencies, four Federal employee unions,
and the parties, the Board held that, although its authority to mitigate must be
exercised with appropriate deference to agency management, it nevertheless has
the authority to “mi tigate penalties when the B oard determines that the
agency -imposed penalty is clearly excessive, disproportionate to the sustained
charges, or arbitrary, capricious, or unreasonable.” Id. at 284, 301 -02 (further
holding that the Board, like its predecesso r Civil Service Commission, “will
consider whether a penalty is clearly excessive in proportion to the sustained
charges, violates the principle of like penalties for like offenses, or is otherwise
unreasonable under all the relevant circumstances.”). Thu s, the Board’s role “is
essentially to assure that the agency did conscientiously consider the relevant
factors and did strike a responsible balance within tolerable limits of
reasonableness.” Id. at 306. The ultimate burden is upon the agency to persuad e
the Board of the appropriateness of the penalty imposed. Id. at 307.
4
¶4 We understand the agency’s argument that the views of an entity an
employee is charged with inspecting are not mitigating factors and thus , the
deciding official’s failure to consi der them did not warrant the administrative
judge not deferring to the agency’s penalty determination. Nonetheless , we do
not agree that the nature and seriousness of the appellant’s misconduct outweigh s
the mitigating factors under the circumstances of this case . In particular, we note
the de minim us nature of the appellant’s misuse of the Government fuel card
($6.16 in a single incident),2 and the small number of overtime hours improperly
reflected on the appellant’s time card ( 5 hours on two separate days). We also
note the appellant’s 11 years of service, his fully successful or exceeds fully
successful performance ratings,3 and the lack of any prior discipline of record.
¶5 Thus, we find that the maximum reasonable penalty for the appellant’s
miscond uct is a 60 -day suspension. See, e.g. , Ludlum v. Department of Justice ,
87 M.S.P.R. 56 , ¶ 13 (2000 ) (mitigating a re moval of an FBI Special Agent for
lack of candor during an administrative inquiry to a 120 -day suspension,
considering his satisfactory performance, lack of a prior disciplinary record, and
letters of character reference) , aff’d , 278 F.3d 1280 (Fed. Cir. 2002) ; Banez v.
2 For reasons that are unclear , the agency brought three specifications of misuse of the
fuel card, alleging each snack item improperly purchased by the appellant as a separate
specification, even th ough the purchases occurred as part of the same transaction.
3 The agency argues that the record does not support that the appellant received exceeds
fully successful performance ratings. PFR File, Tab 1 at 22 -23. Although the agency
only provided the ap pellant’s fully successful p erformance evaluations , the appellant
testified that he received fully successful and exceeds fully successful per formance
ratings in prior years. Day v. Department of Agriculture , MSPB Docket No. D A-0752 -
19-0078 -I-2, Appeal Fi le (I-2 AF) , Tab 11 at 5 -15, Tab 40, Hearing Recording
(testimony of the appellant). The administrative judge apparently credited the
appellant’s testimony regarding this matter. Day v. Department of Agriculture , MSPB
Docket No. DA -0752-19-0078 -I-3, App eal File , Tab 7, Initial Decis ion at 2, 27.
Regardless of whether the appellant’s performance ratings were fully successful and/or
exceeds fully successful, it is undisputed that the appellant’s performance was, at
minimum, an acceptable level and the dec iding official testified that she considered the
appellant’s acceptable performance to be a mitigating factor. I -2 AF, Tab 45, Hearing
Transcript at 52.
5
Department of Defense , 69 M.S.P.R. 642 , 650 -51 (1996) (mitigating a removal
for misappropriation of Government property valued at $13.99 to a 60 -day
suspension based on the de minimis nature of the theft, the fact that it was the
appe llant’s first offense in 26 years of service, his satisfactory performance, and
his lack of custody and control over the item); Stein v. U.S. Postal Service ,
57 M.S.P.R. 434 , 441 (1993) (mitigating removal for falsification of production
reports arising out of an “isolated incident” to a 60 -day suspension based on the
appellant’s rehabilitation potential and the fact that it was the appellan t’s first
offense in 16 years of service) , overruled on other grounds by White v. U.S.
Postal Service , 71 M.S.P.R. 521 , 525 -28 (1996) . Thus, we affirm the initial
decision.
ORDER
¶6 We ORDER the agency to cancel the removal and substitute in its place a
60-day suspension without pay. See Kerr v. National Endowment for the Arts ,
726 F.2d 730 (Fed. Cir. 1984). The agency must complete this action no later
than 20 days after the date of this decision.
¶7 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.
¶8 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
6
taken to carry out the Board’s Order. The appellant, if not notified, should ask
the agency about its progress. See 5 C.F.R. § 1201.181 (b).
¶9 No later than 30 days after the agency tells the appellant that it has fully
carried out the Board’s Order, the 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).
¶10 For agencies whose payroll is administered by either the National Finance
Center of the Department of Agriculture (NFC) or the Def ense Finance and
Accounting Service (DFAS), two lists of the information and documentation
necessary to process payments and adjustments resulting from a Board decision
are attached. The agency is ORDERED to timely provide DFAS or NFC with all
documentati on necessary to process payments and adjustments resulting from the
Board’s decision in accordance with the attached lists so that payment can be
made within the 60 -day period set forth above.
NOTICE TO THE APPELL ANT REGARDING
YOUR RIGHT TO REQUES T
ATTORNE Y FEES AND COSTS
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.
7
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 req uirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that 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:
4 Since the issuance of the initial decision in this matter, the Board may have updated
the notice o f 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 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. ____ , 137 S. Ct. 1975 (2017). If you have a
representative in this case, and your representative receives this decision before
you do, then you must file with the district court no later than 30 calendar days
after your representative receives this decision. If the action involves a claim of
discrimination based on race, color, re ligion, sex, national origin, or a disabling
condition, you may be entitled to representation by a court -appointed lawyer and
9
to waiver of any requirement of prepayment of fees, costs, or other security. See
42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a .
Cont act information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites .aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the
EEOC’s Office 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
(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
10
disposition of allegations of a prohibited personne l 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.5 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 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.
5 The original statutory provision that provided for judicial review of certain
whistleblower claims by any co urt of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistlebl ower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195,
132 Stat. 1510.
11
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD:
Washington, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board
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).
2
NATIONAL FINANCE CEN TER CHECKLIST FOR BA CK PAY CASES
Below is the information/documentation required by National Finance Center to process
payments/adjustments agreed on in Back Pay Cases (settlements, restorations) or as ordered by
the Merit Systems Protection Board, EEOC, and courts .
1. Initiate and submit AD -343 (Payroll/Action Request) with clear and concise information
describing what to do in accordance with decisi on.
2. The following information must be included on AD -343 for Restoration:
a. Employee name and social security number.
b. Detailed explanation of request.
c. Valid agency accounting.
d. Authorized signature (Table 63).
e. If interest is to be included.
f. Check mailing address.
g. Indicate if case is prior to conversion. Computations must be attached.
h. Indicate the amount of Severance and Lump Sum Annual Leave Payment to be
collected (if applicable).
Attachments to AD -343
1. Provide pay entitlement to include Overtime, Night Differential, Shift Premium, Sunday
Premium, etc. with number of hours and dates for each entitlement (if applicable).
2. Copies of SF -50s (Personnel Actions) or list of salary adjustments/changes and amoun ts.
3. Outside earnings documentation statement from agency.
4. If employee received retirement annuity or unemployment, provide amount and address to
return monies.
5. Provide forms for FEGLI, FEHBA, or TSP deductions. (if applicable)
6. If employee was unable to work during any or part of the period involved, certification of the
type of leave to be charged and number of hours.
7. If employee retires at end of Restoration Period, provide hours of Lump Sum Annual Leave
to be paid.
NOTE: If prior to conversion, agency must attach Computation Worksheet by Pay Period and
required data in 1 -7 above.
The following information must be included on AD -343 for Settlement Cases: (Lump Sum
Payment, Correction to Promotion, Wage Grade Increase, FLSA, etc.)
a. Must provid e same data as in 2, a -g above.
b. Prior to conversion computation must be provided.
c. Lump Sum amount of Settlement, and if taxable or non -taxable.
If you have any questions or require clarification on the ab ove, please contact NFC’s
Payroll/Personnel Operations at 504 -255-4630.
DISSENTING OPINION O F TRISTAN L. LEAVITT
in
Jacob B. Day v. Department of Agriculture
MSPB Docket No. DA -0752 -19-0078 -I-3
¶1 For the reasons explained below, I respectfully dissent from the majority
opinion in this case.
¶2 The agency proposed to remove the appellant from his GS -9 Consumer
Safety Specialist position based on three specifications of misuse of his
Government -issued fuel card (by purchasing snacks), three specifications of fiscal
irregularity (by claiming overtime pay for hours he did not work), and a single
specification of lack of candor (by making statements regarding his use of
overtime in an affidavit, which he later admitted were untrue). MSPB Docket
No. DA-0752 -19-0078 -I-2, Appeal File (I -2 AF), Tab 7 at 29-35. After
considering the entire record, including the appellant’s oral and written replies to
the proposal, the deciding official issued a decision upholding the removal . Id.
at 24-28.
¶3 Following the appellant’s appeal to the Board, the administrative judge held
a video -conference hearing after which he issued an initial decision finding all
three charges and specifications sustained, and a nexus be tween those sustained
charges and the efficiency of the service. MSPB Docket No. DA-0752 -19-0078 -
I-3, Appeal File, Tab 7, Initial Decision (ID) at 4-23, 26. I agree with these
findings. The administrative judge further found, however, that the agency fa iled
to establish the reasonableness of the penalty, and he mitigated the removal to a
60-day suspension. ID at 26-33. Unlike my colleagues, I do not agree with the
administrative judge’s decision to mitigate the penalty.
¶4 In reaching her decision, the deciding official noted as aggravating factors
the seriousness of the charged misconduct; the appellant’s job level and type of
2
employment, particularly the fact that he functions largely independently; that his
misconduct compromised his supervisors’ conf idence in his ability to carry out
the job duties set forth in his position description, including following directives,
policies, and regulations; the consistency of removal with the agency’s Guide for
Disciplinary Penalties; that supervisory instructions regarding the proper coding
of pay documents had been conveyed to him; his lack of potential for
rehabilitation; and the lack of alternative sanctions that would effectively deter
the type of misconduct the appellant committed and restore the agency’s tru st in
him. I -2 AF, Tab 7 at 25-26. The deciding official considered the appellant’s
assertion that a 2006 head injury may have affected his memory and judgment,
but ultimately concluded this did not constitute a mitigating factor, noting that the
medical evidence he submitted did not establish a causal connection between his
head injury and the sustained misconduct. Id. at 26. While acknowledging as
mitigating factors the appellant’s lack of a disciplinary record, his 11 years of
Federal service, and hi s prior acceptable performance, the deciding official found
it appropriate to uphold the proposed removal. Id.
¶5 In mitigating the penalty, the administrative judge found that the agency’s
penalty determination is not entitled to deference because, in his view, the
deciding official failed to properly consider all of the relevant Douglas factors.
The administrative judge specifically noted the appellant’s 11 -year unblemished
service record with the agency, during which time he consistently received at
least fully successful performance ratings. ID at 27. Yet contrary to the
administrative judge’s finding, the deciding official specifically outlined her
consideration of the 12 Douglas factors, I -2 AF, Tab 7 at 25-26, and, in so doing,
mentioned all three of the aforementioned mitigating factors. Id. at 25. She
simply found them outweighed by the many aggravating factors. I -2 AF, Tab 45,
Hearing Transcript (HT) at 51-52. Although the administrative judge
acknowledged the deciding official’s mention of t he mitigating factors , he found
that she failed to establish that she “appropriately” considered them. ID at 27.
3
The administrative judge provided no support for his position that the deciding
official did not sufficiently explain why the aggravating fac tors outweighed the
mitigating factors in determining that removal was warranted. As I have
repeatedly pointed out, such as in my dissents in Chin v. Department of Defense ,
2022 MSPB 34 , ¶ 7, Spivey v. Department of Treasury , MSPB Docket
No. CH-0752 -16-0318 -I-1, Final Order (Feb. 15, 2023), and Williams v.
Department of Health and Human Services , MSPB Docket No. DC-0752 -16-
0558 -I-1, (Feb. 24 , 2023), it is not the Board’s role to decide what penalty we
would impose if we were the deciding officials. When the relevant factors have
been considered by the agency , the Board may not re -weigh the factors or
otherwise substitute its judgment for that of the agency.
¶6 The administrative judge also found that the deciding official failed to
demonstrate that she appropriately weighed the mitigating factors because she
appeared to enforce an impermissible per se removal rule as it relates to the
charge of fiscal irregularities. ID at 28. Specifically, the administrative judge
referred to the agency’s Guide for Disciplinary Penalties, which provides for
removal, as is her e relevant, for a first offense of submission of falsely stated
time logs when it results in personal benefit. I -2 AF, Tab 8 at 118. However, the
agency’s table of penalties provides that it is a “guide,” and a “framework to
assure consistent application of disciplinary actions throughout the Department.”
Id. at 116; see Taylor v. Department of Veterans Affairs , 112 M.S.P.R. 423 , ¶ 10
(2009) (finding that an agency’s table of penalties is merely a guide in the
absence of a specific statement making it mandatory and binding, rather than
advisory) , modified on other grounds by Lewis v. Department of Veterans Affairs ,
113 M.S.P.R. 657 , 664 n.4 (2010) . Moreover, although the deciding official
noted in her letter of decision the provision in the table of penalties here at issue,
I-2 AF, Tab 7 at 25, it is apparent from the remainder of the decision letter that
she did not consider that removal was required based on her having sustained the
fiscal irregularities charge. Id. at 25-26. Her discussion and weighing of all the
4
Douglas factors would have been unnecessary had she viewed removal as a per se
requirement under these circumstances. And, as noted, in her testimony, the
deciding official confirmed her consideration of all the Douglas factors. HT
at 27-63.
¶7 The admini strative judge also found that the agency failed to consider that
the appellant’s charged overtime was neither pervasive nor repetitive, that the
improper charges to his fuel card were de minimis, and that the established lack
of candor on the appellant’s part was, in part, based on an old, unwritten policy.
ID at 29-30. In addition, the administrative judge found that, during the time in
question, the appellant was under stress from his pending divorce and child
custody battle; that the agency did not al low him to resubmit his time cards or pay
back the hours of overtime to which he was not entitled, thereby denying him an
opportunity to rehabilitate his behavior; and that the deciding official did not
explain why other sanctions would not be effective in deterring future misconduct
or why the appellant lacked rehabilitative potential. Id. at 29-31. In the
administrative judge’s view, the deciding official considered the serious nature of
the misconduct and its relationship to the appellant’s position to the exclusion of
all other relevant factors. Id. at 32.
¶8 Yet the Board has frequently stated that the nature and seriousness of the
offense and its relation to the employee’s duties, position, and responsibility, is in
fact the most important factor in assessing the reasonableness of the penalty.
Singh v U.S. Postal Service , 2022 MSPB 15 , ¶ 18. The deciding official
acknowledged that the seriousness of the appellant’s conduct was the most
important factor, noting that he occupied a position of autonomy. HT at 34, 51.
Of the three charges, she found the lack of candor charge to be the most serious
because it affected the trust of the appellant’s supervisors. Id. at 27-28, 51. The
Board has found that lack of candor is a serious offense that strikes at the heart of
the employer -employee relationship. Ludlum v. Department of Justice ,
87 M.S.P.R. 56 , ¶¶ 28-29 (2000), aff’d , 278 F.3d 1280 (Fed. Cir. 2002).
5
¶9 The deciding official deliberately and thoroughly weighed all the Douglas
factors , as evidenced by her letter of decision, I -2 AF, Tab 27 at 25-26, and
reiterated in her hearing testimony , HT at 27-63. Having done so, management’s
proper exercise of discretion should not be displaced , as the penalty of removal
was not outside the tolerable limits of reasonableness. By mitigating that
agency -imposed penalty, the majority, based on its agreement with the
administrative judge, is impermissibly subst ituting its judgment for that of the
deciding official, thereby running directly contrary to Douglas .
/s/
Tristan L. Leavitt
Member | DAY_JACOB_B_DA_0752_19_0078_I_3_FINAL_ORDER_2006355.pdf | 2023-02-27 | null | DA-0752 | NP |
3,474 | https://www.mspb.gov/decisions/nonprecedential/CHEATHAM_ROBERT_W_CH_0752_15_0195_I_3_FINAL_ORDER_2006361.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
ROBERT W. CHEATHAM,
Appellant,
v.
DEPARTMENT OF VETERA NS
AFFAIRS,
Agency.
DOCKET NUMBER
CH-0752 -15-0195 -I-3
DATE: February 27, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL1
Dale L. Ingram , Esquire, Kansas City, Missouri, for the appellant.
Michael E. Anfang , Esquire, Kansas City, Missouri, for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
Tristan L. L eavitt, Member
Member Leavitt did not participate
in the adjudication of this appeal.
FINAL ORDER
¶1 The agency has filed a petition for review of the initial decision, which
reversed the appellant’s demotion on due process grounds. On petition for
review, t he agency argues that the administrative judge erred in finding that the
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c).
2
agency failed to provide the appellant minimum due process when it proposed and
effected his demotion and in finding that the deciding official’s communication
with the human resource s representative constituted an impermissible ex parte
communication. Petition for Review (PFR) File, Tab 1 at 7-17. The appellant
has responded in opposition to the agency’s petition for review, arguing, in part,
that the Board lacks jurisdiction over t he agency’s petition because the agency
has rescinded the demotion and has returned him to status quo ante, thereby
rendering the appeal moot.2 PFR File, Tab 3 at 13 -16. Generally, we grant
petitions such as this one only in the following circumstances: the initial decision
contains erroneous findings of material fact; the initial decision is based on an
erroneous interpretation of statute or regulation or the erroneous application of
the law to the facts of the case; the administrative judge’s rulings d uring either
the course of the appeal or the initial decision were not consistent with required
procedures or involved an abuse of discretion, and the resulting error affected the
outcome of the case; or new and material evidence or legal argument is avail able
that, despite the petitioner’s due diligence, was not available when the record
closed. Title 5 of the Code of Federal Regulations, section 1201.115 ( 5 C.F.R.
§ 1201.115 ). After f ully considering the filings in this appeal, we conclude that
the petitioner has not established any basis under section 1201.115 for granting
the petition for review. Therefore, we DENY the petition for review and
2 The appellant also has filed a motion asking the Acting Clerk of the Board, rather than
the Board, to exercise her delegated authority to dismiss the agency’s petition for
review as moot or to order the agency to show cause why the petition for review should
not be dismissed as moot. PFR File, Tab 4. The agency has responded in opposition to
the appellant’s motion. PFR File, Tab 6. We deny the appellant’s motion asking the
Acting Clerk of t he Board to exercise her delegated authority to dismiss the agency’s
petition for review as moot. PFR File, Tab 4. Although the appellant is correct that the
Board has delegated the authority to dismiss petitions for review that are moot to the
Clerk of the Board, see MSPB Organization Functions and Delegations of Authority
Manual, § 2.3.5.1 (Apr. 2011), we find that exercise of such auth ority here is not
appropriate. Because we agree with the administrative judge that the agency violated
the appellant’s due process right s, we deny the petition for review , and we need not
reach the mootness issue.
3
AFFIRM the initial decision, which is no w the Board’s final decision. 5 C.F.R.
§ 1201.113 (b).
ORDER
¶2 We ORDER the agency to cancel the demotion to the position of Inventory
Management Specialist, GS -2010 -09/10 , and place th e appellant back in his prior
position of Maintenance and Operations Supervisor, WS -4701 -12/05 , effective
January 11, 2015. See Kerr v. National Endowment for the Arts , 726 F.2d 730
(Fed. Cir. 1984). The agency must complete this action no later than 20 days
after the date of this decision.
¶3 We also ORDER the 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
4
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
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 the se requirements, you must file a motion for attorney fees
and costs WITHIN 60 CALENDAR DAYS OF THE DATE OF THIS DECISION.
You must file your motion for attorney fees and costs with the office that issued
the initial decision on your appeal.
NOTICE OF APPE AL RIGHTS3
You may obtain review of this final decision. 5 U.S.C. § 7703 (a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum w ith which to file. 5 U.S.C. § 7703 (b).
Although we offer the following summary of available appeal rights, the Merit
3 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated i n 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 cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possib le choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of iss uance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. O f particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
6
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the s ervices provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affec ted by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703 (b)(2); see Pe rry v. Merit Systems
Protection Board , 582 U.S. ____ , 137 S. Ct. 1975 (2017). If you have a
representative in this case, and your 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 prepay ment of fees, costs, or other security. See
42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the
EEOC’s Office of Federal Operations 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 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.4 The court of appeals must receive your petition for
4 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the F ederal Circuit or any other circuit court of appeals of competent jurisdiction.
8
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is 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.
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
DEFENSE FINANCE AND ACCOUNTING SERVICE
Civilian Pay Operations
DFAS BACK PAY CHECKLIST
The following documentation is required by DFAS Civilian Pay to compute and pay back pay
pursuant to 5 CFR § 550.805. Human resources/local payroll offices should use the following
checklist to ensure a request for payment of back pay is complete. Missin g documentation may
substantially delay the processing of a back pay award. More information may be found at:
https://wss.apan.org/public/DFASPayroll/Back%20Pay%20Process/Forms/AllItems.aspx.
NOTE: Attorneys’ fees or other non -wage payments (such as d amages) are paid by
vendor pay, not DFAS Civilian Pay.
☐ 1) Submit a “SETTLEMENT INQUIRY - Submission” Remedy Ticket. Please identify the
specific dates of the back pay period within the ticket comments.
Attach the following documentation to the Remed y Ticket, or provide a statement in the ticket
comments as to why the documentation is not applicable:
☐ 2) Settlement agreement, administrative determination, arbitrator award, or order.
☐ 3) Signed and completed “Employee Statement Relative to Back Pay”.
☐ 4) All required SF50s (new, corrected, or canceled). ***Do not process online SF50s
until notified to do so by DFAS Civilian Pay.***
☐ 5) Certified timecards/corrected timecards. ***Do not process online timecards until
notified to do so by DFAS Civilian Pay.***
☐ 6) All relevant benefit election forms (e.g. TSP, FEHB, etc.).
☐ 7) Outside earnings documentation. Include record of all amounts earned by the employee
in a job und ertaken during the back pay period to replace federal employment.
Documentation includes W -2 or 1099 statements, payroll documents/records, etc. Also,
include record of any unemployment earning statements, workers’ compensation,
CSRS/FERS retirement annu ity payments, refunds of CSRS/FERS employee premiums,
or severance pay received by the employee upon separation.
Lump Sum Leave Payment Debts: When a separation is later reversed, there is no authority
under 5 U.S.C. § 5551 for the reinstated employee to keep the lump sum annual leave payment
they may have received. The payroll office must collect the debt from the back pay award. The
annual leave will be restored to the employee. Annual leave that exceeds the annual leav e
ceiling will be restored to a separate leave account pursuant to 5 CFR § 550.805(g).
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. | CHEATHAM_ROBERT_W_CH_0752_15_0195_I_3_FINAL_ORDER_2006361.pdf | 2023-02-27 | null | CH-0752 | NP |
3,475 | https://www.mspb.gov/decisions/nonprecedential/SOTO_MERVAT_DC_0752_14_0707_B_1_FINAL_ORDER_2006368.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
MERVAT SOTO,
Appellant,
v.
DEPARTMENT OF HEALTH AND
HUMAN SERVICES,
Agency.
DOCKET NUMBER
DC-0752 -14-0707 -B-1
DATE: February 27, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL1
Mervat Soto , Clovis, California, pro se.
Madeha Chaudry Dastgir , Esquire, Chicago, Illinois, for the agency.
BEFORE
Cathy A. Harris , Vice Chairman
Raymond A. Limon , Member
Tristan L. Leavitt , Member
FINAL ORDER
¶1 The agency has filed a petition for review , and the appellant has filed a
cross petition for review , of the remand initial decision, which reversed the
appellant’s constructive removal . Generally, we grant petitions such as these
only in the following circumstances: the initial decision contains erroneous
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the B oard and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case l aw. See 5 C.F.R. § 1201.117 (c).
2
findings of material fact; the initial decision is based on an erroneous
interpretation of statute or regulation or the erroneous application of the law to
the facts of the case; the administrative judge’s rulings during either the course of
the appeal or the initial decision were not consistent with required procedures or
involved an abuse of discretion, and the resulting error affected the outcome of
the case; or new and material evidence or legal argument is available that, despite
the petitioner’s due diligence, 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 conclude that neither party
has established any basis under section 1201.115 for granting the petition or cross
petition for review. Therefore, we DENY the petition for review and the cross
petition for review and AFFIRM the remand initial decision, which is now the
Board’s final decision. 5 C.F.R. § 1201.113 (b).
BACKGROUND
¶2 The facts of this case are set forth more fully in the Board’s nonprecedential
Remand Order and the administrati ve judge’s remand initial decision. Soto v.
Department of Health and Human Services , MSPB Docket No. DC-0752 -14-
0707 -I-1, Remand Order (Sept. 28, 2015); Soto v. Department of Health and
Human Services , MSPB Docket No. DC-0752 -14-0707 -B-1; Remand File (RF) ,
Tab 1, Remand Order, ¶¶ 2-7; Tab 49, Remand Initial Decision (RID) at 2-3.
Briefly, the appellant was a GS -12 Management and Program Analyst for the
agency, stationed in Rockville, Maryland. Remand Order, ¶ 2. In contemplation
of a move to California related to her husband’s military service, on
December 11, 2013, the appellant executed an agreement with the agency
allowing her to work remotely from her new home until June 2014, when the
letter of agreement would be reevaluated.2 Id. The agreement pr ovided for early
2 The letter of agreement between the parties references the term “telework.” Soto v.
Department of Health and Human Services , MSPB Docket No. DC-0752 -14-0707 -I-1,
3
termination if the appellant ’s performance fell below a fully successful level. Id.
The appellant moved to California and worked remotely for about 2 months, when
on February 18, 2014, her supervisor informed her that the agreement was b eing
terminated early based on unsatisfactory performance. Id., ¶ 3. At some point,
the agency informed her that she would have to return to duty in the Maryland
office no later than March 17, 2014, or face removal. Id. After much fruitless
effort to c hange the agency’s decision, the appellant resigned effective May 5,
2014. Id., ¶¶ 4-6.
¶3 The appellant filed the instant Board appeal and requested a hearing,
claiming that she had been constructively removed. Id., ¶ 6. The administrative
judge issued an initial decision that dismissed the appeal for lack of jurisdiction
without a hearing, but the Board reversed and remanded, finding that the
appellant had made a nonfrivolous allegation of Board jurisdiction. Id., ¶¶ 1, 6,
16.
¶4 After a hearing on remand, the administrative judge reversed the agency’s
action, finding that the agency had constructively removed the a ppellant without
due process. RID at 8. He therefore reversed the agency’s action on that basis.
Id. The administrative judge also found that the appellant raised a marital status
discrimination claim but that she failed to prove it. RID at 8 -10. The
administrative judge issued a standard status quo ante relief order, directing the
Initial Appeal File, Tab 5 at 51 -52. However, the terms “telework” and “remote work”
are distinct work arrangements and are often improperly used interchangeably. U.S.
Office of Personnel Management, 2021 Guide to Telework and Remote Work in the
Federal Government at 11, available at https://www.telework.gov/guidance -
legislation/telework -guidan ce/telework -guide/guide -to-telework -in-the-federal -
government.pdf . In practice, telework “is a work arrangement that allows employees
to have regularly scheduled days on which they telework and regularly scheduled days
when they work in their agency work site.” Id. By contrast, remote work “is an
alternative work arrangement that involves an employee performing their official duties
at an approved alternative worksite away from an agency worksite, without regularly
returning to the agency worksite during each pay period.” Id. at 53. For purposes of
this decision, we will use the term that is more consistent with OPM’s guidance.
4
agency to cancel the appellant’s removal and restore her to d uty retroactive to
May 5, 2014, with the appropriate amount of back pay and benefits. RID
at 10-11. The administrative judge also ordered the agency to provide interim
relief in the event that either party petitioned for review. RID at 11.
¶5 The agency fi led a timely petition for review, arguing that the
administrative judge should have limited back pay to the period between May 5,
2014 (the effective date of the appellant’s resignation ) and June 30, 2014 (the
remote work agreement’s scheduled expiration ). Soto v. Department of Health
and Human Services , MSPB Docket No. DC-0752 -14-0707 -B-1, Remand Petition
for Review ( RPFR) File, Tab 1 at 5-7. The appellant filed a timely response in
opposition to the agency’s petition, as well as a cross petition for rev iew
challenging the administrative judge’s findings on her marital status
discrimination claim. RPFR File, Tab 3 at 4-10. She also argues that the remedy
should include back pay to March 18, 2014 (the date that the agency first placed
her in an unpaid st atus) and instructions to maintain her in a remote work status
for the duration of her husband’s military orders. Id. at 10 -11. After the close of
the record on review, the appellant filed a document titled “Petition for
Enforcement of Board Order,” clai ming that the agency has failed to restore her
to the status quo ante and is engaging in discriminatory and retaliatory behavior
toward her. RPFR File, Tab 5.
ANALYSIS
¶6 When an agency is ordered to cancel an adverse action, the appellant must
be restored t o the status quo ante. The status quo ante is not mere reinstatement
to the former position. Returning an appellant to the status quo ante means
restoring her situation as nearly as possible, to that which she would have
obtained but for the wrongful per sonnel action. Kerr v. National Endowment for
the Arts , 726 F.2d 730 , 733 (Fed. Cir. 1984) ; Cloude v. Department of the Navy ,
83 M.S.P.R. 184 , ¶ 7 (1999). Status quo ante relief includes cancelling the
5
action; reinstating the appellant to her former posit ion or other substantially
equivalent position, as appropriate; back pay; interest on back pay; and other
employment benefits that she would have received had the action not occurred.
Samble v. Department of Defense , 98 M.S.P.R. 502 , ¶ 15 (2005). Furthermore, an
appellant has not been returned to the status quo ante unless she has been returned
to duty status in her position. Fair ley v. U.S. Postal Service , 63 M.S.P.R. 10 , 13
(1994).
We decline to dismiss the agency’s petition for review for failure to com ply with
the interim relief order.
¶7 The appel lant filed a motion requesting the Board dismiss the agency’s
petition for review for failing to comply with the administrative judge’s interim
relief order. RPFR File, Tab 6.3 When an administrative judge orde rs interim
relief , the Board ’s regulations require that an agency’s petition for review be
accompanied by a certification that it has complied with the interim relief order
or has satisfied the requirements of 5 U.S.C. § 7701 (b)(2)(A)(ii) and (B).
5 C.F.R. § 1201.116 (a). In this case, all the agency has provided is an unsworn
statement that it is “in the process” of providing th e appellant back pay and “will”
cancel her resignation and restore her to her position in a non duty status. RPFR
File, Tab 1 at 7 -8. This is wholly inadequate to satisfy the agency’s interim relief
obligations and is a sufficient basis for us to dismiss the petition for review. See
Welch v. Department of Commerce , 62 M.S.P.R. 87, 88-90 (1994); Labatte v.
Department of the Air Forc e, 55 M.S.P.R. 37, 38 (1992); 5 C.F.R. § 1201.116 (e).
¶8 Neverthel ess, as explained below, even considering the agency’s petition
for review , it has not provided a basis to disturb the initial decision. Therefore,
the appellant will not be prejudiced by the Board addressing the agency’s
arguments . Furthermore, we find that addressing the agency’s arguments at this
stage will clarify its obligations going forward. Therefore, in the interests of
3 To the extent the appellant’s filing is a request for the Board to enforce the interim
relief order, see infra ¶ 17.
6
justice and judicial economy, we exercise our discretion and decline to dismiss
the petition for review for failure to comply w ith the interim relief order. See
Byers v. Department of Veterans Affairs , 89 M.S.P.R. 655 , ¶ 13 (2001) (outlining
that the dismissal of a petition for review for failure to provide interim relief is
discretionary).
The agency’s petition for review is denied.
¶9 On petition for review, the agency asks the Board to modify the
administrative judge’s status quo ante relief order by l imiting back pay to the
period between the date of the appellant’s resignation, May 5, 2014, and the end
of the remote work agreement, June 30, 2014. Specifically, the agency argues
that, in his remand initial decision, the administrative judge indicated that the
agency would have declined to renew the agreement because the appellant’s 2013
performance was unsatisfactory. RPFR File, Tab 1 at 6. For the following
reasons, we disagree .
¶10 First, the administrative judge never found that the appellant’s perf ormance
for 2013 was actually deficient; rather, he found that her performance for that
year was rated deficient, which appears to be undisputed. RF, Tab 39 at 4 -5; RID
at 6. He did not, nor did he need to, resolve the dispute over whether the
appellant’ s performance for that period was actually deficient.
¶11 Second, even if the appellant’s performance for 2013 were actually
deficient, we find that this performance deficiency could no more serve as a basis
for the agency to decline to extend the remote wor k agreement than it could to
terminate the agreement early. If, at the time that the appellant executed the
agreement on December 13, 2013, the agency already had sufficient information
to know that it would decline to extend the agreement upon its expira tion, there
was no reason for the agreement to provide that, in June 2014, it would “be
reviewed and a decision . . . made as to whether or not an extension of this
agreement will be put in place.” Soto v. Department of Health and Human
7
Services , MSPB Doc ket No. DC-0752 -14-0707 -I-1, Initial Appeal File ( IAF),
Tab 5 at 51.
¶12 Third, even if the agency would have declined to extend the appellant’s
remote work agreement in June 2014, there is no reason to assume that she would
not have been ready, willing, and a ble to return to work in Maryland at that time.
Indeed, the agency’s entire argument on petition for review goes to whether back
pay should be limited on the basis that the appellant would not have been ready,
willing, and able to work after June 30, 2014 . See 5 C.F.R. § 550.805 (c) (periods
for which an appellant was not ready, willing, and able to work excluded from
back pay computation). Although it may sometimes be appropriate to add ress
such matters during the merits phase of the proceedings, entitlement to back pay
is normally a compliance matter. Hodges v. Department of Justice , 121 M.S.P.R.
337, ¶ 24 (2014) . In this case, for the reasons explained above, we lack sufficient
information at this stage to determine whether the appellant would have been
ready, willing, and able to work after June 30, 2014. Therefore, the agency’s
arguments are more properly made in the context of compliance proceedings
accompani ed by concrete, positive evidence in support thereof. See generally
King v. Department of the Navy , 100 M.S.P.R. 116 , ¶ 13 (2005) , aff’d, 167 F.
App’x 191 (Fed. Cir. 2006) ; Hill v. Department of the Air Force , 60 M.S.P.R.
498, 501 -02 (1994).
The appellant’s cross petition f or review is denied.
¶13 In her cross petition for review, the appellant appears to challenge the
administrative judge’s finding on her marital status discrimination claim.4 RPFR
File, Tab 1 at 8 -9. However, for the reasons explained in the remand initial
4 Under 5 U.S.C. § 7701 (c)(2)(B), an agency’s decision may not be sustained if the
employee shows that the decision was based on any prohibited personnel practice
described at 5 U.S.C. § 2302 (b). Section 2302(b)(1)(E), in turn, prohibits
discrimination on the basis of marital status as prohibited under any law, rule, or
regulation. An agency may not take an adverse actio n against an employee covered by
5 C.F.R. part 752 , like the appellant, because of marital status. 5 C.F.R. § 720.901 (b).
8
decision, we agree with the administrative judge that the appellant has not proven
this claim. RID at 8 -10. The Board has held that the analytical approach in
Title VII cases applies to claims of marital status discrimination. McClintock v.
Veterans Adm inistration , 6 M.S.P.R. 475 , 478 (1981). Even if the agency’s
explanations for its actions are not worthy of credence, this alone is insufficie nt
to establish that the real reason for its actions was marital status discrimination.
The appellant also must present some sort of affirmative evidence to show that
marital status discrimination was, in fact, the real reason. See Lewin v.
Department of Justice , 74 M.S.P.R. 294, 298 -99 (1997). The appellant has
provided no basis to disturb the administrative judge’s finding that su ch evidence
is absent from the record in this case. RID at 9 -10.
¶14 The appellant also appears to contest the remand initial decision to the
extent that the administrative judge found that her 2013 performance was
unsatisfactory. RPFR File, Tab 3 at 9. Ho wever, as explained above, the
administrative judge did not make any such finding, and no such finding was
required for him to reach his decision. Supra ¶ 10.
¶15 The appellant further argues that she should be entitled to back pay
beginning March 18, 2014 —the first day that the agency placed her in an absence
without leave (AWOL) status pursuant to the early termination of the remote
work agreement. RPFR File, Tab 3 at 5, 10 -11; IAF, Tab 5 at 26. We have
considered the appellant’s argument, but we find that it is beyond the Board’s
authority to order relief for this period in the context of the instant appeal. Status
quo ante relief does not extend to circumstances that occurred before the
personnel action under appeal, even if those circumstances are relat ed to the
otherwise appealable action. See Maki v. U.S. Postal Service , 41 M.S.P.R. 449 ,
457 (1989) . In Maki , the Board found that it is generally inappropriate for an
administrative judge to direct an agency to change an employee’s leave status but
that there are limited exceptions to the rule, including (1) when a period of leave
constitutes a co nstructive suspension, (2 ) when a period of leave was the direct
9
result of discrimination, and (3) as part of status quo ante relief for leave that the
appellant should have earned “ between the date on which the action was effected
and the date on which it was cancelled .” 41 M.S. P.R. at 457 -59. The appellant ’s
AWOL in this case falls under none of these exceptions. Although the period of
AWOL may have constituted a constructive suspension, the appellant did not
challenge this alleged personnel action, and it was not the subject of the instant
appeal.5 IAF, Tab 1 at 1; RF, Tab 31 at 2. The AWOL does not fall under the
second exception because the appellant has not shown that it was the result of
discrimination or retaliation, and it does not fall under the third exception
becaus e it occurred before she resigned .
¶16 Finally, the appellant argues that the agency should be required to return
her to duty in a remote work status for the duration of her husband’s military
orders. RPFR File, Tab 3 at 11. However, we find that the recor d is not
sufficiently developed for us to determine what would have happened to the
remote work agreement on June 30, 2014, or any time thereafter, were it not for
the appellant’s involuntary resignation. If the parties disagree about the status in
which the appellant should be returned to duty, the proper place for resolving this
dispute is in compliance proceedings.
The appellant’s petition for enforcement is premature
¶17 The record on review closed on April 29, 2017, the date that any response
to the app ellant’s cross petition for review was due. RPFR File, Tab 4 at 1.
Then, on May 11, 2017, the appellant filed a document titled “Petition for
Enforcement of Board Order,” arguing that the agency has not provided her the
relief that the administrative jud ge ordered and was instead continuing to threaten
5 If the appellant wishes to challenge the AWOL period as a cons tructive suspension,
she is free to file a separate appeal with the Board’s regional office. However, the
appellant will bear the burden of proving both the jurisdictional and timeliness issues,
neither of which we purport to make any findings on at this time. See Mas dea v. U.S.
Postal Service , 90 M.S.P.R. 556 , ¶ 9 n.* (2002).
10
her with AWOL and removal. RPFR File, Tab 5. We find that this petition for
enforcement is premature because the remand initial decision was not yet final
when the appellant filed the petition. See 5 C.F.R. § 1201.182 (a) (providing, in
relevant part, that “[a]ny party may petition the Board for enforcement of a final
decision or order issued under the Board's appellate jurisdiction”) ; see also
Walker v. Department of Health and Human Services , 99 M.S.P.R. 367 , ¶ 8
(2005) (finding that the appellant filed a petiti on for review of the initial decision
prior to filing a petition for enforcement, and therefore the initial decision was
not a final decision and the petition for enforcement was premature). As
described below, infra ¶ 21, no later than 30 days after the agency tells the
appellant that it has fully carried out this Board’s Order, she 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 car ry out this fina l Board
Order.
ORDER
¶18 We ORDER the agency to cancel the appellant’s constructive removal and
retroactively restore her to the GS-12 Management and Program Analyst position,
effective May 5, 2014 . See Kerr , 726 F.2d at 730. The agency must complete
this ac tion no later than 20 days after the date of this decision.
¶19 We also ORDER the agency to pay the appellant the correct amount of back
pay, interest on back pay, and other benefits under the 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 c arry out the
Board’s Order. If there is a dispute about the amount of back pay, interest due,
and/or other benefits, we ORDER the agency to pay the appellant the undisputed
amount no later than 60 calendar days af ter the date of this decision.
11
¶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 i ts progress. See 5 C.F.R. § 1201.181 (b).
¶21 No later than 30 days after the agency tells the appellant that it has fully
carried out the Board’s Order, the appellant may file a petition for enforcement
with the office that issued the initial 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).
¶22 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.
12
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 summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of 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).
6 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.
13
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourt s.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals 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. ____ , 137 S. Ct. 1975 (2017). If you have a
representative in this case, and your representative receives this decision before
you do, then you must file with the district court no later than 30 calendar days
after your representative receives this decisi on. If the action involves a claim of
14
discrimination based on race, color, religion, sex, national origin, or a disabling
condition, you may be entitled to representation by a court -appointed lawyer and
to waiver of any requirement of prepayment of fees, costs, or other security. See
42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.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
15
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice descri bed in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.7 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(B).
If you submit a petition 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
7 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.
16
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR TH E BOARD:
Washington, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board
17
DEFENSE FINANCE AND ACCOUNTING SERVICE
Civilian Pay Operations
DFAS BACK PAY CHECKLIST
The following documentation is required by DFAS Civilian Pay to compute and pay back pay
pursuant to 5 CFR § 550.805. Human resources/local payroll offices should use the following
checklist to ensure a request for payment of back pay is co mplete. Missing documentation may
substantially delay the processing of a back pay award. More information may be found at:
https://wss.apan.org/public/DFAS Payroll/Back%20Pay%20Process/Forms/AllItems.aspx .
NOTE: Attorneys’ fees or other non -wage payments (such as damages) are paid by
vendor pay, not DFAS Civilian Pay.
☐ 1) Submit a “SETTLEMENT INQUIRY - Submission” Remedy Ticket. Please identify the
specific dates of the back pay period within the ticket comments.
Attach the following documentation to the Remedy Ticket, or provide a statement in the ticket
comments as to why the documentation is not applicable:
☐ 2) Settlement agreement, administrati ve determination, arbitrator award, or order.
☐ 3) Signed and completed “Employee Statement Relative to Back Pay”.
☐ 4) All required SF50s (new, corrected, or canceled). ***Do not process online SF50s
until notified to do so by DFAS Civilian Pay.***
☐ 5) Certified timecards/corrected timecards. ***Do not process online timecards until
notified to do so by DFAS Civilian Pay.***
☐ 6) All relevant benefit election forms (e.g. TSP, FEHB, etc.).
☐ 7) Outside earnings documentation. Include record of all amounts earned by the employee
in a job undertaken during the back pay period to replace federal employment.
Documentation includes W -2 or 1099 statements, payroll documents/records, etc. Also,
include record of any unemployment earning statements, workers’ compensation,
CSRS/FERS retirement annuity payments, refunds of CSRS/FERS employee premiums,
or severance pay received by the employee upon separation.
Lump Sum Leave Payment Debts: When a separation is later reversed, there is no authority
under 5 U.S.C. § 5551 for the reinstated employee to keep the lump sum annual leave payment
they may have received. The payroll office must collect the debt from the back pay award. The
annual leave will be restored to the employee. Annual leave that exceeds the annual leave
ceiling will be restored to a separate leave account pursuant to 5 CFR § 550.805(g).
18
NATIONAL FINANCE CEN TER CHECKLIST FOR BA CK PAY CASES
Below is the information/documentation required by National Finance Center to process
payments/adjustments agreed on in Back Pay Cases (settlements, restorations) or as
ordered by the Merit Systems Protection Board, EEOC, and courts .
1. Initiate and submit AD -343 (Payro ll/Action Request) with clear and concise information
describing what to do in accordance with decision.
2. The following information must be included on AD -343 for Restoration:
a. Employee name and social security number.
b. Detailed explanation of request.
c. Valid agency accounting.
d. Authorized signature (Table 63).
e. If interest is to be included.
f. Check mailing address.
g. Indicate if case is prior to conversion. Computations must be attached.
h. Indicate the amount of Severance and Lump Sum Annual Leave 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. | SOTO_MERVAT_DC_0752_14_0707_B_1_FINAL_ORDER_2006368.pdf | 2023-02-27 | null | DC-0752 | NP |
3,476 | https://www.mspb.gov/decisions/nonprecedential/AGARWAL_JULIE_P_DC_0752_15_0729_I_1_FINAL_ORDER_2006381.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
JULIE P. AGARWAL,
Appellant,
v.
DEPARTMENT OF
TRANSPORTATION,
Agency.
DOCKET NUMBER
DC-0752 -15-0729 -I-1
DATE: February 27, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL1
George M. Chuzi , Esquire, Washington, D.C., for the appellant.
Ann P. Herchenrider , Esquire, and Bernadette Victoria Brennan , Esquire,
Washington, D.C., for the agency.
BEFORE
Cathy A. Harris , Vice Chairman
Raymon d A. Limon , Member
Tristan L. Leavitt , Member
FINAL ORDER
¶1 The appellant has filed a petition for revie w of the initial decision, which
sustained her removal . Generally, we grant petitions such as this one only when:
the initial decision contains erroneous findings of material fact; the initial
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
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
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 pet ition
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 removed the appellant from her Attorney -Advis or position on
the basis of one charge of conduct demonstrating untrustworthiness. Initial
Appeal File (IAF), Tab 6 at 14 -20. She filed the instant ap peal challenging her
removal, asserting an affirmative defense of retaliation for equal employment
oppor tunity activity and request ing a hearing . IAF, Tab 1. After holding the
appellant’s requested hearing, the administrative judge sustained the removal.
IAF, Tab 33, Initial Decision (ID). The appellant has filed a petition for review,
the agency has res ponded in opposition , and the appellant has replied. Petition
for Review (PFR) File, Tabs 5, 11, 16 -17.
DISCUSSION OF ARGUME NTS ON REVIEW
The administrative judge properly concluded that the agency proved its charge.
¶3 The appellant asserts that the adminis trative judge erred in sustaining the
charge. PFR File, Tab 5 at 15 -37. The agency proposed the appellant’s removal
on the basis of a charge of conduct demonst rating untrustworthiness described in
a narrative summarized as follows : (1) she denied destroying a document that
3
was brought to her for signature in her role as Secretar y of the agency ; (2) she
engaged in a confrontation with the two employees who had complained about the
destruction of the document and accused them of spreading lies about her ; and
(3) she did not convey the nature of her interaction with the two employees to her
first-line supervisor (the proposing official) and tried to dissuade her supervisor
from pursuing further information about the interaction .2 IAF, Tab 7 at 96-97.
¶4 In her initial decision, t he administrative judge found that the agency
proved the charge. ID at 24-34. Specifically, she found that, consistent with the
appellant’s first-line supervisor’s testimony, the appellant demonstrated
untrustworthi ness when she denied ripping a document presented for her
signature and denied knowing which document was at issue. ID at 30. The
administrative judge also found that the appellant engaged in conduct
demonstrating untrustworthiness when she confronted the two employees who
complained about her ripping the document in an effort to prevent future
complaints and further pursuit of their current complaint. ID at 30 -32; IAF,
Tab 6 at 36, 40. The adminis trative judge further determined , based upon her
finding that the appellant’s first-line supervisor was more credible than the
appellant, that the appellant did not communicate the scope of her conflict with
the two employees to her first-line supervisor and attempted to prevent her
supe rvisor from further pursuing the issue . ID at 33.
2 The appellant asserts that the administrative judge improperly relied on the deciding
official’s characterization of the charge in his testimony as opposed to the written
description of the charge . PFR File, Tab 5 at 7. If an agency simply describe s the
underlying misconduct of its charge in a narrative form, it may have its discipline
sustained if the efficiency of the service suffers because of the misconduct . Yinat v.
Department of the Army , 101 M.S.P.R. 328, ¶ 17 (2005). The administrative judge
considered the deciding official’s testimony as a “helpful tool” in analyzing the charge,
which consisted of a label followed by a narrative. ID at 23 -24. However, her initial
decision sustained the charge based upon her finding that the agency proved all of the
elements as set forth in the proposal. Id. Accordingly, the appellant’s assertion does
not provide a basis for disturbing the initial decision.
4
¶5 On review, t he appellant asserts that the administrative judge erred in
crediting the testimony of the appellant’s first-line supervisor along with agency
evidence over the appellant’s live testimony to sustain the first portion of the
charge . PFR File, Tab 5 at 8 -9. Specifically, the appellant argues that her
testimony shows that she did not lack candor in responding to her first-line
supervisor because the supervisor asked her if she destroyed a docume nt that she
had refused to sign but she actually had not refused to sign the document that she
destroyed . Id. at 8.
¶6 To resolve credibility issues, an administrative judge must identify the
factual questions in dispute, summarize the evidence on each disputed question,
state which version she believes, and explain in detail why she found the chosen
version more credible, considering such factors as the contradiction of the
witness’s versio n of events by other evidence or its consistency with other
evidence , the witness’s demeanor , and the inherent improbability of the witness’s
version of events . Hillen v. Department of the Army , 35 M.S.P.R. 453 , 458
(1987). The Board must defer to an administrative judge ’s credibility
determinations when they are base d, 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.
Haebe v. Department of Justice , 288 F.3d 1288 , 1301 (Fed. Cir. 2002) .
¶7 The administrative judge considered the testimony of the appellant’s
first-line supervisor refuting that the appellant had identified to her supervisor
any document that the appellant had destroyed . ID at 26; Hearing Transcript
(HT) (testimony of first -line supervisor) at 72. The administrative judge found
that the supervisor’s testimony regarding her conversation with the appellant was
more credible than the appellant ’s testimony because it was supported by the
record evidence, including a contemporaneo us email. ID at 27; IAF, Tab 6 at 29.
She also credited the appellant’s first-line supervisor’s testimony that , if th e
appellant had admitted to having destroyed a document, she would not have
5
disciplined her and would have instead counseled her. ID at 26; HT at 71 -72
(testimony of first -line supervisor) . In contrast, the administrative judge found
that the appellant’s “general evasiveness” and her failure to address certain facts
made her testimony less credible and that her credibility was further undermined
by a written s tatement of one of the employees who was involved in the incident .
ID at 28. The administrative judge also found it highly unlikely that the
employee would have submitted a false or confused statement. ID at 28 -29. The
administrative judge’s finding sustaining the first part of the charge is specifically
based upon the appellant’s evasive demeanor . We agree with the administrative
judge’s determination that the appellant’s version of events is not consistent with
the other evidence and is not probable.
¶8 Further, we agree with the administrative judge’s finding that it i s of little
significance wh ether the appellant refused to sign the document that she
destroyed o r simply destroyed the document , given that the employees and the
appellant were all aware of which document was at issue. ID at 27. The
administrative judge found that, even though the appellant’s first-line supervisor
did not know the nature of the document, identify the document, or tell the
appellant which employees had complained about the destruction of the
document , the appellant still indicated that she was aware of which documen t was
in question . Id. Accordingly, the appellant’s argument regarding whether or not
she actually signed the do cument does not provide a reason for disturbing the
administrative judge’s finding that t he appellant knowingly falsely denied
destroying the document , and we thus defer to the administrative judge’s finding
sustaining this portion of the charge .3
3 To the extent that the appellant is arguing that the agency was required to prove the
charge of lack of candor, PFR File, Tab 5 at 31, we find that it has proven this charge
because , in denying that she ripped up a document present ed for her signature, th e
appellant provided incorrect or incomplete information and did so knowingly . See
Gardner v. Department of Veterans Affairs , 123 M.S.P.R. 647 , ¶ 23 (2016) , clarified by
6
¶9 The appellant also asserts that the administrative judge should not have
believed the testi mony of the appellant’s first-line supervisor in finding th at she
pressured the two employees because the supervisor was not a witness to the
meeting . PFR File, Tab 5 at 9. In sustaining this portion of the charge, the
administrative judge considered that the appellant admitted in her response to the
proposal th at she asked the two employees if the y were spreadin g lies about her.
ID at 30; HT at 390, 393 (testimony of the appellant) ; IAF, Tab 6 at 103. The
administrative judge also considered that the appellant did not dispute one
employee ’s statement that the appellant spoke negatively about the other
employee’s work and that their meeting was loud and tense. ID at 30 -31. We
agree with the administrative judge that, based upon this evidence, the agency has
proven this portion of the charge. Accordingly, we f ind that the administrative
judge properly sustained this portion of the charge.
¶10 Next, the appellant disagrees with the administrative judge’s finding, based
upon her first-line supervisor’s testimony, that her report about her interactions
with the other employees was manipulative. PFR File, Tab 5 at 9. The
administrative judge considered that the appellant failed to directly answer
questions during her testimony about her interactions with the other employees.
ID at 33; HT at 393 (testimony of the app ellant) . The administrative judge found,
based upon her determination that the appellant was not credible, that the
appellant failed to report her complete interactions with the other employees and
encouraged her first-line supervisor not to pursue the ma tter because she wanted
to prevent any potential harm. ID at 33. The appellant does not provide a reason
for disturbing this credibility -based finding. T hus, we conclude that the
administrative judge properly sustained the charge.4
Pridgen v. Office of Management and Budget , 2022 MSPB 31 , ¶¶ 23-24; Fargnoli v.
Depart ment of Commerce , 123 M.S.P.R. 330, ¶ 17 (2016); ID at 30.
4 The appellant objects to the administrative judge’s failure to inclu de certain agency
admissions in the list of agreed upon material facts. PF R File, Tab 5 at 9 -10; IAF,
7
The administrative judge properly found that the removal penalty was reasonable.
¶11 Next, the appellant asserts that the administrative judge erred by permitting
the agency to rely on her prior suspension as an aggravating factor in its penalty
determination because the discipl ine was clearly erroneous. PFR File, Tab 5
at 37-43. The agency previously imposed a 5 -day suspension on the appellant for
“failure to accurately report information on applications /résumés for Federal
employment. ” IAF, Tab 6 at 51 -55. The deciding offi cial had sustained the
charge based upon most of the underlying specifications outlined in the proposal
but mitigated the proposed penalty from a 7 -day to a 5 -day suspension. Id. The
appellant asserts that this discipline should not have been an aggravat ing factor
because the deciding official in that action did not properly discuss all
specifications and improperly sustained certain specifications by incorrectly
construing her statements about her past work exp erience. PFR File, Tab 5
at 39-42. She als o asserts that the deciding official did not consider her response
to the propos ed suspension . Id. at 43.
¶12 The Board’s review of a prior disciplinary action is limited to determining
whether that action is clearly erroneous, the employee was informed of the action
in writing, the action is a matter of record, and the employee was permitted to
dispute the charges before a higher level of authority than the one that imposed
the discipline. Bolling v. Department of the Air Force , 9 M.S.P.R. 335 , 339 -40
(1981) . The record is clear that the appellant was informed of the action in
writing via the proposal, the disci pline is a matter of record, she was able to
dispute the charge via a lengthy written response that is contained in the record ,
Tab 27 at 3. She also objects to certain findings regarding which document the
employees took to another person for signature and certain specific facts underlying her
prior suspension because she asserts that these findings are contrary to the agency’s
stipulations. P FR File, Tab 5 at 30 -31, 39, 42 -43. However, because the appellant has
not shown how any such errors would warrant an outcome diffe rent from that of the
initial decision, we find that her arguments do not provide a reason for disturbing the
initial decision. See Panter v. Department of the Air Force , 22 M.S.P.R. 281 , 282
(1984).
8
and she disputed the charge before the deciding official, who sustained only four
of the nine specifications and mitigated the penalty from a 7 -day to a 5 -day
suspension . IAF, Tab 6 at 51 -55, Tab 8 at 4 -177, Tab 9 at 4-100. Furthermore,
we agree with the administrative judge that the record does not give the
impression that the discipline was clearly erroneous. ID at 40. In particula r, we
agree with the administrative judge’s finding that the proposing official , as the
appellant’s first -line supervisor, and the deciding official, as the appellant’s
second -line supervisor, were in a position to determine whether she had
accurately repo rted her previous work experience on her résumé and determined
that she had not done so. Id. Accordingly, we agree that the agency , in assessing
the penalty, properly relied on the appellant’s prior discipline. See Doran v.
Department of the Treasury , 115 M.S.P.R. 604 , ¶ 7 (2011).
¶13 Finally , we find that the administrative judge properly concluded that the
agency ’s penalty was withi n the bou nds of reasonableness. ID at 39 -41. The
appellant asserts that she should not have been removed because, among other
things, she was a high -ranking employee with over 20 years of service and the
deciding official conceded that the incidents at i ssue were trivial. PFR File,
Tab 5 at 6.
¶14 Whe n, as here, all of the agency ’s charges are sustained, the Board will
review the agency -imposed penalty only to determine if the agency considered all
the relevant factors and exercised management discretion within the tolerable
limits of reasonableness . Douglas v. Veterans Administration , 5 M.S.P.R. 280 ,
305-06 (1981). The administrative judge found that, as a GS -14 attorney, the
appellant was in a position of trust, her misconduct was serious, her supervisors
reasonably lost trust in her, and she was unlikely to be rehabilitated both because
she did not take responsibility for her action s and because she had a prior
disciplinary record . ID at 41. Accordingly, the administrative judge concluded
that the mitigating factors did not justify a lesser penalty. Id.; IAF, Tab 6
at 14-20. We agree that the removal penalty is reasonable under t hese
9
circumstances .5 See Ellis v. Department of Defense , 114 M.S.P.R. 407 , ¶ 11
(2010) (sustaining the appellant’s removal for willfully forging or falsifying
official Government records or documents, misuse of position, and failure to
accurately report information which caused the agency to justifiably lose
confidence in his integrity and judgment and concluding that the deciding official
reasonably determined that the mitigating factors, including the appellant ’s length
of service and any personal issues that may have contributed to his actions did not
warrant a lesser penalty); Singletary v. Department of the Air Force , 94 M.S.P.R.
553, ¶¶ 16-17 (2003) (stating that the efficiency of the service is the ultimate
criterion for determining whether a particu lar penalty may be sustained and
considering the deciding official ’s testimony that , as a result of the appellant ’s
actions, she lost trust in her ability to perform her fiduciary -related duties ), aff’d ,
104 F. App’x 155 (Fed. Cir. 2004) .
NOTICE OF APPEAL RIGHTS6
You may obtain review of this final decision. 5 U.S.C. § 7703 (a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703 (b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
5 Although the appellant generally challenges the administrative judge’s finding that she
failed to establish her affirmative defense of equal employment opportunity retaliation,
we find no rea son to disturb the initial decision in this respect. PFR File, Tab 5 at 44 ;
see Pridgen , 2022 MSPB 31 , ¶¶ 20-24, 30. .
6 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.
10
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in ge neral . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuan ce of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
followi ng address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of p articular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Cou rt of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the serv ices provided by any attorney nor warrants that
any attorney will accept representation in a given case.
11
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil a ction with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. ____ , 137 S. Ct. 1975 (2017). If you have a
representative in this case, and your representative receives this decision before
you do, then you must file with the district court no later than 30 calendar days
after your representative receives this decision. If the action involves a claim of
discrimination based on race, color, religion, sex, national origin, or a disabling
condition , you may be entitled to representation by a court -appointed lawyer and
to waiver of any requirement of prepayment of fees, costs, or other security. See
42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the
EEOC’s Office of Fede ral Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
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 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 whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (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.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, 20 18, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The A ll 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 Feder al Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circ uit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interes ted in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appell ants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
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 | AGARWAL_JULIE_P_DC_0752_15_0729_I_1_FINAL_ORDER_2006381.pdf | 2023-02-27 | null | DC-0752 | NP |
3,477 | https://www.mspb.gov/decisions/nonprecedential/TAYLOR_SHAUN_CH_844E_19_0004_I_1_FINAL_ORDER_2006411.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
SHAUN TAYLOR,
Appellant,
v.
OFFICE OF PERSONNEL
MANAGEMENT,
Agency.
DOCKET NUMBER
CH-844E -19-0004 -I-1
DATE: February 27, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL1
Leah Bachmeyer Kille , Esquire, Lexington, Kentucky, for the appellant.
Linnette L. Scott , Washington, D.C., for the agency.
BEFORE
Cathy A. Harris , Vice Chairman
Raymond A. Limon , Member
Tristan L. Leavitt , Member
FINAL ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
affirmed the reconsideration decision by the Office of Personnel Management
(OPM) denying the appellant’s application for a Federal Employees’ Retirement
System (FERS) d isability retirement annuity. For the reasons discussed below,
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
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 the appellant’s petition for review, REVERSE the initial decision and
OPM’s reconsideration decision, and ORDER OPM to award a disability
retirement annuity to the appellant.
BACKGRO UND
¶2 The appellant began working with the U.S. Postal Service (USPS) in 2011
and was converted to a career position covered by FERS in 2014. Initial Appeal
File (IAF), Tab 7 at 79, 91. He was promoted to a Manager of Distribution
Operations (MDO) position in June 2016. Id. at 79 -80. His duties as a n MDO
involved managing a small - to medium -sized group of employees, meeting with
customers and major mailers, managing on -the-job training, resolving union
disagreements, and monitoring operational performance . Id. at 72.
¶3 In June 2012, the appellant was diagnosed with anxiety, depression, and
attention deficit disorder (ADD) . IAF, Tab 17 at 7. In 2014, he submitted a
medical certification of his own serious health condition under t he Family and
Medical Lea ve Act, completed by his treating psychiatrist. Id. at 8-12. The
psychiatrist stated that the appellant would need to be absent from work during
monthly “episodic flare -ups” for 1 -2 days per episode, noting that the appellant
“can be non -functional due t o anxiety or depression.” Id. at 10. However, at that
time in 2014, his doctor checked “no” when asked whether the appellant was
unable to perform any of his job functions due to the condition. Id. at 9.
¶4 According to the psychiatrist , the appellant “g ot worse” in March 2017 ,
and, in addition to maintaining his diagnos es of anxiety, depression, and ADD,
the doctor diagnosed the appellant with “probable Borderline Personality
Disorder.” Id. at 17, 19 . Also in March 2017, the appellant requested to be
reassigned from his management position “back into craft as a Clerk or a Mail
Handler .” Id. at 14. The USPS denied this request, citing current excessing of
the Clerk s and Mail Handler s. IAF, Tab 7 at 60.
3
¶5 The appellant applied for a FERS disability retirement annuity in August
2017. IAF, Tab 7 at 80 -83. In March 2018, OPM issued an initial decision
denying his application, finding that he was not disabled within the meaning of
retirement law. Id. at 47-51. He requested reconsideration of this decision and
includ ed various medical documents and statements from his psychiatrist . Id.
at 16-41. In May 2018, the appellant resigned from his position with the USPS,
citing his “worsening medical conditions ” and inability to render useful and
efficient service. IAF, Tab 17 at 15. Beginning in October 2017, and continuing
after his resignation, the appellant was self-employed as a part-time barber. Id.
at 26, 29 . On September 6, 2018, OPM issued a reconsideration decision
affirming its initial decision. IAF, Tab 7 at 6-9. In reaching its decision, OPM
found that the medical evidence provided failed to indicate any medical
restrictions on the appellant’s work that would render him unable to provide
useful and efficient service. Id. at 7 -8. It further found that the appellant’s
medical evidence failed to demonstrate that his conditions worsened while he was
serving under FERS. Id. at 8.
¶6 The appellant appealed OPM’s reconsiderati on decision to th e Board.
IAF, Tab 1. After a telephonic hearing, the administrative judge issued an initial
decision affirming OPM’s reconsideration decision denying the appellant’s
application for a FERS disability retirement annuity. IAF, Tab 21, Initial
Decision (ID ) at 1. The administrative judge found that the appellant failed to
demonstrate how his specific symptoms rendered him unable to perform the
essential functions of his job. ID at 7 -9. He also concluded that the appellant
failed to show by preponderant e vidence that his medical conditions were
incompatible with useful and efficient service or re tention in his position.
ID at 7.
4
¶7 The appellant has filed a petition for review . Petition for Review (PFR)
File, Tab 1 at 4 -12. He attaches pictures of variou s medications he asserts he is
taking.2 Id. at 11-12, 14-19. The agency has responded. PFR File, Tab 3 .
DISCUSSION OF ARGUME NTS ON REVIEW
¶8 In an appeal from an OPM decision denying a voluntary disability
retirement application, the appellant bears the bu rden of proving entitlement to
benefits by preponderant evidence.3 Chavez v. Office of Personnel Management ,
111 M.S.P.R. 69 , ¶ 6 (2009) ; 5 C.F.R. § 1201.56 (b)(2)(ii). To be eligible for a
disability retirement annuity under FERS, an employee must show that: (1) he
completed at least 18 months of creditable civili an service; (2) while employed in
a position subject to FERS, he 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 incompa tible with either
useful and efficient service or retention in the position; (3) the disabling medical
condition is expected to continue for at least 1 year from the date that the
application for disability retirement benefits was filed; (4) accommodation of the
disabling medical condition in the position held must be unreasonable; and (5) the
employee did not decline a reasonable offer of reassignment to a vacant position.
Chavez , 111 M.S.P.R. 69 , ¶ 6.
¶9 The record shows, and it is undisputed, that the appellant had completed
more than 18 months of civilian service creditable under FERS at the time he
2 The appellant submits this evidence for the first time on review. The Board will not
consider evidence submitted for the first time on review absent a showing that it is
material, i.e., 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 ). The
pictures themselves do not support a basis for review because they do not demonstrate
any error on the part of the administrative judge. However, as set forth below, we
reverse the initial decision on other grounds.
3 Preponderant evidence is the deg ree 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
filed his application, his medic al condition continued for at least 1 year from the
date of his application, and he did not decline an offer of reassignment to a vacant
position. IAF, Tab 7 at 25, 74, 79, 91. Thus, the appellant’s entitlement to a
disability retirement annuity depends on whether he had a disabling medical
condition and whether accommodation of the disabling medical condition was
unreasonable.
The administrative judge incorrectly determined that the appellant failed to
establish that his medical condition was disabling.
¶10 On review, the appellant argues that the medical documentation and
testimony sufficiently demonstrate s that his unsatisfactory conduct was the result
of his medical conditions . PFR File, Tab 1 at 5 -6. He also argues that he proved
that his med ical conditions are incompatible with useful and efficient service or
retention in th e position. Id. at 6-9. The administrative judge found that the
appellant failed to demonstrate how his specific symptoms rendered him disabled
under either of these alt ernative theories . ID at 7 -9. We disagree. Because we
find that the appellant proved, as discussed below, that his medical conditions
were incompatible with useful and efficient service, we find it unnecessary to
make a finding as to whether he connected those conditions with his poor
conduct. See Thieman v. Office of Personnel Management , 78 M.S.P.R. 113 , 116
(1998) (explaining that, after an administrative judge found a n appellant did not
prove that he had a conduct or attendance deficiency related to his medical
conditions, the administrative judge should have addressed whether the
appellant’s condition was incompatible under the alternative prong regarding
disability ).
¶11 The second element of establishing entitlement to a disability retirement
annuity requires demonstrating that the appellant’s disabling medical condition
either (1) caused a deficiency in performance, attendance, or conduct, or (2) is
incompatible with us eful and efficient service or retention in the position.
5 U.S.C. § 8451 (a)(1)(B ); Jackson v. Office of Personnel Management ,
6
118 M.S.P.R. 6 , ¶ 7 (2012). As applicable here, u nder the second method, an
individual can establish entitlement by showing that the medical condition is
inconsistent with working in general, working in a particular line of work, or
working in a particular type of setting. Jackson , 118 M.S.P.R. 6 , ¶ 8. An
appellant’s own subjective complaints of disability and inability to work must be
seriously considered, particularly when supported by competent medical
evidence. Balmer v. Office of Personnel Management , 99 M.S.P.R. 199 , ¶ 10
(2005) . The Board has frequently stated that a physician’s conclusion that an
employee is disabled is persuasive only if the physician explains how the medi cal
condition affects the employee’s specific work requirements. Craig v. Office of
Personnel Management , 92 M.S .P.R. 449 , ¶ 10 (2002).
¶12 In Chavez , the Board found that the appellant sufficiently demonstrated that
her personality disorder and depression precluded her from performing her
specific work requirements as a window clerk . Chavez , 111 M.S.P.R. 69 ,
¶¶ 8-11. There, the appellant’s doctor noted that her conditions specifically
interfered with her ability to interact appropriately with others at work, adapt to
stress, and perform tasks requiring sustained concentration or an ability to
organize. Id., ¶ 8. The doctor therein further testified that the appellant’s
interactions with others and her cognitive functions were negatively affec ted in
any setting involving stress or pressure. Id. The doctor’s report was generally
corroborated by the appellant’s written statements and her supervisor’s statement.
Id., ¶¶ 9 -10. As such, the Board held that the appellant produced competent and
unrefuted medical evidence establishing that her conditions precluded her from
performing her specific work requirements, including concentration, organization,
and interaction w ith others in any stressful environment , which was sufficient to
show that she was precluded from useful and efficient service or retention in her
position . Id., ¶ 11.
¶13 The record here includes a job description for the appellant’s position as an
MDO . IAF, Tab 7 at 72 -73. Among other duties, the position requires the
7
incumbent to manage employees and on-the-job training, interact with customers
to resolve problems, and meet with union representatives to resolve
disagreements. Id. at 72. The administra tive judge below found that the
appellant’s psychiatrist failed to sufficiently explain how the medical conditions
affected the appellant’s specific work requirements. ID at 8. We disagree.
