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3,600 | https://www.mspb.gov/decisions/nonprecedential/MAGOWAN_MARIA_DE_LA_CRUZ_DC_1221_16_0390_W_1_REMAND_ORDER_2000383.pdf | UNITED STATES OF AME RICA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 -16-0390 -W-1
DATE: February 7, 20 23
THIS ORDER IS NONPRECEDENTIAL1
Maria de la Cruz MaGowan , Bethesda, Maryland, pro se.
Alexandra Meighan , 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 of the initial decision, which
dismissed her individual right of action (IRA) appeal for lack of jurisdiction. For
the reasons discussed below, we GRANT the appellant’s petition for review and
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been id entified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c).
2
REM AND the case to the regional office for further adjudication in accordance
with this Remand Order.
BACKGROUND
¶2 In this appeal, the appellant, a GS -14 Program Analyst, alleged that the
agency issued her an official reprimand in reprisal for her April 2003 protected
disclosure to the agency’s Office of Inspector General (OIG). Initial Appeal File
(IAF), Tab 1, Tab 8 at 5. She asserted that the reprimand was part of an unabated
series of retaliatory actions that began at the time of her April 2003 disclosur e
and became worse after the arrival of her current sup ervisor in 2010. IAF, Tab 8
at 5. She argued that she exhausted her administrative remedies before the Office
of Special Counsel (OSC) and that she had made the requisite nonfrivolous
allegations tha t she made a protected disclosure that was a contributing factor in
the agency’s decision to take a personnel action, i.e., the official reprimand. Id.
at 6.
¶3 Without holding the requested hearing, the administrative judge dismissed
the appeal for lack o f jurisdiction, finding that , even though the appellant showed
that she had exhausted her administrative remedies before OSC, she failed to
make a nonfrivolous allegation that she made a protected disclosure and, even if
she had done so, she failed to make a nonfrivolous allegation that her disclosure
was a contributing factor in the agency’s decision to issue the official reprimand.
IAF, Tab 12, Initial Decision (ID). In h er petition for review, the appe llant
argues that the Board already has found that she made nonfrivolous allegation s
that her April 2003 disclosure was protected and was a contributing factor in the
agency’s decision to take or fail to take a personnel action. Petition for Review
(PFR) File, Tab 1 at 1-2. The agency has filed a response in opposition to the
appellant’s petition for review and the appellant has filed a reply to the agency’s
response. PFR File, Tabs 3-4.
3
DISCUSSION OF ARGUME NTS ON REVIEW
¶4 The Board has jurisdiction over an IRA appeal if the appellant has
exhausted her administrative remedies before OSC and makes nonfr ivolous
allegations that: (1) she engaged in whistleblowing activity b y making a
protected disclosure; and (2) the disclosure was a co ntributing factor in the
agency’ s decision to take or fai l to take a personnel action. Bradley v.
Department of Homeland Security , 123 M.S.P.R. 547 , ¶ 6 (2016); see also
Yunus v. Depart ment of Veterans Affairs , 242 F.3d 1367 , 1371 (Fed. Cir. 2001).2
As noted above, the administrative judge dismissed this appeal based on the
written record without holding a hearing because he found that , while the
appellant did show that she exhausted her administrative remedies before OSC,
she failed to make a nonfrivolous allegation that she made a protected disclosure
and that, even if she did, she failed to allege that it was a contributing factor in
the agency’s decision to issue the official reprimand. ID at 8-10. The agency
has not challenged, and we discern no basis to disturb, the administrative judge’s
finding that the appell ant showed that she exhausted her administrative remedies
before OSC. However, for the reasons set forth below, we find that the appellant
has made the requisite nonfrivolous allegations to establish the
Board’s jurisdiction .
The appellant nonfrivolous ly alleged that she made a protected disclosure that
was a contributing factor in her official reprimand.
¶5 On review, the appell ant asserts that the disclosure involved in this appeal
is the same April 2003 disclosure reported in her prior IRA appeal s. PFR File,
Tab 1 at 2. The Board previously has found that the appellant nonfrivolously
2 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 con sider these issues with the view that the appellant may seek
review of this decision before any appropriate court of appeal.
4
alleged that she disclosed both a violation of law and a gross waste of funds in
this April 2003 disclosure to the OIG . MaGowan v. Environmental Protection
Agency , 119 M.S.P.R. 9, ¶ 7 (2012) . For the same reasons as set forth in our prior
Opinion and Order, we find that the appellant ha s nonfrivolously alleged that she
made a protected disclosure here. Id.
¶6 The appellant further contends that the same protected disclosure was a
contributing factor in the agency’s decision to issue her an official repri mand.
PFR File, Tab 1 at 4; IAF, Tab 1 at 5, 7-8; Tab 8 at 5. The administrative judge
found that, given that the protected activity occurred in 2003 and the reprimand
took place in 2015, the appellant failed to nonfrivoulously allege that the
personnel action occurred within a period of time such that a reasonable person
could conclude that the disclosure was a contributing factor to the reprimand. ID
at 4. In our prior Op inion and Order , however, we explained that, to satisfy the
contributing factor criterion at the jurisdictional stage, the appellant need only
nonfrivolously allege that the fact of, or the contents of, the protected disclosure
in any way affected the personnel action at issue. MaGow an, 119 M.S.P.R. 9,
¶ 9. Thus, the appellant need not nonfrivolously allege that she met the
knowledge/timing test to sat isfy the criterion .3 Id., ¶ 9 n.3.
¶7 There, we credited the appellant’s allegations that her supervisor had asked
about her April 2003 protected disclosure and that she had subsequently provided
3 The knowledge/ti ming test allows an appellant to demonstrate that the disclosure was
a contributing factor in a personnel actio n through circumstantial evidence , such as
evidence that the deciding official had knowledge of the disclosure and acted within
such a time period that a reasonable person could conclude that the disclosure was a
contributing factor in the personnel action . Dorney v. Department of the Army ,
117 M.S.P.R. 480, ¶ 14 (2012). However, the knowledge/timing test is not the only
way for an appellant to satisfy the contributing factor standard; rather, it is only one of
many possible ways to satisfy the standard . Id. Other relevant evidence on the
contributing factor question include s the strength of the agency’ s evidence as to the
reasons it cited for taking the personnel action, whether the whistleblowing disclosure
was personally directed at the proposing or deciding officials, and whether these
individuals had a desire or motive to retaliate against the appellant. Id., ¶ 15.
5
her supervisor a copy of the OIG’s report regarding her alle gations just 6 months
before the agency took the 2010 personnel action at issue in that IRA appeal. Id.,
¶ 10. Thus, even though the disclosure itself predated the personnel action by
many years , we found that the May 2010 inquiry initiated by the appellant’s
supervisor into those disclosures raised a material issue about the agency’s
reasons for the personnel action, and constituted a nonfrivolous allegation that
her April 2003 disclosure to the OIG was a contributing factor to that 2010
personnel action. Id., ¶ 10; see, e .g., Dorney v. Department of the Army ,
117 M.S.P.R. 480, ¶ 15 (2012) (expl aining that any weight given to a
whistleblowing disclosure, either alone or in combination with other factors, can
satisfy the contributing factor standard) .
¶8 In this IRA appeal, t he appellant has asserted before OSC and the Board
that the personnel action at issue here is part of a series of retaliatory actions that
has continued unabated from when her supervisor inquired about her protect ed
disclosures in May 2010 through the issuance of the official reprimand . IAF,
Tab 1 at 5, 7-8, 15-16. The appellant alleg ed that , since inquiring about her
disclosure in 2010, her supervisor has engaged in a series of threatening actions.
Id. at 15.4 After one such episode in June 2015, she alleged that she went to court
to seek a temporary restraini ng order against the supervisor , who issued the
reprimand involved here just over 4 months later. Id. Therefore, although the
administrative judge correctly found that the appellant failed to nonfrivolously
allege that she met the knowledge/ timing test, we nevertheless find that the
appellant instead has nonfrivolously alleged that she met the contributing factor
4 We agr ee with the administrative judge that the only personnel action at issue in this
IRA appeal is the October 2015 reprimand . ID at 8, n.6. T o the extent the appellant’s
claims concern events other than the reprimand, those claims are being adjudicated
sepa rately in MaGowan v. Environmental Protection Agency , MSPB Docket No. DC-
1221 -15-0671 -B-1. See Savage v. Department of the Army , 122 M.S.P.R. 612, ¶ 23
(2015) (finding that a hostile work environment itself may constitute a covered
personnel action under the WPA) , overruled in part by Pridgen v. Office of
Management and Budget , 2022 MSPB 31 , ¶¶ 23-25.
6
criterion by raising a material issue about the agency’s reasons for issuing the
reprimand. See Dorn ey, 117 M.S.P.R. 480, ¶¶ 14-17 (finding that the length of
time between a disclosure and a personnel action is not dispositive on the issue of
contributing factor and evidence raising a material issue regarding the agency’s
evidence for taking the action should be considered when an appe llant is unable
to satisfy the knowledge/timing test). Thus , we similarly find that the appellant
has nonfrivolously alleged that her protected disclosure was a contributing factor
in the issuance of th e official reprim and. MaGowan , 119 M.S.P.R. 9, ¶ 10;
Agoranos v. Department of Justice , 119 M.S.P.R. 498, ¶¶ 22-23 (2013) (finding
that, because the appellant was subject ed to a continuum of related personnel
actions beginning shortly after his disclosure , he met the contributing
factor criterion ); see also Hessami v. Merit Systems Protection Board , 979 F.3d
1362 , 1364, 1369 (Fed. Cir. 2020) (finding that, whether the appellant has
nonfrivolously alleged that protected disclosures or activity contributed to a
personnel action must be determined based on whether the employee alleged
sufficient factual matter, accepted as true, to state a claim that is plausible on
its face) .
¶9 Consequently, we find that the appellant established OSC exhaustion
regarding her 2015 reprimand , and that she made nonfrivolous allegations
sufficient to entitle her to a hearing on the merits of her claim that the agency
issued her the reprimand in reprisal for that protected disclosure. To prove her
claim on the merits , the appellant must show by preponderant evidence that her
disclosure was a contributing factor in the agency’s personnel action. E.g.,
Chavez v. Department of Veterans Affairs , 120 M.S.P.R. 285, ¶ 17 (2013). If the
appellant proves her claim on the merits, the agency then may attempt to establish
by clear and convincing evidence that it would have taken the same personnel
action in the absence of the disclosure. Id.
7
ORDER
¶10 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 | MAGOWAN_MARIA_DE_LA_CRUZ_DC_1221_16_0390_W_1_REMAND_ORDER_2000383.pdf | Date not found | null | DC-1221 | NP |
3,601 | https://www.mspb.gov/decisions/nonprecedential/YOUNG_CHERYL_D_AT_844E_21_0331_I_1_FINAL_ORDER_2000408.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
CHERYL D. YOUNG,
Appellant,
v.
OFFICE OF PERSONNEL
MANAGEMENT,
Agency.
DOCKET NUMBER
AT-844E -21-0331 -I-1
DATE: February 7, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL1
Cheryl D. Young , Hoover, Alabama, pro se.
Jo Bell , 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 appeal challenging the reconsideration decision of the Office of
Personnel Management (OPM) regarding her disability retirement application
pursuant to the Federal Employees’ Retirement System (FERS) for lack 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
jurisdiction after OPM rescinded its reconsi deration decision . Generally, we
grant petitions such as this one only in the following circumstances: the initial
decision contains erroneous findings of material fact; the initial decision is based
on an erroneous interpretation of statute or regulatio n 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 r esulting 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 1201.1 15 ( 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 de cision. 5 C.F.R.
§ 1201.113 (b).
¶2 The appellant filed this appeal challenging OPM’s reconsideration decision
regarding her disability retirement application under FERS . Initial Appeal File
(IAF), Tab 1 at 6 . While this appeal was pending before the administrative judge ,
OPM rescinded its reconsider ation dec ision and represented that it would issue a
new reconsideration decision. IAF, Tab 13 at 4 -5. The administrative judge then
dismissed the appeal for lack of jurisdiction. IAF, Tab 14 at 1-2. The appellant
has filed a one -sentence petition for review as king the Board to review her
appeal; however, the petition for review made no specific challenges to the initial
decision. See Tines v. Department of the Air Force , 56 M.S.P.R. 90 , 92 (1992)
(finding that a petition for review must contain sufficient specificity to enable the
Board to ascertain whether there is a more serious evidentiary challenge
justifying a complete review of the recor d). Because OPM has rescinded its
reconsideration decision, we agree with the administrative judge that the Board
lacks jurisdiction over this appeal. See Glasgow v. Office of Personnel
3
Management , 103 M.S.P.R. 531 , ¶ 5 (2006) (stating that, if OPM completely
rescinds a reconsideration decision, the Board no longer retains jurisdiction over
the appeal in which that reconsideration decision is at issue, and the appeal must
be dismissed). The appellant may file an appeal from any future OPM
reconsideration decision that affects her rights or interests under FERS , and our
decision here is without prejudice to any such appeal . See 5 U.S.C. § 8461 (e)(1);
Tamayo v. Office of Personnel Management , 56 M.S.P.R. 620 , 622 (1993).
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 s eeking such
review and the 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 no t provide 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 fina l 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.
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.
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
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit , you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal 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
5
representative in this case, and your representative receives this decision before
you do, then you must file with the district court no later th an 30 calendar days
after your representative receives this decision. If the action involves a claim of
discrimination based on race, color, religion, sex, national origin, or a disabling
condition, you may be entitled to representation by a court -appoint ed lawyer and
to waiver of any requirement of prepayment of fees, costs, or other security. See
42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.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
6
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to yo u only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.3 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D .C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
3 The origi nal statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permane ntly allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195,
132 Stat. 1510.
7
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the 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 | YOUNG_CHERYL_D_AT_844E_21_0331_I_1_FINAL_ORDER_2000408.pdf | 2023-02-07 | null | AT-844E | NP |
3,602 | https://www.mspb.gov/decisions/nonprecedential/CUNNINGHAM_BENJAMIN_NY_3443_18_0055_I_1_FINAL_ORDER_2000417.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
BENJAMIN CUNNINGHAM,
Appellant,
v.
OFFICE OF SPECIAL CO UNSEL,
Agency.
DOCKET NUMBER
NY-3443 -18-0055 -I-1
DATE: February 7, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL1
Benjamin Cunningham , Bronx, New York, pro se.
Amy Beckett , 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 his appeal for lack of jurisdiction. On review, the appellant resubmits
documents already in the record, renews his arguments that the Department of
Justice/U.S. Marshals Service concealed matters from him, and references 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
Freedom of Information Act.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 appl ication of the law to the facts of the
case; the administrative judge’s rulings during either the course of the appeal or
the initial decision were not consistent with required procedures or involved an
abuse of discretion, and the resulting error affected the outcome of the case; or
new and material evidence or legal argument is available that, despite the
petitioner’s due diligence, was not available when the record closed. Title 5 of
the Code of Federal Regulations, section 1201.115 ( 5 C.F.R. § 1201.115 ). After
fully considering the filings in this appeal, we conclude that the petitioner has not
established any basis under section 1201.115 for granting the petition for review.
Therefore, we DENY the petition for review and AFFIRM the initial decision,
which is now the Board’s final decision.3 5 C.F.R. § 1201.113 (b).
2 Although t his appeal was docketed ag ainst the Office of Special Counsel (OSC) , it
appears from the appellant’s submissions that the correct respondent agency may be the
Department of Justice/U.S. Marshal s Service. Regardless of the designation of the
respondent agency, the Board lacks jurisdiction over the matters in this appeal for the
reasons set forth in the initial decision .
3 The appellant submitted with his appeal a letter from OSC’s Disclos ure Unit dated
December 18, 2017, informing him that because he was not a Federal employee or
applicant for Federal employment, OSC lacked jurisdiction to consider his complaint.
Initial Appeal File, Tab 1. To the extent that the appellant is asking the Board to
review OSC’s determination in that letter, we lack the authority to do so because he is
not a Federal employee, former Federal employee, or applicant for Federal employment.
5 U.S.C. § 1221(a); Hardy v. Department of Health and Human Services , 117 M.S.P.R.
174, ¶ 5 (2011).
As to the appellant’s three other petitions for review of initial decisions dismissing his
other appeals for lack of jurisdiction, the Board adjudicated those matters separately.
Cunningham v. Administrative Conference of the United States , MSPB Docket No. NY -
3443 -18-0200 -I-1, Final Order (Nov. 3, 2022); Cunningham v. Office of Special
Counsel , MSPB Docket No. NY -3443 -17-0015 -I-1, Final Order (Nov. 2, 2022);
Cunningham v. Office of Special Counsel , MSPB Docket No. NY -3443 -18-0201-I-1,
Final Order (Nov. 2, 2022).
3
NOTICE OF APPEAL RIGHTS4
You may obtain review of this final decision. 5 U.S.C. § 7703 (a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703 (b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your 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 cla ims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for 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 a ppropriate in any matter.
4
U.S. Co urt of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance i s the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropr iate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems
Protect ion 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
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702 (b)(1 ). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for rev iew to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhan cement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
6
disposition of allegations of a prohibited personnel practice descri bed in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.5 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(B).
If you submit a petition fo r judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our 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 t he President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of comp etent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195,
132 Stat. 1510.
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 | CUNNINGHAM_BENJAMIN_NY_3443_18_0055_I_1_FINAL_ORDER_2000417.pdf | 2023-02-07 | null | NY-3443 | NP |
3,603 | https://www.mspb.gov/decisions/nonprecedential/ORTIZ_MILAGROS_NY_3443_17_0130_I_1_FINAL_ORDER_2000494.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
MILAGROS ORTIZ,
Appellant,
v.
DEPARTMENT OF THE IN TERIOR,
Agency.
DOCKET NUMBER
NY-3443 -17-0130 -I-1
DATE: February 7, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL1
Milagros Ortiz , Toa Alta, Puerto Rico, pro se.
Cecelia Townes , Atlanta, Georgia, for the agency.
BEFORE
Cathy A. Harris , Vice Chair man
Raymond A. Limon, Member
Tristan L. Leavitt , Member
Member Limon recused 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
dismissed for lack of jurisdiction her appeal of the agency’s removal of an
element of her performance plan, with the result that a promotion sh e was
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
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
expecting was cancelled. Generally, we grant petitions such as this one only in
the following circumstances: the initial decision contains erroneous findings of
material fact; the initial decision is based on an erroneous interpretation of statute
or regulation or the erroneous a pplication of the law to the facts of the case; the
administrative judge’s rulings during either the course of the appeal or the initial
decision were not consistent with required procedures or involved an abuse of
discretion, and the resulting error affec ted the outcome of the case; or new and
material evidence or legal argument is available that, despite the petitioner’s due
diligence, was not available when the record closed. Title 5 of the Code of
Federal Regulations, section 1201.115 ( 5 C.F.R. § 1201.115 ).
¶2 On petition for review, the appellant argues that the agency’s reassignment
of her duties and denial of the promotion she had been expecting constitutes a
constructive demotion. An employee as defined at 5 U.S.C. § 7511 (a)(1) may
appeal an adverse action under 5 U.S.C. § 7512 to the Board under 5 U.S.C.
§ 7513 (d). Section 7512 defines an adverse action as: (1) a removal; (2) a
suspension for more than 14 days; (3) a reduction in grade; (4) a reduction in pay;
or (5) a furlough of 30 days or less. Thus, a reassignment without a reduction in
grade or basic rate of pay is ordinarily not appealable to the Board under 5 U.S.C.
§ 7513 (d). Pierce v. Merit Systems Protection Board , 242 F.3d 1373 , 1375 (Fed.
Cir. 2001). A narrow exception exists when an agency reassigns an employee out
of a position that is subsequently upgraded and the employee met the
requirements for promotion at the time of the reassignment, in which case the
Board will treat the reassignment as a constructive demotion. Id. That exception
does not apply here, however. Critically, the appellant has not alleged that she
was reassigned from a position that was worth a higher grade, onl y that she
performed two higher -graded duties, which were subsequently removed by the
agency, while in her current position. Petition for Review File, Tab 1.
Consequently, we find that she has not made a nonfrivolous allegation that she
was constructively demoted. Phillips v. Department of the Air Force ,
3
104 M.S.P. R. 229 , ¶ 5 (2006); Fleming v. Department of Labor , 97 M.S.P.R. 341 ,
¶¶ 13, 16 (2004). After fully considering the filings in this appeal, we conclude
that the petitioner has not established any basis under section 1201.115 for
granting the petition for review. Therefore, we DENY the petition for review and
AFFIRM the initial decision, which is now the Boar d’s final decision. 5 C.F.R.
§ 1201.113 (b).
NOTICE OF APPEAL 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 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
2 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise w hich option is most appropriate in any matter.
4
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for rev iew to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, an d Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representa tion
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cas es involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you ma y obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 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
conditi on, you may be entitled to representation by a court -appointed lawyer and
to waiver of any requirement of prepayment of fees, costs, or other security. See
42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district courts can be foun d at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by th e Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the
EEOC’s Office of Fe deral Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case,
and your representative receives this decision before y ou do, then you must file
with the EEOC no later than 30 calendar days after your representative 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
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 whi stleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D) .
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), ( C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.3 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www .cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
3 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit cou rt of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195,
132 Stat. 1510.
7
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the l ink below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD:
Washington, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board | ORTIZ_MILAGROS_NY_3443_17_0130_I_1_FINAL_ORDER_2000494.pdf | 2023-02-07 | null | NY-3443 | NP |
3,604 | https://www.mspb.gov/decisions/nonprecedential/HARRINGTON_CHARLES_WILLIAM_AT_0752_21_0535_I_1_FINAL_ORDER_2000501.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
CHARLES WILLIAM HARR INGTON,
JR.,
Appellant,
v.
DEPARTMENT OF VETERA NS
AFFAIRS,
Agency.
DOCKET NUMBER
AT-0752 -21-0535 -I-1
DATE: February 7, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL1
Charles William Harrington, Jr. , Palmetto, Florida, pro se.
Dana C. Heck , Esquire, St. Petersbur g, 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 decision, which
sustained his removal for misconduct . 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 mat erial fact; the initial decision is based on an erroneous
interpretation of statute or regulation or the erroneous application of the law to
the facts of the case; the administrative judge’s rulings during either the course of
the appeal or the initial dec ision were not consistent with required procedures or
involved an abuse of discretion, and the resulting error affected the outcome of
the case; or new and material evidence or legal argument is available that, despite
the petitioner’s due diligence, was not available when the record closed. Title 5
of the Code of Federal Regulations, section 1201.115 ( 5 C.F.R. § 1201.115 ).
After fully considering the filings in this appeal, we conclude that the petitioner
has not established any basis under section 1201.115 for granting the petition for
review. Therefore, we DENY the petition for review and AFFIRM the initial
decision, which is now the Board’s final decision. 5 C.F.R. § 1201.113 (b).
DISCUSSION OF ARGUME NTS ON REVIEW
¶2 The appellant , a Police Officer, accessed a law enforcement report in an
agency electronic database , photographed it, and sent the picture to a party
outside the agency , all without a legitimate business reason or authorization .
Initial Appeal File (IAF), Tab 5 at 60-62. Based on that misconduct, the agency
removed the appellant under chapter 75 of Title 5 of the U.S. Code based on two
charges : (1) conduct unbecoming a Federal police officer , and (2) violating the
agency information security rules of behavior and medical facility privacy
policy .2 Id. at 37, 39-42, 51 -55. The appellant appealed his removal to the
Board. IAF, Tab 1.
2 The agency previously remove d the appellant for the same misconduct, in addition to
other alleged acts, under 38 U.S.C. § 714 . Harrington v. Department of Veterans
Affairs , MSPB Docket No. AT-0714 -18-0615 -I-1, Initial Appeal File, Tab 5 at 19,
21-23, 280 -83. The appellant appealed his removal to the Board, and the administrative
judge affirmed the removal in an initial decision . Harrington v. Department of
Veterans Affairs , MSPB Docket No. AT -0714 -18-0615 -I-1, Initial Decision (Feb. 19,
2019). The appellant appealed the initial decision to the U.S. Court of Appeals for the
Federal Circuit, which , following its reasoning in Sayers v. Department of Veterans
Affairs , 954 F.3d 1370 (Fed. Cir. 2020), vacated the appellant’s removal and remanded
3
¶3 After affording the appellant his requested hearing —at which the appellant
admitted to photographing and releasing the agency police report as charged, IAF,
Tab 45, Hearing Recording (HR) (testimony of the appellant) ,3—the
administrative judge affirmed the appellant’s removal, finding that the agency
proved its charges by preponderant evidence, that the appellant failed to prove his
affirmative defenses of harmful error and reprisal for whistleblower activity , and
that the agency proved a nexus between its action and the efficiency of the
service and the reasonableness of its penalty , IAF, Tab 48, Initial Decision (ID)
at 2-11. On review, among other contentions, the appellant argues that the
administrative judge made various errors in sustaining the agency ’s charges and
finding the removal reasonable . Petition for Review ( PFR ) File, Tab 1. The
agency filed a response. PFR File, Tab 3.
¶4 After careful consideration of the appellant’s petition for review , we discern
no reason to disturb the initial decision. T he appellant argues that the agency
committed a due process violation because the deciding official considered his
lack of remorse or acceptance of accountability for his actions even though the
proposing official never listed that as an aggravat ing factor. PFR File, Tab 1
at 32; HR (testimony of deciding official). However, t he deciding official’s
conclusion that the appellant lacked remorse or accountability was a logical
inference from the record, including the appellant’s failure to cooperate with the
agency investigation into his misconduct and his failure, until the hearing, to
apologize for his actions. IAF, Tab 5 at 61 -62; ID at 11 n.3. Thus, it was not
improper for the deciding official to find a lack of rehabilitative poten tial based
the case to the Board on the gr ounds that the administrative judge failed to consider the
reasonableness of the penalty and improperly applied 38 U.S.C. § 714 retroactively to
the appellant’s misconduct . Harrington v. Departmen t of Veterans Affairs , 981 F.3d
1356 , 1358 -59 (Fed. Cir. 2020). The administrative judge then reversed the agency’s
action and remanded the mat ter to the agency. Harrington v. Department of Veterans
Affairs , MSPB Docket No. AT-0714 -18-0615 -M-1, Initial Decision (Mar . 31, 2020) .
The current appeal is based on a new removal action.
3 The appellant repeated these admissions in his close of record brief. IAF, Tab 46 at 7.
4
on the appellant’s failure to accept responsibility. See Harding v. U.S. Naval
Academy , 567 F. App’x 920 , 925 -26 (Fed. Cir. 2014) (finding an appellant’s due
process rights were not violated when he was not advised in advance that the
deciding official might draw an inference from the nature of the charged
misconduct).
¶5 Regarding penalty, the appellant argues that the deciding official failed to
give any wei ght to mitigating factors, such as his length of service, fully
successful performance record , and lack of prior discipline. PFR File, Tab 1
at 31. However, the record shows that the deciding official considered these
factors in his penalty analysis. IAF, Tab 5 at 43. That these factors did not cause
the deciding official to mitigate the penalty does not mean that they were not
considered. As to the appellant’s argument that rehabilitative potential must be
assessed based on past misconduct, not the cu rrent matter, PFR File, Tab 1 at 32,
the appellant is taking a statement in Douglas v. Veterans Administration ,
5 M.S.P.R. 280 , 312-13 (1981) , out of context , as it was part of a determination
that a particular appellant ’s long disciplinary record weighed against finding
rehabilitative potential , not that the misconduct for which he was removed could
not be considered as part of that ass essment .
¶6 In his initial decision, the administrative judge failed to address the
appellant’s claim that there was no evidence that he was informed o f the rules of
behavior and the privacy policy that he allegedly violated. PFR File, Tab 1
at 24-25; IAF, Tab 46 at 7 -8. Because knowledge of the rules and policy
allegedly violated is not an element of the agency’s charge, the appellant’s claim
is not relevant to whether the charge was properly sustain ed. See Well s v.
Department of Defense , 53 M.S.P.R. 637 , 643 -44 (1992). In addition, even if the
appellant had not been specifically informed of the rules and policy he was
alleged to have violated, it strains credulity that the appellant, a Police Officer ,
did not know that law enforcement reports should not be photographed and given
to an individual outside of the agency. Regarding the argument that the
5
appellant’s photographing and releasing the information was not improper
because it had previously been released under the Freedom of Information Act ,
PFR File, Tab 1 at 25 -26; IAF, Tab 46 at 6 -7, which the administrative judge also
did not address, the appellant cites nothing to supp ort his claim that his conduct
was proper because the information had been previously released. Thus, the
appellant’s claims do not provide a basis to disturb the initial decision.
¶7 For the first time on petition for review , the appellant argues that: (1) the
charges should merge because they both allege the same underlying misconduct;
and (2) the conduct unbecoming a Federal police officer cha rge is
unconstitutionally vague. PFR File, Tab 1 at 20 -24. The appellant has not
explained why he was unable to raise these arguments prior to the close of the
record before the administrative judge , and thus we need not consider them.
Clay v. Department of the Army , 123 M.S.P.R. 245 , ¶ 6 (2016) (stating that t he
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 desp ite the party’s due diligence).
¶8 In any event, if the charges were merged, the fact that a charge has been
merged into another does not mean that the duplicative charge is not sustained or
that the appellant’s misconduct somehow becomes less serious by virtue of the
merger. Shiflett v. Department of Justice , 98 M.S.P.R. 289 , ¶ 12 (2005) .
Furthermore, a lthough he did not merg e the two charges, the administrative judge
acknowledged that they were based on the same underlying set of facts, ID at 5,
and we discern no basis to find that he abandoned this premise in assessing the
reasonableness of the penalty, ID at 10 -11. There i s also no indication in the
record that the deciding official interpreted the appellant’s misconduct as
exceeding a single set of acts or sought to magnify the penalty based on the fact
that the same acts were used to support two charges. IAF, Tab 5 at 39 -44; HR
(testimony of the deciding official). Thus, even if the administrative judge erred
by not merging the charges, this error did not prejudice the appellant’s rights and
6
provides no basis to disturb the initial decision.4 Panter v. Department of the Air
Force , 22 M.S.P.R. 281 , 282 (1984).
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 bel ow do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to yo ur particular case. If you have questions
4 Regarding the claim that the conduct unbecoming charge was vague and thus invalid,
the Board has held that a charge of “conduct unbecoming,” much like a charge of
“improper conduct,” has no specific elements of proof; it is esta blished by proving that
the employee committed the acts alleged in support of the broad label. Canada v.
Department of Homeland Security , 113 M.S.P.R. 509 , ¶ 9 (2010). Here, the agency’s
narrative under the charge set forth his actions in detail and describe d why they wer e
unbecoming a police officer . IAF, Tab 5 at 51. Thus, there was nothing improper in
the agency’s charge. See Otero v. U.S. Postal Service , 73 M.S.P.R. 198 , 202 -03 (1997)
(finding an appellant was not harmed by the agency’s use of a broad label such as
“improper misconduct” when the specificity provided by the agency’s narrative of the
appellant’s misconduct satisfied notice and fairne ss requirements); Gallagher v. U.S.
Postal Service , 6 M.S.P.R. 572 , 575 (1981) (finding that an agency regulation
prohibiting “conduct unbecoming ” an employee was not unconstitutionally vague as
applied to an appellant when the charges in the proposal notice were clear, specific, and
informed the appellant of the reasons for his proposed removal).
5 Since the issuance of the initial decision in thi s matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.
7
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circ uit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Peti tioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems 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
8
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 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
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative 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
9
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 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.6 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
6 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for 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.
10
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional infor mation about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information f or the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD:
Washington, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board | HARRINGTON_CHARLES_WILLIAM_AT_0752_21_0535_I_1_FINAL_ORDER_2000501.pdf | 2023-02-07 | null | AT-0752 | NP |
3,605 | https://www.mspb.gov/decisions/nonprecedential/DIRKS_ARTHUR_R_DE_0831_17_0039_I_1_FINAL_ORDER_1999828.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
ARTHUR R. DIRKS,
Appellant,
v.
OFFICE OF PERSONNEL
MANAGEMENT,
Agency.
DOCKET NUMBER
DE-0831 -17-0039 -I-1
DATE: February 6, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL1
Arlan Dirks , Independence, Missouri, for the appellant.
Kristine Prentice , 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 decision of the Office of Personnel Management (OPM) finding that
he was ineligible for an annuity under the Civil Service Retirement System
(CSRS) . Generally, we grant petitions such as this one only in the following
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c).
2
circumstances: th e 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 duri ng either the course of the appeal or the initial decision
were not consistent with required procedures or involved an abuse of discretion,
and the resulting error affected the outcome of the case; or new and material
evidence or legal argument is availabl e that, despite the petitioner’s due
diligence, was not available when the record closed. Title 5 of the Code of
Federal Regulations, section 1201.115 ( 5 C.F.R. § 1201.115 ). After full y
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 t he Board’s final decision. 5 C.F.R. § 1201.113 (b).
BACKGROUND
¶2 The appellant worked for the Department of Agriculture from June 9, 1974 ,
through October 21, 1994, when he separated from Federal service at age 45 .
Initial Appeal File (IAF), Tab 1 at 3. In response to the appellant’s questions
about his options regarding the monies in his CSRS retirement account , OPM sent
him letters in February and March of 1995 explaining that he w ould be eligible
for a deferred retirement annuity at age 62 if he did not withdraw his retirement
deductions ; however, he would void any future retirement benefits if he withdrew
those deductions . IAF, Tab 9 at 22 -25. On September 28, 1995, and January 12,
1996, respectively, the appellant applied for and received a refund of his
retirement deductions . Id. at 8-14, 16-19.
¶3 More than 20 years later, by letter dated August 23, 2016, the appellant
applied for a deferred CSRS retirement annuity based on his Federal service. Id.
at 32-34. On September 14, 2016, OPM issued a final decision denying the
3
appellant’s application based on his withdrawal of his retirement deductions . Id.
at 6-7.
¶4 The appellant filed a Board appeal of OPM’s final decision but did no t
request a hearin g. IAF, Tab 1 at 1. On appeal, the appellant argued that when he
separated from service and inquired about his options regarding his Federal
retirement account, he was informed that his only option was to withdraw his
retirement deducti ons as a lump sum ; however, in 2016 he learned that former
Federal employees with 20 years of service under the CSRS can begin receiving
deferred retirement benefits at the age of 62. IAF, Tab 1 at 3, Tab 22 at 2 -4.
¶5 The appellant also raised an issue that was not addressed in OPM’s
decision; namely, whether the amount of the refund he received was correct.
Specifically, i n his initial submission on appeal , the appellant stated that he did
not know how the refund amount was determined or whether it was det ermined
correctly , and that he had asked OPM for information concerning this matter , but
had not received it. IAF, Tab 1 at 3. Based on information OPM provided during
discovery, IAF, Tab 9 at 16 -19, the appellant subsequently argued that the amount
of the refund was incorrect. IAF, Tab 15 at 2, Tab 22 at 4-5.
¶6 The administrative judge issued an initial decision that affirmed OPM’s
final decision. ID at 1, 5. The administrative judge found that, because the
appellant had separated from service and was n ot reemployed, the refund of his
CSRS retirement deductions voided all annuity rights based on the service that
was the subject of the refund , ID at 4. 5 U.S.C. § 8342 (a); Yarbrough v. Office of
Personnel Management , 770 F.2d 1056 , 1060 -61 (Fed. Cir. 1985 ). Moreover, t he
administrative judge found , the appellant is ineligible to redepos it the refunded
amount because he has not been reemployed in a position subject to the CSRS .
ID at 4 ; IAF, Tab 15 at 3; see 5 U.S.C. § 8334 (d)(1)); Youngblood v. Office of
Personnel Management , 108 M.S.P.R. 278 , ¶ 12 (2008) ; Sanchez v. Office of
Personnel Management , 47 M.S.P.R. 343 , 346-47 (1991) (holding that an
employee who received a refund pursuant to 5 U.S.C. § 8342 may be allowed
4
credit for his prior service under 5 U.S.C. § 8334 (d) if “[w]hile subsequently
reemployed in a covered position” he redeposits the amount received, with
inter est).
¶7 The administrative judge also rejected the appellant’s contention that he
was misled by unnamed sources. ID at 5. Rather, the administrative judge found,
OPM provided the appellant with accurate written notices of his rights and
options, and h e received th ose notices . Id. The administrative judge did not
address the appellant’s argument that the amount of his refund was incorrect.
¶8 The appellant has filed a petition for review to which OPM r esponds briefly
in opposition. Petition for Review ( PFR) File, Tabs 1, 4.2
ANALYSIS
¶9 On review, t he appellant does not challenge the administrative judge’s
determination that he is not eligible to receive annuity benefits under CSRS, and
we discern no reason to disturb this finding . PFR File, Tab 1 . The receipt of a
refund of CSRS retirement contributions voids all annuity rights based on the
service for which the refund is made, unless the employee redeposits the refunded
amount , with interest, while serving in a position covered by the CSRS. 5 U.S.C.
§§ 8334 (d), 8342(a); Youngblood , 108 M.S.P.R. 278 , ¶ 12. Here, bec ause the
appellant received a refund of his CSRS retirement contributions, he is not
entitled to a deferred CSRS annuity based on his service from 197 4-1994. See
Youngblood , 108 M.S.P.R. 278 , ¶ 12 . Additionally, the appellant is not entitled
to redeposit his withdrawn contributions because he is not a current employee
making retirement contributions. See id.
2 With his petition for review, the appellant submits two letters to OPM dated
November 22, 201 6, in which he requests a record of all his CSRS contributions. PFR
File, Tab 1 at 5 -6. We need not consider these letters because they predate the close of
the record and the appellant has made no showing that they were unavailable before the
record clo sed despite his due diligence. Avansino v. U.S. Postal Service , 3 M.S.P.R.
211, 214 (1980).
5
¶10 We also find that the appellant’s assertion that OPM miscalculated the
amount of the refund does not provide a basis for disturbing the initial decision.
As previously noted, OPM’s final decision did not address that issue. IAF, Tab 9
at 6-7. The Board generally lacks jurisdiction to hear an appeal of a retirement
matter when OPM has not issued a final decision on the matter.3 See Settlers v.
Office of Personnel Management , 108 M.S.P.R. 105 , ¶ 9 (2008). The appellant
consequently is advised that he may make a specific request to OPM for a
separate, formal determination concerning its calculation of his refund . If the
appellant is dissatisfied with any subsequent OPM decision regarding his refund,
he may request that OPM reconsider the decision and, if he is sti ll dissatisfied,
may appeal OPM’ s final decision to the Board. See 5 C.F.R. § 831.110 . Any
future appeal must be filed within the time limits set forth in the Board ’s
regulations. See 5 C.F.R. § 1201.22 .
NOTICE OF APPEAL RIGHTS4
You may obtain review of this final decision. 5 U.S.C. § 7703 (a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703 (b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
3 The Board has recognized an exception to the genera l rule that it lacks jurisdiction to
adjudicate a retirement matter in the absence of a final decision when OPM has failed to
render a decision. Ramirez v. Office of Personnel Management , 114 M.S.P.R. 511 , ¶ 7
(2010). Under this exception, the Board will take jurisdiction over a retirement appeal,
even abs ent an OPM final decision, when the appellant has made repeated requests for such
a decision and the evidence indicates that OPM does not intend to issue one. Id. This
exception does not apply here, however, as the appellant has not shown that OPM failed
to provide him a decision desp ite his repeated requests to do so .
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 a ppropriate in any matter.
6
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possibl e choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issu ance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition 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
7
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that 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 receives this decision before
you do, then you must file with the district court no later than 30 calendar days
after your representative receives this decision. If the action involves a claim of
discrimination based on race, color, religion, sex, national origin, or a disabling
condition, you may be entitled to representation by a court -appointed lawyer and
to waiver of any requirement of prepayment of fees, costs, or other security. See
42 U.S.C. § 2000e -5(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
8
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 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 r eview either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.5 The court of appeals must receive your petition for
5 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by t he President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of comp etent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195,
132 Stat. 1510.
9
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of App eals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the cour t’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal C ircuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney n or 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 | DIRKS_ARTHUR_R_DE_0831_17_0039_I_1_FINAL_ORDER_1999828.pdf | 2023-02-06 | null | DE-0831 | NP |
3,606 | https://www.mspb.gov/decisions/nonprecedential/KISER_ROY_S_DE_1221_19_0415_W_3_FINAL_ORDER_1999860.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
ROY S. KISER,
Appellant,
v.
DEPARTMENT OF VETERA NS
AFFAIRS,
Agency.
DOCKET NUMBER S
DE-1221 -19-0415 -W-3
DE-1221 -21-0006 -W-1
DATE: February 6, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL1
Roy S. Kiser , Fruita, Colorado, pro se.
Chau Phan , Esquire, Lakewood , 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
denied his request for corrective action in his joined individual right of action
appeal s. On petition for review , the appellant, among other things, provides a
history of his em ployment and perceived “operational breakdowns” that formed
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case 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 basis for his disclosures, asserts that the initial decision does not account for
all of the background or history relevant to his appeals, challenges the
determination that certain disclosures were not protected, contends that the
charges against him were the agency’s attempt to deflect blame for the
inefficiencies or dysfu nctions he encountered, and claims that the agency did not
meet its burden of proving by clear and convincing evidence that it would have
taken the actions in the absence of his disclosures. Generally, we grant petitions
such as this one only in the follo wing 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 administrati ve 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 leg al 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 In several places, the initial decision contains what appears to be a typographical
error. For example, the discussion of the appellant’s December 24, 2018 disclosure
includes the following analysis:
I find that a disinterested observer with knowledge of the essential facts known
to, and readily ascertainable by, the appellant could reasonably conclude that the
background section of his letter evidenced a vio lation of law, rule or regulation.
Nor do I find the background section to disclose gross mismanagement, a gross
waste of funds, an abuse of authority, or a substantial and specific danger to
public health or safety. Accordingly, I find nothing in the ba ckground section of
the letter was a protected disclosure pursuant to 5 U.S.C. § 2302 (b)(8)(A).
Kiser v. Department of Veterans Affairs , MSPB Docket No. DE -1221 -21-0006 -W-1,
Initial Appeal File, Ta b 41, Initial Decision (ID) at 18 (emphasis added). The
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. § 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
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
administrative judge’s analysis of some other disclosures contains virtually identical
language. E.g., ID at 20-21. It is apparent, however, that he intended to find that “the
appellant could not reasonably conclude” that he was making the type of disclosure
protected under the statute. That is the only reasonable interpretation, given the latter
portion of the paragraph, the administrative judge’s summation of all the alleged
disclosures, his anal ysis of the contributing factor criterion, and his analysis of any
retaliatory motive by agency officials. See, e.g ., ID at 18, 21, 24 -26, 55 -58.
3 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of revie w rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.
4
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
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 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
5
discrimination based on race, color, religion, sex, national origin, or a disabling
condition, you may be entitled to representation by a court -appointed lawyer and
to waiver of any requirement of prepayment of fees, costs, or other security. See
42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below :
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination clai ms only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D .C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
6
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board ’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.4 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “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
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 re prisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195,
132 Stat. 1510.
7
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 | KISER_ROY_S_DE_1221_19_0415_W_3_FINAL_ORDER_1999860.pdf | 2023-02-06 | null | S | NP |
3,607 | https://www.mspb.gov/decisions/nonprecedential/STOGLIN_COREY_DEMOND_CH_3330_16_0616_I_1_FINAL_ORDER_1999892.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
COREY DEMOND STOGLIN ,
Appellant,
v.
DEPARTMENT OF HOMELA ND
SECURITY,
Agency.
DOCKET NUMBER
CH-3330 -16-0616 -I-1
DATE: February 6, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL1
Corey Demond Stoglin , Minneapolis, Minnesota, pro se.
Douglas Mark Livingston , Esquire, Houston, 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
denied his request for corrective action in connection with his appeal under the
Veterans Employment Opportunities Act of 1998 (VEOA) and dismissed for lack
of jurisdiction his Uniformed Services Employment and Reemployment Rights
1 A nonprecedential order is one that the Board has determined does not add
significantly to the 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
Act (USERRA) 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
administrative judge’s rulings during either the course of the appeal or the initial
decision were not consistent with required pr ocedures or involved an abuse of
discretion, and the resulting error affected the outcome of the case; or new and
material evidence or legal argument is available that, despite the petitioner’s due
diligence, was not available when the record closed. Titl e 5 of the Code of
Federal Regulations, section 1201.115 ( 5 C.F.R. § 1201.115 ). After fully
considering the filings in this appeal, we conclude that the petitioner has not
established any basis under section 1201.115 for granting the petition for review.
Therefore, we DENY the petition for review . Except as expressly MODIFIED by
this Final Order to c larify the administrative judge’s analysis of the appellant’s
USERRA claim and to upho ld the dismiss al of that claim for lack of jurisdiction ,
we AFFIRM the initial decision.
BACKGROUND
¶2 The appella nt is a 30% disabled preference -eligible veteran. Initial Appeal
File (IAF), Tab 5 at 8, 11. In February 2016, he applied under vacancy
anno uncement CIS -1636923 -EO1 for the position of Equal Employment
Opportunity Manager (Division Chief), GS -14. Id. at 23 -27. On March 23, 2016,
the appellant was notified that he had been found ineligible because he did not
submit the “requi red Veteran’s doc umentation” as stated in the announcement.
Id. at 29. The appellant responded that he had mistakenly submitted the “wrong
document” for his DD -214, Certificate of Release or Discharge from Active Duty ,
id. at 22 , and subsequently did submit the required documentation, id. at 21 . He
was then advised that he did not qualify for the position because his ré sumé failed
to show that he had at least 1 year of specialized experience equivalent to the
3
GS-13 level . Id. at 20. The appellant responded, urging that , based on his
service in the military, he did meet the requirement . Id. Upon further review of
his application, he was found minimally qualified for the position, and his r ésumé
was referred to the hiring official for consideration, id. at 19 , but he was not
selected .
¶3 On July 27, 2016, the Department of Labor (DOL), Veterans’ Employment
and Training Group (VETS), acknowledged receipt of the appellant’s VEOA
complaint .2 IAF, Tab 1 at 10 . Unable to resolve the complaint , DOL VETS
advised the appellant of his right to appeal to the Board, id. at 8-9, which he did .
Claiming that he was denied the right to compete for the position, the appellant
asserted that, although he was told that his application would be referred to the
hiring official, it was not . Id. at 5. He requested a hearing . Id. at 2.
¶4 The administrative judge issued an order on VEOA j urisdiction and notice
of proof requirements in connection with the appellant’s VEOA appeal. IAF,
Tab 3. In his response, the appellant alleged that, in initially finding him
ineligible for the position in question, the agency violated his veterans’
preference rights, and that it also denied him the right to compete under 5 U.S.C.
§ 3304 (f)(1). IAF, Tab 5 at 4-6. The appellant also raised the possibility that, as
to the nonselection, the agency violated his rights under USERRA by not properly
crediting the experience he earned while he was in the military . Id. at 6. The
administ rative judge then issued an order on USERRA jurisdiction and notice of
proof requirements , IAF, Tab 7 , in response to which the appellant argued that the
comments and reaction of the agency Human R esources (HR) official to his
application, as evidence d by the “combative” nature of certain emails, reflect ed
animus against him based on his military service , IAF, Tab 8. The agency moved
that the appeal be dismissed for lack of jurisdiction. IAF, Tab s 6, 9.
2 The appellant did not submit a copy of the complaint he filed with DOL.
4
¶5 In an initial decision based on the written record, the administrative judge
first addressed the appellant’s VEOA claim. IAF, T ab 10, Initial Decision (ID)
at 4-7. The administrative judge found that the appellant cited to no provision of
law, rule, or regulation related to veterans’ preference that excuses a veteran
applicant from complying with the requirements set forth in the vacancy
announcement, here, submission of the DD -214, and that the appellant therefore
failed to prove that the agency violated his veterans’ preference rights when it
initially found him ineligible for the position in question b ased on his failure to
submit his DD -214. ID at 5 -6. Further, the administrative judge found that,
because the appellant was ultimately found to be minimally qualified and his
application was referred to the hiring official for consideration, he failed to show
that he was denied the right to compete for the position. ID at 6 -7. The
administrative judge then addre ssed the appellant’s USERRA claim, finding that
the appellant failed to establish that the communication from the agency’s HR
official constituted discrimination based on military service or affiliation. I D
at 7-9. The administrative judge denied the app ellant’s request for corrective
action under VEOA and dismissed his USERRA claim. ID at 9.
ANALYSIS
The appellant’s VEOA appeal
¶6 On review, the appellant does not specifically challenge the administrative
judge’s decision denying him corrective action unde r VEOA. Petition for Review
(PFR ) File, Tab 1 at 3-5. We discern no error in that regard. The agency
advertised the position in question by a vacancy announcement , which indicated
that it was open to the following classes of persons: “Current or Former
Employees with Competitive Status; Reinstatement Eligibles; OPM Interchange
Agreement Eligibles; VEOA, Disability, Surplus/Displaced Eligibles.” IAF,
Tab 5 at 24. After the matter of the appellant’s preference -eligible status was
resolved by his submissi on of the requested DD -214, he was found minimally
5
qualified for the position and his application was referred to the hiring official
under the Schedule A (30% disabled veteran) hiring authority. IAF, Tab 6 at 4 ,
Tab 9 at 7. Because t he agency exercised its discretion to fill the vacancy under
the merit promotion process, the ranking and selection rules that apply to the
competitive -examination process, including veterans’ preference , do not apply .
Joseph v. Federal Trade Commission , 505 F.3d 1380 , 1382 (Fed. Cir. 2007);
Perkins v. U.S. Postal Service , 100 M.S.P.R. 48 , ¶ 9 (2005) . Moreover, although
a preference eligible is entitled to have a broad range of experience considered b y
the agency in reviewing his or her application for a position, how the agency
adjudges and weighs those experiences is beyond the Board’s purview. See, e.g. ,
Asatov v. Agency for International Development , 119 M.S.P.R. 692 , ¶ 7 (2013)
(stating that the matter at issue in a VEOA appeal is not whether a particular
agency action is proper and should be sustained) , overruled on othe r grounds by
Dean v. Department of Labor , 122 M.S.P.R. 276 , aff’d in part, rev’d in part ,
808 F.3d 497 (Fed. Cir. 2015) . The appellant has not established that his
nonselection violated his rights under a statute or regulation relating to veterans’
preference , 5 U.S.C. § 3330a (a)(1)(A) , and h is claims of irregularities in the
selection process do not compel a contrary result.
¶7 Nor has the appellant shown that he was denied the ri ght to compete under
that part of the VEOA statute . 5 U.S.C. §§ 3330a (a)(1)(B), 3304(f)(1). He
applied for the position, and his application was referred noncompetitively to the
hiring autho rity for consideration. Nothing more is required. Scharein v.
Department of the Department of the Army , 91 M.S.P.R. 329 , ¶¶ 9-10 (2002)
(emphasizing that VEOA does not guarantee a preference eligible a posit ion of
employment ), aff’d , No. 02 -3270, 2008 WL 5753074 (Fed. Cir. Jan. 10, 2008).
While the appellant asserts that his application was not, in fact, forwarded to the
hiring o fficial, he has submitted no evidence in support of his claim, and evidence
submitted by the agency supports the administrative judge ’s contrary finding.
IAF, Tab 9 at 7. Although t he appellant in this case was not selected, we agree
6
with the administrative judge that he was not denied the right to compete under
VEOA.3 Joseph , 505 F.3d at 1383 -84.
¶8 The appellant argues on review that he was denied a hearing . PFR File,
Tab 1 at 3 . He has not , however, shown error in the administrative judge ’s
finding that none was required because there is no genuine dispute of material
fact in this VEOA appeal and one party , here, the agency, must prevail as a matter
of law. Davis v. Department of Defense , 105 M.S.P.R. 604 , ¶ 12 (2007); ID at 2
n.1.
The appellant’s USERRA appeal
¶9 The appellant argues on review that the administrative judge incorrectly
denied his USERRA claim because he was rated as minimally qualified based on
experience that he gained while in the Reserves and that th e rating came from a
direct communication with the HR official who assessed the appellant’s
experience. PFR File, Tab 1 at 4.
¶10 The administra tive judge considered the appellant’s allegations that the
agency’s HR official was combative with him in her emails regarding his
qualifications for the job at issue when she told him that he should list the salary
he earned at his previous positions and that her tone in o ne email was
circumstantial evidence of her animus against him because of his military service.
The administrative judge examined the emails in question but found that the
appellant failed to establish his discrimination claim and that t he Board therefore
lacked jurisdiction over his USERRA appeal . ID at 8 -9.
¶11 To establish jurisdiction under 38 U.S.C. § 4311 (a),4 an appellant must
allege that : (1) he performed duty or has an obl igation to perform duty in a
3 While the appellant suggests on review that he “had new evidence” that he was, and is
still, waiting to be verified that ma y show that the agency has submitted “false
evidence,” PFR File, Tab 1 at 3 -4, he has not submit ted any such evidence.
7
uniformed service of the United States ; (2) the agency denied h is initial
employment, reemployment, 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 un iformed service. Williams v. Department of the Treasury ,
110 M.S.P.R. 191, ¶ 8 (2008). Despite language in the initial decision that
appears to suggest that the administrative judge adjudicated this claim on the
merits, he concluded that the Board lacks jurisdiction to address it and he
dismissed it. ID at 9. Although we acknowledge that USERRA claims should be
broadly construed, Williams , 110 M.S.P.R. 191, ¶ 8, we nonetheless conclude that
the administrative judg e’s jurisdictional finding is correct.
¶12 The appellant ’s claim of discrimination is based on his description of the
tone of the correspondence of the HR official who reviewed his application as
combative, and the fact that she initially found hi m not quali fied. PFR File,
Tab 1 at 4. Notwithstanding , she reconsidered upon further review and did
forward his application to the hiring official for consideration. The matter at
issue in this USERRA appeal is the appellant’s nonselection. He does not
suggest, however, that the HR official influenced the decision of the hiring
official , and his bare claim that the hiring official did not select him for the
position due to his military service does not rise to the level of a nonfrivolous
allegation . Under the circumstances, we agree with the administrative judge’s
ultimate disposition dismiss ing the appellant’s USERRA appeal under 38 U.S.C.
§ 4311 (a) for lack of jurisdiction. Absent a nonf rivolous allegation of Board
jurisdiction under USERRA , the appellant was not entitled to a hearing. Downs
v. Department of Veterans Affairs , 110 M.S.P.R. 139, ¶¶ 17-18 (2008).
4 Section 4311(b), which provides that an employer may not retaliate against an
employee for pursuing or assisting another individual in pursuing his USERRA rights,
is not implicated in this appeal .
8
NOTICE OF APPEAL RIG HTS5
The initial decision, as supplemented by this Final Order, constitutes the
Board’s final decision in this matter. 5 C.F.R. § 1201.113 . You may obtain
review of this final decision. 5 U.S.C. § 7703 (a)(1). By statute, the nature of
your claims determines the time limit for seeking such review and the appro priate
forum with which to file. 5 U.S.C. § 7703 (b). Although we offer the following
summary of available appeal rights, the Meri t Systems Protection Board does not
provide legal advice on which option is most appropriate for your situation an d
the rights described below do not represent a statement of how courts will rule
regarding which cases fall within their jurisdiction. If you wish to seek review of
this final decision, you should immediate ly review the law applicable to your
claims and carefully follow all filing time limits and requirements. Failure to file
within the applicable time limit may result in the dismissal of your case by your
chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be 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 adv ise which option is most appropriate in any matter.
9
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc .uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an ap peal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neith er endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed th at you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 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
10
discrimination based on race, color, religion, sex, national origin, or a disabling
condition, you may be entitled to representation by a court -appointed lawyer and
to waiver of any requirement of prepayment of fees, costs, or other security. See
42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.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
11
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
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 Feder al
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
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 circui t court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195,
132 Stat. 1510.
12
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respe ctive websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD:
Washington, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board | STOGLIN_COREY_DEMOND_CH_3330_16_0616_I_1_FINAL_ORDER_1999892.pdf | 2023-02-06 | null | CH-3330 | NP |
3,608 | https://www.mspb.gov/decisions/nonprecedential/SKIBENES_JOHN_JOSEPH_NY_3330_21_0131_I_1_FINAL_ORDER_1999907.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
JOHN JOSEPH SKIBENES , SR .,
Appellant,
v.
DEPARTMENT OF THE AR MY,
Agency.
DOCKET NUMBER
NY-3330 -21-0131 -I-1
DATE: February 6, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL1
John Joseph Skibenes, Sr. , Pen Argyl, Pennsylvania, pro se.
Matthew D. Nafus , Esquire, and Robert Preziosi , Esquire, Picatinny
Arsenal, New Jersey, 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 Veterans Employment Opportunities Act of 1998 (VEOA) appeal
for lack of jurisdiction because the appellant failed to exhaust his claim with the
Department of Labor ( DOL) . Generally, we grant petitions such as this one only
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or 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
in the following circumstances: the initial decision contains erroneous findings
of material fact; the initial decision is based on an erroneous interpretation of
statute or regulation or the erro neous application of the law to the facts of the
case; the administrative judge’s rulings during either the course of the appeal or
the initial decision were not consistent with required procedures or involved an
abuse of discretion, and the resulting erro r affected the outcome of the case; or
new and material evidence or legal argument is available that, despite the
petitioner’s due diligence, was not available when the record closed. Title 5 of
the Code of Federal Regulations, section 1201.115 ( 5 C.F.R. § 1201.115 ). After
fully considering the filings in this appeal, we conclude that the petitioner has not
established any basis under 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 establish that the Board has jurisdiction over his appeal under VEOA, an
appellant must , among other things, show tha t he exhausted his remedy with
DOL . Haasz v. Department of Veterans Affairs , 108 M.S.P.R. 349 , ¶ 6 (2008).
To meet the VEOA exhau stion requirement, t he appellant must establish the
following : (1) he filed a complaint with the Secretary of Labor; and (2) the
Secretary of Labor was unable to resolve the complaint within 60 days or has
issued a written notification that the Secretary’ s efforts have not resulted in
resolution of the complaint. Davis v. Department of Defense , 105 M.S.P.R. 604 ,
¶ 7 (2007).
¶3 The appe llant’s filings on review do not identify any error with the initial
decision.2 Petition for Review (PFR) File, Tabs 1, 5. With his petition for
review, however, the appellant provides an October 1, 2021 letter i ndicating that,
following the issuance of the initial decision, he exhausted his claim with DOL.
PFR File, Tab 1 at 8-9. Accordingly, we FORWARD the appellant’s filing to the
2 Because we so find, we need not address the timeliness of the appellant’s petition for
review.
3
New York Field Office for docketing as a new VEOA appeal. In so doing, we
make no finding regarding either the timelines s of the appellant’s VEOA appeal
or the Board’s jurisdiction over the same .
NOTICE OF APPEAL RIG HTS3
You may obtain review of this final decision. 5 U.S.C. § 7703 (a)(1). By
statute, the nature o f your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703 (b).
Although we offer the following summary of available appeal right s, the Merit
Systems Protection Board does not provide 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
jurisdict ion. If you wish to seek review of this 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 dismi ssal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to 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).
3 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.
4
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is 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
5
discrimination based on race, color, religion, sex, national origin, or a disabling
condition, you may be entitled to representation by a court -appointed la wyer and
to waiver of any requirement of prepayment of fees, costs, or other security. See
42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/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
6
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.4 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D .C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
4 The origi nal statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permane ntly allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195,
132 Stat. 1510.
7
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the 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 | SKIBENES_JOHN_JOSEPH_NY_3330_21_0131_I_1_FINAL_ORDER_1999907.pdf | 2023-02-06 | null | NY-3330 | NP |
3,609 | https://www.mspb.gov/decisions/nonprecedential/AGNEW_GARY_R_PH_0752_04_0423_C_1_FINAL_ORDER_1999913.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
GARY R. AGNEW,
Appellant,
v.
UNITED STATES POSTAL SERVICE,
Agency.
DOCKET NUMBER S
PH-0752 -04-0423 -C-1
PH-0752 -04-0425-C-1
DATE: FEBRUARY 6, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL1
George Goshdigian , Hebron, Connecticut, for the appellant.
Michael Salvon , Esquire, Windsor, Connecticut, 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 compliance initial
decision, which granted the appellant’s petition for enforcement . For the reasons
discussed below, we GRANT t he agency’s petition for review, VACATE the
compliance initial decision , and DENY the appellant’s petition for enforcement .
1 A nonprecedential order is one that the Board has determined does not add
significantly to the 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 The appellant filed several appeals in 2004 that were subject to years of
delays due to his imprisonment and medical limitations. See Agnew v. U.S.
Postal Service , MSPB Dock et Nos. NY -0353 -14-0337 -I-1, PH -0752 -04-0423 -I-9,
PH-0752 -04-0598 -I-8, PH -0752 -04-0425 -I-8, Final Order (FO), ¶¶ 2 -3 (Dec. 22,
2016). Ultimately, the Board denied the appellant’s restoration claim. FO,
¶¶ 7-9. The Board also sustained his August 27, 200 4 removal for two charges:
(1) conviction of 16 felony counts of mail and Federal compensation fraud, all
stemming from his collection of Office of Workers ’ Compensation Program
benefits; and (2) falsification of Form CA -1032. FO, ¶¶ 4, 18 -29. However, the
Board found that the appellant was improperly subjected to a const ructive
suspension from April 2 –June 17, 20 04. FO, ¶¶ 10 -15. The Board also reversed
the appellant’s indefinite suspension, which was effective from June 18 , 2004,
until his August 27, 2004 removal. FO, ¶¶ 16 -17. As a result, the Board ordered
the agency to cancel the constructive and indefinite suspensions for the combined
period of April 2 –August 26, 2004, and pay the appellant the correct amount of
back pay, interest on back pay, a nd other appropriate benefits. FO, ¶¶ 33-34.
¶3 After the agency’s deadline for complying with the Board’s order, the
appellant filed a petition for enforcement, alleging that the agency had refused to
provide him with appropriate back pay. Agnew v. U.S. Po stal Service , MSPB
Docket Nos. PH -0752 -04-0423 -C-1, PH -0752 -04-0425 -C-1, Compliance File
(CF), Tab 1. The appellant acknowledged that he was in a pay status from
May 7–June 16, 2004, but alleged that he was still ent itled to back pay for
April 2-May 6, 20 04, and June 17 –August 26, 2004. CF, Tab 5 at 1. The agency
responded, arguing that the appellant was not entitled to back pay for the period
at issue because he was not ready, willing, and able to work. CF, Tab 4 at 7 -8.
¶4 In a compliance initial decision, the administrative judge granted the
appellant’s petition for en forcement. CF, Tab 6, Compliance Initial Decision
(CID). The agency has filed a petition for review. Agnew v. U.S. Postal Service ,
MSPB Docket Nos. PH -0752 -04-0423 -C-1, PH -0752 -04-0425 -C-1, Compliance
3
Petition for Review (CPFR) File, Tab 1. The appellant has filed a response, and
the agency has replied.2 CPFR File, Tabs 3, 7.
¶5 When the Board finds that an employee has been the victim of an
unjustified or unwarranted personnel act ion, the goal is to place him in the
circumstances he would have been in had the personnel action never taken place.
Kerr v. National Endowment for the Arts , 726 F.2d 730 , 733 (Fed. Cir. 1984) ;
Bartel v. Federal Aviation Administration , 24 M.S.P.R. 560 , 564 -65 (1984).
Consis tent with that goal, the Board’s case law provides that an individual is not
entitled to back pay for any period of time during which he was not ready,
willing, and able to perform his duties because of an incapacitating illness or
injury, or for reasons u nrelated to or not caused by the unjustified or unwarranted
personnel action. Lyle v. Department of the Treasury , 85 M.S.P.R. 324 , ¶ 6
(2000); Bullock v. Department of the Air Force , 80 M.S.P.R. 361 , ¶ 13 (1998);
see Bartel , 24 M.S.P.R. at 565. The agency bears the initial burden of proving
that it has provided an appellant the appropriate back pay amount. See Bullock ,
80 M.S.P.R. 361, ¶ 11. When , however, the agency produces concrete and
positive evidence, as opposed to a mere theoretical argument that the appellant
was not ready, willing, and able to work during all or part of the period during
which back pay is claimed, the burden of p roof shifts to the appellant to show his
entitlement to back pay. See id.; Hill v. Department of the Air Force ,
60 M.S.P.R. 498 , 501 -02 (199 4).
¶6 The administrative judge found that the agency failed to present sufficient
evidence to show that the appellant was incapable of working during the relevant
2 The appellant characterized his pleading as a cross petition for review, rather than as a
response. CPFR File, Tab 3. However, we have construed the pleading as a response.
In large part, the arguments within the pleading challenge the agency’s petition. The
pleading also includes some arguments pertaining to the merits of the agency’s a dverse
actions, but those matters are not relevant to this compliance proceeding. See Nelson v.
Veterans Administration , 27 M.S.P.R. 133, 135 (1985) (recognizing that an employee’ s
arguments on the merits of his case would not be considered by the Board on review of
a compliance proceeding ).
4
period, from April 2 –August 26, 2004. CID at 3 -4. In doing so, she recognized
three pieces of evidence, but erroneously concluded that none covered the
pertinent period.
¶7 The first piece of evidence the agency submitted in support of its claim that
the appellant was not ready, willing, and able to work during the claimed back
pay period was a m edical record from months earlier. CF, Tab 4 at 9 -10. That
record documents a September 2003 physical exam ination and concludes with the
physician opining that the appellant could work in a sedentary capacity, despite
the appellant’s assertion that he had not worked in more than 2 years and was still
altogether unable to work. Id. The second piece of evidence the agency
submitted was a certification from the Department of Veterans Affairs (DVA),
which the administrative judge mistakenly described. A ccording to that DVA
certification, the appellant “is permanently and totally disabled since March 13,
2003, due to service connected disability or disabilities.” Id. at 11. Although
that certification does, in fact, cover the period at issue in this app eal, the
administrative judge mistakenly described it as covering only the period since
March 2013. Compare CID at 3, with CF, Tab 4 at 11. The third piece of
evidence the agency submitted was a small undated portion of a deposition
transcript describing an inability to perform a limited -duty position as of
May 2002. CF, Tab 4 at 12 -13.3
¶8 Unlike the administrative judge, we find that the agency did produce
concrete and positive evidence, rather than mere theoretical argument, that the
3 On review, the agency has submitted additional portions of the transcript it submitted
below, to provide further context, including the date of the deposition. CPFR File,
Tab 1 at 16. However, the agency has neither alleged that this was already included in
the record, nor has it presented any basis for us to consider this evidence for the first
time on review. Cunningham v. Office of Personnel Management , 110 M.S.P.R. 389 ,
¶ 11 (2009) (recognizing that t he Board generall y will not consider arguments raised for
the first time on petition for review of an initial decision in compliance proceedings
absent a showing that the argument is based on new and material evidence that was not
previously available despite due diligence ).
5
appellant was not ready, willing, and able to work between April and
August 2004. On the one hand, the deposition transcript provides limited support
because the agency submitted only a small portion of it , with little context. CF,
Tab 4 at 12 -13. The agency presented the transcript as if it were the appellant’s
own testimony but failed to provide enough of it to verify the same; the pages
provided do not even include the appellant’s name. Id. at 6 -7. On the other hand,
the September 2003 evaluation and the DVA certific ation are quite persuasive.
Id. at 9-11. As previously mentioned, during the September 2003 evaluation, the
appellant reported that he had not worked for more than 2 years and was still
unable to work because of physical limitations. Id. at 9 -10. At a minimum, that
suggests the appellant was not willing to work in the months leading up to the
period at issue, even if an examining physician thought he was able. Id. The
DVA certification provides further support for the agency’s assertion that the
appel lant was not ready, willing, and able to work during the claimed back pay
period. Again, that certification provides that the appellant became “permanently
and totally disabled” in March 2003. Id. at 11.
¶9 Because we find that the agency presented suffic ient evidence to shift the
burden to the appellant , it was incumbent upon him to show that he was entitled
to back pay, supra ¶ 5, but he failed to do so. With his petition for enforcement,
the appellant submitted a July 2003 letter from the Department of Labor to his
treating physician, requesting information about his physical limitations. CF,
Tab 1 at 22. He also referred to the aforementioned evaluation, during which the
appellant described himself as unable to work, but his physician opined that he
could work in a sedentary capacity. Id. at 5 (referencing CF, Tab 4 at 9 -10).
However, the appellant presented no other evidence concerning whether he was
ready, willing, a nd able to work between April 2 –August 26, 2004, even after the
administrative jud ge offered him an opportunity to rebut the agency’s evidence.
CF, Tab 5 at 2. Accordingly, under these circumstances, we find that the
appellant failed to meet his burden and thus he is not entitled to back pay for the
6
claimed back pay period. See Lyle , 85 M.S.P.R. 324 , ¶¶ 6 -11 (finding that an
appellant was not entitled to back pay for a period in which the agency presented
evidence that he was not ready, willing, and able to work due to medical
limitations and he failed to rebut that evidence).
¶10 This is the final decision of the Merit Systems Protection Board in this
compliance matter. Title 5 of the Code of Federal Regulations, section 1201.113
(5 C.F.R. § 1201.113 ).
NOTICE OF APPEAL RIG HTS4
You may obtain review of this final decision. 5 U.S.C. § 7703 (a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which t o file. 5 U.S.C. § 7703 (b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriat e for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applica ble to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
4 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.
7
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of th is decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following addre ss:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particula r
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Ap peals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services pro vided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an a ction that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action wi th an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. ____ , 137 S. Ct. 1975 (2017). If you have a
8
representative in this case, and your representative receives this decision before
you do, th en you must file with the district court no later than 30 calendar days
after your representative receives this decision. If the action involves a claim of
discrimination based on race, color, religion, sex, national origin, or a disabling
condition, you may be entitled to representation by a court -appointed lawyer and
to waiver of any requirement of prepayment of fees, costs, or other security. See
42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district courts can be found at the ir respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims on ly, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
9
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Cou rt of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.5 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
5 The o riginal statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, per manently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circ uit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195,
132 Stat. 1510.
10
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Co urt_Locator/CourtWebsites.aspx .
FOR THE BOARD:
Washington, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board | AGNEW_GARY_R_PH_0752_04_0423_C_1_FINAL_ORDER_1999913.pdf | 2023-02-06 | null | S | NP |
3,610 | https://www.mspb.gov/decisions/nonprecedential/RAZI_ALI_SEYED_AT_4324_21_0470_I_1_FINAL_ORDER_1999994.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
ALI SEYED RAZI,
Appellant,
v.
DEPARTMENT OF THE NA VY,
Agency.
DOCKET NUMBER
AT-4324 -21-0470 -I-1
DATE: February 6, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL1
Georgia A. Lawrence , Esquire, and Shaun Southworth , Esquire, Atlanta,
Georgia, for the appellant.
Akeel Qureshi , Esquire, and Kim E. Dixon , Esquire, Fleet Post Office
Europe, 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
denied his request for corrective action under the Uniformed Services
Employment and Reemployment Rights Act of 1994 (codified as amended
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case 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
at 38 U.S.C. §§ 4301 -4335) (USERRA) after the agency did not select him for
promotion and denied his overseas tour extension (OTE) request following his
receipt of military orders mobilizing him to act ive duty. On petition for review,
the appellant reargues the merits of his appeal and for the first time on review
claims that one member of the independent selection panel involved in his
nonselection was biased in favor of the agency . Generally, we gra nt 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 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 t he petition for review. Except as expressly
MODIFIED to address potential claims the appellant raised below and on review
and to analyze the evidence for inferring discriminatory motive under the factors
set forth in Sheehan v. Department of the Navy , 240 F.3d 1009 , 1014 (Fed. Cir.
2001), we AFFIRM the initial decision .
DISCUSSION OF ARGUME NTS ON REVIEW
We modify the initial decision to explicitl y consider the Sheehan factors.
¶2 In a USERRA discrimination claim, an appellant “bears the initial burden”
of proving that his “military service was a ‘substantial or motivating factor’” in
the agency’s action. Sheehan , 240 F.3d at 1013 (citation omitted). To do so, he
may rely on “direct or circumstantial evidence.” Id. at 1014 (citations omitted).
3
Circumstantial evidence is composed of “a variety of factors, including
(1) proximi ty in time between the employee’ s military activity and the adverse
employ ment action, (2) inconsistencies between the proffered reason and other
actio ns of the employer, (3) an employer’ s expressed hostility towards members
protected by the statute together with knowledge of the employee’ s military
activity, and (4) disparate t reatment of certain employees compared to other
employees with similar work records or offenses.” Id. In determining whether
the employee has proven that his protected status was part of the agency’s
motivation for its conduct, all record evidence may be considered, including the
agency’s explanation for the actions taken. Id.
¶3 The administrative judge found that the appellant failed to prove by
preponderant evidence that his mobilization was a substantial or motivat ing factor
in his nonselection and that the OTE recommendation was based on “legitimate
business reasons” and not the appellant’s military service. Initial Appeal File
(IAF), Tab 28, Initial Decision (ID) at 9, 14. In reaching these conclusions, the
admi nistrative judge did not address the Sheehan factors. See Sheehan , 240 F.3d
at 1014. However, any error was harmless. The administrative judge advised the
parties of their respective burdens and the Sheehan factors prior to the hearing ,
and the record i s fully developed. Further, even expressly considering these
factors for the first time on review does not change the outcome. See Becwar v.
Department of Labor , 115 M.S.P.R. 689 , ¶¶ 3, 7 (2011) (stating that remand of a
USERRA appeal was not necessary because the parties received notice of their
burdens and the record was fully developed on the nonselection at issue), aff’d
per curiam , 467 F. App’x 886 (Fed. Cir. 2012).
The administrative judge correctly concluded that the appellant failed to
prove that his military service was a motivating or substantial factor in his
nonselection.
¶4 Although the administrative judge found that the ap pellant’s third -level
supervisor voiced a concern about selecting the appellant for the vacant position
4
of GS-9 Supervisory Firefighter before his mobilization, the administrative judge
ultimately found that the mobilization was not a motivating or substan tial factor
in the nonselection. ID at 4-5; IAF, Tab 17 at 5 . He reasoned that an
independent selection panel did not recommend the appellant, and the selecting
official, who was also the appellant’s third -level supervisor, accepted the panel’s
recommend ation. ID at 4-5, 9. On review, the appellant repeats his assertion that
his third -level supervisor expressed the concern that selecting the appellant for
the Supervisory Firefighter vacancy would “look stupid” in light of the
appellant’s impending absen ce due to his “upcoming mobilization.” Petition for
Review (PFR) File, Tab 1 at 6. We modify the initial decision to acknowledge
that this statement reflects improper discriminatory motive.
¶5 Military service is a substantial or motivating factor in an e mployment
decision “if the employer ‘ relied on, took into account, consider ed, or conditioned
its decision’ on the employee’ s military -related absence or obligation .” See
Erickson v. U.S. Postal Service , 571 F.3d 1364 , 1368 (Fed. Cir. 2009 ) (citations
omitted). An inevitable consequence of an employee fulfilling his military
service obligations is his absence from civilian employment. See id. (“The most
significant —and predictable —consequence of reserve service with respect to the
employer is that the employee is absent to perform that service .”). Therefore, an
employer violates USERRA if his act ion is motivated by such an absence. Id.
at 1366 -69 (finding an agency violated USERRA when it removed an employee
for excessive use of military leave). The administrative judge concluded that the
appellant’s third -level supervisor’s statement was “ill -informed.” ID at 4 -5; IAF,
Tab 15 at 16. We agree and go further to observe that the statement is evidence
of discriminatory animus because it reflects an adverse consideration of the
appellant’s absence for military leave.
¶6 Nonetheless, w e decline to dist urb the administrative judge’s determination
that the appellant failed to prove that his third -level supervisor had an impact on
his nonselection . The administrative judge implicitly credited the supervisor’s
5
hearing testimony that, in making his selectio n, he accepted the recommendations
of an independent three -person hiring panel, which did not refer the appellant for
further consideration. ID at 5, 9. The Board must give “special deference” to an
administrative judge’s demeanor -based credibility deter minations, “[e]ven if
demeanor is not explicitly discussed.” Purifoy v. Department of Veterans Affairs ,
838 F.3d 1367 , 1373 (Fed. Cir. 2016). Here, the appellant has not provided
sufficiently sound reason to overturn th e administrative judge’s finding. ID at 9;
see Haebe v. Department of Justice , 288 F.3d 1288 , 1301 (Fed. Cir. 2002)
(finding that the Board may overturn an administrative judge’s demeanor -based
credibility findings only when it has “sufficiently sound” reasons for doing so).
¶7 In making this determination, the administrati ve judge considered the
appellant’s claim that his third -level supervisor interfered with the panel by
providing its members an altered version of the appellant’s r ésumé. ID at 3 -4.
However, the administrative judge found that the supervisor credibly testified that
he downloaded the applicants’ r ésumés from USAjobs.gov and provided them,
without review, to the panel members. ID at 8. The appellant re -raises his claim
regarding his résumé on review. PFR File, Tab 1 at 7 -8. We are not persuaded.
¶8 To resolve credibility issues, an administrative judge must identify the
factual questions in dispute, summarize the evidence on each disputed question,
state wh ich version he belie ves, and explain in detail why he found the chosen
version more credib le, considering such factors as the contradiction of the
witness’s version of events by other evidence or its consistency with other
evidence; the inherent improbability of his version; and his demeanor. Hillen v.