¶14 The record reflects that the appellant saw his psychiatrist at least 12 times
between March 2017 and April 2018. IAF, Tab 7 at 29 -40. The psychiatrist
diagnosed the appellant with depression, anxiety, ADD , and a probable borderl ine
personality disorder. IAF, Tab 17 at 17 , Tab 20, Hearing Compact Disc (HCD)
at 44:0 2 (testimony of the appellant’s psychiatrist ). The symptoms of his
conditions include “[p]eriods of depression, anxiety, mood swings, irritability,
difficu lty managing conflict, sensitiv[ ity] to crowds, poor concentration /focus,
[and] self-harm .” IAF, Tab 17 at 18 (emphasis in original) . His psychiatrist
reviewed the appellant’s position description for his job as an MDO and
concluded that his medical conditions rendered him unable to fully perform
several of the job duties. Id. at 19. Specifi cally, he found the ap pellant unable to
manage others or train others, resolve conflicts, and maintain an inflexible
schedule. Id. His psychiatrist testified that the appellant is susceptible to too
much stress, that when under stress he loses the abilit y to do the basic functions
of his job , and he is prone to act out due to anger issues . HCD at 50:05
(testimony of the appellant’s psychiatrist ). He further testified that the
appellant’s position had too much stress for the appellant and that managing
disputes was particularly stressful. HCD at 51:44 (testimony of the appellant’s
psychiatrist ).
¶15 The psychiatrist’s treatment notes reflect that the appellant’s work stress
manifested itself in various ways. IAF, Tab 7 at 29 -40. In one instance, the note s
reflect that the appellant was stressed and upset from work to the point that he
punched his own car. Id. at 29. The notes reflect another instance of the
8
appellant having to leave work due to the stress .4 Id. at 31. His psychiatrist
explained that the appellant is able to handle the low stress job of cutting hair,
which does not involve managing others or resolving disputes, but cannot handle
situations such as managing a labor dispute between union representatives and
employees. HCD at 1:03:12 (testimony of the appellant’s psychiatrist ).
¶16 The appellant himself explained how his medical conditions rendered him
unable to perform specific work duties. He stated in his disability retirement
application , and also in his testimony, that he could no longer manage groups of
employees, manage job training , meet with union representatives to resolve
disagreements, meet with customers and major mailers to resolve problems, and
generally have the patience or capability to deal with angry or up set people. IAF,
Tab 7 at 58; HCD at 9:07 (testimony of the appellant) . He described employee
and union interactions as everyone “always yelling and scr eaming and getting in
your face, ” which made it difficult for him to be around without “blowing up
myself or wanting to walk away or do something inappropriate for the
workplace.” HCD at 9: 54 (testimony of the appellant).
¶17 The Supervisor’s Statement accompanying the appellant’s disability
retirement application , completed in August 2017, additionally certified that the
appellant’s conduct at work ha d become unsatisfactory. IAF, Tab 7 at 60. The
Supervisor’s Statement explained that there “is an ongoing investigation into [the
appellant’s] conduct and discipline is forthcoming.” Id. In October 2017 , the
4 To the extent the appellant’s medical evidence fails to include any objective measures
or tests, we find that absence not dispositive. See Confer v. Office of Personnel
Management , 111 M.S.P.R. 419 , ¶ 18 (2009) (finding an appellant may prevail in a
disability retirement application based on medical evidence that “ consists of a medical
professional’s conclusive diagnosis, even if based primarily on his/her analysis of the
applicant’s own descriptions of symptoms and other indicia of disability”) ( quoting
Vanieken -Ryals v. Office of Personnel Management , 508 F.3d 1034 , 1041 (Fed. Cir.
2007)); Doe v. Office of Personnel Management , 109 M.S.P.R. 86 , ¶ 17 (2008 ) (finding
an appellant disabled based on her medical documentation, which included doctor’s
notes of therapy and various medications, despite the absence of objective measures and
tests).
9
appellant received a Letter of Warning in Lieu of a 14 -day Suspension for
“Unacceptable Conduct – Unscheduled Absences without Leave.”5 IAF, Tab 17
at 28. The decision letter upholding the discipline warned that the appellant
needed to “improve his wor k deficiencies or bear further consequences of his
actions.” Id. When a supervisor’s statement accompanying a disability
retirement application certifies that the applicant’s conduct is unacceptable, the
appellant must provide evidence that the disabilit y caused the alleged misconduct.
Johnson v. Office of Personnel Management , 87 M.S.P.R. 192 , ¶¶ 14, 19 (2000).
The appellant here did not explicitly state that his medical conditions caused the
Letter of Warning. However, his psychiatrist stated in response to an
interrogatory from the appellant that he “cannot handle inflexible full -time work”
and that he is unable t o work an inflexible schedule. IAF, Tab 8 at 39 -40. Also,
the appellant testified that his medical conditions rendered him unable to perform
a full -time schedule . HCD at 9:07 (testimony of the appellant). Thus, the
evidence suggests that this misconduc t is in line with the appellant’s assertion
that his medical conditions affect his specific work requirements under the second
method of proving disability .
¶18 Accordingly, we find the appellant’s psychiatrist’s medical documentation
and testimony, combined with the other record evidence, persuasive given that it
explains how the appellant’s medical conditions specifically affect his work
requirements. Compare Craig , 92 M.S.P.R. 449 , ¶¶ 10 -14 (finding a psychiatric
social worker’s conclusion of disability persuasive when it was corroborated by
other evidence and the social worker tied the medical conditions to the
appellant’s specific work requirements), with Cummins v. Office of Personnel
Management , 117 M.S.P.R. 261 , ¶ 8 (2012) (finding an appell ant failed to prove
disability when her doctor testified that she was somewhat familiar with the
appellant’s duties but not the details of her position, and she was unwilling to
5 It is unclear whether this discipline is the same discipline referenced in the
Supervisor’s Statement.
10
state that the appellant was unable to perform her duties), and Anderson v. Of fice
of Personnel Management , 96 M.S.P.R. 299 , ¶¶ 14, 20 (2004) (finding the
appellant’s physicians ’ opinions reg arding the appellant’s disability to be
unpersuasive because they did not show how her conditions affected her specific
job duties and requirements), aff’d per curiam , 120 F. App’x 320 (Fed. Cir.
2005).
¶19 To the extent OPM suggests that the appellant is no t entitled to a disability
retirement annuity due to his subsequent employment as a barber, we find that
argument unpersuasive. IAF, Tab 17 at 29 -34. An appellant is not entitled to a
disability retirement annuity when his medical condition is based on a single
work environment, such as because of a personal conflict with a supervisor or
from a perceived hostile work environment. Confer v. Office of Personnel
Management , 111 M.S.P.R. 419 , ¶ 16 (2009). Subsequent work history is
relevant to whether an individual’s condition is confined to a single work
environment. Id. However, the ability to work in a position with different
responsibilities, and specifically in a position without the particular work
requirements that the appellant could not perform, does not undermine an
appellant’s evidence that he is unable to work in the prior position. See id. ,
¶¶ 12-16 (finding an appellant’s subsequent work in a supervisory position in
which she was never alone with patients, when being alone with patients is what
triggered her symptoms , did not undermine her te stimony that she was unable to
work in her prior position providing direct nursing care to patients ).
¶20 The appellant’s psychiatrist testified that his condition is not tied to
interactions with specific persons at the USPS , but rather , the managerial dutie s
in his prior position. HCD at 1:02:50 (testimony of the appellant’s psychiatrist ).
Moreover, he testified that the appellant is able to handle a low -stress position
such as barbering, but not a more stressful managerial position handling things
such as labor disputes between union representatives and employees.
HCD at 1:03:12 (testimony of the appellant’s psychiatrist ). The appellant himself
11
testified that he does not have a lot of clients as a barber , the work is “really laid
back,” he does not deal with any confrontational situations, and if he ever does
get overwhelmed he can just close the shop and go home or not go in at all.
HCD at 17: 07 (testimony of the appellant). Accordingly, we find that the
appellant’s subsequent work as a barber does not undermine his evidence that he
is unable to perform the specific work requirements of his prior position as an
MDO.
¶21 Finally, the administrative judge here found that the appellant failed to
demonstrate that he was unable to manage his condition through medication,
occasional time off from work, or mental health counseling. ID at 8. We
disagree. An applicant for disability retirement must establish the extent to which
his disability can or cannot be controlled. Smedley v. Office of Personnel
Management , 108 M.S.P.R. 31 , ¶ 23 (2008). When an appellant fails or refuses to
follow or accept normal treatment, his disability flows not from the disease or
injury itself, as the statute requires, but from his voluntary failure or refusal to
take the available corrective or ameliorative action. Id. Here, the appellant’s
psychiatrist responded in the affirmative to an interrogatory from th e appellant
that he was “compliant with all reasonable prescribed medical treatment regarding
his diagnosed conditions. ” IAF, Tab 17 at 20.
¶22 Moreover, the psychiatrist testified that, despite the appellant taking
numerous medications to treat his medical conditions, those conditions were not
controlled. HCD at 1:05:25 (testimony of the appellant’s psychiatrist ). He
further testified that they would frequently tweak the appellant’s medications in
attempts to control his condition, to no avail. HCD at 1: 05:50 (testimony of the
appellant’s psychiatrist ). Although the psychiatrist testified that the appellant
could benefit from mental health counseling, he stated that he did not believe that
would render the appellant capable of returning to his prior posi tion, observing
that counseling in these situations can take several years. HCD at 1:07:27
(testimony of the appellant ’s psychiatrist ). There is no evidence that the
12
appellant ever refused counseling . HCD at 1:07:54 (testimony of the appellant’s
psychia trist). Accordingly, we find that the appellant has followed and accepted
normal treatment but remains unable to control his medical conditions such that
he cannot return to his prior position.
¶23 In light of the evidence discussed above, we find that the appellant has
produced competent and unrefuted medical evidence establishing that his
conditions preclude him from performing specific work requirements in cluding
managing small - to medium -sized groups of employees, managing job training,
and resolving pro blems/disagreements with both customers and union
representatives. See Doe v. Office of Personnel Management , 109 M.S.P.R. 86 ,
¶ 18 (2008) (finding disability retirement warranted based on a mental condition
exacerbated by job -related stress that prevented the appellant from performing the
duties of her position). Moreover, although absences from work do not
conclusively establish tha t an employee is incapable of rendering useful and
efficient service, they are nonetheless a factor worthy of consideration in judging
disability. Henderson v. Office of Personnel Management , 117 M.S.P.R. 313 ,
¶ 25 (2012). Based on the evidence from the appellant’s psychiatrist and his
supervisor, and on his own subjective description of his inability to work, we find
that t he administrative judge erred in finding that the appellant did not prove by
preponderant evidence that he is precluded from useful and efficient service or
retention in his position.
The appellant established that accommodation of the disabling medical condition
is unreasonable.
¶24 The administrative judge made no findings as to whether accommodation of
the appellant was unreasonable. The fourth element of establishing entitlement to
a disability retirement annuity requires an appellant to prove that accom modation
of his disabling medical condition is unreasonable. Chavez , 111 M.S.P.R. 69 ,
¶ 13. When an agency certification that acc ommodation is unavailable is
unrebutted and the record supports the conclusion that accommodation would not
13
be possible, the Board has held that this criterion for obtaining disability
retirement is met.6 Id., ¶ 15.
¶25 In this case, the USPS certified that accommodation of the appellant was
not possible, due to the severity of his condition and the requirements of his
position. IAF, Tab 7 at 74 -75. This certification is not challenged by OPM .
Moreover, the record supports th e conclusion th at the appellant cannot perform
the MDO duties, even with accommodation. IAF, Tab 7 at 58 , 72, Tab 17 at 19.
As such, we find that accommodation of his disabling medical condition is
unreasonable.
¶26 The appellant has therefore met all the criteria for di sability retirement
under FERS and is entitled to a disability retirement annuity. Accordingly, we
reverse the initial decision and do not sustain OPM’s reconsideration decision.
ORDER
¶27 We ORDER OPM to award the appellant a disability retirement annuity.
OPM must complete this action no later than 20 days after the date of this
decision.
¶28 We also ORDER OPM to tell the appellant promptly in writing when it
believes it has fully carried out the Board’s Order and of the actions it has taken
to carry out the Board’s Order. We ORDER the appellant to provide all necessary
information OPM request s to help it carry out the Board’s Order. The appellant,
if not notified, should ask OPM about its progress. See 5 C.F.R. § 1201.181 (b).
6 OPM suggested below that, in addition to proving his accommodation was
unreasonable, the appellant must also prove that his employing agency was unable to
“reassign him to a vacant position at the same grade or level at the position he last
occupied.” IAF, Tab 17 at 5. However, as our reviewing court held in Gooden v.
Office of Personnel Management , 471 F.3d 1275 , 1280 (Fed. Cir. 2006), the inquiry into
whether an appellant is qualified for reassignment to a vacant position is required onl y
by the Civil Service Retirement System, not FERS. Under FERS, the only requirement
regarding a reassignment is that the appellant must not have declined a reasonable offer
of reassignment. Id.
14
¶29 No later than 30 days after OPM tells the appel lant it has fully carried out
the Board’s Order, the appellant may file a petition for enforcement with the
office that issued the initial decision on this appeal if the appellant believes that
OPM did not fully carry out the Board’s Order. The petition s hould contain
specific reasons why the appellant believes OPM has not fully carried out the
Board’s Order, and should include the dates and results of any communications
with OPM. See 5 C.F.R. § 1201.182 (a).
¶30 This is the final decision of the Merit Systems Protection Board in this
appeal. 5 C.F.R. § 1201.113 (c).
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
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 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
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.
15
appropriate for your situation and the rights described below do not represen t a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you 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 P lace, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appell ants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. 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
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept re presentation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was base d, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeal s for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. ____ , 137 S. Ct. 1975 (2017). If you have a
representative in this case, and your representative receives this decision before
you do, then you must file with the district court no later than 30 calendar da ys
after your representative receives this decision. If the action involves a claim of
discrimination based on race, color, religion, sex, national origin, or a disabling
condition, you may be entitled to representation by a court -appointed lawyer and
to waiver of any requirement of prepayment of fees, costs, or other security. See
42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district courts can be found at their respective
websites, which can be accesse d through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you r eceive
this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
17
with the EEOC no later tha n 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D) .
If so, and you wish to challenge the Board’s rulings on your whistleblower claims
only, excluding all other issues , then you may file a petition for judicial review
either with the U.S. Court of Appeals for the Federal Circuit or any court of
appeals of competent jurisdiction.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 revie w of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial re view of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195,
132 Stat. 1510.
18
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the 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 | TAYLOR_SHAUN_CH_844E_19_0004_I_1_FINAL_ORDER_2006411.pdf | 2023-02-27 | null | CH-844E | NP |
3,478 | https://www.mspb.gov/decisions/nonprecedential/VALCIN_JOEL_AT_3330_16_0681_I_1_FINAL_ORDER_2006415.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
JOEL VALCIN,
Appellant,
v.
UNITED STATES POSTAL SERVICE,
Agency.
DOCKET NUMBER
AT-3330 -16-0681 -I-1
DATE: February 27, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL1
Joel Valcin , Saint Cloud, Florida, pro se.
Margaret L. Baskette , Clearwater , Florida, for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
Tristan L. Leavitt, Member
FINAL ORDER
¶1 The appellant has filed a petition for review of the initial deci sion, which
dismissed his request for corrective action under the Veterans Employment
Opportunities Act of 1998 (VEOA) for lack of jurisdiction. Generally, we grant
petitions such as this one only in the following circumstances: the initial decision
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
require d to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c).
2
contains erroneous findings of material fact; the initial decision is based on an
erroneous interpretation of statute or regulation or the erroneous application of
the law to the facts of the case; the 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 ava ilable when the record
closed. Title 5 of the Code of Federal Regulati ons, section 1201.115 ( 5 C.F.R.
§ 1201.115 ). For the reasons set forth below, we DENY the appellant’s petition
for review, VACATE the initial decision dismissing the appellant’s VEOA appeal
for lack of jurisdiction, and FIND that the Board has jurisdiction over the
appellant ’s VEOA claim ; however, we DENY the appellant’s request for
corrective action under VEOA on the merits.
BACKGROUND
¶2 On January 19, 2016, the appellant applied for a Mail Handler Assistant
position with the agency. Initial Appeal File (IAF), Tab 5 at 10-15, 18 -19. It
appears that on or about June 28, 2016, the appellant was notified that he was not
selected for the position. See id. at 18-19; Petition for Review (PFR) File, Tab 1
at 21 . On July 18, 2016, the appellant filed a Board appeal and attached a July 7,
2016 letter from the Department of Labor (DOL) that informed him that he did
not meet the eligibility requirements of the applicable provisions of veterans’
preference statutes and regulations under Title 5 of the U.S. Code and of his right
to ap peal his case to the Board. IAF, Tab 1. He did not request a hearing. Id.
at 2. The admin istrative judge issued an order notifying the appellant of the
requirements to establish Board j urisdiction over his claim under VEOA and
ordering him to file statements and documentation addressing the timeliness of
his appeal, exhaustion of his DOL remedy, his status as a preference eligible, and
the statute or regulation relating to veterans’ preference that was violated. IAF,
3
Tab 3 at 2-8. The appellant did no t respond to the order. IAF, Tab 7, Initial
Decision (ID) at 2.
¶3 The agency moved to dismiss the appeal for lack of jurisdiction on the
ground that the appellant did not qualify as a preference eligible or veteran under
VEOA because he was not separated from the armed forces under honorable
conditions . IAF, Tab 5 at 4 -9. The ag ency submitted the appellant’s application
for the Mail Handler Assistant position, in which he claimed a 10 -point
preference and responded in the negative to questions asking whe ther he had ever
been discharged from the armed forces under other than honorable conditions or
convicted by court martial. Id. at 12 -13. The application included a
DD Form 214, Certificate of Release or Discharge from Active Duty, showing
that the appel lant served in the Army from September 27, 1999 , to July 22, 2009 ,
and received a discharge for bad conduct following a court martial. Id. at 20. His
application also included a February 19, 2015 letter from the Department of
Veterans Affairs (DVA) showi ng the appellant as having two periods of service in
the Army , one from September 27, 1999 , to December 2, 2006 , which DVA
characterized as honorable service, and one from December 3, 2006 , to July 22,
2009 , which DVA characterized as other than honorable service. Id. at 26.
Lastly, the application included a statement from the appellant stating that he had
joined the military on September 27, 1999 , reenlisted twice , and was subsequently
found guilty of a false official statement during a court martial. Id. at 27.
¶4 The administrative judge issued an initial decision finding that the appellant
failed to make a nonfrivolous allegation that he was a preference eligible because
he was discharged under other than honorable conditions and dismissing the
appeal f or lack of jurisdiction. ID at 4. The appellant timely filed a petiti on for
review in which he argued that he was entitled to veterans ’ preference as a result
of two previous honorable discharges and submitted new documents to support
his claim . PFR Fil e, Tab 1 at 3-15. The agency opposed the petition for review.
PFR File, Tab 3.
4
DISCUSSION OF ARGUME NTS ON REVIEW
¶5 The Board has jurisdiction over two types of VEOA claims: (1) the denial
of a right to compete, and (2) the violation of a statute or regula tion relating to
veterans’ preference. See 5 U.S.C. § 3330a (a)(1)(A) (veteran s’ preference
claims); 5 U.S.C. §§ 3330a(a)(1)(B), 3304(f)(1) (right to compete claims); see
also Piirainen v. Department of the Army , 122 M.S.P.R. 194 , ¶ 8 (2015). Here,
the appe llant has alleged a violation of a statute or regulation relating to veterans’
preference. IAF, Tab 1 at 1, PFR File, Tab 1 at 5. To establish Board
jurisdiction over a veterans’ preference VEOA claim , an appellant must:
(1) show that he exhausted his r emedy with DOL; and (2) make nonfrivolous
allegations that (i) he is a preference eligible within the meaning of VEOA,
(ii) the action at issue took place on or after the October 30, 1998 enactment date
of VEOA, and (iii) the agency violated his rights und er a statute or regulation
relating to veterans’ preference. 5 U.S.C. § 3330a (a)(1)(A); Lazaro v.
Department of Veterans Affairs , 666 F.3d 1316 , 1319 (Fed. Cir. 2012).
¶6 It is undisputed that the appellant exhausted his remedy with DOL and made
a nonfrivolous allegation that his nonselection for the Mail Handler Assistant
position occurred after 1998 . IAF, Tab 1 a t 4, PFR File, Tab 1 at 11 . Based on
the record before her, the administrative judge found that the appellant did not
make a nonfrivolous allegation that he was a preference eligible withi n the
meaning of VEOA. ID at 4. As set forth below, we find that the evidence the
appellant submitted on review establishes a nonfrivolous allegation that he is a
preference eligible and that the Board has jurisdiction over his claim. PFR File,
Tab 1 at 5. However, we find that the appellant failed to establish by
preponderant evidence that he is a preference eligible and deny his claim on the
merits.
¶7 To establish that he is a preference eligible within the meaning of VEOA ,
the appellant must meet one of the following definitions of a preference eligible:
(1) he is a veteran who served on active duty in the armed forces during one of
5
several statutorily proscribed periods and has been “discharged or released from
active duty in the armed f orces under honorable conditions ”2; (2) he is a “disabled
veteran,” meaning he has served on active duty in the armed forces, has been
separated from the armed forces under honorable conditions, and has established
the present existence of a service -connected disability or is receiving
compensation, disability retirement benefits, or pension because of a public
statute administered by DVA or a milit ary department; or (3) he has a relationship
to an individual as set forth in section 2108(3)(D) -(H).3 5 U.S.C. § 2108 (1)-(3);
Clark v. U.S. Postal Service , 118 M.S.P.R. 527 , ¶ 7 (2012) (defining preference -
eligible veteran); Downs v. Department of Veterans Affairs , 110 M.S.P.R. 139 ,
¶ 10 (2008) (defining disabled veteran) .
¶8 On review, the appellant does not dispute that he received a bad conduct
discharge in 2009 , but he argues that he has two previous discharges under
honorable conditions that qualify him for vetera ns’ preference. PFR File, Tab 1
at 4-5. He has provided 10 documents submitted for the first time on review in
support of his argument, claiming that “[a]ll those documents were submitted
with my original filing,” but he has not provided any evidence that indicates the
documents were subm itted with his initial appeal.4 Id. at 4, 6 -15.
¶9 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
2 Under 5 U.S.C. § 2108 (1) and (2) an exception is provided to the definitions of
veteran and disabled vet eran for those individuals expecting to be discharged or
released from active duty under honorable conditions . H owever, this exception does
not apply to the appellant, as he was discharged from the Army prior to the employment
application at issue . See 5 U.S.C. § 2108a .
3 The appellant has neither asserted nor supplied any evidence that shows the third
definition applies to him.
4 The remaining document s are duplicative of information in the Initial Appeal File .
PFR File, Tab 1 at 10 -11, 14. One of the remaining documents appears to show that the
appellant was not selected for a second position w ith the agency; however, he did not
raise this action bel ow, and it is not before the Board for adjudication . Id. at 1, 12.
6
record was closed despite the party’s due diligence. Avansino v. U.S. Postal
Service , 3 M.S.P.R. 211 , 214 (1980). However, the issue of the Board’s
jurisdiction is always before the Boar d and may be raised by either party or sua
sponte by the Board at any time during a Board proceeding. Simnitt v.
Department of Veterans Affairs , 113 M.S.P.R. 313 , ¶ 5 (2010). We accordingly
consider the appellant’s additional documentation, which include s certificates of
honorable discharge from the Army dated December 2, 2002 , and October 25,
2005 ; certificates of reenlistment in th e Army dated December 3, 2002 , and
October 26, 2005 ; and letters from DVA dated August 31, 2014 , and September 8,
2016 , that state that the appellant “separated under honorable conditions from
active duty military service” and is “entitled to compensation for service -
connected disability(ies) which are at least 30 percent or more disabling.” PFR
File, Tab 1 at 6 -9, 13, 15.
¶10 To establish Board jurisdiction over his VEOA claim, the appellant need not
prove that he is a preference eligible but must make an a ssertion that, if proven,
could establish that he is a preference eligible. See 5 C.F.R. § 1201.4 (s) (defining
nonfrivolous allegation) ; Badana v. Department of the Air Force , 104 M.S.P.R.
182, ¶ 10 (2006). We find that the appellant has submitted sufficient evidence on
review to make a nonfrivolous allegation th at he is a preference eligible and that
his rights as a preference eligible were violated. Therefore, we find that the
Board has jurisdiction over his claim. See Elliott v. Department of the Air Force ,
102 M.S.P.R. 364 , ¶ 8 (2006) (finding that an appellant’s allegation, in general
terms, that his veterans’ preference rights were vi olated is sufficient to meet the
nonfrivolous allegation standard).
¶11 Upon review of the merits of the appellant’s claim, however, we find that
the appellant cannot demonstrate that he is a preference eligible within the
meaning of VEOA because he cannot e stablish by preponderant evidence that he
was separated from the Army under honorable conditions. We previously have
held that if an individual is separated from a qualifying period of military service
7
under honorable conditions, a subsequent discharge un der other than honorable
conditions does not necessarily disqualify him from preference -eligible status
under 5 U.S.C. § 2108 . Clark , 118 M.S.P.R. 527 , ¶ 10; Dooley v. Tennessee
Valley Authority , 43 M.S.P.R. 462, 467 (1990). Here, however, the appellant was
not separated from a qualifying period of military ser vice under honorable
conditions. T he appellant’s DD Form 214 shows that he served continuously on
active duty in the Army from September 1999 to July 2009, a period just short of
10 years and received a bad conduct discharge. IAF, Tab 5 at 20. We find the
DD Form 214 controlling as to the calculation of the appellant’s period of active
duty service and the description of his separation from the Army . See Neighoff v.
Department of Homeland Security , 122 M.S.P.R. 86 , ¶ 9 (2015) (finding the DD
Form 214 controlling as to the da te of the appellant’s release from active duty);
32 C.F.R. § 45.2 (b) (2016) (providing that the DD Form 214 “record[s] and
report[s] the transfer or separation of military personnel from a period of active
duty” and “will provide . . . [a]ppropriate governmental agencies with an
authoritative source of information which they require in the administration of
Federal and State laws applying to personnel who have been discharged,
otherwise rele ased, or transferred to a Reserve component while on active duty”) .
The appellant’s DD Form 214 does not support the conclusion that he was
separated from active duty under honorable conditions. IAF, Tab 5 at 20.
¶12 Accordingly, although we find that the Board has jurisdiction over the
appellant’s claim and vacate the initial decision dismissing it for lack of
jurisdiction , we find that he is not a preference eligible and deny his request for
corrective action under VEOA on the merits .5
5 Should the appellant believe there is an error in his DD Form 214, he may seek
correction through the appropriate military department’s Board of Corrections for
Military Records. See Department of Defense Instruction 1336.01, Certificate of
Release or Discharg e from Active Duty, Enclosure 3, ¶ 5.b (Jan. 23, 2019 ).
8
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
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for 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 includ ed 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 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. ____ , 137 S. Ct. 1975 (2017). If you have a
representative in this case, and your representative receives this decision before
you do, then you must file with the district court no later than 30 calendar days
after your represe ntative receives this decision. If the action involves a claim of
discrimination based on race, color, religion, sex, national origin, or a disabling
condition, you may be entitled to representation by a court -appointed lawyer and
10
to waiver of any require ment of prepayment of fees, costs, or other security. See
42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative r eceives
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 requ est for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judici al review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
other protected activities listed in 5 U.S.C. § 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 alle gations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.7 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se 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.
7 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of comp etent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases wi th the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195,
132 Stat. 1510.
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 | VALCIN_JOEL_AT_3330_16_0681_I_1_FINAL_ORDER_2006415.pdf | 2023-02-27 | null | AT-3330 | NP |
3,479 | https://www.mspb.gov/decisions/nonprecedential/WHITE_DAVID_B_DA_3330_15_0044_P_2_FINAL_ORDER_2005624.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
DAVID B. WHITE,
Appellant,
v.
DEPARTMENT OF VETERA NS
AFFAIRS,
Agency.
DOCKET NUMBER
DA-3330 -15-0044 -P-2
DATE: February 24, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL1
David B. White , San Antonio, Texas, pro se.
Jeffrey Lee Linhart , and Thomas Herpin , Esquire, Houston, Texas,
for the agency.
BEFORE
Cathy A. Harris , Vice Chairman
Raymond A. Limon , Member
Tristan L. Leavitt , Mem ber
FINAL ORDER
¶1 The appellant has filed a petition for review of the damages initial decision
that granted, in part, his motion for damages arising from his successful appeal
filed under the Veterans Employment Opportunities Act of 1998 (VEOA). 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
the following reasons, we GRANT the appellant’ s petition for review and
AFFIRM the initial decision AS MODIFIED by this Final Order , awarding the
appellant compensation for any lost wages and benefits .
BACKGROUND
¶2 The appellant , a preference -eligible veteran, timely ap plied for the positions
of full -time and part -time Housekeeping Aid, both of whi ch were open only to
preference -eligible veterans. White v. Department of Veterans Affairs , MSPB
Docket No. DA -4324 -15-0044-I-1, Initial Appeal File (IAF), Tab 6, Sub tabs 4b,
4d, 4f, 4l-4m. In June 2014, the agency informed the appellant that he was
ineligible for the positions . Id., Subtab 4a at 2, Subtab 4c at 2 . The appellant
submitted proof of his eligibility before the vacancy announcements closed ;
however, due to a possible “administrative oversight,” the human resources (HR)
specialist did not change the appellant’s eligibility status, and the agency did not
consider or select him for either position. White v. Department of Veterans
Affairs , MSPB Docket No. DA-4324 -15-0045-I-1, Initial Appeal File , Tab 20,
Hearing Compact Disc (HCD) (testimony of the HR specialist). After the
vacancy announcements closed on September 30, 2014 , the HR specialist
reviewed the appellant’s application materials again and determi ned that he was
eligible for the positions. Id. Thus, on or about October 29, 2014, the agency
notified the appellant that he had been te ntatively selected for the full -time
Housekeeping Aid position. IAF, Tab 10 at 5. The appellant did not accept the
offer, and, on December 31, 2014, the agency rescinded it. IAF, Tab 16 at 4.
¶3 The appellant filed Board appeals alleging that the agency violated his
veterans ’ preference rights , MSPB Docket No . DA -3330 -15-0044 -I-1, a nd
discriminated against him in viola tion of the Uniformed Services Employment
and Reemployment Rights Act of 1994 (USERRA ), MSPB Docket No. DA-4324 -
15-0045 -I-1. For the purposes of adjudication, t he administrative judge joined
the USERRA and VEOA appeals. IAF, Tab 21. In an April 13, 2015 initial
3
decision, the administrative judge found that the agency violated the appellant’s
veterans’ preference rights when it failed to re assess his eligibility for the
Housekeeping Aid positions after he timely submitted documentation
demonstrating that he was a prefere nce-eligible veteran. IAF, Tab 23, Initial
Decision (ID).2 Thus, the administrative judge granted corrective action under
VEOA, ordering the ag ency to reconstruct the hiring process. ID at 12-13. The
initial decision became the Board’s final decision in the VEOA appeal.3
¶4 Thereafter, the appellant filed a petition for enforcement arguing that the
agency had failed to comply with the Board’s or der to reconstruct the hiring
process . White v. Department of Veterans Affairs , MSPB Docket No. DA-4324 -
15-0044 -C-1, Compliance File (CF), Tab 1. The administrative judge found that ,
although the agency had not reconstructed the selection process as orde red, it was
in material compliance with the Board’s instructions because it had conceded that
the appellant would have been selected for the positio ns but for the veterans’
preference violation and had offered him appointment to both positions . CF,
Tab 16, Compliance Initial Decision (CID) at 3 . Thus, the administrative judge
dismissed the appellant’s petition for enforcement as moot. CID at 4. The
appellant filed a petition for review, and the Board affirmed the administrative
judge’s determination that the agency was in material compliance with the
Board’s order . White v. Department of Veterans Affairs , MSPB Docket No. DA -
4324 -15-0044 -C-1, Final Order, ¶ 8 (June 20, 2016).
2 The April 13, 2015 initial decis ion listed only MSPB Docket No. DA-4324 -15-0045 -I-
1 in the case caption but also applied to MSPB Docket No. DA-4324 -15-0044 -I-1.
3 The administrative judge dismiss ed the USERRA claim for lack of jurisdiction or, in
the alternative, for failure to establish a USERRA violation. ID at 11 -12. The
appellant filed a petition for review of the initial decision, challenging only the
administrative judge’s findings regardi ng his USERRA claim, and the Board affirmed
the initial decision as modified to find that the appellant established jurisdiction over
his USERRA appeal but failed to prove a USERRA violation. White v. Department of
Veterans Affairs , MSPB Docket No. DA-4324-15-0045 -I-1, Final Order (Sept. 17,
2015). The Board severed the USERRA and VEOA appeals to allow them to proceed
independently . Id., ¶ 2 n.2 .
4
¶5 The appellant also filed motions for back pay, benefits, and liquidated
dama ges based on the agency’s violation of his veterans’ preference rights . White
v. Department of Veterans Affairs , MSPB Docket No. DA -3330 -15-0044 -P-1,
Damages File, Tabs 1 -2, 4. The administrative judge dismissed the damages
appeal without prejudice pendi ng a decision on the appellant’s petition for review
of the compliance initial decision. White v. Department of Veterans Affairs ,
MSPB Docket No. DA -3330 -15-0044 -P-1, Initial Decision ( Mar. 16, 2016). On
June 10, 2016, the damages appeal was automaticall y refiled . White v.
Department of Veterans Affairs , MSPB Docket No. DA -3330 -15-0044 -P-2,
Refiled Damages File (RDF), Tab s 1-2. In the damages initial decision, the
administrative judge found that the appellant was entitled to lost wages or
benefits , but not both, for the period from September 30, 2014 ( when t he vacancy
announcements closed) to Decemb er 31, 2014 ( when the agency rescinded the
October 29, 2014 tentative job offer ), and granted the appellant lost wages for
that period. RDF, Tab 8, Damages Initial Decision (DID) at 5-7. The
administrative judge denied the appellant’s request for liquidated damages,
finding that the agency did not willfully violate his veterans’ preference rights,
and denied his request for other suppleme ntal damages. DID at 7-9.
¶6 The appellant has filed a petition for review of the damages initial decision,
arguing that he is entitled to more back pay than awarded by the administrative
judge, as well as benefits and liquidated damages. Petition for Revie w (PFR)
File, Tab 1.4 The agency has not submitted a response to the appellant’s petition
for review.
4 In addition to challenging the findings in the damages initial decision, the appellant
raises several arguments regarding the agency’s compliance with the Board’s order .
PFR File, Tab 1 at 4-5. However, the compliance matter was fully adjudicated and is
no longer before the Board. See White v. Department of Veterans Affairs , MSPB
Docket No. DA -4324 -15-0044 -C-1, Final Order, ¶ 8 (June 20, 2016). Therefore, we
have not considered the appellant’s arguments on review regarding compliance.
5
DISCUSSION OF ARGUME NTS ON REVIEW
The appellant is entitled to back pay and benefits incurred as a result of the
veterans’ preference violation.
¶7 Under VEOA, if t he Board determines that an agency has violated an
appellant’s veterans’ preference rights , it “shall . . . award compensation for any
loss of wages or benefits suffered by the individual by reason of the violation
involved.” 5 U.S.C. § 3330c (a). After the administrative judge issued the
damages initial decision in this matter, the Board issued a precedential decisi on
holding that a successful appellant in a VEOA appeal is entitled to compensation
for lost wages and benefits incurred as a result of the veterans’ preference
violation pursuant to 5 U.S.C. § 3330c (a). Weed v. Social Security
Administration , 124 M.S.P.R. 71 , ¶ 20 (2016) , aff’d , 711 F. App’x 624 (Fed. Cir.
2017) . Therefore, we modify the damages initial decision to find that the
appellant is entitled to lost wages and benefits5 resulting from the agency’s
veterans’ preference violation, rather than lost wages only .
The appellant is entitled to lost wages and benefits for the pe riod from
September 30 to December 31, 2014.
¶8 When, as here, a prevailing party in a VEOA appeal was not selected for a
position because of the agency’s veterans’ preference violation, he “is entitled to
lost wages or benefits pursuant to § 3330c from the [ ] selection date that violated
his veterans’ preference rights until such time as he is placed in the position at
issue or declines the positi on at issue.” Marshall v. Department of Heal th
& Human Services , 587 F.3d 1310 , 131 7-18 (Fed. Cir. 2009). As noted above,
5 The VEOA stat ute does not define the term “benefits.” Weed , 124 M.S.P.R. 71 , ¶ 21;
see, e.g., 5 U.S.C. §§ 3330a -3330c. However, the term “benefi t” is defined broadly in
USERRA to include “priv ileges of employment,” such as, among other things, rights
and benefits under a pension plan , awards, and bonuses. 38 U.S.C. § 4303 (2); Weed ,
124 M.S.P.R. 71 , ¶ 21. Because Congress enacted USERRA before it enacted VEOA
and because they are similar remedial statutes , the Board construe s the term “benefit” to
have the same meaning in the two statutes. Weed , 124 M.S.P.R. 71 , ¶ 21. Accordingly,
we find that the appellant is entitled “benefits ” as that term is defined at
38 U.S.C. § 4303(2) .
6
the administrative judge determined that the appellant was entitled to receive lost
wages or benefits for the period from September 30, 2014, the date on which the
vacancy announcements closed, until December 31, 2014, the date on which the
agency rescinded its offer based on missing documentation. DID at 6 -7. The
administrative judge explained that the a ppellant’s failure to act in a timely
manner in response to the October 29, 2014 job offer was an effective declination
of the offer . DID at 6-7. On review, the appellant contends that he should
receive lost wages and benefits through January 2016, when the agency conceded
that he w ould have been selected but for the veterans’ preference violation. PFR
File, Tab 1 at 7. He further argues that he “never turn[ed] down a legitimate job
offer but was in talks with the agency to get back pay and lost benefits.” Id.
¶9 It is undisputed that the agency offered the full -time Housekeeping Aid
position on October 29, 2014, with a projected start date of November 17, 2014,
pending completion of the pre -employment process. IAF, Tab 10 at 5. The
agency informed the appellant that he needed to accept the tentative offer within
3 days and that the agency would interpret his failure to accept within 3 days as a
declination of the offer. Id. The appellant did not accept the job offer, but
instead requested information on what his income would b e after applying the
offset for his disability retirement benefits.6 HCD (testimony of the HR
specialist). On December 31, 2014, the agency rescinded the tentative job offer
“based on missing [Federal Employees Retirement System] Disability Retirement
documents required to determine offset calculation.” IAF, Tab 16 at 4.
¶10 The appellant’s argument s on review that he did not turn down a legitimate
job offer and that he is entitled to lost wages and benefits through January 2016
are unpersuasive. The Octob er 29, 2014 tentative job offer specifically advised
6 When a F ederal Employees Retirement System annuitant, such as the appellant, is
reemployed, the annuity continues, and the amount of annuity that applies to the period
of reemployment is offset from the reemployed annuitant’s salary. 5 U.S.C. § 8468 (a);
Garz a v. Department of the Navy , 119 M.S.P.R. 91 , ¶ 9 (2012 ).
7
the appellant that his failure to accept the offer within 3 days would be construed
as a declination of the offer; nonetheless, the agency kep t the position open for
approximately 60 days . IAF, Tab 10 a t 5, Tab 16 at 4. Although the appellant
wanted specific information regarding his prospective income prior to accepting
the offer , the onus was on him to provide to the agency in a timely manner the
documentation necessary to make such a calculation . However, he failed to
submit the documentation to the HR specialist until January 2015. HCD
(testimony of the HR specialist) . Therefore, we find no basis to disturb the
administrative judge’s determination that the appellant’s failure to act in a timely
manner in response to the October 29, 2014 job offer constituted an effective
declination of the job offer and that the award period ended on the date the
agency rescinded the offer . DID at 6-7. Although the appellant believes that he
should be entitled to lost wages and benefits through January 2016, when the
agency conceded that he would have been selected for the positions at issue, the
Board has expressly rejected this approach. Weed , 124 M.S.P.R. 71, ¶ 20 n.4
(rejecting the appellant’s contention that he was entitled to lost wages and
benefits through the date the agency conceded that he would have been entitled to
the positions at issue but for the veterans’ preference violation and finding
instead that the award period ended on the date the appellant declined the
agency’s job offer) ; see Marshall , 587 F.3d at 1317-18.
¶11 As noted above, the appellant is entitled to lost wages an d benefits p ursuant
to section 3330c from the selection date that violated his veterans’ preference
rights until he either is placed in , or declines, the position at issue. Marshall ,
587 F.3d at 1317-18. The parties do not challenge, and we discern no basis to
disturb, the administrative judge’s finding that September 30, 2014 —the date on
which the vacancy announcements closed —is the appropriate start date of the
award period . Furthermore, f or the reasons discussed above, we agree with the
administrati ve judge that December 31, 2014 —the date the agency rescinded the
tentative offer —is an appropriate end date . DID at 6 -7. Accordingly, we find
8
that the appellant is entitled to lost wages and benefits fo r the period from
September 30 to December 31, 2014 .
The appellant is not entitled to liquidated damages.
¶12 When, as here, a prevailing party in a VEOA appeal is entitled to lost wages
and benefits pursuant to section 3330c(a), the Board also must award him
liquidated damages in an amount equal to the back pay if the agency’s violation
of his veterans’ preference rights is found to be willful. 5 U.S.C. § 3330c (a).
The administrative judge determined that the agency did not willfully violate the
appellant’s veterans’ preference rights when it failed to reassess his eligibility for
the Housekeeping Aid positions after he timely submitted documentation
demonstrating his eligibility. DID at 8. She further determined that the agency
did not willfully violate the appellant’s veterans’ preference rights when it failed
to reconstruct the selection process pursuant to the Board’s order. DID at 9.
Thus, the administrative judge concluded that the appellant was not entitled to
liquidated damages pursuant to section 3330c(a). On review, the appellant
challenges only the administrative judge’s finding that the agency did not
willfully violate his veterans’ preference rights when it failed to reconstruct the
hiring process. PFR File, Tab 1 at 4, 7.
¶13 A violat ion is willful under 5 U.S.C. § 3330c (a) when the agency either
knew or showed reckless disregard for whether its conduct was prohibited. Weed ,
124 M.S.P.R. 71, ¶ 9. Reconstructing the selection process may be an appropriat e
remedy in a VEOA appeal when it is unknown whether a veteran would hav e been
selected for a position. Id. However, reconstruction is not required when it is
clear that the agency would have selected the vet eran absent the VEOA violation.
Id. Here, as noted by the administrative judge, the agency concede d that it would
have selected the appellant for either the part -time or full-time Housekeeping Aid
positions absent the veterans’ preference violation and subsequently offered the
appellant both positions. DID at 8-9. Therefore, we find no basis to distu rb the
administrative judge’s finding that the agency had a good faith belief that it was
9
not necessary to reconstruct the selection process and that the agency did not
willfully violate the appellant’s veterans’ preference rights when it failed to
reconst ruct the selection process pursuant to the Board’s order. DID at 9.
Accordingly, we agree with the administrative judge that the appellant is not
entitled to liquidated damages.
ORDER
¶14 We ORDER the agency to pay the appellant lost wages and benefits for t he
period from September 30, 2014, to December 31, 2014. See Kerr v. National
Endowment for the Arts , 726 F.2d 730 (Fed. Cir. 1984). The agency must
comp lete this action no later than 6 0 days after the date of this decision.
¶15 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).
¶16 No later than 30 days after the agency tells the appellant t hat it has fully
carried out the Board’s Order, the appellant may file a petition for enforcement
with the office that issued the initial decision in this appeal if the appellant
believes that the agency did not fully carry out the Board’s Order. The peti tion
should contain specific reasons why the appellant believes that the agency has not
fully carried out the Board’s Order, and should include the dates and results of
any communications with the agency. 5 C.F.R. § 1201.182 (a).
¶17 This is the final decision of the Merit Systems Protection Board i n this
appeal. Title 5 of the C ode of Federal Regulation, section 1201.113(c) 5 C.F.R.
§ 1201.113 (c).
10
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.), section 3330c(b). The regulations may be
found at 5 C.F.R. §§ 1201.202 , 1201.203, and 1208.25. 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 motion for attorney fees and costs with the office that issued the initial
decision on your appeal.
NOTICE OF APPEAL RIG HTS7
The damages initial decision, as supplemented by this Final Order,
constitutes the Board’s final decision in this matter. 5 C.F.R. § 1201.113 . You
may obtain review of this final decision. 5 U.S.C. § 7703 (a)(1). By statute, the
nature of your claims determines the time limit for seeking such review and the
appropriate forum with which to file. 5 U.S.C. § 7703 (b). Although we offer the
following summary of available appeal rights, the Meri t Systems Protection
Board does not provide legal advice on which option is most appropriate for your
situation an d the rights described below do not represent a statement of how
courts will rule regarding which cases fall within their jurisdiction. If you wish
to seek review of this final decision, you should immediately review the law
applicable to your claims and carefully follow all filing time limits and
requirements. Failure to file within the applicable time limit may result in the
dismissal of your case by your chosen forum.
7 Since the issuance of the initial decision in this matter, the Board may h ave updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.
11
Please read carefully each of the three main possible choices of review
below to decide which one applies to your p articular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial revi ew of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petition ers and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our webs ite at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
12
were affected by an action that is appealable to the Board and that such a ction
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. C ourt of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. ____ , 137 S. Ct. 1975 (2017). If you have a
representative in this case, and your representative receives this decision before
you do, then you must file with the district court no later than 30 calendar days
after your representative receives this decision. If the action involves a claim of
discrimination based on race, color, religion, sex, national origin, or a disabling
condition, you may be entitled to representation by a court -appointed lawyer and
to waiver of any requirement of prepayment of fees, costs, or other security. See
42 U.S.C. § 2000e -5(f) 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:
13
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
competent jurisdiction.8 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(B).
8 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 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.
14
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “ Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal 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.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD:
Washington, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board
DEFENSE FINANCE AND ACCOUNTING SERVICE
Civilian Pay Operations
DFAS BACK PAY CHECKLIST
The following documentation is required by DFAS Civilian Pay to compute and pay back pay
pursuant to 5 CFR § 550.805. Human resources/local payroll offices should use the following
checklist to ensure a request for payment of back pay is complete. Missin g documentation may
substantially delay the processing of a back pay award. More information may be found at:
https://wss.apan.org/public/DFASPayroll/Back%20 Pay%20Process/Forms/AllItems.aspx .
NOTE: Attorneys’ fees or other non -wage payments (such as damages) are paid by
vendor pay, not DFAS Civilian Pay.
☐ 1) Submit a “SETTLEMENT INQUIRY - Submission” Remedy Ticket. Please identify the
specific dates of the back pay period within the ticket comments.
Attach the following documentation to the Remedy Ticket, or provide a statement in the ticket
comments as to why the documentation is not applicable:
☐ 2) Settlement agreement, administrative determination, arbitrator award, or order.
☐ 3) Signed and completed “Employee Statement Relative to Back Pay”.
☐ 4) All required SF50s (new, corrected, or canceled). ***Do not process online SF50s
until noti fied to do so by DFAS Civilian Pay.***
☐ 5) Certified timecards/corrected timecards. ***Do not process online timecards until
notified to do so by DFAS Civilian Pay.***
☐ 6) All relevant benefit election forms (e.g. TSP, FEHB, etc.).
☐ 7) Outside ea rnings documentation. Include record of all amounts earned by the employee
in a job undertaken during the back pay period to replace federal employment.
Documentation includes W -2 or 1099 statements, payroll documents/records, etc. Also,
include record of any unemployment earning statements, workers’ compensation,
CSRS/FERS retirement annuity payments, refunds of CSRS/FERS employee premiums,
or severance pay received by the employee upon separation.
Lump Sum Leave Payment Debts: When a separation is l ater reversed, there is no authority
under 5 U.S.C. § 5551 for the reinstated employee to keep the lump sum annual leave payment
they may have received. The payroll office must collect the debt fr om the back pay award. The
annual leave will be restored to the employee. Annual leave that exceeds the annual leave
ceiling will be restored to a separate leave account pursuant to 5 CFR § 550.805(g).
NATIONAL FINANCE CEN TER CHECKLIST FOR BACK P AY CASES
Below is the information/documentation required by National Finance Center to process
payments/adjustments agreed on in Back Pay Cases (settlements, restorations) or as ordered by
the Merit Systems Protection Board, EEOC, and c ourts .
1. Initiate and submit AD -343 (Payroll/Action Request) with clear and concise information
describing what to do in accordance with decision.
2. The following information must be included on AD -343 for Restoration:
a. Employee name and social security number.
b. Detailed explanation of request.
c. Valid agency accounting.
d. Authorized signature (Table 63).
e. If interest is to be included.
f. Check mailing address.
g. Indicate if case is prior to conversion. Computations mu st be attached.
h. Indicate the amount of Severance and Lump Sum Annual Leave Payment to be
collected (if applicable).
Attachments to AD -343
1. Provide pay entitlement to include Overtime, Night Differential, Shift Premium, Sunday
Premium, etc. with number of hours and dates for each entitlement (if applicable).
2. Copies of SF -50s (Personnel Actions) or list of salary adjustments/changes and amounts.
3. Outside earnings documentation statement from agency.
4. If employee received retirement annuity or unemploy ment, provide amount and address
to return monies.
5. Provide forms for FEGLI, FEHBA, or TSP deductions. (if applicable)
6. If employee was unable to work during any or part of the period involved, certification of
the type of leave to be charged and number of hours.
7. If employee retires at end of Restoration Period, provide hours of Lump Sum Annual
Leave to be paid.
NOTE: If prior to conversion, agency must attach Computation Worksheet by Pay Period and
required data in 1 -7 above.
The following informati on 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. | WHITE_DAVID_B_DA_3330_15_0044_P_2_FINAL_ORDER_2005624.pdf | 2023-02-24 | null | DA-3330 | NP |
3,480 | https://www.mspb.gov/decisions/nonprecedential/REED_MARGARET_M_CH_1221_13_1557_B_1_FINAL_ORDER_2005664.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
MARGARET M. REED,
Appellant,
v.
DEPARTMENT OF VETERA NS
AFFAIRS,
Agency.
DOCKET NUMBER
CH-1221 -13-1557 -B-1
DATE: February 24, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL1
Margaret M. Reed , Jupiter, Florida, pro se.
Demetrious A. Harris , Esquire, Dayton, Ohio, for the agency.
BEFORE
Cathy A. Harris , Vice Chairman
Raymond A. Limon , Member
Tristan L. Leavitt , Member
FINAL ORDER
¶1 The a ppellant has filed 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 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 erroneou s application of the law to the facts of the case; the administrative
judge’s rulings during either the course of the appeal or the initial decision
were not consistent with required procedures or involved an abuse of discretion,
and the resulting error af fected the outcome of the case; or new and material
evidence or legal argument is available that, despite the petitioner’s due
diligence, was not available when the record closed. Title 5 of the Code of
Federal Regulations, section 1201.115 ( 5 C.F.R. § 1201.115 ). After fully
considering the filings in this appeal, we conclude that the petitioner has not
established any basis under section 1201.115 for granting the petition for review.
Therefore, we DENY the petition for review and AFFIRM the initial decision,
which is now the Board’s final decision. 5 C.F.R. § 1201.113 (b).
BACKGROUND
¶2 The Assistant Chief of Human R esources at the agency’s Medical Center in
Dayton, Ohio, issued the appellant, a GS -12 Human Resources Specialist at the
same facility , an admonishment for disrespectful conduct . Reed v. Department of
Veterans Affairs , 122 M.S.P.R. 165 , ¶ 4 (2015). The appellant grieved the
admonishment, but the agency denied her grievance. Id., ¶¶ 4-6. The appellant
then complained to the Medica l Center Director that she had been admonished
without due process and that the agency failed to follow the admini strative
grievance procedures. Id., ¶¶ 7-8. Approximately 1 month later, the Chief
suspended the appellant for 3 days based on three complai nts that he recently
received about the appellant from other agency officials. Id., ¶ 9.
¶3 The appellant filed a whistleblower reprisal complaint with the Office of
Special Counsel (OSC). Id., ¶ 10. OSC closed its file without taking corrective
action, and the appellant filed a Board appeal. Id. The administrative judge
issued an initial decision that dismissed the appeal for lack of jurisdiction on the
basis that the appellant failed to make a nonfrivolous allegation that she made a
3
protected disclosu re. Id. The appellant petitioned for review, and the Board
affirmed the initial decision as modified, finding that, although the appellant
made a nonfrivolous allegation that she made a protected disclosure, she failed to
make a nonfrivolous allegation t hat her disclosure was a contributing factor in a
personnel action. Id., ¶¶ 2, 11, 15 -25. The Board also found that the appellant
failed to make a nonfrivolous allegation that the agency perceived her as a
whistleblower. Id., ¶¶ 26-27.
¶4 The appellant ap pealed the Board’s decision to the U.S. Court of Appeals
for the Federal Circuit. Reed v. Merit Systems Protection Board , 611 F. App’x
719 ( Fed. Cir. 2015) . After reviewing the file, the Board determined that the
appellant had, in fact, made a nonfrivolous allegation that at least one of her
disclosures was a contributing factor in a personnel action. Id. At the Board’s
request, and with the appellant’s conc urrence, the court vacated the Board’s
decision and remanded the appeal to the Board for further proceedings. Id. The
Board , in turn, remand ed the appeal to the regional office for further adjudication.
Reed v. Department of Veterans Affairs , MSPB Docke t No. CH -1221 -13-1557 -M-
1, Remand Order (Sep t. 25, 2015).
¶5 In its Remand Order , the Board found that the appellant made nonfrivolous
allegations sufficient to establish jurisdiction over claims that she made protected
disclosures in e mail messages she sen t on June 22 and July 26, 2012, and in an
August 29, 2012 meeting. Id., ¶¶ 6-8. The Board further found that , by virtue of
the knowledge/timing test, the appellant nonfrivolously alleged that those
disclosures were contributing factors in the four personnel actions2 at issue in this
2 The appellant exhausted her administrative remedies before OSC regarding four
alleged personnel actions: (1) the proposed 3 -day suspension; (2) the decision t o
sustain the 3 -day suspension; (3) the refusal to remove the admonishment from the
appellant ’s personnel file; and (4) threats to discipline the appellant for meeting with
the Medical Center Director. Reed , 122 M.S.P.R. 165 , ¶ 14 & n.7; Reed v. Department
of Veterans Affairs , MSPB Docket No. CH-1221 -13-1557 -B-1, Remand File, Tab 11
at 3 n.4.
4
IRA appeal. Id., ¶ 9; see 5 U.S.C. § 1221 (e)(1) ( providing that an employee may
demonstrate that a disclosure was a contributing factor in a personnel action by
showing that the official taking the action knew of the disclosure and that the
action occurred within a period of time such that a reasonable person could
conclude that the disclosure was a contributing factor); see also Linder v.
Department of Justice , 122 M.S.P.R. 14 , ¶ 17 (2014) (finding that an interval of
approximately 4 months satisfied the timing prong of the knowledge/timing test).
¶6 After holding a 2-day hearing, the administrative judge denied the
appellant’s request for corrective action , finding that she did not prove by
preponderant ev idence that her disclosures were protected . Reed v. Department
of Veterans Affairs , MSPB Docket No. CH -1221 -13-1557 -B-1, Remand File (RF),
Tab 51, Remand Initial Decision at 14 (RID). Regarding the appellant’s June 22,
2012 e mail message , in which she complained about the disposition of her formal
grievance, the administrative judge found that the appellant failed to demonstrate
by preponderant evidence that a reasonable person in her position would believe
that the information she disclos ed evidenced an abuse of authority, a violation of
law, rule, or regulation, or gross mismanagement. RID at 8 -13. Concerning the
appellant’s July 26, 2012 e mail message and her August 29, 2012 meeting with
the Director, in which the appellant raised essentially the same contentions
regarding the grievance process , the administrative judge similarly found that a
reasonable person in the appellant’s position would not believe that the
information she disclosed evidenced wrongdoing as set forth in 5 U.S.C.
§ 2302 (b)(8). RID at 12 -13.
¶7 Thus, because she found that the appellant failed to establish by
preponderant evidence that her disclosures were protected, the administrative
judge found that the ap pellant failed to meet her burden of proving the merits of
her IRA appeal and consequently denied her request for corrective action. RID
at 14-15. In her petition for review of the remand initial decision , the appellant
provides an exhaustive review of t he evidence and contends that the record, as
5
well as the parties’ joint stipulations,3 indicat e that her disclosures were protected
and a contributing factor in the personnel actions at issue . Reed v. Department of
Veterans Affairs , MSPB Docket No. CH -1221-13-1557 -B-1, Remand Petition for
Review ( RPFR) File, Tab 1 at 4. The appellant also challenges the administrative
judge’s ruling to deny one of her requested witness es and accuses the
administrative judge of “bias and careless workmanship.” Id. at 5, 30-31. The
agency responds in opposition to the appellant’s petition for review, and the
appellant provides a reply to the agency’s response.4 RPFR File, Tabs 3 -4.
DISCUSSION OF ARGUME NTS ON REVIEW
¶8 The Board has jurisdiction over an IRA appeal if the a ppellant has
exhausted her administrative remedies before OSC and makes nonfrivolous
allegations that: (1) she engaged in whistleblowing activity by making a
protected disclosure, and (2) the disclosure was a contributing factor in the
agency ’s decision t o take or fail to take a personnel action. Hugenberg v.
Department of Commerce , 120 M.S.P.R. 381 , ¶ 9 (2013) . In an IRA appea l, the
standard for establishing subject matter jurisdiction and the right to a hearing is
3 Regarding the appellant’s contention that the parties’ joint stipulations indicate that
her disclosures were protected, RPFR File, Tab 1 at 4, the pleading that she designated
below as “Joint Stipulations” does not bear the signature of the agency’s representative,
nor does it otherwise indi cate that both parties agreed to the statement in the appellant’s
pleading, RF, Tab 29. Moreover, the appellant fails to point out where in the record the
agency indicated its assent to her purported stipulations. In any event, the parties could
not stipulate to the legal conclusion that the appellant’s disclosures were protected.
See, e.g., Wilson v. Department of Homeland Security , 122 M.S.P.R. 262 , ¶ 11 (2015)
(holding that parties may not stipulate to legal conclusions).
4 In her reply to the agency’s response, the appellant argues that the agency’s response
was untimely filed. RPFR File, Tab 4 at 4 -5. The record reflects t hat the agency’s
response was due on September 24 , 2016, and that the agency filed it at 9:57 a.m. on
September 25, 2016. RPFR File, Tab 2 at 1, Tab 4. As the appellant correctly points
out, the Board’s reg ulations require that such late -filed pleadings be accompanied by a
motion showing good cause for the untimely filing. RPFR File, Tab 4 at 5; 5 C.F.R.
§ 1201.114 (g). Because the agency failed to submit the required motion, we have n ot
considered its response.
6
an assertion of a nonfrivolous claim, while the standard for establishing a prima
facie case is that of preponderant evidence. MaGowan v. Environmental
Protection A gency , 119 M.S.P.R. 9, ¶ 5 (2012) .
¶9 The essence of the administrative judge’s analysis in this appeal is her
finding that a reasonable person in the appellant’s position as a Human Resources
Specialist would not have believed that the information she disclosed evidence d
an abuse of aut hority, gross mismanagement, or a violation of a law, rule, or
regulation. RID at 10 -13. The proper test for determining whether an employee
had a reasonable belief that her disclosures revealed misconduct prohibited under
the Whistleblower Protection Act ( WPA ) is this: could a disinterested observer
with knowledge of the essential facts known to and readily ascertainable by the
employee reasonably conclude that the actions of the Government evidence
wron gdoing as defined by the WPA?5 Mudd v. Department of Veterans Affairs ,
120 M.S.P.R. 365, ¶ 5 (2013) . We agree with the administrative judge that the
appellant failed to establish by preponderant evidence that she made a protected
disclosure.
¶10 The administrative judge found that the appellant’s June 22, 2012 e mail , in
which she contended that the agency’s case in support of the letter of
admonishment was “based on dishonest evidence ,” did not contain any protected
disclosures. The email did not disclose an abuse of au thority. RID at 9-10.
“Abuse of authority” occurs when there is an “arbitrary or capricious exercise of
power by a federal official or employee that adversely affects the rights of any
person or that results in personal gain or advantage to himself or to preferred
other persons.” Mc Corcle v. Department of Agriculture , 98 M.S.P.R. 363 , ¶ 24
(2005) (quoting Embree v. Department of the Treasury , 70 M.S.P.R. 79 , 85
5 Because all relevant facts in this appeal occurred prior to December 27, 2012, the
WPA, as clarified by the Whistleblower Protection Enhancement Act of 2012 (WPEA),
applies to the appellant’s claims. See generally Day v. De partment of Homeland
Security , 119 M.S.P.R. 589 , ¶¶ 3, 7 -26 (2013) (discussing the effective date of the
WPEA, as well as its retroactivity).
7
(1995)). The administrative judge found that the agency’s record documented the
appellant’s disrespectful behavior towards her supervisor, amply demonstrating
that she had engaged in the cited misconduct. RID at 9 -10. The administrative
judge further found no evidence that the supervisor admonished the appellant for
personal gai n or to adversely affect anyone’s rights , consequently finding that the
appellant failed to establish by preponderant evidence that she reasonably
believed that her disclosure evidenced an abuse of authority . RID at 10.
¶11 The administrative judge also fou nd that th e June 22, 2012 e mail did not
disclose a violation of law , rule , or regulation because the appellant failed to
show that the agency was required by its own rules to conduct any further fact
finding regarding her grievance or to allow her to prese nt her grievance orally,
and the record did not reflect that the agency had denied her any required
procedural protections. RID at 10 -11. The administrative judge further found
that the appellant’s June 22, 2012 e mail message did not disclose gross
misma nagement but instead reflected her conclusory disagreement with the
agency’s adjudication of her grievance. RID at 11 -12. Because the appellant’s
July 26 and August 29, 2012 disclosures involved the same alleged wrongdoing
as her June 22 disclosure, the administrative judge found that they also were not
protected . RID at 12 -13.
¶12 On review, the appellant argues that the administrative judge based her
findings on the evidence in the file supporting her admonishment, which she
contends “has no bearing on the disclosures at issue within this case.” RPFR
File, Tab 1 at 17 -18. We disagree. The appellant’s arguments all revolve around
her basic contention that the misconduct on which the agency based the letter of
admonishment simply did not happen . In her own words, she “essentially
disclosed that she had received an unfounded admonishment based on dishonest
evidence and that this issue had been ignored and unaddressed within her
grievances.” Id. at 11. The administrative judge determined otherwise, f inding
that not only did the appellant’s own statements support the agency’s decision to
8
issue the letter of admonishment, but even the most favorable evidence to the
appellant corroborated the agency’s version of the events at issue. RID at 9-10.
¶13 We agr ee with the administrative judge. The appellant’s insistence that the
agency fabricated the evidence in support of her admonishment is not supported
by the record . Id. Her contentions regarding the agency’s grievance process also
lack credibility. For example, w e agree with the administrative judge that the
appellant failed to establish that the agency was required to conduct further fact
finding as the relevant agency policy only states that further fact finding may be
warranted, not that it is require d. RID at 11 ; Reed v. Department of Veterans
Affairs , MSPB Docket No. CH -1221 -13-1557 -W-1, Initial Appeal File, Tab 4
at 64 of 70 . Similarly, the appellant’s insistence on review that the Director is th e
only person authorized to settle her grievance is unsupported in the record .6
RPFR File, Tab 1 at 7; RF, Tab 13 at 177 -94. Moreover, an employee ’s
disagreement with an agency ruling or adjudication does not constitute a
protected disclosure , even if that ruling was legally incorrect. See O’Donnell v.
Department of Agriculture , 120 M.S.P.R. 94, ¶ 15 (2013), aff’d , 561 F. App’x 926
(Fed. Cir. 2014). Thus, we find that the adminis trative judge correctly denied the
appellant’s request for corrective action.
¶14 The appellant challenges the ad ministrative judge’s denial of one of her
proffered witness es. RPFR F ile, Tab 1 at 30 -31. On review, the appellant
contends that the witness co uld have spoken as to the appellant’s reasonable
belief in her purported whistleblowing disclosures. Id. By contrast, i n her
prehearing submissions, she asserted that the witness generally would testify in
6 The agency’s handbook does indicate that the facility Director will be the deciding
official in a grievance filed by a Title 38 employee, which the handbook identifies as
“physi cians, podiatrists, chiropractors, optometrists, nurses, nurse anesthetists,
physician assistants, expanded -function dental auxiliaries [appointed under 38 U.S.C.
§ 7401 (1) and part -time registere d nurses, including those with an intermittent duty
basis, appointed under 38 U.S.C. § 7405 (a)(1)(A)]. ” RF, Tab 13 at 195 -96. As a
Human Resources Spec ialist, the appellant is not a Title 38 emp loyee , and these
procedures do not apply to her.
9
support of the appellant’s contentions, show tha t certain individuals in the
organization did not like the appellant, and discuss an August 2012 email
message advising employees to use the chain of command. RF, Tab 8 at 38. The
record reflects that the administrative judge rejected the witness as immaterial.
RF, Tab 11 at 7. The 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 appellant has failed to show that the
administrative judge abused her considerable discretion in this regard.
¶15 Finally , we reject the appellant’s contentions of bias on the part of the
administrative judge. RPFR File, Tab 1 at 31. In making a claim of bias or
prejudice against an administrative judge, a party must overcome the presumption
of honesty and integrity that accompanies administrative adjudicators . Oliver v.
Department of Transportation , 1 M.S.P.R. 382 , 386 (1980). An administrative
judge’s conduct during the course of a Board proceeding warrants a new
adjudication only if the administrative judge’s comments or actions evidence “a
deep -seated favoritism or antagonism that would make fair judgment impossible. ”
Bieber v. Department of the Army , 287 F.3d 1358 , 13 62-63 (Fed. Cir. 2002)
(quoting Liteky v. United States , 510 U.S. 540 , 555 (1994)). The appell ant’s
allegations of bias fail to make this requir ed showing.
¶16 Accordingly, we affirm the remand initial decision, finding that the
administrative judge properly denied the appellant’s request for corrective action .
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
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 o ption is most appropriate in any matter.
10
review and the appropriate forum with which to file. 5 U.S.C. § 7703 (b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described b elow do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies t o your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judic ial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
11
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any a ttorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and tha t such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. ____ , 137 S. Ct. 1975 (2017). If you have a
representative in this case, and your representative receives this decision before
you do, then you must file with the district court no later than 30 calendar days
after your representative receives this decision. If the action involves a claim of
discrimination based on race, color, religion, sex, national origin, or a disabling
condition, you may be entitled to representation by a court -appointed lawyer and
to waiver of any requirement of prepayment of fees, costs, or other security. See
42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district courts can be found at their resp ective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employm ent
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the
12
EEOC’s Office of Federal Operation s within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative 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 Op portunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunit y Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (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.8 The court of appeals must receive your petition for
8 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signe d into law by the President on
13
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Fed eral Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are inter ested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appe llants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195,
132 Stat. 1510.
14
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD:
Washington, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board | REED_MARGARET_M_CH_1221_13_1557_B_1_FINAL_ORDER_2005664.pdf | 2023-02-24 | null | CH-1221 | NP |
3,481 | https://www.mspb.gov/decisions/nonprecedential/WILLIAMS_SHEILA_JOSHALYN_DC_0752_16_0558_I_1_FINAL_ORDER_2005709.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
SHEILA JOSHALYN WILL IAMS,
Appellant,
v.
DEPARTMENT OF HEALTH AND
HUMAN SERVICES,
Agency.
DOCKET NUMBER
DC-0752 -16-0558 -I-1
DATE: February 24, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL1
Jason I. Weisbrot , Esquire, and Justin Womack , Baltimore, Maryland, for
the appellant.
Alexis S. Conway , Baton Rouge, Louisiana, for the agency.
Katherine A. Goetzl and Reynolds Wilson , Esquire, Washington, D.C., for
the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
Tristan L. Leavitt, Member
Member Leavitt issues a separate dissenting opinion.
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case 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
FINAL ORDER
¶1 The agency has filed a petition for review and the appellant has filed a cross
petition for review of the initial decision, which sustained both specifications of
the charge of unprofessional conduct, found that the appellant did not prove any
of her affirmative defenses, and reversed the agency’s removal action because the
agency did not prove a nexus between the misconduct and the efficiency of the
service. For the following reasons, we GRANT the petition for review and the
cross petition for review. We AFFIRM the administrative judge’s decision to
sustain both specifications of the unprofessional conduct charge and her finding
that the appellant did not prove any of her affirmative defenses. We REVERSE
the administrative judge’s finding that the agency did not prove nexus. We
MITIGATE the removal penalty to a 14 -day suspension.
BACKGROUND
¶2 The agency removed the appellant, an I nvestigations Analyst, based on a
charge of unprofessional conduct stemming from her behavior during an
August 19, 2015 incident in the Equal Employment Opportunity Compliance and
Operations (EEOCO) Division. Initial Appeal File (IAF), Tab 6 at 39 -47, Tab 7
at 53 -58. She appealed to the Board and, after a hearing, the administrative judge
issued an initial decision reversing the removal. IAF, Tab 34, Initial Decision
(ID) at 1, 19. The administrative judge found that the agency proved both
specification s of its charge. ID at 7 -10. She also concluded that the appellant did
not prove her affirmative defenses of disability discrimination and reprisal for
equal employment opportunity (EEO) activity. ID at 14 -19. However,
the administrative judge reversed the removal action because the agency did not
prove a nexus between the removal and the efficiency of the service. ID at 10 -13.