Department of the Army , 35 M.S.P.R. 453 , 458 (1987 ). Here, the appellant
argued that his third -level supervisor a ltered his r ésumé before it was reviewed by
the selection panel. IAF, Tab 23, Hearing Recording (HR), Day 1, Track 4
(testimony of appellant). The administrative judge weighed the relevant Hillen
factors and found this allegation “highly unlikely ,” specu lative , and unsupported
by the evidence and credited the supervisor’s testimony that he downloaded the
6
applicants’ r ésumés for the review panel as they appeared in USAjobs.gov . ID
at 7-8. The administrative judge found it was inherently improbable that t he
supervisor altered the appellant’s résumé because , according to the appellant, the
version considered by the panel was an earlier version of his r ésumé. ID at 8.
¶9 In making his findings, the administrative judg e reasoned that “[t]here was
no evidence” that the appellant’s third -level supervisor “had access to an earlier
version of the appellant’s resume. ” ID at 8. On review, the appellant does no t
dispute this lack of evidence. Although not entirely clear, he appears to argue ,
without prov iding details , that his third -level supervisor “was in possession of the
[earlier version] of the resume.” PFR File, Tab 1 at 7. In making this assertion,
the appellant cites to the initial decision, which does not support his conclusion.
PFR File, Tab 1 at 7 (citing ID at 9). Such unsupported and undeveloped
arguments are insufficient to warrant review. See Wickramasekera v. Veterans
Administr ation, 21 M.S.P.R. 707 , 714 (1984) (declining to disturb a finding on
the basis of an undeveloped and unsupported argument) ; see also Crosby v. U.S.
Postal Service , 74 M.S.P.R. 98 , 106 (1997) (declining to disturb an administrative
judge’s findings when she considered the evidence as a whole, drew appropriate
inferences, and made reasoned conclusions on issues of credibi lity). Thus, we
decline to disturb the administrative judge’s determination that the appellant’s
third -level supervisor did not alter his r ésumé . ID at 7 -8.
¶10 Looking at the Sheehan factors to analyze the remaining evidence in the
record, we believe that the administrative judge properly concluded that the
appellant failed to prove discriminatory motive in his nonselection. The first
factor is “ proximity in time between the employee ’s military activity and the
adverse employment action .” Sheehan , 240 F.3d at 1014 . In April 2020, the
appellant informed his third -level supervisor about his impending mobilization to
active duty beginning July 2020 , and ending April 2021. IAF, Tab 8 a t 43-45,
Tab 17 at 5, Tab 20 at 5. Later that month, the appellant was not selected for the
Supervisory Firefighter position. IAF, Tab 8 at 28, Tab 20 at 5. The
7
administrative judge described these facts but did not make an explicit finding as
to the fi rst Sheehan factor. ID at 3. We therefore find that the timing of the
nonselection favors the appellant’s claim that there was discriminatory motivation
in violation of USERRA. See McMillan v. Department of Justice , 812 F.3d 1364 ,
1373 (Fed. Cir. 2016) (finding 2 months between military leave and the denial of
an overseas extension established the temporal proximity factor under the
Sheehan framework).
¶11 The second factor looks at “inconsistencies between the proffered reason
and other actions of the employer.” Sheehan , 240 F.3d at 1014 . The
administrative judge correctly identified the recommendation of an independent
selection panel as the r eason for not selecting the appellant for the supervisory
position. ID at 5 -7. He found this rationale was consistent with the panel’s
actions and the record evidence . Id. The administrative judge found that the
panel members rated each r ésumé based on a provided scoring matrix, the panel
members ranked all applicants according to an aggregate score, none of the panel
members ranked the appellant among the top four scoring candidates, and only
the top four were interviewed for the position. Id.; IAF, T ab 8 at 21 -24. The
administrative judge thus essentially found that the second factor does not support
the appellant’s claims.
¶12 The third Sheehan factor is the “expressed hostility towards members
protected by the statute together with knowledge of the employee’s military
activity.” 240 F.3d at 1014. The administrative judge found that each panelist
credibly denied factoring the appellant’s mobil ization into their ratings and two
did not know about the mobilization at all. ID at 6 -7. In fact, as the
administrative judge acknowledged, one member testified that had he been aware
of the mobilization, he would have been especially sensitive to it be cause he was
a retired Army reserve officer. ID at 6; see Jones v. Armed Forces Retirement
Home , 664 F. App’x 957 , 961 -62 (Fed. Cir. 2016) (affirming Board order fin ding
that the appellant failed to establish hostility because, among other things, the
8
decision -making panel was composed of veterans).2 The appellant has not argued
on review that any members of the selection panel expressed hostility toward his
military activity.
¶13 Instead, t he appellant argues on review that other agency officials , who
“had some bearing on him not being selected ,” were aware of his mobilization.
PFR File, Tab 1 at 6. “[I]f a supervisor performs an act motivated by antimilitary
animus that is intended . . . to cause an adverse employment action, and if that act
is a proximate cause of the ultimate employment action, then the employer is
liable under USERRA” under what is commonly known as a “cat’s paw” theory.
Staub v. Proctor Hospital , 562 U.S. 411 , 422 (2011). Such a situation can occur
if a particular management official, acting because of an improper animus,
influences an agency official who is unaware of the improper animus when
implementing a personnel action. Dorney v. Department of the Army ,
117 M.S.P.R. 480 , ¶ 11 (2012). Emails in the record below support the
appellant’s claim that certain agency officials were aware of his mobilization.
IAF, Tab 27 at 4 -8. However, these individuals were not on the selection panel.
Compare IAF, Tab 8 at 3 4 (listing the pane l members), with Tab 27 at 4 -8
(reflecting the recipients of emails regarding the appellant’s anticipated
mobilization). The appellant does not explain his claim that any of these
officials, beyond the selecting official, influenced his nonselection, and thus has
not proven his cat’s paw claim as to these other officials. PFR File, Tab 1 at 6.
¶14 Further, the appellant’s claim as to the selecting official also fails. As
discussed above , the appellant has failed to demonstrate that the ad ministrative
judge erred in determining that the selecting official did not influence the
independent selection panel. ID at 7 -9. Therefore, the administrative judge
effectively made a proper finding that the appellant failed to establish the third
facto r. See Becker v. Department of Veterans Affairs , 373 F. App’x 54 , 58 (Fed.
2 The Board can rely on unpublished Federal Circuit decisions it finds persuasive, as we
do here. Mauldin v. U.S. Postal Service , 115 M.S.P.R. 513 , ¶ 12 (2011).
9
Cir. 2010) (finding no evidence that the appellant’s military service was a
motivating factor in the nonselect ion when, among other things, interview panel
members declared without evidence to the contrary that it was not a factor ).
¶15 The fourth factor indicating discriminatory motivation is the “disparate
treatment ” of similarly situated employees. See Sheehan , 24 0 F.3d at 1014.
Here, the appellant acknowledges on review that the scores (or, as he terms it,
“the errors”) by the three panel members were “mainly consistent.” PFR File,
Tab 1 at 8. We agree. Each panel members rated the applicants’ total scores as 6
at the lowest and between 35 and 37 at the highest. IAF, Tab 8 at 21 -23. Each
panel member rated the appellant between 19 and 21 . Id. The panel members
consistently rated the same individuals as the top four candidates, al lotting those
candidates bet ween 24 and 37 total points each . Id. Thus, there is no evident
disparate treatment in their scoring. The panel referred a top and an alternate
candidate to the selecting official, and he selected the panel’s top candidate. IAF,
Tab 8 at 27 , Tab 15 at 17.
¶16 On review, the appellant reasserts that his third -level supervisor altered the
scores that the panel members assigned to the candidates. PFR File, Tab 1 at 7 -8;
HR, Day 1, Track 4 (testimony of the appellant). The administrative judge was
not persuaded by this argument below, and neither are we . ID at 7-8.
¶17 The administrative judge implicitly credited the testimony of the appellant’s
third -level supervisor and the panel members that the panel scored the candidates
and the third -level supervis or accepted their recommendation of the top two
candidates without change . ID at 5, 9 ; IAF, Tab 15 at 17 . Below and on review,
the appellant argued that at least one of the panel members conceded the scoring
did not comply with the scoring criteria. ID at 5-6; PFR File, Tab 1 at 8. The
administrative judge found that although one panel member could not say for
certain due to the passage of time whether the final scoring sheet was the one he
submitted and another other panelist testified that he understo od the scoring
matrix to be flexible, all three consistently rated all applicants with little variation
10
between their scores, and none ranked the appellant among the top four
applicants. ID at 5-7, 9; IAF, Tab 8 at 21 -23. The appellant has not pointed to
evidence that his third -level supervisor altered score sheets or explained why the
administrative judge erred in crediting his superviso r’s testimony that he accepted
the recommendation of the panel unchanged . See Haebe , 288 F.3d at 1301 .
Therefore, we find that the administrative judge implicitly made a proper finding
that the fourth factor does not favor finding discriminatory motive and the
appellant fail ed to raise the inference that the nonselection was motivated by
antimilitary ani mus.
The appellant failed to prove that his military service was a motivating or
substantial factor in the OTE recommendation.
¶18 The appellant argued below and on review that his military mobilization
was a motivating or substantial factor in the decision not to extend his overseas
tour because his first-level supervisor , who made the recommendation,
acknowledged he had no role in the OTE decision, told the appellant that his
performance had been better than another firefighter whose OTE was approved,
and e xpressed to the appellant that the decision against an OTE for the appellant
was “messed up.” HR, Day 1, Track 4 (testimony of appellant); PFR File, Tab 1
at 8 -9. The administrative judge found that the decision not to extend the
appellant’s OTE was made by agency staff at the regional level due to legitimate
budgetary concerns. ID at 9-14. Although he did not expressly make a finding as
to whether the appellant proved his supervisor expressed disagreement with this
decision, the administrative judge es sentially found this evidence was not relevant
because the OTE decision was made at the regional level, a higher level of the
organization. ID at 10-11, 14 -15.
¶19 In the absence of direct evidence of antimilitary animus regarding the OTE
decision, we aga in apply the Sheehan factors to determine whether such animus
may be inferred. Sheehan , 240 F.3d at 1014. Save for the temporal proximity of
2 months between the end of the appellant’s military service and the OTE
11
decision, the appellant fails to do so . IAF, Tab 8 at 18, 45; see McMillan ,
812 F.3d at 1373.
¶20 We discern no basis to disturb the administrative judge’s finding that, in
essence, t he second Sheehan factor does not support an inference of
discrimination because the agency’s stated reason —a policy prohibiting double
stuffing positions due to a regional budget shortfall for labor funds in excess of
$5 million —is a legitimate business reason for not extending the appellant’s
overseas tour . ID at 14 -15; IAF, Tab 8 at 18. The appellant does not dispute that
the administrative judge’s determination that there was a budget shortfall and that
such a shortfall would be a legitimate bu siness reason. ID at 14 -15.
¶21 Nor does the appellant allege that his f irst-level supervisor or the two
agency offici als who endorsed his supervisor’s OTE recommendation expressed
hostility for his military service , which might be evidence of anti military animus
under the third Sheehan factor . PFR File, Tab 1 at 8 -9; IAF, Tab 8 at 18.
However, t he appellant appears to make a cat’s paw argument as to this factor. In
particular, he cites to the administrative judge’s finding that, in making his OTE
recommendation, the appellant’s first -level supervisor consulted with the
appellant’s third -level supervisor and another age ncy official who w as aware of
the appellant’s mobilization. PFR File, Tab 1 at 8 -9 (citing ID at 10 -11). He also
notes that his first -level supervisor routed the form denying his OTE through the
appellant’s third -level supervisor. Id. (citing ID at 11). Finally, he observes that
a regional staff member, who testified regarding the budgetary concerns at issue
and who the administrative judge observed edited the verbiage on the form
denying the appellant’s OTE to make it appear more professional and speci fic,
was aware of his mobilization. Id. (citing IAF, Tab 27 at 4 -5); IAF, Tab 15 at 12,
Tab 16 at 6; ID at 11 -12, 15 n.14.
¶22 However, the appellant does not assert or point to evidence of antimilitary
animus by any of these officials except, as discussed above, his third -level
supervisor. PFR File, Tab 1 at 8 -9; see Sheehan , 240 F.3d at 1014 (reflecting that
12
the third Sheehan factor is both knowledge of military service and an expressed
hostility toward military service). Further, he does not claim that his third -level
supervisor’s animus, as opposed to the policy against double stuffing billets , was
the reason for the denial of his OTE. PFR File, Tab 1 at 8 -9. That policy was the
stated reason for the OTE denial, and none of the three indi viduals he id entifies
on review signed the form denying his OTE. IAF, Tab 8 at 18. Therefore, the
appellant has not proved by preponderant evidence that these three individuals
were the proximate cause of the OTE denial. See Staub , 562 U.S. at 422;
Sheehan , 240 F.3d at 1013 (explaining that the appellant’s initial burden of proof
in a USERRA discrimination claim is preponderant evidence (citation omitted)).
¶23 The appellant argues that the agency extended the overseas tour of another
firefighter who occupied his billet . PFR File, Tab 1 at 8-9. His argument
implicates the second and fourth Sheehan factors as to whether the agency’s
proffered budgetary reason was inconsistent with its other actions and whether it
engaged in disparate treatment of similarly situated emplo yees. Sheehan ,
240 F.3d at 1014. However, he does not dispute the administrative judge’s
finding that the other firefighter ’s OTE was processed first because he was
officially assigned to the billet first. ID at 13 -14 (citing IAF, Tab 8 at 18, Tab 15
at 65-66; HR, Day 2, Track 3 (testimony of an agency ’s Total Force Management
Director )). The appellant’s first -level supervisor also testified that several
battalion chiefs, including him, occupied double -stuffed positions that w ould not
be extended under the policy. HR, Day 2, Track 1 (testimony of the appellant’s
first-level supervisor).
¶24 Although the administrative judge did not explicitly categorize the above
evidence into each Sheehan factor, he properly considered it. In sum, we find
that the appellant has not provided a reason to disturb the administrative judge’s
finding that he failed to prove that his military service was a motivating factor in
the OTE denial.
13
We decline to consider the appellant’s new argument rais ed on review.
¶25 For the first time on review, the appellant argues that one of the selection
panel members was biased in favor of the agency because his third -level
supervisor nominated the member for an assignment in February 2020 . PFR File,
Tab 1 at 8. U nder 5 C.F.R. § 1201.115 , the Board generally will not consider
evidence or argument submitted for the first time with a petition for review absent
a showing that it was unavailable befo re the record was closed before the
administrative judge despite the party’s due diligence. See Avansino v. U.S.
Postal Service , 3 M.S.P.R. 211 , 213-14 (1980). The appellant has not explained
why he did not raise this issue below , particularly in light of the fact that he
alleges the nomination took place more than a year before he filed the instant
appeal . PFR File, Tab 1 at 8; IAF, Tab 1. Ther efore, the appellant has not shown
that the newly submitted argument was unavailable before the close of record
despite his due diligence, and we decline to consider it on review.
¶26 Accordingly, we affirm the administrative judge’s initial decision as
mod ified above.
NOTICE OF APPEAL RIG HTS3
The initial decision, as supplemented by this Final Order, constitutes the
Board’s final decision in this matter. 5 C.F.R. § 1201.113 . You may obtain
review of this final decision. 5 U.S.C. § 7703 (a)(1). By statute, the nature of
your claims determines the time limit for seeking such review and the appropriate
forum with which to file. 5 U.S.C. § 7703 (b). Although we offer the following
summary of available appeal rights, the Merit Systems Protection Board does not
provide legal advice on which option is most appropri ate for your situation and
the rights described below do not represent a statement of how courts will rule
3 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.
14
regarding which cases fall within their jurisdiction. If you wish to seek review of
this final decision, you should immediately review the law appli cable to your
claims and carefully follow all filing time limits and requirements. Failure to file
within the applicable time limit may result in the dismissal of your case by your
chosen forum.
Please read carefully each of the three main possible choice s of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional 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
15
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
representative in this case, and your representative receives this decision before
you do, then you must file with the district court no later than 30 calendar days
after your representative receives this decision. If the action involves a claim of
discrimination based on race, color, religion, sex, national origin, or a disabling
condition, you may be entitled to representation by a court -appointed lawyer and
to waiver of any requirement of prepayment of fees, costs, or other security. See
42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a .
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
16
with the EEOC no later than 30 calendar days after your representative 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 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 describe d in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.4 The court of appeals must receive your petition for
4 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circ uit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any ot her circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195,
132 Stat. 1510.
17
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(B).
If you submit a petition for j udicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional informa tion about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of P ractice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD:
Washington, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board | RAZI_ALI_SEYED_AT_4324_21_0470_I_1_FINAL_ORDER_1999994.pdf | 2023-02-06 | null | AT-4324 | NP |
3,611 | https://www.mspb.gov/decisions/nonprecedential/JONES_JACQUELINE_M_CH_0752_15_0604_I_1_FINAL_ORDER_2000048.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
JACQUELINE M. JONES,
Appellant,
v.
UNITED STATES POSTAL SERVICE,
Agency.
DOCKET NUMBER
CH-0752 -15-0604 -I-1
DATE: February 6, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL1
Glenn L. Smith , Esquire, Grand Rapids, Michigan, for the appellant.
Deborah L. Lisy , 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 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
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 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).
BACKGROUND
¶2 The appellant was a Supervisor of Distribution Operations , EAS -17,
assigned to the International Service C enter and detailed to the agency’s Cardiss
Collins Processing and Distribution Center in Chicago, Illinois. Initial Appeal
File (IAF), Tab 9 at 42 -43, 227, Tab 16 at 79. She was assigned to Tour 3 and
generally arrived around 2:30 p.m. Hearing Transcrip t (HT) at 382 (testimony of
the appellant ). S.W. was a Casual Mail Handler Assistant at Cardiss Collins, who
called the appellant “Mom” or “God Mom.” IAF , Tab 16 at 31, 89; HT at 329
(testimony of the appellant ). She was assigned to Tour 2 and was sched uled to
report at 1:00 p.m. IAF, Tab 16 at 88 -91. When S.W. began having attendance
issues, the appellant informed another Tour 3 supervisor that S.W. was her
goddaughter and expressed an interest in ensuring S.W. remained employed
despite attendance iss ues. HT at 213 (testimony of T.R.).
¶3 The acting Manager o f Distribution Operations on Tour 2 regularly ran
activity reports concerning her employees, allowing her to verify whether they
were performing duties for the time they were paid. HT at 139 -40 (testimony of
P.M.). In doing so, she noticed the appellant was consistently entering S.W.’s
3
time in the Time and Attendance System (TACS) without S.W. being present.
IAF, Tab 9 at 51; HT at 139 -41 (testimony of P.M.). After confirming S.W.’s
absence wit h other supervisors, she also noticed that the appellant entered S.W.’s
time in TACS right bef ore the end of the pay period. HT at 140. As a result, the
agency began an investigation into the appellant’s actions and moved S.W. to a
work area on another f loor away from the appellant’s supervision; however, the
appellant continued entering clock rings in TACS for S.W. HT at 113 -14
(testimony of M.G.), 389 -90 (testimony of the appellant ).2
¶4 On March 21, 2015, the agency issued a n otice of proposed r emoval on the
charge of “Improper Recording and Adjustment of an E mployee’s Time and Pay
Level In [] TACS ” based on two specifications. IAF, Tab 9 at 57 -65.
Specification 1 alleged that the appellant manually input over 50 separate clock
rings for S.W. in TACS on various dates between August and December 2014
without verifying S.W.’s attendance and without a Postal Service Form 1260
(PS-1260) . Id. at 57 -60. S pecification 2 generally alleged that the appellant
manually entered and approved a higher pay rate for S.W. without authorization
on at least 27 separate occasions on various dates between Augus t and
October 2014 without a PS -1723. Id. at 60 -61. After the appellant responded
orally and in writing to the proposed removal, the deciding o fficial sustained t he
charge and removed the appellant, effective July 24, 2015. Id. at 42 -48; IAF,
Tab 16 at 79-83.
¶5 The appellant filed an appeal with the Board, IAF, Tab 1, disputing the
alleged facts and asserting that it was not common practice at Cardiss Coll ins to
complete PS-1260s and PS-1723 s, IAF, Tab 15 at 2 -10. After a hearing, the
administrative judge issued an initial decision sustaining both specifications and
2 A clock ring is an entry of relevant times that employee s on duty must record in their
time and attendance records to be accurately paid. Employees at Cardiss Collins record
the following four clo ck rings per shift: begin tour, out to lunch, return from lunch, and
end tour. HT at 14 -15 (testimony of P.S.).
4
affirming the removal. IAF, Tab 38, Initial Decision (ID) at 5-17, 20 -17.
Regarding Specificati on 1, she found that, because the appellant was not present
at the facility during S.W.’s start time, did not check with S.W.’s supervisors
before entering S.W.’s time into TACS, and took no other reasonable steps to
determine whether S.W. was at work, the appellan t improperly recorded and
adjusted S.W.’s time in TACS. ID at 10. She also found that the agency
demonstrated that PS -1260 s were commonly used to document clock ring
adjustments and that the appellant failed to use them for any of the time entries.
ID a t 10-11. Regarding Specification 2, the administrative judge found that the
agency also had met its burden of showing by preponderant evidence that the
appellant improperly entered higher -level pay for S.W. ID at 16 -17.
¶6 The appellant has filed a petiti on for review arguing that the administrative
judge misconstrued the charge. Petition for Review (PFR) File, Tab 5 at 6 -9. She
also argues that the agency failed to prove both that Cardiss Coll ins required the
use of PS -1260s and that S.W. was not at wor k during the times for which the
appellant gave her cre dit. Id. at 9 -12. Finally, she challenges the appropriateness
of the penalty of removal. Id. at 12 -21. The agency has filed an opposition to the
petition, to which the appellant has filed a reply. PFR File, Tabs 8, 11.
DISCUSSION OF ARGUME NTS ON REVIEW
The administrative judge properly construed the charge.
¶7 In determining how charges are to be construed, the Board will examine the
structure and language of the proposal notice. Tom v. Department o f the Interior ,
97 M.S.P.R. 395 , ¶ 17 (2004). In this regard, an adverse action charge usually
consists of two parts: (1) a name or label that generally characterizes the
misconduct; and (2) a narrative description of the actions that constitute the
misconduct. Walker v. Department of the Army , 102 M.S.P.R. 474 , ¶ 7 (2006).
The Board may not split a single charge into several independent charges and
then sustain one of the newly formulated charges, which represents only a portion
5
of the original. Burrou ghs v. Department of the Army , 918 F.2d 170 , 172 (Fed.
Cir. 1990). However, the prohibition against charge splitting depends on whether
the char ge is based on a single act or on more than one act. Walker , 102 M.S.P.R.
474, ¶ 7. A charge that is based on more than one act can be divided into
multiple specifications or charges, each corresponding to the separate acts
alleged. Id. Here, appellant’s claim that the administrative judge improperly
construed the charge is twofo ld. First, the appellant argues that the
administrative judge improperly se parated the acts of misconduct outlined in the
charge. PFR File, Tab 5 at 6 -7. Second, the appellant argues that the
administrative judge erred in concluding that she improperly “adjusted” S.W.’s
time in TACS. Id. at 7 -9. We find that neither argument has merit.
Separation of acts of misconduct
¶8 The appellant argues that the administrative judge improperly relied on
Fairley v. U.S. Postal Service , 63 M.S.P.R. 545 (1994) , to allow the agency to
split the charge into two specifications. PFR File, Tab 5 at 6; ID at 5 n.1. In
Fairley , the Board held that , when a single charge contains two separate acts of
misconduct that are not dependent on each other and do not comprise a single
inseparable event, each distinct element may be sustained as a separate charge.
63 M.S.P.R. at 548 -49. The appellant argues that t he Board’s holding in Fairley
is inconsistent with the court’s ruling in Burroughs and encourages the Board to
reverse its position in Fairley . PFR File, Tab 5 at 6 -7.
¶9 The court in Burroughs compared the facts of that case, which involved one
charge with multiple elements, to a hypothetical situation in which more than one
event or factual specification is set out to support a single charge. Burroughs ,
918 F.2d at 172. This is precisely the situation that presented in Fairley , which
ultimately relied on Burroughs in arriving at its conclusion. Fairley , 63 M.S.P.R .
at 547 -49; see Alvarado v. Department of the Air Force , 103 M.S.P.R. 1 , ¶¶ 15 -16
(2006) (discussing the interplay between the holdings in Burroughs and Fairley ),
aff’d , 626 F. Supp. 2d 1140 (D.N.M. 2009), aff’d , 490 F. App’x 932 (10th Cir.
6
2012) . Therefore, these two holdings are no t inconsis tent with one another but
rather address two different structures of a single charge. Thus, we find no
reason to revisit our holding in Fairley .
“Adjustment” of time in TACS
¶10 The appellant also argues that the administrative judge erred in interpreting
the language of the charge when she found that the appellant improperly adjusted
S.W.’s TACS report to show that she was working. PFR File, Tab 5 at 7 -9. The
appellant argues t hat she only “entered” S.W.’s time and did not “adjust” it, id.
at 7-8, a position that the administrative judge found to be “disingenuous,” ID
at 12. On review, the appellant relies on testimony from her supervisor to
demonstrate the difference between “ entering” and “adjusting” time. PFR File,
Tab 5 at 8 -9. Upon our review of the hearing transcript, however, her supervisor
never testified about what it meant to “adjust” a TACS report. HT at 100 -30
(testimony of M.G .). Rather, she testified regarding her understanding of what it
meant to “enter,” “alte r,” or “change” a TACS report. HT at 131 -32 (testimony
of M.G.). Given that the appellant’s argument relies on a technical interpretation
of the word “adjust,” and her proffered evidence of the appropri ate interpretation
of that does not include the word itself, we find this claim to be unpersuasive.
¶11 Further, because this is a narrative charge, it must be viewed in light of the
accompanying specifications and circumstances and should not be technicall y
construed. Shibuya v. Department of Agriculture , 119 M.S.P.R. 537 , ¶ 14 (2013).
Here, the narrative in the proposal notice mak es clear that, when the appellant
input incorrect entries, she thereby adjusted or changed the TACS report to reflect
that S.W. worked hours that she did not work. IAF, Tab 9 at 57 -60. The
administrative judge found that, although the appellant may have “input” or
“entered” S.W.’s time, the reality is that she adjusted or changed the TACS report
to show that an employee was working. ID at 1 2. We agree. When the appellant
input the incorrect entries, she did “adjust” the time, changing it from what
otherwise would have resulted in an error in the TACS report and no pay for an
7
employee who was not working, to an entry that resulted in what looked like an
errorless TACS report and pay for an undeserving employee. As such, we find
the appellant’s semantic distinction to be unconvincing . See Cole v. Department
of the Air Force , 120 M.S.P.R. 640, ¶ 8 (2014) (stating that an agency is required
to prove only the essence of its charge).
The agency proved its charge by preponderant evidence.
¶12 Generally, an agency is required to prove its charges in an adverse action
appeal by preponderant evidence. 5 U.S.C. § 7701 (c)(1)(B). A preponderance of
the evidence is that degree of relevant evidence that a reasonable person,
considering the record as a whole, would accept as sufficient to find that a
contested fact is more likely to be true than untrue. 5 C.F.R. § 1201.4 (q). On
review, the appellant disputes the administrative judge’s fin dings that the agency
proved that complet ing a PS -1260 was requi red and that S.W. was not working
during the times that the appellant recorded for her, and thus, the TACS entries
were improper.3
3 The majority of the appellant’s petition for review challenges the administrative
judge’s findings concerning Specification 1. However , the appellant appears to
summarily challenge the administrative judge’s findings regarding Specification 2.
PFR File, Tab 5 at 15 -16. She disagrees with the administrative judge’s “conclusions
regarding the facts supporting this allegation” and reiterates hearing testimony and
evidence that previously was considere d by the administrative judge. Id. The
administrative judge found that the agency proved that the appell ant entered higher -
level pay on S.W.’s TACS without formal authorization. ID at 16 -17. We find that the
appellant’s generalized assertions on review concerning Specification 2 amount to
nothing more than mere disagreement wit h the administrative judge’s conclusions, and
we find no basis to disturb these findings. See, e.g. , Crosby v. U.S. Postal Service ,
74 M.S.P.R. 98 , 105 -06 (1997) (finding no reason to disturb the administrative judge’s
findings when she considered the evidence as a whole, drew appropriate inferences, and
made reasoned conclusions); Broughton v. Department of Health & Human Services ,
33 M.S.P.R. 357 , 359 (1987) (same).
8
Use of a PS -1260
¶13 The appellant argues that she was not required to complete a PS -1260
following an adjustment of a TACS entry and that any claim that she was required
to complete one contradict s agency policy. PFR File, Tab 5 at 10 -11. The
appellant points to the agency’s F-21 Handbook, which permits supervisors to
manually enter missing clock rings according to the supervisor’s best estimate of
the time that the clock rings would have been re corded and does not mention a
PS-1260. Id. at 9 -10. She also argues that on the back of the form is a statement
indicating that its complet ion is voluntary. Id. at 10 -11. Finally, she argues that
she followed the lead of other cowo rkers who did not use a PS -1260. Id. at 11.
¶14 The administrative judge found that the use of PS -1260 s was customary for
record -keeping purposes when an employee does not have a time card and there is
a clock ring error and that the ap pellant did not use any PS -1260 s when recording
S.W.’s time . ID at 10 -11. In making this finding, she relied on the testimony of
at least four witnesses. ID at 11-12. The appellan t’s supervisor testified that the
form is a standard Postal Service form that was available on the agency’s website
and should be issued to anyone without a time card when entering time on their
behalf. HT at 103 (testimony of M.G.). She also testified t hat she specifically
mentioned the form in an email to the appellant. Id. at 104 -05; IAF, Tab 16
at 66-67. Two supervisors , one of whom was another Tour 3 supervisor similar to
the appellant, testified that they used the forms when employees were missing
clock rings. HT at 173 (testimony of T.A.) , 210-12, 215 (testimony of T.R.) . A
fourth witness testified that, although sh e has entered time without a PS -1260, she
would always obtain one afterwards. HT at 156-57 (testimony of P.M .).
¶15 The administrative judge additionally found that the coworker relied upon
by the appellant to bolster her assumption that PS -1260 s were not used also was
removed in 2015 on the charge of “Improper Record and Adjustment of an
Employee’s Time.” ID at 11; HT at 246 (testimony of D.R.), 307-08 (testimony
of L.A.). She also did not credit the appellant’s testimony that supervisors on
9
Tour 3 at Cardiss Collins did not use the form. ID at 11 -12; HT at 345 -46, 351
(testimony of the appellant ). We must defer to this determination, which is
implicitly based upon the appellant’s demeanor. See Purifoy v. Department of
Veterans Affairs , 838 F.3d 1367 , 1372 -73 (Fed. Cir. 2016) (stating that the Board
must defer to an administrative judge’s determinations when they are “necessarily
intertwined” with an analysis of the witness’s demeanor).
¶16 After our review of the record, we find no basis to disturb the initi al
decision in this regard. Significantly, the charging document does not assert, and
the administrative judge did not find, that completing a PS-1260 was required and
that the appellant failed to meet that requirement. IAF, Tab 9 at 57-60; ID at 10.
Instead , the proposal notice only acknowledges that there were no completed
forms as evidence to prove the charge that the appellant improperly recorded
S.W.’s time in TACS . IAF, Tab 9 at 57 -60. Thus, although we agree with the
appellant that the evidence does not demonstrate that PS-1260 s were required, the
agency’s charge did not claim that it was required. Rather , the agency put forth
several witnesses coll ectively asserting that PS -1260 s customarily were used to
document clock ring adjustments.
¶17 Conce rning the F -21 H andbook, we note that it was not included in the
record below or in the appellant’s petition for review. HT at 251 -52 (testimony
of D.R.) . Moreover, it is clear that the state ment on the back of the PS -1260
relates to the agency’s privacy policies and does not provide any guidance
towards an employee’s job duties or what customarily is expected of an employee
serving in the appellant’s capacity. Regardless of whether these documents
permitted a voluntary entry of time reflecting a supervi sor’s best estimate of an
employee’s time, we find that the agency still established through witness
testimony that it was more likely than not t hat the completion of a PS -1260 was
customary and that the appellant failed to complete any in her entry of S.W .’s
time. Accordingly, we find that the appellant has not provided any evidence on
10
review that would require a reversal of the initial decision’s findings in this
regard.
Improper TACS entries
¶18 The appellant also argues on review that the agency failed to prove that
S.W. was not present at work during the times it alleges the appellant improperly
recorded for her. PFR File, Tab 5 at 11 -12. The appellant points to sworn
statements and testimony from S.W. and four other witnesses to show that S.W.
was present at work during the times for which she was paid. Id.; IAF, Tab 15
at 160-68. The appellant claims , moreover, that employees sometimes used a
broken door or “piggybacked” wi th others to ente r the facility and that sometimes
employees would leave the facility with management ’s knowledge to move their
cars in the parking lot, resu lting in different door rings . IAF, Tab 15 at 29 -33,
171; HT at 198 (testimony of C.P.).
¶19 The administrative jud ge found that th e statements from the appellant’s
coworkers were “vague and conclusory” and, therefore, insufficient to establish
that S.W. was present at work on time on the days in question. ID at 7 -8. She
further found that the agency’s evidence regar ding the door ring data contained
sufficient information to indicate that S.W. arrived at the facility or left at times
other than those entered by the appellant. ID at 8 -9. She also considered the
agency’s evidence of available data concerning S.W.’s pa rking lot entrances and
her entrances and exits from the building , and concluded that it was more likely
than not that S.W. was absent from Cardiss Collins during times the appellant
authorized her to receive pay. Id.
¶20 We agree with the administrative ju dge’s finding that the agency met its
burden . To prove the facts alleged in S pecification 1, and , ultimately, the charge
of “Improper Recording and Adjustment of an Employee’s Time and Pay Level in
[] TACS ,” the agency set out to show that the appellant recorded time for S.W. in
TACS on various dates and times during which S.W. had not actually worked and
that she failed to verify S.W.’s actual time . IAF, Tab 9 at 57 -60. A witness for
11
the agency testified regarding S.W.’s pattern of not reporting to work on time and
her observations on how the appellant recorded S.W .’s time. HT at 139-41
(testimony of P.M.). The agency also relied on clock and door ring records, both
of which provided specific dates and times of S.W. ’s entry or exit , and contrasted
those records with S.W.’s TACS entries, which were entered by the appellant.
IAF, Tab 9 at 58 -60. Neither the appellant nor any of her witnesses dispute d any
particular dates or times; they simply provided explanations as to why the
agency’s data may not have reflect ed S.W.’s actual entry or exit. Regardless,
assuming there was a genuine dispute as to whether S.W. was present at work at
the times the agency asserts she was not, the instant adverse action is against the
appellant, not S.W., and the administrative judge found that the appellant failed
to take reasonable steps to verify S.W.’s attenda nce before adjusting her TACS
and therefore improperly record ed and adjusted her time . ID at 9-10, 13, 17 .
This finding regar ding the appellant’s verification efforts has not been challenged
on review, and , based on our review of the record, we find no reason to disturb
it.4
¶21 Based on the foregoing, we find that the administrative judge properly
weighed the evidence put forth by both parties and concluded that it was more
likely than not that the appellant improperly recorded and adjusted an employee’s
time in TACS as charged . IAF, Tab 9 at 42-47, 57-60. The appella nt’s
4 The appellant relies on Wells v. Department of Defense , 53 M.S.P.R. 637 , 643 (1992) ,
to emphasize that it is the agency’s obligation to demonstrate that S.W. was not present
for the hour s for which she received credit and that merely establishing that S.W. was
not seen at work does not establish that S.W. did not work the time in question. PFR
File, Tab 5 at 11 -12. The appellant’s reliance on Wells is misplaced. In that case, the
appellant was charged with improperl y claiming overtime hours for himself without
being present at work, Wells , 53 M.S.P.R. at 639, while in the instant case, the appellant
is charged with improperly recording and adjusting another employee’ s time and
attendance records, IAF, Tab 9 at 57 . Moreover, the agency in Wells did not specify the
dates on which it alleged the appellant improperly claimed undue overtime hours ,
Wells , 53 M.S.P.R. at 640, whereas in the instant case, the agency provided a detailed
record of the dates and time s in questi on, IAF, Tab 9 at 58-60.
12
argument s on review amount to a mere disagreement with the administrative
judge’s conclusions after weighing the evidence, and we find that the appellant
has not provided a basis to disturb those findings. See, e.g., Crosby v. U.S. Postal
Service , 74 M.S.P.R. 98 , 105 -06 (1997) (finding no reason to disturb the
administrative judge’s findings when she considered the evidence as a whole,
drew appropriate inferences, and made reasoned conclusions); Broughton v.
Department of Health & Human Services , 33 M.S.P.R. 357, 359 (1987) (same).
The administrative judge properly determined that the penalty of removal was
within the bounds of reasonableness.
¶22 The appellant also challenges on review the agency’s consideration of the
Douglas factors when it assessed the penal ty of removal. PFR File, Tab 5
at 12-21; see Douglas v. Veterans Administration , 5 M.S.P.R. 280 , 305 -06 (1981).
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 Defe nse, 114 M.S.P.R. 407 , ¶ 11 (2010).
The Board will modify the agency -imposed penalty only when it finds the agency
failed to weigh rel evant factors or the penalty clearly exceeds the bounds of
reasonableness. Douglas , 5 M.S.P.R. at 306.
¶23 In the decision letter, the deciding official considered the nature and
seriousness of the appellant’s misconduct and concluded that the offense was “a
serious one.” IAF, Tab 9 at 43. He also considered that the appel lant was a
supervisor, and thus held to a higher standard of performance and conduct, and
that her misconduct could not be tolerated by any employee, especially by a
management employee. Id. at 44. He further stated that he had lost confidence
and trust in the appellant’s ability to perform her duties on any level. Id. He also
considered the appellant’s length of service and lack of discipline as favorable to
the appellant, but he found that these factors were outweighed by the seriousness
and severity of the misconduct. Id. He also considered the adequacy and
13
effectiveness of alternative sanctions, but determined that removal was the
appropriate penalty. Id. at 45.
¶24 On review , the ap pellant argues that the deciding official and administrative
judge did not properly consider alleged comparat ors. PFR File, Tab 5 at 13,
18-20. She also asserts that, although the deciding official and administrative
judge concluded that the appellant wa s properly trained, her actual training was
insufficient to put her on notice of what was required of her. Id. at 17-18. The
appellant also argues that the deciding official provided conflicting information
regarding the appellant’s lack of remorse for h er misconduct. Id. at 16 -17.
Similarly situated comparators
¶25 Regarding the appellant’s argument that she was not treated similarly to
other employees who engaged in similar conduct, the administrative judge found
that none of the employees put forth by the appellant had enough similarity
between both the nature of the comparators’ misconduct and the other factors to
lead a reasonable person to conclude that the agency treated similarly situated
employees differently. ID at 24 .
¶26 The appellant claims that a co worker, L.A., initially was removed by th e
agency for similar misconduct but was, at the time of the hearing, employed by
the agency , suggesting that he must have received a lesser penalty. PFR File,
Tab 5 at 18-19. The administrative judge found that L.A.’s current employment
was the result of a settl ement agreement with the agency and that his current
status had no bearing on whether he was an adequate comparator. ID at 24 n.6.
We agree. When another employee receives a lesser penalty, despite a pparent
similarities in circumstances, as the result of a settlement agreement, the agency
is not required to explain the difference in treatment. Davis v. U.S. Postal
Service , 120 M.S.P.R. 457 , ¶ 10 (2013). Here, L.A. is not a valid comparator
because , although he was removed from his position, he u ltimately reached a
settlement resolving the discipline. HT at 246 -47 (testimony of D.R.); ID at 24
14
n.6. Thus, the appellant’s argument regarding L.A. as an alleged comparator has
no merit.
¶27 The appellant also asserts that another employee , R.Y., only received a
demotion for improper recording of clock rings in 2010 . PFR File, Tab 5
at 18-19; IAF, Tab 15 at 257 -70. The administrative judge found that there was
not enough similarity between the appellant and R.Y. for him to be considered an
adequate comparator because R.Y. was not alleged to have had a personal
relationship with the e mployee whose time was entered improperly or to have
engaged in misconduct related to the higher level of pay without authorization.
ID at 24. We agree. The record makes clear that pertinent components of the
misconduct resulting in the appellant’s remo val were the special relationship
between the appellant and S.W. and the unsupported increased pay of another
employee. IAF, Tab 9 at 42 -43, 60 -61. Because R.Y. was not alleged to have
engaged in either, the administrative judge appropriately concluded t hat he w as
not an adequate comparator.
Whether the appellant was properly trained
¶28 The appellan t also argues that the deciding official improperly used her
training as an aggravating factor. PFR File, Tab 5 at 17-18. She points to several
courses listed in the proposal notice and relied upon in the decision letter
regarding training for supervisors in Time and Attendance and the use of TACS ,
and claims that she did not participate in the listed courses. Id. She admits that
she did complete a 4 -hour TAC S training class, but she claims that it was very
limited and did not address the use of PS-1260 s. Id. at 18.
¶29 The appellant’s training log lists the relevant courses that were detailed in
the proposal notice. IAF, Tab 9 at 231 -33. The appellant challe nges these
records by noting that, in the “Completion Progress” column corresponding to
each training course, the column reflects “0.00” for the courses listed in the
proposal notice. PFR File, Tab 5 at 17 -18. During the hearin g, however, the lead
Manage r of Distribution Operations testified that a “0.00” in the “Completion
15
Progress ” column does not mean th at the course was not completed but rather
indicates that the course was completed in a classroom. HT at 19 -22 (testimony
of P.S.) . From our review of the training log, it appears that the witness’s
testimony is confirmed by the log itself, as a significant portion of the courses
that have a corresponding “0.00” for their “Completion Progress” are also listed
as having occurred in the classroom, provi ded in the “Delivery Method” column.
IAF, Tab 9 at 231 -33. Further, the training log display s a checkmark in the
“Pass” column when a course had been completed, and it is indisputable that the
courses listed in the proposal notice and final decision have checkmarks in the
pass column. Id.; HT at 19 -22 (testimony of P.S.).
¶30 In addition to the training lo gs, the appellant’s supervisor testified
regarding the appellant’s training. HT at 101, 106 (testimony of M.G .). She
testified that , for the appellant to have access to TACS , she would have had to
have been trained on the system. Id. at 106. She admitted that she did not
provide her with specific training on PS-1260 s, but she testified regarding an
email sent to the appellant and several others wherein she highlighted a “best
practices” suggesting that anyone missing a timecard should be given a PS -1260
to ensure that their time is entered properly . IAF, Tab 16 at 66; HT at 115 -16
(testimony of M.G.) .
¶31 We find that the record establishes that the appe llant received proper
training. Our review of the training record and relevant testimony indicate s that
it is more likely than not true that the appellant received the relevant training
courses. Nonetheless, even if we assume that the appellant had not actually
participated in the courses listed in the p roposal notice , we still would reach the
same conclusion. The record contains several uncontested confirmations of the
appellant’s training. For example, the appellant acknowledged during her
investigative interview that she received TACS training consisting of a 1 -day
training class and a weeklong online course. IAF, Tab 9 at 225; HT at 51
(testimony of P.S.). She confirmed this again during the hearing. HT at 325-26
16
(testimony of the appell ant). The appellant also stated in her written reply to the
proposal notice that, although she had no formal training in supervision and
timekeeping, she did have “limited training.” IAF, Tab 16 at 79, 81.
Additionally, in an internal email from the dec iding official to another agency
offici al, the deciding official stated that, during his oral interview of the
appellant, the appellant confirmed that she had 4 hours of training. Id. at 19.
Based on the foregoing, we find that the deciding official did not err in
considering the issue of training as an aggravating factor.
Whether the appellant demonstrated a lack of remorse
¶32 In her petition for review, the appellant argues that the record contains
conflicting information regarding whether she ex pressed remorse for her actions.
PFR File, Tab 5 at 16 -17. The removal letter states that the appellant failed to
show any remorse. IAF, Tab 9 at 44. However, during her investigative
interview, the appellant stated that “[t]his is a lesson learned” and that she now
knows she needs to “follow through ” and get the PS -1260. Id. at 223 -25.
Further, the appe llant testified at the hearing that she regretted not following
through to get the proper documentation. HT at 353 (testimony of the appellant).
Importantly, the deciding official testified at the hearing that he would not refute
the notion that the appellant told him that she learned from her actions and that
she would use the proper forms in the future. HT at 254-55 (testimony o f D.R.) .
Based on the rec ord evidence, we find that the appellant’s alleged lack of remorse
should not have been considered as an aggravating factor. Although the deciding
official and the administrative judge concluded that the appellant continuously
shifted blame to others and deflected responsibility , ID at 26; IAF, Tab 9 at 43,
the record is clear that the appellant exhibited some degree of remorse for her
own actions . Thus , to consider this factor as an aggravating factor was an error.
¶33 Because the d eciding official failed to appropriately consider the lack of
remorse and potential for rehabilitation factor , a factor that he deemed relevant by
explicitly discussing it in the decision letter , the agency’s penalty determination
17
is not entitled to defere nce. Von Muller v. Department of Energy , 101 M.S.P.R.
91, ¶¶ 18 -21 (2005) , aff’d , 204 F. App’x 17 (Fed. Cir. 2006) , and modified on
other grounds by Lewis v. Department of Veterans Affairs , 113 M.S.P.R. 657
(2010) , overruled on other grounds by Singh v. U.S. Postal Service , 2022 MSPB
15, ¶ 9. Nonetheless, we find that, due to the seriousness and severity of the
appellant’s misconduct and the nature of the appellant’s position, duties, and
responsibilities as a supervisor , the penalty of removal is within the bounds of
reasonableness. Martin v. Department of Transportation , 103 M.S.P.R. 153 , 157
(2006) (stating that , in assessing whether the agency’s selected penalty is within
the tolerable limits of rea sonableness, the most important factor is the nature and
seriousness of the misconduct and its relation to the employee’s duties, position,
and responsibilities) , aff’d , 224 F . App’x 974 (Fed. Cir. 2007) . Accordingly, we
will not disturb the agency’s sele cted penalty of removal.
¶34 We have considered the appellant’s arguments on review but have
concluded that a different outcome is not warranted. Accordingly, we affirm the
initial decision.
NOTICE OF APPEAL RIG HTS5
You may obtain review of this final decis ion. 5 U.S.C. § 7703 (a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703 (b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights descr ibed below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
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.
18
immediately review the law applicable to your claims and carefully follow a ll
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one app lies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Fe deral Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for P ro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
19
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board a nd that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 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 co urt-appointed lawyer and
to waiver of any requirement of prepayment of fees, costs, or other security. See
42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district courts can be found at their respective
websites, which can be acce ssed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.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:
20
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 779 60
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) 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.6 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).
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 Presiden t 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 juris diction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195,
132 Stat. 1510.
21
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the 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 | JONES_JACQUELINE_M_CH_0752_15_0604_I_1_FINAL_ORDER_2000048.pdf | 2023-02-06 | null | CH-0752 | NP |
3,612 | https://www.mspb.gov/decisions/nonprecedential/STOGLIN_COREY_D_CH_1221_19_0508_W_1_FINAL_ORDER_2000062.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
COREY D. STOGLIN,
Appellant,
v.
DEPARTMENT OF LABOR,
Agency.
DOCKET NUMBER
CH-1221 -19-0508 -W-1
DATE: February 6, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL1
Corey D. Stoglin , Minneapolis, Minnesota, pro se.
Edward V. Hartman , 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 of the initial decision, which
dismissed his individual right of action (IRA) appeal for lack of jurisdiction. For
the reasons set forth below, the appellant’s petition for review is DISMISSED as
untimely filed without good cause shown. 5 C.F.R. § 1201.114 (e), (g).
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
BACKGROUND
¶2 On February 28, 2020, the administrative judge issued an initial decision in
which he found that, while he satisfied the exhaustion requirement regarding his
IRA appeal, the appellant failed to nonfrivolo usly allege that he made any
protected disclosures that may have contributed to a personnel action. Initial
Appeal File, Tab 13, Initial Decision (ID) at 6 -11. Accordingly, the
administrative judge dismissed the appeal for lack of jurisdi ction , ID at 2, 11 ,
inform ing the parties that the initial decision would become the Board’s final
decision on April 3, 2020, unless either party filed a petition for review , ID at 11.
¶3 On April 10, 2020, the appellant filed a petition for review, 1 week la te.
Petition for Review (PFR) File, Tab 1. He claimed that he was attempting to
work with an attorney who had requested documentation but that he had limited
internet access from March 26 -28, 2020, because he was on mandatory telework
due to COVID -19, an d also that he missed work from March 30 -April 3, 2020,
due to illness.2 Id. at 4. The Clerk of the Board informed the appellant that his
petition for review appeared to be untimely filed and instructed him to submit
evidence and argument showing that the petition for review was timely filed or
that good cause existed for the del ay in filing. PFR File, Tab 2. In response, the
appellant submitted a Motion to Accept Filing as Timely Filed and/or to Ask the
Board to Waive or Set Aside the Time Limit in which he asserted that he was
severely ill from a medical condition for which he had been treated for 2 years.
PFR File, Tab 3. The appellant also submitted a memorandum from his doctor ,
who stated that the appellant was under his care, that he suffered from “medical
illness” and was unable to work from March 30 -April 3, 2020 , and t hat he h as
2 The appellant also asked that his case be joined with another of his cases, Stoglin v.
Department of Labor , MSPB Docket No. CH -4324 -19-0114 -I-1, which was pending
before the Board at the time . PFR File, Tab 1 at 4. Because the two cases involve
different causes of action, and based on our disposition of this appeal, we deny the
appellant’s request for joinder. 5 C.F.R. § 1201.36 (b).
3
now fully recovered. Id. at 6. The agency has responded in opposition to the
petition for review. PFR File, Tab 4.
ANALYSIS
¶4 The appellant bears the burden of proof by preponderant evidence regarding
timeliness. 5 C.F.R. § 1201.56 (b)(2)( i)(B). A petition for review must be filed
within 35 days after issuance of the initial decision or, if a party shows that he
received the ID more than 5 days after it was issued, within 30 d ays of receipt.3
Williams v. Office of Personnel Management , 109 M.S.P.R. 237 , ¶ 7 (2008);
5 C.F.R. 1201.114 (e).
¶5 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. Williams , 109 M.S.P.R.
237, ¶ 7; 5 C.F.R. § 1201.114 (g). To establish g ood cause for the untimely filing
of an appeal, a party must show that he exercised due diligence or ordinary
prudence under the particular circumstances of the case. Alonzo v. Department of
the Air Force , 4 M.S.P.R. 180 , 184 (1980). To determine whether an appellant
has shown good cause, the Board will consider the length of the delay, the
reasonableness of his excuse and his showing of due diligen ce, whether he is
proceeding pro se, and whether he has presented evidence of the existence of
circumstances beyond his control that affected his ability to comply with the time
limits or of unavoidable casualty or misfortune that similarly shows a causal
relationship to his inability to timely file his petition. Moorman v. Department of
the Army , 68 M.S.P.R. 60 , 62-63 (1995), aff’d, 79 F.3d 1167 (Fed. Cir. 1996)
(Table).
¶6 To establish that an untimely filing was the result of an illness, the party
must: (1) identify the time period during which he suffered from the illness;
(2) submit medical evidence showing that he suffered from the alleged illness
3 The appellant raises no such claim regarding receipt.
4
during that time period; and (3) explain how the illness prevented h im from
timely filing h is appeal or a request for an extension of time. Lacy v. Department
of the Navy , 78 M.S.P.R. 434 , 437 (1998). To establish good cause for waiver of
the Board’s filing deadline based on physical or mental illness, there is no general
incapacitation requirement; rather, the ap pellant is required only to explain why
his alleged illness impaired his ability to meet the Board’s filing deadline or seek
an extension of time. Id. at 437 n.*.
¶7 Here, although the appellant is proceeding pro se, the length of the delay ,
1 week, is not insignificant . Gonzalez v. Department of Veterans Affairs ,
111 M.S.P.R. 697 , ¶ 11 (2009) (holding than an 8 -day delay in filin g a petition
for review is not minimal). To the extent the appellant suggests that his efforts to
secu re attorney representation toward the end of the filing period were thwarted
by his limited internet access, such a claim does not constitute good cause for his
untimely filing. See Tamayo v. Office of Personnel Management , 88 M.S.P.R.
685, ¶ 7 (2001) (stating that the inability to obtain a representative does not
establish good cause for an untimely filing). The appellant bears the ultimate
responsib ility for pursuing his appeal. Helmstetter v. Department of Homeland
Security , 106 M.S.P.R. 101 , ¶ 13 (2007). Moreover, the appellant is responsible
for the errors of his chosen representative. Sofio v. Internal Revenue Service ,
7 M.S.P.R. 667 , 670 (1981).
¶8 The appellant’ s assertion that he was unable to timely file his petition for
review because of illness does not satisfy the Lacy standard. First, he claims only
that he was sick from March 30 to April 3, 2020 , PFR File, Tab 1 , and his
medical documentation only address es that same time period , PFR File, Tab 3
at 6. However , the filing period ran from Febr uary 28 to April 3, 2020.
Moreover , the appellant’s medical document ation is otherwise insufficient to
support his claimed in ability because it fails to explain how his illness prevented
him from timely filing his petition for review or requesting an exte nsion of time
5
in which to do so. Moreover, the appellant has not explained why he did not
more promptly file with the Board after April 3.
¶9 We find, therefore, that the appellant has failed to establish good cause for
his untimely filing because he has not shown that he acted with due diligence or
that there were circumstances beyond his control that affected his ability to
comply with the time limits or of unavoidable casualty or misfortune showing a
causal relationship to his inability to timely file his petition. Moorman ,
68 M.S.P.R. at 62-63.
¶10 Accordingly, we dismiss the petition for review as untimely filed. This is
the final decision of the Merit Systems Protection Board regarding the timeliness
of the petition for review. The initial decision remains the final decision of the
Board regardin g its lack of jurisdiction over the appellant’s IRA appeal .
NOTICE OF APPEAL RIG HTS4
You may obtain review of this final decision. 5 U.S.C. § 7703 (a)(1). By
statute, the nature of your claims det ermines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703 (b).
Although we offer the following summary of available appeal rights, the Merit
Syst ems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
4 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.
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, wh ich must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Fe deral
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you a re interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Bo ard appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
7
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. ____ , 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
to waiver of any requirement of prepayment of fees, costs, or other security. See
42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.usc ourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702 (b)(1) . If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
8
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.5 The court of appeals must receive your petition for
5 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Re view Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other ci rcuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195,
132 Stat. 1510.
9
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(B).
If you submit a petition for 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
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
10
Cont act information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsite s.aspx .
FOR THE BOARD:
Washington, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board | STOGLIN_COREY_D_CH_1221_19_0508_W_1_FINAL_ORDER_2000062.pdf | 2023-02-06 | null | CH-1221 | NP |
3,613 | https://www.mspb.gov/decisions/nonprecedential/CRAM_RANDY_DALE_DA_0752_16_0189_I_1_REMAND_ORDER_2000125.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
RANDY DALE CRAM,
Appellant,
v.
DEPARTMENT OF THE AI R FORCE,
Agency.
DOCKET NUMBER S
DA-0752 -16-0189 -I-1
DA-0752 -16-0189 -C-1
DATE: February 6, 2023
THIS ORDER IS NONPRECEDENTIAL1
Cynthia Rowe D’Antonio , Esquire , Oklahoma City, Oklahoma, for the
appellant .
Michael J. Taber , Esquire, and Thomas Burks , Tinker Air Force Base,
Oklahoma, 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 compliance initial
decision, which found the agency in noncompliance with the settlement
agreement . Because the agency appeared to challenge the validity 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
settlement agreement, the Office of the Clerk of the Board also docketed the
agency’s submission as a petition for review of the initial decision dismissing the
underlying removal appeal as settled. We JOIN the se two matters under 5 C.F.R.
§ 1201.36 (b) because doing so would expedite the processing without adversely
affecting the interests of the parties. We VACATE the initial decision in the
underlying removal appeal because, as further explained below, the settlement
agreement contains an illegal provision. We also GRANT the agency’s petition
for review of the compliance initial decision , VACATE that decision, and
REMAND these joined matters to the Dallas Regional Office for further
adjudication in accor dance with this Remand Order.
BACKGROUND
¶2 Effective December 29, 2015, the agency removed the appellant for illegal
drug use after a urine specimen it collected from him tested positive for an illegal
drug . Cram v. Department of the Air Force , MSPB Docket No. DA-0752 -16-
0189 -I-1, Initial Appeal File (IAF), Tab 5 at 24, 80, 96. The Department of the
Army laboratory at Fort Meade , Maryland, conducted the initial testing and
retained a portion of the appellant’s urine specimen, referred to as Sample B.2
IAF, Tab 5 at 54, 96, Tab 6 at 11; Cram v. Department of the Air Force , MSPB
Docket No. DA -0752 -16-0189 -I-1, Petition for Review (PFR) File, Tab 3 at 7;
Cram v. Department of the Air Force , MSPB Docket No. DA-0752 -16-0189 -C-1,
Compliance File (CF), Tab 4 at 24.
¶3 The appellant filed a Board appeal of his removal, which the parties settled.
IAF, Tab 1, Tab 13 at 5 -7, Tab 14, Initial Decision (ID) at 1 -2. After determining
that the parties voluntarily ent ered into the settlement agreement, they understood
it, and it was lawful on its face, the administrative judge issued an initial decision
2 The Mandatory Guidelines for Federal Workplace Drug Testing Programs in effect at
the time required that “each specimen [be] collected as a split specimen.” 73 Fed.
Reg. 71858, 71860, 71880 (Nov. 25, 2008).
3
that dismissed the appeal as settled and entered the agreement into the record for
enforcement purposes. ID at 1-2.
¶4 Under the agreement, the appellant agreed to dismiss his appeal with
prejudice and to waive the right to challenge his removal in the future, including
before the Board, in exchange for the agency’s promise to retest Sample B at a
Substance Abuse and Menta l Health Services Administration (SAMHSA)
certified laboratory of his choosing (paragraph 1a) . IAF, Tab 13 at 5-6. In
further consideration for withdrawing his appeal and waiving his appeal rights,
the agency made a conditional promise: (1) if Sample B tested negative for the
illegal drug, the agency would cancel the appellant’s removal, restore him “to
status quo ant e,” and pay attorney fees (paragraph 1b); and (2) if it tested
positive, the removal would “stand as executed” ; but, according to a hand written
provision, the appellant could use Sample B for deoxyribonucleic acid (DNA)
testing at his own cost and expense (paragraph 1c). Id. at 5. The parties also
agreed that “[a]ny provision of this Settlement Agreement declared or determined
by any court, administrative tribunal, or agency to be illegal or invalid will not
affect the validity of the remaining provisions .” Id. at 6.
¶5 The agency coordinated the release of Sample B to the designated
SAMHSA -certified laboratory, which complet ed the drug test. CF, Tab 4 at 10,
38-40. The agency then requested that the lab release Sample B to the appellant
for DNA testing ; however, the lab refused , claiming that “Federal Regulations ”
prohibited such testing.3 Id. at 13-14. The agency submitted a request to
SAMHSA to allow the release of Sample B to the appellant for the purpose of
DNA testing . CF, Tab 6 at 6. SAMHSA rejected the agency’s request,
determining that the Mandatory Guidelines for Federal Workplace Drug Testing
3 The agency has asserted on review that Sample B tested positive for the illegal drug.
PFR File, Tab 3 at 7 -8. However, the statements of a party’s representative in a
pleading do not constitute evidence . Hendricks v. Department of the Navy , 69 M.S.P.R.
163, 168 (1995). The agency has not provided any evidence in support of its claim.
4
Program (Guidelines) , promulgated by the Department of Health and Human
Services (HHS), prohibited any HHS -certified laboratory from testing the
specimen for DNA or releasing it for that purpose . Id. at 5-7. As evidenced by
the dates of the agency’s email correspondence, it made efforts to secure the
release of the sample through the appellant ’s filing of his petition for
enforcement, albeit without success. Id. at 7-11. The appellant therefore was
unable to obtain the DNA testing of Sample B. CF, Tab 1 at 11, Tab 8,
Compliance Initial Decisi on (CID) at 2-3.
¶6 The appellant filed a petition for enforcement, arguing that the agency
materially breache d the agreement by failing to secure the release of Sample B
for DNA testing. CF, Tab 1 at 2 -3. The agency argued that the provision was
unenforceable because it violated the HHS Guidelines to subject the sample to
DNA testing. CF, Tab 4 at 6. In reply , the appellant requested that the entire
agreement be voided due to the impossibility or illegality of obtaining the DNA
testing. CF, Tab 7 at 2 -4.
¶7 The administrative judge issued an initial decision finding that the agency
materially breached the settle ment agreement by failing to secure the release of
Sample B for DNA testing. CID at 3-4. He further found that specific
performance could not be ordered because the agreed -upon DNA testing was
illegal , and he therefore rescinded the settlement agreement, as requested by the
appellant. CID at 5. He did not address the appellant’s argument that the
settlement agreement should be voided . CID at 5 n.2.
¶8 The agency has filed a timely petition for review of the compliance i nitial
decision, claiming that the appell ant’s petition for enforcement wa s untimely, it
did not breach the DNA -testing provision, any nonperformance should be excused
due to impossibility, and any breach is immaterial. Cram v. Department of the
Air Force , MSPB Docket No. DA-0752 -16-0189 -C-1, Compliance Petition for
Revie w (CPFR) File, Tab 1 at 5, 15 -19. The agency further argues that , while the
DNA -testing provision is unenforceable because it is illegal and the parties were
5
mutually mistaken as to the l awfulness of that provision , it should be severed
from the agreement , pursuant to the severability clause, and the remainder of the
agreement should be enforced . Id. at 15. The appellant has filed a response.
CPFR File, Tab 3.
¶9 As discussed above , the Office of the Clerk of the Board also docketed the
agency’s submission as a petition for review of the initial decision dismissing the
appeal as settled. PFR File, Tab 2. In its response to the Clerk’s order , the
agency denies that it is challenging the validity of the settlement agreement and
repeats the claims it raised in the compliance petition for review . PFR File, Tab 3
at 4-6. The appellant has not filed any pleadings in connection with the petition
for review in the underlying matter .
DISCUSSION OF ARGUME NTS ON REVIEW
The settlement agreement was the result of a mutual mistake of law which may
render it invalid .
¶10 A settlement agreement must be set aside if it is tainted with invalidity
either by fraud practiced upon a party or by a mutual mistake under which both
parties acted. Farrell v. Department of the Interior , 86 M.S.P.R. 384 , ¶ 8 (2000).
If both parties a cted under a mutual mistake as to the lawfulness of the provision
at issue and the provision was material to the agreement, the agreement must be
set aside. Id., ¶ 12. As both parties argue, PFR File, Tab 1 at 17; CPFR File ,
Tab 3 at 8 -9, the DNA -testing provision is illegal .4 According to the HHS
Guidelines , DNA testing “is prohibited unless authorized in accordance with
applicable federal law,” and SAMHSA -approved laboratories may not release
4 The agency states in respo nse to the docketing of the petition for review in the
underlying matter that it is not challenging the validity of the settlement agreement.
PFR File, Tab 3 at 6. However, it continues to assert that the DNA -testing provision
was the result of a mutual mistake of law. Id. at 23.
6
drug -testing “[s]pecimens . . . unless expressly authorized by the[] Guidelines or
by applicable federal law .”5 82 Fed. Reg. 7920, 7940 -41 (Jan. 23, 2017).
¶11 Given this illegality, the Board must address whether the parties still have
an enforceable agreement . Moreover, if the agreement is invalid, the compliance
appeal is moot . See generally Hess v. U.S. Postal Service , 124 M.S.P.R. 40 , ¶ 8
(2016) (explaining that a case is moot when the issues presented are no longer
“live” or the parties lack a legally cognizable interest in the outcome of the case).
The record is not sufficiently developed to determine whether the DNA -testing
provision is seve rable, preventing a finding on the agreement’s enforceability .
¶12 Both parties argue that they were mistaken as to the legality of the
DNA -testing provision when they entered into the agreement ; however, they
disagree as to how this illegality affects the rem ainder of the agreement . PFR
File, Tab 1 at 14-15, 17-18; CPFR File, Tab 3 at 8-9. The p arties’ inclusion of a
severability clause, as here, suggests that they intended for the contract
provis ions to be divisible. IAF, Tab 13 at 6; see American Savings Bank , F.A. v.
United States , 519 F.3d 1316 , 1325 (Fed. Cir. 2008) (relying on “the language of
a contract and the intent of the parties in determining whether a contract is
divisible”); 15 Williston on Contracts § 45:6 (4th ed. 2018) (explaining that
“[t]he parties’ intent to enter into a divisible contract may be
expressed . . . through a so -called ‘severability clause’”). We therefore look first
to the severability clau se to determine whether the DNA -testing provision is
severable. See Mital v. Department of Agriculture , 116 M.S.P.R. 589 , ¶ 6 (2011)
5 While the HHS Guidelines in effect at t he time the parties contracted did not explicitly
identify DNA testing as prohibited, the general prohibition that samples “collected
pursuant to Executive Order 12564, Public Law 100 -71,” such as the appellant’s, IAF,
Tab 5 at 91, could only be tested for drugs effectively rend ered such DNA testing
illegal, Mandatory Guidelines for Federal Workplace Drug Testimony Programs,
73 Fed. Reg. 71858, 71861, 71880 (Nov. 25, 2008); see An Act Making Supplement al
Appropriations for the Fiscal Year Ending September 3 0, 1987, Pub. L. No. 100 -71,
§ 503, 101 Stat. 391 , 468 -71 (authorizing HHS to adopt mandatory guidelines for drug
testing Federal employees) (codified at 5 U.S.C. § 7301 note (Restriction on
Availa bility of Funds to Administer or Implement Drug Testing)).
7
(explaining that the Board looks first to the terms of the agreement to determine
the parties’ intent when they contracted). The boilerplate severability clause at
issue , however, states only that an illegal provision “will n ot affect the validity of
the remaining provisions.” IAF, Tab 13 at 6. It does not indicate whether the
parties intended for only the final two sentences of parag raph 1c, which contains
the DNA -testing provision, to be excised, as the agency contends, PF R File,
Tab 3 at 19-20, or whether the parties believed it to be so interwoven with the rest
of paragraph 1c, which states that the appellant’s removal is to “stand as
executed” in the event that Sample B tested pos itive for the illegal drug, that the
entire par agraph would be unenforceable, see generally Day v. Department of the
Air Force , 78 M.S.P.R. 364, 366-67 (1998) (finding the entirety of paragraph 2.d.
of the parties’ settlement agreement unenforceable due to an illegal clause within
that provision).
¶13 Alternatively, an illegal portion of a settlement agreement may be severed
and the remaining legal provisions may b e enforced if th e “legal promises on one
side . . . [are] wholly supported by legal promises on the other, and the illegal
portion of the contract does not go to its essence.” 8 Williston on Contracts
§ 19.73 (4th ed. 2018); see Day , 78 M.S.P.R. at 368 (r ecognizing that the Board
may sever a nonmaterial, illegal term and enforce the rest of the agreement).
Without the DNA -testing provision, the agreement is supported by legal promises
on both sides.6 However, it is unclear whether the second two sentence s of
6 Even absent t he drug -testing provision, the agreement contains an exchange of legal
promises, as is required to have an enforceable contract. See Black v. Department of
Transportation , 116 M.S.P.R. 87 , ¶ 17 (2011) (explaining that to have an enforceable
contract, there must b e consideration, i.e. , bargained -for perform ance or a return
promise that does not involve the performance of a preexisting duty). At the very least,
the agency promised to test the appellant’s Sample B urine specimen for the illegal drug
in exchange for the appellant’s promise to waive his appeal rights. IAF, Tab 13 at 5.
There is no indication or allegation that the agency was required to allow the appellant
that tes ting option. IAF, Tab 6 at 135 -236; cf. Black , 116 M.S.P.R. 87 , ¶¶ 18-19
(reasoning that the agency’s offer to allow the appellant to seek alcohol treatment and
to enter into a last chance settlement agreement was not consideration for waiving his
8
paragraph 1c, which contain the DNA provision , go to the essence of the contract .
See Mital , 116 M.S.P.R. 589 , ¶ 6 (finding that a contract is ambiguous when it is
susceptible to differing, reasonable interpretations). The text of paragraph 1c
does not resolve this ambiguity. IAF, Tab 13 at 5.
¶14 Extrinsic evidence of intent may be considered here because the parties’
intent as to the severability provision and the materiality of the DNA -testing
provision are both ambiguous . See Mital , 116 M.S.P.R. 589 , ¶ 6. As to the
materiality of this provision, t he appellant argue s that the ability to DNA test the
specimen was essential for him to “clear his good name and regain employment .”
CPFR File, Tab 3 at 8 -10; CF, Tab 1 at 3. His attempt to enforce the
DNA -testing prov ision may be evidence of its materiality . See Jackson v.
Department of the Army , 123 M.S.P.R. 178, ¶ 11 (2016) (finding that the
appellant’s decision to invoke the revocation provision suggested that it was
material to her decision to sign the settlement agreement). However, neither he
nor the agency submitted any additional evidence on this issue . The assertion s
and statements that the appellant’s representative and the agency set forth in their
respective pleadings are not evidence. CPFR File, Tab 3 at 8-10; CF, Tab 1 at 3;
PFR File, Tab 1 at 17 -18; see Hendricks v. Department of the Navy , 69 M.S.P.R.
163, 168 (1995). Accordingly, we cannot determine whether the parties intended
for the DNA -testing provision to be divisible at the time they entered into the
agreement , or whether it is a nonmaterial term that may be severed because the
remaining legal provisi ons are supported by considerati on. Remand is necessary
appeal rights i f agency policy required the agency to make that offer). We will not
enter into a precise calculation of determining the adequacy of that consideration. See
Pappas v. Office of Personnel Management , 76 M.S.P.R. 152 , 158 (1997) (reasoning
that a very small amount of consideration , the proverbial “peppercorn ,” may support an
enforceab le contract) , aff’d per curiam , 155 F.3d 565 (Fed. Cir. 1998) (Table). The
sufficiency of what would remain after severance is considered when addressing the
materiality issue. See generally Young v. U.S. Postal Service , 113 M.S.P.R. 609 , ¶ 10
(2010) (defining materiality, as to a party’s noncompliance with a settlement agreement
term, as a matter of vital importance or that goes to the essence of the contract).
9
for the submission of extrinsic evidence of the parties’ intent . See Mital ,
116 M.S.P.R. 589 , ¶ 9.
The petition for enforcement was timely filed .
¶15 The agency argues that the appellant untimely filed his pe tition for
enforcement. CPFR File, Tab 1 at 13. We disagree. A petition for enforcement
must be filed within a reasonable time after the petitioner becomes aware of the
breach. Phillips v. Department of Homeland Security , 118 M.S.P.R. 515 , ¶ 11
(2012). Here, t he appellant made diligent efforts to determine whether the agency
was going to comply with the agreement and, in waiting to file his enforcement
petition, reasonably relied on the agency’s assertions that it was still attempting
to negotiate the release of Sample B. CPFR File, Tab 3 at 10; CF, Tab 1 at 8 -13,
Tab 6 at 7-11. The age ncy itself was in the process of determini ng the legality of
the provision during the compliance proceedings. CF, Tab 4 at 6 -11, Tab 6
at 5-11. Under these circumstances, we find the appellant acted reasonably.
ORDER
¶16 For the reasons discussed above, we remand this case to the Dallas Regional
Office for further adjudication in accordance with this Remand Order. As
explained above, the administrative judge should afford the parties an opportunity
to submit extrinsic evidence on the severability of the DNA -testing provision . If
necessary to resolv e disputed issues of material fact, the administrative judge also
should conduct a hearing so that the parties may present testimonial evidence in
support of their positions. See Mital , 116 M.S.P.R. 589 , ¶ 9.
¶17 Upon the close of the record on remand , the administrative judge should
issue a new initial decision in these joined matters . If the adminis trative judge
finds that the DNA -testing provision is not severable, he should set aside the
settlement agreement as invalid, reinstate the underlying appeal, and adjudicate
the merits of the appellant’ s removal. See Weldon v. Department of Veterans
Affairs , 119 M.S.P.R. 478, ¶ 8 (2013). If the administrative judge finds that the
10
DNA -testing provision is severable, he should sever it and enforce the remain ing
provisions, in accordance with the severability clause . See Flores v. U.S. Postal
Service , 115 M.S.P.R. 189 , ¶ 10 (2010) (e xplaining that the Board has no
authority to unilaterally modify the terms of a settlement agreement). Depending
upon the outcome of the severability issue, the administrative judge’s finding as
to the severability of the DNA -testing provision will likely render either the
removal or compliance appeal moot . See Hess , 124 M.S.P.R. 40 , ¶ 8.
FOR THE BOARD:
Washington, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board | CRAM_RANDY_DALE_DA_0752_16_0189_I_1_REMAND_ORDER_2000125.pdf | 2023-02-06 | null | S | NP |
3,614 | https://www.mspb.gov/decisions/nonprecedential/PENTECOST_ANDRE_THOMAS_DA_0432_17_0142_I_1_FINAL_ORDER_1999351.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
ANDRE THOMAS PENTECO ST, SR,
Appellant,
v.
DEPARTMENT OF HOMELA ND
SECURITY,
Agency.
DOCKET NUMBER
DA-0432 -17-0142 -I-1
DATE: February 3, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL1
Andre Thomas Pentecost, Sr. , Desoto, Texas, pro se.
Michael F. Arnold , Esquire, and Katie A. Chillemi , Esquire, 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 petitioned for review of the initial decision in this appeal.
Initial Appeal File, Tab 24, Initial Decision; Petition for Review (PFR) File,
Tab 2. For the reasons set forth below, we DISMISS the appeal as settled.
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required 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
¶2 After the filing of the petition for review, the parties submitted a document
entitled “SETTLEMENT AGREEMENT ,” signed and dated by both parties on
January 9, 2023 . PFR File, Tab 7 at 9. 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 for enforcement p urposes, 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 parties have entered into a settlement agreement,
understand its terms, and do not intend for the agreement to be entered into the
record for enforcement by the Board. PFR File, Tab 7 at 6 -7 (providing for
enforcement under regulations o f the Equal Employment Opportunity
Commission) . As the parties do not intend for the Board to enforce the
settlement agreement, we need not address the additional considerations
regarding enforcement and do not enter the settlement agreement into the reco rd
for enforcement by the Board.
¶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.
3
¶6 This is the final decision of the Merit Systems Protection Board in this
appeal. Title 5 of the Code of Federal Regulations, section 1201.113 ( 5 C.F.R.
§ 1201.113 ).
NOTICE OF APPEAL RIG HTS2
You may obtain review of this fin al decision. 5 U.S.C. § 7703 (a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the 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 righ ts described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
2 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise whic h option is most appropriate in any matter.
4
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guid e for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, y ou may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warran ts that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 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 involv es a claim of
5
discrimination based on race, color, religion, sex, national origin, or a disabling
condition, you may be entitled to representation by a court -appointed lawyer and
to waiver of any requirement of prepayment of fees, costs, or other security. See
42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
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
6
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. C ourt of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.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 Circui t
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitio ners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our web site at
http://www.mspb.gov/probono for information regarding pro bono representation
3 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, si gned into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195,
132 Stat. 1510.
7
for Merit Systems Protection Board appellants before the 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 | PENTECOST_ANDRE_THOMAS_DA_0432_17_0142_I_1_FINAL_ORDER_1999351.pdf | 2023-02-03 | null | DA-0432 | NP |
3,615 | https://www.mspb.gov/decisions/nonprecedential/LAURENZA_DAVID_J_NY_0752_17_0122_I_1_REMAND_ORDER_1999353.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
DAVID J. LAURENZA,
Appellant,
v.
DEPARTMENT OF VETERA NS
AFFAIRS,
Agency.
DOCKET NUMBER
NY-0752 -17-0122 -I-1
DATE: February 3, 2023
THIS ORDER IS NONPRECEDENTIAL1
Tyler Patterson , Esquire, Vestal, New York, for the appellant.
Georgette Gonzales -Snyder , Esquire, Syracuse, New York, for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
Tristan L. Leavitt, M ember
REMAND ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
dismissed his removal appeal for lack of jurisdiction. For the reasons discussed
below, we GRANT the appellant’s petition for review and REMAND the case to
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
require d to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c).
2
the New York Field Office for further adjudication in accor dance with this
Remand Order.
BACKGROUND
¶2 The appellant was employed by the agency as an E lectrician and was
stationed in Canandaigua, New York. Initial Appeal File (IAF), Tab 6 at 10. On
December 2, 2016, the agency proposed the appellant’s removal based on
misconduct charges. Id. at 23-25. On March 23, 2017, the agency issued the
appellant a removal decision effective that same day. Id. at 26 -28. Included with
the removal notice package was a proposed settlement agreement wherein the
agency offered to hold the removal in abeyance until September 30, 2017, and
rescind the removal action if the appellant agreed to an immediate reassignment
or to resign or retire from employment with the agency e ffective on or before
September 30, 2017. IAF, Tab 7 at 13. The settlement agreement noted that the
appellant’s retirement or resignation would be completely voluntary and that he
had the opportunity to seek the advice of counsel. Id. It also noted tha t if the
appellant failed to complete the necessary paperwork in a manner that would
allow him to resign or retire by September 30, 2017, the agency would be
permitted to immediately sustain and impose the rem oval action. Id. The only
copy of the settlem ent agreement in the record is unsigned by either party. Id.
at 16. Also included in the record is a report of contact dated March 23, 2017,
noting that the appellant received the removal notice and the agency’s offer of a
settlement agreement together t hat same day and that he was scheduled to inform
the agency by March 28, 2017, of his decision on the ter ms of the settlement
agreement. Id. at 4.