¶3 The agency has filed a petition for review, the appellant has filed a
response, and the agency has filed a reply brief. Pet ition for Review (PFR) File,
Tabs 4, 9, 14. The appellant’s response not only opposes the agency’s petition
3
for review but also challenge s the administrative judge’s analysis of the charge
and her exclusion of purported comparator evidence . PFR File, Tab 9 at 19
& n.5, 25 & n. 8. Therefore , we have construed it also as a cross petitio n for
review. PFR File, Tab 11. The agency has filed a response to the appellant’s
cross petition for review. PFR File, Tab 15.
ANALYSIS
¶4 An agency must establish the fol lowing three things to withstand a
challenge to an adverse action against an employee pursuant to 5 U.S.C.
chapter 75: (1) it must prove by a preponderance of the evidence2 that the
charged conduct occurred; (2) it must establish a nexus between that cond uct and
the efficiency of the service; and (3) it must demonstrate that the penalty imposed
is reasonable. 5 U.S.C. §§ 7513 (a), 7701(c)(1)(B); Malloy v. U.S. Postal Service ,
578 F.3d 1351 , 1356 (Fed. Cir. 2009); Pope v. U.S. Postal Service , 114 F.3d
1144 , 1147 (Fed. Cir. 1997). For the following reasons, we find that the agency
has satisfied its burden regarding the charge and nexus but not the penalty.
The agency proved both specifications of the unprofessional conduct charge.
¶5 In the proposal notice, the agency alleged that the appellant had a meeting
with her first -line supervisor and another employee on August 19, 2015, and
she was advised during this meeting that the agency had denied her reasonable
accommodation request base d upon the determination of a Federal Occupational
Health Service (FOH) expert. IAF, Tab 7 at 53. The agency further alleged that
the appellant had asked for a copy of the FOH determination, and her first -line
supervisor told her that she would ask the R easonable Accommodations
Coordinator for the requested information. Id. at 53-54. In pertinent part, the
agency alleged that the appellant left her office, went to the EEOCO Division,
2 Preponderant evidence is the degree of relevant evidence that a reasonable person,
considering the record as a whole, would accept as sufficient to find that a contested
fact is more likely to be true than untrue. 5 C.F.R. § 1201.4 (q).
4
and engaged in unprofessional conduct by (1) screaming in the hallway of the
EEOCO Division, which caused a “significant disruption at the workplace,” and
(2) “angrily flail[ing] [her] arms around and hit[ting] [the Reasonable
Accommodations Coordinator] on her arm.” Id. at 54 -55. The agency further
alleged that employees in the EEOCO Division called security as a result of the
appellant’s “violent meltdown,” which included her crying, yelling, flailing, and
balling her hands into fists. Id. The administrative judge made credibility
determinations and found that the agenc y proved that the misconduct occurred
and that the misconduct constituted unprofessional conduct. ID at 7 -10.
¶6 In her cross petition for review, the appellant contends that the
administrative judge improperly sustained the charge, but we are not persuade d
by this argument. PFR File, Tab 9 at 19 n.5.3 For instance, we have considered
the appellant’s assertion that the Board should find that her conduct was not
unprofessional because it occurred in the EEOCO Division. Id. (discussing
Daigle v. Department of Veterans Affairs , 84 M.S.P.R. 625 (1999)). In Daigle ,
84 M.S.P.R. 625, ¶¶ 2, 6, the Board found that a disrespectful conduct charge
could not be sustained because, among other things, the appellant’s use of abusive
language about a manager occurred during an EEO counseling session. The
Board explained that, because EEO counseling sessions are a semi -confidential
means through which employees complain about other agency personnel and
compla inants are likely to be emotionally distraught when reporting perceived
discrimination to the EEO counselor, it is reasonable to afford employees more
leeway regarding their conduct in such a context than they might otherwise be
3 We deny the appellant’s request to file a reply to the agency’s opposition to her cross
petition for review. PFR File, Tab 17. A cross petition for review is expected to
contain a party’s complete legal and factual arguments, and the Board’s regulations do
not provide for a reply brief in such a situation or as a matter of right. See 5 C.F.R.
§ 1201.114 (a)-(b). Moreover, we are not persuaded by the appellant’s assertion that she
should be able to file a reply brief because the agency’s response to her cross petition
for review contains new and material legal arguments. See 5 C.F.R. §§ 1201.114 (a)-(b),
(k), 1201.115(d) .
5
afforded in other employmen t situations. Id., ¶ 6. This case is distinguishable
from Daigle in three important respects. First, by the appellant’s own admission,
she went to the EEOCO Division with the intention of obtaining a copy of the
FOH determination, Hearing Transcript (HT ) at 402 -04 (testimony of the
appellant), not to discuss specifically any of her EEO claims. Second, the
appellant’s conduct in this matter occurred in the hallway of the EEOCO
Division, not in an office or other confidential or semi -confidential setting.
Third, the appellant made unwanted physical contact with the Reasonable
Accommodations Coordinator during her outburst in the EEOCO Division, which
is not the type of conduct that might be expected even in a confidential EEO
counseling session. Cf. Daig le, 84 M.S.P.R. 625, ¶ 6 (noting that employees
could be expected to complain about other agency personnel in an EEO
counseling sess ion and that the appellant’s abusive language was not directed at
the counselor). Thus, we find that the appellant’s conduct was unprofessional
even though it occurred in the EEOCO Division. However, as we discuss in more
detail below, infra ¶ 22, the co ntext in which the appellant’s misconduct occurred
plays a significant role in assessing the reasonableness of the penalty under the
particular circumstances of this case.
¶7 The appellant also asserts that her conduct did not “rise to the level of
unprofess ionalism” because she was “merely venting her frustrations about
an EEO matter, her reasonable accommodation, and disability.” PFR File, Tab 9
at 19 n.5. She asserts that she did not make a threat like the employee in Berkner
v. Department of Commerce , 116 M.S.P.R. 277 (2011), who was removed for
making inappropriate statements during a meeting with a union steward
concerning her disc rimination complaint. PFR File, Tab 9 at 19 n.5. We find her
arguments unavailing. The administrative judge noted that it was undisputed that
the appellant’s outburst lasted at least 10 minutes, involved loud crying and
lamentation, pouting, stomping, a nd waving her arms. ID at 9. The
administrative judge made several credibility determinations, found that the
6
appellant screamed, and noted that she admitted gesturing with her arms and that
she was “hysterical,” which resulted in incidental contact with another
employee’s arm. ID at 9 -10. She also found that the appellant’s actions
constituted unprofessional conduct. Id. The Board must give deference to
an administrative judge’s credibility determinations when they are based,
explicitly or implicitly , on the observation of the demeanor of witnesses
testifying at a hearing; the Board may overturn such determinations only when it
has “sufficiently sound” reasons for doing so. Haebe v. Department of Justice ,
288 F.3d 1288 , 1301 (Fed. Cir. 2002) . The appellant has not presented such
sufficiently sound reasons. Further, we find nothing in Berkner , which upheld
that employee’s removal for inappr opriate conduct, that precludes a finding of
unprofessional conduct on the facts of this case. Accordingly , we affirm the
administrative judge’s decision to sustain both specifications of the
unprofessional conduct charge.
The agency proved a nexus between the removal and the efficiency of the service.
¶8 Under 5 U.S.C. § 7513 (a), an agency may remove an employee “only for
such cause as will promote the efficiency of t he service.” The nexus requirement,
for purposes of whether an agency has shown that its action promotes the
efficiency of the service, means there must be a clear and direct relationship
between the articulated grounds for an adverse action and either th e employee’s
ability to accomplish his or her duties satisfactorily or some other legitimate
Government interest. Merritt v. Department of Justice , 6 M.S.P.R. 585 , 596
(1981), modified by Kruger v. Department of Justice , 32 M.S.P.R. 71, 75 n.2
(1987). An agency may show a nexus between off-duty4 misconduct and the
4 The administrative judge found that the appellant was on approved leave at the time of
the incident . ID at 10. The agency on review does not concede that the appellant was
off duty, PFR File, Tab 4 at 14 n.5, and her leave statements do not show tha t she was
on approved leave on the date and time of the incident, IAF, Tab 19 at 62. However,
the record reflects that the appellant sent an email to her first -line supervisor following
the August 19, 2015 reasonable accommodation request meeting in which she stated
7
efficiency of the service by three means: (1) a rebuttable presumption in certain
egregious circumstances; (2) preponderant evidence that the misconduct
adversely affects the appellant’s or coworkers’ job performance or the agency’s
trust and confidence in the appellant’s job performance; or (3) preponderant
evidence that the misconduct i nterfered with or adversely affected the agency’s
mission. Kruger , 32 M.S.P.R. at 74.
¶9 In the initial decision, the administrative judge found that the agency did
not prove nexus under any of these methods. ID at 10 -13. In pertinent part, the
administr ative judge found that the appellant’s misconduct (1) was not so plainly
egregious as to give rise to a presumption of nexus, (2) was not related to her job
performance and did not affect her immediate coworkers in the Administrative
and Policy office, (3) did not affect her supervisor’s confidence in her
performance, (4) did not interfere with the EEOCO Division’s job performance or
mission, and (5) did not interfere with or adversely affect the agency’s mission.
ID at 11 -13. On review, the agency argues that the administrative judge erred
when she determined that the appellant’s unprofessional conduct did not
adversely affect the agency’s trust and confidence in her job performance, the job
performance of the EEOCO Division employees, or the agency’s mis sion.5
PFR File, Tab 4 at 14 -25.
¶10 We agree with the agency that it proved by preponderant evidence that it
established nexus in this matter. Indeed, both the Board and the U.S. Court of
Appeals for the Federal Circuit (Federal Circuit) have held that mi sconduct that
occurs on agency premises and involves agency personnel is sufficient to
that she was “not feeling well” and “should go home as soon as possible,” and her
first-line supervisor replied, “No problem,” at about 11:40 a.m. IAF, Tab 7 at 59.
Based on this email correspondence, we assume for the purposes of our analysi s that the
appellant was off duty during the incident in question, which occurred shortly after
noon that day. E.g., id. at 62 -66.
5 The agency does not contend on review that the administrative judge’s other nexus
findings were in error. We therefore affirm the administrative judge’s findings in this
regard .
8
establish nexus. For example, in Parker v. U.S. Postal Service , 819 F.2d 1113 ,
1116 (Fed. Cir. 1987), the court held that there was a direct connection between
the petitioner’s misconduct and the efficiency of the service because the
petitioner “admittedly aided and abetted the sale of drugs to another employee at
that facility in a transaction that was arranged at least in part at work.” In Venson
v. Department of the Air Force , 10 M.S.P.R. 375 , 377 (1 982), aff’d , 706 F.2d 319
(Fed. Cir. 1983) (Table), the Board found and the Federal Circuit affirmed that
nexus existed for the appellant’s off -duty misconduct when the incident at issue
took place on agency premises, involved the disruption of functions s ponsored by
the agency, and resulted in the use of agency personnel who had to deal with the
appellant’s misconduct. Similarly, in Franks v. Department of the Air Force ,
22 M.S.P.R. 502, 504 -05 (1984), the Board found that the agency proved nexus
because the appellant’s off -duty intoxication on agency premises presented a
possible danger to others and involved the use of agency personnel for the
purpose of dealing with his conduct. See also Lowell v. Department of the Air
Force , 11 M.S.P.R. 453 , 454 -55 (1982) (finding nexus for off-duty misconduct
when the appellant’s actions occurred on agency property and required the use of
the agency’s security and investigations personnel).
¶11 The proposal notice, which was written by the appellant’s first -line
supervisor, explicitly stated tha t the August 19, 2015 incident, which “occurred at
work during work hours in front of [her] . . . colleagues . . . negatively affect[ed]
[the first -line supervisor’s] trust and confidence in [the appellant’s] job
performance.” IAF, Tab 7 at 57. In additi on to disrupting the work of EEOCO
Division employees, agency security was called in to deal with the appellant’s
behavior. HT at 219 -225 (testimony of the Reasonable Accommodation Case
Manager). As set forth above, the fact that the misconduct occurred on agency
property and involved agency personnel is sufficient to establish nexus.
¶12 Moreover , the evidence clearly demonstrates that the deciding official, who
was the appellan t’s third -level supervisor, HT at 325 -26 (testimony of the
9
deciding official), also lost confidence in her ability to perform her duties after
the incident in question. Importantly, the deciding official stated in the decision
letter, and reaffirmed in his testimony, that he “lost trust in [the appellant’s]
ability to behave in a pr ofessional manner with [her] co-workers and other
[agency ] employees,” the charge “directly relate[d] to the performance of [her]
duties,” and “directly relate[d] to [his] confidence that [the appellant] will be able
to perform [her] assigned duties at a s atisfactory level.” IAF, Tab 6 at 41 -43; HT
at 337 (testimony of the deciding official). The deciding official explained that,
“[a]s an Investigative Analyst, [the appellant was] expected to demonstrate
professional characteristics in [her] dealings with co-workers and Regional and
Headquarters staff.” IAF, Tab 6 at 41.
¶13 The record supports the deciding official’s conclusion in this regard. For
example, the Investigations Analyst position description stated that assignments
“involve exercising good judgm ent and tact in dealing with personnel.”
IAF, Tab 19 at 192. Moreover, the appellant’s performance plan included a
critical element of “collaborating with others.” IAF, Tab 7 at 114 -19. The
agency described this critical element as, among other things, “[f]oster[ing] an
organizational climate that reinforces treating others with professionalism,
courtesy, [and] respect; is recognized at all levels as a model of professionalism
and fairness.” Id. at 117. The deciding official testified that the “collab orating
with others” critical element “included any time that [an employee was] [acting as
a liaison] or communicating with an entity.” HT at 368 (testimony of the
deciding official). Based on this evidence, we conclude that the agency proved
by preponde rant evidence that it lost trust and confidence in the appellant’s job
performance as a result of her misconduct on August 19, 2015. See Ellis v.
Department of Defense , 114 M.S.P.R. 407, ¶ 9 (2010) (concluding that the agency
proved nexus through the deciding official’s declaration , which established that
the appellant’s conduct affected management’s trust and confidence in his job
perfo rmance) ; Adams v. Defense Logistics Agency , 63 M.S.P.R. 551, 555 -56
10
(1994) ( finding sufficient to establish nexus the deciding official’s unch allenged
testimony that the appellant’s off -duty possession of marijuana adversely affected
the agency’s trust and confidence in his job performance). Therefore, nexus is
established.
The appellant did not prove her affirmative defenses.
¶14 The administrativ e judge found that the appellant did not prove that her
disability or EEO activity was a motivating factor in the agency’s decision to
remove her or that she proved her failure to accommodate claim. ID at 14 -19. In
her cross petition for review, the appe llant does not challenge the administrative
judge’s findings regarding motivating factor or her conclusion that she did not
prove her affirmative defenses. ID at 14 -19. However, we will briefly address
such claims in light of recent case law. Regarding her disparate treatment claim,
her initial burden was to prove that her disability was a motivating factor in the
removal action. Pridgen v. Office of Management and Budget , 2022 MSPB 31 ,
¶ 40. Because we discern no error with the administrative judge’s motivating
factor analysis or conclusion regardi ng this claim, we do not reach the question of
whether her disability was a “but -for” cause of the removal action. Id., ¶¶ 40, 42 .
¶15 The appellant’s prior EEO activity involved complaining of disability
discrimination. IAF, Tab 17 at 49 -53. Such activity is protected by the
Americans with Disabilities Act, as amended by the Americans with Disabilities
Act Amendments Act, the standards of which have been incorporated by reference
into the Rehabilitation Act. 29 U.S.C. § 791(f); 42 U.S.C. § 12203 (a); Pridgen ,
2022 MSPB 31 , ¶¶ 35, 44. This type of claim requires the appellant to prove
“but-for” causation as her initial burden. Pridgen , 2022 MSPB 31 , ¶¶ 46-47.
Because we affirm the administrative judge’s finding that she did not meet her
initial burden to prove motivating factor, we also find that she would be unable to
prove “but -for” causation.
11
The removal penalty is mitigated to a 14 -day suspension.
¶16 Having found that the agency proved both specifications, the charge, and
nexus, and that the appellant did not prove any affirmative defenses, we now turn
to the penalty.6 Before undertaking this review, we note that since the issuance of
Douglas v. Veterans Administration , 5 M.S.P.R. 280, 284 (1981), over 40 years
ago, the Board and the U.S. Court of Appeals for the Federal Circuit have held
that the Board’s statutory power includes the authority to modify or reduce a
penalty imposed on an employee by an agency’s adverse action. See, e.g .,
Mitchum v. Tennessee Valley Authority , 756 F.2d 82 , 84 (Fed. Cir. 1985)
(requiring an administrative judge to ascertain whether the agency resp onsibly
balanced the relevant factors in the individual case and selected a penalty within
the tolerable limits of reasonableness) ; Van Fossen v. Department of Housing and
Urban Development , 748 F.2d 1579 , 1581 (Fed. Cir. 1984) (noting that the
Board’s failure to consider a significant mitigating circumstance constituted an
abuse of discretion, and remanding for the Board to determine an appropria te
lesser penalty). That authority is derived from 5 U.S.C. § 1205 (a)(1), as enacted
by the Civil Service Reform Act of 1978, which provides that the Board is
authorized and directed to “take fina l action” on any matter within its
jurisdiction. Douglas , 5 M.S.P.R. at 284, 296. Such authority is also consistent
with the same broad authority that the former Civil Service Commission had,
dating back to at least 1947, and that Congress wanted to “rem ain with the Board”
upon its creation. Id. at 285 -86, 290 -94. Congress “clearly intended the Board to
function in an independent, nonpartisan, quasi -judicial role,” id. at 287, and
exercise a “degree of independent discretionary judgment,” id. at 298. I n
essence, and after briefing on the issue from a dozen Federal departments and
agencies, four Federal employee unions, and the parties, the Board held that,
although its authority to mitigate must be exercised with appropriate deference to
6 We need not remand the appeal because the record is fully developed on this issue.
12
agency manageme nt, it nevertheless has the authority to “mitigate penalties when
the Board determines that the agency -imposed penalty is clearly excessive,
disproportionate to the sustained charges, or arbitrary, capricious, or
unreasonable.” Id. at 284, 301 -02 (further holding that the Board, like its
predecessor Civil Service Commission, “will consider whether a penalty is clearly
excessive in proportion to the sustained charges, violates the principle of like
penalties for like offenses, or is otherwise unreasonable u nder all the relevant
circumstances.”). Thus, the Board’s role “is essentially to assure that the agency
did conscientiously consider the relevant factors and did strike a responsible
balance within tolerable limits of reasonableness.” Id. at 306. The u ltimate
burden is upon the agency to persuade the Board of the appropriateness of the
penalty imposed. Id. at 307.
¶17 The Board has h eld that the seriousness of the offense is always one of the
most important factors in assessing the reasonableness of an agency’s penalty
determination. Davis v. U.S. Postal Service , 120 M.S.P.R. 457, ¶ 7 (2013).
There can be no dispute that the sustained misconduct —screaming in the
workplace and making unwanted physical contact with another agency
employee —is serious. HT at 367 (testimony of the deciding official) (testifying
that the appellant’s misconduct was “very, very serious” because employees were
“alarmed” and “Security was called”). Other aggravating factors include the
appellant’s 5-day suspension in February 2015 , jus t 6 months before the incident
at issue here, based on a charge of unprofessional conduct (including
specifications that she yelled or screamed at various agency officials and ran and
screamed through the headquarters building), a letter of reprimand in March 2014
based on failure to follow instructions , and two letters of warning in 2014 for
loud and unprofessional behavior and unprofessional behavior, respectively.
IAF, Tab 7 at 73-89. Additionally, as discussed above, supra ¶¶ 11-13, the
appellant’s mi sconduct negatively affected her supervisors’ confidence in her
ability to perform her assigned duties. The deciding official also stated in the
13
decision letter, and reaffirmed in his testimony, that the appellant had not
demonstrated a good potential for rehabilitation because she expressed no
remorse for her actions, she did not seem to recognize that her behavior was
inappropriate, and the relevant events occurred less than 1 year after she received
a 5-day suspension for unprofessional conduct as a res ult of “yelling” at her
supervisor and “running and screaming through the . . . headquarters building .”
IAF, Tab 6 at 44; HT at 337 (testimony of the deciding official) .
¶18 We now turn to “mitigating circumstances surrounding the offense such as
unusual job tensions . . . [and] mental impairment, ” among other things.
Douglas , 5 M.S.P.R. at 305. There are numerous mitigating factors present in
this case. For example, we have considered the appellant’s argument that the
removal action should be mitigated be cause she suffers from various medical
conditions, including hearing loss, anxiety, depression, and adjustment disorder
that contributed to her behavior during the incident in question. PFR File, Tab 9
at 24-25. When mental impairments or illnesses are r easonably substantiated and
shown to be related to the reasons for removal, they must be considered in the
penalty analysis. Malloy , 578 F.3d at 1356.
¶19 The appellant’s numerous medical conditions are documented in the record
and were well -known to the ag ency. The appellant was appointed in 2010 under
Schedule A authority, 5 C.F.R. § 213.3102 (u), for individuals with a severe
physical disability (hearing loss). IAF, Tab 9 at 71. Due to the appellant’s
earlier reasonable accommodation requests,7 Family and Medical Leave Act of
1993 (FMLA) requests,8 and prior EEO activity,9 the agency and the appellant’s
supervisors knew that the appellant was seeing an oncologist for breast cancer
7 E.g., IAF, Tab 15 at 22 -52, Tab 17 at 69, Tab 19 at 197 -201.
8 The appellant testified, and the record reflects, that she “us[ed] a whole lot more
leave,” including FMLA leave, between March and mid -August 2015. HT at 51
(testimony of the appellant); IAF, Tab 15 at 63 -66, Tab 19 at 60 -62.
9 E.g., IAF, Tab 6 at 13 -14, 16 -34, 118 -26.
14
and lymphedema treatments; a cardiologist for stress , shortness of breath, and
heart palpitations; a psychiatrist for anxiety and depression ; and an audiologist
for hearing loss and hearing aid issues .
¶20 Turning to the incident in question, some of the appellan t’s medical
conditions likely played a role in her behavior. The appellant testified that, after
her supervisor advised her during the August 19, 2015 meeting that her
accommodation request was denied, IAF, Tab 15 at 51 -52, she felt “numb” and
“despair,” she “started feeling anxious,” and she “started crying,” HT at 400 -02
(testimony of the appellant). She further testified that she left her office and
decided to go to the EEOCO Division to obtain the FOH determination
upon which the denial of her reasona ble accommodation request was based.
Id. at 402-03 (testimony of the appellant). Once she arrived at the EEOCO
Division and was told that she would have to make a Freedom of Information Act
request to obtain the FOH determination, the appellant testified that she was
“disappointed,” “emotionally distraught,” “crying,” “may” have spoken loudly,
held her hands in fists and started shaking them up and down, said she felt “like
throwing something,” stomped her foot, and pouted. Id. at 405, 408, 410 -13
(testi mony of the appellant).
¶21 The Board has found that a medical or mental impairment is not a
significant mitigating factor in the absence of evidence that the impairment can
be remedied or controlled, i.e., when the potential for rehabilitation is poor.
Mingledough v. Department of Veterans Affairs , 88 M.S.P.R. 452, ¶ 12 (2001).
Here , however, the appellant’s doctor indicated on March 20, 2015, that
accommodations of an alternate work schedule (AWS) with one day off per pay
period, a delayed start time, and 3 days per week of telework, which the agency
had denied, would give the appellant the rest and recovery she needed for her
numerous medical conditions and allow her “to get additional sleep [that] she
needs due to insomnia [and] will allow her to better manage her anxiety.” IAF,
Tab 19 at 65, Tab 29 at 4 -6. We therefore find that the appellant’s medical
15
conditions and mental impairments could potentially be controlled and constitute
a mitigating factor.10
¶22 Additionally, although we have sustained the charge, the context in which
the misconduct occurred is relevant to determine whether the penalty imposed is
reasonable. Daigle , 84 M.S.P.R. 625, ¶ 6. Indeed, the context in which the
appellant’s misconduct occurred was her attempts to use the EEO process to
address her known disabilities. It is not unusual to have high stress engagements
when conflict management issues arise in the workplace, such as EEO allegations
and the bringing forth of allegations of wrongdoing in the workplace. As the
administrative judge noted in the initial decision in her nexus analysis, the type of
disruption described in this case required EEO specialists to assess, inform, and
console distraught employees. ID at 13. Significantly, the administrative judge
found that none of th e employees in the EEOCO office felt threatened by the
appellant’s behavior. ID at 8 -9. Moreover, the administrative judge concluded
that the appellant’s emotional upset during the incident led to her “incidental
contact” with the employee’s arm. ID at 9. For these reasons, we view the
context surrounding the incident of unprofessional conduct as a mitigating factor.
10 The administrative judge found that the appellant had telework and AWS privileges at
one time, but that they “did not help her to arrive at work on time, and did not prevent
her from engaging in repeated inappropria te conduct.” ID at 18. She therefore
concluded that the appellant did not prove her disability discrimination claim because
the requested accommodations, even if granted, would not be effective. Id. This
finding appears to be based on the fact that, as a result of a reprimand on March 24,
2014, for tardiness and failure to follow leave -requesting instructions, the agency
disqualified the appellant from telework and an AWS at that time. ID at 2; IAF, Tab 8
at 91 -93. The fact that the requested accommod ations may not have prevented the
appellant’s tardiness, failure to follow leave -requesting procedures, or other misconduct
in March 2014 or earlier does not demonstrate that providing an accommodation such as
that indicated by the appellant’s doctor in Ma rch 2015 would not control, for purposes
of determining the reasonableness of the penalty, the medical conditions that played a
role in the type of unprofessional conduct at issue in this case. See, e.g. , Complainant
v. Department of Health and Human Serv ices, EEOC Appeal No. 0120111422 , 2015
WL 1419939 (Feb. 25, 2015), at *3 (holding that employers have an ongoing obligation
to provide reasonable accommodations).
16
¶23 There also are other mitigating factors. Although the appellant had a
minimally successful 2014 performance appraisal, her June 2015 rat ing was fully
successful, which the deciding official found “promising,” and she had 5 years of
Federal service . IAF, Tab 14 at 68 -89; HT at 143 (testimony of the proposing
official), 363 -64, 369 (testimony of the deciding official). We have also
conside red that the appellant was asked during her testimony whether she was
sorry for what transpired on August 19, 2015. HT at 424 (testimony of the
appellant). Although the appellant initially stated that she was sorry because
she “[felt] like [she] gave [her supervisors] what they wanted,” which was
“ammunition to put [her] out of work ,” she also testified that she was “very
sorry” for what happened, that she “wish[ed] that [she] was not as emotional,”
“[she] tried not to be,” and “[t]hat’s why [she] trie d to get help.” Id. These
statements, showing that the appellant acknowledged the role her emotions played
in the misconduct as well as her desire to control those emotions and “get help,”
demonstrate remorse for the past conduct and a potential for reha bilitation.
¶24 Finally, we have considered the consistency of the penalty with those
imposed on other employees for the same or similar offenses. The Board has
recently clarified that, when analyzing disparate penalty claims,11 the relevant
inquiry is whether the agency knowingly and unjustifiably treated employees who
engaged in the same or similar offenses differently. Singh v. U.S. Postal Service ,
2022 MSPB 15 , ¶¶ 10, 14.
¶25 The deciding official testified that he was only aware of the two comparator
employees identified in the proposal notice ; he denied knowing about any other
comparators . HT at 350 -56 (testimony of the deciding offi cial); IAF, Tab 6 at 43,
Tab 7 at 56 . The two comparator employees identified in the proposal notice
were: (1) a GS-12 Auditor who was removed in 2015 for a third offense of
unprofessional conduct (yelling at his manager, using vulgar language, walking
11 The appellant’s attorney indicated during the hearing that the comparator evidence
was only relevant to the penalty analysis. HT at 356 -58.
17
towards his manager with his fists clamped, and screaming at other staff) and for
a first offense of damage to Government property (slamming his Government
laptop into his desk) ; and (2) a GS-13 Auditor who was suspended for 14 days in
2012 for a third offe nse of disrespectful conduct towards a supervisor (raising her
voice at her supervisor, repeatedly interrupting her supervisor during a meeting,
and refusing to discuss work -related matters with her supervisor) and a second
offense of failure to follow ins tructions .12 The deciding official stated in the
decision letter that the appellant’s actions were similar to the first comparator’s
misconduct in that “[her] behavior alarmed the witnesses to such a degree that
[she was] escorted out of the building” and the “level of hostility and anger that
[she] displayed . . . caused employees . . . to fear for their personal safety.”
IAF, Tab 6 at 43. We disagree with the deciding official’s conclusion that the
appellant’s misconduct was similar to the misconduct of comparator (1). Rather,
we find that the sustained misconduct of comparator (1), in total, is more serious
than the misconduct sustained against the appellant. Accordingly, we are not
persuaded that comparator (1) is a proper comparator. We further fin d that the
agency’s decision to issue to comparator (2) a 14 -day suspension for disrespectful
conduct and failure to follow instructions supports mitigating the penalty in this
matter given the agency’s clear reliance on this comparator despite having
appa rently been assigned to a different work unit from the appellant . See Singh ,
2022 MSPB 15 , ¶13 (finding that a comparator need not always have to be in the
same work unit or under the same supervisor.). The agency, which bears the
burden to prove that the removal penalty is reasonable, Malloy , 578 F.3d at 1356,
has not persuasively explained its decision to remove the appellant instead of
issuing her a 14 -day suspension as it did for comparator (2) . We therefore find
that this Douglas factor weighs in the appellant’s favor.
¶26
12 The corresponding documentation for these comparators is at IAF, Tab 19 at 234 -54,
Tab 20 at 105-10, 116 -21.
18
¶27 In conclusion, we find that the mitigating factors, including the context in
which the misconduct occurre d and the impact of the appellant’s medical and
mental conditions on her behavior during the incident in question, coupled with
the appellant’s sincere expressions of remorse, and the agency’s unpersuasive
comparator analysis, outweigh the aggravating fact ors. The penalty of removal is
therefore disproportionate to the sustained charge and otherwise unreasonable
under all the relevant circumstances. Douglas , 5 M.S.P.R. at 284, 301 -02.
Accordingly, we mitigate the removal penalty to a 14 -day suspension.
ORD ER
¶28 We ORDER the agency to cancel the removal action , substitute in its place
a 14 -day suspension , and restore the appellant to her Investigations Analyst
position . 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.
¶29 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 calcul ate 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.
¶30 We further ORDER the agency to tell the appellant promptly in writing
when it believes it has fully carried out the Board’s Order and of the actions it has
taken to carry out the Board’s Order. The appellant, if not notified, should ask
the agency about its progress. See 5 C.F.R. § 1201.181 (b).
19
¶31 No later than 30 days af ter the agency tells the appellant that it has fully
carried out the Board’s Order, the appellant may file a petition for enforcement
with the office that issued the initial decision in this appeal if the appellant
believes that the agency did not fully ca rry 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).
¶32 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), tw o lists of the information and documentation
necessary to process payments and adjustments resulting from a Board decision
are attached. The agency is ORDERED to timely provide DFAS or NFC with all
documentation necessary to process payments and adjustmen ts 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 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 (U.S.C.), sections 7701(g), 1221(g), or 1214(g). The
regulations may be found at 5 C.F.R. §§ 1201.201 , 1202.202, and 1201.203. If
you believe you meet these requirements, you must file a motion for attorney fees
and costs WITHIN 60 CALENDAR DAYS OF THE DATE OF THIS DECISION.
You must file your motion for attorney fees and costs with the office that issued
the initial decision on your appeal.
20
NOTICE OF APPEAL RIG HTS13
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). Althoug h we offer the following
summary of available appeal rights, the Merit Systems Protection Board does not
provide legal advice on which option is most appropriate for your situation and
the rights described below do not represent a statement of how courts w ill rule
regarding which cases fall within their jurisdiction. If you wish to seek review of
this final decision, you should immediately review the law applicable to your
claims and carefully follow all filing time limits and requirements. Failure to fil e
within the applicable time limit may result in the dismissal of your case by your
chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a pet ition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1) (A).
13 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.
21
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
containe d within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circui t), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. ____ , 137 S. Ct. 1975 (2017). If you have a
representative in this case, and your representative receives this decision before
you do, then you must file with the district court no later than 30 calendar days
after your representative receives this decision. If the action involves a claim of
22
discrimination based on race, color, religion, sex, national origin, or a disabling
condition, you may be entitled to representation by a court -appointed lawyer and
to waiver of any requirement of prepayment of fees, costs, or other security. See
42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://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:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S. C. § 2302 (b)(8) or
23
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (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 Appe als for the Federal Circuit or any court
of appeals of competent jurisdiction.14 The court of appeals must receive your
petition for review within 60 days of the date of issuance of this decision.
5 U.S.C. § 7703 (b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se 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
14 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.
24
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
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 leave
ceiling will be restored to a separate leave account pursuant to 5 CFR § 550.805(g).
2
NATIONAL FINANCE CEN TER CHECKLIST FOR BA CK PAY CASES
Below is the information/documen tation 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 Pa yment to be
collected (if applicable).
Attachments to AD -343
1. Provide pay entitlement to include Overtime, Night Differential, Shift Premium, Sunday
Premium, etc. with number of hours and dates for each entitlement (if applicable).
2. Copies of SF -50s (Pe rsonnel Actions) or list of salary adjustments/changes and amounts.
3. Outside earnings documentation statement from agency.
4. If employee received retirement annuity or unemployment, provide amount and address to
return monies.
5. Provide forms for FEGLI, F EHBA, or TSP deductions. (if applicable)
6. If employee was unable to work during any or part of the period involved, certification of the
type of leave to be charged and number of hours.
7. If employee retires at end of Restoration Period, provide hours of 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.
DISSENTING OPINION O F TRISTAN L. LEAVITT
in
Sheila Joshalyn Williams v. Department of Health and Human Services
MSPB Docket No. DC -0752 -16-0558 -I-1
¶1 For the reasons explained below, I respectfully dissent from the majority
opinion in this case.
¶2 I agree with the majority’s findings that the agency p roved both
specifications, the charge, and nexus, and that the appellant failed to prove her
affirmative defenses. I don’t find wildly unreasonable the majority’s rationale for
believing a 14 -day suspension is a more appropriate penalty than removal. Yet
nor do I find wildly unreasonable the agency’s rationale for removing the
appellant, and therein lies the problem. In a case such as this where reasonable
minds could differ, the Board’s role with respect to reviewing the penalty has
been clearly defined by the seminal 1981 decision in Douglas v. Veterans
Administration : “Our role in this area, as in others, is principally to assure that
managerial discretion has been legitimately invoked and properly exercised.”
5 M.S.P.R. 280 , 301 (1981) . More specifically, according to Douglas :
[T]he Board’s review of an agency -imposed penalty is essentially to
assure that the agency did conscientiously consider the relevant
factors and did strike a balance within the tolerable limits of
reasonable ness. Only if the Board finds that the agency failed to
weigh the relevant factors, or that the agency’s judgmen t clearly
exceeded the limits of reasonableness , is it appropriate for the Board
to then specify how the agency’s decision should be corrected to
bring the penalty within the parameters of reasonableness.
5 M.S.P.R. at 306 (emphasis added). This holding of Douglas has remained
intact to this day. See, e.g., Thomas v. Department of the Army , 2022 MSPB 35 ,
¶ 19. There are several reasons for the Board to defer to reasonable exercises of
judgment and discretion by agency officials. As noted in Douglas , the agency
has “primary discretion in managing its workforce,” including in maintaining
2
employee discipline and efficiency . Dougl as, 5 M.S.P.R. at 306. Agency
officials are closest to the facts and circumstances of the misconduct in any given
case, and are in the best position to weigh its gravity as it relates to the mission
and work of the agency. Furthermore, the agency actuall y has to live with the
outcome of the disciplinary process, whether that be returning the employee to
service after appropriate discipline or continuing without the assistance of
the employee.
¶3 In light of these considerations and their longstanding application to the
Board since Douglas , “it is decidedly not the Board’s role to decide what penalty
we would impose if we were the deciding officials ,” as I noted last year in my
dissent in Chin v. Department of Defense , 2022 MSPB 34 . Or, as the Board wrote
in Douglas : “The Board’s role in this process is not to insist that the ba lance be
struck precisely where the Board would choose if the Board were in the agency’s
shoes in the first instance[.]” Douglas , 5 M.S.P.R. at 306. Yet here, the majority
deviates from these well -settled principles to mitigate the agency’s reasoned
pena lty of removal to a 14 -day suspension.
¶4 The Board has frequently stated that the nature and seriousness of the
offense, and its relation to the employee’s duties, position, and responsibility, is
the most important factor in assessing the reasonableness o f a penalty. Singh v.
U.S. Postal Service , 2022 MSPB 15 , ¶ 18. The deciding official found the
appellant’s misconduct was “very, very serious .” Hearing Transcript (HT) at 336.
He testified this was the most significant factor in his penalty analysis. Id. He
also found the appellant’s misconduct was “directly relate[d] to [her] position
with the Agency.” Initial Appeal File (IAF ), Tab 1 at 15. In particular, h e
considered that a critical element of the appellant’s performance plan was
“Collaborating with Others.” Id. at 16; HT at 367. This critical element lists as a
requirement: “Fosters an organizational climate that reinforces treating others
with professionalism, courtesy, respect; is recognized at all levels as a model of
3
professionalism and fairness . . . Behaves in a professional manner at all times.”*
IAF, Tab 7 at 102. The deciding official lost trust in the appellant’s “ability to
behave in a professional manner” and exhibit self -control. IAF, Tab 1 at 15; HT
at 367.
¶5 Notwithstanding, the majority mitigates the penalty based on its analysis of
the following factors: (1) the context in which the appellant’s misconduct
occurred ; (2) the appellant’s expression of remorse ; (3) the appellant’s fully
successful performance rating in June 2015, see IAF, Tab 7 at 114; (4) the
appellant’s length of service; (5) the appellant’s medical conditions; and (6) the
consistency of the penalty with those imposed on other employees for the same or
similar offenses.
¶6 Like my colleagues, I am sympathetic to the context in which the
appellant’s misconduct occurred in this instance —namely, that she was in the
Equal Employment Opportunity ( EEO ) office. However, as the deciding official
correctly observed , the appellant’s misconduct was not “an isolated occurrence of
unprofessional behavior.” IAF, Tab 1 at 15. Notably, he considered that th e
appellant received a 5-day suspension effective February 23, 2015, for
unprofessional conduct. Id.; see IAF, Tab 7 at 82-89. Further, her 2014 midyear
progress review and 2014 performance appraisal revealed numerous incidents
where she failed to act in a professional manner with her coworkers. IAF, Tab 1
at 16; see IAF, Tab 7 at 105, 112 -13. One such incident occurred in
October 2014, when the appellant was “screaming and running through the OIG
headquarters building.” IAF, Tab 1 at 16; see IAF, Tab 7 at 113. She received a
Letter of Reprimand on March 24, 2014, for failure to follow instructions. IAF,
Tab 1 at 16; see IAF, Tab 7 at 79-81. She also received letters of warning on
January 24 and June 27, 2014, for unprofessional behavior. IAF, Tab 1 at 18; see
* Between late January and early February 2014, the appellant completed three online
training courses regarding professionalism and courtesy. IAF, Tab 7 at 75, 90 -92; HT
at 370.
4
IAF, Tab 7 at 73-78. None of these prior instances of unprofessionalism occurred
in the EEO office, so the misconduct was not isolated to a specific setting.
¶7 The deciding official found the appellant’s past history of counseling and
discipli ne significant in reaching his decision. HT at 336. He also found the
appellant failed to express remorse for her conduct and did not appear to
recognize that her conduct was inappropriate. IAF, Tab 1 at 18. For instance, he
considered that the appella nt stated in her written reply, “Unfortunately, I stated
that I felt like throwing something, but this was no different from someone
implying they needed to kick a trashcan.” IAF, Tab 1 at 15, Tab 6 at 111. He
determined, in light of the appellant’s hist ory of prior discipline and counseling,
as well as her lack of remorse, that no lesser penalty would suffice to deter future
misconduct. HT at 370.
¶8 The majority notes that, in response to being asked at the hearing whether
she was sorry for what happene d on August 19, the appellant testified she is “very
sorry” and wishes that she was “not as emotional” and “not in that place.” HT
at 424. However, at the beginning of her response to this question, the appellant
said she was sorry because she gave the a gency “ammunition” to remove her and
she “was trying to keep [her] job.” Id. She reiterated, at the end of her response,
that she was sorry because she “felt like in the end [she] gave them what they
needed to put [her] out of work” and she “wanted [her] job.” Id. I find this is
indicative of remorse as to the consequences of the misconduct, not as to the
misconduct itself. I also find significant that the appellant did not offer any
apology in responding to the proposed action. See generally IAF, Tab 6
at 99-112. I would not disturb the deciding official’s determination as to the
appellant’s level of remorse. See Wynne v. Department of Veterans Affairs ,
75 M.S.P.R. 127 , 137 (1997) (the appellant’s “belated, lukewarm expression of
remorse” was insufficient to show rehabilitative potential and did not constitute a
significant mitigating factor).
5
¶9 I agree with the majority that th e appellant’s length of service and fully
successful performance review in June 2015 are mitigating factors. However, the
deciding official considered these factors and found they did not outweigh the
aggravating factors. IAF, Tab 1 at 16; HT at 365, 369 . He found “that the five
years of federal service[] was mitigating.” HT at 365. While he “saw the 2015
review as something promising,” he “didn’t see it as . . . a substantial change over
a substantial period of time.” HT at 369. Indeed, the miscondu ct at issue in this
appeal took place in August 2015, after the improvement documented in
June 2015.
¶10 The majority also finds mitigating that some of the appellant’s medical
conditions “likely ” played a role in her behavior and that the appellant’s medica l
conditions and mental impairments “could potentially ” be controlled. The
administrative judge found the appellant failed to meet her burden to prove that
her requested accommodation s—a delayed start time , an alternative work
schedule (AWS), and 3 days o f telework per week —would have been effective.
Initial Decision at 18. The administrative judge noted, “[I]t is undisputed that the
appellant did have telework and AWS privileges at one time, and these . . .
did not prevent her from engaging in repeated inappropriate conduct, resulting in
progressive discipline.” Id. In addition, the administrative judge found the
appellant “admitted the agency never denied her requests for leave in connection
with her mental health conditions” and that the agency grant ed the appellant a
delayed start time. Id. The majority affirms these findings .
¶11 The majority’s speculative conclusion that the appellant’s medical
conditions and mental impairments “could potentially” be remedied or controlled
is inconsistent with affirming the administrative judge’s findings concerning the
appellant’s failure to accommodate claim . I recognize that an employer’s
obligation to provide reasonable accommodation is ongoing and an employee’s
medical condition and accommodation needs may change over time. However,
Mingledough v. Department of Veterans Affairs , 88 M.S.P.R. 452, ¶ 12 (2001),
6
which the majority cites, does not contemplate relying on speculation to support
mitigation. Rather, the Board in Mingledough indicated that medical or mental
impairment is not a significant mitigating factor unless there is “evidence that the
impairment can,” not might, “b e remedied or controlled.” Id. (emphasis added).
The Board determined the appellant’s psychological impairments were “not a
significant mitigating factor in light of the seriousness of his misconduct and his
poor potential for rehabilitation. ” Id. Ther e was “no evidence that the
appellant’s psychological impairments have been remedied or controlled” and the
appellant’s potential for rehabilitation was “questionable at best.” Id. (emphasis
added). Accordingly, the Board reinstated the removal which the administrative
judge had mitigated to a suspension. Id.
¶12 Here, t he deciding official gave serious consideration to the appellant’s
medical conditions in determining what penalty to impose. He explicitly
considered the appellant’s assertions that she su ffers from anxiety and depression;
that her medical conditions caused her behavior; and that the work environment
was damaging to her health. IAF, Tab 1 at 18; HT at 365-66. However, he
concluded “these mitigating circumstances do not outweigh the seriousness of the
misconduct at issue.” IAF, Tab 1 at 18. He also found the appellant had not
provided any evidence that her unprofessional conduct would not occur again,
particularly given that her behavior had not improved despite a history of lesser
disciplinary actions. Id. at 18-19. He found the appellant failed to establish “any
correlation between her lack of self -control and her medical condition” or her
actions on the day in question. HT at 365-67. I would not disturb these
well-reasoned conclusions.
¶13 As to the consistency of the penalty with those imposed on other employees
for the same or similar offenses, the deciding official considered two
comparators. IAF, Tab 1 at 17; HT at 350-51. The majority finds comparator (2)
supports mitigati on of the penalty. The appellant was an Investigations Analyst
in the Office of Investigations and had just over 5 years of service, whereas
7
comparator (2) was an Auditor in the Office of Audit Services with nearly
26 years of service. IAF, Tab 1 at 7, 1 3, 16, Tab 20 at 116; see also Singh ,
2022 MSPB 15, ¶ 13 (“[T]he fact that two employees come from different work
units and/or supe rvisory chains remains an important factor in determining
whether it is appropriate to compare the penalties they are given. In most cases,
employees from another work unit or supervisory chain will not be proper
comparators.”); Davis v. U.S. Postal Servi ce, 120 M.S.P.R. 457, ¶ 14 (2013)
(finding length of service to be a “significant distinction” in evaluating the
difference in treat ment between employees) .
¶14 The deciding official also found the appellant’s misconduct distinguishable
from comparator (2)’s misconduct, in that the appellant’s “behavior alarmed the
witnesses to such a degree that [she was] escorted out of the building” and
“caused employees in the HH S/EEOCO Division to fear for their personal
safety.” IAF, Tab 1 at 17. This is well -supported in the record. See HT at 177
(proposing official testifying, “I frankly was afraid for individuals in the office
and the safety”); HT at 224 (Reasonable Accomm odation (RA) Case Manager
testifying she “was absolutely concerned about workplace safety” and reported to
security that the appellant was “having a violent or emotional meltdown”); IAF,
Tab 7 at 62 (RA Case Manager written memorandum stating, “I explained that
there was an extremely upset employee that was having a violent meltdown and
that the situation was getting worse and we needed assistance quickly”); id. at 64
(EEO Office Branch Chief written memorandum stating, “While most did not feel
physically t hreatened by what had just happened, they did express concern that an
event like this could become something much worse and how do we protect
ourselves is [sic] this happens again but at a higher threat level”); id. at 66, 69
(two additional employees indi cating in written memoranda that they alerted
security again because no guard had arrived although the RA Case Manager had
already requested assistance; one employee stated, “This was a situation where
the visiting complainant became violent”); id. at 72 (EEO Office Director written
8
memorandum stating the appellant’s “entire demeanor was unsettling, disruptive,
and threatening to the safety of the staff”). Thus, I would not disturb the deciding
official’s assessment that comparator (2) is not a proper comp arator. In any
event, m ere unevenness in the application of a penalty is not a reason in itself for
invalidating the penalty . Rogers v. Department of Defense Dependents Schools ,
814 F.2d 1549 , 1555 (Fed. Cir. 1987) .
¶15 Overall, the deciding official deliberately and thoroughly weighed the
Douglas factors. I respect that my fellow Board members would have weighed
these factors differently. Becau se the majority believes mitigating factors
outweigh aggravating factors in this case, it concludes that “the penalty of
removal is therefore disproportionate to the sustained charge and [‘]otherwise
unreasonable under all the relevant circumstances[’]” (q uoting Douglas ,
5 M.S.P.R. at 302). Clearly Douglas indicates the Board will and should consider
these factors. However, having considered those factors, only if an agency’s
judgment “ clearly exceeded the limits of reasonableness ,” id. at 306, putting th em
outside “tolerable limits of reasonableness,” id. at 302, 306, does Douglas hold it
appropriate for the Board to “bring the penalty within the parameters of
reasonableness,” id. at 306. I strongly believe that in a case such as this where
reasonable minds could differ, an agency’s judgment has not “ clearly exceeded
the limits of reasonableness,” and management’s proper exercise of discretion
should not be displaced.
/s/
Tristan L. Leavitt
Member | WILLIAMS_SHEILA_JOSHALYN_DC_0752_16_0558_I_1_FINAL_ORDER_2005709.pdf | 2023-02-24 | null | DC-0752 | NP |
3,482 | https://www.mspb.gov/decisions/nonprecedential/SAMUELS_TIMOTHY_JAMES_NY_0752_14_0293_I_1_FINAL_ORDER_2005717.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
TIMOTHY JAMES SAMUEL S,
Appellant,
v.
DEPARTMENT OF VETERA NS
AFFAIRS,
Agency.
DOCKET NUMBER
NY-0752 -14-0293 -I-1
DATE: February 24, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL1
Damon L. Burns , Brooklyn, New York, for the appellant.
Christopher P. Richins , Esquire, Brooklyn, New York, for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
Tristan L. Leavitt, Member
FINAL ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
sustained the agency’s removal action. Generally, we grant petitions such as this
one only in the following circumstances: the initial decision contains erro neous
findings of material fact; the initial decision is based on an erroneous
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
require d to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c).
2
interpretation of statute or regulation or the erroneous application of the law to
the facts of the case; the administrative judge’s rulings during either the course of
the appe al 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 thi s appeal, we conclude that the petitioner
has not established any basis under section 1201.115 for granting the petition for
review. For the reasons set forth below , we DENY the petition for review ,
VACATE the initial decision’s notice of mixed -case appeal rights , and otherwise
AFFIRM the initial decision .
BACKGROUND
¶2 The agency removed the appellant, a Housekeeping Aid, WG -3566 -02, for
absence without official leave (AWOL), failure to follow proper leave
procedures, and conduct unbecoming a Departmen t of Veterans Affairs employee .
Initial Appeal File (IAF), Tab 8 , Subtab s 4a, 4b, 4d. The basis of the agency’s
removal action began with a July 3, 2013 altercation involving the appellant and
two other agency employees. Id., Subtab 4d at 4, Subtab 4g at 16-18. Shortly
after the altercation, agency officials separated the three e mployees pending the
results of an internal investigation and directed the appellant , who was assigned
to the New York c ampus ( referred to as the Manhattan c ampus during the
proceedings below ), to report for a detail to t he agency’s Brooklyn c ampus. Id.,
Subtab 4h at 1 ; IAF, Tab 19, Appellant’ s Exhibit 1; Hearing Compact Disc (HCD)
(testimony of the Assistant Chief of the Environmental Management Service) .
The agency also referred the matter to the U.S. Attorney for the Southern District
of New York for criminal proceedings. IAF, Tab 8, Subtab 4g at 18 , Tab 28
3
at 10.2 The appellant rep orted for duty at the Brooklyn c ampus for 1 day. IAF,
Tab 8, Subtab 4 g at 12, Tab 12 at 3 . In September 2013, the agency proposed the
appellant’s removal for AWOL, failure to follow proper leave procedures, and
disorderly conduct . IAF, Tab 8, Subtab 4f. In October 2013, the appellant
provided an oral reply to the proposa l. Id., Subtab 4e. In January 2014, the
agency rescinded the first proposal and then issued a second proposal to remove
the appellant with additional specifications of AWOL and failure to follow proper
leave procedures, and a revised charge of conduct un becoming a Department of
Veterans Affairs employee . Id., Subtab 4d . The appellant did not reply to the
second proposal, and the agency issued a decision sustaining the charges and
removing him , effective May 28, 2014. Id., Subtab 4b. The appellant timely
filed a Board appeal challenging the removal action and alleging that the union
failed to properly represent him.3 IAF, Tab 1 at 6.
¶3 Following a hearing, the administrative judge issued an initial decision
sustaining two of the three charges and affirming the penalty of removal. IAF,
Tab 34, Initial Decision (ID). Specifically, the administrative judge found that
the agency had proven by preponderant evidence the charges of AWOL and
conduct unbecoming. ID at 17, 30. The administrative judge found that the
agency had not provided the appellant with the leave procedure that he was
required to follow , particularly during the detail that he began on July 8, 2013, or
2 The recording of the second day of the hearing became inaccessible , and the
administrative judge issued an order reopening the record to set forth the relevant
testimony from the second day of the hearing and inquired whether the parties wished
to stipulate to th e testimony. IAF, Tab 28. Th e agency did so by pleading, and the
appellant did so during a telephonic conference. IAF, Tab s 29, 33.
3 In his initial appeal, the appellant also indicated that he had been denied a
within -grade increase and that the agency had failed to restore, reemploy, or reinstate
him; however, he failed to respond to the administrative judge’s orders directing him to
show that the Board has jurisdiction over these claims, and the administrative judge
deemed the claims waived. IAF, Tab 1 at 4; Tabs 4-6, 9; Tab 15 at 3; Tab 16; Tab 34,
Initial Decision at 1 n.1. The appellant does not raise these matters on review or assert
that the administrative judge erred in deeming them waived.
4
advised him of the consequences of failing to follow the leave procedure, and
conclude d that the agency had not proven the charge of failure to follow pr oper
leave procedures. ID at 19 -28. The administrative judge further found that,
although the appellant had not initially raised any affirmative defenses, certain
statements in his testim ony could be construed as affirmative defenses. ID at 31
n.34. She then found that the appellant had not proven any affirmativ e defenses
of discrimination, harmful procedural error , or due process violations . ID
at 30-44. T he administrative judge concl uded that , concerning the two remaining
charges, the agency had established a nexus between the misconduct an d the
efficiency of the service and that the penalty of removal did not fall outside the
bounds of reasonableness , and she sustained the removal . ID at 45, 50-51.
¶4 The appellant ha s timely filed a petition for review in which he generally
argues that the agency did not establish its burden of proof and further argues that
(1) the agency was negligent in presenting “a full discovery” and did not pres ent
all of the evidence; (2) he was the victim of discrimination b ased on a prior
criminal charge; (3) management failed to conduct a proper investigation; (4) he
fully complied with the agency’s instructions and was not assigned to a
department or supervi sor; (5) he was present at work; and (6) the agency did not
follow the Master Agreement with the appellant’s union (Ma ster Agreement) .
Petition for Review (PFR) File, Tab 1 at 4. T he agency has filed a resp onse
opposing the petition. PFR File, Tab 3. As set forth below, we find each of the
appellant’s arguments to be without merit.
DISCUSSION OF ARGUME NTS ON REVIEW
The appellant has not established a basis on which to reverse the administrative
judge’s findings that the agency proved two of its three charges and that the
penalty was within the bounds of reasonableness.
¶5 On review, the appellant appears to challenge the administrative judge’ s
finding that the agency proved its charge of AWOL . PFR File, Tab 1 at 4. He
alleges that he fully complied wit h the instructions from management at the
5
agency’s Manhattan campus, but he was not assigned to a department or
supervisor for proper management. Id. He further alleges that he was present at
work, presumably on the dates the agency charged him with bein g AWOL, and
has proof of his presence. Id. The appellant appears to be referring to his
contention below that when he reported to the agency’s Brooklyn campus,
management there sent him back to the Manhattan campus, but the Manhattan
campus management would not let him work. IAF, Tab 1 at 6, HCD (testimon y
of the appellant). The argument that the appellant was not assigned a supervisor
at the Brooklyn campus was not one that t he appellant argued below. Moreover,
by his own testimony, he reported to a supervisor at the Brooklyn campus who
provided him with work on the first day, and we find his argument unconvincing
that he was absent because he was not assigned to a supervisor . HCD (testimony
of the appellant). The appellant’s argument that he complied with the Manhattan
campus management’s instructions was carefully considered and rejected by the
administrative judge in finding that the agency had proven its charge of AWOL.
ID at 28 -30. Finally, the appellant did not provide evidence with his petition to
prove his presence at the workplace .4 PFR File, Tab 1 at 4.
¶6 We discern no reason to disturb the administrative judge’s findings that the
agency proved its charges of AWO L and conduct unbecoming, as the record
reflects that the administrative judge considered the evidence as a whole, drew
appropriate inferences from the evidence, and made reasoned conclusions on the
issue of credibility . ID at 7 -30; see Clay v. Department of the Army ,
123 M.S.P.R. 245 , ¶¶ 6-8 (2016) (finding no reason to disturb the admin istrative
judge’s findings when she considered the evidence as a whole, drew appropriate
inferences, and made reasoned conclusions on the issue of credibility); Broughton
4 The Office of the Clerk of the Board rejected two filings submitted by the appellant
postmarked after the time to file a reply h ad passed and notified him that he must
request leave to file an additional pleading. PFR File, Tabs 4, 6. To date, the appellant
has not requested leave from the Office of the Clerk of the Board .
6
v. Department of Health and Human Services , 33 M.S.P.R. 357 , 359 (1987)
(same). The appellant has not challenged the administrative judge’s findings
sustaining the charge of conduct unbecoming , concluding that the agency proved
a nexus between the misconduct and the efficiency of the service , and concluding
that the penalty was within the bounds of reasonableness, and we see no reason to
revisit these findings on review.
The appellant has not established a basis on which to reverse the administrative
judge’s findings addressing his allegations of harmful procedural error and due
process violations.
¶7 On review, the appellant alleges that the agency did not present “a full
discovery, ” did not present all of the evidence to make a proper decision, and
failed to properly investigate events. PFR File, Tab 1 at 4. Based on the
appellant’s arguments below, it appears that he is asserting that the agency did
not fully investigate the incident that served as the basis of the charge of conduct
unbecoming and did not provide him with all of the materials generated from the
investigation . HCD (testimony of the appellant). He further alleges that the
agency did not follow procedures as delineated in the Master Agreement between
the agency and the appellant’s union. PFR File, Tab 1 at 4. Although the
appellant has not specified which procedures the agency is alleged to have failed
to follow, he stated below that the agency did not pr ovide the union with
information it requested regarding the investigation of the July 3, 2013 incident,
did not inform the union of his detail, and did not bargain in good faith with the
union. IAF, Tab 12 at 3, Tab 19, Appellant’s Exhibit 2; ID at 38-43.
¶8 The administrative judge addressed these arguments in the initial decision
under a harmful procedural error analysis. ID at 38 -43. The record reflects that
the appellant did not expressly raise these issues as affirmative defenses, and the
administrativ e judge initially did not identify them as such, but following the
hearing, she liberally construed them as affirmative defenses and found that the
7
appellant had not proven harmful procedural err or or a due process violation.
IAF, Tab 15, ID at 38 -43.
¶9 The administrative judge did not notify the appellant of his burden of proof
and the elements to show harmful procedural error or a due process violation
prior to issuing the initial decision; however, this error was not prejudicial to the
appellant’s subst antive rights because the initial decision was sufficient to place
the appellant on notice of his burden to prove harmful procedural error and due
process violations. ID at 36, 38; see Sabio v. Department of Veterans Affairs ,
124 M.S.P.R. 161 , ¶ 6 n.2 (2017) (noting that , although the appellant was not
notified of the correct standard and burden of proof applicable to her affirmative
defense, the initial decision set forth the correct standard and provided her with
notice and an opportunity to meet her burden on review); Caracciolo v.
Department of the Treasury , 105 M.S.P.R. 663 , ¶ 11 (2007) (holding that the
failure to provide the appellant with proper notice on what is required to establish
an appealable jurisdictional issue can be cured if the initial decision itself puts the
appellant on notice of what she must do to establish jurisdiction so as to afford
her the opportunity to meet her burden for the first time on review) , overruled on
other grounds by Brookins v. Department of the Interior , 2023 MSPB 3 .
¶10 The appellant’s petition does not explain why the administrati ve judge’s
reasoning is incorrect ; nor does he allege that the administrative judge failed to
consider the record evidence. PFR File, Tab 1 at 4. A petition for review must
state a party’s objections to the initial decision, including all of the party’s legal
and factual arguments, and must be supported by specific references to the record
and any applicable laws or regulations. 5 C.F.R. § 1201.114 (b); see Rumsey v.
Department of Justi ce, 120 M.S.P.R. 259 , ¶ 11 (2013) (citing Weaver v.
Department of the Navy , 2 M.S.P.R. 129 , 133 (1980) (stating that before the
Board will undertake a complete review of the record, the petitioning party must
explain why the challenged factual determination is incorrect and identify the
specific evidence in the record that demonstrates the error) . We agree with the
8
administrative judge’s well -reasoned findings that the appellant failed to establish
that the agency committed harmful procedural error or due process violations and
see no reason to disturb these findings. See Clay , 123 M.S.P.R. 245, ¶¶ 6-8.
The appellant ’s claim of discrimination does not identify a protected basis under
5 U.S.C . § 7702 , thus we vacate the notice of mixed -case appeal rights in the
initial decision .
¶11 On review, the appellant also argues that he was the victim of
discrimination based on a prior criminal charge. PFR File, Tab 1 at 4. The
appellant has not identified the charge to which he refers; however, based on his
arguments below, we surmise that he refers either to the agency’s r eporting of the
July 3, 2013 incident to the U.S. Attorney for the Southern District of New York
for criminal proceedings or to a past criminal conviction. The a ppellant first
alleged at the prehearing conference that he was discriminated against because a
criminal investigation was initiated based on the July 3, 2013 incident and alluded
to a past criminal history . IAF, Tab 15 at 2 n.1 , Prehearing Conference Compact
Disc (PCCD) (statement of the appellant). The administrative judge initially did
not identify th is argument as a claim of discrimination because the appellant did
not refer to a class protected from discrimination . Prior to issuing the initial
decision, the administrative judge did not notify the appellant of his burden to
prove disc rimination . IAF, Tab 15 , ID at 6 n.8, 31 n.34 . However, based on the
appellant’s hearing testimony, she treated the appellant’s claim as one of
discrimination and found that the appellant had not proven an affirmative defense
of discrimination . ID at 30 -35.
¶12 Upon reviewing the record, we find that the appellant did not raise a claim
of discrimination identifying a basis protected under 5 U.S.C. § 7702 (a)(1)(B) ,
thus it was unnecessary for the ad ministrative judge to analyze his claim under a
discrimination framework or to afford th e appellant notice of mixed -case appeal
rights. PCCD ( statement of the appellant), HCD (testimony of the appellant); see
Guzman v. Department of Veterans Affairs , 114 M.S.P.R. 566 , ¶ 20 (2010)
9
(holding that the appellant did not allege discrimin ation under the provisions in
5 U.S. C § 7702(a)(1)(B) and was not entitled to have received mixed -case appeal
rights). Accordingly, we vacate the initial decision’s notice of mixed -case appeal
rights .
Any claim of a due process violation or harmful error relating to the agency’s
reliance on the appellant’s criminal proceedings is without merit.
¶13 To the extent the appellant is alleging that he was denied due process or that
the agency committed harmful procedural error when it investigated and referred
the July 3, 2013 incident to the U.S. Attorney for the Southern District of
New York for criminal proceedings , we find no evidence of error . The deciding
official and the appellant discussed the criminal proceedings during the
appellant’s oral reply to the first proposal to remove him . IAF, Tab 8, Subtab 4e .
The agency also provided the appellant , after his oral reply, with the investigative
report referencing the criminal proceedings and allowed him an opportunity to
respond to it after issuing the second proposal to remove him . HCD (testimony of
the appellant ); IAF, Tab 8, Subtab 4d at 4, Subtab 4g at 18 . We find that the
appellant was notified of the information the agency considered that concerned
the criminal proceeding and that he had an opportunity to reply to it prior to the
agency issuing the decision to remove him ; thus, we find that there is no evidence
he was denied due process . See Stone v. Federal Deposit Insurance Corporation ,
179 F.3d 1368 , 1376 (Fed. Cir. 1999) (holding that introducing new and material
information to the deciding official can undermine an employee’s due process
guarantee of notice and the opportunity to respond). There also is no evidence
that any of the age ncy’s actions related to the criminal investigation constitute d a
failure on the agency’s part to follow its procedures ; accordingly, we find that the
appellant has not shown harmful procedural error under 5 U.S.C. § 7701 (c)(2)(A).
¶14 To the extent the appellant is alleging that the agency considered a criminal
charge prior to the criminal proceedings originating from the July 3, 2013
incident, we not e that at the prehearing conference, he vaguely alluded to a prior
10
charge as the reason the agency initiated a criminal investigation , but he did not
otherwise pursue this allegation . PCCD ( statement of the appellant) ; HCD
(testimony of the appellant). A lthough the record does not reflect that the
deciding official considered a prior criminal charge in her decision to remove the
appellant, there is one mention of the appellant’s criminal history in the record,
located in the investigative report of the Ju ly 3, 2013 incident. IAF, Tab 8,
Subtab 4g at 22. The agency provided the appellant with this report and an
opportunity to respond to it, and there is no indication that the agency failed to
follow its procedures by including his criminal background in t he investigative
report; accordingly, the appellant has not established that the agency erred
regarding its use of his prior criminal history . HCD (testimony of the appellant);
IAF, Tab 8, Subtab 4d at 4 ; see 5 U.S.C. § 7701 (c)(2)(A) ; Stone , 179 F.3d
at 1376 .
¶15 Accordingly, we deny the appellant’s petition for review, vacate the initial
decision’s notice of mixed -case appeal rights , and affirm the initial decision as
modified.
NOTICE OF APPEAL RIGHTS5
The initial decision, as supplemented by this Final Order, constitutes the
Board’s final decision in this matter. 5 C.F.R. § 1201.113 . You may obtain
review of this final decision. 5 U.S.C. § 7703 (a)(1). By statute, the nature of
your claims determines the tim e limit for seeking such review and the appropriate
forum with which to file. 5 U.S.C. § 7703 (b). Although we offer the following
summary of available appeal rights, the Merit Systems Protection Board does not
provide legal advice on which option is most appropriate for your situation and
the rights described below do not represent a statement of how courts will rule
5 Since the issuance of the initial decision in this m atter, the Board may have updated
the notice 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
regarding which cases fall within their jurisdiction. If you wish to seek review of
this final decision, you 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 cont act that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition 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 information regarding pro bono representation
for Merit Systems Prote ction Board appellants before the Federal Circuit. The
12
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. ____ , 137 S. Ct. 1975 (2017). If you have a
representative in this case, and your representative receives this decision before
you do, then you must file with the district court no later than 30 calendar days
after your representative receives this decision. If the action involves a claim of
discrimination based on race, color, religion, sex, national origin, or a disabling
condition, you may be entitled to representation by a court -appointed lawyer and
to waiver of any requirement of prepayment of fees, costs, o r other security. See
42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
13
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you subm it 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 comme rcial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblo wer Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (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.6 The court of appeals must receive your petition for
6 The original statutory provision that provided for judicial re view of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195,
132 Stat. 1510.
14
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” 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 | SAMUELS_TIMOTHY_JAMES_NY_0752_14_0293_I_1_FINAL_ORDER_2005717.pdf | 2023-02-24 | null | NY-0752 | NP |
3,483 | https://www.mspb.gov/decisions/nonprecedential/SANFORD_GLORIA_J_DE_1221_17_0176_W_1_FINAL_ORDER_2005721.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
GLORIA J. SANFORD,
Appellant,
v.
DEPARTMENT OF VETERA NS
AFFAIRS,
Agency.
DOCKET NUMBER
DE-1221 -17-0176 -W-1
DATE: February 24, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL1
Gloria J. Sanford , Littleton, Colorado, pro se.
Patrick A. Keen , Shreveport , Louisiana , for the agency.
BEFORE
Cathy A. Harris , Vice Chairman
Raymond A. Limon , Member
Tristan L. Leavitt , Member
FINAL ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
dismissed her individual right of action (IRA) appeal for lack of jurisdiction .
Generally, we grant petitions such as this one only in the following
circumstances: the initial d ecision 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 t he 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, des pite the petitioner’s due
diligence, was not available when the record closed. Title 5 of the Code 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 As further detailed in the initial decision, the appellant filed the instant
appeal, seeking to challenge the purport ed inaction of the Office of Special
Counsel (OSC) on a complaint she filed involving the Department of Veterans
Affairs (the agency) . Initial Appeal File (IAF), Tab 1 at 1, 5, Tab 22, Initial
Decision (ID) at 1. The administrative judge construed the matter as an IRA
appeal against the agency . IAF, Tab 3 at 1; ID at 1 -2.
¶3 The administrative judge issued an initial decision that explained the
Board’s jurisdictional limitations in IRA appeals and instructed the appellant to
meet her jurisdictional burden. IAF, Tab 3. After both parties responded to the
order , IAF, Tabs 5 -6, 10 -15, 17 -19, the administrative judge issued an initial
decision that dismissed the appeal for lack of jurisdiction, ID at 6. He found that
the appellant failed to prove that she first exhausted any retaliation claim with
OSC before coming to the Board . ID at 4 -6.
¶4 After the administrative judge issued the initial decision, the appellant filed
numerous pleadings that were rejected as untimely. IAF, Tabs 25 -29. The
appellant then fi led this petition for review , in which she stated the following,
without argument: “I am requesting a review based on all the information I
3
detailed and sent . . . on March 17, 2017.” Petition for Review (PFR ) File, Tab 1
at 3. The reference to March 17, 2017, implicates some of the aforementioned
pleadings, which were rejected and are not part of the existing record. IAF,
Tabs 26-28.