¶3 It appears from the record that the appellant did not formally notify the
agency of his decision, but rath er, on March 29, 2017, he completed the requisite
paperwork to voluntarily retire. Id. at 17 -25. The agency officially processed the
appellant’s voluntary retirement and issued a Standard Form 50 (SF -50) reflecting
the voluntary retirement. Id. at 28. In the remarks section of the SF -50, it is
3
noted that the appellant retired after receiving written notice on March 23, 2017,
of the agency’s final decision to remove him. Id.
¶4 On April 21, 2017, the appe llant filed an appeal with the B oard challenging
the removal action. IAF, Tab 1. The administrative judge issued an order
informing the appellant that the Board may not have jurisdiction over his appeal
and laying out what he must prove to show that his retirement was involuntary.2
IAF, Tab 5 at 1 -2. Wi thout holding the requested hearing , the administrative
judge issued an initial decision that dismissed the appeal for lack of jurisdiction ,
finding that the appellant’s removal was not an appealable action because ,
although he retired the same day as the effective removal date, the agency
rescinded the removal action prior to the filing of the Board appeal. IAF, Tab 12,
Initial Decision (ID) at 3. The administrative judge also found that the appellant
failed to prove, or even allege, that his retirement was involuntary. Id.
¶5 The appellant has filed a petition for review arguing that he did not receive
the proper jurisdictional notice regarding the specific timing of the removal
action, the retirement, and the agency’s supposed rescission or cancellation of the
removal action. Petition for Review (PFR) File, Tab 1 at 6 -8 (citing Burgess v.
Merit Systems Protection Board , 758 F.2d 641 , 643 -44 (Fed . Cir. 1985) ). The
agency has filed a response to the petition for review, and the appellant has filed
a reply. PFR File, Tabs 3 -4.
DISCUSSION OF ARGUME NTS ON REVIEW
¶6 It is wel l established that when, as in this case , an agency decides to remove
an employ ee, and the employee retires on the same date that the removal was to
become effective, the employee does not on that account lose the right to file a
2 The order also addressed the agency’s contention that the appellant already had made
a binding election of remedies to proceed with his challenge of the removal when he
filed an equal employment op portunity case. IAF, Tab 6 at 6 -7, Tab 5 at 1. The
administrative judge did not address this issue any further in any capacity beyond this
initial order.
4
Board appeal contesting the decided removal. 5 U .S.C. § 7701 (j); Mays v.
Department of Transportation , 27 F.3d 1577 , 1579 -81 (Fed. Cir. 1994); Williams
v. Department of Health & Human Servic es, 112 M.S.P.R. 628 , ¶ 7 (2009).
Further, in such a case, the Board need not address whether the appellant’s
retirement was invol untary . Williams , 112 M.S.P.R. 628 , ¶ 7. In examining the
merits of the adverse action, if the agency is unable to support its removal
decision, then the appellant is entitled to all the relief he could receive if he could
show that his retirement was coerced . Scalese v. Department of the Air Force ,
68 M.S.P.R. 247 , 249 (1995). I f the agency can show that it properly decided the
removal, then an involuntary re tirement claim would be mooted. Id.
Notwithstanding these g eneral principles, the Board nonetheless lacks jurisdiction
over a removal appeal if the agency cancels or rescinds the removal action before
the appeal is filed with the Board. Taber v. Department of the Air Force ,
112 M.S.P.R. 124 , ¶ 8 (2009). In such a case, an appellant may still argue that
his retirement was involuntary . Id., ¶ 10.
¶7 In the instant case, the administrative judge appears to have assumed tha t
the agency rescinded or canceled the removal action and proceeded to frame this
case as one addressing whether the appellant’s retirement was involuntary. ID
at 2-3; IAF, Tab 5 at 1 -2. We find that the administrative judge er red in this
regard . First, the appellant did not claim in his appeal that his retirement was
involuntary. IAF, Tab 1 at 3. Second, t he assumption that the agency rescinded
or canceled the removal action is not supported by any documentary evidence in
the record. The administrative judge appears to have relied on the fact that the
appellant’s removal was never processed and that the agency never issued an
SF-50 recording the removal , instead issuing an SF -50 recording a voluntary
retirement . ID at 2 -3. However, the Board has held that although the issuance of
an SF-50 is the customary determination for a personnel action, it does not effect
the pe rsonnel action. Toyens v. Department of Justice , 58 M.S.P.R. 634 , 637
(1993). The Board in Toyens further stated that, rather than the issuance of an
5
SF-50, it is the decision notice approved by an individual with the proper
authority that effects the personnel action. Id. Thus, w e find that the absence of
a removal SF -50 is of no consequence here and is not dispositive of whether the
agency actually remove d the appellant. Additionally, the appellant does not
appear to challenge the deciding official’s authority to issue the decision, and our
review of the record shows that he had such authority. IAF, Tab 6 at 28.
Therefore, we find that the removal was effected when the deciding official
issued the removal decision .
¶8 Further, even if the administrative judge assumed that the terms of the
settlement agreement resulted in some type of a constructive cancellation or
rescission of the removal decision due to the appellant’s retirement , the record is
unclear as to whether the parties ever agreed to the terms of the settlement of fer
because the only settlement -related document contained in the record is unsigned
by either party. IAF, Tab 7 at 16 . Notably, the agency has not argued that the
appellant agreed to the terms, but only that he took the necessary steps to
effectuate a voluntary retirement. IAF, Tab 4 at 4, Tab 6 at 5 -7. Based on the
foregoing, we find that the administrative judge erred in concluding that the
agency cancelled or rescinded the removal action. Consequently, we also find
that she erred in reaching the involuntary resignation analysis because there is no
evidence th at the agency cancelled or rescinded the removal action. See Tabe r,
112 M.S.P.R. 124 , ¶¶ 8, 10.
¶9 The U.S. Court of Appeals for the F ederal Circuit has made clear that “an
employee, stigmatized with an adverse final decision reflected in [his]
government employment record, may challenge the final removal decision while
also opting to retire. ” Mays , 27 F.3d at 1580 . More specifically , the Board has
held that, even when an agency processes the retirement request and not the
removal action , and when such retirement documentation explicitly references the
removal action, the Board retains jurisdiction over that action. Anderson v. Small
Business Administration , 78 M.S.P.R. 518 , 520 -22 (1998) ; Scalese , 68 M.S.P.R.
6
at 248 -49. Here, despite the absence of a removal SF -50 and given the specific
remarks on the appellant’s retirement SF -50 referencing the removal decision , we
find that the Board has jurisdiction over the appellant’s adverse action appeal.
Mays , 27 F.3d at 1579 -81.3
ORDER
¶10 For the reasons discussed above, we REVERSE the initial decision and
remand this case to the New York Field Office for further adjudication in
accordance with this Remand Order. Pursuant to Scalese , the issue of whether the
appellant’s retirement was involuntary need not be addressed on remand.
68 M.S.P.R. at 249.
FOR THE BOARD:
Washington, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board
3 Because we have determined that the Board has jurisdiction over the appellant’s
removal, we need not address the Burgess notice argument contained in his petition for
review . | LAURENZA_DAVID_J_NY_0752_17_0122_I_1_REMAND_ORDER_1999353.pdf | 2023-02-03 | null | NY-0752 | NP |
3,616 | https://www.mspb.gov/decisions/nonprecedential/ALVAREZ_HANNELORE_L_DA_0752_17_0144_I_1_FINAL_ORDER_1999360.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
HANNELORE L. ALVAREZ ,
Appellant,
v.
UNITED STATES POSTAL SERVICE,
Agency.
DOCKET NUMBER
DA-0752 -17-0144 -I-1
DATE: February 3, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL1
Carlton Williams , Dallas, Texas, for the appellant.
Bobbi Mihal , 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 petitioned for review of the initial decision in this ap peal.
Petition for Review (PFR) File, Tab 1; Initial Appeal File, Tab 33, Initial
Decision. 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 “SETTLEM ENT AGREEMENT AND RELEASE ” signed and dated by
the appellant on December 22, 2022, and by the agency on January 9, 2023. PFR
File, Tab 8 at 8-9. The document provides, among other things, for the dismissal
of the appeal . Id. at 5.2
¶3 Before dismissing a matter as settled, the Board must decide whether the
parties have entered into a settlement agreement, whether they understand its
terms, and whether they intend to have 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 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 7 at 6. Accordingly, we find that
dismissin g the petition for review with prejudice to refiling (i.e., the parties
normally may not refile this appeal) is appropriate under these circumstances. In
addition, we find that the agreement is lawful on its face and freely entered into,
and we accept the settlement agreement into the record for enforcement
purposes.
2 The parties filed a copy of the Settlement Agreement for the first time on January 9,
2023, and filed a second copy of the Settlement Agreement on January 10, 2023 , after
noting an administrative s canning error in the original submission (duplicate pages were
included in the original) . See PFR File, Tabs 7 , 8.
3
¶5 This is the final decision of the Merit Systems Protection Board in this
appeal. Title 5 of the Code of Federal Regulations, section 1201.113 ( 5 C.F.R.
§ 1201.113 ).
NOTICE TO THE PARTIE S OF THEIR
ENFORCEMENT RIGHTS
If the agency or the appellant has not fully carried out the terms of the
agreement, either party may ask the Board to enforce the settlement agreement by
promptly filing a petition for enforcement with the office that issued the initial
decision on this appeal. The petition should contain specific reasons why the
petitioning party believes that the terms of the settlement agreement have not
been fully carried out, and should include the dates and results of any
communications between the parties. 5 C.F.R. § 1201.182 (a).
NOTICE OF APPEAL RIG HTS3
You may obtain review of this final decision. 5 U.S.C. § 7703 (a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which t o file. 5 U.S.C. § 7703 (b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriat e for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applica ble to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
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
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 particul ar
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of A ppeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services pr ovided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
5
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action w ith an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 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 review to the EEOC by regular U.S. mail, the
address of the EEOC is:
6
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C . 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. C ourt of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.4 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(B).
4 The origi nal statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permane ntly allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195,
132 Stat. 1510.
7
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circui t
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitio ners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our web site at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD:
Washington, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board | ALVAREZ_HANNELORE_L_DA_0752_17_0144_I_1_FINAL_ORDER_1999360.pdf | 2023-02-03 | null | DA-0752 | NP |
3,617 | https://www.mspb.gov/decisions/nonprecedential/CLARK_RONALD_A_PH_0831_16_0234_I_1_FINAL_ORDER_1999387.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
RONALD A. CLARK,
Appellant,
v.
OFFICE OF PERSONNEL
MANAGEMENT,
Agency.
DOCKET NUMBER
PH-0831 -16-0234 -I-1
DATE: February 3, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL1
Ronald A. Clark , Leeds, Maine, 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 by the Office of Personnel Management (OPM)
reducing his retirement annuity by eliminating credit for his post -1956 military
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case 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
service . Generally, we grant petitions such as this one only in the following
circumstances: the initial decision conta ins erroneous findings of material fact;
the initial decision is based on an erroneous interpretation of statute or regulation
or the erroneous application of the law to the facts of the case; the administrative
judge’s rulings during either the course of the appeal or the initial decision
were not consistent with required procedures or involved an abuse of discretion,
and the resulting error affected the outcome of the case; or new and material
evidence or legal argument is available that, despite the peti tioner’s due
diligence, was not available when the record closed. Title 5 of the Code of
Federal Regulations, section 1201.115 ( 5 C.F.R. § 1201.115 ). After fully
considering the 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 served on activ e military duty from 1972 to 1978 and worked
for the U.S. Postal Service from February 7, 1981, until his resignation on
January 5, 2007 . Initial Appeal File (IAF), Tab 6 at 24 -25, 35-40. In July 2009,
he applied for , and began receiving, a Federal Employees’ Retirement System
(FERS) deferred annuity benefit with a Civil Service Retirement System (CSRS)
component .2 Id. at 21-22, 31-34. In February 2015, the Social Security
Administration certified that the appellant would be eligible for Old -Age,
Survivors , and Disability Insurance (OASI) benefits in August 2015 . Id. at 23.
2 The record reflects that the appellant was covered by CSRS from 1981 until
August 1998, at which time he elected to become covered by FERS. IAF, Tab 6
at 35-40. Because he had more than 5 years of civilian service under CSRS when he
elected FERS coverage, he is entitled to a CSRS component in his FERS annuity.
OPM , CSRS and FERS Handbook, Election of FERS Coverage, ch. 11, § 11A8.1 -2(C) ,
https://www.opm.gov/retirement -center/publications -forms/csrsfers -handbook/c011.pdf .
3
Accordingly, i n July 2015, OPM informed the appellant that his annuity would be
reduced as of September 1, 2015, to exclude credit for his military service
because a civil service annuitant can only receive credit for post -1956 military
service under both the CSRS and Social Security system if he paid a military
service deposit prior to his resignation, which the appellant had not done . Id.
at 15, 17 . OPM further informed him that his gros s monthly annuity would be
reduced from $1,757 to $958. Id. at 18. The appellant requested reconsideration
of the initial decision, and OPM issued a February 16, 2016 final decision
affirming its initial decision. Id. at 12-13.
¶3 The appellant timely a ppealed OPM’s final decision to the Board, declining
his option for a he aring. IAF, Tab 1. He argued that OPM erred in calculating
his reduced annuity to exclude credit for his post -1956 military service and failed
to apply the c orrect law—namely, sectio n 307 of the Omnibus Budget
Reconciliation Act of 1982, Pub. L. No. 97-253, 96 Stat. 763, as amended by the
Act of October 15, 1982, Pub. L. N o. 97-346, § 3(k), 96 Stat. 1647 (hereinafter
“section 307”). IAF, Tab 1 at 2, 5-9, Tab 7 at 1, Tab 12 at 1-5. A ccording to the
appellant, section 307 (a) exempted him from the requirement that he make a
post-1956 military service deposit , and section 307(b) contained the correct
formula for recalculating his annuity , resulting in a $43 reduction to his monthly
annuity , rather than $799, as determined by OPM . IAF, Tab 1 at 2, 5-9, Tab 7
at 1, Tab 12 at 1-5. In an initial decision based on the written record, the
administrative judge affirmed OPM’s final decision. IAF, Tab 13, Initial
Decision (ID).
¶4 The appella nt has filed a petition for review of the initial decision ,
reiterating his arguments from below . Petition for Review (PFR) File, Tab 1.
The agency has responded in opposition to the appellant’s petition for review.
PFR File, Tab 4.
4
DISCUSSION OF ARGU MENTS ON REVIEW
¶5 Under CSRS, the creditable service of an individual like the appellant, i.e.,
one who first became an employee before October 1, 1982, include s credit for
each period of military service performed before the date on which the
entitlement to an annuity is based, subject to 5 U.S.C. § 8332 (j).3 5 U.S.C.
§ 8332 (c)(1)(A). Subsection 8332(j)(1) provides that military service is not
included in calculating the service credit on which a CSRS annuity is based if the
individual is entitled, or would on pro per application be entitled, to monthly
OASI benefits under 42 U.S.C. § 402. However , subsection 8332(j)(2)(A)
provides that subsection 8332(j)(1) does not apply to any period of military
service to which the individual has made a deposit with interest under
section 8334(j). Such a deposit must be made before the date of t he individual’s
retirement or before the date OPM takes final action on his retirement application.
Collins v. Office of Personnel Management , 45 F.3d 1569 , 1571 (Fed. Cir. 1995 );
5 C.F.R. §§ 831.2104 (b), 831.2107(b) . If the individual fails to make such a
deposit, OPM must recalculate the annuity payments whe n he first becomes
eligible for OASI benefits to exclude service credit for his post-1956 military
service. McDevitt v. Office of Personnel Management , 118 M.S.P.R. 204 , ¶ 6
(2012) ; see 5 U.S.C. § 8332 (j)(1) .
¶6 Here, a s noted above, OPM recalculated the appellant’s annuity to eliminate
credit for his post -1956 military service after he became eligible for OASI
benefits in 2015 because he did not make the post -1956 military service deposit.
IAF, Tab 6 at 12-13, 15, 17. In his Board appeal, he does not cha llenge OPM’s
3 As noted above, the appellant receives a FERS annuity with a CSRS compo nent.
Because he performed his period of military service before he elected FERS coverage,
his military service is part of the CSRS component of his annuity and is treated under
CSRS rules. OPM , CSRS and FERS Handbook , Creditable Military Service , ch. 22,
§ 22B2.1 -1(B) , https://www.opm.gov/retirement -center/publications -forms/csrsfers -
handbook/c022.pdf ; IAF, Tab 6 at 24 -25, 35 -39.
5
finding that he did not make a military service deposit but argue s that section 307
of Pub. L. No. 97 -253 exempt s him from the l imitations of 5 U.S.C. § 8332(j) and
the deposit provisions of section 8334(j) and entitles him to a smaller reduction of
his monthly annuity . IAF, Tab 1 at 2, 5-9, Tab 7 at 1, Tab 12 at 1-5; PFR File,
Tab 1. An appellant bears the burden of proving, by a preponderance of the
evidence, that he is entitled to the benefits he seeks under the CSRS.4 See
Cheeseman v. Office of Personnel Management , 791 F.2d 138 , 140 -41 (Fed. Cir.
1986).
¶7 Section 307 of Pub. L. No. 97 -253 is codified as amended in a statutory
note titled “Recomputation at Age 62 of Credit for Military Service of Current
Annuitants.” 5 U.S.C. § 8332 note. Section 307 (a) reads as follows:
The provisions of section 8332(j) . . . relating to credit for military
service, shall not apply with respect to any individual who is entitled
to an annuity under subchapter III of chapter 83 of title 5, United
States Code, on or before the date of enactment of this Act [Sept. 8,
1982] or who is entitled to an annuity based on a separation from
service occurring on or before such date of enactment .
The administrative judge found that section 30 7 did not apply to the appellant
because he was not “entitled ” to an annuity on or before the date of its enactment
and because the laws that are applicable to his annuity rights are those that were
in effect at the time of his July 1, 2009 retirement. ID at 4. The appellan t argues
on review that section 307(a) applies to him because he was “entitled” to a CSRS
annuity as of September 8, 1982, seemingly by virtue of the fact that he began his
Federal employment in 1981. PFR File, Tab 1 at 4 -9.
¶8 As the tit le of the statutory note indicates, section 307 applies to individuals
who were “current annuitants ,” i.e., entitled to a CSRS annuity, as of
September 8, 1982. 5 U.S.C. § 8332 note (Recomputation at Age 62 of Credit for
4 A preponderance of the e vidence 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
Military Service of Current Annuitants); see Jackson v. Office of Personnel
Management , No. 97-3331 , 1997 WL 758780 , at *2 (Fed. Cir. Dec. 10, 1997).5
Under CSRS, an “annuitant” is defined as a former employee “w ho, on the basis
of his service , meets all requirements of this subchapter for title to annuity and
files claim therefor.” 5 U.S.C. § 8331 (9). To be eligible for a CSRS annuity, an
individual must have at least 5 years of creditable service and must serve at least
1 of the last 2 years of Federal servi ce in a position covered by the Civil Service
Retirement Act of 1954 . 5 U.S.C. § 8333 (a)-(b). Here, the a ppellant, who
became a Federal employee in 1981, was not a “current annuitant,” or even
eligible to apply for a CSRS annuity, on or by September 8, 1982 . IAF, Tab 6
at 35-40. Accordingly, we agree with the administrative judge’s determination
that sectio n 307(a) does not apply to the appellant. ID at 4. The appellant’s
assertion on review that he was “entitled” to an annuity on or before September 8,
1982, because he was already a Federal employee is unpersuasive and provides no
basis to disturb this fi nding.
¶9 The appellant also argues that, even if section 307(a) does not apply to him,
his annuity should be reduced pursuant to the alternative method described in
section 307(b) . PFR File, Tab 1 at 7-10. We disagree. Section 307 (b)
established an altern ate method of determining any reduction in a CSRS annuity
due to an annuitant’ s eligibility for OASI. 5 U.S.C. § 8332 note; Kerr v. Office of
Personnel Management , 29 M.S.P.R. 284 , 286 (1985), aff’d, 802 F.2d 469 (Fed.
Cir. 1986) (Table). However, it only applies to individuals described in
section 307(a), i.e., annuitants who retired on or before September 8, 1982 .
5 U.S.C. § 8332 note; Burdick v. Office of Personnel Management , 49 M.S.P.R.
216, 218 (1991) ; Hartness v. Office of Personnel Management , 30 M.S.P.R. 360 ,
5 The Board may rely on unpublished decisions of the U.S. Court of Appeals for the
Federal Circuit when, as here, it finds the court’s reasoning persuasive. See Mauldi n v.
U.S. Postal Service , 115 M.S.P.R. 513 , ¶ 12 (2011).
7
362 (1986 ). Here, because the appellant retired after September 8, 19 82, he is not
eligible for the alternate method of reducing his annuity described in
section 307(b). See Burdick , 49 M.S.P.R. at 218.
¶10 In light of the foregoing, we agree with the administrative judge’s
determination that OPM correctly reduced the appellant’s annuity upon his
becoming eligible for OASI benefits in 2015 because he did not timely make a
military service deposit. We further find no merit to the appellant’s c ontention
that he is entitled to an alternate reduction amount because he indisputably retired
after September 8, 1982. We have considered the appellant’s remaining
arguments regarding his belief that he is covered by section 307 of Pub. L.
No. 97-253, bu t find that they are contrary to the clear and controlling language
of the statute. Accordingly, we discern no basis to disturb the administrative
judge’s determination that the appellant has failed to show any error in OPM’s
final decision.
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 summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is mo st
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review th e law applicable to your claims and carefully follow all
6 Since the issuance of the initial decision in this matter, the Board m ay have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.
8
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to 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 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.
9
(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
to waiver of any requirement of prepayment of fees, costs, or other security. See
42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.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 in th is case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
10
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it mu st be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option appli es to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (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 d escribed in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.7 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(B).
7 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB de cisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195,
132 Stat. 1510.
11
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for th e Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protectio n Board appellants before the 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 thei r
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_RONALD_A_PH_0831_16_0234_I_1_FINAL_ORDER_1999387.pdf | 2023-02-03 | null | PH-0831 | NP |
3,618 | https://www.mspb.gov/decisions/nonprecedential/HAYES_STANLEY_SF_0752_18_0002_I_1_FINAL_ORDER_1999402.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
STANLEY HAYES,
Appellant,
v.
DEPARTMENT OF THE IN TERIOR,
Agency.
DOCKET NUMBER
SF-0752 -18-0002 -I-1
DATE: February 3, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL1
Brook L. Beesley , Alameda, California, for the appellant.
Scott Hulbert and Dusty Parson , Boise, Idaho, for the agency.
BEFORE
Cathy A. Harris , Vice Chairman
Raymond A. Limon, Member
Tristan L. Leavitt , Member
Member Li mon recused 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
dismissed his appeal as settled . For the reasons discussed below, we GRANT the
appell ant’s petition for review , REVERSE the administrative judge’s finding 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
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 parties did not intend for the settlement agreement to be entered into the
record for enforcement purposes , and AFFIRM the dismissal of the appeal as
settled.
BACKGROUND
¶2 The appellant filed a Board appeal, which the parties resolved by settlement
agreement. Initial Appeal File ( IAF), Tab 1, Tab 20 at 5-9. On March 19, 2018,
the agency submitted the agreement into the record. IAF, Tab 20. The same day,
the administrativ e judge issued an order, in which she notified the parties that she
would not enter the agreement into the record for enforcement purposes unless the
parties notified her, by March 22, 2018, of their intent that it be entered for that
purpose . IAF, Tab 21 at 1-2. On March 19, 2018 , the Western Regional Office
served the order on the agency electronically and on the appellant and his
representative by mail. Id. at 3. It is undisputed that n either party submitted a
timely response.
¶3 On March 23, 2018, the administrative judge issued an initial decision
dismissing the appeal as settled . IAF, Tab 22, Initial Decision (ID) at 1 -2. She
found that the agreement was lawful on its face and that the parties freely entered
into it , but was silent as to whether the parties intended for the Board to retain
jurisdiction for enforcement purposes. Id.
¶4 The appellant has filed a timely petition for review . Petition for Review
(PFR) File, Tab 1. The agency has submitted a response. PFR File, Tab 3.
DISCUSSION OF ARGUMENTS ON REVIEW
¶5 On review, the appellant challenges the administrative judge’s decision not
to enter the agreement into the record for enforcement purposes. PFR File, Tab 1
at 1-4. He argues that the agency’s entering of the agreement into the record
presumptively established that the parties intended for the Board to retain
jurisdiction to enforce the agreement , and that the additional documentation he
submits on review further proves that was the parties’ intent. Id.
3
¶6 The Board retains jurisdiction to enforce a settlement agreement if it has
been entered into the record for that purpose. Delorme v. Department of the
Interior , 124 M.S.P.R. 123, ¶¶ 16, 21 (2017). If the parties ent er an agreement
into the record and it is approved by the administrative judge, it will be
enforceable by the Board unless the parties clearly specify that they do not want
Board enforcement . Stewart v. U.S. Postal Service , 73 M.S.P.R. 104 , 107 -08
(1997); see 5 C.F.R. § 1201.41 (c)(2)(i) (providing that a settlement agreement
will be made a part of the record , and the Board will retain jurisdicti on to ensure
compliance therewith, if the parties offer it for inclusion into the record and the
judge approves it). Although the agency offered the settlement agreement into
the record, there was no indication as to the appellant’s position concerning its
entry . IAF, Tab 20.
¶7 As for the supplemental information that the appellant provides on review,
generally, under 5 C.F.R. § 1201.115 , the Board will not consider evidence
submitted for the first time with the petition for review absent a showing that it
was unavailable before the reco rd was closed de spite the party’ s due diligence.
Avansino v. U.S. Postal Service , 3 M.S.P.R. 211 , 214 (1980) ; see also Banks v.
Department of the Air Force , 4 M.S.P.R. 268 , 271 (1980) (finding that the Board
will not consider an argument raised for the first time in a petition for review
absent a showing th at it is based on new and material evidence not previou sly
available despite the party’ s due diligence) . The appellant’s inability to
supplement the record before the deadline was attributable to the unreasonably
short period of time —3 days —he was given to receive and prepare a response to
the March 19, 2018 Order. IAF, Tab 21; see Lagreca v. U.S. Postal Service ,
114 M.S.P.R. 162 , ¶ 6 (2010) ( observing that the Board presumes a 5 -day mailing
time). He acted promptly after receiving the order to obtain and submit
additional information , which, for the reasons explained below, affects the
outcome of the appeal . PFR File, Tab 1 at 5-7; see Russo v. Department of
Veterans Affairs , 3 M.S.P.R. 345 , 349 (1980) (explaining that the Board will not
4
grant a petition for review based on ne w evidence absent a showing that it is of
sufficient weight to warrant an outcome different from that of the initial
decision). Accordingly, we consider the appellant’s additional arguments and
evidence submitted on review .
¶8 The appellant provides a two -page request for reconsideration that he filed
with the Western R egional Office on March 23, 2018 , explaining that the parties
jointly intended for the agreement to be entered into the record for enforcement
purposes. PFR File, Tab 1 at 5 -7. He also submit s a March 23, 2018 emai l from
the agency evidencing its concurrence with the appellant’s position.
PFR File, Tab 1 at 8. Similarly, i n its response, the agency avers that the parties
inten ded for the Board to retain jurisdiction over the settlement agree ment .
PFR File, Tab 3 at 4. Therefore, w e find that, when considering the parties’
submission on review, the record reflects that they intended for the Board to
retain jurisdiction over the settlement agreement . See Hester v. U.S. Postal
Service , 72 M.S.P.R. 149 , 151 -52 (1996) (relying on the statements of the parties ,
as reflected in the administrative judge’s recorded notes, to determine whether
they intended for the settlement agreement to be entered into the record for
enforcement purposes when the agreement was silent on that issue). We reverse
the administrative judge’s finding otherwise and enter the settlement agreemen t
into the record for enforcement purposes .2
2 On review, the agency argues that the appellant’s petition for review is moot because
it was in compliance with the settlement agreement. PFR File, Tab 3 at 3 -4. While a
party’s compliance with the settlement agreement may render a petition for enforcement
moot, Gingery v. Department of Veterans Affairs , 117 M.S.P.R. 354 , ¶ 18,
aff’d , 480 F. App’x 588 (Fed. Cir. 2012), the appellant has not filed a petition for
enforcement , PFR File, Tab 1 . In any event, the issue of compliance is not pro perly
before the Board. See Niday v. Department of the Army , 42 M.S.P.R. 673 , 679 (1990)
(dismissing a petition for enforcement as premature because the initial decision
dismissing the appeal as settled wa s not final ). If either party wishes to file a petition
for enforcement, it may do so with the Western Regional Office . See 5 C.F.R.
§ 1201.182 (a).
5
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
prompt ly 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 ou t, and should include the dates and results of any
communications between the parties. 5 C.F.R. § 1201.182 (a).
NOTICE OF APPEAL RIG HTS3
The initial decision, as supplemented by this Final Order, constitutes the
Board’s final decision in this matter. 5 C.F.R. § 1201.113 . You may obtain
review of this final decision. 5 U.S.C. § 7703 (a)(1). By statute, the nature of
your claims determines the time limit for seeking such review and the appropriate
forum with which to file. 5 U.S.C. § 7703 (b). Although we offer the following
summary of available appeal rights, the Merit Systems Protection Board does not
provide legal advice on which option is most appropriate for your situation and
the rights described bel ow do not represent a statement of how courts will rule
regarding which cases fall within their jurisdiction. If you wish to seek review of
this final decision, you should immediately review the law applicable to your
claims and carefully follow all filin g time limits and requirements. Failure to file
within the applicable time limit may result in the dismissal of your case by your
chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to yo ur particular case. If you have questions
3 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.
6
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circ uit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Peti tioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attor ney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that su ch action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
7
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 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 t han 30 calendar days
after your representative receives this decision. If the action involves a claim of
discrimination based on race, color, religion, sex, national origin, or a disabling
condition, you may be entitled to representation by a court -appoin ted lawyer and
to waiver of any requirement of prepayment of fees, costs, or other security. See
42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed throu gh the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receiv e
this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Wash ington, D.C. 20013
8
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5S W12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no cha llenge to the Board’s
disposition of allegations of a prohibited personnel practice described in
section 2302(b) other than practices described in section 2302(b)(8), or
2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial
review either with the U.S. Court of Appeals for the Federal Circuit or any court
of appeals of competent jurisdiction.4 The court of appeals must receive your
petition for review within 60 days of the date of issuance of this decision.
5 U.S.C. § 7703 (b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
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.
9
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Gu ide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warr ants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD:
Washington, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board | HAYES_STANLEY_SF_0752_18_0002_I_1_FINAL_ORDER_1999402.pdf | 2023-02-03 | null | SF-0752 | NP |
3,619 | https://www.mspb.gov/decisions/nonprecedential/RODRIGUEZ_PEREZ_JOSE_A_NY_0752_15_0013_I_1_FINAL_ORDER_1999448.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
JOSE A. RODRIGUEZ -PEREZ,
Appellant,
v.
DEPARTMENT OF VETERA NS
AFFAIRS,
Agency.
DOCKET NUMBER
NY-0752 -15-0013 -I-1
DATE: February 3, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL1
Ruy V. Diaz Diaz , Esquire, San Juan, Puerto Rico, for the appellant.
Ana M. Margarida , San Juan, Puerto Rico, for the agency.
BEFORE
Cathy A. Harris , Vice Chairman
Raymond A. Limon , Member
Tristan L. L eavitt , Member
FINAL ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
sustained his removal. Generally, we grant petitions such as this one only in the
following circumstances: the initial decision contains erroneous findings of
material fact; the initial decision is based on an erroneous interpretation of statute
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
require d to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c).
2
or regulation or the erroneous 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.2 5 C.F.R. § 1201.113 (b).
NOTICE OF APPEAL RIGHTS3
You may obtain review of this final decision. 5 U.S.C. § 7703 (a)(1). By
statute, the nature of your claims determines the time limit for see king such
review and the appropriate forum with which to file. 5 U.S.C. § 7703 (b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does 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
2 The administrative judge afforded the appellant mixed -case review rights. I nitial
Appeal File, Tab 34, Initial Decision at 13-15. However, this is not a mixed case
because the appellant has not r aised a claim of prohibited discrimination. See Hill v.
Department of the Air Force , 796 F.2d 1469 , 1471 (Fed. Cir. 1986) (holding that, when
the appellant presents a nonfrivolous allegation of prohibited discrimination before the
Board, the appeal is a mixed case , and the court’s jurisdiction is governed by 5 U.S.C.
§ 7703 (b)(2)). Acco rdingly, we have provided the appellant the proper review rights
here.
3 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board c annot advise which option is most appropriate in any matter.
3
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. 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).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washi ngton, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/prob ono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
4
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of you r discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. ____ , 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/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision . 5 U.S.C. § 7702 (b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative 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. 2 0013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washingto n, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the B oard’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.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 Circu it 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 oth er circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195,
132 Stat. 1510.
6
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD:
Washington, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board | RODRIGUEZ_PEREZ_JOSE_A_NY_0752_15_0013_I_1_FINAL_ORDER_1999448.pdf | 2023-02-03 | null | NY-0752 | NP |
3,620 | https://www.mspb.gov/decisions/nonprecedential/MCNEIL_SAMUEL_SF_3443_21_0277_I_1_FINAL_ORDER_1999472.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
SAMUEL MCNEIL,
Appellant,
v.
UNITED STATES POSTAL SERVICE,
Agency.
DOCKET NUMBER
SF-3443 -21-0277 -I-1
DATE: February 3, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL1
Samuel McNeil , Azusa, California, pro se.
Catherine V. Meek , Long Beach , California, 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 his appeal for lack of jurisdiction . On petition for review, the appellant
reargues that a purported Board -ordered medical examination in 1987 was never
conducted, his workers’ compensation claim was not approved, and that the
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
require d to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c).
2
agency committed fraud, but he does not otherwise address the administrative
judge’s finding s concerning the dispositive jurisdictional issue s in this 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 administrative
judge’s rulings during either the course of the appeal or the initial decision
were not consistent with required procedures or involved an abuse of discretion,
and the resulting error affected the outcome of the case; or new and material
evidence or legal argument is available that, d espite the petitioner’s due
diligence, was not available when the record closed. Title 5 of the Code of
Federal Regulations, section 1201.115 ( 5 C.F.R. § 1201.115 ). After fully
conside ring the filings in this appeal, we conclude that the petitioner has not
established any basis under section 1201.115 for granting the petition for review.
Therefore, we DENY the petition for review 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 foll owing summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
2 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise w hich option is most appropriate in any matter.
3
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applic able time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particu lar forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rul es of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding p ro bono representation
for Merit Systems Protection Board appellants before the 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 discriminati on. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 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 dec ision before
you do, then you must file with the district court no later than 30 calendar days
after your representative receives this decision. If the action involves a claim of
discrimination based on race, color, religion, sex, national origin, or a di sabling
condition, you may be entitled to representation by a court -appointed lawyer and
to waiver of any requirement of prepayment of fees, costs, or other security. See
42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district cou rts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may reque st review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the
EEOC ’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case,
and your representative receives this de cision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative 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 o f Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have rai sed
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8) , or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.3 The court of appeals must receive your petition fo r
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(B).
3 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit cou rt of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195,
132 Stat. 1510.
6
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Conta ct information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites .aspx .
FOR THE BOARD:
Washington, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board | MCNEIL_SAMUEL_SF_3443_21_0277_I_1_FINAL_ORDER_1999472.pdf | 2023-02-03 | null | SF-3443 | NP |
3,621 | https://www.mspb.gov/decisions/nonprecedential/MURPHY_ANDREW_C_CH_0752_16_0160_I_1_FINAL_ORDER_1999492.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
ANDREW C. MURPHY,
Appellant,
v.
DEPARTMENT OF VETERA NS
AFFAIRS,
Agency.
DOCKET NUMBER
CH-0752 -16-0160 -I-1
DATE: February 3, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL1
Ray Wilkins , St. Louis, Misso uri, for the appellant.
G.M. Jeff Keys , Esquire, St . Louis, Missouri, for the agency.
Michael E. Anfang , Esquire, Kansas City, Missouri, 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. Generally, we grant petitions such as this one
1 A nonprecedential order is one that the Board has determined does not add
significantly to the bo dy of MSPB case 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 iss ued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c).
2
only in the following circumstances: the initial decision contains erroneous
findings of material f act; the initial decision is based on an erroneous
interpretation of statute or regulation or the erroneous application of the law to
the facts of the case; the administrative judge’s rulings during either the course of
the appeal or the initial decision w ere not consistent with required procedures or
involved an abuse of discretion, and the resulting error affected the outcome of
the case; or new and material evidence or legal argument is available that, despite
the petitioner’s due diligence, was not avai lable when the record closed. Title 5
of the Code of Federal Regulations, section 1201.115 ( 5 C.F.R. § 1201.115 ).
After fully considering the filings in this appeal, we conclude that the petitioner
has not established any basis under section 1201.115 for granting the petition for
review. Therefore, we DENY the petition for review. Except as expressly
MODIFIED to vacate the administrative judge’s findings concerning an ex parte
commun ication, we AFFIRM the initial decision.
BACKGROUND
¶2 The appellant was employed as a Rating Veterans Service Representative
with the agency’s Veterans Benefit Administration. Initial Appeal File (IAF),
Tab 1 at 1. On June 18, 2015, the agency proposed his removal b ased on a charge
of falsifying G overnment records . IAF, Tab 7 at 8 -11. The charge was based on
16 specifications in which the agency alleged that on various dates the appellant
had improperly entered credit in the agency’s automated standardize d
performance elements nationwide (ASPEN) system. Id. at 8-10. By letter dated
December 9, 2015, the agency sustained 11 of the specifications and removed the
appellant, e ffective December 23, 2015. Id. at 4-7.
¶3 The appellant filed a Board appeal. IAF, Tab 1. During the proceedings
below, the appellant raised a claim that the agency denied him due process in
connection with the removal action and t he administrative judge allowed the
parties to submit briefs on the due process issue. IAF, Tabs 19 -20. The appellant
3
contended that the documents contained in the agency’s evidence file in su pport
of its removal action were so heavily redacted tha t he was denied a meaningful
opportunity to res pond to the charge . IAF, Tab 21 at 4. He further contended
that the deciding official was provided with an unredacted version of the agency
file. Id. In response, the agency did not dispute that the deciding official had
received an unredacted version of the evidence file, but maintained that the
redacted informatio n, which included veterans’ names and social security /claim
numbers, was not material and was not relied upon by the deciding official in
reaching her decision to remove the appellant. IAF, Tab 22 at 4 -5.
¶4 Without holding the appellant’s requested hearing, the administrative judge
issued an initial decision reversing the agency’s removal action. IAF, Tab 25,
Initial Decision (ID). The administrative judge found that the appellant was not
able to meaningfully rebut the specifications because the agency fai led to identify
the cases f or which it alleged that he had improperly entered credit . ID at 9, 11.
The administrative judge further found that deciding official’s receipt of
unredacted information in the materials relied upon that was not provided to the
appellant violated the appellant’s due process rights. ID at 11.
¶5 The agency has filed a petition for review. Petition for Review (PFR) File,
Tab 1. The appellant has opposed the agency’s petition. PFR File, Tab 4.
DISCUSSION OF ARGUME NTS ON REVIEW
The agency has complied with the interim relief order.
¶6 On March 7, 2017, the appellant filed a pleading in which he appears to
argue that the agency failed to comply with the interim relief order in the
February 27, 2017 initial decision by not issuing him a ppropriate notificat ion of
his return to duty , not responding to certain questions he had about his
reinstatement, and failing to rescind a July 15, 2015 memorandum barring him
from agency premi ses in connection with his removal. PFR File, Tab 3 at 12 , 19.
The initial decision ordered the agency to provide the appellant interim relief,
4
effective as of the date of the decision, including effecting his appointment wi th
pay and benefits. ID at 13. Here, with its petition for review, the agency
provided a Standard Form 50 showing that it had effected the appellant’s
appointment to the position of Rating Veterans Service Representative as of
February 27 , 2017, the effective date of the initial decision. PFR File, Tab 1
at 18. Further, the appellant’s own submission contains a letter from the agency
dated March 3, 2017, referencing that he was reinstated on February 27, 2017,
and that the agency had cont acted him on February 28, 2017 , to notify him that it
expected him to report to work on March 1, 2017, but that he had failed to do so .
PFR File, Tab 3 at 6. Accordingly, we reject the appellant’s contention that the
agency failed to comply with the interim relief order.
The administrative judge properly found that the appellant was not afforded due
process .
¶7 Before taking an appealable action that deprives a tenured Federal employee
of his property right in his employment, an agency must provide him with
minimum due process of law. Cleveland Board of Education v. Loudermill ,
470 U.S. 532 , 543 -46 (1985). Due process entitles the employee to oral or
written notice of the charges against him, an explanation of the employer’ s
evidence, and an opportunit y to present his side of the story. Id. at 546; see
5 U.S.C. § 7513 (b). In determining whether these requirements have been met ,
the Board analyzes whether a notice of proposed removal, along wi th the
supporting documentation attached thereto and contemporaneously provided to
the appellant, afforded him sufficient notice of the charges against him to enable
him to make a me aningful reply to the proposal. Alvarado v. Department of the
Air Force , 97 M.S.P.R. 389 , ¶ 8 (2004). The Board also looks to whether new
and material information was introduced by means of an ex parte communication
to the d eciding official, which would violate the due process guarantee of notice.
Stone v. Federal Deposit Insurance Corporation , 179 F.3d 1368 , 1376 -77 (Fed.
Cir. 1999). A due process violation entitles an employee to a new and
5
constitutionally correct removal proceeding. Ward v. U.S. Postal Service ,
634 F.3d 1274 , 1279 (Fed. Cir. 2011).
¶8 Here, the agency’s June 18, 2015 notice of proposed removal includes
16 unnumbered specifications which identify various dates between December 15,
2014, and February 27, 20 15, on which it contends that the appellant improperly
entered in the ASPEN system certain credit for work he performed . IAF, Tab 7
at 8-10. The specifications in the proposal , however, do not indicate to which
veteran or case the credits pertain ed.2 Id. Instead , the proposal notice informed
the appellant that he could review the material s relied upon by the agency in
support of its charge . Id. at 10. The agency’s evidence file is confusing and is
not indexed, arranged in chronological order , or tabbe d to correspond to the
specifications in the proposal notice. IAF, Tabs 7 -9, 11 -12. It also appears to
have been supplemented on at least two occasions after the deciding official
notified the appellant that he had reviewed additional information. IAF, Tab 11
at 7, Tab 12 at 118.
¶9 The appellant does not dispute th at he received the documents contained in
the agency’s evidence file. Thus, the issue is whether such documents provided
the appellant sufficient notice to allow him a meaningful oppor tunity to respond
to the charge .3 The administrative judge found that the documents were so
2 The specifications also do not clearly explain why the credits entered by the appellant
were improper by, for example, citing to agency policies that the agency contends the
appellant violated. IAF, Tab 7 at 8 -10.
3 On review, the agency does not offer any argument concerning how the proposal
notice and evidence file afforded the appellant a me aningful opportunity to respond.
Rather, the agency asserts that the administrative judge should have held a hearing on
the issue of whether the deciding official’s consideration of the unredacted evide nce
file was a material ex parte communication that violated the appellant’s due process
rights. PFR File, Tab 1 at 9. We disagree. The redacted information is relevant
because it would have allowed the appellant , as it did the deciding official, to dis cern
which cases were r eferenced in each specification of the proposal notice. Thus, the
primary issue is whether, despite the redacted nature of the documents, the appellant
was afforded a meaningful opportunity to respond.
6
heavily redacted as to deprive the appellant of an opportunity to respond. ID at 9,
11. We agree. As the administrative judge found, t he underlying records, which
redacte d the veterans’ names and claim numbers, do not identify t he cases for
which the appellant allegedly took improper credit. ID at 7, IAF, Tabs 7 -9,
11-12. It is also unclear which evidence pertain s to which specification. Indeed,
the appellant noted in n umerous written responses that the redacted documents
prevented him from providing a meaningful response. IAF, Tab 10 at 7, 71;
Tab 12 at 107, 112, 116; Tab 13 at 7. In particular, he noted that the redacted
documents prevented him from reflecting on wha t actions he took on each
veteran’s claims because he could not recall the ASPEN action numbers for each
case. IAF, Tab 12 at 112. The appellant also indicated that , because the agency’ s
specifications were unclear, it was possible, if not likely , that h e used the wrong
documents to respond to the specifications. IAF, Tab 10 at 7.
¶10 As the administrative judge noted, the agency appears to have provided the
appellant with a revised evidence file in which it identified each veteran by a
letter and specified certain pieces of evidence that correspond ed to each lettered
veteran. ID at 8 -9, IAF, Tab 7 at 47 -48. However, this too failed to provide the
appellant with sufficient notice because the supporting documents remained
redacted, it is not clear which of t he 14 letters assigned to the veteran s pertain ed
to which of the 16 unnumbered specifications in the proposal notice , and the
evidence is not otherwise clearly organized such that one can discern wh ich
evidence pertains to which specification . For example , the supporting evidence
for Veteran D as identified in the index includes ASPEN actions dated
February 18 and March 3, 2015. IAF, Tab 7 at 47. This appears to correspond to
the dates in the fifth specification in the proposal notice. Id. at 8. Howeve r, one
would presume Veteran D would correspond to the fourth specification as D is the
fourth letter of the alphabet . Further , the index only specified certain evidence
that corresponded to each veteran , not all of the evidence. Id. at 47 -48. The
speci fied evidence includes only ASPEN actions, or screen shots showing the
7
appellant’s actions as described i n the proposal notice. Id. Thus, such evidence
provided no more information than what was provided in the proposal notice and
similarly failed to provide any information that would have inform ed the
appellant of the details of the specific case to which the agency was referring in
each specification.
¶11 Based on the foregoing , we agree with the administrative judge that the
appellant was denied a meanin gful opportunity to respond to the agency’s charge
because the agency’s supporting documents denied him the ability to determine
whether he had, in fact, performed any work on the pertinent case and/or whether
he entered the appropriate credit for the work done on the case. ID at 8. In light
of this finding, we need not reach the issue of whether the deciding official’s
consideration of the unredacted evidence file amounted to an ex parte
communication. Accordingly, we vacate the administrative judge’s f indings to
the extent that he found a due process violation based on an ex parte
communication.
ORDER
¶12 We ORDER the agency to cancel the appellant’ s removal and to restore the
appellant effective December 23, 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.
¶13 We also ORDER the agency to pay the appellant the correct amount of back
pay, interest on back pay, and other benefits under the Office of Personnel
Management’s regulations, no later than 60 calendar days after the date of this
decision. We ORDER the appellant to cooperat e 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 pa y, interest due,
8
and/or other benefits, we ORDER the agency to pay the appellant the undisputed
amount no later than 60 calendar days after the date of this decision.
¶14 We further ORDER the agency to tell the appellant promptly in writing
when it believes it has fully carried out the Board’s Order and of the actions it has
taken to carry out the Board’s Order. The appellant, if not notified, should ask
the agency about its progress. See 5 C.F.R. § 1201.181 (b).
¶15 No later than 30 days after the agency tells the appellant that it has fully
carried out the Board’s Order, the appellant may file a petition for enforcement
with the office that issued the initial decision on this appeal if the appellant
believes that the agency did not fully carry out the Board’s Order. The petition
should contain specific reasons why the appellant believes that the agency has not
fully carried out the Board ’s Order, and should include the dates and results of
any communications with the agency. 5 C.F.R. § 1201.182 (a).
¶16 For agencies whose payroll is administered by either the National Finance
Center of the Department of Agriculture (NFC) or the Defense Finance and
Accounting Service (DFAS), two lists of the information and documentation
necessary to process payments and adjustments resulting from a Board decision
are attached. The agency is ORDERED to timely provide DFAS or NFC with all
docu mentation 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
9
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 RIGHTS4
The initial decision, as supplemented by this Final Order, constitu tes 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 fo llowing
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
regardin g which cases fall within their jurisdiction. If you wish to seek review of
this 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 appl icable time limit may result in the dismissal of your case by your
chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a par ticular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order 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.
10
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you su bmit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additi onal information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’ s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regard ing pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicia l or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrim ination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calen dar 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
11
you do, then you must file with the district court no later than 30 calendar days
after your representative receives thi s decision. If the action involves a claim of
discrimination based on race, color, religion, sex, national origin, or a disabling
condition, you may be entitled to representation by a court -appointed lawyer and
to waiver of any requirement of prepayment o f fees, costs, or other security. See
42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative 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
12
(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 p rohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal C ircuit 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.
Wash ington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
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.
13
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/pro bono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_L ocator/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 r equest for payment of back pay is complete. Missing documentation may
substantially delay the processing of a back pay award. More information may be found at:
https://wss.apan.org/public/DFASPayroll/Back%20Pay%20Process/Forms/AllItems.aspx .
NOTE: Attorneys’ fees or other non -wage payments (such as damages) are paid by
vendor pay, not DFAS Civilian Pay.
☐ 1) Submit a “SETTLEMENT INQUIRY - Submission” Remedy Ticket. Please identify the
specific dates of the ba ck pay period within the ticket comments.
Attach the following documentation to the Remedy Ticket, or provide a statement in the ticket
comments a s 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 cancel ed). ***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 pa y received by the employee upon separation.
Lump S um 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 receiv ed. The payroll office must collect the debt from the back pay award. The
annual leave will be restored to the employee. Annual leave that exceeds the annual leave
ceiling will be restored to a separate leave account pursuant to 5 CFR § 550.805(g).
NATIONAL FINANCE CENT ER CHECKLIST FOR BAC K 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 Protec tion 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 attache d.
h. Indicate the amount of Severance and Lump Sum Annual Leave Payment to be
collected (if applicable).
Attachments to AD -343
1. Provide pay entitlement to include Overtime, Night Differential, Shift Premium, Sunday
Premium, etc. with number of hours and dates for each entitlement (if applicable).
2. Copies of SF -50s (Personnel Actions) or list of salary adjustments/changes and amounts.
3. Outside earnings documentation statement from agency.
4. If employee received retirement annuity or unemployment, provide amount and address to
return monies.
5. Provide forms for FEGLI, FEHBA, or TSP deductions. (if applicable)
6. If employee was unable to work during any or part of the period involved, certification of the
type of leave to be charged and number of hours.
7. If employee retires at end of Restoration Period, provide hours of Lump Sum Annual Leave
to be paid.
NOTE: If prior to conversion, agency must attach Computation Worksheet by Pay Period and
required data in 1 -7 above.
The following information must be in cluded 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 tax able 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. | MURPHY_ANDREW_C_CH_0752_16_0160_I_1_FINAL_ORDER_1999492.pdf | 2023-02-03 | null | CH-0752 | NP |
3,622 | https://www.mspb.gov/decisions/nonprecedential/JORDAN_MARY_J_DC_0432_16_0370_I_1_REMAND_ORDER_1999500.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
MARY J. JORDAN,
Appellant,
v.
DEPARTMENT OF THE NA VY,
Agency.
DOCKET NUMBER
DC-0432 -16-0370 -I-1
DATE: February 3, 2023
THIS ORDER IS NONPRECEDENTIAL1
Kristen Farr , Esquire, and Rosemary Dettling , Esquire, Washington, D.C.,
for the appellant.
Crista Kraics , Quantico, Virginia, 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 her removal under 5 U.S.C. chapter 43 . For the reasons discussed
below, we GRANT the appellant’s petition for review, VACATE the initial
decision, and REMAND the case to the Washington Regional office for further
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
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
adjudication consistent with Santos v. National Aeronautics & Space
Administration , 990 F.3d 1355 (Fed. Cir. 2021).
BACKGROUND
¶2 The following facts are not in dispute. The appellant was previously
employed as a Financial Management Analyst, NH -0501 -03, in Quantico ,
Virginia. Initial Appeal File (IAF) , Tab 1 at 2. Her position wa s covered under a
Contribution -based Compensation Appraisal System (CCAS), which is similar to
a traditional performance -based appraisal system. IAF, Tab 7 at 124-205; see
generally 5 U.S.C. § 470 3 (authorizing OPM to conduct demonstration projects);
Civilian Acquisition Workforce Personnel Demonstration Project, Department of
Defense, 64 F ed. Reg. 1426 -01 (Jan. 8, 1999 ). Under the CCAS, an employee ’s
performance is assessed based on her overall contribution to the agency ’s mission
in six contribution factors , which is expressed as a numerical “contribution
score. ” Id. at 108, 184; IAF, Tab 23 at 2. If an employee ’s contribution score
during an appraisal period is less than her expected contribu tion level, she may be
placed on a Contribution Improvement Plan (CIP) to provide her with a
reasonable opportunity to improve her performance in the identified factors. IAF,
Tab 7 at 189 -90; Tab 23 at 2. If the employee ’s performance does not sufficient ly
improve during the CIP period , the agency may take an action, including a
reduction in pay or grade (a change to a lower “broadband level ”), a
reassignment, or removal. IAF, Tab 7 at 190; id. at 164-65, 182-83.
¶3 On August 25, 2015, the appellant was inf ormed that her contribution was
unacceptable in all six contribution factors and was placed on a 60 -day CIP. Id.
at 69-79. By letter dated December 11, 2015, the agency informed the appellant
that she met the expectations for improvement in contribution factor 3, but her
performance continued to remain unacceptable in contribution factors 1, 2, 4, 5,
and 6 at the end of the CIP, and proposed her removal. Id. at 52 -58. After
reviewing the written response and accompanying exhibits provided by the
3
appella nt’s attorney, the deciding official sustained the appellant ’s removal by a
letter dated February 10, 2016. Id. at 22 -50.
¶4 The appellant timely appealed her removal to the Board. IAF, Tab 1. After
holding the appellant ’s requested hearing, the administra tive judge issued an
initial decision affirming the agency ’s removal action. IAF, Tab 25, Initial
Decision (ID) at 1, 37. In the decision, the administrative judge determined the
following: the agency ’s performance appraisal system was approved by the
Office of Personnel Management (OPM); the appellant ’s performance standards
were valid; the agency communicated the appellant ’s performance expectations to
her at the beginning of the appraisal period; the agency warned the appellant of
the inadequacies of her performance and provided her with an adequate
opportunity to improve her performance; and the appellant ’s performance
remained unacceptable in three of the six contribution factors during the CIP
period.2 ID at 23-29. The administrative judge also de nied the appellant ’s
affirmative defens es of discrimination on the base s of age and race, and reprisal
for engaging in equal employment opportunity (EEO) activity. ID at 30-36. The
appellant has filed a petition for review, and the agency has not filed a response.
Petition for Review (PFR) File, Tab 1.
2 In the initial decision , the administrative judge noted that even though the proposal
letter indicated that the appellant’s performance in contribution factor 6 was
unacceptable, it also concluded that the appellant “minimally met [contribution]
Factor 6” during the CIP period. ID at 4 n.2; IAF, Tab 7 at 56. Consequently, she
determined that the agency failed to demonstrate that the appellant’s performance was
unacceptable in this contribution fac tor. ID at 4 n.2 . We see no reason to disturb this
finding on review. Additionally, although a heading in the initial decision states that
the appellant’s performance failed to meet the established performance standards in
four critical elements, the discussion and findings that follow make clear that the
administrative judge addressed the four remaining contribution factors and ultimately
found that the appellant failed to meet the requirements for three of them (contribution
factors 1, 2, and 4). ID at 24 -29. Any error in this misstatement was inadvertent and
harmless , and did not affec t the outcome of the decision. See Panter v. Department of
the Air Force , 22 M.S.P.R. 281 , 282 (1984) (finding that an adjudicatory error that was
not prejudicial to a party ’s substantive rights provided no basis for reversal of an initial
decision).
4
DISCUSSION OF ARGUME NTS ON REVIEW
¶5 As an initial matter, we note that although the administrative judge
correctly identified the performance system at issue in this appeal as a CCAS, she
applied the element s of a typical chapter 43 appeal. ID at 21 -23; see Thompson v.
Department of the Army , 122 M.S.P.R. 372 , ¶¶ 3, 7 (2015) . Th e Board has
recognized that the elements an agency must prove to prevail in an appeal of a
CCAS contribution -based action are somewhat different than those in a traditional
performance -based action under chapter 43, but that contribution -based actions
are still appealable to the Board under 5 U.S.C. chapter 43. Thompson ,
122 M.S.P.R. 372 , ¶ 3; Lin v. Department of the Air Force , 2023 MSPB 2 ,
¶¶ 12-18. Under the CCAS at issue in this appeal, the agency was required to
show the following by substantial ev idence:3 (1) it notified the appellant that she
would be placed on a CIP; (2) it informed her of what she must do during the CIP
to demonstrate acceptable contribution and warned her that failure to do so could
result in an adverse action; (3) it gave her a reasonable opportunity to
demonstrate acceptable contribution during the CIP; and (4) the appellant ’s
contribution was unacceptable during the CIP. Thompson , 122 M.S.P.R. 372 , ¶ 7.
The appellant does not assert that she was unaware of the applicable elements or
burdens in her performance -based adverse action appeal.4 Nonetheless, after
3 Contrary to the appellant’ s assertion on review, PFR File, Tab 1 at 6, the applicable
standard in performance -based actions such as the one at issue in this appeal is a
substantial evidence standard. See Thompson , 122 M.S.P.R. 372 , ¶ 7. Substantial
evidence is the “degree of relevant evidence that a reasonable person, considering the
record as a whole, might accept as adequate to support a conclusion, even though other
reasonable persons might disagree.” 5 C.F.R. § 1201.4 (p).
4 The appellant asserts that the administrative judge should have considered the
applicable factors from Dougla s v. Veterans Administration , 5 M.S.P.R. 280 (1981), in
assessing the reasonableness of the agency’s removal decision. PFR File, Tab 1 at 6 -7.
However, it is well settled that the Douglas factors do not apply in performance -based
adverse action appeals under chapter 43. Lisiecki v. Merit Systems Protection Board ,
769 F.2d 1558 , 1566 -67 (Fed. Cir. 1985); Lee v. Department of Labor , 110 M.S.P.R.
355, ¶ 12 (2008).
5
considering the facts of this case, we find that the application of the above
standards would not change the result and therefore we modify the initial decision
accordingly.
The administrative judge correctly determined that, under the law in effect at the
time, the agency satisfied its burd en of proving that the appellant was provided
with a reasonable opportunity to demonstrate accepta ble contribution during the
CIP period but her contribution level continued to remain unacceptable.
¶6 Regarding the first two elements detailed above, the appel lant does not
challenge the administrative judge’s findings that the agency notified her in
advance that she would be placed on the CIP, informed her of what she needed to
do during the CIP period to demonstrate acceptable contribution, and notified her
of the potential consequences if she failed to improve her contribution level
during the CIP period. ID at 4, 29; IAF, Tab 7 at 57, 72; Thompson ,
122 M.S.P.R. 372 , ¶ 7. On review, the appellant generally challenges the
administrative judge ’s findings that she was provided with a reasonable
opportunity to improve her contribution level during the CIP period and that her
performan ce nonetheless remained unacceptable. PFR File, Tab 1 at 8-13.
¶7 Regarding her claim that the CIP did not provide her with a reasonable
opportunity to improve her performance, the appellant first argues that the CIP
requirements were unreasonably onerous an d held her to an impermissible
absolute standard. Id. at 8-10. A n “absolute standard ” is a standard under which
a single incident of poor performance will result in an unsatisfactory rating on a
critical element. Jackson v. Department of Veterans Affair s, 97 M.S.P.R. 13 , ¶ 9
(2004). As an initial matter, the proposition that absolute performance standards
are per se invalid has been rejected by the Federal Circuit and the Board.
Guillebeau v. Department of the Navy , 362 F.3d 1329 , 1337 (Fed. Cir. 2004);
Jackson , 97 M.S.P.R. 13 , ¶¶ 11 -12. Regardless, there is no evidence in the record
suggesting that the requirements o f any of the factors held the appellant to an
absolute standard. Rather, the notice of proposed removal and the accompanying
spreadsheet maintained by the appellant ’s manager during the CIP period identify
6
that the appellant failed three o f the six assign ed tasks under contribution
factor 1, three of the six tasks under contribution f actor 2, and one of the four
tasks under contribution f actor 4.5 IAF, Tab 7 at 61 -64.
¶8 In determining whether an agency has afforded an appellant a reasonable
opportunity to d emonstrate acceptable performance, relevant factors include the
nature of the duties and responsibilities of her position, the performance
deficiencies involved, and the amount of time that is sufficient to enable the
employee to demonstrate acceptable per formance. Lee v. Environmental
Protection Agency , 115 M.S.P.R. 533 , ¶ 32 (2010); see Towne v. Department of
the Air Force , 120 M.S.P.R. 239 , ¶ 8 (2013) . The administrative judge provided a
detailed analysis of these relevant factors, noting that the appellant ’s perfo rmance
standards clearly described the performance expected of her and that the detailed
task descriptions in the CIP memorandum provided her with clear guidance and
objective benchmarks for success. ID at 23 -24; see Towne , 120 M.S.P.R. 239 , ¶
23. The administrative judge also found that the agency informed the appellant of
her performance deficiencies prior to the CIP, documented her deficiencies during
the CIP in emails and on a spreadsheet, and provided her with ongoing feedback
on her performance. IAF, Tab 7 at 35-50, 61-64, 69-79; ID at 29. The
appella nt’s supervisor also met with the appellant several times during the CIP
period and created a memorandum documenting what wa s discussed during at
least one of those meetings. ID at 6; IAF, Tab 7 at 56 -57, 66-67; Towne , 120
M.S.P.R. 239 , ¶ 20 (finding that an agency showed that it afforded a reasonable
5 The appellant’s claim that she was permitted “zero to four errors” for some tasks is
also not supported by the record. PFR File, Tab 1 at 8. Contribution factors 1 and 2
required that the appellant submit a number of different spreadshe ets, sli des, and
reports with, depending on the task, no more than two to four errors on the first draft,
and zero errors on the second draft . IAF, Tab 7 at 73 -75. The appellant also argues
that the 2-day limit for her to reply to emails from her manager was unr easonable. PFR
File, Tab 1 at 15; IAF, Tab 7 at 63, 77. However, this requ irement was related to
contribution factor 5 , which the administrative judge did not sustain, and thus is not at
issue on review. ID at 29.
7
opportunity to improve when it met with the appellant in person and provided
written and oral feedback). Finally, the CIP ran for the 60 days required by the
agency ’s performance management system. IAF, Tab 7 at 23, 72, 190.
¶9 The appellant also reasserts that the CIP was unreasonable because it
required her to complete tasks that were not typical job responsibilities for
Financial Management Analysts, such as providing written summaries of
meetings she attended and scheduling meetings with her supervisor to
demonstrate her competency with agency systems and programs. PFR File, Tab 1
at 9-11. The administrative judge considered and rejected this argument below,
crediting the testimony of the appellant ’s supervisor stating that the appellant was
properly apprised of these tasks in advance, and that these tasks were necessary to
measure t he appellant ’s proficiency and competency in her job duties. ID
at 26-27. We see no reason to disturb this finding on review. See Haebe v.
Department of Justice , 288 F.3d 1288 , 1302 (Fed. Cir. 2002) ( holding that the
Board must defer to an administrative judge ’s credibility determinations when
they are based on observing the demeanor of witnesses testifying at a hearing and
the Board may only o verturn such determinations when it has “sufficiently sound ”
reasons for doing so ).
¶10 Accordingly, we discern no basis for disturbing the administrative judge ’s
well-reasoned conclusion that the agency provided the appellant with a reasonable
opportunity t o demonstrate an acceptable contribution level during the CIP
period. See Crosby v. U.S. Postal Service , 74 M.S.P.R. 98 , 106 (1997) (finding
no reason to disturb the administrative judge ’s findings when she considered the
evidence as a whole, drew appropriate inferences, and made reasoned
conclusions); Broughton v. Department of Health & Human Services , 33 M.S.P.R.
357, 359 (1987) (same).
¶11 Next, the appellant challenges the administrative judge ’s conclusion that her
contribution at the end of the CIP period r emained inadequate. PFR File, Tab 1
at 10-13. Specifically, she argues that the administrative judge failed to consider
8
her improvements during the CIP period, noting that she managed to complete a
number of the assigned tasks for each of the factors for which her performance
was ultimately deemed inadequate. Id.; IAF, Tab 7 at 61 -64. As a result, she
argues that the administrative judge erred in concluding that her performance
warranted an unacceptable rating in any of the factors “as a whole, ” and
consequently, in concluding that her contribution remained unacceptable during
the CIP period. PFR File, Tab 1 at 10 -13.
¶12 An agency need not show that an employee ’s performance was unacceptable
on a majority of components of a critical element to prove unacce ptable
performance on the critical element as a whole. See, e.g. , Rogers v. Department
of Defense Dependents Schools , 814 F.2d 1549 , 1554 (Fed. Cir. 1987) (finding
that an unsatisfactory performance on one of six components of one critical
element and two of four components of another warranted an unacceptable rating
on both critical elements); Lee, 115 M.S.P.R. 533 , ¶ 37 (finding that
unsatisfactory performance in two of six components of one critical element
warranted an unacceptable rating in that element). Indeed, unacceptabl e
performance in only a single component of a critical job element can be sufficient
to justify removal for unacceptable performance. Wallace v. Department of the
Air Force , 879 F.2d 829 , 834 (Fed. Cir. 1989); see Shuman v. Department of the
Treasury , 23 M.S.P.R. 620 , 627 (1984) .
¶13 Here, the administrative judge provided detailed findings regarding the
appellant ’s numerous performance deficiencies during the CIP period. ID
at 24-28. Regarding the first contribution factor, the administrative judge
determined that the appellant fail ed to timely provide required summaries of
meetings, failed to satisfactorily complete exhibits as directed, and never
scheduled a meeting with her supervisor to demonstrate that she knew how to
navigate necessary systems for completing budget submission d ocuments even
though the CIP notice specifically instructed her to do so. ID at 24 -25; IAF,
Tab 7 at 52-53, 61-62, 74 . Regarding contribution factor 2, the administrative
9
judge noted that the appellant failed to provide summaries of spend plan meetings
for five of the six projects to which she was assigned. ID at 26. The appellant
also failed to timely complete revisions to work , and in one instance submitted a
report that still contained multiple errors after three rounds of revision, ultimately
requir ing her supervisor to complete the corrections he rself due to time
constraints. IAF, Tab 7 at 54, 62 ; ID at 26 -27. Regarding factor 4, the
administrative judge noted that the appellant failed to schedule a meeting to
demonstrate her competency with agenc y systems and programs for which she
was not seeking training, despite specific instructions to do so by her supervisor.
ID at 27-28; IAF, Tab 7 at 55, 63. Consequently, the appellant’s supervisor was
unable to assess her competency in those systems to d etermine whether the
appellant needed additional training. ID at 28.
¶14 In making these findings, the administrative judge made specific credibility
determinations based on her observations of the testimony and her review of the
documentary evidence in the record before her. ID at 24 -29. Accordingly, we
find no error in the administrative judge ’s conclusion that the agency met its
burden in proving that the appellant’s contribution level remained unacceptable in
contribution factors 1, 2, and 4 at the end of the CIP period, and we see no reason
to disturb these findings on review.
The appellant failed to prove her affirmative defense of reprisal for EEO activity.
¶15 The appellant also reasserts that she was removed in reprisal for engaging in
the EEO complain t process. PFR File, Tab 1 at 13-17. The record reflects that
the appellant filed an EEO complaint alleging discrimination on the bases of race,
age, and general allegations of reprisal in July 2014 and February 2015 , and
amended the latter complaint on August 31, 2015 , to include her placement on the
CIP. IAF, Tab 20 at 6; Tab 22 at 11 -13, 119 -24; Tab 24, Hearing Compact Disc
(testimony of the appellant) . As the administrative judge correctly identified, to
establish an affirmative defens e of reprisal for protected EEO activity the
appellant must first demonstrate that her EEO activity was a motivating factor in
10
the agency ’s action. Gardner v. Department of Veterans Affairs , 123 M.S.P.R.
647, ¶ 30 (2016) , clarified by Pridgen v. Office of Management and Budget , 2022
MSPB 31 , ¶¶ 23-24; Savage v. Department of the Army , 122 M.S.P.R. 612 , ¶ 51
(2015) , overruled in part by Pridgen , 2022 MSPB 31 , ¶¶ 23-25; ID at 30 -32.6 If
the appellant meets her burden, the agency then must show by preponderant
evidence that the action was not based on the prohibited personnel practice, i.e.,
that it still would have taken the contested action absent the discrim inatory or
retaliatory motive. Savage , 122 M.S.P.R . 612, ¶ 51.
¶16 The administrative judge determined that the appellant had engaged in
protected activity by filing EEO complaint s. ID at 32 -33. The administrative
judge also determined that the proposing official was aware of the appellant ’s
EEO complaint and knew that she was named in it, and that the appellant
amended her EEO complaint approximately 3 months prior to her proposed
removal. Id. However, in finding that the appellant failed to demonstrate that her
protected activity was a motivating factor in the agency ’s decision to remove her,
the administrative judge noted that aside from the close proximity in time
between the amending of her EEO complaint and her proposed and effectuated
removal, the appellant presented no evidence that any of the agency ’s actions
were motivated by a desire to retaliate against her for the filing of the EEO
complaint. ID at 33 -35. Instead, as the administrative judge observed, the close
proximity in time between the appellant’s 2014 and 2015 EEO complaints and
amendments, and her placement on the CIP and eventual removal can be
explained by the fact tha t the appellant filed or amended an EEO complaint each
time after she received a performance appraisal that identified concerns with her
performance. ID at 32 -33.
6 Because we agree with the administr ative judge’s finding that the appellant failed to
prove that her EEO activity was a motivating factor in her removal, we do not reach the
question of whether the appellant proved that retaliation was a “but -for” cause of the
removal action. See Pridgen , 2022 MSPB 31 , ¶¶ 20 -22, 29 -33.
11
¶17 Furthermore, t he administrative judge determined that the agency presented
ample evidence th at the appellant ’s significant performance deficiencies prior to
and during the CIP were the actual reason s she was removed. ID at 33-35; see
Gardner , 123 M.S.P.R. 647 , ¶ 34 (finding that the appellant failed to establish
EEO retaliation when, although she asserted that her supervisor knew about her
EEO complaint, the proposal notice was specific as to her misconduct).
Accordingly, we agree with the administrative judge ’s findings in this regard and
decline to reweigh this evidence on review. See Broughton , 33 M.S.P.R. at 359
(observing that mere reargument of factual issues already raised and properly
resolved by the administrativ e judge below do not establish a basis for review).7
Nevertheless, r emand is necessary to affor d the parties an opportunity to provide
evidence and argument concerning wheth er the appellant’s placement on the CIP
was proper.
¶18 During the pendency of the peti tion for review in this case, the U.S. Court
of Appeals for the Federal Circuit (Federal Circuit) held in Santos , 990 F.3d
at 1360 -61, that part of the agency’s burden under 5 U.S.C. chapter 43 is to
justify the institution of a performance improvement pla n (PIP) by proving by
substantial evidence that the employee’s performance was unacceptable prior to
that time. Following the issuance of Santos , the Board issued an Opinion and
Order in Lee v. Department of Veterans Affairs , 2022 MSPB 11, ¶ 15, which
incorporated the changes made by Santos and set forth the agency’s burden of
proof , concluding that in order to defend an action under chapter 43 the agency
must prove the following by substantial evidence: (1) OPM approved its
performance appraisal system and any significant changes thereto; (2) the agency
communicated to the appellant the performance standards and critical elements of
her position; (3) the appellant’s perfor mance standards are valid under 5 U.S.C.
7 The appellant does not appear to contest the administrative judge ’s finding that the
appellant failed to prove her affirmative defenses of discrimination on the bases of age
and race, and so we have not addressed them here.
12
§ 4302 (c)(1); (4) the appellant’s performance during the appraisal period was
unacceptable in one or more critical elements; (5) the agency warned the
appellant of the inadequacies in her performance during the appraisal period and
gave her an adequate opportunity to demonstrate acceptable performance; and
(6) after an adequate improvement perio d, the appellant’s performance remained
unacceptable in at least one critical element.
¶19 Although the appeal in Santos involved a performance -based adverse action
under a traditional performance -based appraisal system, we conclude that the
court’s reasoning applies equally to contribution -based adverse actions under
CCAS. See Lin , 2023 MSPB 2 , ¶ 19 (applying Santos to a performance -based
action arising out of a similar contribution -based system). The agency’s authority
to initiate a CIP under CCAS is predicated on “[i] nadequate contribution
assessment in any one contribution factor at any time during the appraisal period .
. . .” 64 Fed. Reg . at 1481 . Additionally, a CIP notice must explain how the
employee’s contribution scores are inadequate and what improvements are
required and inform her that she may face adverse action “ unless the contribution
increases to, and is sustained at, a higher level . . . .” Id.; cf. Santos , 990 F.3d at
1360 -61 (examining similar statutory language to conclude that that an agency
must justify institution of a PIP when an employee challenges a performance -
based remova l under chapter 43).
¶20 The Federal C ircuit’s decision in Santos applies to all pending cases,
including the instant case , regardless of when the events took place. Lee,
2022 MSPB 11, ¶ 16. Although the record in this appeal contains some evidence
indicating that the appellant’s contribution level leading up to the CIP was
unacceptable, see IAF, Tab 7 at 69-70, 81-98, we remand the appeal to give the
parties the opportunity to present argument and additional evidence on the issue,
see Lee , 2022 MSP B 11 , ¶¶ 15 -17. On remand, the administrative judge shall
accept argument and evidence on this issue and shall hold a supplemental hearing
if appropriate. Id., ¶ 17.
13
¶21 The administrative judge shall then issue a new initial decision consistent
with Santo s. See id . If the agency makes the additional showing required under
Santos on remand, the administrative judge may incorporate her prior findings on
the other elements of the agency’s case and the appellant’s affirmative defenses
in the remand initial d ecision. See id . However, regardless of whether the
agency meets its burden, if the argument or evidence on remand regarding the
appellant’s pre -CIP performance affects the administrative judge’s analysis of the
appellant’s affirmative defenses, she shou ld address such argument or evidence in
the remand initial decision. See Spithaler v. Office of Personnel Management ,
1 M.S.P.R. 587 , 589 (1980) (explaining that an initial decision must identify all
material issues of fact and law, summarize the evidence, resolve issues of
credibility, and include the administrative judge’s conclusions of law and her
legal reasoning, as well as the authorit ies on which that reasoning rests).
ORDER
¶22 For the reasons discussed above, we remand this case to the regional office
for further adjudication in acc ordance with this Remand Order.
FOR THE BOARD:
Washington, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board | JORDAN_MARY_J_DC_0432_16_0370_I_1_REMAND_ORDER_1999500.pdf | 2023-02-03 | null | DC-0432 | NP |
3,623 | https://www.mspb.gov/decisions/nonprecedential/ENGLISH_LEONARD_DE_1221_16_0484_W_1_FINAL_ORDER_1999507.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
LEONARD ENGLISH, JR.,
Appellant,
v.
SMALL BUSINESS
ADMINISTRATION,
Agency.
DOCKET NUMBER
DE-1221 -16-0484 -W-1
DATE: February 3, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL1
Leonard English, Jr. , Aurora, Colorado, pro se.
Ashley Obando , Esquire, James D. Cantlon , Esquire, and Sherrie
Abramowitz , 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 review of the initial decision, which
denied corrective action in this individual right of action (IRA) appeal.
Generally, we grant petitions such as this one only in the following
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
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
circumstances: the initial decision contains erroneous findings of material fact;
the initial decision is based on an erroneous interpretation of statute or regulation
or the erroneous a pplication of the law to the facts of the case; the administrative
judge’s rulings during either the course of the appeal or the initial decision
were not consistent with required procedures or involved an abuse of discretion,
and the resulting error affec ted the outcome of the case; or new and material
evidence or legal argument is available that, despite the petitioner’s due
diligence, was not available when the record closed. Title 5 of the Code of
Federal Regulations, section 1201.115 ( 5 C.F.R. § 1201.115 ). After fully
considering the filings in this appeal, we conclude that the petitioner has not
established any basis under section 1201.115 for granting the petition for review.
Therefore, we DENY the petition for review and AFFIRM the initial decision,
which is now the Board’s final decision. 5 C.F.R. § 1201.113 (b).
BACKGROUND
¶2 The appellant , a Surety Bond Guara ntee Specialist, filed this IRA appeal
alleging that, in reprisal for his filing of prior Board appeals and his protected
disclosures, the agency (1) issued him a level 2 (Below Expectations)
performance rating for fiscal year 2015, (2) charged him with ab sence without
leave (AWOL) from April 22 through May 17, 2016, and (3 ) failed to include him
in his supervisor’s “line of succession” (LOS) on March 11, 2016. Initial Appeal
File (IAF), Tab 1 at 2, 5-8, Tab 18.
¶3 After finding Board jurisdiction over the appeal, and based on the written
record because the appellant did not request a hearing, the administrative judge
denied the appellant’s request for corrective action. IAF, Tab 33, Initial Decision
(ID) at 2, 25. The administrative judge found that the three agency actions
described above were personnel actions under 5 U.S.C. § 2302 (a)(2)(A) and that
the appellant established that his Board appeals , which raised allegations of
whistleblower repris al, were protected activity under 5 U.S.C. § 2302 (b)(9)(A)(i)
3
and a contributing factor in the personnel actions . ID at 6-8. The administrative
judge also found that the appellant made three protected disclosures which were
contributing factors in the personnel actions but that the agency proved by clear
and convincing evidence that it would have taken the same actions , even absent
the prior Board appeals and disclosures . ID at 8-18. In this regard, the
administrative judge found that the agency’s evidence in support of its actions
was strong, any motive to retaliate was slight , modest, or not particularly strong ,
and there was no evidence regarding whether the agency took similar actions
against similarly situated employees who were not whistleblowers . ID at 19-25.