¶5 The Office of the Clerk of the Board provided the appellant with an
opportunity to supplement her petition for review, which she did. PFR File,
Tabs 2-3. That supplement contains arguments suggesting that the administrative
judge erred in denying the appellant’s motion for recusal and he should have
permitted further argument on that motion. PFR File, Tab 3 at 3. The
supplement does not contain any arguments concerning her failure t o establish
Board jurisdiction . Id. Although the appellant submitted several additional
pleadings and an improper motion for leave to submit an additional pleading
before the agency filed its response to her petition, these were rejected. PFR File,
Tabs 4 -8, 10; see 5 C.F.R. § 1201.114 (a)(5) . Thereafter, the agency filed its
timely response to the appellant’s petition , and s he replied. PFR File,
Tabs 11-12.2
¶6 A petition for review must contain sufficient specificity for the Board to
ascertain whether there is a serious evidentiary challenge justifying a complete
review of the record. Tines v. Department of the Air Forc e, 56 M.S.P.R. 90 , 92
(1992). Under the Board’s regulations, a petition for review must identify
specific evidence in the record demons trating any alleged erroneous findings of
material fact and explain why the challenged factual determinations are incorrect.
5 C.F.R. § 1201.115 (a).
2 Before the agency filed the response to the petition for review, the appellant also filed
a proper motion for leave to submit an additional pleading, asserting that she has
evidence supporting recu sal of the administrative judge and a “new adjudication.” PFR
File, Tab 9. Because the appellant admits in her motion that she was aware of the
additional information she seeks to submit at the time she filed her petition for review,
we deny her motion f or leave as the appellant could have included this information in
her petition for review or supplement.
4
¶7 Because the appellant has filed her petition for review pro se, we have
construed it liberally. Harper v. Office of Personnel Management , 116 M.S.P.R.
309, ¶ 9 (2011 ). Nevertheless, we are unable to discern any specific challenges
she makes to the administrative judge’s jurisdictional findings.
¶8 As the administrative judge correctly recognized, an appellant’s
jurisdictional burden in an IRA appeal includes proving t hat she exhausted her
administrative remedies with OSC. IAF, Tab 3 at 2; ID at 2 -3; see Edwards v.
Department of the Air Force , 120 M.S.P.R. 307 , ¶ 15 (2013). The Board has
consistently held that it may only consider the specific allegations of reprisal
which have been presented to OSC. E.g., Coufal v. Department of Justice ,
98 M.S.P.R. 31 , ¶ 14 (2004). In this case, the administrative judge found that the
appellant failed to meet the exhaustion requirement because she provided minimal
evidence of corres pondence with OSC and none that involved allegations of
retaliation. ID at 3 -5. We discern no basis for concluding otherwise. See, e.g .,
IAF, Tab 1 at 5, Tab 19 at 5.
¶9 Separately, we have considered the appellant’s arguments concerning
recusal, including those asserted below. PFR File, Tab 3 at 3; IAF, Tab 20 at 4.
In short, the appellant argued that the administrative judge could not be impartial
in the instant appeal because the appellant requested review of his dismissal in
another Board appeal. IAF, Tab 20 at 4 (referencing Sanford v. Department of
the Interior , MSPB Docket No. DE -3443 -17-0175 -I-1). We disagree.
¶10 In making a clai m of bias or prejudice against an administrative judge, a
party must overcome the presumption of honesty and integrity t hat 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 will warrant a new adjudication only if his comments or actions
evidence “a deep -seated favoritism or antagonism that would make fair judgment
impossible.” Bieber v. Department of the Army , 287 F.3d 1358 , 1362 -63 (Fed.
5
Cir. 2002) (quoting Liteky v. United States , 510 U.S. 540 , 555 (1994)). Here, the
appellant has failed to identify anything of the sort.
¶11 Accordingly, we affirm the initial decision.
NOTICE OF APPEAL RIG HTS3
You may obtain review of this final decision. 5 U.S.C. § 7703 (a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does 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).
3 Since the issuance of the initial decisi on in this matter, the Board may have updated
the notice of review rights included in final decisions. As in dicated in the notice, the
Board cannot advise which option is most appropriate in any matter.
6
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
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 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. ____ , 137 S. Ct. 1975 (2017). If you have a
representative in this case, and your representative receives this decision before
you do, then you must file with th e district court no later than 30 calendar days
after your representative receives this decision. If the action involves a claim of
7
discrimination based on race, color, religion, sex, national origin, or a disabling
condition, you may be entitled to repre sentation by a court -appointed lawyer and
to waiver of any requirement of prepayment of fees, costs, or other security. See
42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the 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
8
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in 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 b efore the Federal Circuit. The
4 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195,
132 Stat. 1510.
9
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective 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 | SANFORD_GLORIA_J_DE_1221_17_0176_W_1_FINAL_ORDER_2005721.pdf | 2023-02-24 | null | DE-1221 | NP |
3,484 | https://www.mspb.gov/decisions/nonprecedential/KOLENC_ANDREW_M_DE_0752_14_0488_I_1_FINAL_ORDER_2005830.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
ANDREW M. KOLENC,
Appellant,
v.
DEPARTMENT OF HEALTH AND
HUMAN SERVICES,
Agency.
DOCKET NUMBER
DE-0752 -14-0488 -I-1
DATE: February 24, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL1
Thomas F. Muther, Jr., Esquire, Denver, Colorado, for the appellant.
Megan M. Bauer , Esquire, and Nigel Gant , Esquire , Dallas, Texas, for the
agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
Tristan L. Leavitt, Member
FINAL ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
affirmed his removal . Generally, we grant petitions such as this one only when:
1 A nonprecedential order is one that the Board has determined does not add
significantly to the 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 contains erroneous fin dings 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 dili gence, was not
available when the record closed. Title 5 of the Code 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 Previously, the agency removed the appellant from his Consumer Safety
Officer (CSO) position with the Food and Drug Administration (FDA) based on
four charges: (1) willful misuse of a Government -owned vehicle; (2) misuse of a
Government gas card; (3) failure to provide accurate time and attendance
information; and (4) failure to follow instructions. See Kolenc v. Department of
Health and Human Services , 120 M.S.P.R. 101 , ¶ 2 (2013). The administrative
judge reversed the agency action, finding that the agency violated the appellant ’s
due process rights when the deciding official considered ex parte information that
constitu ted new and material evidence. Kolenc v. Department of Health and
Human Services , MSPB Docket No. DE-0752 -12-0092 -I-1, Initial Decision
(July 13, 2012). The Board denied the agency’s petition for review and affirmed
the initial decision in a September 11, 2013 Opinion and Order , Kolenc ,
120 M.S.P.R. 101 , ¶ 1.
¶3 The agency removed the appellant a second time effective June 20, 2014,
based on: (1) 38 specifications of misuse of a Government vehicle;
(2) 50 specifications of failure to follow the appellant’s assigned tour of duty;
3
(3) three specifications of unauthorized absence s; and (4) five specifications of
submitting inaccurate time and attendance records. Initial Appeal File (IAF),
Tab 8 at 16-20. The appellant appealed the agency action to the Board and,
among other things, denied th e alleged misconduct, asserted that the deciding
official failed to consider the relevant Douglas factors, and alleged that the lapse
in time between the misconduct and the January 9, 2014 proposal notice
illustrate d the arbitrary and c apricious nature of the action. IAF, Tab 1 at 6.
After affording the appellant his requested hearing, the administrative judge
sustained the charges, found that the appellant failed to prove his affirmative
defenses and his defense of laches, and found t hat t he penalty of removal was
reasonable. IAF, Tab 41, Initial Decision (ID) .
¶4 The appellant does not contest on review the administrative judge’s findings
regarding the merits of the agency’s charges. Specifically, the administrative
judge found that the evidence shows t hat on 38 occasions the appellant drove a
Government vehicle approximately 55 miles roundtrip from his old duty station,
where the vehicle was parked overnight, to his new duty station for his personal
convenience ( commuting to work) ; accordingly, the admi nistrative judge
sustained the first charge . ID at 4-9. Regarding the second charge, the
administrative judge found that the evidence established that the appellant either
began his tour of duty after his assigned start time and/or completed his tour
before his assigned end time as specified by the agency , and thus the
administrative judge sustained the failure to follow assigned tou r of duty charge.
ID at 9 -10. Regarding the unauthorized absences charge, the administrative judge
found that the evidence showed that the appellant was absen t without leave on
three occasions as specified by the agency , and thus he sustained the charge. ID
at 10-12. The administrative judge also found that the agency proved that the
appellant submitted inaccurate time and attendance reports on three of the five
occasions specifie d by the agency, and thus he sustained the fourth charge. ID
at 13-14.
4
¶5 Regarding the appellant’s affirmative defenses, the administrative judge
found that the appellant failed to establish that the agency violated his due
process rights and did not establish that the agency retaliated against him for
engaging in protected activity. ID at 15 -19. The administrative judge also found
that the appellant failed to show that the length of time that passed between the
misconduct and the disciplinary action barred the agency from taking the removal
action under the doctrine of laches. ID at 19-20. Finally, the administrative
judge found a nexus between the sustained misconduct and the efficiency of the
service and that the penalty of removal was reasonable. ID at 19 -25.
¶6 The appellant ’s only arguments on review are that the agency action should
be barred by the doctrine of la ches and that the deciding official violated his due
process rights.2 Petition for Review (PFR) File, Tab 3. The agency has
responded in opposition to the petition for review . PFR File, Tab 5.
The agency’s removal action was not barred by the equitable defense of laches .
¶7 The equitable defense of laches bars an action when an unreasonable 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). 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 eliminate the preju dice prong of the laches test. Cornetta v.
2 We discern no basis to disturb the administrative judge’s findings regarding the
charges, the existence of a nexus , and the penalty. 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).
5
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
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. Id. The second
type, “economic ” prejudice, centers on the consequences, primarily monetary, to
the Government should the claimant prevail. Id.; see Bailey v. United States ,
144 Ct. Cl. 720 , 722 (1959) (discussing the potential economic prejudice suffered
by the Government in an employment dispute) . Defense prejudice is at issue in
this appeal.
¶8 The conduct that forms the basis of the agency action occurred in the first
half of 2011, the agency proposed the removal at issue in January 2014, and the
removal was effective in June 2014. Thus, approximately 3 years passed from the
time of the conduct to the disciplinary action.
¶9 In finding the doctrine of laches inapplicable, the administrative judge
found that the agency proposed the second removal action 4 months after the
Board ’s Opinion and Order reversing the first removal action and thus the dela y
was not unreasonable. ID at 20. The administrative judge also found that the
appellant failed to show “that his ability to defend against the charges was
prejudiced in any manner by the delay, much less materially prejudiced.” Id. On
review, the appe llant asserts that the delay in the agency bringing the action
should be measured from the time of the conduct that forms the basis of the
agency charges. PFR File, Tab 3 at 8. The appellant asserts that the delay is
unreasonable, particularly because th e agency’s “own illegal actions” caused the
delay and his “inability to remember and testify about his exact activities on
specific days ” is understandable in light of the delay , and that he has shown
prejudice. Id.
¶10 We need not decide whether, in determining the application of the doctrine
of laches, the relevant time period is the occurrence of the charged misconduct or
6
the date of the Board ’s Opinion and Order addressing the first removal action, as
the Board has held that a 3-year period from the misconduct that formed the basis
for a disciplinary action to initiating the action was not unreasonable. Carr ,
78 M.S.P.R. at 330 -31 (finding that it was not unreasonable for the agency to
include misconduct that occurred more than 3 years earlier in its disciplinary
action ); 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 was
not unreasonable). Furthermore, given the nature of the charged misconduct, the
type of evidence presented (including extensive documentary and video
evidence) , and the reasoning set forth in the initial decision for sustaining the
charges, the appellant ’s conclusory statement on review is insuff icient to
establish prejudice. PFR File, Tab 3 at 8. Thus, in sum, we find unpersuasive the
appellant ’s claim that the agency ’s action is b arred by the doctrine of laches .
The deciding official’s consideration of three aggravating Douglas factors not
specifically identified in the proposal letter did not constitute a due process
violation .
¶11 The appellant also argues on review that the agency violated his due proce ss
rights when the deciding official testified that he considered aggravating factors
in making his decision on the proposed disciplinar y action that were not
specifically identified in the proposal notice. Id. at 10. In finding no due process
violation , the administrative judge noted the deciding official ’s testimony
identifying seven of the Douglas factors as relevant to his removal de cision, but
that factor three , the effect of the offense upon the employee’s ability to perform
at a satisfactory level and its effect upon his supervisor’s confidence in the
employee’s ability to perform assigned duties, factor six, the employee’s potenti al
for rehabilitation, and factor seven , the adequacy and effectiveness of alternative
sanctions to deter such conduct in the future by the appellant or others, were not
7
included in the proposal notice.3 ID at 16-17. The administrative judge found
that t here was no indication that the deciding official considered information
previously unavailable to the appellant in applying these additional factors , and
he found credible the deciding official’s testimony that he based his decision
solely on the material relied upon in the proposal notice. Id. at 17. For the
reasons discussed below, we agree with the administrative judge’s conclusion that
the decidi ng official did not commit a due process violation when he considered
as aggravating three Douglas factors that were not identified in the proposal
notice .
¶12 When an employer obtains new and material information through ex parte
communications, an employee ’s constitutional due process guarantee of notice
and the opportun ity to respond are undermined. Young v. Department of Housing
and Urban Development , 706 F .3d 1372 , 1376 (Fed. Cir. 2013) . Additionally,
when an employee has notice only of certain charges or portions of the evidence
and the deciding official considers new and material information, “procedural due
process guarantees are not met because the employee is no lon ger on notice of the
reasons for dismissal and/or the evide nce relied upon by the agency.” Id. This
analysis applies not only to ex parte communications i ntroducing information that
previously was unknown to the deciding official, but also to information
personally known and considered by the deciding official, if that information was
not included in the notice of prop osed removal to the appellant. Lopes v.
Department of the Navy , 116 M.S.P.R. 470 , ¶ 10 (2011). Consequently, when an
agency relies on an aggravating factor in imposing a penalty, it should identify
3 In Douglas v. Veterans Administration , 5 M.S.P.R. 280 , 305-06 (1981 ), the Board
articulated a nonexhausti ve list of factors to be considered when evaluating the penalty
to be imposed for an act of mi sconduct . In discussing the Douglas factors considered
by the deciding official in this appeal, we are referring to the number assigned to the
specific factors i n this appeal and not to the numerical references in the Douglas
decision .
8
the factor in the notice of adverse action so that the employee will hav e a fair
opportunity to respond to it before the deciding official. Wilson v. Department of
Homeland Security , 120 M.S.P.R. 686 , ¶ 9 (2014), aff’d, 595 F . App’x 995 (Fed.
Cir. 2015) (Table) ; Solis v. Department of Justice , 117 M.S.P.R. 458 , ¶ 7 (2012);
Lopes , 116 M.S.P.R. 470 , ¶ 5.
¶13 However, not every ex parte communication rises to the level of a due
process violation; only ex parte communicati ons that introduce new and material
information to the deciding official constitute due process violations. Stone v.
Federal Deposit Insurance Corporation , 179 F.3d 1368 , 137 6-77 (Fed. Cir.
1999). The question, then, is whether the ex parte communication was “so
substantial and so likely to cause prejudice that no employee can fairly be
required to be subjected to a deprivation of prop erty under such circumstances.”
Ward v. U.S. Postal Service , 634 F.3d 1274 , 1279 (Fed. Cir. 2011) ; Stone ,
179 F.3d at 1377. To determine if an ex parte contact is constitutionally
impermissible , the Board will con sider the following factors, among others :
(1) whether the ex parte communication merely introduces “cumulative”
information o r new information ; (2) whether the employee knew of the
information and had a chance to respond to it; and (3) whether the ex par te
communications were of the type likely to result in undue pressure upon the
deciding official to rule in a particular ma nner. Wilson , 120 M.S.P.R. 686 , ¶ 8
(citing Stone , 179 F.3d at 1377 ).
¶14 We conclude that the deciding official did not consider any new or
previously unavailable information . The deciding official’s testimony stating that
he considered the three additional Douglas factors as aggravating was merely a
conclusion based on information that already existed in the record ; the deciding
official did not introduce or rely on anything not already included in the proposal
letter through his testimony at the hearing , or in his penalty analysis in the
decision letter .
9
¶15 Considering the first Stone factor, whether the ex parte information was
merely “cumulative” or was new information, r egard ing Douglas factor three , the
deciding official testified at the hearing that he based his decision that it was
aggravating on the fact that a supervisor could lose trust in an employee who was
“working alone in an FDA office ” and who was responsible for “reviewing
entries, protecting consumers . . . [and] making decisions about whether
[products] would clear entry into the United States and then be used by the
public ,” but failed to do so. Hearing Transcript, March 18, 2015 ( HT1 ) at 134
(testimony of the deciding official ). These statements echo the ones included in
the proposal letter stating that the appellant was “the sole CSO ” in the agency’s
Denver office and as such, was “expected to be able to perform [his] job with
little supervision,” and to “hold clients accountable to FDA standards.” IAF,
Tab 8 at 45. Thus, the information relied on by the deciding official in
determining that Douglas factor three was aggravating already existed in the
record and was not “new and material.” Stone , 179 F.3d at 1377.
¶16 The same is the case with Douglas factor six, the appellant’s potential for
rehabilitation. In agreeing that he considered this factor as aggravating , the
deciding official testified at the hearing that he found it difficult to recover from
“a lack of trust or a lack of confidence” in an employee w ho misused a
Government vehicle, and who potentially allowed products to enter commerce
that were not properly screened because he was not on duty . HT1 at 138
(testimony of the deciding official ). This language closely tracks the language
used in the pro posal, which noted that “[m]anagement must be able to trust that
each employee uses his or her [G]overnment equipment for the purpose in which
it was intended ,” that management must be able to trust that each employee will
report according to his or her designated tour of duty, and that the appellant’s
misconduct “seriously impacts [his] credibility .” IAF, Tab 8 at 45.
¶17 In addition , the deciding official did not consider any new or material
evidence regarding Douglas factor seven , the adequacy of alternative sanctions.
10
In his testimony, the deciding official noted that he considered this factor as
aggravating based on the fact that the CSO’s job responsibilities are “critical to
the safety of medical products and food” and that the appellant’s fai lure to
complete his duties could “have a devastating effect on the public.” HT1 at 140
(testimony of the deciding official ). As noted above in the discussion o f Douglas
factor three , this language also closely mirrors the language in the proposal letter
describing the appellant’ s job duties. IAF, Tab 8 at 45 .
¶18 Concerning the second Stone factor, whether the employee knew of the
information and had a chance to respond to it, we also conclude that the appellant
knew of and had an opportunity to respond to all of the information considered by
the deciding official i n reaching his decision . First, the appellant was provided
with the opportunity to submit oral and written replies to the proposal , and did so .
IAF, Tab 8 at 27-39. He also was provided wit h the opportunity to submit written
comments in response to the agency’s summary of the oral reply, which he also
did. Id. at 34 -36. As addressed above in the first Stone factor discussion, all of
the information ultimately relied upon by the deciding official was contained
within the proposal. Unlike in other Board cases finding a violation of the second
Stone factor, the appellant here was fully apprised of the information that the
deciding official relied on in reaching his decision and respond ed to all of it in his
oral and written replies . Cf. Solis , 117 M.S.P.R. 458 , ¶ 10 (finding a second
Stone factor violation when an agency relied on Giglio4 issues in imposing the
appellant’ s removal without providing him notice and an opportun ity to respond
4 Under Giglio v. United States , 405 U.S. 150 (1972 ), investigative agencies must turn
over to prosecutors, as early as possible in a case, any potential impeachment evidence
concerning t he agents involved in the case. Solis , 117 M.S.P.R. 458 , ¶ 4 n. 1. The
prosecutor will then exercise his discretion regarding whether the impeachment
evidence must be turned over to the defense. Id. A “Giglio -impaired” agent is one
against whom there is potential impeachment evide nce that would render the agent’ s
testimo ny of marginal value in a case. Thus, a case that depends primarily on the
testimony of a Giglio -impaired witness is at risk. Id.
11
to those issues); Lopes , 116 M.S.P.R. 470 , ¶ 11 (finding that the deciding
official’s consideration in his penalty analysis of the appellant’ s prior 3 -day
suspe nsion and specific past instances of misconduct not identified in the
proposed removal did not allow the appellant an opportunity to respond, in
violation of the second Stone factor) .
¶19 Additionally , regarding the sixth Douglas factor (the appellant’s potent ial
for rehabilitation) considered by the deciding official , it appears that the appellant
first raised his concerns about this issue in his written reply prior to receiving the
decision letter. IAF, Tab 8 at 27 -28. A deciding official does not violate a n
employee ’s right to due process when he considers issues raised by an employee
in his response to the proposed adverse action and then rejects those arguments in
reaching a decision. Grimes v. Department of Justice , 122 M.S.P.R. 36 , ¶ 13
(2014) (citing Wilson , 120 M.S.P.R. 686 , ¶ 11 ); see 5 C.F.R. § 752.404 (g)(1)
(stating th at, in rendering a decision on a proposed adverse action, the agency
will consider the reasons specified in the notice and any answer of the employee
or his or her representative, or both, made to a designated official). Likewise, an
employee is not entit led to know the particular weight the deciding official will
attach to his arguments raised in response to the proposed adverse action in
advance of the final decision. See Wilson , 120 M.S.P.R. 686 , ¶ 12. Thus, even if
the deciding official did consider the appellant’s poten tial for rehabilitation in
response to the appellant’s assertion in his reply that the proposing official shoul d
have, the deciding official could have right fully considered and rejected the
appellant’s arguments without committing a due process violation. Id.; see HT1
at 138 (testimony of the deciding official ).
¶20 The same is true regarding Douglas factor seven , the adequacy of
alternative san ctions. In the agency’s summary of the oral reply (later clarified,
but verified in substance by the appellant’s response to the agency ’s summary),
the appellant indicated that an alternative sanction could or should have be en
imposed for some of the time he was not at his duty station , noting that similar
12
conduct by another employee resulted in a letter of r eprimand. IAF, Tab 8 at 36,
39. Thus, even if the deciding official did consider the adequacy of other
sanctions as aggravating, he committed no error since he did so in response to the
appellant’s oral reply. Wilson , 120 M.S.P.R. 686 , ¶ 12 .
¶21 Finally , regarding the third Stone factor, the deciding official testified that
he did not r ely on any ex parte information and that nothing outside of the
proposal letter had any influence on his decision. HT1 at 54 (testimony of the
deciding official) ; ID at 17 . Determining whether an ex parte communication was
the type likely to result in undue pressure is a contextual question and requires
considering the “facts and circumstances of each particular case.” Ston e,
179 F.3d at 1377. In a case like this one, where in we ultimately find that the
deciding official did not rely on any new or material information in reaching his
decision , the third Stone factor does not play a significant role in the due process
consid eration. Indeed, to consider the likelihood that ex parte information might
have undue pressure, there must be some ex parte information responsible for
exerting that pressure. Accordingly, because we find that there is no evidence
that the deciding offi cial considered any new or material information in reaching
his decision , we find that the third Stone factor is inapplicable in this case .
¶22 Weighing all of the Stone factors, we find that the deciding off icial did not
rely on ex parte information in a manner that was “so likely to cause prejudice
that no employee can fairly be required to be subjected to a deprivation of
property under such circumstances.” Id. Thus, we conclude that the appellant’ s
constitutionally guaranteed due process rights were not violated . We therefore
deny the petition for review and affirm the initial decision.
13
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 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
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible 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).
5 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.
14
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
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. ____ , 137 S. Ct. 1975 (2017). If you have a
representative in this case, and your representative receives this decision before
you do, then you must file with the district court no later than 30 calendar days
after your representative receives this decision. If the action involves a claim of
15
discrimination based on race, color, religion, sex, national origin, or a disabling
condition, you may be entitled to representation by a court -appointed lawyer and
to waiver of any requirement of prepayme nt of fees, costs, or other security. See
42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review t o the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review 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
16
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a 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.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.
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
6 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistle blower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195,
132 Stat. 1510.
17
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a g iven case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Loc ator/CourtWebsites.aspx .
FOR THE BOARD:
Washington, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board | KOLENC_ANDREW_M_DE_0752_14_0488_I_1_FINAL_ORDER_2005830.pdf | 2023-02-24 | null | DE-0752 | NP |
3,485 | https://www.mspb.gov/decisions/nonprecedential/DESJARDIN_RANDALL_S_SF_0353_16_0641_I_1_FINAL_ORDER_2005168.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
RANDALL S. DESJARDIN ,
Appellant,
v.
UNITED STATES POSTAL SERVICE,
Agency.
DOCKET NUMBER
SF-0353 -16-0641 -I-1
DATE: February 23, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL1
Randall S. Desjardin , Grove, Oklahoma , pro se.
Michael R. Tita , Esquire, Sandy, Utah, for the agency.
BEFORE
Cathy A. Harris , Vice Chairman
Raymond A. Limon , Member
Tristan L. Leavitt , Member
Vice Chairman Ha rris recused herself and
did not participate in the adjudication of this appeal.
FINAL ORDER
¶1 The agency has filed a petition for review and the appellant has filed a cross
petition for review of the initial decision, which granted, in part, the appellant’s
request for restoration . Generally, we grant petitions such as these only in the
following circumstances: the initial decision contains erroneous findings of
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or dis tinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c).
2
material fact; the initial decision is based on an erroneous interpretation of statute
or regulation or the erroneous application of the law to the facts 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 neither party
has established any basis under section 1201.115 for granting the petition for
review or cross petition for review . Therefore, we DENY the petition for review
and the cross petition for review. However, for the reasons discussed be low, we
VACATE the initial decision and DISMISS this appeal for lack of jurisdiction.
BACKGROUND
¶2 The agency employs the appellant as a City Carrier. Initial Appeal File
(IAF), Tab 1 at 8. On June 22, 2016, he submitted a written request to the
agency’s local injury compensation manager to return to work following an
absence due to a compensable injury and a Form CA -17 (Duty Status Report)
completed by his doctor that listed his medical restrictions. IAF, Tab 7 at 80-81.
In his request, the appellant stated that he believed he could case mail, work
“dutch doors ,” and perform union steward duties .2 Id. at 80. According to the
Form CA -17, the appellant could return to work with the following restrictions:
intermittent lifting of not more than 10 pounds ; alternate sitting and standing
every 15 minutes; standing in one spot for no more than 3 minutes; using wheeled
2 As noted in the initial decision, “casing” mail is the task a mail carrier undertakes
each morning of sorting his mail prior to delivering his route. IAF, Tab 82, Initial
Decision at 2 n.2. “Dutch door” duties consist of the following: assisting customers to
pick up their Post Office box keys; retrieving customer parcels, packages and certified
mail ; and performing a variety of office functions , such as retrieving overflow mail,
picking up “hold” mail from carrier cases, and researching changes of address . Id.
3
carts when pushing o r pulling; intermittent pushing, pulling, grasping, and
reaching above shoulder level; and no driving, climbing, twisting, bending or
stooping.3 Id. at 81.
¶3 On July 21, 2016, the appellant filed this appeal alleging the agency had
failed to respond to his June 22, 2016 restoration request. IAF, Tab 1 at 5. He
also alleged that the agency had discriminated against him on the basis of
disability, failed to reasonably accommodate him, and retaliated against him for
his equal opportunity employment and prior Board filings. Id.
¶4 On July 26, 2016, the agency cond ucted a search of the local co mmuting
area (LCA) for available work within the appellant’s medical restrictions . IAF,
Tab 7 at 27 , 29-79. On August 5, 2016, the agency notified the appellant that it
had conduc ted a search for available work within his medical restrictions in all
crafts and on all tours, both within facility and throughout the LCA, but that it
was unable to identify any such work. Id. at 23 -25. By separate letter sent to the
appellant that same day, the Customer Service Manager confirmed that the agency
was unable to find work within his medical restrictions. Id. at 22. He stated that,
in addition to a search at the facility and within the LCA, he had considered the
appellant’s requests to perform casing, dutch door, and union steward d uties. Id.
He informed the appellant that union steward duties were not assignable through
the return -to-work process and that dutch door duties were not available and, in
any event, were beyond the appellant’s medical restrictions. Id. Although he
indicated that casing duties were available, his preliminary conclusion was that
those duties also were beyond the appellant’s medical restrictions. Id. He
informed the appellant, however, that he had requested a worksite evaluation of
the activit ies associ ated with casing mail and would wait to make a final
determination upon receipt of the worksite evaluation report. Id.
3 While the appellant’s treating physician checked the box indicating that the appellant
could drive intermittently, his handw ritten notes on the form stated “no driving.” IAF,
Tab 7 at 81.
4
¶5 On August 8, 2016, an Occupational Health Nurse Admin istrator for the
agency performed a worksite evaluation to assess the physical requirements of
performing carrier office duties, including casing mail and performing dutch door
duties. IAF, Tab 7 at 18 -20. After reviewing the worksite evaluation, the
Customer Services Manager made a final determination that the appellant would
be u nable to perform either the casing or dutch door duties given his medical
restrictions . Id. at 12. The agency did not offer any work to the appellant in
response to his June 22, 2016 request for restoration.
¶6 In an order on jurisdiction, the administrat ive judge informed the appellant
of his jurisdictional burden to nonfrivolously allege that he had partially
recovered from a compensable injury and that the agency arbitrarily and
capriciously denied his request to return to work. IAF, Tab 2 at 2 -4. In response,
the appellant argued , in relevant part , that the agency’s denial of his request for
restoration was arbitrary and capricious because there was work available that he
could perform, including casing mail, dutch door, and union steward duties. IAF ,
Tab 4 . The administrative judge found that these allegations were sufficient to
establish jurisdiction. IAF, Tab 15 at 2 .
¶7 After holding the appellant’s requested hearing, the administrative judge
issued an initial decision gra nting, in part, the app ellant’s request for restoration .
IAF, Tab 82, Initial Decision (ID). She found that the agency’s search for work
was adequate and that its 1 -month delay between receiving the Form CA -17 and
conducting the search was not unduly long. ID at 7 -9. The admini strative judge
rejected the appellant’s argument that the agency was required to assign him to
perform union steward duties as part of its restoration obligation. ID at 10 -12.
She also found that the agency did not act arbitrarily and capriciously in den ying
the appellant’s request to perform dutch door or other office duties, such as
boxing mail and lobby assistant duties, because these duties involved almost
cons tant standing and walking and, in any event , he did not demonstrate that any
such work was a vailable. ID at 14 -15. However, she found that the agency’s
5
denial of the appellant’s request to perform casing duties was arbitrary and
capricious because he previously performed casing duties while under similar
medical restrictions and because he prov ided credible testimony that there were
certain accommodations and physical adjustments that would allow him to
perform casing duties within his restrictions. ID at 13 -14, 16. She also found
that there was a significant amount of casing work available du ring the relevant
time period and ordered the agency to retroactively restore the appellant to a
6-hour per day modified duty assignment casing mail. ID at 16-17, 31. She
addressed the appellant’s claims of discrimination, retaliation, and harmful
proced ural error but found no merit to any of these claims . ID at 17 -30.
¶8 The agency has filed a petition for review of the initial decision , the
appellant has responded, and the agency has replied. Petition for Review (PFR)
File, Tabs 1, 5, 8. The appellant has also filed a cross petition for review, and the
agency has responded.4 PFR File, Tabs 5, 9.
ANALYSIS
¶9 The Federal Employees’ Compensation Act and the implementing
regulations of the Office of Personnel Management (OPM) at 5 C.F.R. part 353
provide, inter alia, 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).
Under OPM’ s regulations, such employees have different substantive rights based
4 On review, the appellant asserts that he has evidence that was not previously
available. PFR File, Tab 5 at 24-33. We have reviewed the documents but find that the
appellant has not shown that those documents were unavailable prior to the close of the
record below, despite his due diligence. Therefore, the Board will not consider them.
See Avansino v. U.S. Postal Service , 3 M.S.P.R. 211 , 214 (1 980); 5 C.F.R.
§ 1201.115 (d). Regarding the sworn statement submitted with the petition for review,
although the statement is dated after the close of the record below, the appellant ha s not
shown that the information contained in the document, not just the document itself, was
unavailable despite his due diligence. PFR File, Tab 5 at 31 -32; see Grassell v.
Department of Transportation , 40 M.S.P.R. 554 , 564 (1989 ); 5 C.F.R. § 1201.115 (d).
6
on whethe r they have fully recovered, partially recovered, or are physically
disqualified from their former or equivalent positions. Kingsley , 123 M.S.P.R.
365, ¶ 9 ; 5 C.F.R. § 353.301 . Partially recovered employees, like the appellant,
are those who, “though not ready to resume the full range” of duties, have
“recovered sufficiently to return to part -time or light duty or to another position
with less demanding physical requirements.” Kingsley , 123 M.S.P.R. 365 , ¶ 9;
5 C.F.R. § 353.102 .
¶10 The Boa rd has jurisdiction to review whether an agency’s denial of
restoration to a partially recovered employee was arbitrary and capricious.
Bledsoe v. Merit Systems Protection Board , 659 F.3d 1097 , 1103 -04 (Fed. Cir.
2011), superseded in part by regulation on other grounds as stated in Kingsley ,
123 M.S.P.R. 365, ¶ 10; 5 C.F.R. § 353.304 (c). Thus, t o establish jurisdiction
over a claim of denial of restoration as a partially recovered employee, an
appellant is required to make nonfrivolous allegations of the following: (1) he
was absent from his position due to a compensable injury; (2) he recovered
sufficiently to return to duty on a part -time basis or to return to work in a position
with less demanding physical requirements than those previously required of him;
(3) the agency denied his request for restoration; and (4) the denial was arbitrary
and c apricious because of the agency’s failure to perform its obligation under
5 C.F.R. 353.301 (d) to search within the local commuting area for vacant
positions to which it can restore the employee and to consider him for any such
vacancies .5 See Hamilton v. U.S. Postal Servi ce, 123 M.S.P.R. 404 , ¶ 12 (2016) ;
5 C.F.R. § 1201.57 (a)(4), (b). Once an appellant establishes jurisdiction, he is
entitled to a hearing at which he must prove the merits of his restoration appeal ,
5 A nonfrivolous allegation is an assertion that, if proven, could establish the matter at
issue. 5 C.F.R. § 1201.4 (s).
7
i.e., all four of the above elements, by a preponderance of the evidence.6
Kingsley , 123 M.S.P.R. 365 , ¶ 12; 5 C.F.R. § 1201.57 (c)(4).
¶11 Here, it is undisputed that the appe llant satisfied the first three elements.
IAF, Tab 7 at 80 -84, Tab 15 at 2; ID at 6. Regarding the fourth criterion, the
administrative judge found that the appellant’s allegation that there were dutch
door, casing, and union steward duties available at the facility that he could
perform constituted a nonfrivolous allegation that the agency’s denial of
restoration was arbitrary and capricious.7 IAF, Tab 15 at 2. On the merits, she
concluded that the appellant proved that the agency’s denial of his reque st for
restoration was arbitrary and capricious insofar as it failed to offer him 6 hours of
work per day casing mail at the facility. ID at 16-17. The administrative judge’s
finding that the agency’s failure to offer the appellant available work that he
could perform, regardless of whether the duties constituted an established vacant
position , rests on the Board’s decision in Latham v. U.S. Postal Service ,
117 M.S.P.R. 400 (2012). ID at 5 -6. In Latham , the Board held that , when an
agency voluntarily assumes restoration obligations beyon d the “minimum”
requirements of 5 C.F.R. § 353.301 (d), the agency’s failure to comply with those
agency -specific requirements is arbitrary and capricious for purposes of
establishing Boar d jurisdiction. Id., ¶¶ 12, 14, 26 . As the Board in Latham
recognized, the Postal Service’s rules obligate it to offer modified assignments
when the work is available regardless of whether the duties constitute those of an
established position. See Lath am, 117 M.S.P.R. 400 , ¶ 41. Thus, under existing
6 A preponderance of the evidence is the degree of relevant evidence that a reasona ble
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 The administrative judge also stated, in part, that the appellant alleged that the agency
“has work available for him at the [facility] consisting of h is former route (route
2995).” IAF, Tab 15 at 2. To be clear, the appellant alleged that t he “work [he ]
identified were [e]ssential [f]unctions of [his] assigned position ([route] 2995),” not, as
the administrative judge appeared to state, that he could perform the essential duties of
his prior position . IAF, Tab 4 at 6.
8
precedent, the administrative judge properly considered whether the agency
properl y searched for and provided available duties to the appellant regardless of
whether the duties constitute those of an established position . ID at 10-16.
¶12 However, after the initial decision in this appeal was issued, the Board
issued a decision in Cronin v. U.S. Postal Service , 2022 MSPB 13, overruling
Latham and its progeny to the extent they held that a denial of restorat ion may be
arbitrary and capricious on the basis of an agency’s failure to comply with its
self-imposed restoration obligations. Id., ¶ 20. The Board in Cronin held that,
although agencies may undertake restoration efforts beyond the minimum effort
requi red by OPM under 5 C.F.R. § 353.301 (d), an agency’s failure to comply with
self-imposed obligations cannot itself constitute a violation of 5 C.F.R.
§ 353.301 (d) such that a resulting denial of restoration would be rendered
arbitrary and capricious for purposes of establishing Board jurisdiction under
5 C.F.R. § 353.304 (c). Cronin , 2022 MSPB 13, ¶ 20. Rather, as explained in
Cronin , the issue before the Board is limited to whether the agency failed to
comply with the minimum requirement of 5 C.F.R. § 353.301 (d), i.e., to search
within the local commuting area for vacant positions to which it can restore a
partially recovered employee and to consider him for any such vacancies. Id.
The Board in Cronin further held that, contrary to its prior suggestion in Latham ,
claims of prohibited discrimination or reprisal cann ot serve as an “alternative
means” of showing that a denial of restoration was arbitrary and capricious. Id.,
¶ 21. Because the Board issued Cronin while this appeal was pending, it is given
retroactive effect and applies to this appeal. See Desjardin v . U.S. Postal Service ,
2023 MSPB 6, ¶ 18 n.8.
¶13 In light of Cronin , to establish jurisdiction over this appeal, the appellant
must nonfrivolously allege that the agency failed to search within the local
commuting area for vacant positions to which it can restore him and to consider
him for any such vacancies. Cronin , 2022 MSPB 13, ¶ 20. The record reflects
that the agency searched a 50 -mile radius for work within the medical restrictions
9
identi fied in the appellant’s June 14, 2016 Form CA-17 but that it did not identify
any available positions. IAF, Tab 7 at 27 , 29-79, 81. The appellant has not
challenged the scope of the LCA or proffered any evidence that the agency’s
50-mile radius search fa iled to encompass his LCA. ID at 9; PFR File, Tab 5. In
addition, he has not alleged that there were any vacant funded positions within his
restrictions, either in the facility or LCA, to which he could have been assigned.
IAF, Tab 4; PFR File, Tab 5. Rather, as noted above, he argues that there was
work available —namely, casing, dutch door, and union steward duties —that he
could have perform ed but that the agency failed to find and offer him these
duties. IAF, Tab 4; PFR File, Tab 5 at 8 -18. Under Cronin , however, this
contention does not constitute a nonfrivolous allegation that the denial of
restoration was arbitrary and capricious because these duties do not constitute the
essential functions of an established position.8 See Cronin , 2022 MSPB 13, ¶ 20.
¶14 As noted in the initial decision, the appellant also argued that the search
was defective because it did not specifically identify the duties he believed he
could perform . ID at 9. As the administrative judge correctly found, however,
the agency is required only to search for available positions within the appellant’s
medical restrictions; there is no requirem ent that the agency identify the specific
duties an employee wishes to perform in its search for work. Id.; 5 C.F.R.
§ 353.301 (d). Moreover, under Cronin , the agency’s failure to search for work
that does not constitute the essential functions of an established position would
not render a resulting denial of restoration arbitrary and capricious. See Cronin ,
2022 MSPB 13, ¶ 20.
¶15 The appellant also argues that the agency ’s delay in conducting the search
for work constitutes an arbitrary and capricious denial of restoration. In the
initial decision, the administrative judge found that agency’s delay between
8 As the administrative judge co rrectly found, union duties are not themselves a position
to which the appellant could have been reassigned. ID at 10 -12. 9 -11; Desjardin ,
2023 MSP B 6, ¶ 19, n.10.
10
receiving the updated Form CA -17 on June 22, 2016, and conducting a search for
work on July 26, 2016, was not unduly long. ID at 7. On review, the appellant
argues that the agency received a Form CA -17 returning him to work with
restrictions on May 27, 2016 , and delayed 2 months, rather than 1 month, before
conducting the search.9 PFR File, Tab 5 at 8. Although an agency’s delay in
conducting a work search when work is “clearly available” or when the delay is
“extreme and unexplained” may constitute an arbitrary and capric ious denial of
restoration, a 2 -month delay is not extreme. Chen v. U.S. Postal Service ,
114 M.S.P.R. 292 , ¶¶ 3, 5, 11 (2010 ) (finding a 3 -month delay between when an
employee is placed off work and the completion of a search was not “very
lengthy ”), overruled on other grounds by Latham , 117 M.S.P.R. 400 , ¶ 10.
Moreover, the appellant has not al leged that there was a vacant position “clearly
available,” as required under Cronin , only that there were various duties
available. Thus, the appellant’s contention regarding the agency’s 2 -month delay
does not constitute a nonfrivolous allegation that t he agency arbitrarily and
capriciously denied him restoration.
¶16 In sum, the agency properly searched within the local commuting area for
vacant positions to which it could restore the appellant but was unable to find any
vacant funded position within his restrictions . Therefore, we find that the agency
has f ulfilled its minimum obligations under 5 C.F.R. § 353.301 (d) and that the
appellant has failed to nonfrivolously allege that his denial of restoration was
arbitrary and capricious. Accordingly, we VACATE the initial decision and find
that the Board lacks jurisdiction over the appellant’s partial restoration appeal. In
the absence of an otherwise appealable action, we als o lack jurisdiction to address
9 The record reflects that an Office of Workers’ Compensation (OWCP) Rehabilitation
Counselor contacted the manager of the agency’s local Health and Resource
Management Department on May 27, 2016, to inform her that OWCP had determined
that the appellant could return to work and faxed her an April 12, 2016 Form CA -17
reflecting that the appellant could return to work with restrictions. IAF, Tab 10 at 14,
Tab 11 at 15, Tab 65 at 14.
11
the appellant’s claims of discrimination and retaliation. See Cronin , 2023 MSPB
6, ¶ 22.
NOTIC E 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 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 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 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).
10 Since the issu ance of the initial decision in this matter, the Board may have updated
the notice 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
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourt s.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endor ses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
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. ____ , 137 S. Ct. 1975 (2017). If you have a
representative in this case, and your repres entative receives this decision before
you do, then you must file with the district court no later than 30 calendar days
after your representative receives this decision. If the action involves a claim of
13
discrimination based on race, color, religion, sex , national origin, or a disabling
condition, you may be entitled to representation by a court -appointed lawyer and
to waiver of any requirement of prepayment of fees, costs, or other security. See
42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a .
Contact informa tion for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative 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
14
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.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 judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained wit hin the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for info rmation regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
11 The original statutory p rovision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows app ellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is r etroactive to November 26, 2017. Pub. L. No. 115 -195,
132 Stat. 1510.
15
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/Court Websites.aspx .
FOR THE BOARD:
Washington, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board | DESJARDIN_RANDALL_S_SF_0353_16_0641_I_1_FINAL_ORDER_2005168.pdf | 2023-02-23 | null | SF-0353 | NP |
3,486 | https://www.mspb.gov/decisions/nonprecedential/INGRAM_JONES_TRINITY_LYNN_AT_1221_14_0633_W_2_FINAL_ORDER_2005204.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
TRINITY LYNN INGRAM -JONES,
Appellant,
v.
DEPARTMENT OF THE AR MY,
Agency.
DOCKET NUMBER S
AT-1221 -14-0633 -W-2
AT-1221 -15-0313 -W-1
AT-0752 -15-0340 -I-1
DATE: February 23, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL1
Joyce E. Kitchens , Esquire, Atlanta, Georgia, for the appellant.
Stuart A. Miller , Esquire, Locust Grove, Georgia, for the appellant.
Gedety Serralta , Esquire, and Jason B. Myers , Esquire, Washington , D.C.,
for the agency.
BEFORE
Cathy A. Harris , Vice Chairman
Raymond A. Limon , Member
Tristan L. Leavitt , Member
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
require d to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c).
2
FINAL ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
denied her request for corrective action in these two joined individual right of
action (IRA) appeals and dismissed her involuntary resignation claim for lack of
jurisdiction. For the reasons set forth below, we GRANT the appellant’s
petition for review and AFFIRM the initial decision AS MODIFIED .
Specifically, we REVERSE the administrative judge’s finding that the alleged
changes to the appellant’s duties, responsibilities, and working conditions are not
covered by 5 U.S.C. § 2302 (a)(2)(A)(xii) . We FIND that the appellant
established a prima facie case of whistleblower reprisal because she proved that
her protected disclosures and protected activity were contributing factors to the
significant c hange in duties, responsibilities, and working conditions ; FIND that
the agency failed to prove by clear and convincing evidence that it would have
taken the personnel actions even in the absence of the appellant’s protected
disclosures and protected activity ; and GRANT the appellant corrective action .
BACKGROUND
¶2 The appellant was employed by the agency as a Nurse Specialist (Case
Manager), GS -0610 -12, and was the Sexual Assault Medical Man agement
Program Manager at the Winn Army Community Hospital ( WACH) in
Fort Stewart, Georgia. Ingram -Jones v. Department of the Army , MSPB Docket
No. AT-1221 -14-0633 -W-2, Appeal File (W-2 AF), Tab 12 at 46-47. From
July 2012 through April 2014, her first -line supervisor was R.M. , and from
April 2014 until her resig nation, her first -line supervisor was C.H. Hearing
Transcript (HT) at 8, 115 -16 (testimony of R.M. and C.H.). The appellant’s
second -line supervisor was the WACH Commander . W-2 AF, Tab 12 at 9.
¶3 On September 14, 2013, a WACH employee requested the appe llant ’s
assistance to examine a 4-year-old child for signs of physical abuse. W -2 AF,
Tab 13 at 18-19. The appellant examined the child on September 16, 2013, and
3
she observed a right foot fracture and scars on his hands and leg, which she
believed were consistent with cigarette burns . Id. at 27. After the examination,
she cont acted WACH’s Social Work Services (SWS) , the primary point of contact
in child abuse cases that is responsible for intake, investigation, and case
management, W-2 AF, Tab 44 at 29, and offered to provide a report she had
prepared regarding the alleged abuse, including photographs and detailing the
injuries discovered from the examination , W-2 AF, Tab 43 at 44-45, 48. The case
proceeded to the Case Review Committee (CRC), which d etermines whether
concerns of child abuse under its pur view warrant recommending Government
action . W -2 AF, Tab 44 at 29; HT at 396 (testimony of the appellant). The CRC
did not substantiate the case of physical abuse. W -2 AF, Tab 13 at 23-24. Soon
thereafter , the appellant learned that SWS representatives to CRC , in concert with
a representative from the state’s Department of Children and Family Services,
downplayed the evidence of abuse and the seriousness of the child’s foot injury.
Id. at 24. Further, she was told that the SWS employee to whom she had offered
her report with photographs falsely stated to the CRC that there were n o such
reports or photographs. Id.
¶4 On November 6, 2013, the appellant emailed the Chief of Staff, 3rd Infantry
Divisio n, infor ming him of her colleagues’ conduct . W-2 AF, Tab 32 at 5-18.
The next day, the appellant emailed the agency’s Inspector General (IG) repeating
her allegations. W-2 AF, Tab 13 at 16-37. She also informed R.M. of her
complaints to the Chief of Staff and the IG. Id. at 37-38.
¶5 As a result of these complaints, the Commanding General of the U.S. Army
Medical Command (MEDCOM) ordered an investigation pursuant to Army
Regulation 15 -6 (15 -6 investigation). W -2 AF, Tab 43 at 5-8. The investigating
officer issued a report that validated some of the appellant’s claims that SWS
understated the evidence of abuse to the CRC. Id. at 32-33. Specifically, the
report noted that SWS members failed to indicate that during a forensic interview
conducted by th e appellant, the child stated that his father “burned him with a
4
white stick .” Id. The 15 -6 investigation also revealed that multiple sources felt
that the appellant routinely exceeded her scope of practice by “dictating what
each organization should do in each case .” Id. at 34. The investigating officer
recommended that WACH leadership clearly define the roles and expectations of
all parties involved, including the appellant . Id. The WACH commander
deleg ated these instructions to R.M. to ensure that the recommendations be
carried out. Ingram -Jones v. Department of the Army , MSPB Docket
No. AT-1221 -14-0633 -W-1, Initial Appeal File ( IAF), Tab 17 at 38-39.
¶6 Around the same time that the investigation began, the appellant alleged
that R.M. provided false information to the credentialing committee and
documented with the committee that the appellant was the subject of the 15 -6
investigation. IAF, Tab 5 at 22-23. Following the completion of the
investigative report, o n January 10, 2014, R.M. convened a meeting with the
appellant, some of her colleagues, and C.H. to review the investigation’s results
and discuss its instructions. Id. at 86-88. In the appellant ’s view, R.M. became
hostile with her, lectured her for going outside the chain of command with her
complaints, and embarrassed her in front of her colleagues. Id. at 32-35. The
appellant alleged that following the meeting, R.M. restricted her practice b y
prohibiting her from seeing pediatric nonsexual abuse patients. Id. at 33.
¶7 The appellant also alleged that, over the next several months, the agency
denied her training request for a forensic nursing conference, threatened to
suspend her credentials, and attempted to rewrite her position description.
W-2 AF, Tab 6 at 12-13, 23. She further alleged that the agency failed to
promote her from a GS -12 level to a GS -13 level and reduced her retention
incentive benefit. Id. at 25, 56. The appellant also noticed that over the course of
several months, many of her job duties change d. Id. at 11-26. She believed that
the agency reassigned her policy -writing duty to another employee and prohibited
her from arranging outside agreements with state -run facilities. Id. at 23-24, 57.
The agency also change d the training the appellant was conducting at WACH and
5
prohibited her from performing pediatric sexual assault evaluations. W-2 AF,
Tab 17 at 65, 106-09.
¶8 Throughout that time , the appellant filed two complaints with the Office of
Special Counsel (OSC) claiming that the agency’s actions were taken in
retaliation for her disclosures to the Chief of Staff, 3rd Infantry Division, and to
the IG. IAF, Tab 5 at 23; W -2 AF, Tab 6 at 6-21. OSC terminated its
investigations and notified the appellant of her right to seek corrective action
from the Board. IAF, Tab 5 at 16; W -2 AF, Tab 6 at 22-27. In January 2015 , the
appellant informed the agency of her intent to resign. Ingram -Jones v.
Department of the Army , MSPB Docket No. AT-0752 -15-0340 -I-1, Initial Appeal
File (0340 IAF), Tab 6 at 16-18.2 As a result of her OSC complaints and
resignation, the appellant filed two IRA appeals and an involuntary resignatio n
appeal with the Board. IAF, Tab 1; Ingram -Jones v. Department of the Army ,
MSPB Docket No. AT-1221 -15-0313 -W-1, Initial Appeal File, Tab 1; 0340 IAF,
Tab 1. The administrative judge joined the thre e appeals . W -2 AF, Tab 3. After
holding a hearing, the administrative judge issued an initial decision denying
corrective action in both IRA appeals and dismissing the involuntary resignation
appeal for lack of jurisdiction. W -2 AF, Tab 50, Initial Decision (ID).
¶9 The appellant has filed a petition for review. Petition for Review (PFR)
File, Tab 3. The agency has filed an opposition, to which the appellant has
replied. PFR File, Tabs 7-8.
2 The effective date of the appellant’s resignation was January 31, 2015 . 0340 IAF,
Tab 6 at 16-18.
6
DISCUSSION OF ARGUME NTS ON REVIEW
The appellant proved that the agency took personnel actions under 5 U.S.C.
§ 2302(a)(2)(A) .
¶10 When reviewing the merits of an IRA appeal,3 the Board must determine
whether the appellant has established by preponderant evidence that s he made a
protected disclosure or engaged in a protected activity that was a contributing
factor in a personnel action taken against her. 5 U.S.C. § 1221 (e)(1); Lu v.
Department of Homeland Security , 122 M.S.P.R. 335 , ¶ 7 (2015). 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).
¶11 Under the Whistleblower Protection Act (WPA) , a “personnel action” is
defined as an appointment; a promotion; an action under 5 U.S.C. chapter 75 or
other disciplinary or corrective action; a detail, transfer, or reassignment; a
reinstatement; a restoration; a reemployment; a per formance evaluation under
5 U.S.C. chap ter 43 or under T itle 38; a decision about pay, benefits, or awards or
concerning education or training if the education or training reasonably may be
expected to lead to an appointment, promotion, performance evaluat ion, or other
action described in 5 U.S.C. § 2302 (a)(2)(A); a decision to order psychiatric
testing or examination; the implementation or enforcement of any nondisclosure
policy, form, or agreement ; and any other significant change in duties,
responsibili ties, or working conditions. 5 U.S.C. § 2302 (a)(2)(A); Skarada v.
Department of Veterans Affairs , 2022 MSPB 17, ¶ 14.
3 In the initial decision, the administrative judge determined that the appellant
established jurisdiction over her IRA appeals because she exhausted her administrative
remedy with OSC for both IRA appeals and nonfrivolously alleged the requisite
jurisdicti onal elements. ID at 22-23; see Bradley v. Department of Homeland Security ,
123 M.S.P.R. 547 , ¶ 6 (2016). We find no reason to disturb these findings, which
neither party challenges on review.
7
¶12 The appellant alleged that the agency took the following personnel actions
against her in reprisal for her disclosures : failed to promote her from a GS -12
position to a GS -13 position, decreased her retention incentive, suspended and
revoked her credentials, denied a training request, and proposed changing her
position description. W -2 AF, Tab 35 at 3-4. She also alleged that the agency
removed the following job duties: performing forensic pediatric sexual assault
evaluations; treating pediatric nonsexual abuse patients; policy writing ;
conducting local training courses; negotiating memoranda of underst anding
(MOUs) and memoranda of agreement (MOAs); and collaborating with outside
agencies regarding the sexual assault patient population. Id. The administrative
judge found that the decreased retention incentive consti tuted a personnel action
under secti on 2302(a)(2)(A)(ix) because it was a decision concerning the
appellant’s pay. ID at 38-39. He also found that removing the appellant’s duty to
perform forensic pediatric sexual assault evaluations was a s ignificant enough
change in duties to constitute a personnel action u nder section 2302(a)(2)(A)(xii).
ID at 42-43. In conjunction, he found that C.H.’s failure to seek an exception to
ending WACH’s forensic pediatric sexual assault evaluations also constituted a
personnel action. ID at 43. The admini strative judge found that none of the other
alleged actions const ituted personnel actions under section 2302(a)(2)(A). ID
at 26-45.
¶13 On review, the appellant argues that the administrative judge erred in
finding that only two of the alleged agency actions constituted personnel actions
under section 2303(a)(2)(A). PFR File, Tab 3 at 15-31. We agree with the
administrative judge’s findings that the failure to promote, the proposed change
in her position description, an d the suspension of her credentials do not constitute
personnel actions under section 2303(a)(2)(A) . We also agree with the
administrative judge that the appellant failed to prove that the agency removed
her duty to draft MOUs and MOAs and to coordinate w ith outside organization s.
We will not disturb those findings here. However, we find that the administrative
8
judge erred in his analysis of the appellant’s change in duties. After our review
of the record, we find that the appellant proved that she suff ered a significant
change to her job duties, responsib ilities, and working conditions and that such a
change consti tutes a personnel action under section 2302(a)(2)(A)(xii). We
address each action in tu rn below.
Failure to P romote
¶14 Regarding the appellan t’s failure to promote claim, she argues that in 2014,
all other nurse practitioners in the organization were promoted to GS -13 positions
but that C.H. created and planned to advertise a GS -13 position to which she
would have to apply . PFR File, Tab 3 at 15-16. C.H. stated that he was aware of
the appellant ’s desire for more clinical work, W -2 AF, Tab 16 at 37, and he
testified that to accommodate that desire, he would need to increase her grade
from a GS -12 to a GS -13, HT at 132-33 (testimony of C.H.) . He further testified
that he did not have the authority to promote the appellant from a GS -12 to a
GS-13, id., so he approached her with the idea that he would create a GS -13
position to which she could apply that allowed for more clinical time, W -2 AF,
Tab 16 at 37, 40. The appellant rejected C.H.’s proposition. Id. at 40.
¶15 In previous cases in which the Board has considered whether a failure to
promote was a personnel action under the WPA, the agency had announced a
vacancy and filled it with another individual or canceled the vacancy. See
Ruggieri v. Merit Systems Protecti on Board , 454 F.3d 1323 , 1325 -27 (Fed. Cir.
2006) (holding that, in the context of an appointment, the agency’s decision to
terminate the hiring process by canceling the vacancy announcement was
sufficient under the plain language of the statute to constitute a “fail[ur e] to
take . . . a personnel action ”); Briley v. National Archives and Records
9
Administration , 71 M.S.P.R. 211, 221 (1996).4 Here, there was no vacancy
announcement, and, although the agency intended to create one, it is undisputed
that the appellant rejected the opportunity to apply for the position. Under these
circumstances, w e find there to be no personnel action.
¶16 To the extent that the appellant argues that she should have been promoted
because other nurses were promoted from a GS -12 to a GS -13, we find th is
argument to be without merit. The administrative judge found that because there
was no vacancy at issue here, the appellant’s argument effectively constituted a
claim of a failure to reclassify from a GS -12 grade to a GS -13 grade . ID at 38.
To prove that a failure to reclassify the appellant’s position constitutes a
personnel action under section 2302(a)(2)(A) , she must prove that comparable
positions had been reclassified elsewhere by the agency because of a change in
the classification standards or a classification error and that she would have met
the legal and qualification requirements for promotion. Briley, 71 M.S.P.R.
at 221-22.
¶17 We need not address whether the appellant would have met the legal and
qualification requirements for a promotion because her allegation is that other
nurse pract itioners were promoted to the GS -13 grade —not that they were
reclassified. PFR File, Tab 3 at 15-16. Regardless, if she had alleged that the
other nurse practitioners were reclassified, she presented no evidence that they
were in a similar enough position or shared similar enough duties that such a
comparison would be relevant. Accordingly, we agree with the administrative
4 Historically, the Board has been bound by the precedent of the U.S. Court of Appeals
for the Federal Circuit on these types of whistleblower issues. However, pursuant to
the All Circuit Review Act , Pub. L. No. 115-195, 132 Stat. 1510, appellants may file
petitions for judicial review of Board decisions in whistleblower reprisal cases with any
circuit court of appeals of competent jurisdiction. See 5 U.S.C. § 7703 (b)(1)(B).
Therefore, we must consider these issues with the view that the appellant may seek
review of this decision before any appropriate court of appeal.
10
judge’s conclusion that the appellant failed to prove by preponderant evidence
that the agency’s actions or inactions regarding a promotion constitute a
personnel actio n under section 2302(a)(2)(A).
Threatened Changes to Position Description
¶18 The appellant also alleges, as a separate personnel action, that C.H.
threatened to change her position description when he created the tentative
position description for the GS -13 position. PFR File, Tab 3 at 28; HT at 428-30
(testimony of the appellant). At the hearing, C.H. testified that WACH needed
more medical providers for its clinics, so he and R.M. decided to rewrite the
appellant’s position description to include more clinical time and have a
discus sion with her about whether she fou nd it acceptable. HT at 132-33
(testimony of C.H.). The record shows that C.H. already was aware that the
appellant wanted more clinical time, and he was trying to facilitate that request,
W-2 AF, Tab 16 at 37, but he a cknowledged that the new position description
would lessen the amount of time the appellant spent on sexual assault cases, HT
at 136-37 (testimony of C.H.). Because the appellant was not receptive to the
new position description, however, C.H. did not pursue it any further, and no
changes were made to her current position description. HT at 180 (testimony of
C.H.), 498 -99 (testimony of the appellant); W -2 AF, Tab 16 at 74-75.
¶19 The administrative judge found that C.H.’s act of offering a new position
description for the appellant’s review did not qualify as a personnel action
because she was not required to compete for the position, and therefore, it did not
constitute a “threat.” ID at 45; 5 U.S.C. § 2302 (b)(8). On review, the appellant
highlights several conversations between herself, C.H., and other employees
regarding the tentative position description. PFR File, Tab 3 at 25-28. We have
reviewed these conversations and find that they do not change the outcome
arrived at by the administrative judge. Although the Board has held that the term
“threaten” in section 2302 should be interpreted broadly, Campo v. Department of
the Army , 93 M.S.P.R. 1, ¶ 5 (2002), the ultimate decision on whether C.H. would
11
pursue the new position description was left to the appellant. C.H. forwarded the
new position description to the app ellant “to gauge her interest,” W -2 AF, Tab 16
at 63, and when she objected, he no longer pursued it, HT at 180 (testimony of
C.H). Even considering the broad interpretation afforded the term “threaten,” we
agree with the administrative judge’s finding that these actions do not constitute a
personnel action under section 2302 (a)(2)(A).
Suspended Credentials
¶20 Regarding the appellant’s suspended credentials claim, she alleges that C.H.
conducted an internet search of her name and discovered that she had been
arrested on a domestic violence charge in July 2012. PFR File, Tab 3 at 17-18;
HT 449 -50 (testimony of the appellant). She claims that she immediately
provided him with documentation showing that the arrest was in error and that
she was actually the victim of the domestic incident in question. W -2 AF, Tab 17
at 189-96. She asserts that C.H. nevertheless arranged for pediatric evaluations,
which were normally performed by the appellant, to be performed at another
hospital until the issue of the arre st and its effect on the appellant’s credentials
could be worked out. Id. at 189-90. The appellant argues that these actions
resulted in the suspension of her credentials. PFR File, Tab 3 at 17-18.
¶21 At the hearing, C.H. testified that he typed the appe llant’s name into a
search engine after unsuccessfully attempting to view an internet link she sent
him regarding her qualifications. HT at 146 (testimony of C.H.). He testified
that the internet searc h produced an arrest history naming the appellant. Id. He
further testified that a human resources official recommended holding the
appellant’s credentials in abeyance until the matter could be investigated but that
the appellant provided him with the paperwork proving that the arrest was in
error. HT at 152-55 (testimony of C.H.). C.H. testified that, because these events
occurred over the weekend, he never signed the paperwork that would have
formally actuated the abeyance. HT at 156 (testimony of C.H.) . The
administrative judge found that the appella nt did not meaningfully rebut this
12
testimony, and, therefore, found that there was no suspension of the appellant’s
credentials. ID at 39-40.
¶22 On review, the appellant’s argument seems to focus more on the internet
search than the alleged suspended creden tials. PFR File, Tab 3 at 17-18. She
argues that the search was unwarranted because C.H. had access to her
credentialing file , which included two of her background checks , and that the
administrative judge erred in finding nothing improper about the sear ch.5 Id.; ID
at 56. We find the appellant’s arguments unpersuasive, as she did not contest
C.H.’s claim that her credentials were never actually put in abeyance or
suspended. Further, even if the internet search was improper, the appellant has
failed to show that this action constitutes a personnel action under
section 2302(a)(2)(A). Accordingly, we agree with the administrative judge’s
finding that the appellant failed to prove t hat the agency suspended
her credentials .
Negotiating MOUs and MOAs and Collaborating with Outside Agencies
¶23 The appellant also alleges that the agency removed or reassigned her duties
of negotiating MOUs and MOAs for sexual assault patients and collaborating
with outside agenci es regarding the sexua l assault patient population. W-2 AF,
Tab 12 at 49-50. The administrative judge found that the appellant did not
present suf ficient evidence to prove that these duties were significant or that they
were actually removed from her res ponsibilities . ID at 43. We have thoroughly
reviewed the record, which appears to show disagreement and confusion between
the agency and the appellant concerning the status of these duties and the
5 The administrative judge’s findings regarding the appropri ateness of the internet
search were in relation to his analysis of the appellant’s involuntary resignation claim.
ID at 51, 56. Because the same facts surrounding these allegations apply to both the
appellant’s IRA claims and her involuntary resignation claim, we find the
administrative judge’s findings to be relevant in both instances.
13
appellant’s performance of them , W-2 AF, Tab 17 at 132-34, Tab 18 at 56, and
agree with the administrative judge’s conclusions. Therefore, we find that the
appellant has failed to prove that these alleged actions constituted a
personnel action.
Denial of Training Request
¶24 The appellant also allege s that the agency subjected her to a personnel
action when it denied her a training request. PFR File, Tab 10 at 10. Although it
is undisputed that the agency denied the training request, the Board has held that ,
within the meaning of the WPA, a de cision concerning training qualifies as a
“personnel action” only if the training reasonably may be expected to lead to an
appointment, a promotion, a performance evaluation , or some other a ction
described in 5 U.S.C. § 2302 (a)(2)(A). Mason v. Department of Homeland
Security , 116 M.S.P.R. 135, ¶ 28 (2011). The administrative judge co nsidered
this argument below and found that the appellant failed to provide any meaningful
evidence or argument that the denied training would reasonably have been
expected to lead to any of the actions outlined in section 2302(a)(2)(A). ID
at 40-41. We have reviewed the record, and we agree. Therefore, we find that
the appellant’s training denial does not constitute a personnel action.
Decrease in Retention Incentive
¶25 The appellant has asserted that the agency decreased her retention incentive
from 20% to 15%, a claim undisputed by the agency. In the initial decision, the
administrative judge found that this affected the appellant’s pay and awards and,
thus, constitute d a personnel action pursuant to 5 U.S.C. § 2302 (a)(2)(A)(i x). ID
at 38-39. Neither party has disputed this ruling on review, a nd we find no reason
to disturb it.
Significant Change in Duties, Responsibilities , or Working Conditions
¶26 The appellant also alleged that she experienced a significant change in
duties, responsibilities, or working conditions as contemplated by
14
section 2302(a)(2)(A)(xii).6 W-2 AF, Tab 35 at 3-4. She alleged that after she
made her disclosures in November 2013, the agency prohibited her from treating
pediatric nonsexual abuse patients and ultimately from performing forensic
pediatric sexual assault evaluations. Id. She also alleges that the agency
assigned her policy -writing duties to other employees and ended the local trainin g
sessions she conducted. Id.
¶27 The administrative judge considered each duty separately, and he found that
the only significant change in duty that consti tuted a personnel action under
section 2302(a)(2)(A) was removing her duty to perform forensic pediatric sexual
assault evaluations. ID at 42-43. He found that limiting the appellant from
seeing pediatric nonsexual abuse patients did not constitute a significant change
in duty because it was not her duty in the first instance. ID at 26-37. He also
found that none of the other alleged change in duties, standing alone, constituted
a “significant change in duties, responsibilities, or working conditions” as
contemplated by section 2302(a)(2)(A) (xii). ID at 41-45.
¶28 When determining whether an appellant has suffered a “significant change
in duties, responsibilities, or working conditions,” the Board consider s the alleged
agency actions both collectively and individually. Skarada , 2022 MSPB 17 , ¶ 16;
see also Holderfield v. Merit Systems Protection Board , 326 F.3d 1207 , 1209 -10
(Fed. Cir. 2003). Although it may be questionable whether any actions, standing
6 In the appellant’s initial IRA appeal, she alleged that she suffered from a hostile work
environment. IAF, Tab 4 at 4. The administrative judge did not include a host ile work
environment claim in his summary of the issues, W -2 AF, Tab 35 at 3-4, and the
appellant does not appear to have objected to that summary, id. at 1. The initial
decisi on does not include a discussion of a hostile work environment claim, and only in
the appellant’s reply to the agency’s response to her petition for review, not in her
initial petition, does she raise the issue of a hostile work environment again. PFR File,
Tab 8 at 3-4. Nonetheless , we will consider the appellant’s claims here as they relate to
her working conditions. See 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.
15
alone, amount to a “significant change in duties, responsibilities or working
conditions,” the alleged changes may nevertheless constitute a personnel action
under section 2302(a)(2)(A)(xii) if considered collectively. Here, we find that the
administrative judge erred by failing to consider collectively the alleged changes
in the appellant’s d uties. Thus, t he relevant inquiry on review is whether the
appellant’s allegations, collectively, constitute a “significant change in duti es,
responsibilities , or working conditions.”
¶29 The Board has held that a significant change in duties should be const rued
broadly . Ingram v. Department of the Army , 116 M.S.P.R. 525, ¶ 4 (2011).
Additionally, after issuance of the initial decision , the Board issued its decision in
Skarada , 2022 MSPB 17, wherein it further interpreted the meaning of the
statutory lang uage, “significant change in duties, responsibilities, or working
conditions,” and held that to constitut e a “significant change” under
section 2302(a)(2)(A)(xii), an agency action must have a significant impact on the
overall nature or quality of an emplo yee’s working conditions, responsibilities, or
duties. Skarada , 2022 MSPB 17, ¶ 15. After our thorough review of the record,
we find that the appellant experienced a change in her duties, responsibilities, and
working conditions and that change had a significant impact on the nature of her
duties and responsibilities, and on the quality of her working conditions.
Therefore, we find that the appellant suf fered a personnel action under
section 2302(a)(2)(A)(xii).
¶30 Regarding the appellant’s duty to treat pediatric nonsexual abuse patients,
she testified that after making her disclosures, R.M. prohibited her from seeing
any pediatric nonsexual abuse patients and that 4 months later, her new
supervisor, C.H., permitted her to see those patients only after seeking approval .