ANALYSIS
¶4 The appellant asserts that the agency’s reasons for placing him on AWOL
were not strong because it was reasonable for him to refuse to meet alone with his
supervisor, w ho had accused him of stalking her , and instead leave the workplace .
Petition for Review (PFR) File, Tab 3 at 5. He also contends that the reasons for
placing him on AWOL w ere not strong because such placement violat ed the
Master Labor Agreement (MLA) , which he claims provided that the agency ’s
senior management , and not his supervisors, should have made the determination
as to whether to place him on AWOL . Id. at 6-7, 11 -12, 19-20.
¶5 The administrative judge addressed the appellant’s placement on AWO L in
great detail in English v. Small Business Administration , MSPB Docket
No. DE-0752 -16-0485 -I-1, Initial Decision at 16-22 (Mar. 7, 2017 ) (0485 ID),
and incorporated those finding s into the initial decision in this case . ID at 24.
The administrative j udge found that the appellant never obtained authorization for
the absence s in question and that the provisions the appellant cited regarding the
MLA did not apply because he did not reasonably believe that the duties assigned
to him by his supervisor could possibly endanger his health or safety . 0485 ID
at 18-22. We agree with the administrative judge that the agency’s reasons for
4
placing the appellant on AWOL are strong and that the agency did not violate the
MLA . Thus, t he appellant has shown no e rror in this regard .
¶6 The appellant also asserts that the administrative judge should have
included as an issue in th is case his claim that the agency harassed him by issuing
letters excluding him from his supervisor’s LOS. PFR File, Tab 3 at 7. As set
forth above, the administrative judge addressed the appellant’s claim that the
agency did not include him in the LOS on March 11, 2016, and addres sed similar
claims involving earlier dates in English v. Small Business Administration , MSPB
Docket Nos. DE-1221-16-0135 -W-1, DE -1221 -16-0136 -W-1, Initial Decision
at 21-24 (June 6, 2016) (0135 ID), in finding, based in part o n the demeanor of
the appellant’s supervisor , that the agency’s evidence in support of those
decisions was “compelling.” 0135 ID at 22-24. The Board defers to an
administrative jud ge’s credibility determinations when they are based, explicitly
or implicitly, on observing the demeanor of the witnesses testifying at a hearing
and overturns 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) .2 The administrative judge identified the personnel actions that would be
considered in this case , which did not include harassment , IAF, Tab 18 at 1-3, and
found that any such allegations made in the appellant’s closing brief were
untimely raised , ID at 6. The appellant has not shown that the administrative
judge err ed in not considering this claim . See 5 C.F.R. § 1201.59 (c).
¶7 The appellant further generally asserts that the administrative judge did not
apply the guidelines set forth in Whitmor e v. Department of Labor , 680 F.3d 1353
2 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.
5
(Fed. Cir. 2012), for assessing whether an agency has met its b urden of proving
by clear and convincing evidence that it would have taken the same action in the
absence of the protected activity. In this regard, the appellant claims that the
administrative judge did not properly account for the absence of evidence th at the
agency took similar actions against employees who were not whistleblowers , i.e.,
the third factor set forth in Carr v. Social Security Administration , 185 F.3d 1318 ,
1323 (Fed. Cir. 1999), and incorrectly found that his supervisor , who placed him
on AWOL , had no knowledge of his April 24, 2016 letter to senior management
officials explaining his decision to “self remove ” himself from the workplace
based on alleged safety concerns and disclosing time and attendance abuse
because she knew of the fact of the disclosure , even if she had not seen or read its
contents . PFR File, Tab 3 at 5, 10 -11, 17, 28-29, 31-32; ID at 17. He also
contend s that his supervisor knew of that disclosure because the senior managers
who received it likely “talk[ed] to front line managers.” PFR File, Tab 3 at 6-8.
¶8 In Whitmore , 680 F.3d at 1368 , the U.S. Court of Appeals for the Federal
Circuit held that, whether evidence is sufficiently clear and convincing to carry
an agency’s burden of proof cannot be evaluate d by looking only at the evidence
that supports the conclusion reached; rather, evidence only clearly and
convincingly supports a conclu sion when it does so in the aggregate, considering
all the pertinent evidence in the record and despite the evidence that fairly
detracts from that conclusion . On review, t he appellant ’s allegations regarding
Whitmore appear to be addressed to personnel a ctions, such as his letter of
reprimand and 5 -day suspension, that are not relevant to this appeal. PFR File,
Tab 3 at 10-11. He has not otherwise shown that considerable countervailing
evidence was manifestly ignored , overlooked, or excluded by the admi nistrative
judge. See Whitmore , 680 F.3d at 1368 , 1376 .
¶9 In determining whether an agency has shown by clear and convincing
evidence that it would have taken the personnel action in the absence of
whistleblowing, the Board generally will consider the fol lowing factors ( Carr
6
factors): (1) the strength of the agency’s evidence in support of its action; (2) the
existence and strength of any motive to retaliate on the part of the agency
officials who were involved in the decision; and (3) any evidence that the agency
takes similar actions against employees who are not whistleblowers but who are
otherwise similarly situated. Soto v. Department of Veterans Affairs , 2022 MSPB
6, ¶ 11; see Carr , 185 F.3d at 1323 . The appellant contends that the
administrative judge incorrectly applied Whitmore in analyzing the third Carr
factor, but we disagree. Although the court in Whitmore held that a fa ilure to
come forward with all reasonably pertinent evidence relating to Carr factor three,
to the extent such evidence exists, “may be at the agency’s peril” and that an
absence of such evidence may well cause the agency to fail to prove its case
overall, it also held that agencies do not have an affirmative burden to produce
evidence as to each and every one of the three Carr factors and that “the absence
of any evidence relating to Carr factor three can effectively remove that factor
from the analysis.” Whitmore , 680 F.3d at 1374 .
¶10 Here, the administrative judge found no evidence on the issue of whether
the agency had taken similar actions against similarly situated employee s who
were not whistleblower s, and found the factor neutral . ID at 23-25; 0485 ID
at 31, 49-50; 0135 ID at 22-24. In fact, the acting officials averred that none of
the other employees under their supervision had been AWOL or had attempted to
perform a “self -removal” like the appellant, or had a Level 2, Below Expectations
rating fo r fiscal year 2015 . IAF, Tab 25 at 14, 42, 45. Thus, there is some
evidence presented by the agency suggesting that the re were no similarly situated
employees who were not whistleblowers and who were treated more favorably
than the appellant and that evidence relating to the third Carr factor did not,
therefore, exist . See Carr , 185 F.3d at 1326 (addressing the conduct and
circumstances surrounding the conduct in determining whether a comparison
employee is similar to the disciplined employe e). In sum, we find that the
appellant has shown no error in the administrative judge ’s analysis on this issue .
7
Cf. Mithen v. Department of Veterans Affairs , 122 M.S.P.R. 489, ¶ 36 (2015)
(finding that a lack of evidence concerning similar employees who were not
whistleblowers did not undermine the agency’s clear and convincing evidence
when the evidence in support of the action was strong and the motive to retaliate
was very weak ), aff’d, 652 F. App’x 971 (Fed. Cir. 2016).
¶11 The appellant’s arguments regarding the actual or imputed knowledge by
his supervisor of the April 24, 2016 disclosure is similarly without merit. The
administrative judge addressed this disclosure in great detail in this case and in
English v. Small Business Administration , MSPB Docket No. DE-0752 -16-0485 -
I-1. ID at 9-10, 17 -18; 0485 ID at 16, 34-37. The administrative judge found that
this disclosure was made after the performance rating and LOS decision s were
made and thus could not have been a contributing factor in those actions . ID at 9,
17-18; see Mason v. Department of Homeland Security , 116 M.S.P.R. 135, ¶ 27
(2011 ). Regarding the appellant’s April 22 through May 17, 2016 placement on
AWOL , the administrative judge found that the appellant’s placement on AWOL
already was underway before the April 24, 2016 disclosure and, to the extent that
the decision to keep h im on AWOL followed his April 24, 2016 letter, his
supervisor was not aware that the appellant had made a d isclosure of time and
attendance abuse in the lengthy 11-page, “seemingly rambling” letter, but merely
knew of the letter’s existence because she was asked about the appellant’s
departure and absence from the office based on his claim that his workplace wa s
unsafe . ID at 9-10, 17-18.
¶12 The appellant has shown no error in the administrative judge’s findings
regarding the agency’s knowledge of the April 24, 2016 disclosure. An employee
may demonstrate that a disclosure was a contributing factor in a personn el action
through circumstantial evidence, such as evidence that the official taking the
personnel action “knew of the disclosure” and the personnel action occurred
within a period of time such that a reasonable person could conclude that the
disclosure wa s a contributing factor in the personnel action. 5 U.S.C. § 1221 (e).
8
Thus, to prove that a disclosure was a contributing factor in a personnel action, an
appellant only need demonstrate that the fact of, or the content of, the protected
disclosure was one of the factors that tended to affect the personnel action in any
way. See Mastrullo v. Department of Labor , 123 M.S.P.R. 110 , ¶ 18 (2015) .
Here, the administrative judge correctly concluded that, although the appellant’s
supervisor may have been aware of the fact that the appe llant had submitted a
letter to senior management explaining why he decided to remove himself from
the workplace , the appellant did not show by preponderant evidence that the
supervisor also was aware that he had made a disclosure of time and attendance
abuse within the lengthy April 24, 2016 letter. ID at 9-10, 17 -18; cf. Ayers v.
Department of the Army , 123 M.S.P.R. 11 , ¶ 26 (2015) (finding that knowledge
that the appellant had filed an Inspector General complaint constituted awareness
of the fact of a disclosure) ; Rubendall v. Department of Health & Human
Services , 101 M.S.P.R. 599, ¶ 13 (2006) ( finding the knowledge element of the
test was met based on the fact of the disclosure when the deciding official
acknowledged rece ipt of the documents comprising the disclosure , as well as the
general nature of the disclosure being made ), superseded on other grounds by
statute , Whistleblower Protection Enhancement Act of 2012, Pub. L.
No. 112-199, 126 Stat. 1465 . Although the appellant speculates that senior
managers who received the April 24, 2016 letter told his supervisor about any
disclosures included therein , he has not submitted evidence in support of that
assertion. See Rumse y v. Department of Justice , 120 M.S.P.R. 259 , ¶ 15 (2013) ;
Jones v. Department of the Treasury , 99 M.S.P.R. 479 , ¶ 8 (2005) .3
3 Even assuming th at the appellant’s supervisor was aware of the fact that the appellant
had submitted a May 24, 2015 prohibited personnel practice complaint with the chief
human capital officer , PFR File, Tab 3 at 10; IAF, Tab 27 at 62-80, the supervisor
averred that she had not seen the complaint, IA F, Tab 25 at 15, 330 (referencing
item 5i), and we would nevertheless find, for the same reasons already set forth by the
administrative judge, that the agency proved by clear and convincing evidence that it
would have taken the same actions absen t the dis closure , ID at 19-25.
9
¶13 The appellant further asserts that the administrative judge erred when he
found that most of his disclosures , which he claims evidenced violations of law
and abuses of authority, were not protected . PFR File, Tab 3 at 6. Aside from his
disagree ment with the administrative judge’s explained findings, the appellant
does not identify the specific disclosures in question that he is challenging , nor
does he support his general allegat ion that his disclosures were protected with any
case law. See 5 C.F.R. § 1201 .114 (b) (requiring a petition for review to be
supported by references to applicable laws or regulations an d specific references
to the record ). Under these circumstances, we find that the appellant has shown
no error in the administrative judge’s determination that his disclosures were not
protected because they were either unspecific allegations of workplace safety
issues or other wise vague allegations that his supervisor was, for example, trying
to exert control over him or “volatile.” ID at 12-13, 15, 17 . Moreover, in many
of the situations in which the administrative ju dge found that the appellant’s
disclosures were not protected, he further found that , even assuming that the y
were protected, the appellant did not prove that they were a contributing factor in
the challenged personnel actions . ID at 12-14, 16-17.
¶14 Furth er, the appellant contends that, although the administrative judge
found that his prior Board appeals did not provide a strong motive to retaliate
because the appellant did not win those appeals, most of those initial decisions
are pending review by the full Board . PFR File, Tab 3 at 10. The administrative
judge found that the appellant ’s prior Board appeals were a contributing factor in
the personnel actions based on the knowledge -timing test. ID at 6-8.
Nevertheless, he found that , although the acting officials had a motive to retaliate
against the appellant based on his Board appeals, they did not have a particularly
strong motive to do so because there had been no finding by the administrative
judge , the Board, or the Federal Circuit that the acting officials committed any
wrongdoing. ID at 22. He concluded that, given the strong reasons for the
action s and only a modest motive to retaliate, along with the absence of evidence
10
as to whether the agency took similar actions against similarly situated e mployees
who were not whistleblowers, the agency met its burden of proving by clear and
convincing evidence that it would have taken the same actions absen t the Board
appeals . ID at 23-25; 0485 ID at 29-32; 0135 ID at 22-24.
¶15 The agency official s who were involved in the personnel actions submitted
declarations made under penalty of perjury indicating that the Board appeals had
no bearing on their decision s and that the y would have taken the same actions in
the absence of the Board appeals . IAF, Tab 25 at 14, 45. A declaration made
under penalty of perjury is entitled to considerable weight unless rebutted.
Verce lli v. U.S. Postal Service , 70 M.S.P.R. 322, 327 (1996 ); see Jones v.
Department of the Interior , 97 M.S.P.R. 282, ¶ 11 ( 2004 ) (finding sworn
statements made under penalty of perjury to be more persuasive than the unsworn
statements and wholly unsubstantiated arguments submit ted by the appellant ).
While we agree with the appellant that his Board appeals are still pending before
the full Board, the administrative judge correctly found that, when the personnel
actions were taken, no finding had been made of any wrongdoing by the acting
officials. Cf. Redschla g v. Department of the Army , 89 M.S.P.R. 589, ¶ 69 (2001)
(holding that the prope r perspective when weighing the gravity of the misconduct
against the motive to retaliate is the perspective as it appeared to the deciding
official when he took the action) . Thus, we find no error in the administrative
judge ’s determination that , althoug h the Board appeals constitut ed a modest
motive to retaliate, they were outweighed under the circumstances of this appeal
by the strength of the evidence in support of the actions and that there was no
evidence that the agency took similar actions against employees who were not
whistleblowers but who were otherwise similarly situated . See Whitmore ,
680 F.3d at 1374 (holding that an agency does not have an affirmative burden to
produce evidence as to each and every one of the three Carr factors ).
¶16 Finally, the appellant submits with his petition for review his fiscal year
2015 performance appraisal. PFR File, Tab 3 at 33-46. This document is already
11
included in the record. IAF, Tab 10 at 179-92. A petition for review should not
include documents that were part of the record below, as the entire administrative
record is available to the Board. 5 C.F.R. § 1201.114 (b).
¶17 Accordingly, we deny the appellant’s petition for review.4
NOTICE OF APPEAL RIG HTS5
You may obtain review of this final decision. 5 U.S.C. § 7703 (a)(1) . By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703 (b).
Although we offer the following 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
4 We have reviewed the relevant legislation enacted during the pendency of this appeal
and have concluded that it does not affect the outcome of the appeal.
5 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.
12
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the 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
13
you do, then you must file with the district court no later than 30 calendar days
after your representative receives this decision. I f the action involves a claim of
discrimination based on race, color, religion, sex, national origin, or a disabling
condition, you may be entitled to representation by a court ‑appointed lawyer and
to waiver of any requirement of prepayment of fees, costs, or other security. See
42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you su bmit 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 com mercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
14
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
other 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 personnel practice described in
section 2302(b) other than 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. 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.
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.
15
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.
Contact information for the courts of appeals can be 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 | ENGLISH_LEONARD_DE_1221_16_0484_W_1_FINAL_ORDER_1999507.pdf | 2023-02-03 | null | DE-1221 | NP |
3,624 | https://www.mspb.gov/decisions/nonprecedential/ENGLISH_LEONARD_DE_0752_16_0306_I_1_FINAL_ORDER_1999510.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
LEONARD ENGLISH, JR.,
Appellant,
v.
SMALL BUSINESS
ADMINISTRATION,
Agency.
DOCKET NUMBER
DE-0752 -16-0306 -I-1
DATE: February 3, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL1
Leonard English, Jr. , Aurora, Colorado, pro se.
Ashley E. Obando , Esquire, and Beverley E. Hazl ewood , 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 agency’s action suspending him for 30 days. Generally, we grant
petitions such as this one only in the following circumstanc es: the initial decision
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c).
2
contains erroneous findings of material fact; the initial decision is based on an
erroneous interpretation of statute or regulation or the erroneous application of
the law to the facts of the case; the administrative judge’s rulin gs 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 a vailable
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 ). Aft er 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 F inal Order to address the administrative judge’s
analysis of the appellant’s discrimination claims , we AFFIRM the initial decision.
DISCUSSION OF ARGUME NTS ON REVIEW
¶2 The agency suspended the appellant for 30 days from his Surety Bond
Guarantee Specialist position b ased on charges of (1) Failure to Follow the
Instruction of a Duly Recognized Authority (Supervisor) (two specifications) ,
(2) Continuing D isrespectful and Disruptive Conduct (one specification) ,
(3) Absence Without Leave (one specification ), and (4) Unprofessional Conduct
(five specifications ). Initial Appeal File (IAF), Tab 7 at 4-7, 22-27, Tab 14
at 19-20. Charges 1 and 3 arose from the appellant’s failure to report for duty
after his supervisor terminated his telework agreement based upo n her
determination that his performance had fallen below expectations. IAF, Tab 7
at 4. Charge 2 related to an email the appellant sent to agency management on
the same morning he refused to report to duty , in which he stated that he felt
unsafe in the office because his supervisor was volatile, hostile, and harassing
him. Id. at 6. The agency asserted that this email constituted an attempt to delay
and circumvent his supervisor’s instruction to report for duty and required t he
3
agency to expend resources to investigate his safety when he had no credible
claim of potential workplace violence . Id. at 7-8. Charge 4 set forth five
instances in which the appellant made unprofessional statements to his supervis or
and to agency customers . Id. at 6-7, 9.
¶3 On appeal, the appellant disputed the agency’s charges, alleged that the
action was based on reprisal for whistleblowing , and asserted that the action was
based on discrimination (race, color, sex, age, and rep risal for filing equal
employment opportunity (EEO) complaints) , harmful error , and reprisal for filing
Board appeals . IAF, Tab 1 at 4-5, Tab 6 at 5-23, Tab 18 at 5-15, 21 -32, Tab 20
at 2-6, Tab 22 at 2-4. After the appellant withdrew his request for a hearing, the
administrative judge affirmed the agency’s action. IAF, Tabs 45-46, Tab 49,
Initial Decision (ID) at 1, 40. The administrative judge found that the agency
proved one specification of charge 1, the sole specification underlying charge 2,
the sole specification underlying charge 3, which he found merged with charge 1,
and all five specifications underlying charge 4. ID at 3-16. He further found that
there was a nexus between the sustained charges and the efficiency of the service.
Id. Finally, t he administrative judge found that the appellant did not prove any of
his 30 affirmative defenses and t hat the 30 -day suspension was a reasonable
penalty. ID at 16-40. Regarding his whistleblowing reprisal claim, the
administrative judge held that only two of the appellant’s disclosures were
protected and a contributing factor in the suspension. ID at 27-34. Nevertheless,
the administrative judg e also found that the agency proved by clear and
convincing evidence that it would have suspended the appellant in the absence of
those disclosures. ID at 34-37.
¶4 The appellant has filed a timely petition for review of the initial decision .
Petition for Review (PFR) File, Tab 1. The agency has filed a response to the
petition for review, and the appellant has filed a reply to the agency’s response.
PFR File, Tabs 3-4. After the close of the record on review, PFR File, Tab 2, the
appellant filed a moti on to amend the bases for his discrimination claims, PFR
4
File, Tab 5. In this regard, the appellant seeks to withdraw his claims of
discrimination based on color, sex, and age. Id. at 4. The appellant has not ,
however, requested and obtained leave from the Clerk of the Board to file this
motion, see 5 C.F.R. § 1201.114 (a)(5), nor has he shown that his motion is based
on evidence and argument that was not readily available before the r ecord closed
on review , see 5 C.F.R. § 1201. 114(k). Therefore, we deny the appellant’s
motion. In any event, the administrative judge already considered these claims ,
and we find that permitting withdrawal of them at this stage of the proceeding
would be inappropriate . See Whitehurst v. Tennessee Valley Authority ,
43 M.S.P.R. 486, 493 -94 (1990) ; Moton v. U.S. Postal Service , 25 M.S.P.R. 639,
640 (1985) . To the extent that he wishes to pursue these claims in a different
forum, the appellant may request the Equal Employment Opportunity Commission
to review the Board ’s final decision on those claims or file a civil action in an
appropriate U.S. district court . See 5 C.F.R. § 1201.157 .
¶5 The appellant also has filed, after the record closed on review, a motion for
leave to file a n additional pleading. PFR File, Tab 10. He asserts that he has new
and relevant information that relates to his whistleblower allegations and shows
that a management official made false statements. Id. at 4-5.
¶6 Pleadings allowed on review include a petition for review, a cross petition
for review, a response to a petition for review, a response to a cross petition for
review, and a reply to a response to a petition for review. 5 C.F.R. § 1201.114 (a).
No other pleading will be accepted unless the party files a motion with and
obtains leave from the Clerk of the Board. 5 C.F.R. § 1201.114 (a)(5). Such a
motion must describe the nature of and need for the pleading. Id. Here, the
appellant has not sufficiently explain ed the nature of the information in question
and how this alleged new evidence would change the outcome of his a ppeal .
Therefore, we deny the appellant’s motion for leave to file an additional pleading.
5
The appellant has not shown that the administrative judge abused his discretion in
his rulings on witnesses .
¶7 The appellant contends that the administrative judge improperly denied his
request for two witnesses, “even though part of my defense involves them,” and
improperly denied his request for a third witness who allegedly was involved in
the decision -making pr ocess for the 30 -day suspension. PFR File, Tab 1 at 6-7.
¶8 An administrative judge has wide discretion under 5 C.F.R.
§ 1201.41 (b)(8), (10) to exclude witnesses whe n it has not been show n that their
testimony would be relevant, material, and nonrepetitious. Fox v. Department of
the Army , 120 M.S.P.R. 529, ¶ 42 (2014) . The administrative judge found that
the appellant did not show that the witnesses in question would provide relevant
testimony because they were essentially individuals to whom the appellant had
complained about the proposing and deciding officials and who had allegedly
failed to take action against those officials . IAF, Tab 44 at 2-3. We find that t he
appellant has not shown an abuse of discretion by the administrative judge.
The appellant has shown no error in the administrative judge’s fact ual finding s.
¶9 The appellant asserts that the administrative judge did not conduct an
analysis of the witnesses’ credibility under Hillen v. Department of the Army ,
35 M.S.P.R. 453 , 458 (1987), improperly found h is allegations to be “incredible,”
and made no reference to some of the evidence he submit ted. PFR File, Tab 1
at 5-8. The appellant does not, however, identify on review the particular
disputes of material fact for which he believes the administrative judge failed to
resolve issues of credibility. Moreover , the administrative judge provided a
persuasive explanation as to why he found not credible the appellant’s assertions
that he feared for his safety after his supervisor ordered him to report to work and
that his supervisor provoked him into making sarcas tic and unprofessional
comments . The administrative judge found that the appellant’s fear for his safety
was not reasonable because he made the claim when both he and his supervisor
were not in the office, and he subsequently provided the agency with only
6
conclusory assertions as to why he believed he was in a hostile and retaliatory
environment . ID at 8-9. The administrative judge further found that the
appellant’s supervisor did not provoke his sarcastic and unprofessional comments ,
as alleged by the a ppellant, because the appellant , among other things, made other
incredible arguments about his supervisor’s behavior . ID at 11-12. These
findings incorporate some of the Hillen factors, including the appellant’s
opportunity, as to place, time, proximity, and similar factors, to observe the event
or act at issue, the appellant’s character, the contradiction by or consistency with
other evidence in the case , and the inherent improbability of the appellant’s
version of events. See Hillen , 35 M.S.P.R. at 458-61; see also Hawkins v.
Smithsonian Institution , 73 M.S.P.R. 397, 403 -04 (1997) (finding that credibility
determinations made concerning one matter in a case may be considered in
determining credibility in another matter). In any event, an administrative
judge’s failure to mention all of the evidence of record or to address e very Hillen
factors does not mean that he did not cons ider them in reaching his decision.
Mithen v. Department of Veterans Affairs , 122 M.S.P.R. 489, ¶ 14 (2015) , aff’d,
652 F. App’x 971 (Fed. Cir. 2016) . Thus, the appellant has shown no error in the
administrative judge’s factual findings.
The appellant has not proven his discrimination claims .
¶10 The Age Discrimination in Employment Act states that “personnel
actions . . . shall b e made free from any discrimination based on age.” 29 U.S.C.
§ 633a (a). Similarly, Title VII requires that such actions “shall be made free
from any discrimination based on race, color, religion , sex, or national origin.”
42 U.S.C. § 2000e -16(a). Thus, an appellant may prove a claim of discrimination
by showing that such discrimination “play[ed] any part” in the way a decision
was made. Babb v. Wilkie , 140 S. Ct. 1168 , 1173-74 (2020); Pridgen v. Office of
Management and Budget , 2022 MSPB 31, ¶ 21. A finding that prohibited
discrimination played “any part” in the contested action is the same as a finding
of “motivating factor.” Pridgen , 2022 MSPB 31, ¶ 21. Although an appellant
7
who proves motivating factor and nothing more may be entitled to injunctive or
other forward -looking relief, to obtain the full measure of relief available under
the statute, including status quo ante relief, compensatory damages, or other
forms of relief related to the end result of an employment decision, the appellant
must show that discrimination was a “but-for” cause of the employment outcome.
Id., ¶ 22. One may prove discrimination under these different standards of proof
by various method s, including comparator evidence . Id., ¶¶ 23-24.
¶11 The appellant contends that he established a prima facie case of
discrimination based on race, color, age, and sex because he submitted
comparator information and the agency treated him in a disparate man ner as the
only member of his class that was disciplined. PFR File, Tab 1 at 8. He contends
that the administrative judge incorrectly found that he did not provide comparator
information and that such information can be found in his Exhibit HHH. Id.; IAF,
Tab 41 at 76-77. As set forth below, however, e ven considering this exhibit , we
find that the appellant has shown no error in the administrative judge’s
determination that the appellant did not prove his discrimination claims.
¶12 The primary basis for the appellant ’s discrimination claim s is his assertion
of disparate treatment. PFR File, Tab 1 at 8; see Savage v. Department of the
Army , 122 M.S.P.R. 612, ¶ 42 (noting that comparator evidence consists of
evidence that employees similarly situated to the appellant other than in the
characteristic on which the agency is forbidden to base a difference in treatment
received better treatment) , overruled in part by Pridgen , 2022 MSPB 31 ,
¶¶ 23-25. Although the appellant has identified other individuals in his office
who w ere not in his protected classes, IAF, Tab 41 at 2, 76-77, which he has
described as his hand -numbered pages 18 and 19 of Exhibit HHH, he has not
alleged or shown that these individuals were similarly situated to him, i.e., that
they, among other things, engaged in misconduct similar to the misconduct
underlying the 30 -day suspension in this case , see Hooper v. Department of the
Interior , 120 M.S.P.R. 658, ¶ 6 (2014) (finding employees similarly situated for
8
purposes of an affirmative defense of discrimination based on disparate treatment
when all relevant aspects of the appellant’s employment situation are “nearly
identical” to those of the comparator employee, including having engaged in
misconduct similar to the comparator employee without differentiating or
mitigating circumstances ). While the appellant alleged t hat a coworker failed to
follow the same procedures for which he received a reprimand in 2015, made
three unsubstantiated complaints against the appellant, engaged in a “loud,
profane laced tirade in the office,” and was suspected of time and attendance
abuse , IAF, Tab 18 at 16-17, t here is no indication that this individual engaged in
similar misconduct to that proven in this case or had a disciplinary record similar
to the appellant ’s disciplinary record . Havin g consider ed this and all of the other
evidence on this issue , we find that the appellant has not shown by preponderant
evidence that his 30 -day suspension was motivated by discriminatory animus .
¶13 The appellant also asserts that the administrative judge i mproperly accepted
the statements of the proposing and deciding officials that h is EEO activity
was not a factor in the agency’s action . PFR File, Tab 1 at 9. He further
contends that the deciding official was motiv ated to retaliate against him because
the deciding official provided an EEO affidavit only 15 days before he issued the
30-day suspension decis ion notice . Id. In addition, the appellant asserts that the
administrative judge did not consider several EEO affidavits . Id.
¶14 Claims of retaliation for opposing discrimination in violation of Title VII
are analyzed under the same framework used for Title VII discrimination clai ms.
Pridgen , 2022 MSPB 31, ¶ 30. Thus, the appellant must establish by
preponderant evidence that his EEO activity was at least a motivating factor in his
suspension . Id., ¶ 31. The administrative judge found that, although the
proposing and deciding official s were aware of the appellant’s May 2014 and
July 2015 EEO complaints, they submitted a sworn affidavit and declara tion made
under penalty of perjury indicating that the complaints had no bearing on their
decision s. ID at 19; IAF, Tab 47 at 21, 27-28, 46, 51 -52. Sworn statements, such
9
as affidavits and declarations, which are not rebutted are competent evidence of
the matters asserted therein. Aldridge v. Department of Agriculture ,
110 M.S.P.R. 21, ¶ 9 (2008). Moreover, t he administrative judge held that the
appellant did not prove this claim because the only evidence in support of his
claim was the acting officials’ knowledge of the complaints, the reasons and
evidence supporting the action w ere strong, and any inference of reprisal was
insubstantial. ID at 19. As set forth above, the administrative judge ’s failure to
mention all of the evidence of record does not mean that he did not consider it.
Mithen , 122 M.S.P.R. 489, ¶ 14. Thus, based on all of the evidence of record, we
find that the appellant has not shown that his EEO compla ints were a motivating
factor in his 30 -day suspension .2
The appellant has not shown that the action was based on harmful error .
¶15 The appellant contends that the agency committed harmful error when it
disciplined him for teleworking on November 3, 2015, even though the basis for
revo king his telework privileges did not become effective until November 5,
2015, and that his supervisor’s decision to revoke his telework privileges
otherwise violated the agency’s standard operating procedures. PFR File, Tab 1
at 9-10. An agency’s decision may not be sustained if the employee shows
harmful error “in the application of the agency’s procedures in arriving at such
decision.” 5 U.S.C. § 7701 (c)(2)(A); see 5 C.F.R. § 1201.56 (c)(1). To prove
harmful error, the appellant must show that the agency committed an error in the
application of its procedures that is likely to have caused the agen cy to reach a
conclusion different from the one it would have reached in the absence or cure of
the error. 5 C.F.R. § 1201. 4(r).
2 Because we affirm the administrative judge’s finding that the appellant failed to meet
his initial burden to prove that race, color, age, sex, or retaliation for EEO activity were
motivating facto rs in the agency’s decision, we need not resolve the issue of whether
the appellant prove d that discrimination and/or retaliation was a “but -for” cause of the
agency’s decision. See Pridgen , 2022 MSPB 31 , ¶¶ 20-22, 30 -33.
10
¶16 The error s identified by the appellant relate to his supervisor’s decision to
revoke his telework privileges . Thus, such error s predate d his failure to follow
his supervisor’s instruction and concern the circumstances under which the
charged misconduct occurred . The Board has held that such error s do not come
within the harmful error rule because they do not concern the procedures the
agency applied in arriving at its decision to suspend the appellant for the charged
misconduct. See Boatman v. Department of Justice , 66 M.S.P.R. 58, 63 (1994);
Livingston v. Department of the Air Force , 26 M.S.P.R. 273, 275 (1985). In any
event, even assuming that the agency committed a procedural error in revoking
the appellant’s telework privileges , the administrative judge correctly found that
the appellant did not have an unfettered right to disregard his supervisor’s
instructions; rather, he was required to obey the order, even if he believed it to be
improper, and protest its propriety later. ID at 20; see Howarth v. U.S. Postal
Service , 77 M.S.P.R. 1, 7 (1997) . Thus, he has not shown that the agency likely
would have reached a different conclusion in the absence or cure of any error.
The appellant has otherwise shown no basis for disturbing the administrative
judge ’s finding that he did not prove harmful error.
The appellant has not shown that the action was based on reprisal for filing
Board appeals .
¶17 The appell ant contends that the prior individual right of action (IRA)
appeal s he had filed with the Board , in which he alleg ed that the proposing and
deciding officials had retaliated against him for whistleblowing by issuing him
two letter s of reprimand and not placing him in the office’s line of succession ,
were contributing factor s in his 30 -day suspension and that the agency did not
prove that it would have suspended him in the absence of th ose appeals. PFR
File, Tab 1 at 14-15; ID at 25; IAF, Tab 18 at 50-53, 273 -78. He asserts that,
instead of finding that the acting officials only had a “substantial” motive to
retaliate based on the Board appeals, the administrative judge should have found
that they had a strong motive to retaliate. Id.
11
¶18 Under 5 U.S.C. § 2302 (b)(9)(A)(i), an employee who has the authority to
take any personnel action shall not, with respect to such authority, take any
personnel action because of the exercise of any appea l with regard to remedying a
violation of 5 U.S.C. § 2302 (b)(8). The administrative judge found that the
proposing official w as aware of one of the IRA appeals and that the deciding
official was a ware of both IRA appeal s, before they proposed and decided to
suspend the appellant. ID at 23. Given the relatively short period of time
between the dates on which the officials learned of the appeals and the appellant’s
suspension, the administrative ju dge found that the appellant proved that the
appeals were a contributing factor in his suspension. ID at 23-24. Nevertheless,
the administrative judge also found , based on an analysis of the factors set forth
in Carr v. Social Security Administration , 185 F.3d 1318 , 1323 (Fed. Cir. 1999),
and the principles set forth in Whitmore v. Department of Labor , 680 F.3d 1353 ,
1368 (Fed. Cir. 2012), that the agency proved by clear and convincing evidence
that it would have suspended the appellant even absent his Board appeals .3 ID
at 24-25. In this regard, the administrative judge found that the agency’s
evidence in support of its action was “quite strong,” and any motive to retaliate
was only “substantial,” and not “strong,” because he had found in the appellant’s
IRA appeals that the proposing and deciding officials did not retaliate against the
appellant. Id. In the absence of any evidence regarding whether the agency took
similar actions against similarly situated individuals who had not filed such Board
appeals, a factor that the administr ative judge found to be neutral in this case , the
administrative judge concluded that he was “left wi th the firm belief that the
3 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. Howeve r, 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.
12
agen cy would have taken the same actions even absent the appellant’s Board
appeals.” ID at 25. The appellant has not provided a persuasive basis for finding
that any motive to retaliate based on his Board appeals was “ strong ” in this case
rather than “substantial,” or for otherwise disturbing the administrative judge’s
findings on this issue, which considered the evidenc e in the record in the
aggregate, including evidence that fairly detracted from the conclusion that the
agency met its burden by clear and convincing evidence . ID at 24; see Whitmore ,
680 F.3d at 1368.
The a ppellant has not shown that the majority of hi s disclosures were protected
and a contributing factor in his 30 -day suspension .
¶19 The appellant asserts that his disclosures were a contributing factor in his
30-day suspension because the proposing and deciding official s knew or should
have known about t hose disclosures given that the Workf orce Relations Division,
which wrote the proposal and decision letters for th ose officials , “had to tell
[them] about my protected disclosures.” PFR File, Tab 1 at 12-16, 19-20. The
administrative judge found that , for m ost of the appellant’s alleged disclosures,
he merely asserted that he suspected that the proposing and deciding officials
knew of the disclosures, yet cited no evidence for his suspicions, and the officials
in question denied , under penalty of perjur y, knowing of the alleged disclosures.
ID at 27-32. The app ellant has shown no error in the se findings .
¶20 Moreover, u nder 5 U.S.C. § 1221 (e)(1), an employee may show that a
disclosure or protecte d activity was a contributing factor in a personnel action
through circumstantial evidence, such as evidence that the official taking the
personnel action “knew of the disclosure or protected activity” and the personnel
action occurred within a period of t ime such that a reasonable person could
conclude that the disclosure or protected activity was a contributing factor in the
personnel action . The appellant has provided n o support for his contention that
the contributing factor test can be met based solel y on a claim that an acting
official should have known about a disclosure. Cf. Bradley v. Department of
13
Homeland Security , 123 M.S.P.R. 547, ¶ 15 (2016 ) (finding that an appellant can
show that a protected disclosure was a contributing factor in a personnel action by
proving that the official taking the action had constructive knowledge of the
protected disclosures, i.e., that an individual with actual knowledge of the
disclosure influenced the official accused of taking the retaliatory action) .
¶21 In addition, the appellant contends that some of his disclosures evidenced
an abuse of authority. PFR File, Tab 1 at 11. He does not, however, identify
which of his many alleged disclosures he believes evidenced such an abuse of
authority. Id. Even assuming that some of the appellant’s disclosures evidence d
such abuse, the administrative judge correctly found that he did not prove that
any such disclosures were a contributing factor in his 30 -day suspension and that
the agency submitted clear and convincing evidence that it would have taken the
same action in the absence of his disclosures . ID at 27-37.
The agency proved by clear and convincing evidence that it would have taken the
same action in the absence of the appellant’s disclosures .
¶22 In determining whether an agency has shown by clear and convincing
evidence that it would have taken the personnel action in the absence of the
protected activity, the Board will consider 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 p art 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 Vete rans Affairs , 2022 MSPB 6 , ¶ 11; see Carr , 185 F.3d
at 1323 . The appellant contends , as to Carr factor two, that the administrative
judge did not consider all of his protected disclosures that would have caused
management officials to be strongly motivated to retaliate against him. PFR File,
Tab 1 at 5. The administrative judge found, however, that all but two of the
appellant’s disclosures were either not protected or were not a contributing factor
14
in his 30 -day suspension. ID at 27-34. Thus, there was no basis for the
administrative judge to address whether there was a motive to retaliate based on
any of these other disclosure s.
¶23 The appellant also asserts , regarding Carr factor three , that the
administrative judge ignored other surety bond specialists and a supervisor, who
he alleges engaged in more severe misconduct but who were not disciplined . PFR
File, Tab 1 at 5-6, 21. Carr factor three addresses any evidence that the agency
takes similar actions against employees who are not whistleblowers but who are
otherwise similarly situated to the appellant. Carr , 185 F.3d at 1323 . For an
employee to be considered similarly sit uated to an individual who is disciplined,
it must be shown that the conduct and the circumstances surrounding the conduct
of the comparison employee are similar to those of the disciplined individual. Id.
at 1326. The record does not establish that the individuals identified by the
appellant engaged in misconduct similar to that involved in this case. For
example, a s set forth above, t he appellant alleged that a coworker who was not a
whistleblower and who was not disciplined failed t o follow the same procedures
for which he received a reprimand in 2015, made three unsubstantiated
complaints against the appellant, engaged in a “loud, profane laced tirade in the
office,” and was suspected of time and attendance abuse . IAF, Tab 18 at 16-17.