HT at 418, 488 (testimony of the appellant) . Several months later, C.H. again
instructed the appellant to refrain from seeing pediatric nonsexual abuse patients.
W-2 AF, Tab 17 at 57. The appellant further testified that this limitation
decreased the total number of patients she saw and that the decrease was a
16
significant chan ge from previous years. HT at 480, 487 -89 (testimony of the
appellant). She also testified that limiting her ability to see those patients could
impact her credentials, which she was required to maintain to hold her position.
HT at 425-26, 429 (testimon y of the appellant).
¶31 Discussing this alleged change in duty in isolation, the administrative judge
provided an 11 -page analysis ultimately concluding that treating pediatric
nonsexual abuse patients was not the appellant’s duty in the first instance beca use
it was not included in her position description nor was it assigned or instructed by
a supervisor. ID at 26-37. We disagree. The Board has held that when a
question is raised regarding the nature and character of the duties performed and a
review of the position description may be inadequate, it will consider all factors
having a bearing upon the totality of the circumstances concerning the duties
performed. Lara v Department of Homeland Security , 101 M.S.P.R. 190,
¶ 9 (2006).
¶32 Here, the appellant’s position description outlines duties related to “sexual
assault and abuse.” W -2 AF, Tab 12 at 47. The appellant testified that this
language implies duties related to sexual assault and general physical abuse. HT
at 479-80 (testimony of the appellant). Testimony from agency officials seems to
support this interpretation. The Chief of Pediatrics testified that one could not be
a sexual abuse expert without seeing physical abuse, that sexual abuse is physical
abuse, and that differentiating between the two would be very difficult. HT
at 228 (testimony of S.B.). A WACH pediatrician testified it w as “normal
business” to consult with the appellant on pediatric nonsexual abuse cases
because she was the “local child abuse expert.” HT at 344-45 (testimony of
A.M .). R.M. testified that he would expect the appellant to have the same role in
any type of abuse case as any other pediatric provider. HT at 55-56 (testimony of
R.M.). C.H.’s 2014 evalu ation of the appellant and his corresponding testimony
also reference the appellant’s duties related to “abuse and sexual assault
patients.” W -2 AF, Tab 12 at 16; HT at 120-21 (testimony of C.H.).
17
¶33 Moreover, it is undisputed that both R.M. and C.H. were aware that the
appellant was performing this duty, and R.M. praised her for her willingness to go
“out of her own lane.” W -2 AF, Tab 12 at 10; HT at 31, 50, 4 15-16 (testimony of
R.M. and the appellant). Although the administrative judge found this comment
to be in reference to the Chief of Staff, 3rd Infantry Division, and the IG issues,
we discern no basis for that finding, as R.M. testified that h e wrote the comments
on October 31, 2013 —a week before the appellant made her disclosures. HT
at 29, 31 -33 (testimony of R.M.); W -2 AF, Tab 13 at 16-38. Accordingly, we
reverse the administrative judge’s findings and hold that treating pediatric
nonsexual abuse pat ients was a part of the appellant’s duties and responsibilities
and that, even standing alone, the circumstances outlined above demonstrate a
“significant change in duties, responsibilities, or working conditions” under
section 2302(a)(2)(A)(xii).
¶34 Regard ing forensic pediatric sexual assault evaluations, W -2 AF, Tab 12
at 50, the appellant testified that this duty comprised approximately 50% of her
job and “was a huge part of [her] whole life” before the agency eliminated it, HT
at 421, 514 (testimony of t he appellant). The administrative judg e found that
eliminating this duty, and C.H’s failure to seek an exception to the cessation,
constituted personnel actions independent of any other apparent change in duties.
ID at 43. We agree, and we find no reaso n to disturb these findings. Regarding
her role in policy drafting, W -2 AF, Tab 12 at 9, 47, the appellant testified that
sexual assault was a prevalent issue in the Army, and prior to her disclosures, she
was “constantly trying to keep up” with the guida nce from the Department of
Defense in writing policy, but after her disclosures, others were asked to write
and update policy, HT at 418-20 (testimony of the appellant); W -2 AF, Tab 17
18
at 29-30.7 The administrative judge found that a change in duties
“unquestionably occurred,” but that on its own, it did not rise to t he level of
“significant.” ID at 42. Regarding the training instruction , the appellant testified
that she provided “award winning” training programs, W-2 AF, Tab 12 at 9, 50;
HT at 432, 507 (testimony of the appellant) , which took up a significant amount
of her time, but after her disclosures, she was no longer permitted to provide the
training , HT at 507 (testimony of the appellant) . The administrative judge made
no finding on whether this constituted a personnel action and only found that the
appellant’s disclosures were not a contributing factor to the agency’s removing
this duty. ID at 44-45. Regarding general working conditions, supra ¶ 26 & n.6,
the appellant testified that imple ment ing these changes occurred “behind her
back,” that her supervisors “started acting like they didn’t know who [she] was,”
and that they would not respond to her concerns. HT at 432-33 (testimony of the
appellant) . She further testified that the signif icant change in duties led others to
believe she was no longer in charge of the sexual assault program at WACH. HT
at 516 (testimony of the appellant).
¶35 After careful consideration, w e find that the appellant has demonstrated
that, collectively, these changes had a significant impact on the overall nature or
quality of he r responsibilities, duties, and working conditions. See Skarada ,
2022 MSPB 17, ¶ 15. Many of these changes directly relate to the essence of the
appellant’s position not only as the Sexual Assault Medical Management Program
Manager, W -2 AF, Tab 12 at 46-47, but also as a nurse practitioner, id. at 53, an d,
thus, had an impact on the overall nature of her duties and responsibilities.
Accordingly, we find that the significant changes in the appellant’s duties,
7 The appellant testified that she still had input in the policy but was no longer writing
it. HT at 509 (testimony of the appellant).
19
responsibilities, and working conditions const itute a personnel action under
section 2302(a)(2)(A )(xii).
The appellant made protected disclosure s and engaged in protected activity.
¶36 Having narrowed the scope of what personnel actions the appellant proved,
we now turn to the question of whether she proved by preponderant evidence that
she made prote cted disclosures 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). 5 U.S.C.
§ 1221 (e)(1); Corthell v. Department of Homeland Security , 123 M.S.P.R. 417,
¶ 8 (2016). To establish that she made a protected disclosure, the appellant must
show that she reasonably believed that the conduct being disclosed evidenced a
violation of any law, rule or regulation, gross mismanagement, a gross waste o f
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 administrative judge found that the appellant
reasonably believed that her allegations about the improper handling of the child
abuse case were accurate and that those disclosures evidenced an allegation of an
abuse of authority. ID at 25. Thus, he found that the appellant mad e protected
disclosure s under section 2302(b)(8). Neither party has challenged this finding
on review, a nd we find no reason to disturb it.
¶37 Although the administrative judge considered whether the appellant made a
protected disclosure, he failed to consider whether the appellant engaged in
protected activity. ID at 23-25. Among the activities contemplate d by
section 2302(b)(9) is “cooperating with or disclosing information to the Inspector
General, . . . or the Special Counsel, in accordance with applicable provisions of
law.” 5 U.S.C. § 2302 (b)(9)(C). Here, there is no dispute that the appellant
disclosed information to the IG when she filed her complaint in November 2013
expressing her concerns over the CRC and SWS. Therefore, we find that the
appellant engaged in protected activity under section 2302(b)(9)(C), and we
modify the initial decision in that regard.
20
The appellant’s protected disclosures and protected activity were contributing
factor s in the significant change in her duties , responsibilities, and
working conditions.
¶38 Having found that the significant change in the appellant’s duties,
responsibilities, and working conditions and the reduction in her retention
incentive const ituted personnel actions under 5 U.S.C. § 2302 (a)(2)(A), we next
consider whether the appellant’s protected disclosures and protected activity were
contributing factor s to these actions. 5 U.S.C. § 1221 (e)(1); Lu, 122 M.S.P.R.
335, ¶ 7. The most common way for an appellant to prove that a protected
disclosure was a contributing factor in the agency’s taking of a personnel action
is the knowledge/timing test. Scoggins v. Department of the Army , 123 M.S.P.R.
592, ¶ 21 (2016). That test requires the appellant to prove that the agency official
taking the personnel action knew of the whistleblowing disclosure or protected
activity and took the personnel action within a period of time such that a
reasonable person could conclude that the disclosure or activity was a
contributing factor to the personnel action. Id. Once the appellant has satisfied
the knowledg e/timing test, she has demonstrated that a protected disclosure or
protected activity was a contributing factor in the personnel action, even if a
complete analysis of all of the evidence would not support such a finding.
Gonzalez v. Department of Transpo rtation , 109 M.S.P.R. 250, ¶ 20 (2008).
¶39 Regarding the reduction in the appellant’s retention incentive from 20% to
15%, the admi nistrative judge found that C.H. only had the authority to approve a
15% retention incentive and that only MEDCOM headquarters could approve a
20% retention incentive, which C.H. recommended. ID at 46-47. Thus, the
administrative judge found that the app ellant failed to establish who was
responsible for taking the action and that she, therefore, failed to establish that
her protected disclosures or protected activity were a contributing factor to the
reduced retention incentive. Id. On review, the appel lant argues that WACH , and
specifically C.H. , intentionally failed to comply with MEDCOM headquarters’
21
requests to forward the information required to grant the request of th e 20%
retention incentive. PFR File, Tab 3 at 16. We have reviewed the record an d
have found no evidence proving that C.H. contributed to or was the source of
WACH’s failure to comply with requests from MEDCOM headquarters to
forward the required information.8 Therefore, we agree with the administrative
judge ’s conclusion that the appellant failed to prove that her protected disclosures
and protected activity were contributing factor s to the decreased
retention incentive.
¶40 We now turn to whether the appellant’s protected disclosures and protected
activity wer e a contributing factor to the significant change in her duties,
responsibilities, and working conditions. Regarding the restriction on the
appellant’s ability to see pediatric nonsexual abuse patients , the record shows that
R.M. became aware of the appel lant’s protected disclosures in November 2013,
HT at 22 (testimony of R.M .), and that he restricted the appellant from seeing
those patients between January 2014 and April 2014, W -2 AF, Tab 17 at 17, 20,
22; HT at 48-51, 76 (testimony of R.M). Because R.M . knew of the appellant’s
disclosures and took the agency action within 2 months of becoming awar e of the
disclosure s, we find that this satisfies the knowledge/timing test. See Scoggins ,
123 M.S.P.R. 592, ¶ 25 (finding that a personnel action that occurs within 2 years
of the appellant’s disclosure satisfies the timing component of the
knowledge/timing test).
8 The appellant argues that on one of the forms relevant to the retention incentive, C.H.
wrote “yes” to the question of whether there were “candidates available in the market
who, with minimal training, cost, or disruption of mission, could perform the full range
of duties of the position at the level performed by the employee,” and that his response
would effectively eliminate the appellant’s chance to receive a 20% retention incentive.
PFR File, Tab 3 at 16-17; W -2 AF, Tab 18 at 18. This argument, however, is
unpersuasive because C.H. ultimately recommended a 20% retention incentive.
W-2 AF, Tab 18 at 18.
22
¶41 After R.M.’s departure in April 2014, C.H. became the appellant’s
supervisor. HT at 115-16 (testimony of C.H.). He testified that he first became
aware of the disclosures at the January 2014 meeting. Id. at 175-76. He informed
the appellant sometime around April or May of 2014 that he would permit her to
see pediatric nonsexual abuse patients if she cleared it with him first, HT
at 200-01, 488 -89 (testimony of C.H. and the appellant), then fully restricted the
duty again in August 2014, W -2 AF, Tab 17 at 57. Beca use C.H. had knowledge
of the appellant’s disclosures and took his actions within 7 months of becoming
aware of the disclosure s, we find that this satisfies th e knowledge/ timing test.
See Scoggins , 123 M.S.P.R. 592, ¶ 25.
¶42 Regarding removing policy writing from the appellant’s duties, the record
shows that the WACH Commander directed C.H. to have a particular policy
rewritte n. W -2 AF, Tab 17 at 30. C.H. indicated in an email to the appellant that
the WACH Commander directed him to “hand off the writing of this policy.” Id.
at 32. In June 2014, C.H. delegated the duty to somebody in the Emergency
Department. Id. Concerni ng C.H., w e have already found that he had knowledge
of the appellant’s disclosures. Supra ¶ 41. Concerning the WACH Commander,
the appellant has contended that he had knowledge of her disclosures, IAF, Tab 4
at 5, and the agency has not disputed her contention. Further, the WACH
Commander is the agency official who communicated the results of the 15 -6
investigation to R.M., who discussed them at the January 2014 meeting. HT at 32
(testimony of R.M .); W -2 AF, Tab 15 at 23-24. Based on t he foregoing , we find
that the WACH Commander kn ew of the appellant’s disclosures . Because these
agency officials took this action within 5 months of learning of the disclosures,
we find that the appellant has satisfied the knowledge/timing test on this i ssue.
See Scoggins , 123 M.S.P.R. 592, ¶ 25.
¶43 Regarding removing the duty to perform forensic pediatric sexual assault
evaluations, the administrative judge considered whether the appellant’s
disclosures were a contributing factor to this action. ID at 42-43, 47. He found
23
that the Deputy Commanding General of MEDCOM made the decision to end
forensic pediatric sexual assault evaluations in November or December 2014. Id.;
W-2 AF, Tab 28 at 36. The administrative judge also found that the Deputy
Commanding General was aware of the appellant’s protected disclosures and
protected activity because she was the agency official who ordered WACH to
initiate the 15 -6 investigation that was prompted by the appellant’s protected
disclosures and activity. ID at 47; W -2 AF, Tab 43 at 5-8. Thus, the
administrative judge found that because she ended the appellant’s duty to perform
forensic pediatric sexual assault evaluations within 1 year of becoming aware of
the appellant’s disclosures, the appellant met the knowledge/timing test. ID
at 47. The administrative judge also found that the appellant met the
knowledge/timing test for C.H. ’s declining to seek an exception to ceasing this
duty because his inaction occurred within 1 year of becoming aware of the
disclosures. Id. Neither party disputes these findings on review, and we find no
reason to disturb them.
¶44 Regarding removing the appellant’s duty to conduct the local training, we
find that there is insufficient evidence to determine who made the decision to take
this action. The rec ord contains various emails between the appellant and an
agency official, wherein both attempt ed to identify who was responsible for the
decision. W -2 AF, Tab 17 at 79-87. The record also includes an email from C.H.
to the appellant confirming that all S exual Assault Medical Forensics Examiners
training “ courses from this point forward will be central. I received email
confirmation today.” Id. at 73. Nowhere does C.H. reference from whom he
received the confirmation, nor has the appellant identified th e person responsible
for the decision. Because the appellant has not proven who made the decision to
remove this duty, she has failed to meet her burden of proof as to this action.
¶45 On the whole, and notwithstanding our finding regarding the local traini ng,
we find that the appellant has met her burden of proving that her disclosures and
24
protected activity were a contributing factor to the significant change in her
duties, responsibi lities , and working conditions.
The agency failed to prove by clear and convincing evidence that it would have
taken the same actions in the absence of the prot ected disclosures and
protected activity.
¶46 Because the appellant established a prima case of whistleblower reprisal, we
turn to the question of whether the agency pro ved by clear and convincing
evidence that it would have taken the same actions in the absence of the protected
disclosures. Lu, 122 M.S.P.R. 335 , ¶ 7. Clear and convincing evidence is that
measure or degree of proof that produces in the mind of the trier of fact a firm
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).
¶47 In determining whether an agency has shown by clear and co nvincing
evidence that it would have taken the same personnel action in the absence of the
whistleblowing, the Board will consider all of the relevant factors, including the
following ( Carr factors) : the strength of the agency’s evidence in support of it s
action; the existence and strength of any motive to retaliate on the part of the
agency officials who were involved in the decision; and any evidence that the
agency takes similar actions against employees who are not whistleblowers but
who are otherwise similarly situated. Soto v. Department of Veterans Affairs ,
2022 MSPB 6 , ¶ 11; see also Carr v. Social Security Administration , 185 F.3d
1318 , 1323 (Fed. Cir. 1999). The Board does not view these factors as discrete
elements, each of which the agency must prove by clear an d convincing evidence,
but rather weighs these factors together to determine whether the evidence is
clear and convincing as a whole. Lu, 122 M.S.P.R. 335 , ¶ 7. The Board must
consider all the evidence, including evidence that detracts from the conclusion
25
that the agency met its burden. Soto , 2022 MSPB 6 , ¶ 11; see also Whitmore v.
Department of Labor , 680 F.3d 1353 , 1368 (Fed. Cir. 2012) .
Restriction on the Appellant from Treating Pediatric Nonsexual
Abuse Patients
¶48 In examining the strength of the evidence in support of the agency’s action
to restrict the appellant from treating pediatric nonsexual abuse patients, we find
the agency’s evi dence to be weak. At the hearing, R.M. testified that when he
limited the appellant from seeing pediatric nonsexual abuse patients, he was
following instructions from higher officials as a result of the 15 -6 investigation.
HT at 30, 80 -82 (testimony of R .M.). However, the investigative report simply
made recommendations and stated that “[l]eadership needs to clearly define the
rules and expectations of all parties when a case occurs.” W -2 AF, Tab 43 at 34.
It did not require R.M. to remove this duty; h e could have formally incorporated
the duty, which the appellant was already performing prior to her disclosures, into
her position description. Further, the 15 -6 investigative report upon which R.M.
relied was the direct product of the appellant’s protec ted disclosures and
protected activity.
¶49 After R.M.’s departure, C.H. initially permitted the appellant to treat
pediatric nonsexual abuse patients only after seeking his approval, but restricted
the duty again in August 2014. HT at 200-01, 488 -89 (testi mony of C.H. and the
appellant); W -2 AF, Tab 17 at 57. He emailed the appellant telling her to “hold
off” on seeing this classification of patients because, despite being credentialed to
see pediatric patients, her position description did not include those duties.
W-2 AF, Tab 17 at 57. We find C.H.’s explanation for restricting this duty to be
weak. The appellant’s job description had not changed in the time period
surrounding her disclosures, and the agency does not dispute that the appellant
perfo rmed these duties prior to making her disclosures. Thus, to rely on the
position description as the sole reason to restrict a duty previously permitted prior
to the appellant’s disclosures is suspect, at best, and does not provide sufficient
26
support to ju stify the agency action. Accordingly, we find this factor favors
the appellant.
¶50 In examining the existence and strength of the evidence of the agency
officials’ motive to retaliate, we find the evidence to be strong, particularly
regarding R.M. The rec ord is replete with evidence that R.M. was upset with the
appellant for making her disclosures outside of her chain of command. Several
witnesses testified that during the January 2014 meeting, R.M. expressed his
frustration with the appellant for making her disclosures in the manner in which
she made them. HT at 26, 126 -27, 231, 270 -71, 414 -15 (testimony of R.M., C.H.,
S.B., and the appellant). Regarding C.H., at the time the appellant made her
disclosures, he was not her supervisor, and the disclosures do not implicate any
wrongdoing on his part. However, we have found that those responsible for the
agency’s performance overall may well be motivated to retaliate even if they are
not directly implicated by the disclosures, as the criticism reflects on t hem in
their capacities as managers and employees. Wilson v. Department of Veterans
Affairs , 2022 MSPB 7 , ¶ 65; Smith v. Department of the Army , 2022 MSPB 4 ,
¶¶ 28-29. Thus, we find that C.H. may have had a slight motive to retaliate. In
any event , because we find the evidence of R.M.’s retaliatory motives to be
strong, we find that this factor also favors the appellant.
¶51 Next, we examine any evidence that the agency takes similar actions against
employees who are not whistleblowers but who are otherwise simil arly situated.
The agency has not identified other employees who primarily performed forensic
pediatric sexual assault exams, but are credentialed to, and occasionally did,
consult with staff on pediatric nonsexual abuse patients. Nonetheless, we find
that the relevant inquiry of potential similarly situated employees should be
viewed from a different perspective. Because it appears undisputed that the
agency took this action as a result of the 15 -6 investigation, we look to other
employees affected by t he report but who did not engage in whistleblowing
activi ty. The agency has failed to identify any of these employees or to
27
demonstrate that they also experienced a significant change in duties. Because it
is the agency’s burden of proof, w hen the agency fails to introduce relevant
comparator evidence, the third Carr factor is effectively removed from
consideration, although it cannot weigh in favor of the agency. Soto , 2022 MSPB
6, ¶ 18; see also Rickel v. Department of the Navy , 31 F.4th 1358 , 1365 -66 (Fed.
Cir. 2022) (“The lack of evidence on the third Carr factor appears neutral [.]”)
(internal citation omitted) . We find that this factor is neutral. See Siler v.
Environmental Protection Agency , 908 F.3d 1291 , 1299 (Fed. Cir. 2018) (holding
that in the absence of relevant comparator evidence, the third Carr factor cannot
favor t he agency).
¶52 Weighing the Carr factors against one another and as a whole, we find that
the agency has failed to prove by clear and convincing evidence that it would
have restricted the appellant’s ability to treat pediatric nonsexual abuse patients
in th e absence of the appellant’s protected disclosures and protected activity,
particularly because in that absence, the 15 -6 investigation would not
have occurred.
Removal of the Appellant’s Duty to Write Policy
¶53 In examining the strength of the agency’s evidence to reassign the duty of
policy writing to another employee, we find the agency’s evidence to be weak.
C.H. testified that the appellant wrote the original agency policy on handling
sexual assaults from a forensic and medical perspective, but the WACH
Commander ordered it to be rewritten because it was outdated. HT at 196-97
(testimony of C.H.). The record shows that the WACH Commander asked C.H. to
“hand off the writing of this policy.” W -2 AF, Tab 17 at 32. C.H. further
testified that he had “no idea how it became assigned or why [another] person was
chosen,” but immediately thereafter testified that the person chosen was the
“crossover” between “ambulatory nurse care . . . and the physician side.” HT
at 197 (testimony of C.H.). He testified that the appellant was not involved in
rewriting the policy but was consulted afterward. HT at 198 (testimony of C.H.).
28
The WACH Commander did not testify, and C.H. offered no explanation for why
the appellant, who he admitted was an expert on the subje ct matter, HT at 123
(testimony of C.H.), was not asked to update the policy that she had previously
written and that directly relates to her job duties. That the appellant was later
consulted regarding the draft policy helps the agency’s case to a degree , HT
at 197-98 (testimony of C.H.), but we ultimately conclude that this factor weighs
more in the appellant’s favor.
¶54 In examining the existence and strength of the evidence of the agency
officials’ motive to retaliate, we find the evidence to be mixed. We previously
found that there was little record evidence that C.H. had a motive to retaliate.
However, the appellant has asserted that C.H. told her that the WACH
Commander was angry when he learned of the appellant’s protected disclosures
and protected activity and that he felt “blindsided” when he was called by the
Commanding General to explain a situation of which he felt he had no
knowledge. IAF, Tab 5 at 22. The agency does not appear to have rebutted this
assertion. Notwithstanding the lack of e vidence of C.H.’s motive to retaliate, we
find that this factor favors the appellant because the WACH Commander was the
agency official ultimately responsible for this action, and we find that there is
clear evidence that he had a motive to retaliate.
¶55 In examining the third Carr factor, we refer to our previous analysis and
emphasize that the agency has failed to identify any other employees discussed in
the 15 -6 investigative report who were not whistleblowers but also suffered a
change in job duties as a result of the report. As previously noted, we find this
factor is neutral. See Siler , 908 F.3d at 1299 .
¶56 In weighing the Carr factors against one another and as a whole, we find
that the agency has failed to prove by clear and convincing evidence that it would
have reassigned the appellant’s policy -writing duty in the absence of her
protected disclosures and protected activity.
29
Removal of the Appellant’s Duty to Perform Forensic Pediatric Sexual
Assault Evaluations
¶57 Because the administrative judge found that the appellant’s protected
disclosure s were a contributing factor to the agency’s decision to remove the
appellant’s dut y to perform forensic pediatric sexual assault evaluations, ID at 47,
he also considered whether the agency proved by clear and convincing evidence
that it would have taken the same action even in the absence of the appellant’s
disclosures, ID at 49-51. A fter a brief analysis of the Carr factors, the
administrative judge found that the agency met its burden. Id. We agree.
Regarding the strength of the agency’s evidence in support of its action, the
record shows that the Deputy Commanding General of MEDC OM issued a
memorandum on December 11, 2014, ordering all USA MEDCOM facilities to
cease performing these exams , citing a low volume of relevant cases. W -2 AF,
Tab 28 at 36. The memorandum also indicates that extensions or exceptions to
the new policy co uld be sought. Id. It appears undisputed that C.H. initially
attempted to pursue an exception but was informed that WACH’s case numbers
were too low to justify an exception. W -2 AF, Tab 29 at 5-6. Although, as the
administrative judge pointed out, the agency failed to present any statistical or
numerical evidence to support its decision regarding the removal of this duty, ID
at 49, we find the agency’s evidence in support of this action to be
reasonably strong.
¶58 In considering the strength of the evide nce of the agency officials’ motive
to retaliate, we reiterate our finding that the evidence of C.H.’s motive to retaliate
is weak. Regarding the Deputy Commanding General of MEDCOM, the
administrative judge found that she was “too removed organizationall y . . . and
physically . . . to be meaningfully embarrassed by the appellant’s disclosures.”
ID at 50. Yet as noted above, those 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 whistleblower personally, as
30
the criticism reflects on them in their capacities as managers and employees.
Wilson , 2022 MSPB 7 , ¶ 65; Smith , 2022 MSPB 4 , ¶¶ 28-29. Because the Deputy
Commanding General of MED COM can be considered to be responsible for the
agency’s overall performance, which includes SWS’s and CRC’s performance,
and because she was the agency official who ordered the 15 -6 investigation, we
find that this factor cuts slightly in favor of the appellant.
¶59 Regarding any evidence that the agency takes similar actions against
employees who are not whistleblowers but who are otherwise similarly situated,
the administrative judge appropriately noted that the Deputy Commanding
General’s policy memorandu m applied to all medical treatment facilities in the
United States. ID at 50; W -2 AF, Tab 28 at 36. Because the removal of this duty
was a part of a broader policy change applicable to all agency employees, we find
that this factor favors the agency.
¶60 After our own weighing of the Carr factors, we agree with the
administrative judge that the agency proved by clear and convincing evidence that
it would have removed this duty from the appellant even in the absence of her
protected disclosures and protected activity.
¶61 In sum, we find that the agency met its burden with respect to the removal
of the appellant’s duty to perform forensic pediatric sexual assault evaluations,
but failed to meet its burden with respect to the restriction on the appellant’s
abili ty to treat pediatric nonsexual abuse patients and the removal of her duty to
write policy. Accordingly, we find that the appellant established her claim of
retaliation for whistleblowing and that corrective action is warranted.
The administrative judge did not err in finding that the appellant failed to
establish that her resignation was involuntary.
¶62 The appellant also alleges that she involuntarily resigned. 0340 IAF, Tab 1
at 7. Generally, the Board lacks authority to review an employee’s decision to
resign or retire because such actions are presumed to be voluntary. Vitale v.
Department of Veterans Affairs , 107 M.S.P.R. 501, ¶ 19 (2007). However, if an
31
agency coerced the employee’s decision in a manner that deprived her of freedom
of choice, the Board will take jurisdiction over the matter as a constructive
removal. Brown v. U.S. Postal Service , 115 M.S.P.R. 609, ¶ 9, aff’d , 469 F.
App’x 852 (Fed. Cir. 2011). The appellant alleges that she inv oluntarily resigned
due to the working conditions created by the personnel actions discussed in her
IRA appeals and additional actions unrelated to the IRA appeals. 0340 IAF,
Tab 5. In cases such as this, the Board will look to whether the employer
engaged in actions that made working conditions so difficult o r unpleasant that a
reasonable person in that employee’s position would have felt compelled to
resign. Vitale , 107 M.S.P.R. 501, ¶ 20.
¶63 The administrative judge consi dered this claim and found the appellant
failed to prove that the agency took some of the alleged actions and that when she
did prove that the agency took some of the actions, she ultimately failed to prove
that they created working conditions so difficult or unpleasant that a reasonable
person would have felt compelled to resign. ID at 52-63. On review, the
appellant seems to allege inconsistencies in C.H.’s hearing testimony concerning
the appellant’s performance, but she has not offered any specific argument or
evidence that demonstrates error in the administrative judge’s findings. PFR File,
Tab 3 at 31-32; 5 C.F.R. § 1201.115 (a)(2). We have reviewed the record, and we
have not found any erro r in the administrative judge’s findings.
¶64 Nonetheless, because we have reversed some of the initial decision’s
findings regarding the reprisal claims, and those claims are partially intertwined
with the appellant’s involuntary resignation claim, further consideration of the
latter claim is appropriate. See Diefenderfer v. Department of Transportation ,
108 M.S.P.R. 651, ¶¶ 35-37 (2008). Although the appellant has established for
the purpose of her whistleblower reprisal appeals that she was subjected to a
significant change in duties, responsibilities, and working conditions under
section 2302, such a conclusion does not necessarily fulfill the appellant’s burden
of proving that these conditions were so difficult or unpleasant that she felt
32
compelled to resign. The appellant still must independently prove these factors,
and h er reprisal claims may be addressed only insofar as they relate to the
question of involuntariness. Martinez v. Department of the Interior , 88 M.S.P.R.
169, ¶ 13 (2001).
We find that the appellant has failed to show that her working conditions were so
difficult or unpleasant that a reasonable person in her positi on would have felt
compelled to resign.
¶65 Although we have found that the appellant suffered a significant change in
her duties, responsibilities, and working conditions, the Board has held that the
fact that an employee is faced with an inherently unpleasant situation or that her
choices are limited to unpleasant alternati ves does not make her decision to resign
involuntary. Lawson v. U.S. Postal Service , 68 M.S.P.R. 345, 350 ( 1995) . Here,
the appellant already had begun seeking redress on her retaliation claims and
could have waited for the outcome of her IRA appeals to determine if resignation
was necessary. See Axsom v. Department of Veterans Affairs , 110 M.S.P.R. 605,
¶ 17 (2009). Instead, the appellant opted to resign prior to adjudicati ng her
retaliation claims. Based on the foregoing, we find that the appellant has failed to
prove by preponderant ev idence that her resignation was involuntary.
The administrative judge did not err in reopening the record to accept
supplemental closing arguments but not additional evidence after he requested
that the ag ency submit an unredacted copy of the 15 -6 investigative report.
¶66 After the hearing, the administrative judge ordered the agency to submit an
unredacte d copy of the 15 -6 investigative report. W -2 AF, Tab 39. The agency
submitted it, W -2 AF, Tabs 43-44, and the appellant filed a motion to reopen the
record for the limited purpose of suppl ementing her closing argument, W-2 AF,
Tab 45. The administrative judge reopened the record for the limited purpose
requested by the appellant, W -2 AF, Tab 46, and both parties submitted
supp lemental closing arguments, W -2 AF, Tabs 47-48. On review, the appellant
argues that she should have been permitted to take additional testimony , rather
than simply submitting a supplemental closing argument. PFR File, Tab 3 at 4-5.
33
The appellant’s argument is unpersuasive. The administrative judge reopened the
record for the purpose requested by the appellant herself; if she wished to request
leave to take additional testimony, she could have done so at the time.
Additionally , the appellant was afforded two opportunities to address the
substance of the unredacted report: first, in her motion to reopen the record and ,
second, in her supp lemental closing argument. W -2 AF, Tabs 45, 47.
Accordingly, we find no error in the admi nistrative judge’s conduct.9 See
5 C.F.R. § 1201.41 (b).
In light of the appellant’s voluntary resignation, the Board is limited in the relief
that can be provided relating to the perso nnel actions at issue.
¶67 As set forth above, we find that corrective action is warranted. H owever,
due to the appellant’s voluntary resignation, we find that the Board is limited in
the relief that can be provided relating to any personnel action at issue in the IRA
appeals . The appellant may, nonetheless, be entitled to consequential and/or
compensatory damages.
NOTICE TO THE APPELL ANT REGARDING
YOUR RIGHT TO REQUES T
ATTORNEY FEES AND CO STS
You may be entitled to be paid by the agency for your reasonab le attorney
fees and costs. To be paid, you must meet the requirements set forth at title 5 of
the United States Code (5 U.S.C.), sections 7701(g), 1221(g), or 1214(g). The
regulations may be found at 5 C.F.R. §§ 1201.201 , 1201.202, and 1201.203. If
you believe you meet these requirements, you must file a motion for attorney fees
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.
9 We have reviewed the relevant legislation enacted during the pen dency of this appeal
and have concluded that it does not affect the outcome of the appeal.
34
NOTICE TO THE APPELL ANT REGARDING
YOUR RIGHT TO REQUES T CONSEQUENTIAL AND/ OR
COMPENSATORY DAMAGES
You may be entitled to be paid by the agency for your consequential
damages , including medical costs incurred, travel expenses, and any other
reasonable and foreseeable consequential damages. To be paid, you must meet
the requirements set out at 5 U.S.C. § § 1214 (g) or 12 21(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 compensat ory damages including interest, reasonable
expert witness fees, and costs, 5 U.S.C. § 1214 (g)(2), which you may be entitled
to receive.
If you believe you are entitled to these damages, you must file a motion for
consequential damages and/or compensatory damages WITHIN 60 CALENDAR
DAYS OF THE DATE OF THIS DECISION. You must file your motion with the
office that issued the initial decision on your appeal.
NOTICE TO THE PARTIE S
A copy of the deci sion will be referred to the Special Counsel “to
investigate and take appropriate action under [5 U.S.C.] section 1215,” based on
the determination that “there is reason to believe that a current employee may
have committed a prohibited personnel practice” under 5 U.S.C. § 2302 (b)(8) or
section 2302(b)(9)(A)(i), (B), (C), or (D). 5 U.S.C. § 1221 (f)(3). Please note
that while any Special Co unsel investigation related to this decision is pending,
“no disciplinary action shall be taken against any employee for any alleged
prohibited activity under investigation or for any related activity without the
approval of the Special Counsel.” 5 U.S.C. § 1214 (f).
35
NOTICE OF APPEAL RIG HTS10
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 Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
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 t he notice, the
Board cannot advise which option is most appropriate in any matter.
36
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional 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. ____ , 137 S. Ct. 1975 (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
37
discrimination based on race, color, religion, sex, national origin, or a disabling
condition, you may be entitled to representation by a court -appointed lawyer and
to waiver of any requirement of prepayment of fees, costs, or other security. See
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 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
38
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in
section 2302(b) other than practices described in section 2302(b)(8), or
2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial
review either with the U.S. Court of Appeals for the Federal Circuit or any court
of appeals of competent jurisdiction.11 The court of appeals must receive your
petition for review within 60 days of the date of issuance of this decision.
5 U.S.C. § 7703 (b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D .C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
11 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Fe deral Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510.
39
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the 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 | INGRAM_JONES_TRINITY_LYNN_AT_1221_14_0633_W_2_FINAL_ORDER_2005204.pdf | 2023-02-23 | null | S | NP |
3,487 | https://www.mspb.gov/decisions/nonprecedential/AZAWI_SAMAR_SF_1221_18_0148_W_1_REMAND_ORDER_2005230.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
SAMAR AZAWI,
Appellant,
v.
DEPARTMENT OF VETERA NS
AFFAIRS,
Agency.
DOCKET NUMBER
SF-1221 -18-0148 -W-1
DATE: February 23, 2023
THIS ORDER IS NONPRECEDENTIAL1
Samar Azawi , Newport Beach, California, pro se.
La’Chelle M. Woodert , Esquire, Redlands , California, for the agency.
BEFORE
Cathy A. Harris , Vice Chairman
Raymond A. Limon , Member
Tristan L. Leavitt , 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 as untimely filed with no
basis to equitably toll the deadline . For the reasons discussed below, we GRANT
the appellant’s pe tition for rev iew, REVERSE the initial decision, 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 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
jurisdiction over the IRA appeal, and REMAND the case to the regional office for
further adjudication in accordance with this Remand Order.
BACKGROUND
¶2 The appellant was employed as a GM-15 Physici an Chief, Radiation
Therapy, and is the former Chief of the Radiation Oncology Therapy Section at
the agency’s Long Beach, California facility . Initial Appeal File (IAF), Tab 1
at 8, Tab 12 at 35. Before filing the instant appeal, s he filed a prior appeal
stating that, based upon false accusations : the agency reduced her pay, grade, or
band ; denied her a within -grade increase ; temporarily reassigned her ; placed her
into an absence without leave status ; reprimanded her ; and downgraded her
annual appraisal in retaliation for her reports of patient safety practices, delays in
patient care, clinical and nonclinical staff shortages, inappropriate use of funds,
prohibited personnel practices, harassment, unfair treatment, and hostility , and
her complaints to the Office of Special Counsel ( OSC ), the Office of Inspector
General (OIG) , and the Secretary of the agency (Secretary) . Azawi v. Department
of Veterans Affairs , MSPB Docket No. SF-1221 -16-0543 -W-1, Initial Appeal
File, Tab 1 at 2. On August 12, 2016, the administrative judge dismissed that
appeal for lack of jurisdiction because he found that the appellant failed to
nonfrivolously allege that she made a protected disclosure. Azawi v. Department
of Veterans Affairs , MSPB Docket No. SF-1221 -16-0543 -W-1, Initi al Decision
(Aug. 12, 2016). The Board affirmed the administrative judge’s decision as
modified to find also that the appellant failed to nonfrivolously allege that her
disclosures to OIG , her complaint to OSC , and her report to the Secretary were
contrib uting factors in any personnel action . Azawi v. Department of Veterans
Affairs , MSPB Docket No. SF-1221 -16-0543 -W-1, Final Order ( Feb. 3, 2023 ).
¶3 On March 13, 2017, the Medical Center’s Chief of Staff issued a notice
proposing to remove the appellant and revoke her clinical privileges on the basis
of the following charges: (1) delay ing patient care; (2) failing to provide
3
appropriate medical treatment; (3) entering inaccurate infor mation in a medical
record; (4) documenting in the medic al record that treatment had been completed
when it had not yet started; (5) delay ing documentation; (6) plagiarizing notes in
patient medical records; (7) being unavailable for patient care; and (8) acting in
an unprofessional manner by contributing to a hostile work environment . IAF,
Tab 1 at 8-19. On April 28, 2017 , the Medical Center Director issued a decision
imposing the appellant’s removal, effective May 8, 2017. Id. at 20-22. On
May 4, 2017, the appellant requested to retire on May 7, 2017 , befo re the
effective date of the removal decision . IAF, Tab 12 at 54. She retired effective
May 7, 2017. Id. at 58-59.
¶4 The appellant filed an appeal with the agency’s Disciplinary Appeals Board
(DAB) on May 23, 2017. Id. at 67. The DAB found that the ap pellant did not
demonstrate that her retirement was involuntary , and thus it did not have
jurisdiction over her appeal. Id. at 63-64. The Acting Principal Deputy Under
Secretary for Health executed the recommendation of the DAB .2 Id. at 67-68.
¶5 The appellant filed a complaint with OSC in which she alleged that the
agency threatened to remove her in retaliation for her disclosures and activities,
including disclosures about improper staffing, the improper selection of a
physician, and a possible c ase of inappropriate assigning of fee services to a
friend . IAF, Tab 1 at 32-34. She also asserted that she filed a Board appeal and
equal employment opportunity (EEO) complaints.3 Id. at 32. Further, she argued
2 Effective July 3, 1988, the appellant’s appointment as a physician was converted to an
excepted appointment. IAF, Tab 12 at 70; 38 U.S.C. § 4104 (1) (1988); see Department
of Veterans Affairs Health -Care Personnel Act of 1991 , Pub. L. No. 102-40, § 401,
105 Stat. 187, 238 (striking out 38 U.S.C. § 4104 (1) and inserting 38 U.S.C. § 7401 (1)
in lieu thereof). When, as here, the agency’s action arises out of a question involving
professional conduct or competence, an employee, such as the appellant, does not have
Board appeal rights and instead may file an appeal with the DAB. 38 U.S.C.
§§ 7401 (1), 7425, 7462(a)(1).
3 To the extent that the appellant is asserting retaliation for EEO activity, the Board
lacks IRA jurisdiction over such matters unless the EEO activity sought to remedy
whistleblower reprisal under 5 U.S.C. § 2302 (b)(8). See Bishop v. Department of
4
that her retirement was coerced.4 Id. at 33. OSC issued its proposed
determination on August 1, 2017 , and afforded the appellant 15 days to respond .
Id. at 32-34.
¶6 On August 17, 2017, the appellant informed OSC that she did not receive its
proposed determination letter until August 11, 2017, as the letter had been
addressed to her attorney . Id. at 37. On August 22, 2017, she requested an
opportunity to respond to the preliminary letter, and this request was granted . Id.
Despite the fact that the appellant had been granted an exte nsion, on August 25,
2017, OSC made a final determination to close out the matter. Id. at 36. The
appellant submitted a response on September 5, 2017. Id. at 37. In this response,
she asserted that the agency retaliated against her when it retracted a report of
malpractice and that agency employees wrongly accessed her medical records.
Id. OSC issued its close -out letter on September 29, 2017. Id. at 37-39.
¶7 On October 23, 2017, the appellant emailed OSC, stating that, although she
was informed that OSC letters were sent to her address, she did not see them .
IAF, Tab 8 at 12. In response, on October 24, 2017, OSC emailed the appellant
copies of the aforementio ned letters and informed her that she had 65 days from
the date of its close -out letter to submit a Board appeal. Id. at 8-9.
¶8 The appellant filed the instant appeal on December 17, 2017 , and requested
a hearing. IAF, Tab 1. The administrative judge dismissed the appeal without
holding the appellant’s requested hearing because he found that it was untimely
Agriculture , 2022 MSPB 28 , ¶ 16; Mudd v. Department of Veterans Affairs ,
120 M.S.P.R. 365 , ¶¶ 6-7 (2013 ). There is no evidence or allegation that the appellant’s
EEO activity was intended to remedy whistleblower reprisal under 5 U.S.C.
§ 2302 (b)(8).
4 The appellant also reasserted that the agency removed her from her duties and placed
her under investigation in reprisal for her activities and disclosures. IAF, Tab 1
at 32-33. However, the issue of whether the Board ha s jurisdiction over these
allegations was litigated in the appellant’s prior appeal , and thus it is barred by
collateral estoppel . See McNeil v. Department of Defense , 100 M.S.P.R. 1 46, ¶¶ 15-20
(200 5) (holding that the appellant was collaterally estopped from relitigating
jurisdictional issues tha t were litigated in her earlier appea l).
5
filed and that the a ppellant did not establish that the time limit for filing the
appeal should be tolled . IAF, Tab 18, Initial Decision (ID) at 5-7.
¶9 The appellant has filed a petition for review, and the agency has responded
in opposition to the petition. Petition for Review (PFR) File, Tabs 1, 3.
DISCUSSION OF ARGUME NTS ON REVIEW
The appellant timely filed her appeal.
¶10 The appellant challenges the administrative judge’s finding that her appeal
was untimely because she asserts that she first received notification of OSC’s
September 29, 2017 close -out letter on October 24, 2017. PFR File, Tab 1 at 9.
An appellan t may file an IRA appeal with the Board once OSC closes its
investigation into he r complaint and no more than 60 days have elapsed since
notification of the closure was provided to her. 5 U.S.C. § 1214(a)(3)(A); see
Heimberger v. Department of Commerce , 121 M.S.P.R. 10, ¶ 6 (2014). Under the
Board’ s regulations implementing that statutory time limit, an IRA appeal must
be filed no later than 65 days after the date that OSC issues its close -out letter or,
if the letter is received more than 5 days after its issuance, within 60 days of the
date of receipt. See Hei mberger , 121 M.S.P.R. 10, ¶ 6; 5 C.F.R. § 1209.5 (a)(1).
The appellant bears the burden of proving by preponderant evidence that she
timely filed her appeal.5 Pacilli v. Department of Veterans Affairs , 113 M.S.P.R.
526, ¶ 8, aff’d , 404 F. App’x 466 (Fed. Cir. 2010).
¶11 In the initial decision, t he administrative judge found that t he appellant was
required to file her appeal by December 4, 2017, the first workday after 65 days
elapsed from when OSC issued its September 29, 2017 letter. ID at 5; IAF, Tab 1
at 39; see 5 U.S.C. § 1214 (a)(3) (A); 5 C.F.R. § § 1201.23 , 1209.5(a)(1).
Accordingly , he found that, when s he filed her appeal on December 17, 2017, it
was 13 days late . ID at 6; IAF, Tab 1. Further, he found that, because OSC
5 A preponderance of the evidence is that degree of relevant evidence that a reasonable
person, considering the record as a whole, would accept as sufficient to find that a
contested fact is more likely to be true than untrue. 5 C.F.R. § 1201.4 (q).
6
informed the appellant that her appeal was due 65 days after it issued the
September 29, 2017 close -out letter, she did not allege circumstances warranting
invocation of the doctri ne of equitable tolling. ID at 6-7. We disagre e because
we find that the appellant proved that she filed her appeal within 60 days of when
she was notified that OSC issued its close -out letter .
¶12 When, as here, the appellant asserts that she did not receive OSC’s
close -out letter within 5 days of its issuance, she must file the appeal within
60 days of receiving notification of OSC’s close -out letter , even if she did not
receive this notice via OSC’s close -out letter as sent through regular mail .
5 C.F.R. § 1209.5 (a)(1); see Wals h v. Social Security Administration , 93 M.S.P.R.
617, ¶ 6 (2003) (finding that, assuming the appellant received notification of
OSC’s close -out letter via telephonic contact, such contact could constitute
notification under the Board’s regulations). The appellant responded to the
admini strative judge’s order s regarding jurisdiction and timeliness and asserted
that her appeal was timely filed because she did not originally receive OSC’s
close -out letter . IAF, Tabs 2-3, Tab 8 at 7, 12. In doing so, she indicated on the
online questionnaire that she was asserting facts from her personal knowledge and
declared under penalty of perjury that the facts stated in her pleading were t rue
and correct. IAF, Tab 8 at 3. In her response, the appellant stated that she
contac ted OSC on October 23, 2017, at which point she was told that OSC
already had sent its close -out letter to her. Id. at 7. She further state d that she
first received the close -out letter via email on October 24, 2017, and via regular
mail at a later point . Id.
¶13 A declaration subscribed as true under penalty of perjury, if uncontested,
proves the facts it asserts. Woodall v. Federal Energy Regulatory Commission ,
30 M.S.P.R. 271, 273 (1986). The record does not contain evidence supporting a
finding that the appellant did indeed receive the letter in Septembe r, and the
appellant’s statement that she did not actually receive it is uncontested.
Accordingly, we find that the appellant has proven, through her sworn statement,
7
that she was not notified of the close -out letter until she contacted OSC on
October 23, 2017. See Gonzales v. Department of the Navy , 99 M.S.P.R. 97, ¶ 9
(2005) ( finding that, even if the appellant wa s deemed to have received notice of
OSC’s close -out letter through his representative, based upon the appellant’s
representative’s affidavit, he did not receive the letter until less than 60 days
before filing his appeal ); King v. Department of Health & Human Services ,
71 M.S.P.R. 22, 31 (1996) (finding that the appellant’s statement that she did not
receive OSC’s close -out letter was sufficient to support a finding tha t she did not
receive notice of it).
¶14 Having found t hat the appellant’s sworn statement demonstrates that she
was first notified of OSC’s close -out letter on October 23, 2017, we find that her
appeal was timely filed. Because the appellant was notified of OSC’s close -out
letter more than 5 days after its i ssuance, she was required to submit her appeal
within 60 days of the date of this notice . 5 C.F.R. § 1209.5 (a)(1). She submitted
her appeal 55 days later , on December 17, 2017. IAF, Tab 1. Thus, we find that
it was timely filed after she received notice of OSC’s close -out letter .
The appellant no nfrivolously alleged that she made a protected disclosure that
was a contributing factor in her proposed removal , the decision to remove her,
and her alleged involuntary retirement , thus entitling her to a hearing.
¶15 Because we find that the appeal was timely filed, we must consider whether
the appellant has established jurisdiction over her appeal. The appellant may
establish jurisd iction over this IRA appeal if s he demonstrates by preponderant
evidence that she exhausted her administrative remedy before OSC6 and makes
nonfrivolous allegations7 of the following: (1) she made a protected
whistleblowing disclosure under 5 U.S.C. § 2302 (b)(8) or engaged in protected
6 It is undisputed that the appellant exhausted her administrative remedy. IAF, Tab 1
at 32-40.
7 A nonfrivolous allegation is an assertion that, if proven, could establish the matter at
issue. 5 C.F.R. § 1201.4 (s); see Hessami v. Merit Systems Protection Board , 979 F.3d
1362 , 1364, 1369 (Fed. Cir. 2020).
8
whistleblowing activity under 5 U.S.C. §2302 (b)(9)(A)(i), (B), (C), or (D) ; and
(2) the disc losure or activity was a contributing factor in the agency’s decision to
take or fail to take , or threaten to take or fail to take, a personnel action. 5 U.S.C.
§§ 1214 (a)(3), 1221(e)(1); Chambers v. Department of Homeland Security ,
2022 MSPB 8, ¶ 14; Lewis v. Department of Defense , 123 M.S.P.R. 255, ¶ 7
(2016); Salerno v. Department of the Interior , 123 M.S.P.R. 230, ¶ 5 (2016) ;
5 C.F.R. § 1201.57 (a)(1), (b), (c)(1) ; see Hessami v. Merit Systems Protection
Board , 979 F.3d 1362 , 1367 (Fed. Cir. 2020) .8 If an appellant e stablishes
jurisdiction over her IRA appeal, s he is entitled t o a hearing on the merits of her
claim, which s he must prove by preponderant evidence. Salerno , 123 M.S.P.R.
230, ¶ 5; 5 C.F.R. § 1201.57 (c)(4) . An appellant is entitled to this hearing if she
makes a nonfrivolous allegation that at least one protected disclosure was a
contributing factor in the agency’s deci sion to take, or fail to take, or threa ten to
take or fail to take, at least one personnel action . See Fitzgerald v. Department of
Agriculture , 97 M.S.P.R. 181, ¶ 10 (2004).
¶16 For the reasons that follow, we find that the appellant has nonfrivolously
alleged that she has made at least one protected disclosure that was a contributing
factor to at least one covered personnel action. Accordingly, we find that she has
established jurisdiction over this IRA appeal and is entitled to a hearing on the
merits.9 See id.
8 Historically, the Board has been bound by the precedent of the U.S. Court of Appeals
for the Federal Circuit on these types of whistleblower issues. However, pursuant to
the All Circuit Review Act, Pub. L. No. 115-195, 132 Stat. 1510 , appellants may file
petitions for judicial review of Board decisions in whistleblower reprisal cases with any
circuit court of appeals of competent jurisdiction. See 5 U.S.C. § 7703 (b)(1)(B) .
Therefore, we must consider these issues with the view that the appellant may seek
review of this decision before any appropriate court of appeal.
9 Because the appellant need only nonfrivolously allege that she made at least one
protected disclosure that was a contributing factor to the agency’s decision to take at
least one personnel action to establish jurisdiction and entitlement to a hearing, we do
not here address the appellant’s other alleged protected disclosures and activity. On
9
The appellant nonfrivolously alleged that she made a protected disclosure
that employees improperly accessed her medical records .
¶17 A protected whistleblowing disclosure is a disclosure of information that
the appellant reasonably believes evidences any violation of any law, rule, or
regulation, gross mismanagement, a gross waste of funds, an abuse of authority,
or a substantial and spec ific danger to public health or safety. 5 U.S.C.
§ 2302 (b)(8); Bradley v. Department of Homeland Security , 123 M.S.P.R. 547,
¶ 7 (2016). 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 k nown to and readily ascertainable
by the employee could reasonably conclude that the disclosure evidenced one of
the circumstances described in 5 U.S.C. § 2302 (b)(8). Bradley , 123 M.S.P.R.
547, ¶ 7.
¶18 On January 11, 2017, the appellant asserted that her medical records were
inappropriately accessed by othe r agency employees. IAF, Tab 9 at 8 , 34. On
March 1, 2017, the Medical Center Director issued a letter stating that the Privacy
Officer conducted an investigation and concluded that the appellant’s medical
records were accessed inappropriately, notifying her of the steps she could take to
protect her identity, and apologizing for the inconvenience. Id. at 8 -9. On
appeal, she states that the inappropriate access constituted an act of retaliation by
agency administrators. Id. at 33 -34. Particularly cons idering that the agency’s
Privacy Officer found that employees improperly accessed the appellant’s
information, we find that the appellant, who is not an expert in privacy law, has
made a nonfrivolous allegation that the agency violated her rights under relevant
privacy laws, rules, and regulations. See Mudd v. Department of Veterans
Affairs , 120 M.S.P.R. 365, ¶ 9 (2013) (finding that the appellant nonfrivolously
alleged that she made a protected disclosure that the agency violated various
remand, the a dministrative judge shall address the other alleged protected disclosures
and activity raised by the appellant before OSC and below.
10
laws, rules, and regulations governing scheduling practices , particularly when the
agency appear ed to have granted the appellant some relief in connection with her
grievance regarding these practices ).
The appellant nonfrivolously alleged that her disclosure was a contributing
factor in the agency’s decision to propose her removal and issue a removal
decision , as wel l as in her alleged involuntary retirement .
¶19 An appellant may meet her jurisdictional burden regarding the contributing
factor element if she nonfrivolously alleges that the official who took or
threatened the personnel action at issue knew of the protected whistleblowing
disclosures or activity and that the personnel action occurred within a period of
time such that a reasonable person could conclude that the disclosures or activity
were a contributing factor in the personnel action. Carney v. Department of
Veterans Affairs , 121 M.S.P.R. 446, ¶ 7 (2014). The Board has found that
personnel actions alleged to have begun within 1 to 2 years of the appellant’s
protected whistleblowing disclosures or activity satisfied th e timing prong of this
knowledge/ timing test. See, e.g. , Mastrullo v. Department of Labor ,
123 M.S.P.R. 110, ¶¶ 20-22 (2015) (finding that the appellant proved that his
August 2010 disclosures were a contributing factor in the agency’s failure to give
him a 40 -hour time -off award in June 2012).
¶20 We find t hat the appellant has nonfrivolously alleged that her disclosure
was a contributing factor in the agency’s decision to propose her removal and
issue a removal decision , as well as in her alleged involuntary retirement. She
asserted that the agency issued a removal decision and that her retirement after
the decision was involuntary. IAF, Tab 1 at 3, 5. The agency’s proposal and
issuance of the removal decision consti tute personnel actions because an
employee may pursue an appeal regarding a personnel acti on, such as a removal,
even if the action was only proposed. 5 U.S.C. §§ 1221 (a), 2302(a)(2)(A); see
Hooker v. Department of Veterans Affairs , 120 M.S.P.R. 629, ¶ 9 (2014).
Further, the Board has held that an employee can pursue a claim of an involuntary
11
retirement or resig nation as a personnel action in an IRA appeal. See Mastrullo ,
123 M.S.P.R. 110, ¶ 10. We also find that the appellant has me t her burden
regarding knowledge of her disclosure because, in his role as the Medical Center
Director, the deciding official issued a letter in response to the disclosure . IAF,
Tab 9 at 8 -9.
¶21 Last, we find that the appellant has met her burden regarding the timing
prong of the knowledge/timing test. The appellant made her disclosure on
January 11, 2017. Id. at 8. The agency proposed her removal on March 13, 2017,
and issued its removal decision on April 28, 2017. IAF, Tab 1 at 8-22. The
appellant re tired effective May 7, 2017. IAF, Tab 12 at 54. Because all of these
actions occurred less than 4 months after the appellant’s disclosure, we find that
she has nonfrivolously alleged that it was a contributing factor in the personnel
actions at issue. See Linder v. Department of Justice , 122 M.S.P.R. 14, ¶ 17
(2014) (finding that the appellant nonfrivolously alleged that his disc losure was a
contributing factor in his reassignment when he asserted that the officials
reassigning him were notified of his disclosure when a judge’s decision
mentioning the disclosure was published and that the reassignment was ordered
within 4 months o f the judge’s de cision ).
¶22 As we conclude that the appellant has made a nonfrivolous allegation that
she made at least one protected whistleblowing disclosure that was a contributing
factor in the agency’s decision to propose her removal and issue a removal
decision , as well as in her alleged involuntary retirement, the Board has
jurisdiction over this appeal , and the appellant is entitled to a hearing on the
merits.10 See Salerno , 123 M.S.P.R. 230, ¶ 14.
10 We have reviewed the relevant legislation enacted during the pendency of this appeal
and have concluded that it doe s not affect the outcome of the appeal .
12
ORDER
¶23 For the reasons discussed ab ove, we remand this case to the regional office
for further adjudication in accordance with this Remand Order.
FOR THE BOARD:
Washington, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board | AZAWI_SAMAR_SF_1221_18_0148_W_1_REMAND_ORDER_2005230.pdf | 2023-02-23 | null | SF-1221 | NP |
3,488 | https://www.mspb.gov/decisions/nonprecedential/MARTINEZ_ALICE_SF_0353_17_0490_I_1_FINAL_ORDER_2005268.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
ALICE MARTINEZ,
Appellant,
v.
UNITED STATES POSTAL SERVICE,
Agency.
DOCKET NUMBER
SF-0353 -17-0490 -I-1
DATE: February 23, 2023
THIS ORDER IS NONPRECEDENTIAL1
Stephen Millard , Covina, California, for the appellant.
Tanisha J. Locke , Esquire, Long Beach, California, for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond. A Limon , Member
Tristan L. Leavitt , Member
REMAND ORDE R
¶1 The appellant has filed a petition for review of the initial decision, which
dismissed her restoration appeal for lack of jurisdiction. For the reasons
discussed below, we GRANT the appellant’s petition for review , VACATE the
initial decision, FIND that the appellant has shown by preponderant evidence 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 agency arbitrarily and capriciously denied her restoration , ORDER the agency
to conduct a proper job search, and REMAND the case to the Western R egional
Office for further adjudication in accordance with this Order.
BACKGROUND
¶2 The appellant is a Lead Sales and Services Associate (LSSA) at the
Glendora Post Office (Glendora) in Glendora, California. Initial Appeal File
(IAF), Tab 7 at 34. On September 1, 2015, she sustained a compe nsable i njury to
her left shoulder. IAF, Tab 15 at 5. On September 8, 2015, the appellant’s
physician completed a CA-Form 17, Duty Status Report (DSR) , which permitted
the appellant to work wi th the following restrictions: no reaching above her
shoulder ; no pushing or pulling ; and no lifting of more than 10 pounds. IAF,
Tab 16 at 5. The appellant returned to duty , and the Lead Officer in Charge
(LOIC) assigned her work that was available within her restrictions .2 IAF,
Tab 26, Hearing Compact Disc (HCD) (te stimony of the LO IC). The appellant
worked under these restrictions until February 2016, when she underwent
shoulder surgery . IAF, Tab 13 at 8, Tab 16 at 6 -9.
¶3 Following the appellant’s surgery, her physician issued DSRs in March,
May, and June of 2016, which assessed the appellant as temporarily totally
disabled and unable to work . IAF, Tab 17, at 5-7. In an August 1, 201 6 DSR , the
appellant’s physician cleared her to return to work on September 6, 2016, with
the follow ing restrictions : intermittent lifting of up to 5 pounds ; and no reaching
above her shoulder. Id. at 9. The appellant’s supervisor forwarded the DSR to
the agency’s injury compensation de partment, which was responsible for
conducting a search for available work within the appellant’s restrictions and
providing the supervisor instruction s concerning the appellant’s return to duty .
2 The LO IC handled the matter because both the appellant’s first -level supervisor (a
customer service supervisor) and her second -level supervisor ( Glendora’s Postmaster)
were on detail to another post office in Septem ber 2015. IAF, Tab 7 at 21, 31.
3
HCD (testimon y of the appellant’s supervisor and the P ostmaster) . The
appellant’s supervisor did not receive a ny respo nse from the injury compensation
department . Id. (testimony of the appellant’s supervisor) .
¶4 On September 13, 2016, the appellant submitted a nother DSR from her
physician , which clear ed her to return to work with the following restrictions:
intermittent lifting of 5 -10 pounds; other physical activities as required; and 0 -
1hours of reaching above the shoulder. IAF, Tab 18 at 5 . The appellant’s
supervisor reviewed the restrictions in the September 13, 2016 DSR and
concluded as follows: (1) the appellant could not perform the duties of her
position due to the limitations on reaching above her shoulder ; and (2) there were
no other position s available at Glendora for people who could not reach above
their shoulder s. HCD (testimony of the appellant’s supervi sor). Accordingly, the
appellant’s supervisor noted on the DSR that, based on the appellant’s
restrictions, there was no work available . IAF, Tab 18 at 6. The supervisor also
forwarded the DSR to the injury compensation department but again received no
response. HCD (testimony of the appellant’s supervisor).
¶5 In early November 2016 , the appellant contacted he r supervisor
complaining that she had not been b rought back to work. HCD (testimony of the
appellant’s supervisor). During this conversation, the appellant informed her
supervisor that the restrictions set forth in the September 13, 2016 DSR were
virtually the same restrictions she had when she returned to work shortly after her
injury in September 2015 . Id.
¶6 The appellant’s supervisor provided th is information to the P ostmaster, who
telephoned the injury compensation department, which still had not responded to
the DSRs that the supervisor had submitted. Id. The injury compensation
department instructed the Postmaster to offer the appellant a position as a lobby
director . Id.
¶7 On November 15, 2016, w hile the agency was in the process of returning
the appellant to work in accordance with the September 13, 2016 DSR , the
4
appellant submitted a nother DSR from her physician th at cleared he r to return to
work and indicated that she had a lifting capacity of 20 pounds and could reach
above her shoulder s 4-6 hours a day. HCD (testimony of the appellant’s
supervisor) ; IAF, Tab 18 at 7. The following day, t he agency contacted the
appellant to return to duty , and s he re turned to her LSSA position on
November 17, 2016. HCD (testimony of the P ostmaster ).
¶8 On January 24, 2017 , the appellant filed an equal employment opportunity
complaint alleging th at th e agency had discriminated again st her based on her
disabilit y by failing to provide her an accommodation. IAF, Tab 7 at 14 . On
May 15, 2017, the agency notified the appellant of her Board appeal rights. Id.
at 13.
¶9 On June 8, 2017, t he appellant filed this restoration appeal with the Board
and requested a hearing. IAF, Tab 1. The appellant alleg ed that the agency ’s
failure to restore her to duty from September 13 to November 16, 2016 , was
arbitrary and capricious. IAF, Tab 5 at 6. In particular, s he claimed that the
agency did not conduct a job search for work within her medical restrictions
during the period in which she was denied work and, therefore, failed to fulfill its
obligations under 5 C.F.R. § 353.301 (d). IAF, Tab 5 at 6 , Tab 14 at 5. The
appellant also raised a claim of disability discrimination based on a failure to
accommodat e. IAF, Tab 1 at 4, Tab 1 4 at 5.
¶10 After conducting a jurisdictional hearing, the administrative judge issued an
initial decisio n that dismiss ed the appeal for lack of jurisdiction based on her
finding that the appellant failed to prove by preponderant evidence that she had
recovered sufficiently to return to duty prior to November 15, 2016, or,
alternatively, that she failed to pr ove that the denial of her request for restoration
was arbitrary and capricious. IAF, Tab 27, Initial Decision (ID) at 11-14. The
administrative judge also found that, because the Board has no jurisdiction over
the appellant’s alleged denial of restoration, the Board could not consider her
disability discrimination claim. ID at 14.
5
¶11 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 erred in dismissing this appeal for lack of jurisdiction.
¶12 The Federal Employees’ Compensation Act and the implementing
regulations of the Office of Personnel Management (OPM) at 5 C.F.R. part 353
provide, inter alia, th at Federal employees who suffer compensable injuries enjoy
certain rights to be restored to their previous or comparable positions. 5 U.S.C.
§ 8151 (b); Kingsley v. U.S. Postal Service , 123 M.S.P.R. 365 , ¶ 9 (2016) ;
5 C.F.R. § 353.301 . Under OPM’s regulat ions, such employees have different
substantive rights based on whether they have fully recovered, partially
recovered, or are physically disqualified from their former or equivalent
positions. 5 C.F.R. § 353.301 . Partially recovered employees are those who
“though not ready to resume the full range” of duties, have “recovered
sufficiently to return to part -time or light duty o r to another position with less
demanding physical requirements.”3 5 C.F.R. § 353.102 .
¶13 OPM’s regulations require that agencies “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 to return
to limited duty.” 5 C.F.R. § 353.301 (d). The B oard has interpreted this
regulation as requiring agencies to search within the local commuting area for
vacant positions to which an agency can restore a partially recovered employee
and to consider her for any such vacancies. See Boutin v. U.S. Postal S ervice ,
3 It is undisputed that the regulations governing the restoration rights of partially
recovered employees apply here . See ID at 8 -9, n.3 ( explaining the di stinction between
partially recovered and permanently disqualified employees and observing that , when
more than 1 year has passed since the employee’s eligibility for compensation began , a
physically disqualified employee has the restoration rights of a partially recovered
employee ); 5 C.F.R. § § 353. 102, .301(c) .
6
115 M.S.P.R. 241 , ¶ 11 (2010). The Board also has upheld the agency’s
definition of the local commuting area as being the 50-mile radius surrounding
the employee’s duty station. Id., ¶ 16.
¶14 The Board has jurisdiction to review whether an agency’s denial of
restoration to a partially recovered employee was arbitrary and capricious.
Bledsoe v. Merit Systems Protection Board , 659 F.3d 1097 , 1103 -04 (Fed. Cir.
2011) , superseded in part by regulation on other grounds as stated in Kingsley ,
123 M.S.P.R. 365, ¶ 10; 5 C.F.R. § 353.304 (c). Previously, a n appellant alleging
a denial of restoration was required to prove Board jurisdiction by preponderant
evidence. Bledsoe , 659 F.3d at 1102, 1103 -04 (citing Garcia v. Department of
Homeland Security , 437 F.3d 1322 , 1330, 1335 -37, 1340, 1344 (Fed. Cir. 2006)
(en banc)); Latham v. U.S. Postal Service , 117 M.S.P.R. 400 , ¶ 10 (2012).
However, the Board issued a regulation effective March 30, 2015, that adopted a
nonfrivolous allegation standard for restoration appeals. 80 Fed. Reg. 4,489,
4,496 (Jan. 28, 2015) (codified in pertin ent part at 5 C.F.R. § 1207.57 (a)(4), (b));
79 Fed. Reg. 18,658, 18,659 -61 (Apr. 3, 2014) .
¶15 Thus, to establish jurisdiction over a claim of denial of restoration as a
partially recovered employee for any appeal filed on or after March 30, 2015, an
appellant is required to make nonfrivolous4 allegations of the following: (1) she
was absent from her position due to a compensable injury; (2) she recovered
sufficiently to return to duty on a part -time basis , or to return to work in a
position with less demanding physical requirements than those previously
required of her; (3) the agency denied her request for restoration; and (4) the
denial was arbitrary and capricious . See Kingsley , 123 M.S.P.R. 365, ¶ 11;
5 C.F.R. § 1201.57 (a)(4) , (b). Once the appellant establishes jurisdiction, she is
entitled to a hearing at which she must prove the merits of her restoration appeal ,
4 A nonfrivolous allegation is an assertion that, if proven, could establish the matter at
issue. 5 C.F.R. § 1201.4 (s).
7
i.e., all four of the above elements, by a preponderance of the evidence.5
Kingsley , 123 M.S.P.R. 365 , ¶¶ 11-12; Carlos v. U.S. Postal Service ,
114 M.S.P.R. 553, ¶ 7 (2010); 5 C.F.R. § 1207.57 (c)(4).
¶16 Because the appellant filed her Board appeal after March 30, 2015, she only
was required to make nonfrivolous allegations of jurisdiction to obtain a hearing
on the merits. 5 C.F.R. § 1201.57 (a)(4), (b) . The record reflects that, although
the administrative judge found that the appellant made nonfrivolous allegations of
jurisdiction, ID at 10 (citing IAF, Tab 8), she applied the former preponderant
evidence standard to determine whether the Boar d had jurisdiction over the
appellant’s restoration appeal and dismissed the appeal for lack of jurisdiction
based on her finding that the appellant failed to meet th at burden . ID at 9-14. It
was error for the administrative judge to dismiss the appeal on this basis , and we
find it necessary to vacate the initial decision. However, because the
administrative judge found that the appellant made nonfrivolous allegations of
Board jurisdiction6 and held a hearing, the record is suffic iently developed for us
5 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).
6 Based on our review of the record, we agree with the administrative judge that the
appellant made nonfrivolous allegations of jurisdiction over her restoration appeal. In
evaluating whether the appellan t met her jurisdictional burden, we have considered that,
while this appeal was pending on review, the Board issued a decision clarifying the
jurisdictional standard in partial restoration appeals. Cronin v. U.S. Postal Service ,
2022 MSPB 13. In Cronin , the Board found that a denial of restoration is arbitrary and
capricious if —and only if —the agency failed to meet its ob ligations under 5 C.F.R.
§ 353.301 (d). Cronin , 2022 MSPB 13, ¶ 20. The Board explicitly overruled Latham
and its progeny to the extent such precedent held that a denial of restoration may be
arbitrary and capricious based on an agency’s failure to comply with its self -imposed
restoration obligations, such as th ose provided in the agency’s Employee and Labor
Relations Manual. Id. Accord ingly, to establish jurisdiction under the fourth element
of her restoration claim, an appellant must make a nonfrivolous allegation that the
agency failed to comply with the min imum requirement of 5 C.F.R. § 353.301 (d).
Because the appellant in this appeal did not challenge the agency’s denial of her
restoration on the basis of any agency -specific rules, the Bo ard’s decision in Cronin
does not change the result here.
8
to decide the restoration appeal on the merits in accordance with 5 C.F.R.
§ 1201.57 .
The appellant proved the elements of her restoration claim by preponderant
evidence.
¶17 It is undisputed that the appellant was absent from her position due to a
compensable injury. IAF, Tab 13 at 5. Therefore, the appellant proved the first
element of her restoration claim by preponderant evidence .
¶18 Turning to the second element of her restoration claim, a s previously noted,
the September 13, 2016 DSR completed by the appellant’s physician stated that
the appellant could return to work immediately, but with certain medical
restrictions. IAF, Tab 18 at 5. Therefore, the record shows that, at the time of
her restoration request on September 13, 2016, the appellant had 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
require d of her . See Kingsley , 123 M.S.P.R. 365, ¶ 11. Accordingly, w e find that
she has demonstrated by preponderant evidence that s he satisfies the second
element of her restoration claim.
¶19 As for the third element of the appellant ’s restoration claim, i t is undisputed
that, when the appellant submitted the September 13, 2016 DSR indicating that
she was able to work with restrictions, her supervisor told the appellant that t here
was no work available at Glendora within her restrictions. IAF, Tab 18 at 6.
Thus, we find that the appellant proved by preponderant evidence that the agency
denied her request for restoration.
¶20 Regarding the fourth element of the appellant’s restoration claim, an
appellant can demonstrate that an agency’s denial of restoration was arbitrary and
capricious if the record establishes that the agency did not examine the entire
local commuting area to determin e whether there was available work within the
appellant’s medical restrictions, as required under 5 C.F.R. § 353.301 (d). Scott v.
U.S. Postal Service , 118 M.S.P.R. 375 , ¶ 12 (2012). Here, there is no evidence
9
that the agency complied with the requirements of 5 C.F.R. § 353.301 (d). Thus,
because the record supports the ap pellant’s unrebutted allegation that the agency
did not search within the local commuting area for vacant positions to which the
appellant could be assigned, we find that she has demo nstrated by preponderant
evidence that the agency’s denial of restoration from September 13 to
November 16, 2016, w as arbitrary and capricious. See Cronin v. U.S. Postal
Service , 2022 MSPB 13 , ¶ 21 (stating that when an agency fails to make the effort
required under section 353.301(d) , the resulting denial of restoration is
necessarily arbitrary and capricious, and no further analysis is required).
¶21 In a case like this one, in which the denial of restoration was arbitrary and
capricious for lack of a proper job search, the Board has f ound that the
appropriate remedy is for “the agency to conduct an appropriate search within the
local commuting area retroactive to . . . the date of the appellant’s request for
restoration, and to consider her for any suitable vacancies.” Sapp v. U.S. Po stal
Service , 82 M.S.P.R. 411, ¶ 21 (1999). The remedy of a retroactive job search
will be sufficient to correct the wrongful action an d substitute it with a correct
one based on an appropriate search. Corum v. U.S. Postal Service , 118 M.S.P.R.
288, ¶ 21 (2012). It will not, however, put the appellant in a better position than
she was in before the wrongful action because it leaves open the possibility that
the agency might still be unable to find an appropriate assignment available as of
September 13, 2016. Id. The appellant may be entitled to back pay only if the
agency’s retroactive job search uncovers available work to which it could have
restored her. Id.
The appellant’s disability discrimination claim must be remanded for further
adjudication.
¶22 As previousl y noted, t he administrative judge did not address the merits of
the appellant’s disability discrimination claim because she found that the Board
did not have jurisdiction over the restoration appeal. ID at 14. Having concluded
that the Board does have jurisdiction over the appellant’s restoration appeal, the
10
Board also must adjudicate the discrimination claim . See Desjardin v. U.S.
Postal Service , 2023 MSPB 6, ¶ 21 (holding that the Board should adjudicate
discrimination claims in connection with denials of restoration over which it has
jurisdiction ). Because resolving this claim could require credibility
determinations , and the administrative judge is in the best position to make such
determinations, we REMAND the appeal to the regional office for adjudication of
the appellant ’s disability discrimination claim.
ORDER
¶23 For the reasons discussed above, we REMAND this appeal to the Western
Regional Office for further consideration of the appellant’s disability
discrimination claim and issuance of a new initial decision that addresses this
claim. The administrative judge shall exercise discretion in determining how to
proceed, including dismissing the disability discrimination claim without
prejudice until the agency completes the search we order below and/or any other
action committed to the administrative judge’s discretion by the Board’s
regulations that the administrative judge finds appropriate under the unique
circumstances of this case.
¶24 In addition, we O RDER the agency to con duct a proper job search
retroactive to September 13, 2016, and to consider the appellant for any suitable
positions available during that time period consistent with its restoration
obligations under 5 C.F.R. § 353.301(d) . The agency must complete this action
no later than 30 days after the date of this decision.
¶25 In the event the agency’s restorative job search uncovers an available
position , including her current position, to which it c ould have restored the
appellant, we 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, no later than 60 calendar days a fter the date of t his decision.
We ORDER the appellant to cooper ate in good faith in the agency’ s efforts to
11
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 a fter the date of this decision.
¶26 We further ORDER the agency to tell the appellant promptly in writing
when it believes it has fully carried out the Board’s Order and to describe the
actions it took to carry out the Board’s Order. The appellant, if not notified,
should ask the agency about its progress. See 5 C.F.R. § 1201.181 (b).
¶27 No later than 30 days after the agency tells the appellant that it has fully
carried out the Board’s Order, the appellant may file a petition for enforcement
with the office that issued the initial decision in this appeal if the appellant
believes that the ag ency 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 ag ency. 5 C.F.R. § 1201.182 (a).
¶28 For agencies whose payroll is administered by either the National Finance
Center of the Department of Agriculture (NFC) or the Defense Finance and
Accounti ng Service (DFAS), two lists of the information and documentation
necessary to process payments and adjustments resulting from a Board decision
are attached. The agency is ORDERED to timely provide DFAS or NFC with all
documentation necessary to process p ayments and adjustments resulting from the
12
Board’s decision in accordance with the attached lists so that payment can be
made within the 60 -day period set forth above.
FOR THE BOARD:
Washington, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board
DEFENSE FINANCE AND ACCOUNTING SERVICE
Civilian Pay Operations
DFAS BACK PAY CHECKLIST
The following documentation is required by DFAS Civilian Pay to compute and pay back pay
pursuant to 5 CFR § 550.805. Human resources/local payroll offices should use the following
checklist to ensure a request for payment of back pay is complete. Missin g documentation may
substantially delay the processing of a back pay award. More information may be found at:
https://wss.apan.org/public/DFASPayroll/Back%20 Pay%20Process/Forms/AllItems.aspx .
NOTE: Attorneys’ fees or other non -wage payments (such as damages) are paid by
vendor pay, not DFAS Civilian Pay.
☐ 1) Submit a “SETTLEMENT INQUIRY - Submission” Remedy Ticket. Please identify the
specific dates of the back pay period within the ticket comments.
Attach the following documentation to the Remedy Ticket, or provide a statement in the ticket
comments as to why the documentation is not applicable:
☐ 2) Settlement agreement, administrative determinatio n, arbitrator award, or order.
☐ 3) Signed and completed “Employee Statement Relative to Back Pay”.
☐ 4) All required SF50s (new, corrected, or canceled). ***Do not process online SF50s
until notified to do so by DFAS Civilian Pay.***
☐ 5) Certified timecards/corrected timecards. ***Do not process online timecards until
notified to do so by DFAS Civilian Pay.***
☐ 6) All relevant benefit election forms (e.g. TSP, FEHB, etc.).
☐ 7) Outside earnings documentation. Include record of all amounts ea rned 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’ compen sation,
CSRS/FERS retirement annuity payments, refunds of CSRS/FERS employee premiums,
or severance pay received by the employee upon separation.
Lump Sum Leave Payment Debts: When a separation is later reversed, there is no authority
under 5 U.S.C. § 5551 for the reinstated employee to keep the lump sum annual leave payment
they may have received. The payroll office must collect the debt from the back pay award. The
annual leave will be restored to the employee. Annual leave that exceeds the annual leav e
ceiling will be restored to a separate leave account pursuant to 5 CFR § 550.805(g).
NATIONAL FINANCE CEN TER CHECKLIST FOR BA CK PAY CASES
Below is the information/documentation required by National Finance Center to process
payments/adjustments agree d on in Back Pay Cases (settlements, restorations) or as ordered by the Merit
Systems Protection Board, EEOC, and courts .
1. Initiate and submit AD -343 (Payroll/Action Request) with clear and concise information describing
what to do in accordance with decision.
2. The following information must be included on AD -343 for Restoration:
a. Employee name and social security number.
b. Detailed explanation of request.
c. Valid agency accounting.
d. Authorized signature (Table 63).
e. If interest is to be included.
f. Check mailing address.
g. Indicate if case is prior to conversion. Computations must be attached.
h. Indicate the amount of 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. | MARTINEZ_ALICE_SF_0353_17_0490_I_1_FINAL_ORDER_2005268.pdf | 2023-02-23 | null | SF-0353 | NP |
3,489 | https://www.mspb.gov/decisions/nonprecedential/HOFFMAN_LORI_SF_1221_17_0331_W_1_REMAND_ORDER_2005377.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
LORI HOFFMAN,
Appellant,
v.
DEPARTMENT OF THE AR MY,
Agency.
DOCKET NUMBER
SF-1221 -17-0331 -W-1
DATE: February 23, 2023
THIS ORDER IS NONPRECEDENTIAL1
Lori Hoffman , Pinehurst, North Carolina, pro se.
James L. Paul , Schofield Barracks, Hawaii, for the agency.
Winston D.M. Ling , Esquire, Fort Shafter, Hawaii, for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
Tristan L. Leavitt, 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
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
require d to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c).
2
petition for review, VACATE the initial decision, and REMAND th e case to the
regional office for further adjudication in accordance with this Remand Order.
BACKGROUND
¶2 The appellant has alleged the following. She previously served as a civilian
employee at the agency’s Fort Shafter, Hawaii base. Initial Appeal File (IAF),
Tab 1 at 1. In January 2015, she decided to move her family from Hawaii to the
continental United States for financial reasons, and she discus sed her intent with
her first - and second -level supervisors. IAF, Tab 8 at 4. In June 2015, after
being unable to find a suitable Federal Government position that paid relocation
expenses, she accepted a private -sector position with a defense contractor in
North Carolina with a start date of July 13, 2015. Id.; IAF, Tab 14 at 6 -7. On or
about July 1, 2015, her second -level supervisor denied her request to be placed
in leave without pay (LWOP) status for 1 year while she simultaneously worked
for the def ense contractor. IAF, Tab 1 at 8 -10. She resigned from her Federal
position effective July 11, 2015, citing concerns that she would be considered
absent without leave thereafter given the denial of her LWOP request. Id. at 7-8.
¶3 On May 20, 2016 , the appe llant filed a complaint with the Office of Special
Counsel (OSC). Id. at 11 -12. By letter dated February 28, 2017, OSC informed
the appellant that it was closing its file regarding her complaint and that she may
have a right to seek corrective active fro m the Board. Id. at 13. OSC
summarized the appellant’s complaint as follows: her LWOP request was denied
(forcing her to resign) as reprisal for disclosures that she made in September
2013 during an internal investigation and for disclosures that she ma de to the
Office of Inspector General (OIG) on June 2, 2015. Id.
¶4 The appellant filed this IRA appeal and requested a hearing. Id. at 2 -5. The
administrative judge notified the appellant of what she must do to establish that
her appeal was within the B oard’s jurisdiction and ordered her to file a
statement, accompanied by evidence , on the jurisdictional elements of an IRA
3
appeal . IAF, Tab 3. In response, she submitted a pleading identifying the
matters explicitly mentioned in OSC’s close -out letter as well as additional
alleged OIG activity on May 7, 2015, and an additional allegedly retaliatory
agency action regarding interference with her defense cont ractor position.
IAF, Tab 5 at 4-6. Following a conference with the parties, the administrative
judge docketed the appellant’s involuntary resignation claim as a separate appeal
in Hoffman v. Department of the Army , MSPB Docket No.
SF-0752 -17-0432 -I-1.2 IAF, Tab 16.
¶5 Without holding the requested hearing, the administrative judge issued
an initial decis ion dismissing th e IRA appeal for lack of jurisdiction.
IAF, Tab 18, Initial Decision (ID) at 1, 15. The administrative judge found that
the appellant had exhausted her administrative remedies with OSC regarding her
September 2013 disclosure and June 2, 2015 activity , but that she did no t exhaust
her alleged May 7, 2015 disclosure to OIG or her allegation that the agency
subjected her to a personnel action when it allegedly contacted her private -sector
employer. ID at 6-7. The administrative judge found that the appellant made a
nonfrivolous allegation that she made one protected disclosure under 5 U.S.C.
§ 2302 (b)(8) concerning a potential violation of age ncy policy against d ishonest
and fraudulent conduct to an agency investigator in September 2013 and engaged
in protected activity under 5 U.S.C. § 2302 (b)(9)(C) when she filed a complaint
with the OIG in June 2015. ID at 11 -12. The administrative judge found,
2 Although an appellant may pursue an involuntary resignation claim as a personnel
action in an IRA appeal, we find that the appellant has not been prejudiced by the
separate docketing of this claim. See Colbert v. Department of Veterans Affairs ,
121 M.S.P.R. 677 , ¶ 12 & n.5 (2014) (overruling Covarrubias v. Social Securit y
Administration , 113 M.S.P.R. 583 , ¶ 9 n.2 (2010 )). In either case, one aspect of the
appellant’s jurisdictional burden would be to make at least a nonfrivolous allegation
that her resignation was tantamount to a constructive removal. IAF, Tab 7 at 2; see
Mintzmyer v. Department of the Interior , 84 F.3d 419 , 423 (Fed. Cir. 1996) ; Comito v.
Department of the Army , 90 M.S.P.R. 58 , ¶ 13 (2001) . As explained in our separate
Final Order resolving the constructive removal appeal, we affirm the administrative
judge’s determination that the appellant failed to make such an allegation.
4
however, that the appellant failed to nonfrivolously allege that the protected
disclosure or activity was a contributing factor in the agency’s denial of her
LWOP request. ID at 12 -15.
¶6 The appellant has filed a petition for review and the agency has filed a
response . Petition for Review (PFR) File, Tab s 1, 3. For the reasons set forth
herein, we find that the appellant established jurisdiction over her IRA appeal
and we remand this appeal to the regional office for a hearing on the merits .
DISCUSSION OF ARGUME NTS ON REVIEW
¶7 The Board has jurisdiction over an IRA appeal if the appellant has
exhausted her administrative remedies before OSC and makes nonfriv olous
allegations that (1) she made a protected disclosure described under 5 U.S.C.
§ 2302 (b)(8) or engaged in protected activity described under 5 U.S.C.
§ 2302 (b)(9)(A)(i), (B), (C), or (D), and (2) the disclosure or protected activity
was a contributing factor in the agency’s decision to take or fail to take a
personnel action as defined by 5 U.S.C. § 2302 (a)(2)(A) . See Chambers v.
Department of Homeland Security , 2022 MSPB 8 , ¶¶ 11, 14. The question of
whether the appellant has made a nonfrivolous allegation at the jurisdictional
stage is based on whether the employee alleged sufficient factual matter, accepted
as true, to state a claim that is plausible on its face. 5 C.F.R. § 1201.4 (s); see
Hessami v. Merit Systems Protection Board , 979 F.3d 1362 , 1368 -69 (Fed. C ir.
2020).
The appellant exhausted some of her claims with OSC.
¶8 An appellant in an IRA appeal must exhaust her administrative remedies by
seeking corrective action from OSC before seeking corrective action from the
Board. 5 U.S.C. § 1214 (a)(3) ; Chambers , 2022 MSPB 8 , ¶ 10 . The substantive
requirements of exhaustion are met w hen an appellant provided OSC with a
sufficient basis to pursue an investigation; however, an appellant may give a more
detailed account of her whistleblowing activity before the Board than she did to
5
OSC. Chambers , 2022 MSPB 8 , ¶ 10 . An appellant may demonstrate exhaustion
through her initial OSC complaint, correspondence with OSC, or other
sufficiently reliable evidence, such as a n affidavit or declaration attesting that
she raised with OSC the substance of the facts in the MSPB appeal. Id., ¶ 11.
Exhaustion must be proved by preponderant evidence. Id.; 5 C.F.R.
§ 1201.57 (c)(1).
¶9 In the initial decision, the administrative judge found that the appellant
exhausted her claims that she made a protected disclosure during a September
2013 investigation and that she engaged in protecte d activity in June 2015 by
filing an OIG complaint . ID at 6. The administrative judge found that the
appellant failed to prove that she exhausted her allegations that (1) she made a
protected disclosure to the OIG in May 2015 and (2) the agency retaliated against
her by contacting her private -sector employer. Id.
¶10 The parties have not challenged the administrative judge’s findings that the
appellant exhausted her September 2013 protected disclosure and her June 2015
protected activity, and we find no r eason to disturb those findin gs. However,
we disagree with the administrative judge’s finding regarding the appellant’s
May 2015 correspondence with the OIG . Id. Although the administrative judge
correctly notes that OSC ’s close -out letter did not expli citly identify the
May 2015 email , we find that it had a sufficient basis to pursue an investigation
of the correspondence. See Chambers , 2022 MSPB 8 , ¶ 10. The subject matter of
the May 2015 email overlaps with the June 2015 complaint, which was explicitly
raised with OSC, and the May 2015 correspondence occurred just 1 month before
the appellant filed her complaint . IAF, Tab 5 at 11 -13, 23 -30, 55. Based o n the
overlap of the subject matter and the close tem poral proximity between the
May 2015 email and the June 2015 complaint, we find that OSC had a sufficient
basis to pursue an investigation of the May 2015 email , and it is therefore
exhausted.
6
¶11 We agree with the administrative judge’s finding that the appellant failed to
prove exhaustion over her allegation that the agency retaliated agains t her by
contacting her private -sector employer. ID at 6. OSC’s close -out letter did not
reference this allegation and the appellant did not assert before the administrative
judge that she raised the claim with OSC, nor did she submit a copy of her OSC
complaint or her communications with OSC . IAF, Tab 1 at 13 , Tab 5 at 4 -6.
Although the appellant asserts on review that she raised this issue with OSC ,
PFR File, Tab 1 at 4, she has failed to show that any evidence on this matter was
unavailable prior to the close of the record before the administrative judge , and
we therefore do not consider her assertion .3 See Avans ino v. U.S. Postal Service ,
3 M.S.P.R. 211 , 214 (1980) (holding that, under 5 C.F.R. § 1201.115 , the Board
generally will not consider evidence submitted for the first time with a petition
for review absent a showing that it was unavailable before the record was closed
despite the party’s due diligence) ; 5 C.F.R. § 1201.115 (d).
The a ppellant nonfrivolously alleged that her protected activity was a
contributing factor in the agency’s denial of her request for LWOP .
¶12 The administrative judge found that the appella nt made one protected
disclosure pursuant to 5 U.S.C. § 2302 (b)(8) during a September 2013
investigation4 and that she engaged in protected activity pursuant to 5 U.S.C.
3 In any event, the appellant has provided no basis to disturb the administrative judge’s
finding that , even if exhausted, the alleged incident does not constitute a personnel
action covered by 5 U.S.C. § 2302 (a)(2)(A). ID at 6 n.5; see Pasley v. Department of
the Treasury , 109 M.S.P.R. 105 , ¶¶ 6 -10 (2008) (affirming the dismissal for lack of
jurisdiction of the a ppellant’s claim that a private -sector employer terminated his
employment based on statements by his former Federal employer).
4 The administrative judge found that only one disclosure in the appellant’s September
2013 statement was protected. ID at 7 -12. We believe that the statement may have
included additional disclosures. For example, the appellant’s disclosure that an agency
official was “accused of, and investigated for, physically assaulting” a U.S. Army
officer is sufficient to evidence a nonfrivolous allegation of a violation of law, rule, or
regulation. IAF, Tab 5 at 9; see 5 U.S.C. § 2302 (b)(8); Baldwin v. Department of
Veterans Affairs , 113 M.S.P.R. 469 , ¶¶ 16 -21 (2010). However, b ecause we find t hat
the appellant did not nonfrivolously allege that the September 2013 statement was a
7
§ 2302 (b)(9)(C) in June 2015 by filing an OIG complaint. ID at 11 -12. We also
find that the appellant nonfrivolously alleged that she engaged in protected
activity pursuant to 5 U.S.C. § 2302 (b)(9) (C) when she corresponded with the
OIG in May 2015.5 IAF, Tab 5 at 11 -13. Finally, w e agree with the
administrative judge’s implicit finding that the appellant nonfrivolously alleged
that the agency subjected her to a personnel action pursuant to 5 U.S.C.
§ 2302 (a)(2) when it denied her request for LWOP on or about July 1, 2015 .
ID at 13; see Lewis v. Department of Defe nse, 123 M.S.P.R. 255 , ¶ 13 (2016) .
¶13 In order to meet the contributing factor jurisdictional element, an appellant
may raise a nonfr ivolous allegation that the fact of, or content of, the protected
whistleblowing 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).
One way that the appellant may do this is through the knowledge/timing test, by
nonfrivolously alleging that the official taking the personnel action knew of the
whistleblowing and that the personnel action occurred within a period of time
such that a reasonable person could conclude that the whistleblowing was a
contributing factor in the personnel action. 5 U.S.C. § 1221 (e)(1). The
knowledge/timing test is not the only way to demonstrate the contributing factor
element. Dorney v. Department of the Army , 117 M.S.P.R. 480 , ¶ 14 (2012). The
Board will also consider other evidence, such as evidence pertaining to the
strength or weakness of the agency’s reasons for taking the personnel action,
whether the whistleblowing was personally directed towards the official taking
contributing factor in the agency’s decision to deny her LWOP request, as set forth in
¶ 15, any error is harmless, and we decline to further examine the particular disclosures
containe d in the statement . See Panter v. Department of the Air Force , 22 M.S.P.R.
281, 282 (1984).
5 The administrative judge referred to the appellant’s May 7, 2015 correspondence with
the OIG as an alleged protected disclosure. ID at 6. Because we find that the
correspondence is protected activity pursuant to 5 U.S.C. § 2302 (b)(9)(C), we need not
determine whether it is also a protected disclosure under 5 U.S.C. § 2302(b)(8).
8
the action, or whether these individuals had a desire or motive to retaliate against
the appellant. Id., ¶ 15.
¶14 In the appellant’s response to the juri sdictional order , she stated that the
individuals who denied her request for LWOP were aware of her May 2015 OIG
activity becaus e they were copied on the email . IAF, Tab 5 at 4 , 11-13. In that
email , the appellant stated that she would be following up with the OIG regar ding
her concerns listed therein , which she did by filing her June 2015 complaint .
Id. at 11 -13. Accordingly, we find that the appellant nonfrivolously alleged that
the responsible management officials were aware of both the May and June 2015
OIG activity . We further find that the close temporal proximity between the
protected activity , occurring in May and June 2015, and the denial of the
appellant’s LWOP request on July 1, 2015, is sufficient to satisfy the ti ming
element of the knowledge /timing test, and therefore the appellant has
nonfrivolously alleged that her protected activity was a contributing factor in the
personnel action. See Easterbrook v. Department of Justice , 85 M.S.P.R. 60 , ¶ 10
(2000) (finding that a personnel action that was taken within 7 months of the
protected disclosure satisfied the knowledge/timing test).
¶15 On review, t he appellant does not contest the administrative judge’s finding
that she did not allege that any agency official who made the decision to deny her
LWOP request had actual or constructive knowledge of her September 2013
protected disclosure . ID at 13; PFR File, Tab 1 at 4 -5. The appellant has not
alleged, either before the administrative judge o r on review, that the
September 2013 disclosure was directed toward the officials who denied her
LWOP request or that those individuals had a motive to r etaliate against her
based on the 2013 disclosure , nor has she directed the Board’s attention to any
other circumstantial evidence that would suppo rt a finding that the
September 2013 disclosure was a contributing factor in the denial of her LWOP
request . See Dorney , 117 M.S.P.R. 480 , ¶ 15 (setting forth factors to be
considered in determining whether the appellant has met the contr ibuting factor
9
element if she has not met the knowledge/timing test) . Accordingly, we affirm
the administrative judge’s finding that the appellant did not nonfrivolously allege
that her September 2013 disclosure was a contributing factor in the agency’s
denial of her LWOP request.
The appellant is precluded from raising a discovery issue for the first time on
review.
¶16 In her petition for review, the appellant as serts that the agency failed
to comply with her discovery requests. PFR File, Tab 1 at 4. The agency
has responded that the appellant’ s discovery re quest s were untimely.
PFR File, Tab 3 at 6. Because the appellant did not file a motion to compel
before the administrative judge , she is precluded from raising this discovery
issue for the first time 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). To the extent the appellant seeks to waive or extend a discovery deadline,
she may file a motion with the administrative judge on remand .
¶17 Based on the foregoing, we remand this appeal to the regional office for a
hearing on the merits of the appellant’s claim that the agency denied her request
for LWOP in retaliation for her protected OIG activity in May and June 2015.
ORDER
¶18 For the reasons discussed above, we remand this case to the regional office
for further adjudication in accordance with this Reman d Order.
FOR THE BOARD:
Washington, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board | HOFFMAN_LORI_SF_1221_17_0331_W_1_REMAND_ORDER_2005377.pdf | 2023-02-23 | null | SF-1221 | NP |
3,490 | https://www.mspb.gov/decisions/nonprecedential/CLARK_CASSANDRA_D_CH_0752_21_0382_I_1_FINAL_ORDER_2005379.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
CASSANDRA D. CLARK,
Appellant,
v.
UNITED STATES POSTAL SERVICE,
Agency.
DOCKET NUMBER
CH-0752 -21-0382 -I-1
DATE: February 23, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL1
Albert Lum , Brooklyn, New York, for the appellant.
Brandon L. Truman , Esquire, Charlotte, North Carolina, for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
Tristan L. Leavitt, Member
FINAL ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
dismissed her constructive suspension appeal as moot after the agency rescinded
the action and restored her to status quo an te. On petition f or review, the
appellant a rgues that the agency failed to pay her for 1 week out 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
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
approximately 2 -month period during which she had been placed in a leave
without pay (LWOP) status.2 Petition for Review (PFR) File, Tab 1 at 4. The
agency has not responded to the appellant’s petition for review. Generally, we
grant petitions such as this one only in the following circumstances: the initial
decision contains erroneous findings of material fact; the initial decision is based
on an erroneous interpretation of statute or regulation or the erroneous application
of the law to the facts of the case; the administrative judge’s rulings during either
the course of the appeal or the initial decision were not consistent with required
proc edures 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 To the extent that the appellant alleges that the administrative judge erred in
finding that the agency rescinded its action and restored her to status quo ante ,
she has provided no basis for such a claim. Indeed, according to the
administrative judge’s order summarizing a status conference, the parties
confirmed that the appellant ’s leave and pay had been fully restored to status quo
ante and that the appeal was moot . Initial Appeal File, Tab 8. The appellant,
who was represente d, did not object to the order, including the administrative
judge’s stated intent to dismiss the appeal as moot, despite being afforded an
2 The appellant attached a copy of a timesheet to her petition for review , which shows
that the agency processed an adjustment to convert her LWOP to paid leave for the
week in question but does not address whether she received payment for that time.
Petition for Review File, Tab 1 at 6 -7.
3
opportunity to do so. Id. However, to resolve any doubts regarding whether the
appellant had been paid for the dis puted week (August 8 –14, 2021), on July 7,
2022, the Board issued a show cause order. PFR File, Tab 3. Specifically, the
agency was ordered to submit evidence that the appellant was paid for the
disputed time period within 20 days. Id. The appellant wa s ordered to file a
response within 10 days of the agency’s submission. Id. at 2. On July 27, 2022,
the agency responded and provided argument and evidence showing that the
appellant had received the 1 week of pay. PFR File, Tab 4. On August 3, 2022,
the appellant responded that the pay issue had been “fully rectified” and that there
were “no further issues to be resolved in this appeal.” PFR File, Tab 5. Thus ,
based on the statements of the parties below and their responses to the show cause
order, we find that the administrative judge properly dismissed the appeal as
moot.
¶3 Although the appel lant confirmed to the Office of the Clerk of the Board
that her submission was intended as a petition for review of the initial decision ,3
PFR File, Tab 2 at 1 , to the extent that she intended to file a petition for
enforcement, there is no basis for enforcement as there is no Board order with
which the agency was directed to comply, Hunter v. Department of the Air Force ,
83 M.S.P.R. 7 , ¶ 11 (1999), or a settlement agreement that has been entered into
the record for enforcement purposes, Sellman v. U.S. Postal Service , 63 M.S.P.R.
145, 151 (1994) .
3 The appellant titled her submission on review as a petition for enforcement and
requested that the agency pay her for the contested week ; in a telephone conversation
with the Office of the Clerk of the Board, she confirmed that the submission was
intended as a petition for review of the initial decision. PFR File, Tab 1 at 4, Tab 2
at 1.
4
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 t he following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule reg arding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for revi ew with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
4 Since the issuance of the initial decision in 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.
5
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Addi tional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the cour t’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information rega rding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judic ial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discr imination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. ____ , 137 S. Ct. 1975 (2017). If you have a
representative in this case, and your representative receives this decision before
you do, then you must file with the district court no later than 30 calendar days
after your representative receives this decision. If the action involves a claim of
discrimination based on race, color, religion, sex, national origin, or a disabling
condition, you may be entitled to representation by a court -appointed lawyer and
6
to waiver of any requirement of prepayment of fees, costs, or other security. See
42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscou rts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative 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 requi ring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
7
disposition of allegations of a prohibited personnel practice described in section
2302(b ) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction .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 t he U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the 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 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.
8
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 | CLARK_CASSANDRA_D_CH_0752_21_0382_I_1_FINAL_ORDER_2005379.pdf | 2023-02-23 | null | CH-0752 | NP |
3,491 | https://www.mspb.gov/decisions/nonprecedential/SLAYTON_RAYMOND_SF_0752_17_0370_I_1_FINAL_ORDER_2005385.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
RAYMOND SLAYTON,
Appellant,
v.
DEPARTMENT OF AGRICU LTURE,
Agency.
DOCKET NUMBER
SF-0752 -17-0370 -I-1
DATE: February 23, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL1
Jennifer Duke Isaacs , Esquire, Atlanta, Georgia, for the appellant.
Julie Rook Gold , Esquire, and Kevin L. Owen , Esquire, Silver Spring,
Maryland, for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
Tristan L. Leavitt, Member
FINAL ORDER
¶1 The agency has filed a petition for review of the initial decision, which
reversed the appellant’s removal . For the reasons discussed below, we GRANT
the agency’s petition for review , REVERSE the administrati ve judge’s finding
that the agency failed to establish a nexus between the sustained misconduct and
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
require d to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c).
2
the efficiency of the service, FIND that the agency established nexus by
preponderant evidence and that the penalty of removal is within the tolerable
limit s of reasonableness , and SUSTAIN the appellant’s removal.
¶2 The appellant was removed for conduct unbecoming a Federal employee
after intimately touching a female coworker without her consent while they were
both off -duty in the appellant’s apartment, which, due to the remote nature of the
worksite at the Tongass N ational Forest in Thorne Bay, Alaska, was leased from
the agency and which was located on property owned by the agency . Initial
Appeal File (IAF), Tab 8 at 16, 24 -25, 76, 100 -04; Hearing Transcript Day 1
(HT-1) at 66; Hearing Transcript Day 2 (HT-2) at 43 , 46. The appellant appealed
his removal to the Board. IAF, Tab 1. After holding a hearing, the administrative
judge issued a November 29, 2017 initial decision finding that, although the
agency proved its charge by preponderant evidence, it failed to p rove that a nexus
exist ed between the sustained misconduct and the efficiency of the service. IAF,
Tab 26, Initial Decision (ID) at 3 -12, 20 -24. Accordingly, she reversed the
appellant’s removal and ordered the agency to provide interim relief in
accorda nce with 5 U.S.C. § 7701 (b)(2)(A) if either party filed a petition for
review. ID at 24 -26.
¶3 The agency has filed a petition for review of the initial decision arguing that
the administrative jud ge erred in finding that it failed to establish the required
nexus. Petition for Review (PFR) File, Tab 7. It also argues that the removal
penalty was reasonable. Id. The appellant has filed a response to the agency’s
petition for review, to which the agency has replied. PFR File, Tabs 9-10.
DISCUSSION OF ARGUME NTS ON REVIEW
The agency is in compliance with the administrative judge’s interim relief order.
¶4 With its request for an extension of time to file a petition for review, the
agency submit ted a certification of its compliance with the interim relief order.
PFR File, Tab 1 at 15 -21. The agency filed a December 20, 2017 letter
instructing the appellant to return to work on January 2, 2018, a Standard
3
Form 52 requesting the appellant’s interim appoi ntment to his former GS -9
Biological Science Technician position with an effective date of November 29,
2017, and timesheets reflecting the appellant’s administrative leave pay status
from November 29, 2017 , through the date of the agency’s submission. Id. The
agency asserts that, although the appellant was appointed to a different duty
location, a return to his prior duty station would be unduly disruptive because his
position at the prior location was abolished. Id. at 17.
¶5 In response to the agency’s petition for review, the appellant, among other
things, challenges the agency’s compliance with the interim relief order.
PFR File, Tab 9 at 6 -8. Specifically, he argues that the agency’s contention that
his prior position at the prior location was abolished is “demonstrably false,” the
agency failed to restore his forest protection officer (FPO) status, it restricted his
ability to perform his job duties by limiting his access to a certain computer
network drive, and it only p rovided funding for his position for 20 days.2 Id.
¶6 We find that the agency has proven that it complied with the administrative
judge’s interim relief order. The Board has held that an interim relief order
generally requires that an appellant be returned to the position from which he was
separated, effective as of the date of the initial decision, unless the agency
determines that this action would unduly disrupt the work environment. Chavies
v. Department of the Navy , 104 M.S.P.R. 81 , ¶ 4, n.1 (2006). Here, it is
2 Following the agency’s reply to the appellant’s response to its petition for review, the
appellant filed a motion for leave to file a surreply. PFR File, Tab 12. Such a pleading
is generally not allowed absent approval by the Office of the Clerk of the Board based
upon a party’s motion describing the nature of and need for the pleading. See Martin v .
U.S. Postal Service , 123 M.S.P.R. 189 , ¶ 8 n.1 (2016); 5 C.F.R. § 1201.114 (a)(5).
Here, although the appellant argues that a surreply is necessary to address the agency’s
“mischaracterizations” of the interim relief order and to “clarify” his allegations
concerning the agency’s failure to provide interim relief, he has not contended that the
agency failed to reinstate him. PFR File, Tab 12 at 4. As expla ined below, the agency
provided proper certification that it reinstated the appellant and made an undue
disruption determination regarding his duty location consistent with the interim relief
order and 5 U.S.C. § 7701 (b)(2)(A). Thus, we discern no need for this additional
pleading. Accordingly, the appellant’s motion for leave to file a surreply is denied.
4
undisputed that the agency returned the appellant to his GS-9 Biological Science
Technician position and that the agency made an undue disruption determination
with respect to his duty location. PFR File, Tab 1 at 17 -19. Such relief is
consistent with 5 U.S.C. § 7701 (b)(2)(A), (B). See C ostin v. Department of
Health and Human Services , 72 M.S.P.R. 525 , 533 (1996) (confirming that an
agency may , as part of an undue dis ruption determination, detail, assign, and
transfer an employee to a different duty location ). Further, it is well settled that
the Board lacks the authority to review the merits of the agency’s undue
disruption determination. King v. Jerome , 42 F.3d 1371 , 1374 -75 (Fed. Cir.
1994); Parbs v. U.S. Postal Service , 107 M.S.P.R. 559 , ¶ 6 (2007), aff’d , 301 F.
App’x 923 (Fed. Cir. 2008); Byers v. Department of Veterans Affairs ,
89 M.S.P.R. 655 , ¶ 5 (2001). Thus, the Board may not consider the appellant’s
claim that the basis of the agency’s undue disruption determination is
“demonstrably false.”
¶7 The appellant’s remaining arguments amount to an assertion that the agency
has not provided status quo ante relief. PFR File, Tab 9 at 6 -8. Interim relief is
not intended as a status quo ante remedy. See Parbs , 107 M.S.P.R. 559 , ¶ 6;
Moreno v. Department of the Air Force , 61 M.S.P.R. 396 , 398 (1994) (explaining
that interim relief is intended to preserve only a limited aspect of the employment
relationship by prospectively returning the appellant to duty and pay status from
the date of the initial decision). Because the record reflects that the agency
returned the appellant to duty in a pay status in the same position he previously
held and made an undue disruption determination regarding his duty location , we
find that the agency complied with th e interim relief order. See 5 U.S.C.
§ 7701 (b)(2)(A),(B); 5 C.F.R. § 1201.111 (c)(1).
The agency proved that a nexus exists bet ween the sustained misconduct and the
efficiency of the service.
¶8 As explained above, the administrative judge reversed the appellant’s
removal based on her finding that the agency failed to establish a nexus between
5
the appellant’s off-duty misconduct and the efficiency of the service. ID
at 20-24. The nexus requirement, for purposes of whether an agency has shown
that its action promotes the efficiency of the service, means there must be a clear
and direct relationship between the articulated grounds fo r an adverse action and
either the employee’s ability to accomplish his duties satisfactorily or some other
legitimate government interest. Scheffler v. Department of the Army ,
117 M.S.P.R. 499 , ¶ 9 (2012), aff’d , 522 F. App’x 913 (Fed. Cir. 2013). An
agency may show a nexus between off -duty misconduct and the efficiency of the
service by three means: (1) a rebuttable presumption in certain egregious
circumstances; (2) preponderant evidence that the misconduct adversely affects
the appellant’s or coworkers’ job performance or the agency’s trust and
confidence in the appellant’s job performance; or (3) preponderant evidence that
the misconduct interfered with or adversely affected the agency’s mission. Id.,
¶ 10; Kruger v. Department of Justice , 32 M.S.P.R. 71, 74 (1987).
¶9 Examples of misconduct so egregious as to create a rebuttable presumption
of nexu s include drug trafficking and child molestation. See Brook v. Corrado ,
999 F.2d 523 , 527 -28 (Fed. Cir. 1993); Allred v. Department of Health and
Human Services , 786 F.2d 1128 , 1130 -31 (Fed. Cir. 1986). The administrative
judge found that the appellant’s misconduct was not so egregious as to create a
presumption of nexus. ID at 20 -21. The agency does not challenge this finding
on review, and we discern no reason to disturb it. PFR File, Tab 7.
¶10 Regarding the third means of establishing nexus —that the misconduct
interfered with or adversely affected the agency’s mission —the Board has held
that, absent a finding that the conduct was directly opposed to the agency’s
mission, a finding that the condu ct was contrary to the agency’s culture and
values does not warrant a finding of nexus. See Scheffler , 117 M.S.P.R. 499 ,
¶ 12. In the initial decision, the administrative judge found that the agency failed
to offer any evidence to establish that the appellant’s off -duty misconduct
interfered with or adversely affected the agency’s mission. ID at 21. The agency
6
similarly does not challenge this finding on review, and we discern no reason to
disturb it. PFR File, Tab 7.
¶11 Regarding the second means of establishing nexus —preponderant evidence
that the misconduct adversely affects the appellant’s or coworkers’ job
performance or the agency’s trust and confidence in the appellant’s job
performance —the administrative judge concluded that there was no evidence that
the appellant’s or the female coworker’s performance was adversely affected by
the off -duty misconduct and that the decidin g official’s conclusion that he lost
confidence in being able to place the appellant in a remote setting was
undermined by the fact that the appellant was reassigned to another remote
setting. ID at 22 -23. We disagree with the administrative judge’s anal ysis.
¶12 The female employee testified that she was uncomfortable around the
appellant , that she “didn’t even feel safe just being in the bunkhouse across the
street from him,” and that she was placed on administrative leave and effectively
paid for a week of work without having to perform any duties. HT-1 at 34 -37.
She also testified that, although her appointment expired shortly after the
incident, she would not return to Alaska because she physically would not feel
comfortable there and that she “lost interest in working for the agency” as a result
of the incide nt. HT-1 at 45 -46. Thus, the appellant’s misconduct had an adverse
impact on the female coworker’s job performance. Concerning the appellant’s
performance, following the incident, the agency placed him on administrative
leave and then reassigned him to a position 50 miles away. HT-1 at 86 . This
reassignment had an impact on his job performance, as he took on a new position
at a new duty location. Additionally, this reassignment to a new location supports
the deciding official’s statement that he lost trust in the appellant’s ability to
perform his duties in the same remote location. IAF, Tab 8 at 32 -33; HT-2 at 49 ,
70.
¶13 Moreover, because of the nature of their work, agency employees often
reside on its property in apartments leased from the agency in c lose proximity to
7
one another. IAF, Tab 8 at 31 ; HT-2 at 43, 46 . We conclude that the appellant’s
off-duty misconduct, which involved inappropriate and unwanted sexual contact
with a coworker, could negatively impact how agency employees live and work in
this setting. See Doe v. National Security Agency , 6 M.S.P.R. 555 , 562 (1981)
(stating that the deleterious effect of the misconduct at issue on the efficiency of
the service may be either presently existent or reasonably foreseeable) , aff’d sub
nom. Stalans v. National Security Agency , 678 F.2d 482 (4th Cir.1982) . Based on
the foregoing, we find that the agency proved by preponderant evidence that the
misconduct at issue here adversely affected the appellant’s and his coworker’s
performance and that the agency legitimately lost trust and co nfidence in the
appellant’s ability to perform his duties. Accordingly, we reverse the
administrative judge’s finding in this regard and find that the agency proved by
preponderant evidence that a nexus exists between the appellant’s off -duty
misconduct a nd the efficiency of the service.3
The agency proved by preponderant evidence that the penalty of removal is
within the tolerable limits of reasonable ness .
¶14 In addition to proving its charge and nexus by preponderant evidence, the
agency must also establi sh that the penalty of removal is within the tolerable
limits of reasonable.4 Shibuya v. Department of Agriculture , 119 M.S.P.R. 537,
¶ 18 (2013); Douglas v. Veterans Administration , 5 M.S.P.R. 280 , 306 -07 (1981).
Here, because of the administrative judge’s disp osition of the appeal below, she
did not consider the penalty. Remand is not necessary to resolve this issue ,
however, because the record is sufficiently developed on the penalty issue to fully
3 To not find nexus under the facts here would create a strange dichotomy in which
agencies are obligated to address sexual misconduct that occurred between coworkers
on duty but would not feel compelled to address sexual misconduct that occurred
between coworkers off duty.
4 As briefly stated above, the administrative judge found that the agency proved its
charge of conduct unbecoming a Federal employee by preponderant evidence. ID
at 3-12. Neither party challenges this finding on review, and we discern no reason to
disturb it.
8
consider it here. See Lednar v. Social Security Administration , 82 M.S.P.R. 364 ,
¶ 15 (1999).
¶15 When, as here, all of the charges are sustained, the Board will review the
agency -impo sed penalty only to determine if the agency considered all the
relevant factors and exercised management discretion within the tolerable limits
of reasonableness. Ellis v. Department of Defense , 114 M.S.P.R. 407 , ¶ 11
(2010). The Board’s function is not to displace management’s responsibility or to
decide what penalty it would impose, but to assure that management’s judgment
has been pr operly exercised and that the penalty selected by the agency does not
exceed the maximum limits of reasonableness. Stuhlmacher v. U.S. Postal
Service , 89 M.S.P.R. 272 , ¶ 20 (2001); Douglas , 5 M.S.P.R. at 306. Thus, the
Board will modify a penalty only when it finds that the agency failed to weigh the
relevant factors or that the penalty the agency imposed clearly exceeds the bo unds
of reasonableness. Stuhlmacher , 89 M.S.P.R. 272 , ¶ 20.
¶16 Here, in making his decision regarding the disciplinary action ag ainst the
appellant, the deciding official prepared a document addressing the application of
the Douglas factors5 to the appellant’s situation and also testified about the
penalty selection during the hearing . IAF, Tab 8 at 29 -34; HT-2 at 42 -54. He
state d that the agency has a duty to maintain a safe working environment at all of
its facilities and for all of its employees and that the appellant’s misconduct,
although off -duty, was disruptive to that safe environment. IAF, Tab 8 at 30 -31;
HT-2 at 46-47. The deciding official concluded that the appellant’s misconduct
was serio us, particularly given the unwanted “skin-to-skin contact ” underneath
the female coworker’s clothes. IAF, Tab 8 at 30; see HT-2 at 43 . Of particular
importance to the deciding of ficial was the remote nature of the work site and the
close proximity in which employees worked and lived and the misconduct’s
impact on agency operations . IAF, Tab 8 at 31; HT-2 at 45-46. As such, h e
5 In Douglas , the Board set forth a nonexhaustive list of 12 factors that are relevant for
consideration in determining the appropriateness of a penalty. 5 M.S.P.R. at 305 -06.
9
stated that he lost trust and confidence that the app ellant could live and work in
such a setting without engaging in the same conduct in the future, which would
affect agency operations. IAF, Tab 8 at 32 -33; HT-2 at 45 -46, 49, 70 .
¶17 In considering the appellant’s potential for rehabilitation, the deciding
official explained that, although the appellant appeared remorseful in the
immediate aftermath of the incident, even calling the female coworker the
following day to apologize, the appellant appeared to “recant[]” that remorse,
assert that he had “implied c onsent,” and “blame” the female coworker during the
disciplinary proceedings. IAF, Tab 8 at 33. Thus, the deciding official stated in
his Douglas factors analysis that he had “little confidence” that the appellant
would refrain from similar misconduct in the future. Id.
¶18 The deciding official also considered relevant mitigating factors, such as
the appellant’s lack of a prior discipline , his 13 .5 years of service with the
agency, and his superior performance ratings.6 Id. at 31; HT-2 at 47 -48. The
deciding official also considered the substantial support the appellant received
from coworkers who provided statements on the appellant’s behalf but noted that
none of the statements came from employees in supervisory or managerial
positions. IAF, Tab 8 at 32; HT-2 at 48, 70 . Furthermore, the deciding official
explained that he considered alternative penalties, including a last-chance
agreement and an “ extensive or su bstantial suspension,” but he concluded that the
6 The deciding official also considered the appellant’s assertions fro m his reply to the
notice of proposed remo val. In his reply, the appellant offered as a mitigating factor
the fact that he was intoxicated prior to the incident. IAF, Tab 8 at 34. However, the
deciding official reasoned that, although the appellant was intoxicated, he nonetheless
was aware of his actions and knew they were inappropriate. Id.; HT-2 at 50 . The
appellant also asserted in his reply that he was aware that the female coworker had
consensual sexual interactions with other members of the commun ity at other times, but
the deciding official concluded that these people were not agency employees, nor were
the female coworker’s actions in another circumstance relevant to the appellant’s
interaction with her in this appeal . IAF, Tab 8 at 34; HT-2 at 50-51. Accordingly, the
deciding official did not consider either of these arguments to be mitigating factors.
IAF, Tab 8 at 34; HT-2 at 49 -51.
10
only way to ensure that such misconduct did not occur again was to remove the
appellant from Federal service. HT-2 at 52 ; see IAF, Tab 8 at 34 .
¶19 Based on the foregoing, we find that the agency proved by prep onderant
evidence that the deciding official considered all the relevant factors and
exercised managerial judgment and discretion in imposing the penalty of removal .
As such, the agency’s penalty determination is entitled to deference. See Jackson
v. Department of the Army , 99 M.S.P.R. 604 , ¶ 4 (2005); Stuhlmacher ,
89 M.S.P.R. 272 , ¶ 20.
¶20 We further find, given the seriousness of the offense , which, again,
involved the unwanted skin-to-skin sexual touching of a coworker, the remote
nature of the appella nt’s work, and the deciding official’s loss of trust and
confidence in the appellant’s ability to live and work in such a setting without
creating a disruptive and unsafe environment, that the penalty of removal is
within the toler able limits of reasonable ness. See Brown v. Department of the
Navy , 229 F.3d 1356 , 1358, 1363 -64 (Fed. Cir. 2000) (affirming a removal of a
Morale, Welfare, and Recreat ion Department employee based on a charge of
improper personal conduct involving an off-duty consensual affair with the
spouse of a deployed military officer); Martin v. Department of Transportation ,
103 M.S.P.R. 153 , ¶ 13 (2006) (explaining that the most important Douglas factor
is the nature and seriousness of the of fense and its relation to the employee’s
duties, position, and responsibilities) , aff’d , 224 F. App’x. 974 (Fed. Cir. 2007) ;
Stephens v. Department of the Air Force , 58 M.S.P.R. 502 , 506 (1993) (st ating
that even a single instance of indecent and disgraceful conduct involving sexual
contact toward a coworker can support a penalty of removal; there need not be a
pattern of such behavior before removal is reasonabl e). In reaching our
conclusion regar ding the reasonableness of the removal, we have considered the
appellant’s length of service, his positive performance appraisals, and the support
of his coworkers, but find that those factors do not outweigh the factors
supporting removal.
11
¶21 Accordingly, w e sustain the appellant’s removal.
NOTICE OF APPEAL RIG HTS7
You may obtain review of this final decision. 5 U.S.C. § 7703 (a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703 (b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable t ime
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular fo rum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U .S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a peti tion for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
7 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.
12
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional inform ation about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC r eview of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. I f so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. ____ , 137 S. Ct. 1975 (2017). If you have a
representative in this case, and your representative receives this decision before
you do, then you must file with the district court no later than 30 calendar days
after your rep resentative receives this decision. If the action involves a claim of
discrimination based on race, color, religion, sex, national origin, or a disabling
condition, you may be entitled to representation by a court -appointed lawyer and
13
to waiver of any req uirement of prepayment of fees, costs, or other security. See
42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.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
14
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.8 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Fede ral
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems 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.
8 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
Contact information for the courts of appeals can be 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/ fo r
Jennifer Everling
Acting Clerk of the Board | SLAYTON_RAYMOND_SF_0752_17_0370_I_1_FINAL_ORDER_2005385.pdf | 2023-02-23 | null | SF-0752 | NP |
3,492 | https://www.mspb.gov/decisions/nonprecedential/DAUJOTAS_HEATHER_LYNN_CH_0752_19_0455_I_1_REMAND_ORDER_2005394.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
HEATHER LYNN DAUJOTA S,
Appellant,
v.
DEPARTMENT OF DEFENS E,
Agency.
DOCKET NUMBER
CH-0752 -19-0455 -I-1
DATE: February 23, 2023
THIS ORDER IS NONPRECEDENTIAL1
Ericka Owens , Great Lakes, Illinois, for the appellant.
Lauren Leathers , Falls Church, Virginia , for the agency.
BEFORE
Cathy A. Harris , Vice Chairman
Raymond A. Limon , Member
Tristan L. Leavitt , Member
REMAND ORDER
¶1 The ap pellant has filed a petition for review of the initial decision, which
dismissed her indefinite suspension appeal as moot. For the reasons discussed
below, we GRANT the appellant’s petition for review , VACATE the initial
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
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
decision, and REMAND the case to t he Central Regional O ffice for further
adjudication in accordance with this Remand Order.
BACKGROUND
¶2 The appellant was appointed to the position of Physical Science Technician
at the Initial Testing Department, Directorate of Operations, with the Navy Drug
Screening Laboratory in October 2016 . Initial Appeal File (IAF), Tab 10 at 198.
The record reflects that, as of July 24, 2017, the agency design ated her position as
“non -critical sensitive .” Id. at 394-95. On May 2, 2019, the Department of
Defense Consolidated Adjudications Facility (DODCAF) revoked the appellant’s
“eligibility for access to classified information and/or assignment to duties tha t
were designated national security sensitive. ” Id. at 35. The notice informed the
appellant that she could appeal the decision to the Personnel Security Appeals
Board (PSAB). Id.
¶3 On May 8, 2019, the Deputy of Operations with the Initial Testing
Depar tment, Navy Drug Screening Laboratory , proposed to indefinitely suspend
the appellant from duty and pay status based on the “revocation [of her ] secret
eligibility determination ” pending the final adjudication of her security clearance.
Id. at 32. The ag ency placed the appellant in an un paid non -duty status beginning
the following day . Id. at 33 -34. She was advised of her right to respond to the
proposal notice. Id. at 33.
¶4 On May 13, 2019, the agency issued the appellant a revised proposal to
indefinit ely suspend her. Id. at 28. Contrary to the original proposal , however,
the revised proposal informed the appellant that she would be given 30 days of
advance notice, during which she would remain in a non -duty paid status, or
administrative leave, throu ghout this notice period. Id. at 23, 29 -30.
¶5 On May 14, 2019, the appellant elected to appeal the DODCAF decision to
the PSAB. Id. at 26. On May 28, 2019, the agency issued its decision affirming
3
the proposed indefinite suspension.2 Id. at 22-23. The decision informed the
appellant that she would be indefinitely suspended effective June 8, 2019,
pending the final adjudication of her security clearance by DODCAF. Id. at 23.
¶6 The appellant subsequently appealed her indefinite suspension to the Board.
IAF, Tab 1. She alleged that her security revocation and subsequent indefinite
suspension were the product of disability discrimination and harmful procedural
errors. IAF, Tab 9 at 4 -7. During a telephonic status conference, the agency
repre sented that it planned to rescind the appellant’s indefinite suspension and
was in the process of completing the requisite pape rwork to do so. IAF, Tab 11
at 1. The administrative judge informed the parties that this action might render
the appeal moot, provided the agency returned the appellant to status quo ante.
Id. at 1-2. The administrative judge ordered the agency to file a notice of its
rescission and informed the appellant that she could object to the rescission if she
did not believe she was re turned to status quo ante. Id. at 3.
¶7 The agency responded, asserting that on August 12, 2019, it unilaterally
cancelled the appellant’s indefinite suspension effective June 8, 2019 , and
submitted documentation that it retroactively placed the appellant in an
administrative leave status from June 8 through August 3, 2019. IAF, Tab 12
at 4-15, Tab 15 at 5-6. The agency subsequently provided documentation that it
awarded the appellant a bonus that she would have been aw arded had she not
been in a non -pay status during that period . IAF, Tab 15 at 6, 8. The appellant
argued that she had not been returned to status quo ante and thus the appeal was
not moot. IAF, Tabs 13, 17. According to the appellant, in order to be returned
to status quo ante, the agency needed to reinstate her to her same shift, strike the
disciplinary action from her personnel record, and award her lost overtime
compensation and attorney fees and costs . IAF, Tab 13 at 4 -6.
2 The agency’s decision identifies the notice of proposed indefinite suspension as
“dated May 8, 2019 and revised on May 13, 2019.” IAF, Tab 10 at 22.
4
¶8 The administrative judge subsequently issued an initial decision dismissing
the appeal as moot. IAF, Tab 18, Initial Decision (ID) at 1. According to the
administrative judge, the agency’s cancellation of the indefinite suspension and
retroactive placement of the appellant on administrative leave , effective June 8,
2019 , and continuing , restored her to the same status she held prior to the
issuance of the indefinite suspension decision. ID at 6. The administrative judge
found that the agency provided the appellant with the requisite back pay and the
applica ble bonus. Id. She further found that, because the appellant was placed on
administrative leave , she was not eligible for overtime pay. Id. Finally, the
administrative judge found that the Board does not adjudicate attorney fee
requests until a final d ecision has been issued. ID at 7. However, she suggested
that, under the circumstances here, the appellant was not a “prevailing party”
entitled to attorney fees and costs. Id.
¶9 The appellant has filed a petition for review of the initial decision. Pe tition
for Review (PFR) File, Tab 1. She argues that her appeal is not moot because she
has not be en returned to status quo ante. Id. at 9 -12. She also argues that she is
entitled to attorney fees because she was the prevailing party. Id. at 12-19. Sh e
attaches new documents on review, including correspondence between her and
her attorney, an April 2019 performance review, and documents relating to her
payment of attorney fees.3 PFR File, Tab 2 at 4 -18. The agency has responded to
her petition for re view, and the appellant has replied to its response. PFR File,
Tabs 6, 7.
3 The appellant additionally asserts that, beyo nd the evidence submitted for the first
time on review, there is new and material evidence or legal argument that was not
available when the record closed despite her due diligence. PFR File, Tab 1 at 11,
Tab 7 at 4-5. We need not address the new argumen ts or evidence on review because,
as set forth below, we remand this appeal for further adjudication.
5
DISCUSSION OF ARGUME NTS ON REVIEW
The appellant has sufficiently alleged that she has not been returned to status quo
ante, and thus, her appeal is not moot.
¶10 The appellant argues on review that she has not been returned to status quo
ante, and thus her appeal is not moot because the disciplinary actions must be
purged from her record, she should be returned to active duty in “her 6 AM shift,”
and she is ent itled to overtime compensation and attorney fees and costs. PFR
File, Tab 1 at 9. The administrative judge held that , because the agency rescinded
the indefinite suspension, returned the appellant to administrative leave , paid her
back pay, and paid her a bo nus, the agency returned the appellant to status quo
ante.4 ID at 7. For the reasons set forth below, w e disagree.
¶11 The Board’s jurisdiction is determined by the nature of an agency’s action
at the ti me an appeal is filed with the B oard. Sredzinski v. U. S. Postal Service ,
105 M.S.P.R. 571 , ¶ 4 (2007). An indefinite suspension lasting more than
14 days is an adverse action appea lable to the Board under 5 U.S.C. § 7513 (d).
5 U.S.C. § 7512 (2); Palafox v. Department of the Navy , 124 M.S.P.R. 54 , ¶ 8
(2016). An agency’s unilateral modification of its adverse action after an appeal
has been filed cannot dive st the Board of jurisdiction unless the appellant
consents to such divesture or unless the agency completely rescinds the action
being appealed.5 Sredzinski , 105 M.S.P.R. 571 , ¶ 4 . Thus, the B oard may dismiss
an appeal as moot if the appealable action is cancelled or rescinded by the
agency. Id. For an appeal to be rendered moot, an appellant must receive all of
4 The agency did not process the appellant’s lost wages and benefits as back pay, as
suggested by the administrative judge. Instead, it retroactively pla ced her in an
admin istrative leave status from June 8 to August 3, 2019. IAF, Tab 15 at 5 -6.
5 The administrative judge suggested below that the appellant consented to such
divesture by agreeing at the status conference that, if the agency rescinded the
indefinite suspension and reinstated the appellant with full back pay and benefits, the
rescission would be complete. ID at 7. We disagree. T he appellant’s repeated
assertions that she had not been returned to status quo ante demonstrates that she did
not consent to such divesture. IAF, Tabs 13, 17.
6
the relief tha t she could have received if the matter had been adjudicated and she
had prevailed. Murphy v. Department of Justice , 107 M.S.P.R. 15 4, ¶ 6 (2007).
That is, the employee must be returned to the status quo ante and not left in a
worse position because of the cancellation than she would have been in if th e
matter had been adjudicated. Gillespie v. Department of Defense , 90 M.S.P.R.
327, ¶ 7 (2001). If an appeal is not truly moot despite cancellation of the action
under appeal, the proper remedy is for the Board to retain jurisdiction and to
adjudicate the appeal on the merits. Fernandez v. Department of Justice ,
105 M.S.P.R. 443 , ¶ 5 (2007 ). The record does not support the finding that the
appellant has been returned to status quo ante for several reasons.
The record is devoid of any evidence that the agency has purged the
indefinite suspension from the appellant’s personnel file.
¶12 The appellant argued, both below and on review, that the agency has not
purged the indefinite suspension from her personn el file. IAF, Tab 13 at 4; PFR
File, Tab 1 at 9. In response to her request that the disciplinary action be struck
from her record, t he agency stated that “[o]n August 12, 2019, the Agency
cancelled the Indefinite Suspension.” IAF, Tab 15 at 5. To cancel an appealable
action either when ordered by the Board or to render an appeal moot, an agency
must remove all references to that acti on from the employee’s personnel record.
Price v. U.S. Postal Service , 118 M.S.P.R. 222 , ¶ 13 (2012). The agency has the
burden o f proving mootness. See Friends of the Earth, Inc. v. Landlaw
Environmental Services (TOC) , Inc., 528 U.S. 167 , 189 ( 2000 ) (reflecting that the
burden of proving mootness is on the moving party); Price , 118 M.S.P.R. 222 ,
¶ 10 (finding that an administrative judge did not, as an appellant claimed, allow
an agency to avoid its burden of proving mootness). The agency here neither
alleged nor offered evidence indicating that it purged the proposal s to indefinitely
suspend or the indefinite suspension decision from the appellant’ s record. On
remand, the administrative judge should resolve whether the agency can meet its
burden of proving it did so. In supporting its assertions, the agency should be
7
mindful that the statements of a party’s representative in a pleading do not
cons titute evidence. Hendricks v. Department of the Navy , 69 M.S.P.R. 163 , 168
(1995) . This rule applies equally to the appellant.
On remand, the administrative judge should determine whether the agency
provided the appellant with status quo ante relief when it placed her in an
administrative leave status going forward .
¶13 The administrati ve judge found that the appellant was returned to the same
status she held prior to the issuance of the indefinite suspension, which was
placement on administrative leave pending adjudication of her security clearance.
ID at 6; IAF, Tab 15 at 5. The appe llant continues to argue, as she did below,
that status quo ante is a return to active duty, rather t han administrative leave .
PFR File, Tab 1 at 21; IAF, Tab 13 at 4 -6. We are unable to resolve this issue on
the record before us.
¶14 The Board generally has held that placing an appellant on administrative
leave following the cancellation of an adverse action does not constitute a
complete rescission of the agency action and thus a return to the status quo ante.
Sredzinski , 105 M.S.P.R. 571 , ¶ 8. The appellant wa s in a duty status as of
May 8, 2019. IAF, Tab 1 at 6, Tab 10 at 32 -34. On that date, the agency issued
the proposed indefinite suspension that also placed her in an unpaid, non -duty
status pending a decision on her proposed suspension. IAF, Tab 10 at 32 -34. It
subsequently corrected that status to administrative leave . IAF, Tab 1 at 6,
Tab 10 at 28-30. In the absence of the proposed indefinite suspension here , there
was no mechanism that placed the appellant on administrative leave . IAF, Tab 10
at 29. Moreover, the placement on administrative leave and the indefinite
suspension both arose out of the May 2, 20 19 DODCAF revocation decision. Id.
at 28, 35. Accordingly, absent an exception, placement of the appellant on
administrative leave is not status quo ante relief , as she should have been returned
to active duty, the status she occupied prior to the rescin ded action.
8
¶15 Such an exception exists if an agency’s refusal to return the appellant to
duty status is supported by a “strong overriding interest. ” Sredzinski ,
105 M.S.P.R. 571 , ¶ 8. The agency contended below that it could not return the
appellant back to work because her access to sensitive information had been
removed and her security clearance was being adjudicated. IAF, T ab 15 at 5. It
is unclear from the record below whether this sufficiently demonstrates a strong
overriding interest. For example, while the agency asserted in its proposed
indefinite suspension that the appellant’s position required a secret clearance, t he
record reflects that her position was designated as non -critical sensitive. IAF,
Tab 10 at 28, 394; see Gamboa v. Department of the Air Force , 120 M.S.P.R.
594, ¶ 7 (2014) (explaining that, although adjudicated under the same standard,
occupying a non -critical sensitive positi on is distinct from needing a security
clearance). If the agency fails to make such a showing on remand , the appellant’s
placement on administrative leave cannot be said to be status quo ante.
Sredzinski , 105 M.S.P.R. 571 , ¶ 8.
On remand, the administrative judge should adjudicate the appellant’s
entitlement to overtime pay from June 8, 2019, forward.
¶16 Regarding the issue of ov ertime pay, the appellant contends that she was not
returned to status quo ante because she was not compensated for missed overtime
beginning with the period of her proposed indefinite suspension on May 8, 2019.
IAF, Tab 13 at 5; PFR File, Tab 1 at 9 -10. The administrative judge did not
address the appellant’s entitlement to overtime pay during the 30 -day notice
period preceding the effective date of the action. ID at 6 -7. Nonetheless, her
failure to do so was not harmful because the appellant is not en titled to overtime
for this period, which spanned May 8 to June 7, 2019. IAF, Tab 10 at 23, 29 -30;
see Karapinka v. Department of Energy , 6 M. S.P.R. 124 , 127 (1981) ( explaining
that an administrative judge ’s procedural error is of no legal consequence unless
it is shown to have adversely affected a party ’s substantive rights ). The Board
lacks jurisdiction to award back pay for pay enhancements such as overtime pay
9
lost during periods of administrative leave preceding an appealable action.
Rittgers v. Department of the Army , 123 M.S.P.R. 31 , ¶ 12 (2015) .
¶17 Here, documents submitted by the agency reflect that the appellant was in
an administrative leave status during the notice period. IAF, Tab 10 at 23, 29 -30.
The appellant essentially conceded the point below by requesting overtime, but
not back pay, for this period. IAF, Tab 13 at 5. To the extent that her demand for
overtime pay on review includes this period, we are without authority to gra nt it.
¶18 The administrative judge held that the appellant was not eligible for
overtime pay beginning June 8, 2019, the effective date of her suspension,
because she was on administrative leave . ID at 6. As to the period of June 8,
2019, the effective date of the suspension, to August 12, 2019, the cancellation of
that suspension, we disagree .6 As discussed above, the status the appellant
occupied prior to the rescinded action was active duty, not administrative leave .
¶19 Overtime back pay may be computed bas ed on either the appellant’s own
overtime history or the average overtime hours worked by similarly situated
employees during the relevant time period. Rittgers , 123 M.S.P.R. 31 , ¶ 13 .
Before this appeal can be dismissed as moot , the agency must calculate and pay
the appellant’s overtime back pay for the period from June 8, 2019, forward,
using a method most likely to restore her to status quo ante.7 IAF, Tab 10
at 32-34, Tab 12 at 6; see Rittgers , 123 M.S.P. R. 31 , ¶ 13 .
6 In light of the agency’s cance llation of the suspension on August 12, 2019, we
presume the appellant was placed in an admin istrative leave status at the beginning of
the pay per iod that included that date, i.e., as of August 4, 2019. On remand, the
administrative judge should clarify with the parties that the appellant received pay for
the period from August 4 through 11, 2019. IAF, Tab 12 at 8 -15.
7 This is so regardless of wh ether the agency demonstrates that it has a strong
overriding interest in placing the appellant on admin istrative leave as opposed to
returning her to active duty. If the agency fails to demonstrate a strong overriding
interest, then the appellant’s overt ime calculation should encompass the entire time that
she was not in an active duty status. However, if the agency successfully demonstrates
a strong overriding interest in placing the appellant on admin istrative leave following
its cancellation of the in definite suspension, the overtime calculation would end on the
10
¶20 According to the appellant, she worked 29 hours of overtime per week.
PFR File, Tab 1 at 10; IAF, Tab 13 at 5. The agency declined to provide any
overtime. IAF, Tab 15 at 6. The record does not contain any records to confirm
that the appel lant routinely worked overtime, and if so, how much. Therefore, we
must remand this issue to the administrative judge to further develop the record
and make a determination as to whether the agency has provided status quo ante
relief.8
The appellant’s c laim of attorney fees does not bar the dismissal of the appeal as
moot.
¶21 The appel lant asserts on review that, because the agency rescinded the
indefinite suspension, she is the “prevailing party,” and thus is entitled to
reimbursement of attorney fees. PF R File, Tab 1 at 12 -22. Because she has not
been paid said attorney fees, argues the appellant, she has not been returned to
status quo ante and the appeal is not moot. Id. at 20 -22. The administrative
judge held that, when an agency unilaterally rescin ds an adverse action, the
appellant generally is not considered the prevailing party. ID at 7. She further
held that, in any event, the Board does not adjudicate attorney fee requests until a
final decision has been issued. Id. We agree with the admini strative judge that,
if the agency on remand sufficiently returns the appellant to status quo ante as set
forth in this order, the Board is not barred fro m dismissing the appeal as moot,
regardless of the appellant’s claim of attorney fees.
¶22 For an appeal t o be rendered moot, an appellant must receive all of the
relief that she could have received if the matter had been adjudicated and she had
date the agency cancel led the appellant’s suspension, August 12, 2019. IAF, Tab 12
at 6; see Rittgers , 123 M.S.P.R. 31 , ¶ 12 (finding an appellant generally is not entitled
to overtime pay during a period of admin istrative leave).
8 The appellant has filed a motion for leave to file an additional pleading in which she
alleges that she was not returned to the status quo ante because of a time -off award that
she was not permitted to use and which expired while she was on admin istrative leave.
PFR File, Tab 9. On remand, the administrative judge shall permit the app ellant to
submit evidence and argument relating to this issue.
11
prevailed. Murphy , 107 M.S.P.R. 154, ¶ 6. However, the Board has held that the
potential recovery of attorney fees under 5 U.S.C. § 7701 (g)(1) does not prevent
the dismissal of an appeal as moot. Murphy , 107 M.S.P.R. 154 , ¶ 6 . Rather, the
award of attorney fees to a prevai ling party is considered to be separate from
relief on the merits. See id. Thus, the appellant here may file for such award in
accordance with the requirements of the Board’s regulations, and the potential
dismissal of this appeal as moot will have no pr ejudicial effect on the outcome of
that separate proceeding. Alleman v. Department of the Army , 79 M.S.P.R. 233 ,
239-40 (1998); 5 C.F.R. § 1201.203 . Because the issue of the appellant’s
entitlement to attorney fees is not properly before us, we decline to consider the
appellant’s arguments that such fees are warra nted i n the interest of justice. PFR
File, Tab 1 at 12 -17. Similarly, we decline to address the appellant’s argument
that her attorney failed to convey the appellant’s arguments regarding attorney
fees to the administrative judge. Id. at 11, 17.
¶23 On re mand , even if the administrative judge determines that the agency has
returned the appellant to status quo ante and dismisses the appeal as moot, the
appellant may seek attorney fees in a separate proceeding. Alternatively , if the
agency fails to return t he appellant to status quo ante, the administrative judge
will adjudicate the appeal on the merits. See Fernandez , 105 M.S.P.R. 44 3, ¶ 5
(finding that, if an appeal is not truly moot despite cancellation of the action
under appeal, the proper remedy is for the Board to retain jurisdiction and to
adjudicate the appeal on the merits) . In that scenario, the appellant may similarly
file for such attorney fees if she is the prevailing party.
The appellant’s discrimination claim does not prevent a mootness finding.
¶24 The appellant claims, both below and on review, that the DODCAF’s
decis ion to revoke her security clearance was the result of disability
discrimination . IAF, Tab 9 at 4 -5, Tab 10 at 35, 49; PFR File, Tab 1 at 16-17.
The administrative judge found that the Board lacks the authority to review the
substance of the underlying s ecurity determination, including the authority to
12
consider the appellant’s assertion of di sability discrimination. ID at 3 n.1. We
agree.
¶25 Ordinarily, if an appellant raises a claim of compensatory damages over an
appealable action, the agency’s complete rescission of the action appealed does
not afford her all of the relief available before the Board and the appeal is not
moot . Hess v. U.S. Postal Service , 124 M.S.P.R. 40 , ¶ 8 (2016). Lack of
mootness in such circumstances is premised on the Board’s ability to award
compensatory damages. Id., ¶¶ 8, 19. The Board lacks authority to review
allegations of prohibited discrimination or reprisal related to the revocation or
suspension of a security clearance. Putnam v. Department of Homeland Security ,
121 M.S.P.R. 532, ¶ 19 (2014). Because the Board cannot consider such
allegations, it cannot make a finding that the agency violated the appellant’s
rights under the Rehabilitation Act . Such a finding is a prerequisite to awarding
compensatory damages for disability discrimination in Federal employment.
42 U.S.C. § 1981 a(a)(2). Thus, the fact that the appellant raised a dis ability
discrimination claim does not prevent a mootness finding here.
Should the agency fail to return the appellant to status quo ante, the
administrative judge should address the appellant’s claim of harmful procedural
error.
¶26 The appellant on review r epeats her argument from below that the
DODCAF’s decision to revoke her security clearance, and the ensuing indefinite
suspension, suffered from harmful procedural errors. IAF, Tab 9 at 5 -7; PFR
File, Tab 1 at 12 -15, 17. The administrative judge did not address these
arguments. We also do not address them because such alleged procedural errors
involve the merits of the appellant’s indefinite suspension and thus are only
before the Board if her appeal is not moot.
¶27 As discussed above, the Board lacks the a uthority to review the merits of
the decision to suspend access to classified information , including whether that
decision was based on impermissible discrimination . Palafox , 124 M.S.P.R. 54 ,
13
¶ 8; Putnam , 121 M.S.P.R. 532, ¶ 19. However, the Board retains the authority to
review whether: (1) the appellant’s position required access to classified
information; (2) the appellant’s access to classified information was suspended;
and (3) the appellant was provided with the due process and the procedural
protections specified i n 5 U.S.C. § 7513 and under the agency’s own regulations .
Palafox , 124 M.S.P.R. 54 , ¶ 8.
¶28 We observe that the record is unclear as to whether the appellant’s position
required access to classified information or a Secret Clearance , as charged . IAF,
Tab 10 at 22, 28, 394-95; see Gamboa , 120 M.S.P.R. 594 , ¶ 8-11 (finding that an
agency failed to prove its charge based on an appellant’s clearance revocation
because it failed to pr ove the appellant was required to maintain a security
clearance) . Furthermore , Department of Defense regulations preclude the agency
from indefinitely suspending an employee based on a personnel security
determination when the employee has filed an appeal with the PSAB and is
awaiting a written decision on that appeal. See Schnedar v. Department of the Air
Force , 120 M.S.P.R. 516, ¶¶ 9-10 (201 4).
¶29 On remand, should the administrative judge find that the agency fails to
return the appellant to status quo ante, she must adjudicate this appeal on the
merits and address these procedural issues as they pertain to the revocat ion of the
appellant’s security clearance and the subsequent indefinite suspension.
ORDER
¶30 Accordingly, we REMAND this appeal to the Central Regional Office for a
determination as to whether, after the parties have an opportunity to respond, the
agency ha s returned the appellant to status quo ante. This includes the purging of
both proposed indefinite suspensions and the suspension decision from the
appellant’s personnel file, the calculation of overtime pay, and whether the
agency has a strong overriding interest in refusing to return the appellant to active
duty. If the agency has done so, the administrative judge shall dismiss the appeal
14
as moot. If the agency has not done so, the administrative judge shall adjudicate
the appeal on its merits, includi ng whether the indefinite suspension suffered
from harmful procedural errors .
FOR THE BOARD:
Washington, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board | DAUJOTAS_HEATHER_LYNN_CH_0752_19_0455_I_1_REMAND_ORDER_2005394.pdf | 2023-02-23 | null | CH-0752 | NP |
3,493 | https://www.mspb.gov/decisions/nonprecedential/CROFT_LISA_SF_1221_16_0254_W_1_FINAL_ORDER_2005467.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
LISA CROFT,
Appellant,
v.
DEPARTMENT OF COMMER CE,
Agency .
DOCKET NUMBER
SF-1221 -16-0254 -W-1
DATE: February 23, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL1
Steven Granberg , Esquire, Albuquerque, New Mexico, for the appellant .
Adam A. Chandler , Washington, D.C., for the agency .
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
Tristan L. Leavitt, Member
FINA L 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) for
whistleblower retaliation . 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 erroneou s application of the law to the facts of the case; the
administrative judge’s rulings during either the course of the appeal or the initial
decision were not consistent with required procedures or involved an abuse of
discretion, and the resulting error af fected the outcome of the case; or new and
material evidence or legal argument is available that, despite the petitioner’s due
diligence, was not available when the record closed. Title 5 of the Code of
Federal Regulations, section 1201.115 ( 5 C.F.R. § 1201.115 ). After fully
considering the filings in this appeal, we conclude that the petitioner has not
established any basis under section 1201.115 for granting the petition for review.
Therefore, we DENY the petition for review . Except as expressly MODIFIED by
this Final Order to clarify th at the appellant failed to prove , by preponderant
evidence, that she made any protected disclosure , we AFFIRM the initial
decision. We VACATE the ad ministrative judge’s alternative finding that the
agency proved it would have taken the same actions in the absence of the
appellant’s disclosures .
¶2 In the instant whistleblower retaliati on appeal, the appellant alleged that she
made several protected dis closures. E.g., Initial Appeal File (IAF), Tab 1
at 19-20, Tab 26 at 7-8, Tab 42, Initial Decision (ID) at 2-3. Though organized
differently below, we will organize these disclosures based on their content to
ensure clarity of the issues involved.
¶3 In Disclosure (1), the appellant reportedly disclosed that her first -level
supervisor at the time, the Pacific Islands Regional Office (PIRO) Regional
Administrator (RA), was orchestrating a number of budget irregularities or
improp rieties . IAF, Tab 1 at 19, Tab 6 at 6-9, Tab 26 at 7. The appellant alleged
that she made this disclosure on several occasions between July 2012 and
December 2013. IAF, Tab 1 at 19, Tab 6 at 6-9, Tab 26 at 7. The recipients were
her second -level supervisor, the Deputy Assistant Administrator for Operations
3
(DAAO), and a Chief Financial Officer (CFO). IAF, Tab 1 at 19, Tab 6 at 6-9,
Tab 26 at 7.
¶4 In Disclosure (2), the appellant reportedly disclosed that her first -level
supervisor at the time, the PIRO RA, was engaging in or con doning intimidating,
threatening, and aggressive behavior toward her. IAF, Tab 1 at 19, Tab 6 at 6-9,
Tab 26 at 7-8. The appellant alleged that she made this disclosure to her
second -level supervisor, the DAAO, in July 2012. IAF, Tab 1 at 19, Tab 6 at 6-9,
Tab 26 at 7-8.
¶5 In Disclosure (3), the appellant reportedly disclosed that her first -level
superv isor at the time, the PIRO RA , intended to violate the Endangered Species
Act, F ederal regulations, and agency policy as it related to recovery actions f or
false killer whales. IAF, Tab 1 at 20, Tab 6 at 6, 9-11, Tab 26 at 8. The appellant
alleged that she made this disclosure to her second -level supervisor, the DAAO,
in or around December 2013. IAF, Tab 1 at 20, Tab 6 at 6, 9-11, Tab 26 at 8.
¶6 Because of the aforementioned di sclosures, the appellant alleged that she
suffered various retaliatory personnel actions. IAF, Tab 6 at 11-12, Tab 26
at 8-9. Personnel Action (1) was her February 2014 reassignment from the
position of Fisheries Administrator to the position of Fisheries Program
Specialist, which the agency characterized as a product of the appellant’s
misconduct. IAF, Tab 1 at 10-11, Tab 26 at 8. Personnel Action (2) was the
appellant’s 2014 performance rating. IAF, Tab 26 at 9. Personnel Ac tion (3) was
the appellant’s relocation from Hawaii to Maryland, which the agency
characterized as inexorably linked to the aforementioned reassignment , delayed to
accommodate the appellant’s medical needs. IAF, Tab 26 at 9, Tab 40 at 7.
¶7 After exhaustin g her administrative remedies with the Office of Special
Counsel (OSC), the appellant filed the instant IRA appeal. IAF, Tab 1. The
administrative judge found that the appellant established jurisdiction and, as a
result, held the requested hearing. IAF, Tab 39, Hearing Compact Disc (HCD).
However, he denied corrective action, finding that the appellant failed to prove
4
that she made any protected disclosures . ID at 7-14. Alternatively, the
administrative judge found that if the appellant had met her bu rden of proof , the
agency proved that it would have taken the same personnel actions,
notwithstanding the disclosures. ID at 14-24. The appellant has filed a petition
for review. Petition for Review (PFR) File, Tab 3. The agency has filed a
response. PFR File, Tab 5.
¶8 Under the Whistleblower Protection Enhancement Act of 2012 (WPEA), the
Board has jurisdiction over an IRA appeal if the appellant has exhausted her
administrative remedies before OSC and makes nonfrivolous allegations that
(1) she made a protected disclosure described under 5 U.S.C. § 2302 (b)(8) or
engaged in protected activity described under 5 U.S.C. § 2302 (b)(9)(A)(i), (B),
(C), or (D), and (2) the disclosure or protected activity was a contributing factor
in the agency’s decision to take or fail to take a personnel action as defined by
5 U.S.C. § 2302 (a). Saler no v. Department of the Interior , 123 M.S.P.R. 230, ¶ 5
(2016). A nonfrivolous allegation of a protected whistleblowing disclosure is an
allegation of facts that, if proven, would show that the appellant disclosed a
matter that a reasonable person in her position would believe evidenced one of
the categories of wrongdoing specified in 5 U.S.C. § 2302 (b)(8). Id., ¶ 6. The
test to determine whether a whistleblower has a reasonable belief in the
disclosure is an objective one: whether a disinterested observer with knowledge
of the essential facts known to and readily ascertain able by the employee could
reasonably conclude that the actions of the agency evidenced a violation of law,
rule, or regulation, gross mismanagement, a gross waste of funds, an abuse of
authority, or a substantial and specific dang er to public health or sa fety. Id.
¶9 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. Id., ¶ 5. If the appellant proves that a protected disclosure or protected
activity was a contributing factor in a personnel action taken against her, the
agency is given an opportunity to prove, by clear and convincing evidence, that it
5
would have taken the same personnel action in the absence of the pro tected
disclosure or activity. Id.
The appellant failed to prove that Disclosure (1) was protected .
¶10 As p reviously discussed, Disclosure (1) reportedly involved budget
irregularities or improprieties orchestrat ed by the PIRO RA. Supra ¶ 3. The
appellant described these improprieties in a number of different ways, with
varying degrees of specificity. IAF, Tab 1 at 19, Tab 6 at 6-9, Tab 26 at 7-8. She
appears to acknowledge that there is no documentary evidenc e of these
disclosure s—the appellant alleges that they occurred during personal
conversations. E.g., IAF, Tab 6 at 6.
¶11 Although the app ellant alleged that there were two recipients of
Disclosure (1), the DAAO and a CFO, only the DAAO testified at the hea ring.
See, e.g ., IAF, Tab 21 at 9-10, Tab 26 at 7. The administrative judge found that
the DAAO provided specific and credible testimony contrary to the appellant’s
allegations. ID at 10-11 (citing HCD (testimony of the DAAO)). The DAAO
testified that the parties discussed budgetary issues, generally, as was customary
for their positions, but the appellant never disclosed any improprieties. Id. He
further testified that he heard of no budget irregularities secondhand, through the
other alleged recipie nt of Disclosure (1), the CFO. Id. The administrative judge
also found that, even when considering the appellant’s testimony on the matter,
she failed to show that she raised specific matters that a reasonable person in her
position would believe evidenc ed one of the categories of wrongdoing specified
in 5 U.S.C. § 2302 (b)(8). ID at 11-13 (citing HCD (testimony of the appellant )).
¶12 On review, the appellant argues that, based on her experience and training,
she had a reasonable and good faith belief regarding “concerns she was raising.”
PFR File, Tab 3 at 6. We find the argument unavailing. In concluding that
Disclosure (1) was not protected, the administrative judge made complete
credibility findings based, in part, on the demeanor of the witnesses. See Hillen
v. Department of the Army , 35 M.S.P.R. 453, 458 (1987) ( identif ying some of the
6
relevant credibility factors in assessing witness testimony). The appellant has not
identified any basis for us to disturb those well -reasoned findings.
The appellant failed to prove that Disclosure (2) was protected .
¶13 On appeal, the ap pellant described Disclosure (2) as involving an abuse of
authority in the form of “intimidation, threats, aggressive and violent behavior”
by the PIRO RA and one of the appellant’s subordinates. IAF, Tab 1 at 6, Tab 6
at 7-9. Her initial complaint to OS C used similar language. IAF, Tab 1 at 19, 25,
Tab 6 at 6-9, Tab 26 at 7-8.
¶14 The Board has recognized that an abuse of authority occurs when there is an
arbitrary or capricious exercise of power by a Federal official or employee that
adversely affects t he rights of any person or that results in personal gain or
advantage to himself or to preferred other persons. Mithen v. Department of
Veterans Affairs , 122 M.S.P.R. 489, ¶ 27 (2015), aff’d per curiam , 652 F. App’x
971 (Fed. Cir. 2016). Harassment or intimidation of employees may constitute an
abuse of authority. Herman v. Department of Justice , 115 M.S.P.R. 386, ¶ 11
(2011).
¶15 The appellant assert ed that she disclosed “intimidation, threats, aggressive
and violent behavior .” E.g., IAF, Tab 1 at 6, Tab 6 at 7-9. Specifically, she
alleged that the PIRO RA harassed and intimidated her, yelled and abused his
authority, engaged in unprofessional and disrespectful behavior, and made
inappropriate remarks about other employees “that violated [equal employment
opportunity law] .” IAF, Tab 22 at 64-65. The appellant went on to provide
particular examples of this behavior . She alleged that the PIRO RA once
screamed and instructed her to tell some official partners to “f * off” during a
telephone call; he took hom e leftover food from an even t—food that generally
would have been made available to office staff; he made inappropriate jokes and
comments, such as referring to certain individuals as “those kind of people” and
“little brown people”; he informed the appell ant of a complaint lodged against her
and indicated that it reflected poorly on him; and he initially denied a reasonable
7
accommodation request she made, claiming she needed to be in the office due to
the “‘accusations ’ circling around. ”2 Id.
¶16 In a preh earing conference summary, the administrative judge advised the
appellant that Disclosure (2) did not appear to be protected, but he did not
altogether dismiss it as nonfrivolous. IAF, Tab 26 at 8. Instead, he allowed the
appellant to further develop the matter at the hearing . IAF, Tab 41 at 5; HCD
(testimony of the appellant and the DAAO). Nevertheless, the initial decision
appears to conclude that the appellant failed to meet the nonfrivol ous standard for
Disclosure (2).3 ID at 7. On review, the appellant argues that the administrative
judge failed to adequately consider witness testimony describing the PIRO RA’s
behavior as unprofessional. PFR File, Tab 3 at 6, 38 -41. We are not persuaded .
¶17 The appellant has not identified any evidence that ap pears particularly
relevant to her burden concerning Disclosure (2). IAF, Tab 41 at 5; PFR File,
Tab 3 at 6. In fact, the appellant has referred to testimony from the alleged
recipient, the DAAO, but that individual characterized their discussions as
including allegations of rudeness, abruptness, and condescensio n—he did not
describe discussions of specific acts that might rise to the level of an abuse of
authority. See, e.g ., PFR File, Tab 3 at 6, 27 -28, HCD (testimony of the DAAO).
The appellant’s own testimony was similarly im precise. HCD (testimony of
the appellant) .
2 Concerning the reasonable accommodation request, the appellant alleged that the
PIRO RA’s initial response was to say “no” and suggest that she should come in to the
office via “the old people’s bus.” HCD (testimony of the appellant). However, she
further explained that the request was ultimately granted, after she submitted the
relevant paperwork to the agency’s reasonable accommodation office. Id.
3 We fi nd that the more appropriate disposition is to conclude that the appellant failed
to meet her burden to prove that she made a protected disclosure by preponderant
evidence. See Bradley v. Department of Homeland Security , 123 M.S.P.R. 547 , ¶ 6
(2016) (explaining that doubt or ambiguity as to whether the appellant made
nonfrivolous jurisdictional allegations should be resolved in favo r of finding
jurisdiction ). We modify the initial decision accordingly.
8
¶18 Under the circumstances, we agree with the administrative judge’s
conclusion that the appellant failed to prove that Disclosure (2) was protected. ID
at 7. She failed to show that s he disclosed specific actions that rose to the level
of an abuse of authority. Cf. Mithen v. Department of Veterans Affairs ,
119 M.S.P.R. 215, ¶ 15 (2013) (finding that an employee had a reasonable belief
that he was disclosing an abuse of authority whe n he disclosed that a nonfederal
employee had veto power over the selection of an individual for a Federal
position); Herman , 115 M.S.P.R. 386, ¶ 11 (finding that a disinterested observer
could reasonably conclude that a supervisor’s specific threat to an employee’s
career constituted an abuse of authority) .
The appellant failed to prove that Disclosure (3) was protected .
¶19 As relevant background to Disclosure (3), the record includes evidence that
the Natural Resources Defense Council (NRDC) petitioned t he agency to list the
false killer whale as “an endangered species and designate critical habitat to
ensure its recovery pursuant to . . . the Endangered Species Act.” IAF, Tab 22
at 33-38. Following a period of agency inaction, the NRDC warned that it
intended to bring legal action. Id. at 39-41. In May 2012, the NRDC followed
through, filing a complaint in Federal court. Id. at 46-48. According to the
appellant, the species was ultimately listed as endangered in November 2012.4
IAF, Tab 6 at 10. S he further asserts that, to attempt to follow the law and avoid
further conflict with the NRDC, she signed off on a Federal Register notice
pertaining to a recovery outline in September 2013. Id. at 10, 37 -38. She did so
while serving as the acting PIRO RA. Id. at 10. When the actual PIRO RA
learned of this, in October 2013, he reportedly responded to her with hostility,
asserting that he had no intention of ever doing a recovery plan for the false killer
whale and that the appellant should not have sig ned off on the Federal Register
4 The record includes additional background information concerning false killer whales
and the agency’s role in protecting them. E.g., IAF, Tab 25 at 44-52.
9
notice. Id. at 11, 36. According to the appellant, she disclosed that response to
the DAAO, and that was Disclosure (3). E.g., id. at 6.
¶20 While testifying at the hearing, the PIRO RA explained his discussion with
the app ellant by indicating that, while he would eventually need to, he had no
immediate plan to put forth the recovery plan due to limited resources. ID at 13;
HCD (testimony of the PIRO RA). The administrative judge found that, at best,
the appellant disclose d that the PIRO RA did not intend to comply with the
agency’s “Interim Endangered and Threatened Species Recovery Planning
Guidance” (Recovery Guidance) a t some point in the future —she did not disclose
that he already had failed to comply with it or any la w, rule, or regulation. ID
at 13-14; IAF, Tab 22 at 51, 53. The appellant has essentially conceded that
point, acknowledging that the relevant discussion she had with the PIRO RA
occurred in October 2013. IAF, Tab 6 at 9-11, Tab 22 at 67; PFR File, Tab 3
at 9-10. At that time, t he deadline for putting forth a recovery plan was still
6 months away. IAF, Tab 22 at 53.
¶21 On review, the appellant alleges that 5 U.S.C. § 2302 (b)(8)(A) (i) should be
interpreted to include not only violations of law, rule, or regulation, but also any
expressed intent to violate a law, rule, or regulation. PFR File, Tab 3 at 10.
However, she has failed to identify any persuasive reasoning for interpreting the
statute i n that way, contrary to its plain language. See Pirkkala v. Department of
Justice , 123 M.S.P.R. 288, ¶ 7 (2016) (observing that the starting point for
statutory construction is the language of the statute itself , which, if clear, must
control absent plainly expressed legislative intent to the contrary). Alternatively,
the appellant alleges that her disclosure shou ld qualify as a disclosure of an abuse
of authority. PFR File, Tab 3 at 10. For similar reasons, this argument is
unavailing. The appellant has not met her burden of proving that she reasonably
believed Disclosure (3) reflected an abuse of authority, wh ich, by definition,
includes an actual exercise of power with an actual affect. See supra ¶ 14. In any
event, given that the deadline for submitting a recovery plan was still 6 months
10
away, we conclude that the appellant’s stated belief that wrong doing w ould occur
is too speculative to warrant protection. See Scho enig v. Department of Justice ,
120 M.S.P.R. 318, ¶ 10 (2013) (fin ding that disclosure of an imminent event may
constitute disclosure of a substantial and specific danger, but disclosure of a
speculative danger does not).
We vacate the adm inistrative judge’s alternative finding .
¶22 The administrative judge found that , even if the appellant met her burden of
establishing a prima facie case of whistleblower retaliation, the agency met its
burden of proving by clear and convincing evidence that it would have taken the
same personnel actions notwithstanding the disclosures . ID at 14-24. Because
we have found that the appellant failed to prove that she made a protected
disclosure, it is unnec essary to determine whether the agency proved by clear and
convincing evidence that it would have taken the actions at issue in the a bsence
of the disclosure. See Clarke v. Department of Veterans Affairs , 121 M.S.P.R.
154, ¶ 19 n.10 (2014), aff’d per curiam , 623 F. App’x 1016 (Fed. Cir. 2015).
Accordingly, we vacate the administrative judge’s findings concerning whether
the agency met its cle ar and convincing burden. As a result, we will not address
the appellant’s arguments pertaining to th is finding.5 PFR File, Tab 3 at 11-25.
NOTICE OF APPEAL RIGHTS6
The initial decision, as supplemented by this Final Order, constitutes the
Board’s final decision in this matter. 5 C.F.R. § 1201.113 . You may obtain
review of this final decision. 5 U.S.C. § 7703 (a)(1). By statute, the nature of
your claims determines the time limit for seeking such review and the appropriate
forum with which t o file. 5 U.S.C. § 7703 (b). Although we offer the following
5 We have reviewed th e relevant legislation enacted during the pendency of this appeal
and have concluded that it doe s 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 in cluded in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.
11
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.
12
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services 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 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. ____ , 137 S. Ct. 1975 (2017). If you have a
represe ntative in this case, and your representative receives this decision before
you do, then you must file with the district court no later than 30 calendar days
after your representative receives this decision. If the action involves a claim of
discriminatio n based on race, color, religion, sex, national origin, or a disabling
condition, you may be entitled to representation by a court -appointed lawyer and
to waiver of any requirement of prepayment of fees, costs, or other security. See
42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/ Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C . § 7702 (b)(1). You must file any such request with the
13
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702 (b)(1). If you have a repre sentative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regu lar U.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 s ignature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . Th is option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (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 t han practices described in section 2302(b)(8), or
2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a 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
7 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals o f competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
14
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. C ourt of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for M erit Systems Protection Board appellants before the Federal Circuit. The
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 ca ses with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510.
15
Contact information for the courts of appeal s can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD:
Washington, D .C. /s/ for
Jennifer Everling
Acting Clerk of the Board | CROFT_LISA_SF_1221_16_0254_W_1_FINAL_ORDER_2005467.pdf | 2023-02-23 | null | SF-1221 | NP |
3,494 | https://www.mspb.gov/decisions/nonprecedential/HALL_ROSETTA_M_CH_3443_19_0052_I_1_FINAL_ORDER_2004744.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
ROSETTA M. HALL,
Appellant,
v.
DEPARTMENT OF AGRICU LTURE,
Agency.
DOCKET NUMBER
CH-3443 -19-0052 -I-1
DATE: February 22, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL1
Rosetta M. Hall , St. Louis, Missouri, pro se.
Stephanie J. Mitchell , Esquire , St. Louis, Missouri, for the agency.
BEFORE
Cathy A. Harris , Vice Chairman
Raymond A. Limon , Member
Tristan L. Leavitt , Member
FINAL ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
dismissed her suspension appeal for lack of jurisdiction. On petition for review,
the appellant discusses various matters pertaining to other pending claims that she
has against the agency, but none of her arguments address the administrative
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
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
judge’s finding that her 14-day suspension is outside the Board’s chapter 75
jurisdiction . 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 established any basis
under section 1201.115 for granting the petition for review. Therefore, we DENY
the petition for review and AFFIRM the initial decision, which is now the
Board’s final decision. 5 C.F.R. § 1201.113 (b).
NOTICE OF APPEAL RIG HTS2
You may obtain review of this final decision. 5 U.S.C. § 7703 (a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703 (b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
2 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.
3
filing time li mits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your part icular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney wil l accept representation in a given case.
4
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such acti on
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. ____ , 137 S. Ct. 1975 (2017). If you have a
representative in this case, and your representative receives this decision before
you do, then you must file with the district court no later than 30 calendar days
after your representative receives this decision. If the action involves a claim of
discrimination based on race, color, religion, sex, national origin, or a disabling
condition, you may be entitled to representation by a court -appointed lawyer and
to waiver of any requirement of prepayment of fees, costs, or other security. See
42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscou rts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
5
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requi ring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2 012. This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (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.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 origi nal statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permane ntly allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195,
132 Stat. 1510.
6
If you submit a petition fo r judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the 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 | HALL_ROSETTA_M_CH_3443_19_0052_I_1_FINAL_ORDER_2004744.pdf | 2023-02-22 | null | CH-3443 | NP |
3,495 | https://www.mspb.gov/decisions/nonprecedential/HALL_ROSETTA_M_CH_4324_19_0054_I_1_FINAL_ORDER_2004889.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
ROSETTA M. HALL,
Appellant,
v.
DEPARTMENT OF AGRICU LTURE,
Agency.
DOCKET NUMBER
CH-4324 -19-0054 -I-1
DATE: February 22, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL1
Rosetta M. Hall , Florissant, Missouri, pro se.
Stephanie J. Mitchell , Esquire , St. Louis, Missouri, for the agency.
BEFORE
Cathy A. Harris , Vice Chairman
Raymond A. Limon , Member
Tristan L. Leavitt , Member
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
dismissed her Uniformed Services Employment and Reemployment Rights Act of
1994 appeal for lack of jurisdiction. On petition for review, the appellant
recounts her history of disputes with the agency and expresses her disagreement
1A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c).
2
with the administrative judge’s jurisdictional determination . 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 int erpretation 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 involve d an 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 sect ion 1201.115 for granting
the petition for review. Therefore, we DENY the petition for review and
AFFIRM the initial decision, which is now the Boar d’s final decision. 5 C.F.R.
§ 1201. 113(b).
NOTICE OF APPEAL RIG HTS2
You may obtain review of this final decision. 5 U.S.C. § 7703 (a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review an d the appropriate forum with which to file. 5 U.S.C. § 7703 (b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advic e on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you shoul d
immediately review the law applicable to your claims and carefully follow all
2 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.
3
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully ea ch of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more informatio n.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calen dar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petiti on to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website , www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
4
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. ____ , 137 S. Ct. 1975 (2017). If you have a
representative in this case, and your representative receives this decision before
you do, then you must file with the district court no later than 30 calendar day s
after your representative receives this decision. If the action involves a claim of
discrimination based on race, color, religion, sex, national origin, or a disabling
condition, you may be entitled to representation by a court -appointed lawyer and
to w aiver of any requirement of prepayment of fees, costs, or other security. See
42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after y our representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
5
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C . 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial pet ition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.3 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this deci sion. 5 U.S.C.
§ 7703 (b)(1)(B).
3 The origi nal statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permane ntly allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195,
132 Stat. 1510.
6
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D .C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the 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 | HALL_ROSETTA_M_CH_4324_19_0054_I_1_FINAL_ORDER_2004889.pdf | 2023-02-22 | null | CH-4324 | NP |
3,496 | https://www.mspb.gov/decisions/nonprecedential/HOFFMAN_LORI_SF_0752_17_0432_I_1_FINAL_ORDER_2004906.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
LORI HOFFMAN,
Appellant,
v.
DEPARTMENT OF THE AR MY,
Agency.
DOCKET NUMBER
SF-0752 -17-0432 -I-1
DATE: February 22, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL1
Lori Hoffman , Pinehurst, North Carolina, pro se.
Winston D.M. Ling , Esquire, Fort Shafter, Hawaii, for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
Tristan L. Leavitt, Member
FINAL ORDER
¶1 The ap pellant has filed a petition for revie w of the initial decision, which
dismissed her involuntary resignation appeal for lack of jurisdiction. Generally,
we grant petitions such as this one only in the following circumstances: the
initial decision contain s 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 th e 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 MODIF IED to vacate the administrative
judge’s finding that the appellant was not misinformed by the agency , we
AFFIRM the initial decision.
¶2 The appellant previously served as a civilian employee at the agency’s Fort
Shafter, Hawaii base. Initial Ap peal File (I AF), Tab 4 at 4 . She decided to move
her family fro m Hawaii to the continental United States for financial reasons , and
she discussed her intent with her first - and second -level supervisors. Id. After
being unable to find a suitable Federal G overnment p osition, she accepted a
private -sector position with a defense contractor in North Carolina. Id. T he
appellant resigned from Federal Service after her second -level supervisor denied
her request to be place d in leave without pay (LWOP) status for 1 year while she
simultaneously worked for the defense contractor. Id. She filed a complaint with
the Office of Special Counsel (OSC) and subsequent ly an individual right of
action (IRA) appeal with the Board alleging that the agen cy had denied her
LWOP request (forcing her to resign) because of her whistleblo wing disclosures
and other activity. IAF, Tab 1 at 1; Hoffman v. Department of the Army , MSPB
Docket No. SF -1221 -17-0331 -W-1, Initial Appeal File (W-1 IAF) , Tab 1.
Following a conference in which t he appel lant stated that she had involuntarily
resigned as a result of misleading information concerning the approval of her
3
LWOP request, the administrative judge docketed this separate appeal.2 Without
holding the requested hearing, the administrative judge iss ued an initial decision
dismissing the appeal for lack of jurisdiction. IAF, Tab 9, Initial Decision (ID)
at 1, 8. She found that the appellant had failed to allege facts that established that
she was provided misinformation or that a reasonable person w ould have been
misled by her first -level supervisor’s general support of her intention to use
LWOP when they discussed her search for a ne w position in the continental
United States 5 months prior to her accepting a job with a private contractor . ID
at 7-8.
¶3 On petition for review, the appellant asserts that “ [f]acts were not stated
clearly” in the initial decision and “therefore appear to have been misinterpreted
by the [administrative] judge. ” Petition for Review (PFR) File, Tab 1 at 4. She
argues that her January 2015 request for 1 year of LWOP was not a “ [g]eneralized
inform al discussion of possibilities ,” as characterized in the initial decision, but
2 An appellant may pursue an involuntary resignation claim as a personnel action in an
IRA appeal. Colbert v. Department of Veterans Affairs , 121 M.S.P.R. 677 , ¶ 12 & n.5
(2014) (overruling Covarrubias v. Social Security Administration , 113 M.S.P.R. 583 ,
¶ 9 n.2 (2010 )). Generally, when an appellant has been subjected to an appealable
action that she believes was taken because of whistleblowing or other protected
activity, and she first seeks corrective action before OSC , she may not later contest the
matter as an appeal to the Board under 5 U.S.C. § 7701 , but rather can only pursue the
reprisal claim before the Board in an IRA appeal . See 5 U.S.C. § 7121 (g); Corthell v.
Department of Homeland Security , 123 M.S.P.R. 417, ¶¶ 15 -16 (2016). However, the
decision to seek co rrective action before OSC when , as here, an appellant has not made
a knowing and voluntary election of remedies is not a binding election that precludes a
separate constructive removal appeal while contesting the remaining personnel actions
in her IRA appeal. See Corthell , 123 M.S.P.R. 417 , ¶ 17; Savage v. Department of the
Army , 122 M.S.P.R. 612 , ¶ 18 (2015 ), overruled in part by Pridgen v. Office of
Management and Budget , 2022 MSPB 31, ¶¶ 23-25. The appellant has not been
prejudiced by the docketing of her invol untary resignation claim as a separate appeal
rather than considering it as part of her IRA appeal. In either case, one aspect of the
appellant’s jurisdictional burden would be to make a nonfrivolous allegation that her
resignation was tantamount to a constructive removal. W -1 IAF, Tab 7 at 2; see
Mintzmyer v. Department of the Interior , 84 F.3d 419 , 423 (Fed. Cir. 1996) ; Comito v.
Department of the Army , 90 M.S.P.R. 58 , ¶ 13 (2001) . As discussed in this Final Order,
the administrative judge correctly found that the appellant failed to make such an
allegation.
4
rather her first -level supervisor “verbally approved” the request at that time. Id.;
ID at 7. She acknowledges, however, that she did not submit a Standard Form 52
(SF-52) requesting LWOP at that time because “the requirement and dates wou ld
have been purely speculative. ” PFR File, Tab 1 at 4. She argues that “no
reasonable person would ” undertake logistical steps including terminating a
residential lease and securing a new lease in another state prior to requesting
LWOP when they would not do so “if LWOP were to be disapproved.” Id.
Finally, she asserts that the administrative judge did not explain why her
argument that her second -level supervisor lacked the legal authority to deny her
LWOP request was unpersuasive . Id. at 4 -5.
¶4 When there is a claim that an involuntary resignation resulted from
misinf ormation, an appellant must show that (1) the ag ency made misleading
statements and (2) she reasonably relied on the misinformation to her detriment.
See Scharf v. Department of the Air Force , 710 F.2d 1572 , 1574 -75 (Fed. Cir.
1983); Salazar v. Department of Army , 115 M.S.P.R. 296, ¶ 9 (2010). An
appellant may meet this burden by showing that a reasonable person would have
been misled by the agency’s statements , regardless of any intent or lack of intent
to deceive on the part of the agency . Covington v. Department of Health and
Human Services , 750 F.2d 937 , 942 (Fed. Cir. 1984); Scharf , 710 F.2d at 1575.
An appellant is entitled to a jurisdictional hearing if she presents nonfrivolous
allegations3 of Board jurisdiction. Ferdon v. U.S. Postal Service , 60 M.S.P.R.
325, 329 (1994) . As the administrative judge correctly determined, the appellant
failed to make a nonfrivolous allegation that she was provided misinformation by
the agency regarding her ability to take LWOP for 1 year while working for a
private defense contra ctor or that a reasonable person would have been misled by
the information provided. ID at 5 -8.
3 A nonfrivolous allegation is an assertion that, if proven, could establish the matter at
issue. 5 C.F.R. § 1201.4 (s).
5
¶5 The administrative judge erred, however, to the extent that she weighed the
evidence at the jurisdictional stage of the appeal in finding that the appellant was
not misinformed by her first -level supervisor “when he indicated he would
support her decision to relocat e from Hawaii.” ID at 6 ; see Ferdon , 60 M.S.P.R.
at 329 (finding that, although the Board may consider the agency’s documentary
submissions in det ermining whether the appellant has made a nonfrivolous
allegation, to the extent that the agency’s evidence constitutes mere factual
contradiction of the appellant’s otherwise adequate prima facie showing of
jurisdiction, the administrative judge may not weigh evidence and resolve
conflicting assertions of the parties). Therefore, we vacate that finding.
Neve rtheless, we have considered the allegations in the appellant’s jurisdictional
responses and agree with the administrative judge that a reasonable person would
understand that obtaining employment with a private -sector contractor could
create a conflict, as acknowledged in the appellant’s own pleadings , and that a
decision such as approval of extended LWOP cannot be made “in a vacuum”
several months before determining the specific details. ID at 7-8; IAF, Tabs 4 -5,
7. We find that the appellant failed to nonfrivolously allege that the agency made
misl eading statements regarding her request for 1 year of LWOP . See Covington ,
750 F.2d at 942 (noting that the Board uses an objective standard to determine
voluntariness, not the appellant’s purely subjective evaluation) ; Scharf , 710 F.2d
at 1575 . The appe llant also failed to nonfrivolously allege that she reasonably
relied on the purported misinformation to her detriment in accepting a private
contractor position and making plans to relocate prior to submitting the SF -52
request . See Covington , 750 F.2d a t 942. Because the appellant has not presented
nonfrivolous allegations of Board jurisdiction, she is not entitled to a
jurisdictional hearing. See Ferdon , 60 M.S.P.R. at 329.
¶6 The appellant asserts that the agency failed to comply with her discovery
requests. PFR File, Tab 1 at 5 -6. Because she did not file a motion to compel
below, the appellant is precluded from raising this discovery issue for the first
6
time on review. See Sz ejner v. Office of Personnel Management , 99 M.S.P.R.
275, ¶ 5 (2005), aff’d , 167 F. App’x 217 (Fed. Cir. 2006).
¶7 Accordingly, we de ny the petition for review and affirm as modified 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 su ch review and the appropriate
forum with which to file. 5 U.S.C. § 7703 (b). Although we offer the following
summary of available appeal rights, the 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 decisio n, you 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 mor e information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order 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.
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 sub mit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of y our discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. ____ , 137 S. Ct. 1975 (2017). If you have a
representative in this case, and your repr esentative receives this decision before
8
you do, then you must file with the district court no later than 30 calendar days
after your representative receives this decision. If the action involves a claim of
discrimination based on race, color, religion, s ex, national origin, or a disabling
condition, you may be entitled to representation by a court -appointed lawyer and
to waiver of any requirement of prepayment of fees, costs, or other security. See
42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a .
Contact infor mation for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the 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
9
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 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 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
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal 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 | HOFFMAN_LORI_SF_0752_17_0432_I_1_FINAL_ORDER_2004906.pdf | 2023-02-22 | null | SF-0752 | NP |
3,497 | https://www.mspb.gov/decisions/nonprecedential/ONEAL_ROGER_AT_0752_15_0666_I_1_FINAL_ORDER_2005029.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
ROGER ONEAL,
Appellant,
v.
DEPARTMENT OF THE AI R FORCE,
Agency.
DOCKET NUMBER
AT-0752 -15-0666 -I-1
DATE: February 22, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL1
Thomas F. Muther, Jr., Esquire, Denver, Colorado, for the appellant.
Brenda S. Mack , Robins A ir Force Base , Georgia, for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
Tristan A. Leavitt, Member
FINAL ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
affirmed his removal for marijuana use. Generally, we grant petitions such as this
one only when: the initial decision contains erroneous findings of material fact;
the initial decision is based on an erroneous interpretation of statute or regulation
or the erroneous application of the law to the facts of the case; the administrative
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c).
2
judge’s rulings during either the course of the appeal or the initial decision were
not consistent with required procedures or involved an abuse of discretion, and
the resulting error affected the outcome of the case; or new and material evidence
or legal argument is available that, despite the petitioner’s due diligence, was not
available when the record closed. Title 5 of the Code of Federal Regulations,
section 1201.115 ( 5 C.F.R. § 1201.115 ). After fully considering the filings in this
appeal, we conclude that the petitioner has not established any basis under section
1201.115 for granting the petition for review. Therefore, we DENY the petition
for review and AFFIRM the initial decision, which is now the Board’s final
decision. 5 C.F.R. § 1201.113 (b).
BACKGROUND
¶2 The appellant held an Aircraft Electrician position , WG -2892 -10, at Robins
Air Force Base, Georgia. Initial Appeal File (IAF), Tab 4 at 8. The agency
charged him with using mariju ana. Id. at 15. He was subsequently removed and
filed this appeal. Id. at 9-11, IAF, Tab 1.
¶3 At th e hearing, t he appellant testified th at he had been a heavy drinker and
decided to quit “cold turkey” without medical assistance . IAF, Tab 17, Initial
Decision (ID) at 2 . For 6 or 7 days thereafter, he experienced severe sweats,
shakes, loss of motor functions, and nausea. Id. He testified that he took
Tetrahydrocannabinol (THC ) tablets on two occasions in an attempt to manage
his withdrawal symptoms. Id. The second such occasi on was on March 4, 2015,
2 days before he underwent routine drug testing. Id. The appellant did not tell
the Medical Review Officer for the drug test that he had ingested THC tablets.
Id.
¶4 The appellant also testified that h e had received the tablets at an earlier time
from an ex -girlfriend, who had used them to control nausea during medical
treatment s. Id. She had offered him the tablets because he had c omplained of
stomach issues related to his drinking. Id. The appella nt testified that he knew
3
that the tablets were THC -based, but he did not believe they would cause him to
test positive for marijuana. Id. He also testified that he ha d not ingested alcohol
since February 2015, and that he was seeing a Rehabilitation Specialist . Id. He
also acknowledged that he made a mistake when he took the THC. Id.
¶5 In an initial decision, t he administrative judge sustained the charge based on
the appellant’s testimony . ID at 2 . The administrative judge found that the
appellant’s admission, along with the fact he held a Testing Designated Position,
were sufficient to establish nexus , and that the agency had proven that the penalty
imposed was reasonable under the particular circumstances of th e case . ID at 5-7.
¶6 The administrative judge also considered the appellant’ s affirmative defense
that the agency violated his right to due process when the deciding official
considered information that he had received from the agency’s Human Resources
(HR) Departmen t regarding penalties imposed on other employees for the same or
similar misconduct , and fail ed to inform the ap pellant of his intention to do so .
ID at 2 -5. The administrative judge concluded that the information the deciding
official received was cumulative and not new, the appellant had an opportunity to
respond to th e information , and the communication was not likely to result in
undue pressure on the deciding official to rule in a particular manner. ID at 4.
Additionally, the appellant as serted that the agency did not inform him that the
deciding official found his explanation for why he tested positive for THC to be
less than credible, nor did it inform him that the deciding official had taken into
account that the appellant was not parti cipating in a drug treatment program. ID
at 3. The administrative judge similarly rejected these argument s. ID at 5. The
administrative judge thus found any ex parte communication the appellant alleged
to be insubstantial or unlikely to cause prejudice and that the agency did not
violate the appellant’s right to due process . ID at 4. She affirmed the agency
action. ID at 7.
4
¶7 On review, the appellant reasserts his affirmative defense that the agency
violated his due process rights . Petition for Review (PFR) File, Tab 3. The
agency has responded to the appellant’s petition for review. PFR File, Tab 5.
ANALYSIS
¶8 A deciding official violates an employee’s due process rights when he relies
upon new and material ex parte information as a basis for his deci sion on the
merits of a proposed charge or the penalty to be imposed. Norris v. Securities
and Exchange Commission , 675 F.3d 1349 , 1354 (Fed. C ir. 2012). The Board has
held that an employee’s due process right to notice extends to both ex parte
information provided to a deciding official and information known personally to
that official , if he considered the information in reaching the decision and had not
previously disclosed to the appellant that he would be doing so . Solis v.
Department of Justice , 117 M.S.P.R. 458 , ¶ 7 (20 12). Not all ex parte
communications , however, rise to the level of a due process violation . Rather,
only ex parte communications that introduce new and material information to the
deciding official amount to a constitutional due process violation . Ward v. U. S.
Postal Service , 634 F.3d 1274 , 1279 -80 (Fed. Cir. 2011); Stone v. Federal
Deposit Insurance Corporation , 179 F.3d 1368 , 1376 -77 (Fed. Cir. 1999).
¶9 In Stone , the U.S. Court of Appeals for the Federal Circuit set forth the
following factors to determi ne if an ex parte communication introduces new and
material evidence and thus violates an appellant’s right to due process :
(1) whether the ex parte information introduced is cumulative, as opposed to new,
information; (2) whether the employee knew of the information and h ad 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 1 377. The court ultimate ly considers whether the ex parte
commu nication is so substantial and so likely to cause prejudice that no employee
5
can fairly be required to be subjected to a deprivation of proper ty under the
circumstances. Id.
¶10 In consider ing the Stone factors, the administrative judge found that the
agency did not violate the appellant’s right to due process. ID at 3 -5. The
administrative judge cited the deciding official ’s testimony in which he stated
that he had decided other cases involving employees charged with using illegal
drugs, and he believed his decision to remove the appellant was consistent with
the penalties imposed in those cases. The deciding official testified that he
confirmed his conclusion with HR. ID at 4. The administrative judge explained
that the deciding official’s communication with HR did not introduce any new
information because the agency’s notice of proposed removal stated that the
penalty of removal would be “consistent with actions imposed on other
employees within this Agency for the same or similar offenses.” Id.; IAF, Tab 4
at 15. The administrative judge found such statement gave the appellant
sufficient notice that the agency would consider other factually similar cases . ID
at 4. The administrative judge further found that the information HR
communicated to the dec iding official was cumulative , the a ppellant had an
opportunity to respond, and the communication was not likely to result in undue
pressure on the deciding official to rule in a particular manner. Id. As for the
appellant’s assertion that the deciding o fficial relied on personal observations
regarding the appellant’s credib ility and hi s potential for rehabilitation, t he
administrative judge explain ed that she knew of no authority requir ing the agency
to identify every Douglas factor it intended to consid er in the notice of proposed
removal , nor had the appellant identified any such authority . Id. The
administrative judge thus determined that the deciding official’s ex parte
communication with HR was n either substantial nor likely to cause prejudice. Id.
¶11 On review, the appellant reasserts his argument that the deciding official
relied upon new and material info rmation in two respects : the conversation with
HR r egarding the penalties imposed against similarly situated employees , and his
6
admitted relia nce upon his own experience in deciding other cases involving
drugs. PFR File, Tab 3 at 8-9. The appellant admits that the proposal notice
states that his removal “would be consistent with actions imposed on other
employees within this Agency for the sam e or similar offenses,” as the
administrative judge noted , but argues that such notice was insufficient to allow
him to understand that the agency had imposed penalties other than removal in
the past. Id.; IAF, Tab 4 at 15; ID at 4. However, t he initial decision adequately
addresse s these arguments. We specifically note that the statement in the
proposal notice that removal would be consistent with actions imposed on other
employees for th e same or similar offenses gave the appellant adequate notice
that the deciding official would consider those matters. IAF, Tab 4 at 15.
Moreover, w e agree with the administrative judge that the deciding official’s
communication with HR merely confirmed the accuracy of the information that
had been provided to the appe llant in the proposal, and thus, it was not “new”
information. Hearing Compact Disc (HCD), Track 1 at 43:50 (testimony of
deciding official that HR validated the consistency of the penalty with other
employees who had committed similar misconduct); see, e.g., Blank v.
Department of the Army , 247 F.3d 1225 , 1229 (Fed. Cir. 2001) (finding that when
a deciding official initiates ex parte communica tion to confirm or clarif y
information already contained in record, there is no due process violation ).
Accordingly, w e conclude that this communication was not so likely to cause
prejudice that no employee can fairly be required to be subje cted to a depr ivation
of propert y under such circumstances.
¶12 The appellant also asserts that he learned for the first time at the hearing
that the deciding official relied on personal knowledge2 and conclusions regarding
2 The appellant argues in his petition for review that the deciding official consider ed the
penalties he assessed in similar cases in which he had served as deciding official
without notifying the appellant that he would do so . HCD, Track 1 at 42:20. As noted
above, the appellant was on notice that the agency considered removal to be consistent
with actions imposed on other employees for the same or similar offenses , and we find
7
his credibility and rehabilitative potential, and that he did not get an opportunity
to respond to that testimony. PFR File, Tab 1 at 9. The deciding official testified
that, in upholding the removal action, he considered that the appellant had not
credibly explained the circumstances underlying the positive drug test, indicating
he had not accepted responsibility for his actions, and he had not entered a
rehabilitation program . HCD, Track 1 at 3 8:07 (testimony of the deciding
official) . As to the deciding official’s determination that the appellant’s
explanation for the positive drug test was not credible , we note that the
explanation was provided by the appellant in his response to the proposal notice.
IAF, Tab 14 at 4. The appellant has not pointed to any ex parte information
pertaining to his explanation for the positive drug test that had been provided to
the deciding official when he made his decision to uphold the appellan t’s
removal . We find that the deciding official did not consider any “new”
information in assessing the credibility of the explanation; rather he drew
conclusions based on the information presented to him. T he Board has held that a
deciding official does not violate an employee’s rights when he considers issues
the employee raised in his response to the proposed action and then rejects those
arguments in reaching a decision. Mathis v. Department of State , 122 M.S.P.R.
507, ¶ 9 (2015). Accordingly, we find that the deciding official’s determination
that the appellant’s explanation for the charged mis conduct was not credible did
not am ount to a due process violation.
¶13 Similarly, the appellant does not contend that the deciding official
considered any “new ” information in concluding that the appellant had not
entered into a treatment program for drug use . From this record , we must
conclude that the deciding official made his assessment based on the absence of
that any failure to provide the appellant with details regarding the individual cases
considered was not a due process violation under these circumstances .
8
any reference to treatment in the record, including in the appellant’s reply to the
proposal notice.3
¶14 The appellant asserts that, had he been aware that the deciding official
would consider his credibility and rehabilitative potential , he would have offered
evidence during his reply regarding his participation in a drug treatment program
and a statement from his ex -girlfriend substantiating his version of events
regarding his in gesti ng THC . PFR File, Tab 3 at 11. The appellant, however,
received the opportunity to examine the evidence the deciding official would
consider and to present evidence of his own , including witness statements , and he
failed to present such evidence . IAF, Tab 4 at 16. The fact that the deciding
official drew adverse conclusions when the appellant did not present evidence to
bolster his case for mitigation of the penalty does not support a finding that the
agency violated his due process rights .
¶15 Finally, t he appellant argued that he offered into evidence several last
chance agreements (LCAs) the agency had reached with employ ees at a d ifferent
facility. PFR File, Tab 3 at 12 ; IAF, Tab 11 at 3 -5; PFR File, Tab 5 at 5 . The
administrative judge considered these documents solely for purposes of due
process analysis . IAF, Tab 12 at 2; HCD, Track 2 at 29: 00 (testimony of the
appe llant) . The appellant argued that the se documents should have been
disclosed by HR to the deciding official for the deciding official to consider
offering a n LCA to the appellant as an alternative to removal. PFR File, Tab 3
at 12. Here, the appellant i s seeking to circumvent the administrative judge’s
evidentiary ruling below and offer the LCAs as evidence of disparate penalt ies.
The Board, however, has long h eld that an agency need not explain why it
imposed lesser penalties against other employees wh ose charges were resolved by
3 In this r egard, an October 6, 2014 agency memorandum states that employees using
illegal drugs “will be considered for removal from employment” even in light of a “long
and exemplary record of employment,” but such employees may avoid disciplinary
action by self -reporting their drug use and seeking medical assistance. IAF, Tab 4
at 22.
9
settlement agreements. An age ncy’s decision to enter into a settlement agreement
with another employee generally cannot form the basis for a disparate treatment
claim . Lewin v. Department of Justice , 74 M.S.P.R. 294 , 300 -01 (1997) . To
allow such a claim would have a chilling effect on settlement agreements, which
both the courts an d the Board favor . Fowler v. U.S. Postal Service , 77 M.S.P.R.
8, 17 (199 7); see also Blake v. Department of Justice , 81 M.S.P.R. 394 , ¶ 42
(1999). For these reasons , we affirm the administrative judge’s findings in the
initial decision.
NOTICE OF APPEAL RIGHTS4
You may obtain review of this final decision. 5 U.S.C. § 7703 (a)(1) . By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703 (b).
Although we offer the following 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
Boar d cannot advise which option is most appropriate in any matter.
10
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional 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
11
receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. ____ , 137 S. Ct. 1975 (2017). If you have a
representative in this case, and your representative receives this decision before
you do, then you must file with the district court no later than 30 calendar days
after your representative receives this decision. If t he action involves a claim of
discrimination based on race, color, religion, sex, national origin, or a disabling
condition, you may be entitl ed to representation by a court -appointed lawyer and
to waiver of any requirement of prepayment of fees, costs, or other security. See
42 U.S.C. § 2000e -5(f) 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:
12
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raise s no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.5 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of A ppeals
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 Ci rcuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court 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
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the co urt’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the 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 | ONEAL_ROGER_AT_0752_15_0666_I_1_FINAL_ORDER_2005029.pdf | 2023-02-22 | null | AT-0752 | NP |
3,498 | https://www.mspb.gov/decisions/nonprecedential/SCERE_JOHN_ALLAN_NY_0752_14_0157_A_1_FINAL_ORDER_REDACTED_2026277.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
JOHN ALLAN SCERE,
Appellant,
v.
DEPARTMENT OF HOMELA ND
SECURITY,
Agency.
DOCKET NUMBER
NY-0752 -14-0157 -A-1
DATE: February 22, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL1
Jonathan Bell , Esquire, Garden City, New York, for the appellant.
Julie L. Kitze , Philadelphia, Pennsylvania, for the agency.
BEFORE
Cathy A. Harris , Vice Chairman
Raymond A. Limon , Member
Tristan L. Leavitt , Member
Member Leavitt issues a separate dissenting opinion.
FINAL ORDER
¶1 The agency has filed a petition for review of the ini tial decision, which
granted the appellant’s motion for an award of attorney fees. Generally, we grant
petitions such as this one only in the following circumstances: the initial decision
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c).
2
contains erroneous findings of material fact; the initial decision is based on an
erroneous interpretation of statute or regulation or the erroneous a pplication of
the law to the facts of the case; the administrative judge’s rulings during either
the course of the appeal or the initial decision were not consistent with required
procedures or involved an abuse of discretion, and the resulting error affec ted the
outcome of the case; or new and material evidence or legal argument is available
that, despite the petitioner’s due diligence, was not available when the record
closed. Title 5 of the Code of Federal Regulations, section 1201.115 ( 5 C.F.R.
§ 1201.115 ). After fully considering the filings in this appeal, we conclude that
the petitioner has not established any basis under section 1201.115 for granting
the petition for review. The refore, we DENY the petition for review and
AFFIRM the initial decision.
BACKGROUND
¶2 The appellant served as a Federal Air Marshal (FAM) with the agency’s
Transportation Security Administration (TSA). Scere v. Department of Homeland
Security , MSPB Dock et No. NY -0752 -14-0157 -I-1, Initial Appeal File (IAF),
Tab 5, Subtab 4a. In January 2014 , the agency removed him for his inability to
meet a condition of employment ; namely, his inability to maintain a Government
travel card. Id., Subtabs 4a, 4b. The ap pellant timely appealed his remova l to the
Board and requested a hearing. IAF, Tab 1.
¶3 Following the requested hearing, the administrative judge issued an initial
decision mitigating the removal to a reassignment. IAF, Tab 23, Initial Decision
(ID). Sp ecifically, the administrative judge found that the agency proved its
charge because the bank issuing the appellant’s travel card cancelled it and
declined to reinstate it upon the appellant’s request ; thus, the appellant was not
able to meet a condition o f employment as a FAM. ID at 4-19. She also found
the appellant’s affirmative defense that the agency violated his due process rights
to be without merit and that the agency proved a nexus between the appellant’s
3
conduct and the efficiency of the service . ID at 19 -20. However, the
administrative judge found that the agency’s penalty was not entitled to deference
because the deciding official did not properly consider the Douglas factors and ,
given the mitigating factors present, the penalty of removal was not appropriate.2
ID at 20 -22. Accordingly, the administrative judge ordered the agency to cancel
the removal action , effective January 8, 2014, and assign the appellant to a
position for which he was qualified in the agency’s New York Field Office that
did not require the use of a Government travel card and would result in “the least
reduction in grade and pay ” from his FAM position . ID at 22. She also directed
the agency to pay the appe llant the appropriate amount of back pay, interest, and
other benefits. Id.
¶4 The agency appealed the initial decision to the full Board; however, the two
sitting Board members could not agree on the disposition of the petition for
review, and the initial decision became the final decision of the Board. Scere v.
Department of Homeland Security , MSPB Docket No. NY -0752 -14-0157 -I-1,
Order (Sept. 9, 2016).
¶5 On November 10, 2016, the appellant timely filed a motion for attorney fees
in which he sought an awa rd of fees and costs incurred in conne ction with the
initial appeal and associated petition for review, which the agency opposed.3
Scere v. Department of Homeland Security , MSPB Docket No. NY-0752 -14-
0157 -A-1, Attorney Fee File (AFF), Tabs 1, 9. The appe llant then requested an
2 In Douglas v. Veterans Administration , 5 M.S.P.R. 280 , 305 -06 (1981), the Board
articulated a nonexhaustive list of factors to be considered when evaluating the penalty
to be imposed for an act of misconduct.
3 Shortly after fi ling the motion for attorney fees, the appellant also filed a petition for
enforcement, which the administrative docketed as a separate compliance matter and
granted in part. Scere v. Department of Homeland Security , MSPB Docket
No. NY-0752 -14-0157 -C-1, Compliance Initial Decision ( Sept. 5, 2017) . The agency’s
petition for review of that compliance initial decision is addressed in a separate
decision.
4
additional award of fees incurred in responding to the agency’s opposition to the
motion. AFF, Tab 10. In an addendum initial decision, the admini strative judge
granted the motion as to the requested attorney fees and denied the motion as to
the requested costs for deposition transcripts. AFF, Tab 11, Addendum Initial
Decision (AID). Specifically, the administrative judge found that the appellant
was the prevailing party in the unde rlying litigation and incurred attorney fees
pursuant to an existing attorney -client relation ship. AID at 9-10. The
administrative judge further found that an award of attorney fees was warranted
in the interest of justice because the agency knew or shou ld have known that it
would not prevail on the merits, and the amount of fees claimed was reasonable.
AID at 10 -16. She ordered the agency to pay $ 108,225 in attorney fees to the
appellant.4 AID at 16.
¶6 The agency has filed a petition for review of t he addendum initial decision,
which the appellant has opposed . Scere v. Department of Homeland Security ,
MSPB Docket No. NY -0752 -14-0157 -A-1, Petition for Review File (APFR File),
Tabs 1, 3. The agency has filed a reply to the appellant’s opposition. AP FR File,
Tab 4. On review, the agency argues that the administrative judge lacked the
authority to order an award of attorney fees, the appellant could not show that he
was the prevailing party, an award of fees was not in the interest of justice, and
the amount of fees claimed was not reasonable. APFR File, Tab 1. As set forth
below, we find that the agency has not shown error in the administrative judge’s
award of fees.
4 The administrative judge rounded the total time each attorney spent on the case to the
nearest hou r, resulting in a fee award of $108,225 . See AID at 16. Neither party has
disputed this method of calculation.
5
DISCUSSION OF ARGUME NTS ON REVIEW
The administrative judge had the authority to award attorney fees incurred in
connection with the underlying initial appeal and petition for review.
¶7 To establish 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 award of
fees is warranted in the interest of justice; and (4) the amount of fees claimed is
reasona ble. Driscoll v. U.S. Postal Service , 116 M.S.P.R. 662 , ¶ 7 (2011). Here,
there is no dispute that an attorney -client relationship e xisted and that the
appellant incurred fees in connection with his appeal.
¶8 The agency argues that the administrative judge lacked the authority to
order the appellant’s reassignment ; thus, the administrative judge did not issue an
enforceable order and lacked the authority to award attorney’s fees based on the
order . APFR File, Tab 1 at 12 -14. An administrative judge’s findings in an
initial decision that become final on the merits should not be reevaluated in a
proceeding on a motion for attorney fees. Capeless v. Department of Veterans
Affairs , 78 M.S.P.R. 619 , 622-23 (1998) . Accordingly, we decline to reconsider
the merits of the initial decision.
¶9 The Board has the authority to require an agency to pay reasonable attorney
fees incurred by an appellant pursuant to 5 U.S.C. § 7701 (g)(1).
Section 7701(g)(1) a pplies to TSA under 49 U.S.C. § 40122 (g)(2 )(H). See
49 U.S.C. § 114(n); Connol ly v. Department of Homeland Security , 99 M.S.P.R.
422, ¶ 9 (2005) (holding that the Federal Aviation Administration personnel
mana gement system authorized under 49 U.S.C. § 40122 shall apply to TSA ,
except to the extent that the Under Secretary of Transportation for Security
modifies that system as it applies to TSA employe es). Accordingly, the
administrative judge had the authority to order the agency to pay reasonable
attorney fees incurred in connection with the appellant’s initial appeal and related
matters.
6
The administrative judge properly found that the appellant was the prevailing
party in the underlying appeal.
¶10 The agency’s argument that the appellant did not obtain an enforceable
order, and thus could not be considered a prevailing party , similarly fails . APFR
File, Tab 1 at 14-15. As set forth above, the order to reassign the appellant
became the Board’s final decision, and the agency cannot now collaterally attack
that decision. See Capeless , 78 M.S.P.R. at 622-23. An appellant is considered
to have prevailed in a case and to be entitled to attorne y fees only if he obtains an
enforceable order resulting in a “material alteration of the legal relationship of
the parties. ” Southerland v. Department of Defense , 122 M.S.P.R. 51 , ¶ 9 (2014) ;
Baldwin v. Department of Veterans Affairs , 115 M.S.P.R. 413 , ¶ 1 1 (2010) (citing
Buckhannon Board and Care Home , Inc. v. West Virginia Department of Health
and Human Resources , 532 U.S. 598 , 604 (2001) ). The extent of relief that an
appellant receives on his claim does not affect whethe r he is a prevailing party.
Southerland , 122 M.S.P.R. 51 , ¶ 9. Here, the administrative judge’s order
reversing the removal, mitigating the penalty, and ordering the agency to reassign
the appellant with back pay and other benefits, which the Board affirmed,
constituted an enforceable order resulting in a material alteration of the legal
relationship between the parties. See Driscoll , 116 M.S.P.R. 662, ¶¶ 7-9 (finding
that the appe llant was a prevailing party whe n one charge was not sustained and
the penalty of removal was mitigated to a demotion). Accordingly, the
administrative judge properly concluded that the appellant was the prevailing
party in the underlying appeal .
The administrative judge did not abuse her discretion in finding that the agency
knew or should have known that it would not prevail in its removal action.
¶11 On review, the agency argues that the administrative judge erred in relying
on her finding that the bank’s justification for cancel ling the appellant’s travel
card was not correct and her mischaracterization of the deciding official’s
deposition testimony as a basis for her conclusion that the agency knew or should
7
have known that it would not prevail on the merits ; thus, fees were warranted in
the interest of justice. APFR File, Tab 1 at 7 -11, 15 -16. The agency also argues
that an award of fees was not in the interest of justice because, absent a law, rule,
or regulation entitling the appellant to a re assignment, the agency could not
anticipate that it would be ordered to reassign the appellant. Id. at 15 -16.
¶12 An attorney fee award by the Board may be warranted in the interest of
justice when, e.g.: (1) t he agency engaged in a prohibited personnel pr actice;
(2) the agency action was clearly without merit or wholly unfounded, or the
employee was substantially innocent of the charges; (3) the agency initiated the
action in bad faith; (4) the agency committed a gross procedural error; or (5) the
agency k new or should have known that it would not prevail on the merits. Allen
v. U.S. Postal Service , 2 M.S.P.R. 420 , 434 -35 (1980).
¶13 Mitigation of the pen alty alone does not create a presumption that attorney
fees are warranted in the interest of justice. Dunn v. Department of Veterans
Affairs , 98 F.3d 1308 , 1313 (Fed. Cir. 1996). However, an agency ’s penalty
selection is part of the merits of the case , and an award of attorney fees is
warranted whe n the agency knew or should have known that its choice of penalty
would not be sustained . Gensburg v. Department of Veterans Affairs ,
80 M.S.P.R. 187, ¶ 7 (1998) ; Lambert v. Department of the Air Force ,
34 M.S.P.R. 501 , 505 -07 (1987). When the Board sustains the charges in an
adverse action appeal but mitigates the penalty based on evidence before, or
readi ly available to, the agency at the time it took the action, an award of attorney
fees is warranted in the interest of justice because the agency knew or should
have known that its choice of penalty would not be upheld. Capeless ,
78 M.S.P.R. at 621-22. The agency’s arguments regarding the administrative
judge’s findings attack the underlying merits of the initial decision, which are not
to be reevaluated in a proceeding on a motion for attorney fees. Id. at 622-23; see
also Yorkshire v. Merit Systems Protection Board , 746 F.2d 1454 , 1458 -59 (Fed.
Cir. 1984) (providing that an attempt to recharacterize the evidence and the
8
conclusions of the a dministrative judge in the underlying appeal is inappropriate
during an adjudication of the attorney fees request) .
¶14 The administrative judge’s findings regarding whether the agency knew or
should have known that its choice of penalty would not be upheld are consistent
with her findings regarding the underlying appeal . AID at 3 -11. In particular, the
administrative judge relied upon her findings in the underlying appeal that the
deciding official would not have upheld the removal had the appellant only h ad
one returned payment to the bank , and that the appellant asserted in his reply to
the proposed removal that the returned payments were in error and provided bank
recor ds to that effect. AID at 10 -11. Accordingly, the administrative judge did
not abuse her discretion in concluding that the agency knew or should have
known that it would not prevail. See, e.g. , Del Prete v. U.S. Postal Service ,
104 M.S.P.R. 429 , ¶ 11 (2007) (concluding that the administrative judge properly
found that attorney fees were warranted whe n the evidence warranting mitigation
of the penalty was before the agency when it made its decision to remove the
appella nt), overruled on other grounds by Driscoll , 116 M.S.P.R. 662 , ¶ 26.
The administrative judge did not err in declining to reduce the fees requested
because the appellant did not obtain all of the relief he sought.
¶15 The agency also claims that the appellant is not entitled to any fees because
he did no t obtain the relief he sought. APFR File, Tab 1 at 16 -17. Whe n, as here,
a party is entitled to an award of attorney fees, but did not succeed on every issue,
the most important factor to be considered in assessing the reasonableness of a
fee award is the results that were obtained. Driscoll , 116 M.S.P.R. 66 2, ¶ 21
(citing Hensley v. Eckerhart , 461 U.S. 424 , 434 (1983)) . When the appellant
prevails only on the issue of an appropriate penalty, an award of fees is not “all or
nothing.” Del Prete , 104 M.S.P.R. 429 , ¶ 15. If an attorney fee award is
disproportionate to the appellant’s overall degree of success, the fee award can be
reduced either by identifying the hours associated with the unsuccessful issues or
by “simply reduc[ing] the award to account for the limited success.” Id., ¶ 17
9
(quoting Hensley , 461 U.S. at 436-37). In a matter in which the appellant asserts
a single claim for relief under 5 U.S.C. §§ 7513 (d) and 7701 and seeks a single
desired outcome ; namely, that the Board set aside a removal action, he may raise
alternative arguments in support of that effo rt. Driscoll , 116 M.S.P.R. 662 , ¶ 26.
The Board should consider whether the degree of success warrants an award
based on all hours r easonably spent on the litigation and, if not, what adjustment
is appropriate. Id., ¶ 27. In doing so, the Boar d will weigh the significance of
the relief obtained against the relief sought. Id. The administrative judge who
decided the case on the meri ts is in the best position to determine whether the
amount requested is reasonable. Baldwin , 115 M.S.P.R. 413 , ¶ 23; Sprenger v.
Department of the Interior , 34 M.S.P.R. 664 , 669 (1987).
¶16 Here, the administrative judge did not explicitly address the degree of the
appellant’s success; however, we find that she did not err in finding that the
appellant claimed a reasonable number of hours spent on the litigation. The
appellant was unsuccessful in challenging the merits of the agency’s charge bu t
was successful i n obtaining the reversal of the agency’s removal action and a
lesser penalty of reassignment . ID at 22 . It is reasonable to award fees for the
appellant’s successful advancement of several arguments in support of h is claim
that the removal should be reve rsed, even if he did not prevail on all of his
arguments. See, e.g. , Taylor v. Department of Justice , 69 M.S.P.R. 299 , 304 -05
(1996) (finding that the time spent on arguments that were not found to be
persuasive should not be disallowed on the ground of lack of success whe n the
appellant succeeded in mitigating the penalty of removal to a 90 -day suspension).
Accordingly, we do not disturb the administrative judge’s finding that the fees
were reasonable on this ground.
The administrative judge did not err in awarding fees at the rate counsel
requested.
¶17 Finally, the agency argues that the administrative judge erred in awarding
fees a t a higher rate than the appellant agreed to pay his counsel and that the
10
appellant did not submit sufficient evidence that such a rate was customary.
APFR File, Tab 1 at 17 -19. The computation of a reasonable attorney fee award
begins with an analysis of two objective variables: the attorney’s customary
billing rate and the number of hours reasonably devoted to the case . Montalvo v.
U.S. Postal Service , 122 M.S.P.R. 687, ¶ 13 (2015); Mitchell v. Department of
Health and Human Services , 19 M.S.P.R. 206 , 208 (1984). An application to the
Board for reasonable attorney fees must include specific evidence of the
prevailing community rate for similar work . Mitchell , 19 M.S.P.R. at 210 ;
5 C.F.R. § 1201.203 (a)(3). If an attorney fees applicant submits sufficient
evidence concerning local billing rates, such as his fee agreement with his
attorney specifying the requested rates or an affidavit from his attorney
concerning his rates, he has satisfied his burden of proof regarding the
reasonableness of the charged rate and there is no requirement that he also submit
an affidavit from a local attorney concerning those rates, or otherwise show
first-hand knowledge of the prevailing local rates. Willis v. U.S. Postal Service ,
245 F.3d 1333 , 1339 -41 (Fed. Cir. 2001).
¶18 Where it is agreed that a specific fee is to be paid to an attorney for legal
services rendered on behalf of an appellant in a Board case, the Board presumes
that the amount agreed upon represents the maximum reasonable fee that may be
awarded. Caros v. Department of Homeland Security , 122 M.S.P.R. 231 , ¶ 7
(2015). This presumption is rebuttable by co nvincing evidence that the
agreed -upon rate was not based on marketplace considerations and that the
attorney’s rate for similar work was customarily higher, or by showing that she
had agreed to such a rate only because of the employee’s reduced ability to pay
and that the attorney’s customary rate for similar work was significantly higher.
Id.
¶19 Here, the appellant did not submit his fee agreements with either attorney
he retained. However, he submitted a sworn affidavit stating that he had lost the
retai ner he signed with his first attorney in a fire , and that he was unable to obtain
11
another copy because his first attorney was deceased; moreover, he attested that
he retained the attorney at a discounted rate of $300 and understood that the
unreduced rate was $400 . AF F, Tab 8 at 4 -5. He further attested that, upon
learning that his first attorney’s firm had merged with another firm, he agreed to
allow the second firm to represent him under the same conditions. Id. In a sworn
affidavit, the appellant’s attorney from the second firm attested that his hourly
rate was $400, but he charged the appellant a discounted rate of $295 because “he
was a Federal Employee and this Law Office was trying to assist him in whatever
means possible.” AFF, Tab 1 at 95. The appellant’s second attorney averred that
he had been awarded attorney fees at a rate of $400 in settlements and submitted
two settlement agreements containing l ump sum attorney fee payments , but the
agreements did n ot cont ain the attorney’s hourly rate. Id. at 97 -104. The
appellant’s attorney also cited one nonprecedential decision in which he was
successful in obtaining a fee award at a rate of $400 per hour. Id. at 94; see
Baerga v. Office of Personnel Managemen t, MSPB Docket No. NY-844E -12-
0187 -A-1, Addendum Initial Decisi on (July 1, 2016). Finally, the appellant
submitted an affidavit from an attorney practicing in the same region, who
attested that a rate of $375 -500 was a typical hourly rate for individual c lients in
employment matters. AFF, Tab 1 at 116.
¶20 Such evidence , which is largely unrebutted by the agency, was sufficient for
the administrative judge to find that the hourly rate charged to the appellant was
not based on marketplace considerations, but was based on the appellant’s
reduced ability to pay the regular, higher fee, and that his attorney’s customary
fee for similar work in the same community was $400 per hour. See Ishikawa v.
Department of Labor , 26 M.S.P.R. 258 , 260 (1985) (finding that counsel
successfully rebutted the presumption that the fee agreed upon between the
attorney and employee was the maximum fee awardable by showing that she had
agreed upon the rate only because of the employee’s reduced ability to pay and
that her customary fee for similar work was significantly higher). The agency has
12
not contested the rate for the work of the junior associate except to point out that
the affidavit from outside counsel was completed prior to the associate’s entry
into the bar; however, the rate claimed for the work of the junior associate is
lower than the range of rates discussed by outside counsel. AFF, Tab 1 at 96,
APFR File, Tab 1 at 18. Accordingly, we discern no reason to disturb the
administrative judge’s finding that the rate claimed fo r junior counsel was
reasonable.
ORDER
¶21 We ORDER the agency to pay the attorney of record fees in the amount of
$108,225.00 . The agency must complete this action no later than 20 days after
the date of this decision.
¶22 We further ORDER the agency to tell the appellant and the attorney
promptly in wr iting 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 further ORDER the
appellant and the attorney to provide all necessary information that the agency
requests to help it carr y 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).
¶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 appellant
believes that the agency did not fully carry out the Bo ard’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).
13
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).
If you submit a petition for 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.
14
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. ____ , 137 S. Ct. 1975 (2017). If you have a
representative in this case, and your representative receives this decision before
you do, then you must file with the district court no later than 30 calendar days
after your representative receives this decision. If the action involves a claim of
discrimination based on race, color, religion, sex, national origin, or a disabling
condition, you may be entitled to representation by a court -appointed lawyer and
15
to waiver of any requirement of prepayment of fees, costs, or other security. See
42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial revi ew pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8 ) or
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
16
disposition of allegations of a prohibited personne l practice described in
section 2302(b) other than practices described in section 2302(b)(8), or
2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial
review either with the U.S. Court of Appeals for the 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
for Merit Systems 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.
6 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction ex pired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195,
132 Stat. 1510.
17
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/ Court_Locator/CourtWebsites.aspx .
FOR THE BOARD:
Washington, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board
DISSENTING OPINION O F TRISTAN L. LEAVITT
In
John Allan Scere v. Department of Homeland Security
MSPB Docket No. NY -0752 -14-0157 -A-1
¶1 In my Dissent in the appellant’s compliance case, NY -0752 -14-0157 -C-1, I
explained why I disagreed with my colleagues’ decision to deny the agency’s
petition for review and affirm the compliance initial decision which granted in
part the appellant’s petiti on for enforcement and found the agency in
noncompliance. I stated my view that, notwithstanding that the Board’s order on
the merits in this case rendered final the initial decision reversing the agency’s
action, the Board can raise subject matter jurisd iction at any time to collaterally
attack a final judgment if the lack of jurisdiction directly implicates issues of
sovereign immunity; that, in the underlying action, the administrative judge
sustained the charge of failing to meet a condition of employm ent; that, absent an
agency policy or regulation obligating reassignment, the administrative judge
did not have the authority to reassign the appellant and was required to sustain
the agency’s removal action; that therefore she erred in finding that the re moval
action was unjustified and unwarranted, as required by 5 U.S.C. § 5596 (b)(1) of
the Back Pay Act, and, as such, she did not issue an enforceable order that would
entitle the appellant to back pay. I stated that, for these reasons, I would grant
the agency’s petition for review, reverse the compliance initial decision, and deny
the appellant’s petition for enforcement.
¶2 Similarly, I also disagree with my colleagues’ decision to deny the agenc y’s
petition for review and affirm the addendum decision which granted the
appellant’s motion for attorney fees. Because the administrative judge was
required to sustain the agency’s removal action, the appellant cannot support his
claim that he is a prev ailing party, a requirement to be entitled to attorney fees.
SENSITIVE SE CURITY INFORMATION
2
Therefore, I would grant the agency’s petition for review, reverse the addendum
initial decision, and deny the appellant attorney fees.
/s/
Tristan L. Leavitt
Member | SCERE_JOHN_ALLAN_NY_0752_14_0157_A_1_FINAL_ORDER_REDACTED_2026277.pdf | 2023-02-22 | null | NY-0752 | NP |
3,499 | https://www.mspb.gov/decisions/nonprecedential/WILLIAMS_JOHN_CAREY_AT_0752_20_0541_I_1_REMAND_ORDER_2004180.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
JOHN CAREY WILLIAMS,
Appellant,
v.
DEPARTMENT OF EDUCAT ION,
Agency.
DOCKET NUMBER
AT-0752 -20-0541 -I-1
DATE: February 21, 2023
THIS ORDER IS NONPRECEDENTIAL1
Pamela Keith , 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
Tristan L. Leavitt, Member
REMAND ORDER
¶1 The agency has filed a petition for review of the initial decision, which
reversed the agency action reducing the appellant in grade based on a charge of
failure to maintain a required certification . For the reasons discussed below, we
GRANT the agency ’s petition for review, VACATE the portion of the initial
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
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
decision finding that the appellant established that he was entitled to convert his
existing certification , and REMAND the case to the Atlanta Regional office for
further adjudication in accordance w ith this Remand Order.
BACKGROUND
¶2 The appellant was hired by the agency as a GS -14, Step 10 Contract
Specialist in May 2016 . Initial Appeal File (IAF), Tab 1 1 at 5, 14 . Immediately
prior to his appointment with the agency, the appellant was not active ly
employed for approximately 1 year while he cared for his mother. Hearing
Transcript (HT) 1 at 23 5-36 (testimony of the appell ant); see IAF, Tab 5 at 6 -7.
Prior to that, he worked in various c ontracting and acquisitions -related roles for
private companies, the Department of Defense, and the U.S. Army for nearly
15 years. IAF, Tab 5 at 7 -13. The appellant obtained a Defense Acquisition
Workforce Improvement Act (DAWIA) Level III certification in September 2007,
while employed as a civilian employ ee with the Department of the Army
and joined the U.S. Army Acquisition Corps in November 2008. IAF, Tab 10
at 32-33, 37, 47-48.
¶3 As a Contract Specialist with the agency at the GS -14 level, the appellant
was required to “serve[] as a warranted Contracting Officer for pre - and post -
award functions ” for acquisition contracts on the agency ’s behalf, and one of the
major duties identified in the GS -14 position description required that the
incumbent “[s]erves as an official authorized to obligate the United S tates with
unlimited signatory authority for a significant system or program. ” Id. at 18. In
order to act as a signatory authority for an “unlimited warrant” (i.e., a warrant for
contracts valued in excess of $10 million ), the agency required its contracting
personnel to, inter alia , obtain and maintain a Level III Federal Acquisition
Certification in Contracting (FAC -C Level III). IAF, Tab 12 at 208 -09; see IAF,
Tab 25 at 199.
3
¶4 By letter dated February 13 , 2020, the agenc y proposed to reduce the
appellant in grade from a GS -14, Step 10 Contract Specialist to a GS -12, Step 10
Contract Specialist based on the charge of failure to maintain a required
certification . IAF, Tab 11 at 5-11. Specifically, t he agency concluded tha t the
appellant failed to obtain a FAC -C certification as required for his position at the
GS-14 level. Id. at 8. After considering the written response to the proposal
provided by the appellant ’s union representative, see IAF, Tab 10 at 28 -119, the
agen cy sustained the charge and reduced the appellant in grade to a GS -12
Contract Specialist , effective May 29 , 202 0. Id. at 18-26.
¶5 The appellant filed a Board appeal challenging his reduction in grade and
requested a hearing . IAF, Tab 1 at 2. He did not raise any affirmative defenses
in connection with his appeal . After holding the appellant ’s requested hearing,
IAF, Tabs 34, 37, the administrative judge issued an initial decision that reversed
the reduction in grade and ordered the agency to restore the appellant to his
GS-14, Step 10 Contract Specialist position , IAF, Tab 42, Initial Decision (ID)
at 1, 12. The administrative judge determined that based on his review of the
record, the appellant had demonstrated that he met each of the speci fic criteria
identified in the agency ’s policies required to obtain a FAC -C Level III
certification, and so the agency failed to carry its burden of proving that the
appellant was not qualified for a FAC -C Level III certification at the time it
reduced his grade. ID at 8 -11. The administrative judge further determined that
if the agency had properly awarded the appellant the FAC -C Level III
certification for which he qualified, the appellant would have met the necessary
requirements to be awarded an unlim ited contracting warrant and thus would have
been capable of performing the full range of his du ties at the GS -14 level. I D
at 11-12. Because the agency ’s decision to deny the appellant the certification
necessary to perform his job duties was improper, the administrative judge
concluded that the agency failed to prove its charge and so the reduction in grade
decision had to be reversed. ID at 12. The administrative judge also ordered the
4
agency to provide interim relief to the appellant in accordance w ith 5 U.S.C.
§ 7701 (b)(2)(A) if either party filed a petition for review. ID at 13.
¶6 The agency has filed a petition for review of the initial decision arguing that
the administrative judge made er roneous material findings of fact in determining
that the appellant met the FAC -C Level III certification requirements. Petition
for Review (PFR) File, Tab 1 at 4 -18. The agency has also certified its
compliance with the administrative judge ’s interim re lief order. Id. at 20 -21. The
appellant has filed a response in opposition to the petition for review, and the
agency has filed a reply . PFR File, Tab s 3-4. The appellant also filed a pleading
alleging that the agency failed to comply with the administrative judge ’s interim
relief order. PFR File, Tab 5. Finally, the appellant filed a pleading styled as a
petition to enforce t he initial decision and to order the agency to provide interim
relief and the agency filed a response . PFR File, Tab s 9, 11 .
DISCUSSION OF ARGUME NTS ON REVIEW
¶7 On review, the agency argues that the administrative judge made two
erroneous findings of material fact. PFR File, Tab 1 at 4. First, it argues that the
administrative judge arbitrarily and improperly construed the agency ’s policies
concerning how it calculates the number of continuous learning points ( “CLPs ”)
FAC -C certification applicants must maintain in order to convert their existing
certification under a different acquisition certification system, the Defen se
Acquisition Workforce Improvement Act (DAWIA) , to a FAC -C certification. Id.
at 8-15. The agency argues that b ased on his erroneous interpretation of its
policies, the administrative judge incorrectly concluded that the appellant had a
sufficient numb er of CLPs to convert his DAWIA certification to a FAC -C. Id.
¶8 Second, the agency argues that, even assuming the administrative judge ’s
improper interpretation of its policies, he still erred when he miscalculated the
number of CLPs the appellant had ear ned by double -counting one of the courses,
resulting in the appellant being credited with more CLPs than he had actually
5
earned. Id. at 15 -17. The agency argues , even under the administrative judge’s
erroneous interpretation of the policies, that after r emoving the double -counted
course from the appellant ’s CLP count, he did not have a sufficient number of
CLPs to qualify for conversion of his DAWIA certification to a FAC -C. Id.
at 16-17. The agency argues that because all GS -14 Contract Specialists were
required to obtain a FAC -C Level III certification —without which the appellant
could not perform the essential functions of his position at the GS -14 level —it
established a nexus between his failure to o btain the certification and the
reduction in gra de, and that the grade reduction penalty was reasonable. Id.
at 17-18. Consequently, it argues that the initial decision should be reversed and
the agency action reducing the appellant ’s grade for failure to maintain a required
certification should be su stained. Id. at 18.
The agency has complied with the administrative judge ’s interim relief order .
¶9 Before addressing the merits of the agency ’s arguments on review, we first
address the issue of interim relief. When an administrative judge orders interim
relief under 5 U.S.C. § 7701 (b)(2)(A), an agency, i n its petition for review, must
certify that it has complied with the interim relief order either by p roviding the
required interim relief or showing that it determined that the appellant ’s return to,
or presence in, the workplace would be unduly disruptive. 5 C.F.R.
§ 1201.116 (a). An agency ’s failure to provide the required certification with its
petition for review or to provide evidence of compliance in response to a Board
order on that subject may result in dismissal of the agency ’s petition for review.
5 C.F.R. § 1201.116 (e).
¶10 With its petition for review the agency submitted a copy of a letter
addressed to the appellant acknowledging that the initial decision ordered it to
reinstate him to the GS -14 Contract Specialist position with the attendant pay and
benefits while any petition for review was pending, as well as a Standard F orm
(SF) 50 showing that the appellant was promoted to the GS -14 position in order
to “provide[] relief required by public law 101 -12, pending final decision of the
6
MSPB. ” PFR File, Tab 1 at 20 -21. The appellant appears to acknowledge that
the agency rei nstated him to his position as a GS -14 Contract Specialist, but
argues that the agency only “partially complied ” with the administrative judge ’s
interim relief order for the following reasons: (1) it continued to deny him the
right to take certain courses for his DAWIA certification; (2) failed to convert his
DAWIA certification to a FAC -C Level III certification, insisting that he needed
to take additional courses and provide course records; (3) refused to approve the
transfer of his training record data to a new database; (4) included incorrect
information on his promotion SF-50; and (5) placed him on an Individual
Performance Plan . PFR File, Tab 5 at 4 -10.
¶11 In a separate pleading, the appellant requests that the Board enforce the
initial decision by or dering the agency to do the following: immediately pay him
all back pay and interest due ; award him a FAC -C level III certification and full
contracting authority; refrain from requiring him to repeat previously -completed
training courses; and cease and d esist from reta liating against him. PFR File,
Tab 9 at 4-10.
¶12 As an initial matter, t o the extent the appellant is seeking to enforce the
interim relief provisions of the initial decision, the Board ’s regulations do not
allow for a petition for enforcement of an interim relief order , so t he appellant ’s
petition for enforcement is denied and we instead consider his pleading as a
challenge to the agency ’s certification of compliance. Elder v. Department of the
Air Force , 124 M.S.P.R. 12 , ¶ 20 (2016) ; 5 C.F.R. § 1201.116 (b). To that end,
the appellant ’s argument that the agency is not in compliance with the
administrative judge’s interim relief order is without merit. The scope of the
Board ’s review of the interim relief process is limited to determining whether the
agency actua lly made an undue disruption determination and whether the
employee has received appropriate pay and benefits. King v. Jerome , 42 F.3d
1371 , 1374 -75 (Fed. Cir. 1994); Powers v. Department of the Treasury ,
86 M.S.P.R. 256 , ¶ 6 (2000). With respect to the appe llant ’s claim that his SF -50
7
includes incorrect information, he has not specified which information he
believes is incorrect. Nevertheless, we have reviewed the provided SF -50 and
conclude that the information contained in it is accurate and provides no r eason to
conclude that the agency is not in compliance with the administrative judge ’s
interim relief order. See PFR File, Tab 1 at 21. Regarding the appellant ’s
remaining allegations, none of his claims concern the pay and benefits of his
position so th ey also do not provide a basis for concluding that the agency has not
complied with the interim relief order.
¶13 The purpose of interim relief is not to make the appellant whole at the
interim relief stage of the proceedings, but rather, to provide the limited relief of
5 U.S.C. § 7701 (b)(2)(A) during the pend ency of the petition for review process.
Johnston v. Department of the Treasury , 100 M.S.P.R. 78 , ¶ 25 (2005).
Accordingly , und er the circumstances, we find no basis upon which to dismiss the
agency ’s petition for review for failure to comply with the administrative judge ’s
interim relief order.
The administrative judge erred by concluding th e appellant established that he
met the requirements to qualify for FAC -C Level III certification based on the
record before him.
Applicable legal standard for a charge of failure to fulfill a condition of
employment.
¶14 The charge of failure to fulfill a condition of employment contains two
eleme nts: (1) the requirement at issue is a condition of employment; and (2) the
appellant failed to meet that condition. Gallegos v. Department of the Air Force,
121 M.S.P.R. 349 , ¶ 6 (2014). Absent evidence of bad faith or patent unfairness,
the Board defers to the agency ’s requirements that must be fulfilled for an
individual to qualify for appointment to, or retention in, a parti cular position. Id.,
¶ 9. However, in appeals such as this, when the agency controls the withdrawal
or denial of its certification or approval of an employee ’s fitness or other
qualification for the position, the Board ’s authority generally extends to a review
of the merits of that withdrawal or revocation. Adams v. Department of the Army ,
8
105 M.S.P.R. 50 , ¶¶ 10, 19 (2007), aff’d, 273 F. App ’x 947 (Fed. Cir. 2008) ;
Laycock v. Department of the Army , 97 M.S .P.R. 597 , ¶¶ 2, 14-18 (2004)
(considering the merits of the agency ’s withdrawal of the appellant ’s
qualifications as an attorney) , aff’d, 139 F. App’x 270 (Fed. Cir. 2005) ; Graham
v. Department of the Air Force, 46 M.S.P.R. 227 , 229, 233 -37 (1990)
(considering a medical officer ’s failure to maintain agency medical credentials) .
¶15 Here, the parties do not dispute that the appellant was required to maintain
an unlimited warrant as a part of his essential job duties at the GS -14 level, and
that to obtain an unlimited warrant under the agency ’s policies, a GS -14
Contracting Officer seeking a warrant after Jan uary 1, 2007, like the appellant,
had to obtain and maintain a FAC -C Level III certification, among other things.
IAF, Tab 11 at 18 , Tab 12 at 208 -09. Consequently, the only matter at issue on
review is whether the agency established that the appellant f ailed to meet that
condition of employment.
Background information on the FAC -C certification .
¶16 As previously noted, as a part of his job duties as a GS -14 Contract
Specialist , the appellant was required to act as a signatory authority for
“unlimited warr ant” contracts, and to be eligible for an unlimited warrant, he was
required to possess the core competencies required for a FAC -C Level III
certification. IAF, Tab 12 at 208 -09; see IAF, Tab 11 at 18, Tab 25 at 199. As
described in the agency ’s Acquisit ion Certification Program for Contracting
Professionals, the FAC -C certification program was established in response to
instructions by the Office of Management and Budget (OMB) to civilian agencies
to create a uniform certification program for contracting professionals to
“standardize the education, training, and experience requirements for acquisition
professionals. ” IAF, Tab 12 at 195.2 The current FAC -C certification process
2 As the administrative judge observed, the entity responsible for setting the FAC -C
training curriculum, the Office of Federal Procurement Policy, has revised the program
9
was modeled after the Department of Defense ’s (DoD) DAWIA certification
process and was created with the goal of “establish[ing] policies and a
government -wide standard for skills -based training for the Federal acquisition
workforce ” by “more broadly defining the acquisition workforce and more close ly
aligning civilian and defense acquisition workforce requirements. ” Id. at 195 -96.
¶17 The FAC -C certification process has five major components: (1) core
competencies ; (2) education ; (3) training ; (4) professional experience ; and (5) a
continuous learni ng requirement. Id. at 202 -03. Further, the FAC -C has three
different certification levels, Level I, Level II, and Level III, each of which has
different education, training, and years of experience requirements. Id. at 204 -05,
207.
¶18 All three levels spe cify that, to maintain a FAC -C certification, “acquisition
professionals are required to earn 80 CLPs of skills currency every two years. ”
Id. at 204 -05. The agency ’s contracting officer warrant requirements also specify
that all Department of Education employee warrant holders “are required to meet
a minimum of 80 CLPs every two years to maintain the contracting officer ’s
warrant. ” Id. at 207.
¶19 As an alternative to applying for a FAC -C, an employee may instead seek to
convert their existing DAWIA certi ficate into a FAC -C certificate at the same
level. IAF, Tab 12 at 206 , Tab 25 at 55. This process may be completed in one
requirements several times since its introduction. IAF, Tab 12 at 195 -96; see ID at 3 -5.
The record includes copies of both the 2008 and 2014 versions of the policy, but the
appellant argued below and testified during the hearing that the agency used the 2008
version of the policy in assessing his FAC -C conversion application, and that he was
only ever provided a copy of the outdated 2008 version of the policy. IAF, Tab 25
at 9-10; HT 2 at 11 -15 (testimony of the appellant) ; see IAF, Tab 11 at 5, 11, 23 -84;
compare Tab 12 at 193 -254, and Tab 25 at 197 -219, with Tab 25 at 57 -118. We have
reviewed both versions of the policy and conclude that there is no substantive
difference between the two policies with respect to the provisions relevant to this
appeal —those governing the proper calculation of CLPs for the purpose of a FAC -C
conversion a pplication and the procedures related to the fulfillment process . See IAF,
Tab 12 at 203 -07, 219 -50, Tab 25 at 67 -72, 83 -114.
10
of three ways; first, if the DAWIA certificate is current, the applicant can convert
the DAWIA certificate by demonstrating that the y meet the FAC -C education
requirements at the same level . IAF, Tab 25 at 55. Second, i f the DAWIA
certificate is over 2 years old and the applicant has maintained 80 CLP credits for
each 2 -year period since they obtained the DAWIA certificate , they can convert it
by proving that they meet the education requirements and submitting their CLP
training record for validation . Id. Finally, if an applicant has a lapsed DAWIA
certificate, but has not maintained the 80 CLP credit requirement for each 2 -year
period since they obtained the certificate, they can complete additional CLP
credits “until the maintenance standard is reached. ”3 Id. Regardless of the
method by which conversion occurs, the agen cy’s documents specify that the
DAWIA certification “must be current to be converted to FAC -C certification. ”
Id. at 56. (Emphasis in original).
¶20 Finally, as an alternative to the direct FAC -C certification application or
DAWIA certificate conversion proc esses, the third way a candidate can obtain a
FAC -C certification is through the fulfillment process. IAF, Tab 12 at 206.
Fulfillment is a process by which “candidates must submit, and supervisors must
review, evidence as to how the required competencies for a particular
certification level were attained through alternative training, experience,
education, certification by another recognized organization, or other
developmental activities. ” Id. at 206 , 223. Applicant s can complete a fulfillment
applicat ion by submitting a spreadsheet with narrative justifications explaining
3 The chart used by the Acquisition Career Manager (ACM) states that an applicant can
requalify for a FAC -C certification if they meet the “training, education, or experience”
requirements outlined in the agency’s policies. IAF, Tab 25 at 55 (emphasis added) .
However, b ased on the context and other material in the agency ’s policies, we agree
with the agency ’s argument on r eview that the use of “or” in this context, indicating
that an applicant need only meet one of the three requirements , was a typographical
error and instead, that all three of these requirements must be met for conversion to a
FAC -C certification. See PFR File, Tab 1 at 7 n.3; IAF, Tab 12 at 204-06.
11
how they meet each of the core competencies, and the fulfillment packages are
reviewed by the Acquisition Career Manager (ACM) in coordination with the
applicant ’s first -level supervi sor. Id. at 200-01, 206, 223 -50. After recounting
the above information, the administrative judge considered whether the appellant
established that he met the requirements for certification through any of the three
potential methods . ID at 7 -12.
We agree with the administrative judge’s finding that the appellant did not
meet the education, training , and experience requirements for a FAC -C
Level III certification.
¶21 In May 2014, the agency expanded the core curriculum necessary to be
certified at th e various FAC -C levels. ID at 8. Specifically, for Level III, the
training requirements included completion of CON 360, as well as completion of
1 of 6 specific courses (ACQ 315, ACQ 370, CON 370, ACQ 265, CON 244,
CON 252), completion of 32 hours of ele ctives, and completion of one HBS
business module other than HBS 428. Id. After reviewing the appellant’s
training records, the AJ concluded that the appellant had not completed the
courses necessary to meet the training requirements for each of the thre e FAC -C
certification levels. We agree.
The administrative judge’s finding that the appellant could qualify for
conversion of his DAWIA certification to a FAC -C certification is not
supported by the record.
¶22 In analyzing whether the appellant qualified f or conversion, the
administrative judge noted that to be eligible for conversion to a FAC -C
certificate at the same level , the DAWIA certificate must be “current” and that
there was no dispute that the appellant’s DAWIA III certification had lapsed . ID
at 9 -12. Specifically, the appellant’s certification lapsed when he failed to
complete the required number of CLPs during the 2013 to 2015 certification
12
maintenance cycle.4 Id. Nevertheless, the administrative judge noted that based
on documentation inc luded in the record, an employee with a lapsed DAWIA
certificate could convert that certificate to a FAC -C certificate at the same level
by accruing additional CLPs until the maintenance standard was reached. ID at 9.
The administrative judge continued t hat, in order to maintain a certification, an
employee must earn 80 CLPs every 2 years and thus, if the appellant could
demonstrate that he earned 80 CLPs “during any p ertinent 2 -year period after he
was hired by the agency, ” he would have established that he qualified for a
FAC -C certification at the same level as his DAWIA certification. Id.
¶23 On review, the agency argues that the administrative judge erred when he
concluded that the appellant could establish his qualification to a FAC -C
certification b ased on conversion of his DAWIA certification if he showed that he
earned 80 CLPs during “any pertinent 2 -year period after he was hired by the
agency ,” noting that the administrative judge did not cite to anything in the
record to support this conclusion. PFR File, Tab 1 at 8. We agree . There is
nothing in record to support the administrative judge ’s finding that the appellant
could convert his lapsed DAWIA certification to a FAC -C certification at the
same level if he showed that he earned 80 CLPs duri ng “any pertinent 2 -year
period ” after he was hired by the agency. Instead, we conclude that all of the
evidence, including the plain language of the agency ’s policies, the testimony
provided by the agency official responsible for approving certification requests,
and the other documentary evidence, make clear that, in order to qualify for
4 As is the case with maintenance of a FAC -C certification, in order for a DAWIA
certificate to remain current and valid under DoD regulations (that is, in order to be
entitled to renewal of an existing certifi cation at the end of each 2 -year renewal period),
certification holders are required to “engage in at least 80 hours of [contin uous learning
(CL)] every 2 years (with a goal of engaging in 40 hours annually), commencing from
the time the member enters an [ Acquisition Work Force] position . . . .” DoD
Instruction 5000.66, Defense Acquisition Workforce Education, Training, Experience,
and Career Development Program , §§ 6.1.k, 6.3.a -b, G.1 ( Sep. 13, 2019 ).
13
conversion of a lapsed DAWIA certification to a FAC -C certification at the same
level, an applicant must demonstrate that they reached the “maintenance
standard ” to get their lapsed certification current, meaning that they earned at
least 80 CLPs for each 2-year period from the date of initial certification, through
the date of the conversion application.
¶24 As the agency notes, the agency official responsible for assessing
conversion requests, the ACM , utilized a chart explaining how the CLP
maintenance requirement works as a part of her review of the appellant ’s
conversion ap plication. IAF, Tab 12 at 20 -21, 23 -24. The chart, which is
included in the record, provides an illustrative example for how to calculate the
80 CLP maintenance requirement over the course of multiple “maintenance
cycles, ” which are defined as each 2 -year period following the acquisition date of
the certification for which conversion is being sought. Id. at 24. In the provided
example, the hypothetical applicant received their DAWIA certification on
January 22, 2008, and applied for FAC -C certification in February 2016,
representing an 8 -year period, or 4 full maintenance cycles. Id. The example
notes that because 4 full maintenance cycles had elapsed since initial
certification, 80 CLP credits were required for each maintenance cycle, meaning
that 320 total CLPs would be required for that hypothetical applicant to get their
expired DAWIA certificate current and convert the DAWIA certificate to a
FAC -C certificate at the same level. Id.
¶25 Other evidence in the record also supports the conclusion that t he CLP
maintenance requirement applied to each maintenance period as opposed to any
single maintenance period , as the administrative judge determined. In an email
the ACM sent to the appellant explaining why his FAC -C conversion application
was being deni ed, the ACM explained that the appellant ’s “continuous learning
(CL) cycles [ran] from 2006 -2014 (e.g. four cycles), ” but that based on the CLP
spreadsheet self -certification documentation the appellant submitted, he was
“only compliant (meaning [the appel lant] met the 80 point requirement) in 1 of 4
14
CL cycles from 10/1/2010 -9/30/2012. ” IAF, Tab 12 at 5. The ACM concluded
the email by stating that based on the appellant ’s own documentation “I am not
seeing any official document(s) that validate you meeting the required number of
continuous learning points, ” informing the appellant “you still do not meet the
required points for each CL cycle according to the requirements of [the Office of
Federal Procurement Policy] and FSA FAC -C policy . . . . ” Id. (emphasis
added).
¶26 Requiring that FAC -C conversion applicants with existing certifications
meet the biennial CLP requirement in every 2 -year period also aligns with the
agency’s stated goal of “creating a federal acquisition workforce with the skills
necessary to deliver best value products and services.” IAF, Tab 12 at 195.
Mandating applicants for conversion to prove that they have maintained currency
in their existing certifications ensur es the agency that such applicants have
received consistent, periodic training on acquisition -related topics over the course
of their careers . See id. at 203 (noting that “CLPs can be used to assist
employees in obtaining core competencies, maintaining critical acquisition skills,
and acquiring agency -specific tra ining,” and that a “FAC -C will expire if the
80 CLPs are not earned every two years.”) .
¶27 There is further support for this reading of the agency ’s policy (i.e.,
requiring that the 80 CLP 2 -year maintenance requirement is satisfied in each
maintenance cycle ) in testimony offered by the ACM at the hearing. In direct
testimony on this point, the ACM testified that the 2 -year CLP maintenance
periods are calculated from the date that the certificate was first obtained, and
that applicants must “show that they me t the 80 point requirement in every
continuous learning cycle ” thereafter, emphasizing that it “depends on when the
certificate was achieved, how many continuous learning cycles they ’re going to
have in the period to show me that they met the 80 point requ irement. ” HT 1
at 17 (testimony of the ACM). Addressing the appellant specifically, she noted
that because the appellant ’s DAWIA certification was issued in 2007 , “he needed
15
to have every period laid out with the 80[ -]point requirement of points that he met
in each cycle. ” HT 1 at 40 (testimony of the ACM). The ACM later answered in
the affirmative that a person converting their DAWIA certification to a FAC -C,
“still [had] to prove that they met the 80 CLP requirement every two years[.] ” Id.
at 44.
¶28 The ACM stated that the appellant ’s problem arose from the fact that when
he left DoD in 2013, he did not keep up with the biennial CLP requirement to
keep his DAWIA certification current, so when he moved to the Department of
Education and attempted to get his DAWIA certification current in order to apply
for conversion to the FAC -C, he would “still need those 80 [continuous learning]
points every two years. ” Id. at 81; see IAF, Tab 5 at 7 -8.
¶29 The ACM also offered an example of an agency employee who se
certification lapsed during a 2 -year period because she was sick and unable to
certify her compliance with the 80 CLP requirement at the time she was required
to recertify. HT 1 at 81 -82 (testimony of the ACM) . As the ACM explained , that
employee was able to later gather training record documents showing that she had
completed 80 CLPs during that 2 -year cycle where she lapsed, the training
records were validated, and her certification was reinstated. Id. at 82.
¶30 The ACM again emphasized that an emp loyee could reinstate a lapsed
certification by producing a record of completed CLPs from the period where
they were short of the 80 CLP requirement like the appellant attempted to do, but
nevertheless made clear that the records had to show that the employee earned the
CLPs “within that timeframe ,” otherwise the certification would be revoked and
the employee ’s only recourse would be to obtain the certification again. Id.
at 85-86.
¶31 The AMC noted that in the appellant ’s circumstance, “from September
[20]13 through September [20]15, [the appellant] only got one CLP ” and so he
“didn ’t meet the 80 point requirement ” for that maintenance cycle. Id. at 100 -01.
16
¶32 The ACM subsequently summarized the maintenance requirement, noting
that if the appellant could not show that he met the 80 CLP requirement “in each
continuous learning cycle from the date of [his] certification . . . the conversion
will never be approved because you need the documentation. ” Id. at 101.
Thereafter , clarifying the administrative judge’s mistaken conclusion that the
appellant could never convert his DAWIA certification, the ACM testified that
the appellant was not foreclosed from receiving his FAC -C fulfillment because he
could either go through the fulfillment process or re -complete the process of
“taking the classes and reapplying” for the FAC -C certification in the first
instance. Id. at 104 , 107 -108.
¶33 Finally, the appellant appears to have confirmed in his own testimony that
he understood he nee ded to meet the 80 CLP requirement in each 2 -year period.
See HT 1 at 264 -65 (testimony of the appellant) ( “Q: Okay. So in this email, at
least from 2016, you were acknowledging that you do need to show that you
earned CLPS, at least 80 CLPS, every two y ears to meet the FAC -C requirement?
A: I knew that every two years I had to do 80 CLPS . . . . The requirement didn ’t
change from DOD. You need that 80 CLPS. Q: Okay. A: Every two years. ”);
see also IAF, Tab 25 at 14 (appellant ’s responses to agency interrogatories,
acknowledging that conversion of a DAWIA certification to a FAC -C at the same
level could be accomplished by “(A) Showing the (80) completion of continuous
learning points for each two year period . . . .”) (emphasis added).
¶34 In the initial decision, the administrative judge did not base his finding that
the 80 -point biennial CLP requirement could be met in “any pertinent 2-year
period ” on his observation of the witnesses ’ demeanor during the hearing, nor did
he consi der the relevant Hillen factors or otherwise make any credibility -based
findings in the initial decision. ID at 7 -12; see Hillen v. Department of the Army ,
35 M.S.P.R. 453 , 458 (1987) (setting forth the factors used to assess the
credibility of a witness ’s testimony, including: (1) the witness ’s opportunity and
capacity to observe the event or act in question; (2) the witness ’s character;
17
(3) any prior inconsistent statement by the witness; (4) a witness ’s bias or lack of
bias; (5) the contradiction of the witness ’s version of events by other evidence or
its consistency with other evidence; (6) the inherent probability of the w itness ’s
version of events; and (7) the witness ’s demeanor ). Instead, he appears to have
reached this determination based on his own interpretation of the agency ’s
policies.
¶35 Where, as here, an administrative judge ’s findings are not based on his
assessm ent of witnesses ’ demeanor, the Board is free to re -weigh the evidence
and substitute its own judgment on credibility issues, which we elect to do here.
Haebe v. Department of Justice , 288 F.3d 1288 , 1302 (Fed. Cir. 2002); Hendricks
v. Office of Personnel Management , 109 M.S.P.R. 179 , ¶ 8 (2008). The ACM
was the official charged with implementing the agency ’s policies relat ed to
FAC -C certifications and with approving certification requests, and thus would
have been in the best position to interpret the a gency ’s policy on this point, so we
conclude that the first Hillen factor supports a finding that, based on the ACM ’s
unrebutted testimony, FAC -C conversion applicants must obtain at least 80 CLPs
in each 2 -year period following certification for an existi ng certification to
remain valid and convertible to the FAC -C. Hillen , 35 M.S.P.R. at 458 . The
ACM also testified consistently about the proper interpretation of the CLP
maintenance requirement, even when asked for clarification on the issue from the
administrative judge and when pressed by appellant ’s counsel on
cross -examination, and her testimony was consistent with her prior guidance to
the appellant on this point. See IAF, Tab 12 at 5. Accordingly, the third Hillen
factor also supports this finding. Hillen , 35 M.S.P.R. at 458 . Finally, the ACM ’s
testimony concerning how to interpret the CLP maintenance requirement is
consistent with the other evidence in the record, including the plain language of
the agency ’s poli cy and the guidance materials the ACM used to assess
conversion applications, so the fifth Hillen factor also supports crediting the
18
ACM ’s testimony on this point. Id.; see IAF, Tab 12 at 5, 23 -24, Tab 25
at 55-56.
¶36 For the foregoing reasons, we credit t he ACM ’s testimony stating that, to
convert a DAWIA certification to a FAC -C certification at the same level, an
applicant must demonstrate that they earned at least 80 CLPs during each 2-year
period following initial certification, as opposed to meeting t he 80 CLP
requirement “during any pertinent 2-year period ” following initial certification.
Cf. ID at 11 (emphasis added). Accordingly, we conclude that the administrative
judge ’s finding that the appellant could establish that he qualified for a FAC -C
Level III certification based on the conversion of his DAWIA Level III certificate
if he could demonstrate that he earned 80 CLPs during “any pertinent 2 -year
period after he was hi red by the agency, ” is inconsistent with the plain language
of the agency ’s policies, the record evidence, and the hearing testimony.
Consequently, we vacate that finding and instead conclude that the agency ’s
policies required the appellant to show that he met the 80 CLP maintenance
requirement in each 2-year period following receipt of his DAWIA certification
in 2007.
The appellant failed to establish that he earned a sufficient number of
CLPs to reinstate his lapsed DAWIA certification and convert it to the
FAC -C.
¶37 As applied to the appellant ’s circumstances, it is undisputed that he first
received his DAWIA Level III certification in September 2007 and applied for
FAC -C conversion during the 2019 maintenance cycle. IAF, Tab 10 at 48 , Tab 12
at 126. O n review, the agency argues that the appellant is obligated to show that
he met the maintenance requirement of 80 CLPs per maintenance cycle for the
entirety of that 12 -year period, representing six maintenance cycles, and so he
must show that he earned a minimum of 480 CLPs to qualify for conversion of his
DAWIA to a FAC -C certificate at the same level. PFR File, Tab 1 at 8 -10. In the
spreadsheet the appellant provided to support his conversion application, he
19
claimed that he earned 1,038.5 CLPs during t he 6 maintenance cycles, breaking
down the number of CLPs per maintenance cycle as follows: 468 CLPs for the
September 2007 through September 2009 maintenance cycle; 354 CLPs for the
September 2009 through September 2011 maintenance cycle; 35.5 CLPs for th e
September 2011 through September 2013 maintenance cycle; 1.0 CLPs for the
September 2013 through September 2015 maintenance cycle; 92 CLPs for the
September 2015 through September 2017 maintenance cycle; and 89.5 CLPs for
the September 2017 through Septe mber 2019 maintenance cycle.5 IAF, Tab 12
at 25-31.
¶38 As previously noted, the administrative judge determined it was undisputed
that the appellant ’s DAWIA certificate lapsed and was no longer “current ” when
he failed to complete the CLP maintenance require ment during the 2013 through
2015 certification maintenance cycle. ID at 9; IAF, Tab 12 at 29; see DoD
Instruction 5000.66, Defense Acquisition Workforce Education, Training,
Experience, and Career Development Program , §§ 6.1.k, 6.3.a -b, G.1 ( Sep. 13,
2019 ) (outlining the biennial 80 CLP maintenance requirement for DAWIA
certifications). Although the records submitted by the appellant appear to
indicate that he only earned 35.5 CLPs during the September 2011 through 2013
maintenance period —short of the 80 CLPs required to keep his DAWIA
certification current —the parties have not challenged the administrative judge ’s
finding that the lapse first occurred during the September 2013 through
September 2015 maintenance cycle. IAF, Tab 12 at 25, 28; see HT 1 at 235 -36
5 The record concerning the precise number of CLPs the appellant requested is
admittedly unclear. The uncertainty stems from the fact that the appellant requested
validation for different numbers of CLPs at different times during the conversion
application process. See, e.g., IAF, Tab 12 at 127 (certifying 1,488 CLPs); id. at 5-6
(certifying 683 CLPs); id. at 25-31 (certifying 1,038.5 CLPs). It appears that the final
number , 1,038.5 CLPs, was the figure used by the ACM in assessing the appellant ’s
conversi on application. See IAF, Tab 25 at 25 -31; HT 1 at 288 -89 (testimony of the
appellant) (acknowledging the 1,038.5 CLP figure) .
20
(testimony of appellant) (acknowledging that he left his position at DoD in 2013
to take care of his mother for a year, then worked for a private contract or for a
year starting in 2014 before joining the agency in 2016); Tab 5 at 6-8.
Accordingl y, we will limit our review of the appellant ’s CLP credit certification
request to the period from September 2013 through September 2019, constituting
three maintenance cycles. Based on a proper interpretation of the agency ’s
policies, we conclude that th e appellant was required to show that he earned at
least 80 CLPs in each of the three maintenance periods from September 2013
through September 2019, or a total of at least 240 CLPs during that 6 -year period,
to establish that his lapsed DAWIA certificatio n was current and eligible for
conversion to a FAC -C certification at the same level.
¶39 During the hearing, the ACM testified about the process she uses to assess
CLP certification requests, noting that points are generally awarded for any
course that is “acquisition related ” or related to the applicant ’s job, and that
applicants generally requested validation for courses by identifying the start and
end dates for the course, the course name, and how many points they were
requesting for the course. HT 1 at 32-34 (testimony of the ACM). She noted that
the number of points for a course is generally set by the Federal Acquisition
Institute (FAI) or the course instructor, and that usually, one credit point is equal
to one hour of training. Id. at 34 (testimon y of the ACM). She also noted that
upon completion of a course, attendees are usually awarded a certificate with the
attendee ’s name, the dates of the course, and the number of CLPs awarded for the
course. Id. at 33 -34. Nevertheless, she noted that CLPs can still be awarded
without a course certificate if applicants can demonstrate attendance at a
qualifying course in other ways, such as by producing an email from the course
instructor with the above information, but that applicants are ultimately
respon sible for providing proof of attendance and course point values, otherwise
requests are disapproved. Id. at 34 -35; see IAF, Tab 12 at 201 (noting that
Contracting Professionals are “[r]esponsible for producing certificates,
21
transcripts, and records that p rovide evidence that the employee satisfies the
[Department of Education Acquisition Certification Program (EDAC)] Program
requirements. ”).
¶40 Addressing her review of the appellant ’s CLP certification request, the
ACM testified that the appellant’s disallo wed courses were denied for a variety
reasons, including because the appellant had not completed the coursework as
claimed; had not yet completed the course at the time he requested to be awarded
the points; the course was not worth the number of points re quested; the course
was not acquisition -related or related in any way to the appellant ’s job duties; the
course was missing a certificate; or a certificate was provided but it failed to
identify the number of points for the course, among others. IAF, Tab 12 at 20 -21,
25-31; HT 1 at 41 -46, 56 -64, 70 -76, 87 -90 (testimony of the ACM); see IAF,
Tab 12 at 32 -124. We turn now to review the appellant ’s CLP requests for each
of the relevant maintenance cycles.
September 2013 through September 2015 CLP maintenan ce cycle.
¶41 As previously noted, the appellant requested 1.0 CLP for the September
2013 through September 2015; 92 CLPs for the September 2015 through
September 2017 maintenance cycle; and 89.5 CLPs for the September 2017
through September 2019 maintenance c ycle. IAF, Tab 12 at 29 -31. Based on our
review of the entire record, it is unclear whether the ACM disallowed the single
CLP for the course titled “Level 1 Anti -Terrorism Awareness Training ” for the
September 2013 through September 2015 maintenance peri od. First, the ACM
did not include any annotations on the appellant ’s CLP spreadsheet for this course
or provide any comments in her email addressing the spreadsheet entry for this
course. IAF, Tab 12 at 20 -21, 29. Additionally, although she provided te stimony
about her acceptance or disallowance of CLP requests for other courses, she did
not provide any testimony about whether she disallowed this course. See HT 1
at 43-44 (testimony of the ACM) (acknowledging that the appellant requested 1
CLP for this course but otherwise failing explain whether the request was
22
approved or denied) . Accordingly, for the purpose of our review here, we will
assume, without deciding, that the appellant demonstrated his entitlement to the 1
requested CLP for the September 2013 through September 201 5 maintenance
period.
September 2015 through September 2017 CLP maintenance cycle.
¶42 Next, for the September 2015 through September 2017 maintenance cycle,
although the appellant identifies that he earned 92 CLPs for this period, as the
agency correctly observes, the sum of the course point totals the appellant
certified in his spreadsheet for this maintenance cycle equals only 90 points, not
the 92 points claimed in his total. See IAF, Tab 12 at 29. Of the 90 CLPs, the
ACM ’s ann otations and notes specifically disallowed 2 CLPs for the course titled
“Planning for Retirement Seminars, ” 1 CLP for “Ed Telework, ” 1 CLP for
“Mandatory EEO, ” and 1 CLP for “TMS ED Telework For Employee, ” on the
basis that they were not valid courses for CLP purposes. IAF, Tab 12 at 21, 29.
She also disallowed the 34 requested CLPs for the course “Maximizing Your
Leadership Potential, ” noting there was no CLP point value included on the
provided certific ation. IAF, Tab 12 at 29; HT 1 at 44 -45 (testimony of ACM)
(explaining the meaning of her annotations and that the requested CLPs for this
course were not awarded because there was no certificate to validate the number
of points requested). In her testim ony, the ACM noted that although the course
subject matter could qualify for CLPs, she could not award the appellant CLPs for
this course because he could not produce a certificate that reflected the number of
CLPs the course was eligible for. HT 1 at 87 -89 (testimony of the ACM) ; see
IAF, Tab 12 at 157 . Another two courses, titled “Cyber Security ” and “TMS
Internal Control (2016), ” each valued at 1 CLP, were denied for the same reason.
IAF, Tab 12 at 29; see id. at 21, 99, 166. Consequently, 41 of the 90 CLPs from
this period were specifically denied, leaving a remainder of 49 CLPs.
¶43 Of the remaining 49 CLPs, 36 CLPs were explicitly accepted, as denoted by
“OK” annotations on the appellant ’s spreadsheet. IAF, Tab 12 at 29; see HT 1
23
at 45 (testimony of t he ACM) (explaining that the “okay ” annotation meant that
the course date, name, point total, and course certificate information were all
reviewed and deemed acceptable, and points were awarded for the request).
However, the remaining 13 CLPs either had n o annotations or a “question mark ”
annotation next to them, making it unclear whether the ACM intended to award
points for those courses. IAF, Tab 12 at 29. There was no clarifying testimony
provided on this point at the hearing. See HT 1 at 43 -46 (test imony of the ACM).
For the purpose of calculating the maximum number of CLPs the appellant may
have earned, we will assume, without deciding, that these 13 points were properly
awarded and included in the total. Adding the single CLP from the September
2013 through September 2015 maintenance cycle to the 49 CLPs from the
September 2015 through September 2017 maintenance cycle results in a running
total of 50 CLPs for the first two maintenance cycles.
September 2017 through September 201 9 CLP maintenance c ycle.
¶44 For the final maintenance period from September 2017 through September
2019, the appellant certified that he completed 89.5 CLPs. IAF, Tab 12 at 29 -31.
As an initial matter, as the agency correctly observes on review, the
administrative judge incor rectly stated that the appellant claimed he earned
89 CLPs for the period from 2017 through 2019, when in fact, he claimed that he
had earned 89.5 CLPs during the period. ID at 10 -12; IAF, Tab 12 at 29 -31; see
PFR File, Tab 1 at 15 n.7. As a result of th is misstatement, the administrative
judge discounted the appellant ’s CLP count by the 0.5 CLP difference, carrying
that difference over to his result and incorrectly determining that 53.5 CLPs for
that maintenance period were “uncontested, ” instead of 54 C LPs. ID at 10 -11.
¶45 Of the 89.5 total CLPs, the ACM annotated “OK” next to 51 of the points
for this maintenance cycle. IAF, Tab 12 at 29 -31; see HT 1 at 45 (testimony of
the ACM). Although there is no “OK” annotation next to the course titled “Small
Business Programs, ” for which the appellant requested 5 CLPs, the ACM appears
to have awarded the appellant 2.5 out of the 5 CLPs for this course, indicating
24
that the course was worth 2.5 CLPs and annotating the appellant ’s spreadsheet to
include the FAI course number associated with this course. Id. at 30; see id.
at 14, 76; IAF, Tab 10 at 108 -09. Adding this course with a value of 2.5 CLPs to
the appellant ’s total, results in a total 53.5 CLPs uncontested for this main tenance
cycle. Similarly, the appellant requested 1 CLP for the course titled
“Cybersecurity and Privacy Awareness (CSPA) Training Course2 Catching the
Phish (2019), ” dated June 14, 2019. IAF, Tab 12 at 30. The ACM annotated the
appellant ’s spreadsheet for this course, indicating that he was entitled to 0.5 CLPs
instead of the 1 CLP requested for that course based on the “Fed talent record ”
which included the appropriate point value. Id.; see HT 1 at 60 -61, 76 (testimony
of the ACM) (noting that the app ellant could receive credit for cybersecurity
courses as long as they are not repeat courses within the same cycle, and that
those course certifications are available in the “FED Talent ” transcript validation
system). Adding this course with a value of 0. 5 CLPs to the appellant ’s total
results in a total 54 CLPs uncontested for this maintenance cycle , and a remainder
of 32.5 potential CLPs.6
¶46 The remaining 32.5 of “contested ” CLPs are comprised of the following
courses and point values: 5.5 CLPs for a course titled “Federal Acquisition –
Back to Basics ” dated February 7, 2017; another course worth 5.5 CLPs also
6 Importantly, although the administrative judge determined that the ACM “questioned
or disallowed a total of 35.5 CLPs, ” this figured failed to account for the reduced total
number of CLPs available, due to the fact that the appellant had inflated the “Small
Business Programs ” course, valuing it at 5 CLPs instead of the 2.5 CLPs it was worth,
and the “Cybersecurity and Privacy Aw areness, ” course, valuing it at 1 CLP instead of
the 0.5 CLPs it was worth. See IAF, Tab 12 at 30; ID at 10 -11. After properly reducing
the administrative judge ’s figure by 3 CLPs, the correct number of potential CLPs
remaining is 32.5. As previously noted, the “uncontested ” 53.5 CLP figure the
administrative judge referenced must also be increased by 0.5 CLP s to account for the
error he carried over into his tot als. Consequently, the correct remaining figures are 54
uncontested CLPs and 32.5 contested CLPs. Cf. ID at 11 (noting that the ACM
“questioned or disallowed a total of 35.5 CLPs, leaving the appellant with an
uncontested total of 53.5 CLPs for that peri od.”).
25
titled “Federal Acquisition – Back to Basics, ” but dated February 23, 2017; a 3
CLP course dated January 4, 2017, titled “FOIA C lass”; a 1.5 CLP course on
May 23, 2018 titled “Mandatory EEO training for Supervisor and Employees ”; a
September 20, 2018 course titled “Transit Benefits Integrity Awareness Training ”
worth 1 CLP; and a July 9, 2019 course titled “FAR Part 8 ” worth 16 CLP s. IAF,
Tab 12 at 29 -31.
¶47 The ACM denied both FSA Acquisition “Back to Basics ” courses, including
annotations on the appellant ’s spreadsheet stating “[h]andwritten [CLP values]
isn’t acceptable, ” and “no validation on cert for points. ” Id. at 29. Also included
in the record are two copies of certificates of completion indicating that the
appellant completed courses by this name on February 2, 2017 , and February 23,
2017. Id. at 93 -94. However, both certificates are unsigned and include
handwritten CLP values, and have annotations written by the ACM indicating
“No val of pts, ” and “[h]and written isn ’t acceptable, ” consistent with the ACM ’s
identified reason for denying those courses. Id. at 92 -93; see HT 1 at 41 -46
(testimony of the ACM) . The course titled “FOIA class ” worth 3 CLPs was
denied with the annotation “No cert provided. ” IAF, Tab 12 at 3 0. The courses
titled “Mandatory EEO Training for Supervisors and Employees, ” worth
1.5 CLPs, and “Transit Benefits Integrity Awareness Trai ning ,” worth 1 CLP,
were both denied with the annotation “Can’t use for CLPs. ” IAF, Tab 12 at 31.
In explaining her disallowance of the Transit Benefits and EEO Training courses
at the hearing, the ACM testified that that those courses were not eligible for
CLPs because they were not acquisition -related training. HT 1 at 28 -29, 62 -63
(testimony of the ACM). Nothing in the record indicates that these courses were
improperly disallowed, and the appellant has not challenged the ACM ’s
disallowance of these courses on review.
¶48 Regarding the course titled “FAR Part 8, ” the ACM disallowed this course
with the annotation “[n]ot completed can ’t count, ” and her notes accompanying
the annotation indicate that the course was denied because the appellant “[c]an ’t
26
claim points for something that has not been completed, ” noting that the course
“is in the future and again no way to validate with out [sic] a certificate. ” IAF,
Tab 12 at 21, 31; see HT 1 at 46 (testimony of the ACM) (acknowledging that her
annotations f or this course stated “not completed. Can ’t count, ” and that the
appellant ’s CLP request for this course had been denied). Despite the ACM ’s
annotations and notes for this course, there does appear to be a certification in the
record for a course with this name that the appellant completed on the iden tified
dates. IAF, Tab 10 at 64 . The certificate includes the course name, location,
dates of attendance, CLP credit amount, and the appellant ’s name, meeting all the
criteria that the ACM testified that she considers in deciding whether to award
credit for a course.7 IAF, Tab 10 at 64; see HT 1 at 32 -34 (testimony of the
ACM). For the purpose of calculating the maximum number of CLPs the
appellant may have earned, we will assume, without deciding, that these 16 CLPs
should have been awarded and included in his total, bringing the number of points
awarded for this maintenance cycle up to 70 CLPs.
¶49 Finally, regarding the course titled “Agile Contracting, ” dated June 5, 2019,
although the administrative ju dge determined that there was a certificate in the
record indicating that the appellant had completed the course and that it was
worth 16 CLPs even though the course was not included on the appellant ’s
spreadsheet, as the agency correctly notes on review, the course is in fact listed
on the spreadsheet the appellant submitted, and the spreadsheet includes an “OK”
7 What may account for this discrepancy is the close proximity in time between when
the appellant completed this course on July 9 -10, 2019 , and submitted it as part of his
conversion package application, and when the ACM provided her email response to the
appellant 2 days later on July 11, 2019, explaining that the course had been denied
because it was “in the future ” and there was no way to validate the course without a
certificate. See IAF, Tab 10 at 64 , Tab 12 at 20 -21. Although the appellant co mpleted
this course in July 2019, it appears that he did not provide the certificate validating his
attendance until February 25, 2020, well after the ACM had reviewed his CLP
submission spreadsheet and denied his conversion application. See IAF, Tab 10
at 53-59, 64 , Tab 25 at 173 -74.
27
annotation from the ACM indicating that she awarded the appellant the
16 requested CLPs for that course. IAF, Tab 12 at 30; see IAF, Tab 10 at 65 ; ID
at 11. Consequently, the record reflects that the ACM had already properly
credited the appellant with the 16 CLPs for this course and included it in his point
total, and so he should not have been awarded the additional 16 CLPs the
administrative ju dge awarded him for this course. Removing this double -counted
course results in a maximum total of 70 CLPs for the September 2017 through
September 2019 maintenance cycle.
¶50 Adding the 70 CLPs for this maintenance cycle to the 50 CLPs the appellant
earned during the September 2013 through September 2015 and September 2015
through September 2017 maintenance cycles, see supr a at ¶¶ 36-38, we conclude
that the appellant established that he earned a maximum of 120 total CLPs for the
three maintenance cycles at issue here —far short of the 240 CLPs he was required
to earn in order to get his lapsed DAWIA certification current and convert it to
the FAC -C at the same level, based on a proper application of the agency ’s
policies. See IAF, Tab 12 at 23 -24, Tab 25 at 55-56.
¶51 As previously noted, in appeals such as this, where the agency controls the
withdrawal or denial of its certification, the Board will review the merits of the
withdrawal or revocation determination as a part of its review of a failure to
maintain a condition of employment charge . Adams , 105 M.S.P.R. 50 , ¶¶ 10, 19 .
Based on our review of the entire record, we conclude that the agency properly
denied the appellant ’s application to convert his lapsed DAWIA certification to a
FAC -C Level III certification because he failed to establish that he had a
sufficient number of CLPs to satisfy the maintenance requireme nt as determined
by a proper application of the agency ’s policies. IAF, Tab 12 at 202-06.
Consequently, we conclude that the administrative judge erred when he
determined that the appellant established his entitlement to a FAC -C Level III
certification based on conversion of his DAWIA certification , and so the agency
failed to carry its burden of proving that the appellant could not perform his job
28
duties at the GS -14 level at the time it reduced him in grade based on his inability
to qualify for the FAC -C certification necessary to obtain an unlimited warrant.
ID at 11 -12; see IAF, Tab 10 at 18 -26; Tab 11 at 18; Tab 12 at 207 -09.
Remand is nevertheless necessary for the parties to supplement the record and for
the administrative judge to make new findin gs concerning whether the appellant
submitted a fulfillment application package and whether the agency properly
considered it.
¶52 As previously noted, in addition to the direct FAC -C application and
conversion application processes, FAC -C applicants can als o apply for
certification through a process called fulfillment by providing “evidence as to
how the required competencies for a particular certification level were attained
through alternative training, experience, education, certification by another
recog nized organization, or other developmental activities. ” IAF, Tab 12 at 206 ,
223. The FAC -C fulfillment application follows the fulfillment process for DoD
agencies “so that the DAWIA certification and FAC -C programs are closely
aligned. ”8 IAF, Tab 12 at 206.
¶53 The agency ’s policies specify that applicants may apply to satisfy the
training requirement of the FAC -C application through fulfillment by completing
a “self-assessment matrix ” with supporting self -assessment documentation to be
included with their FAC -C application to their immediate supervisor, and that the
immediate supervisor “shall determine whether the individual has the
competencies described by the course [for which the applicant is seeking
fulfillment ].” IAF, Tab 12 at 206 , 223; see id. at 225 -50. A supervisor can
request additional information or conduct an interview with the employee to
assess whether they meet the required competencies for fulfillment for the
8 DoD Instruction 5000.66 outlines that agency ’s course fulfillment process, stating that
fulfillment “provides a means for [Acquisition Work Force] members to receive credit
for [Defense Acquisition University] courses for which they demonstrate competence
through an assessment of their previous work experience, education, training, or any
combination thereof. ” DoD Instruction 5000.66, § 6.1.i.
29
requested courses. Id. at 223. After reviewing the fulfillm ent package, the
first-line supervisor “concurs or non -concurs on the fulfillment application
enclosed, ” and “[t]he first line supervisor then approves or disapproves the
completed application package. ” Id. The fulfillment materials are then
forwarded al ong with the rest of the FAC -C application package materials for
approval by the ACM. Id. at 209 , 223.
¶54 Although the administrative judge acknowledged this alternative route for
FAC -C certification , because he ultimately concluded that the appellant
established that he qualified for conversion of his lapsed DAWIA certification to
the FAC -C, he did not make any findings about the appellant ’s fulfillment
package. ID at 3 n.3. Nevertheless, the administrative judge did determine that
the agency had not offered any evidence suggesting that the appellant did not
meet the education and experience core competency requirements for FAC -C
certification, noting that the appellant had “almost 20 years of contracting
experience as a civilian Federal employee or c ontractor ,” and had been awarded a
baccalaureate degree from Tuskegee University in 1976. ID at 7 -8; see IAF,
Tab 5 at 6 -14; Tab 10 at 48; Tab 12 at 204 -07 (identifying that, for a FAC -C
Level III certification, applicants must meet the education requirem ents of a
baccalaureate degree and 24 semester hours of coursework, and the experience
requirement of at least 4 years of contracting experience). The agency has not
challenged this finding on review. Accordingly , if the appellant can show that he
met the training core competency component through the course fulfillment
process, he would have establish ed his entitlement to a FAC -C certification
through the fulfillment process.
¶55 On review, the agency asserts that the appellant failed to submit a n
appropriat e fulfillment package even though it asked him to do so. PFR File,
Tab 1 at 6. Nevertheless, the agency also notes that the appellant submitted a
fulfillment narrative on November 12, 2019 , “that did not sufficiently explain or
articulate how [the appellant] met the defined competencies within each required
30
course ,” quoting from the reduction in grade decision letter. Id. (citing IAF,
Tab 10 at 19 -20). Conversely, the appellant argues on rev iew that he submitted a
fulfillment application for his FAC -C certification “based on [his] courses
completed and more than (40) years of documented and verified work experience
in acquisition . . . ,” but that his fulfillment package was rejected because his
first-line supervisor and the ACM “informed [him] that [he] did not have ‘proof ’
of training records, ” even though he had provided all of his records and proof of
training courses completed to the agency. PFR File, Tab 3 at 12 -13.
¶56 In her hearing testi mony addressing the fulfillment process, the ACM stated
that the appellant could apply for fulfillment of the course training requirements
but that to the best of her knowledge he had not attempted to do so, testifying that
she had not “seen anything throu gh the system ” regarding fulfillment. HT 1 at 48
(testimony of the ACM). In cross -examination testimony on this point,
appellant ’s counsel asked the ACM whether she had a specific recollection as to
why the appellant had not been converted through fulfillment, to which the ACM
stated “I haven ’t to date received anything through the system. So, no. At this
point, no. I haven ’t rev iewed or seen anything through the system for [the
appellant] for fulfillment. ” HT 1 at 68 (testimony of the ACM).
¶57 The appellant testified that after agency officials informed him that his
conversion application materials were inadequate , the ACM asked hi m to
complete a fulfillment package and he provided fulfillment materials to the ACM
and his first -line supervisor. HT 1 at 201 (te stimony of the appellant). The
appellant testified that his first -line supervisor “also rejected my fulfillment
package, ” informing him that he “didn ’t have proof. ” Id. In response to a
challenge by agency counsel suggesting that the first -line supervisor had denied
ever rejecting the appellant ’s fulfillment package, the appellant specifically stated
that this was “not accur ate” and that his first -line supervisor “did have proof and
he actually denied my fulfillment package, ” sending the appellant an email stating
31
that his package was not acceptable and he did not have proof to support his
package.9 Id. at 201 -02.
¶58 The record also includes conflicting information regarding whether the
appellant submitted a fulfillment application, and if so, whether the agency made
a determination on his fulfillment application , and which agency official may
have made any such determinat ion. Included in the record is a document dated
November 12, 2019 , and titled “Use this for fulfillment ,” in which the appellant
appears to offer fulfillment narrative explanations for a number of the courses
required for the training competency requireme nts, in the format required by the
agency ’s policies. IAF, Tab 10 at 104 -15; see IAF, Tab 12 at 206, 223-50.
¶59 Additionally, in a November 13, 2019 entry in a self-titled “Timeline of
events and actions I took to receive FAC C Conversion ,” the appellant n oted that
he sent an email that day to the ACM informing her that he had started to forward
his “Fulfillment Courses and Write Up ” so that his first -line supervisor could
review them, and in an entry dated November 18, 2019, the appellant noted that
after his supervisor had returned his coursewo rk materials at his request, he
received an email from the supervisor stating , “I am afraid your submission(s) as
written are not reasonably sufficient to meet the policy standard. [] Submissions
9 Although the appellant ’s first -line supervisor did testify that he “did not disapprove or
reject any of [the appellant ’s] submissions, ” this testimony was offered in response to
agency counsel ’s questions about the appellant ’s conversion application materials.
HT 1 at 139 -40 (testimony of appellant ’s first -line supervisor) ( “Q: Did you disapprove
of any of the submissions as to certification or completion of courses that [the
appellant] gave in attempt to achieve conversion? . . . Q: So I ’m clear, it ’s your
testimony that you never disapproved certain coursework or packets? It was all [the
ACM] ? A: Yes. So I have to, as a first line supervisor, I have to flow it through. ”)
(emphasis added); id. at 141 (testimony of appellant ’s first line supervisor) (Q: Well
relying on your 20 years, and of course your own conversion , what in y our opinion was
the problem with [the appellant ’s] conversion ? If anything. ”) (emphasis added) . The
supervisor did not provide any other testimony during the hearing specifically
addressing whether he approved or denied the appellant ’s fulfillment application
materials. See id. at 117 -20, 138 -43 (testimony of appellant ’s first -line supervisor) .
32
cannot include Training which is not supported with actual certificates and
Continuous learning points have no relevance in the Fulfillment submissions. ”
IAF, Tab 10 at 57 . Finally, i n the reduction in grade decision letter, the deciding
official concluded that the app ellant failed to provide the necessary
documentation to convert his DAWIA certification to the FAC -C, “and/or did not
pursue the alternate fulfillment process to obtain your FAC -C certification, ” but
also concluded that the appellant “resubmitted a previou sly denied Fulfillment
package which [he] received supervisory feedback on the missing requirements
for successful completion. ” IAF, Tab 10 at 20. Although the agency’s policy
materials include a fillable sample fulfillment “disposition” form that allows
agency officials to document their disposition determination of an applicant’s
fulfillment request, see IAF, Tab 12 at 224, there is no completed form in the
record related to any fulfillment request by the appellant.
¶60 Based on the record before us, we can not discern whether the appellant
submitted a fulfillment application package, and if so, whether the proper agency
officials, as identified in the agency ’s policies, reviewed and acted on the
appellant ’s request. Because the fulfillment process provides an alternative
means for the appellant to acquire the FAC -C certification necessary to obtain the
unlimited warrant required to compete his job duties at the GS -14 level, whether
the agency properly denied the appellant ’s FAC -C application, and consequentl y,
whether the agency met its burden of proving that the appellant failed to meet the
required condition of his employment , ultimately turn on resolution of
this question. See Gallegos, 121 M.S.P.R. 349 , ¶ 6 ; Adams , 105 M.S.P.R. 50 ,
¶¶ 10, 19.
¶61 Accordingly, we remand the appeal to the administrative judge to allow the
parties to supplement the record concerning the issue of the appellant ’s
fulfillment application (including a suppl emental hearing, if the administrative
judge deems it necessary) . After the parties have been permitted to supplement
the record, the administrative judge shall issue a new initial decision addressing
33
the agency ’s charge, nexus, and penalty . See Spithale r v. Office of Personnel
Management , 1 M.S.P.R. 587 589 (1980) (stating that an initial decision must
identify all material issues of fact and law, summarize the evidence, resolve
issues of credibility, and include the administrative judge ’s conclusions of law
and legal reasoning, as well as the authorities on which that reasoning rests).
ORDER
¶62 For the reasons discussed above, we remand this case to the Atlanta
Regional office for further adjudication in accordance with this Remand Order.
FOR THE BOARD:
Washington, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board | WILLIAMS_JOHN_CAREY_AT_0752_20_0541_I_1_REMAND_ORDER_2004180.pdf | 2023-02-21 | null | AT-0752 | NP |
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