Similarly, the appellant alleged that his supervisor was not a good leader, did not
bring people together, did not conduct regular staff meetings, had a “very
questionable” time and attendance record, made numerous errors, sent harassing
emails, lack ed candor, gave her friends p referential treatment, failed to maintain
employee privacy, and was generally incompetent . IAF, Tab 48 at 53-54. These
allegations are not similar to the misconduct the appellant engaged in that the
agency has proven in this case. Moreover, t he deciding official averred that
“[t]here were no comparators who had been charged with similar behavior as
identified in the [proposal] letter.” IAF, Tab 47 at 52.
15
¶24 Because it is the agency’s burden of proof, when the agency fails to
introduce relevant comparator evidence, the third Carr factor cannot weigh in
favor of the agency. Soto , 2022 MSPB 6, ¶ 18; see Ricke l 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[.]”) (i nternal citations omitted) . If the first two Carr
factors are only supported by weak evidence, the failure to present evidence on
the third Carr factor may prevent the agency from carrying its overall burden.
Smith v. Department of the Army , 2022 MSPB 4 , ¶ 30; see Miller v. Department
of Justice , 842 F.3d 1252 , 1262 -63 (Fed. Cir. 2016) (where an agency presented
little or weak evidence for the first two Carr factors, the lack of Carr factor three
evidence “if anything[] tends to cut slightly against the government”). A lthough
the appellant contends th at an absence of evidence regarding Carr factor three
“may well cause the agency to fail to prove its case overall ,” PFR File, Tab 1
at 20, we agree with the administrative judge that any absence of such evidence in
this case does not warrant a finding that the agency did not meet its burden , ID
at 36; see Whitmore , 680 F.3d at 1374 (holding that the absence of any evidence
relating to Carr factor three can effectively remove that factor from the analysis ).
As found by the administrative judge, the agen cy’s evidence in support of its
action was quite strong, and any motive to retaliate was slight at best for one of
the protected disclosures4 and moderate for the other disclosure. ID at 35-36.
4 The administrative judge found that the acting officials’ motive to retaliate against the
appellant for his April 18, 2014 disclosure that a coworker abused time and attendance
requirements was “only slight” because there was no evidence that anyone was
embarrassed, implicated, or more than slightly inconvenienced by the disclosure.
ID at 35. 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 them in their capacities as managers and
employees. Wilson v. Department of Veterans Affairs , 2022 MSPB 7 , ¶ 65; Smith ,
2022 MSPB 4 , ¶¶ 28-29. Nonetheless, to the extent the acting officials may have
harbored retaliatory animus against the appellant because of possible concerns that the
conduct that the appellant disclosed reflected badly on the agency, we find that any
motive to retaliate was slight.
16
Thus, we find that the appellant has shown no error in the a dministrative judge’s
determination that the agency proved by clear and convincing evidence that it
would have taken the same action in the absence of his disclosures.
¶25 Accordingly, we deny the appellant’s petition for review.5
NOTICE OF APPEAL RIG HTS6
The initial decision, as supplemented by this Final Order, constitutes the
Board’s final decision in this matter. 5 C.F.R. § 1201.113 . You may obtain
review of this final decision. 5 U.S.C. § 7703 (a)(1). By statute, the nature of
your claims determines the time limit for seeking such review and the appropriate
forum with which to file. 5 U.S.C. § 7703 (b). Although we offer the following
summary of available appeal rights, the 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.
5 We have reviewed the relevant legislation enacted during the pendency of this appeal
and have concluded that it does not affect the outcome of t he appeal.
6 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matte r.
17
(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. Cou rt of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any a ttorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropri ate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
18
receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems
Protecti on 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:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
19
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 p etition 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 fil e a 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 de cision.
5 U.S.C. § 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to 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.
20
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioner s and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our websit e at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney wi ll 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 | ENGLISH_LEONARD_DE_0752_16_0306_I_1_FINAL_ORDER_1999510.pdf | 2023-02-03 | null | DE-0752 | NP |
3,625 | https://www.mspb.gov/decisions/nonprecedential/ENGLISH_LEONARD_DE_1221_16_0135_W_1_FINAL_ORDER_1999519.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
LEONARD ENGLISH, JR.,
Appellant,
v.
SMALL BUSINESS
ADMINISTRATION,
Agency.
DOCKET NUMBER S1
DE-1221 -16-0135 -W-1
DE-1221 -16-0136 -W-1
DATE: February 3, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL2
Leonard English, Jr. , Aurora, Colorado, pro se.
Beverley E. Hazl ewood , Washington, D.C., for the agency.
BEFORE
Cathy A. Harris , Vice Chairman
Raymond A. Limon , Member
Tristan L. Leavitt , Member
1 The administrative judge joined these appeals upon finding that doing so would
expedite their processing without adversely affecting the interests of either party.
English v. Small Business Administration , MSPB Docket No. DE-1221 -16-0135 -W-1,
Initial App eal File, Tab 6 at 2; see 5 C.F.R. § 1201.36 (a)(2).
2 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has be en 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 his requests for corrective action in these individual right of action (IRA)
appeals. Generally, we grant petitions such as this one only in the following
circumstances: the initial decision contains erroneous findings of material fact;
the initial decision is based on an erroneous interpretation of statute or regulation
or the erroneous application of the law to the facts of the case; the administrative
judge’s rulings during either the course of the appeal or the initial decision
were not consistent with required procedures or involved an abuse of discretion,
and the resulting error affected the outcome of the case; or new and material
evidence or legal argument is available that, despite the petitioner’s due
diligence, was not available when the record closed. Title 5 of the Code of
Federal Regulations, section 1201.115 ( 5 C.F.R. § 1201.115 ). After fully
considering the filings in this appeal, we conclude that the petitioner has not
established any basis under section 1201.115 for granting the petition for review.
Therefore, we DENY the petition for review and AFFIRM t he initial decision,
which is now the Board’s final decis ion. 5 C.F.R. § 1201.113 (b).
BACKGROUND
¶2 The appellant , a Surety Bond Guarantee Specialist, filed these IRA appeals
alleging th at, in reprisal for his protected whistleblowing disclosures and other
protected activity , the agency decided not to include him in his office’s line of
succession and issued two letters of reprimand dated May 18, 2015, and July 20,
2015 . English v. Small Business Administration , MSPB Docket No. DE-1221 -16-
0135 -W-1, Initial Appeal File ( 0135 IAF), Tab 1 at 4-6, Tab 29 at 2, Tab 33
at 4-5; English v. Small Business Administration , MSPB Docket No. DE-1221 -16-
0136 -W-1, Initial Appeal File, Tab 1 at 4-5. The appellant alleged that his
supervisor had exclude d him from her line of succession , thereby excluding him
from the list of individuals designated to act for his supervisor in her absence, on
3
April 22, 2014, January 2, 2015, March 4, 2015, and September 29, 2015.
0135 IAF, Tab 28 at 11, Tab 33 at 5. The May 18, 2015 letter of reprimand
alleged that the appellant failed to make a decision or complete a review on a
bond guarantee application that was past the bid date. 0135 IAF, Tab 19 at 135.
The July 20, 2015 letter of reprimand , which found that the appellant had failed
to follow his supervisor’s instructions by failing to update his information in the
Emergency Notification System (ENS) and send his supervisor an email when
that task had been complet ed, had initially been proposed as a 5 -day suspension
with an additional specification that was not sustained by the deciding official
who issued the letter of reprimand . 0135 IAF, Tab 7 at 30-33, Tab 19 at 127-28.
¶3 After finding that the Board had jurisdiction over the appeals and holding a
hearing, 0135 IAF, Tab 33, the administrative judge denied the requests for
corrective action , 0135 IAF, Tab 57, Initial Decision (ID) at 1, 24. The
administrative judge found that th e appellant had engaged in activities protected
by 5 U.S.C. § 2302 (b)(8) -(9), including an April 18, 2014 disclosure, a
November 25, 2014 IRA appeal, a May 2014 letter to a U.S. senator, and a
Dece mber 2014 complaint to the agency’s Inspector General (IG) . ID at 9-11.
Nevertheless, he also found that, in those instances in which the appellant
established that a protected disclosure or activity was a contributing factor in a
personnel action, the a gency established by clear and convincing evidence that it
would have taken the same actions in the absence of the disclosures or activit y.
ID at 11-24.
DISCUSSION OF ARGUME NTS ON REVIEW
¶4 The appellant does not challenge the administrative judge’s findings
regarding the protected disclosures and activity, nor does he address on review in
any persuasive way the administrative judge’s findings that only some of those
protected activities were contributing facto rs in only some of the personnel
actions at issue in this case. ID at 11-12, 16 -18, 21-22 (finding , for example, that
4
only the appellant’s April 18, 2014 disclosure and his November 25, 2014 IRA
appeal were contributing factors in his May 18, 2015 letter of reprimand ).3
Instead, t he appellant’s assertions focus primarily on his disagreement with the
administrative judge’s finding that the agency proved by clear and convincing
evidence that it would have taken the same actions in the absence of his protect ed
disclosures and activity . Petition for Review (PFR) File, Tab 1 at 4-6, 8, 12-24.
In this regard, the appellant asserts that the administrative judge did not properly
analyze the factors for determining whether the agency has met this burden. In
making this determination , the Board will consider 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 wh o
did not engage in such protected activity, but who are otherwise similarly
3 The appellant asserts that the initial decision i s contradictory becaus e the
administrative judge found both that his April 18, 2014 disclosure was and was not a
cont ributing factor in the February 20, 2015 proposal to suspend him for 5 days , which
the agency ultimately mitigated in its July 20, 2015 letter of reprimand . Petition for
Review (PFR) File, Tab 1 at 11. Based on the context of the separate analyses of the
proposed 5 -day suspension and the resulting letter of reprimand, as well as what
appears to be a typographical error, we find that the administrative judge actu ally found
that the April 18, 2014 disclosure and November 2014 IRA appeal w ere contributing
factor s in the February 20, 2015 proposed 5 -day suspension, while the November 2014
IRA appeal and December 2014 IG complaint were contributing factors in the July 20,
2015 letter of reprimand . ID at 16-18.
The appellant also contends that agency officials who knew of his May 2014 letter to a
U.S. senator “probably” discussed the letter with the official who issued the May 18,
2015 letter of reprimand, PFR File, Tab 1 at 10-11, but he has not established any basis
for this speculation, nor has he shown any error in the administrative judge’s finding
that this official denied having such knowledge in his testimony at the hearing and there
was no evidence to the contrary. ID at 12; cf. Aldridge v. Department of Agriculture ,
110 M.S.P.R. 21 , ¶ 9 (2008) (holding that sworn statements that are not rebutted are
competent evidence of the ma tters asserted therein).
5
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).4
The appellant has not shown that the administrative judge erred when he found
that the evidence in support of the agency’s action s was strong .
¶5 The appellant contends that the agency’s evidence in support of its decision
to keep him out of the line of succession was not strong because, altho ugh his
supervisor testified that she “tries” to issue her line of succession on a quarterly
basis, there was no evidence to substantiate this testimony. PFR File, Tab 1
at 12. He thus implies that the timing of her issuance of the line of succession
determinations coincided with some of his prote cted disclosures and activity. Id.
¶6 The testimony identified by the appellant that his supervisor “tries” to issue
her line of succession on a quarterly basis suggests that this goal may not always
be attained , and any absence of corroborating evidence does not undermine the
supervisor’s otherwise unrebutted testimony that she tries to do so. In any event,
the administrative judge thoroughly addressed the supervisor’s testimony
regarding this alleged personnel action, f inding it clear, logical, and forthright,
and thereby basing his determination of her credibility explicitly on her
demeanor. ID at 23. The administrative judge found that the supervisor had
decided not to include the appellant in her line of su ccession because, among
other things, he was not a top performer and had conduct issues. ID at 22-23. In
addition, she testified that the appellant’s applications had many errors, he
was not performing administrative duties as she expected, and his relat ionship
with team members deteriorated after he “started acti ng unprofessionally with his
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, 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).
6
co-workers, refusing to help agent s, confronting co -workers, and ignoring her.”
ID at 23. The Board defers to an administrative judge’s credibility
determinations w hen they are based, explicitly or implicitly, on observin g the
demeanor of witnesses testifying at a hearing; the Board will overturn 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). We find
that this testimony , which the administrative judge found was credible based in
part on the witness’s de meanor, overcomes any lack of corroboration for a
quarterly line of succession goal or circumstantial evidence regarding the timing
of the actions.
¶7 The appellant also asserts that the agency’s evidence in support of its
May 18, 2015 letter of reprimand was not strong because he had engaged in th at
type of misconduct on numerous occasions but had never before been disciplined.
PFR File, Tab 1 at 13. The administrative judge addressed this argument and
found it unpersuasive. The administrative judge found that, although the
appellant testified that he had, on numerous occasions, taken action on an
application on the next business day after the deadline date, his testimony was
“evasive” and he did not explain why he could permissibly leave work the day
that a bid date would pass without taking action on the underlying application,
plan to decline the application on the next day he was in the office, and tell no
one that the bid date would pass during his absence . ID at 13-14. The appellant
has not provid ed on review any further explanation regarding these matters, nor
has he alleged or shown that the agency knew that he had missed the deadline on
prior occasions or otherwise shown that the administrative judge erred when he
found that the evidenc e in support of this action was strong.
¶8 In addition, t he administrative judge ’s findings regarding the strength of the
agency’s evidence in support of the May 18, 2015 reprimand are based in part on
his observin g the demeanor of the acting official. ID at 13. The appellant has not
7
established “sufficiently sound” reasons for overturning this credibility
determination, and we fin d no basis for disturbing these findings.
¶9 The appellant further contends that the misconduct underlying the July 20,
2015 letter of reprimand was the result of confusion. PFR File, Tab 1 at 14. The
administrative judge addressed this contention, finding that the appellant was
clearly on notice of the agency’s requirements because his supervisor had sent
him an email informing him that he needed to call into the office , rather than send
an email, when he would be absent due to illness. ID at 19-20. The appellant
has not explained how he remained confused after receiving this email and has
otherwise shown no error in this dete rmina tion by the administrative judge.
¶10 The appellant also asserts that the evidence in support of this letter of
reprimand was not strong because the only evidence the agency submitted
showing that he had not updated his telephone number in the ENS was a
memorandum his first -level supervisor wrote on the same da y she provided
testimony in an equal employment opportunity (EEO) proceeding . PFR File,
Tab 1 at 8. The administrative judge based his finding of stro ng evidence on the
testimony of the supervisor, which he found was not disputed. ID at 19. The
appellant’s assertion that this testimony was supported by , and consistent with , a
memorandum written by the supervisor corroborates that testimony. See Hille n v.
Department of the Army , 35 M.S.P.R. 453, 460 (1987 ).
The appellant has not shown that the administrative judge erred when he found
that the agenc y’s motive to retaliate was not strong .
¶11 The appellant asserts that the administrative judge did not fully consider all
of the reasons why the agency would be strongly motivated to retaliate against
him, including disclosures he made a lleging an abuse of authority to a named
agency official between May 2014 and July 2015 and an EEO complaint he filed.
PFR File, Tab 1 at 4-5, 17. The appellant further contends that the administrative
judge ignored testimony and evidence showing a lack of good character,
inconsistencies, evasiveness, and bias on the part of the acting officials , including
8
the acting officials ’ failure to consider mitigating factors in the decision to issue
the July 20, 2015 letter of reprimand and failure to follow stand ard operating
procedures (SOPs) in issuing the May 18, 2015 letter of reprimand . Id. at 5, 7-10,
17-20.
¶12 The appellant’s contention that the administrative judge failed to consider
other reasons for the agency ’s alleged motive to retaliate is based upon alleged
protected disclosures and activity that were not identified as issues in this case .
0135 IAF, Tab 33 at 1-4, Tab 48 at 3. His failure to object to these rulings below ,
however, precludes him from doing so on review. 0135 IAF, Tab 2 at 6, Tab 33
at 1 n.1; see, e.g., Crowe v. Small Business Administration , 53 M.S.P.R. 631 , 635
(1992) (finding that the appellant’s failure to object to the ex clusion of an issue in
response to an order allowing him to do so prevents him from raising the issue on
review). Although the appellant contends that the administrative judge ignored
certain testi mony and evidence, his failure to mention all of the testimony and
evidence in this case does not mean that he did not consider it. See Mithen v.
Department of Veterans Affairs , 122 M.S.P.R. 489 , ¶ 14 (2015), aff’d ,
652 F. App’x 971 (Fed. Cir. 2016) . In any event, we have considered the
appellant’s arguments and find that they do not demonstrate error in the
administrative judge’s determination that any motive to retaliate was slight or
moderate, nor do they overcome the ultimate finding that the agency proved by
clear and convincing evidence that it would have taken the same actions in
absence of the disclosures and protected activity. ID at 12-16, 18 -24. In this
regard, we note that t he acting official consider ed mitigating factors, including
the appellant’s performance , his 7 years of Federal service, and the lack of
notoriety of the offense, in mitigating the proposed 5 -day suspension to a July 20,
2015 letter of reprimand, a nd also indicated that she considered the appellant’s
written reply and the relevant factors set for th in Douglas v. Veterans
Administration , 5 M.S.P.R. 280, 305 -06 (1981), in considering the
appropriateness of the penalty . 0135 IAF, Tab 19 at 127, 131 -32. The appellant
9
does not identify on review the procedures he believes the agency did not follow
when it issued t he May 18, 2015 letter of reprimand. PFR File, Tab 1 at 7.
¶13 The appellant also asserts that an agency human resources specialist did not
have a fil e for the May 18, 2015 letter of reprimand, which the appellant claims
suggests that the acting official did not intend to issue the letter until he signed a
Merit Syste ms Protection Board mediation agreement during the morning of
May 18, 2015 . PFR File, Tab 1 at 8. After the a cting official issued the May 18,
2015 letter of reprimand, the appellant asked the human resources specialist for
the “evidence file.” 0135 IAF, Tab 11 at 24. The human resources specialist
informed the appellant on May 19, 2015, that he did not have an “evidence file”
and that the acting official “issued the letter of reprimand based on his
observations as a supervisor.” Id. We find that the appellant has not shown that
the absence of an “evidence file” in the possession of the human resources
specialist, or any other evidence of coordination between the acting official and
the human resources specialist, suggests a stronger motive to retaliate for this
protected activity than that found by the administrative judge, which was a
“moderate motive to retaliate against the appellant for his IRA appeal.” ID at 15.
Moreover, he has not explained why the apparently voluntary signin g of a
mediation agreement, as opposed to any other action of the appellant such as his
filing of a Board appeal, would trigger a retali atory motive on the part of this
particular acting official . Although the appellant contends that the letters of
reprim and related to routine office matters that the agency previously had not
counseled him about , PFR File, Tab 1 at 8, he has not alleged or shown that the
agency was aware of him engaging in such misconduct in the past . In any event,
the administrative judg e found that his misconduct was serious enough to have
caused “a company not to bid on a project and required another specialist to have
to re -underwrite the application,” ID at 12, the acting official took remedial
action when another employee allowed a b id date to pass on an application, and
the Board has held that a failure to follow supervisory instructions is a serious
10
charge, see Von Muller v. Department of Energy , 101 M.S.P.R. 91, ¶ 23, aff’d ,
204 F. App’x 17 (Fed. Cir. 2006), and modified on other grounds by Lewis v.
Department of Veterans Affairs , 113 M.S.P.R. 657 (2010) , overruled on other
ground s by Singh v. U.S. Postal Service , 2022 MSPB 15 , ¶ 9. Thus, we find that
the appellant has not shown that the misconduct at issue in his letter s of
reprimand was “routine” or unworthy of discipline .
¶14 The appellant further contends that an agency official who did not take any
of the personnel actions at issue in this case , but who was purportedly involved in
responding to his IG complaint, 0135 IAF, Tab 48 at 5, was “evasive” in
explaining why he did not conduct a “p roper” investigation into the appellant’s
IG complaint and did not follow SOPs when the appellant raised an allegation of
a hostile work environment in October 2014 , PFR File, Tab 1 at 9-10. The
appellant does not, however, specify why he believes the tes timony of this
official was evasive . See Tines v. Department of the Air Force , 56 M.S.P.R. 90 ,
92 (1992) (holding that a petition for r eview 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 record which demonstrates the error), review denied , 669 F.2d 613 (9th Cir.
1982) (per curiam). Thus, he has not established that any testimony this official
provided was not credible . In any event, the administrative judge did not rely on
any testimony from this individual in his analysis of the issues , and the appellant
has not alleged or shown that thi s individual was motivated to retaliate against
him on the basis of his protected disclosures and activity and influenc ed the
acting officials in this case.
¶15 The appellant asserts that the agency had a motive to retaliate for his
April 18, 2014 disclosure that a coworker abused time and attendance
11
requirements because the acting officials either hired the coworker or treated him
as a “preferred” employee . PFR File, Tab 1 at 17-18. The administrative judge
thoroughly addressed any motive to retaliate for this disclosure and found , based
on his assessment of the demeanor of the acting officials during their testimony ,
that there was no evidence that anyone was embarrassed , implicated, or
inconvenienced by the disclosure , and that only a slight motive to retaliate
existed . ID at 14-15, 20-21, 23 -24; see Haebe , 288 F.3d at 1301 . We have found,
however, that those responsible for the agency’s performance overall may well be
motivated to retaliate even if they are not directly implicated by the d isclosures ,
as the criticism reflects on them 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. Nonetheless, to the extent the
acting official s may have harbored retaliatory animus ag ainst the appellant
because of possible concerns that the conduct that the appellant disclosed
reflected badly on the agency, we find that any motive to retaliate was slight.
The appellant has not shown that the fact that the acting official s had hired th e
coworker created a motive on the part of the acting official s to retaliate for the
disclosure, nor has he identified evidence in the record supporting his claim that
the coworker was somehow “preferred.”
The appellant has not shown that the administrat ive judge erred in his analysis of
Carr factor three .
¶16 The appellant asserts on review that the administrative judge ignored
similarly situated employees who were not whistleblowers and who were not
disciplined in his analysis of the third Carr factor . PFR File, Tab 1 at 4, 22 -23;
see Carr , 185 F.3d at 1323 . In this regard, the appellant asserts that his
supervisor was similarly situated to him because she “engaged in many acts of
misconduct and violated many SOPs and agreements” without being disciplin ed,
and a coworker who was not a whistleblower was not disciplined “on the same
12
request I got the letter of reprimand for.” PFR File, Tab 1 at 22-23. In support of
this assertion the appellant references his Exhibit E. Id. at 23.
¶17 The administrative ju dge found that Carr factor three was neutral because
the agency did not identify comparators . ID at 15-16, 21, 24 . The appellant has
shown no error in this finding by the administrative judge. To the extent that the
appellant contends that the agency di d not take disciplinary action against
similarly situated employees who did not make protected disclosures or engage in
protected activity, his allegation that his supervisor violated SOPs and agreements
does not suggest that she engaged in misconduct similar to that which the agency
proved in this case. Moreover, t he Exhibit E referenced by the appellant in his
petition for review does not support h is contentions . Rather, it includes
correspondence between the appellant and the agency regarding his own May 18,
2015 letter of reprimand . 0135 IAF, Tab 11 at 2, 33-55. At best, this exhibit
includes an assertion by the appellant that he has let files sit in the queue for an
extra day in the past and that “other specialists do it to o.” Id. at 33. The exhibit
includes no further details regarding this bare allegation of misconduct by other
agency employees . See Carr , 185 F.3d at 1326 (explaining that, for an employee
to be considered similarly situated to an individual who is disciplined, it must be
shown that the conduct and the circumstances surrounding the conduct of the
comparison employee are simi lar to those of the disciplined individual ).
¶18 The appellant further contends that, although the administrative judge found
that a program support specialist was removed from processing applications when
she missed a bid date, that employee was not similarly situated to him because he
did not miss a bid date but merely did not decline a request fast enough, the
program support spec ialist was probably a GS -9 employee working outside her
job description, and she was simply returned to her regular duties and did not
receive a letter of reprimand. PFR File, Tab 1 at 21. We find that t he
administrative judge committed no error in his a nalysis of this matter. The
administrative judge found that evidence regarding the program support specialist
13
did not apply to Carr factor three because the record did not reflect whether th at
individual made whistleblowing disclosures. ID at 15. Instea d, the
administrative judge found that any evidence regarding the agency’s actions
affecting the program support specialist supported the acting official’s testimony
that he does not tolerate employees missing bid dates , and therefore supported a
determina tion that the evidence in support of the action was strong . ID at 15-16.
¶19 Because it is the agency’s burden of proof, when the agency fails to
introduce relevant comparator evidence, the third Carr factor cannot weigh in
favor of the agency. Soto , 2022 MSPB 6 , ¶ 18; see 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 agree with the
appellant that , in some cases, an absence of evidence regarding Carr factor three
“may well cause th e agency to fail to prove its case overall .” PFR File, Tab 1
at 20. If the first two Carr factors are only supported by weak evidence, the
failure to present evidence of the third Carr factor may prevent the agency from
carrying its overall burden. Smith , 2022 MSPB 4 , ¶ 30; see Miller v. Department
of Justice , 842 F.3d 1252 , 126 2-63 (Fed. Cir. 2016) (where an agency presented
little or weak evidence for the first two Carr factors, the lack of Carr factor three
evidence “if anything[] tends to cut slightly against the government”).
¶20 Nevertheless , we agree with the administrative judge that the absence of
such evidence in this case does not warrant a finding that the agency did not meet
its burden . ID at 15-16, 21, 24. As found by the administrative judge, the
evidence in support of the action was quite strong, and any motive to retaliate was
slight or moderate . ID at 12-16, 18 -24. Thus, we find that the appellant has
shown no error in the administrative judge’s determination that the agency proved
by clear and convincing evidence that it would have taken the same action s in the
absence of his disclosures and protected activity .
14
¶21 Accordingly, we deny the petition fo r review and affirm the
initial decision.5
NOTICE OF APPEAL RIG HTS6
You may obtain review of this final decision. 5 U.S.C. § 7703 (a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703 (b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefu lly follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide w hich one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appel lant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be 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 We have reviewed the relevant legislation enacted during the pendency of this appeal
and have concluded that it does not affect the outcome of the appeal.
6 Since the issuance o f the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.
15
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circu it, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor w arrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 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
16
discrimination based on race, color, religion, sex, national origin, or a disabling
condition, you may be entitled to repres entation by a court -appointed lawyer and
to waiver of any requirement of prepayment of fees, costs, or other security. See
42 U.S. C. § 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district courts can be found at their respective
websites, w hich can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Co mmission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calend ar days after you receive
this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with th e EEOC no later than 30 calendar days after your representative 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 Commissi on
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
17
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial 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.7 The court of appeals must receive your
petition for review within 60 days of the date of issuance of this deci sion.
5 U.S.C. § 7703 (b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional 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
7 The original statutory provi sion that provided for judicial review of certain
whistleblower claims by any court of 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 appella nts to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retro active to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510.
18
Board neither endorses the services p rovided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD:
Washington, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board | ENGLISH_LEONARD_DE_1221_16_0135_W_1_FINAL_ORDER_1999519.pdf | 2023-02-03 | null | S1 | NP |
3,626 | https://www.mspb.gov/decisions/nonprecedential/MALINSKI_SETH_CH_0752_21_0084_I_1_FINAL_ORDER_1999547.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
SETH MALINSKI,
Appellant,
v.
DEPARTMENT OF JUSTIC E,
Agency.
DOCKET NUMBER
CH-0752 -21-0084 -I-1
DATE: February 3, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL1
Lawrence Berger , Esquire, Glen Cove, New York, for the appellant.
Ross A. Nabatoff , Esq uire, Washington, D.C., for the appellant.
Susan C. Amundson , Esquire, 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
sustained his removal. 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
requi red to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c).
2
material fact; the initial decision is based on an erroneous interpretation of statute
or regulation or the erroneous application of the law to the facts of the case; the
administrative judge’s rulings during either the course of the appeal or the initial
decision were not consistent with required procedures or involved an abuse of
discretion, and the resulting error affected the outcome of the case; or new and
material evidence or legal argument is available that, despite the petitioner’s due
diligence, was not available wh en the record closed. Title 5 of the Code of
Federal Regulations, section 1201.115 ( 5 C.F.R. § 1201.115 ).
¶2 In his petition for review, the appellant reiterates the sa me arguments that
he made below.2 Compare Initial Appeal File (IAF), Tab 61, with Petition for
Review (PFR) File, Tab 8. A mong other things, the appellant disputes that he
took a nude photograph of a coworker , distributed the photograph to other
employees , and was not forth coming about the content of the photograph or his
reason for taking it . PFR File, Tab 8 at 5 -31. He also challenges the credibility
of the agency’s witnesse s concerning the details surrounding the nude
photograph. Id. However, t he record reflects that the administrative judge
considere d the appellant’s arguments and the evidence as a whole, drew
appropriate inferences, and made reasoned conclusions on the issue of credibility.
IAF, Tab 64, Initial Decision (ID); see, e.g. , Crosby v. U.S. Postal Service ,
74 M.S.P.R. 98 , 105 -06 (1997) (stating that the Board will give due deference to
the credibility findings of the administrative j udge and will not grant a petition
for review based on a party’s mere disagreement with those findings) ;
Broughton v. Department of Health and Human Services , 33 M.S.P.R. 357 , 359
(1987) (same) . The administrative judge found credible the agency witnesses’
description of the nude photograph the appellant took and further found that any
2 To the extent the appellant’s petition for review fails to identify specific errors in the
administrative judge’s analysis, the Board will not embark upon a complete review of
the record. See Ba ney v. Department of Justice , 109 M.S.P.R. 242 , ¶ 7 (2008); Tines v.
Department of the Air Force , 56 M.S.P.R. 90 , 92 (1992).
3
differences in their descriptions of it were not significant enough to undermine
their credibility. ID at 6-9, 18-19. In contrast, based on , among other things, her
observation of the appellant, the administr ative judge did not credit the
appellant’s testimony that he never took a nude photograph of his coworker, but
rather, he took photographs of a pile of her clothing in the car and her credentials
on the windshield . ID at 10-13.
¶3 We find unavailing the app ellant’s argument s that the administrative judge
erred in her conclusion that all three agency witnesses described seeing a nude
photograph or that their testimony regarding the photograph was conflicting,
contradictory, and inconsistent. PFR File, Tab 8 at 13 -15. The appellant asserts
that the administrative judge erred in finding that Deputy U.S. Marshal ( DUSM)
T.D. testified that he saw a photograph of a nude woman. Id. at 13. However,
the appellant mischaracterizes DUSM T.D. ’s testimony in which , although he
initially described the woman in the photograph as “partially clothed,” he later
clarified that he could not see any clothing. Hearing Transcript (HT) (Apr. 27,
2021 ) at 281 -84. The appellant also asserts that DUSM E.H.’s testimony is not
credible based on contradictory information that he provided to the Office of the
Inspector General (OIG) when they interviewed him on two separate occasions
regarding the nude photograph. PFR File, Tab 8 at 19 , 24 . However, the
administrative judge consi dered and rejec ted such an argument, crediting DUSM
E.H’s hearing testimony explaining that the inconsistency in his OIG testimony
occurred because the OIG agent called him in the middle of the night while he
was in Europe on a work -related matter and that he later clarified his testimony
with the agent. ID at 8 -9. Lastly, the appellant assert s that the administrative
judge erred in crediting the testimony of the three agency witnesses who saw the
nude photograph because two other individuals3 indicated that they could not
3 These included DUSM J.G., who was one of the appellant’s witnesses at the hearing ,
HT (Apr. 28, 2021) at 46 5, and DUSM K.K., who did not testify at the hearing but was
interviewed by OIG, IAF, Tab 11 at 130, Tab 38 at 16 .
4
make out the details in the photograph or identify the individual in the
photograph . PFR File, Tab 8 at 19 -21. The administrative judge considered but
rejected this argument , noting that the appellant admitted that he took two
photogr aphs and , thus, these two individuals may have seen a different
photograph than the other three agency witnesses. ID at 9 -10. Accordingly, the
appellant’s arguments on review do not provide a basis to overturn the
administrative judge’s credibility findi ngs. See Haebe v. Department of Justice ,
288 F.3d 1288 , 1301 (Fed. Cir. 2002) ( stating that the Board may overturn an
administrative judge ’s credibility determinations only when it has “sufficiently
sound” reasons for doing so) .
¶4 Finally, the appellant’s conclusory assertion that the administrative judge
erred in finding that he failed to prove his defense of laches fails to identify
specific erro rs in the administrative judge’s findings that the agency’s delay in
bringing the action was not unreasonable or that the appellant failed to show that
he was materially prejudiced by the delay. PFR File, Tab 8 at 31 -34; ID at 19 -27;
see 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. There fore, 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 HTS4
You may obtain review of this final decision. 5 U.S.C. § 7703 (a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which t o file. 5 U.S.C. § 7703 (b).
Although we offer the following summary of available appeal rights, the Merit
4 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisio ns. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.
5
Systems Protection Board does not provide legal advice on which option is most
appropriat e for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applica ble to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of th is decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following addre ss:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particula r
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Ap peals for the Federal Circuit, you may visit our website at
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 services pro vided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an a ction that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 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 decis ion. If the action involves a claim of
discrimination based on race, color, religion, sex, national origin, or a disabling
condition, you may be entitled to representation by a court -appointed lawyer and
to waiver of any requirement of prepayment of fees, costs, or other security. See
42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case,
7
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C . 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.5 The court of appeals must receive your petition for
5 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court o f Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
8
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circui t
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petiti oners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our we bsite at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorne y will accept representation in a given case.
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 | MALINSKI_SETH_CH_0752_21_0084_I_1_FINAL_ORDER_1999547.pdf | 2023-02-03 | null | CH-0752 | NP |
3,627 | https://www.mspb.gov/decisions/nonprecedential/DEGREEF_JANE_MARIE_CH_0752_21_0356_I_1_FINAL_ORDER_1999573.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
JANE MARIE DEGREEF,
Appellant,
v.
UNITED STATES POSTAL SERVICE,
Agency.
DOCKET NUMBER
CH-0752 -21-0356 -I-1
DATE: February 3, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL1
Jane Marie DeGreef , North Canton, Ohio, pro se.
Greg Allan Ribreau , 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 petitioned for review of the initial decision in this appeal.
Petition for Review (PFR) File, Tab 1; Initial Appeal File, Tab 17. For the
reasons set forth below, we DISMISS the appeal as settled.
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been 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 re view, the parties submitted a document
entitled “SETTLEMENT AGREEMENT AND RELEASE ” signed and dated by
the parties on December 28, 2022 . PFR File, Tab 9, at 14. The document
provides, among other things, for the dismissal of the appeal. Id. at 13.
¶3 Before dismissing a matter as settled, the Board must decide whether the
parties have entered into a settlement agreement, whether they understand its
terms, and whether they intend to have the agreement entered into the record for
enforcement by the Board . See Mahoney v. U.S. Postal Service , 37 M.S.P.R.
146, 149 (1988). In addition, before accepting a settlement agreement into the
record for enforcement purposes, the Board must determine whether the
agreement is lawful on its face and whether the parties freely entered into it. See
Massey v. Office of Personnel Management , 91 M.S.P.R. 289 , ¶ 4 (2002),
overruled on other grounds by Delorme v. Department of the Interior ,
124 M.S.P.R. 123 , ¶¶ 11 -21 (2017) (holding that the Board may enforce
settlement agreements that have been entered into the record, independent of any
prior finding of Board jurisdiction over the underlying matter being settled).
¶4 Here, we find that the parties have entered into a settlement agreement,
understand its terms, and agree that the agreement will not be entered into the
record for enforcement by the Board. See PFR File, Tab 9 at 5 (“Further, the
parties agre ed and understand that enforcement of the Settlement lies with the
EEOC.”) 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. As the parties do not intend for the Board to enforce the
terms of the settlement agreement, we do not enter the settlement agreement into
the record for enforcement.
¶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 OF APPEAL RIG HTS2
You may obtain review of this final decision. 5 U.S.C. § 7703 (a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703 (b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Fa ilure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
2 Since the issuance of the initial decision in this matter, the Board may have updated
the not ice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.
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 particu lar
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services p rovided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. ____ , 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 decis ion. If the action involves a claim of
discrimination 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 thro ugh the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your d iscrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washi ngton, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
6
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.3 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
releva nce is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals fo r the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
3 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 201 8, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The Al l Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195,
132 Stat. 1510.
7
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 | DEGREEF_JANE_MARIE_CH_0752_21_0356_I_1_FINAL_ORDER_1999573.pdf | 2023-02-03 | null | CH-0752 | NP |
3,628 | https://www.mspb.gov/decisions/nonprecedential/REYES_JOHN_A_AT_1221_21_0604_W_1_REMAND_ORDER_1999597.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
JOHN A. REYES,
Appellant,
v.
DEPARTMENT OF
TRANSPORTATION,
Agency .
DOCKET NUMBER
AT-1221 -21-0604 -W-1
DATE: February 3, 2023
THIS ORDER IS NONPRECEDENTIAL*
Jeff T. Schrameck , Esquire, Canton, Michigan, for the appellant .
Stephanie A. Kevil , Esquire, Des Plaines, Illinois, for the agency .
BEFORE
Cathy A. Harris, Vice Chair man
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 his individual right of action (IRA) appeal as untimely filed without a
showing of good cause for tolling the deadline. For the reasons discussed below,
we GRANT the ap pellant ’s petition for review, VACATE the initial decision , and
* A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case 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
REMAND the case to the regional office for further adjudication in accor dance
with this Remand Order .
BACKGROUND
¶2 The appellant is an Air Traffic Control Specialist with the Federal Aviation
Administration (FAA) . Initial Appeal File (IAF), Tab 7 at 54. The appellant
filed a complaint with the Office of Special Counsel (OSC), alleging that the
agency subjected him to a number of actions, including, among other thing s,
improperly compensating him during the 2018 -2019 Federal Government
shutdown, retroactively changing his leave for December 23, 2018 , charging him
absence without leave, requiring him to work 8 hours without a break on
March 23, 2021, and a hostile work environment. IAF, Tab 1 at 23-24. On
June 25, 2021, OSC closed the appellant ’s file without taking corrective action,
and it notified him of his right to file an IRA appeal with the Board. Id. The
closeout letter stated that any IRA appeal must be fil ed “within 65 days after the
date of this letter.” Id. at 24.
¶3 On August 30, 2021, the appellant e -filed the instant IRA appeal . IAF,
Tab 1. The administrative judge issued an order informing the appellant that his
appeal appeared to be untimely and notifying him of the timeliness standards for
an IRA appeal and the requirements for equitable tolling. IAF, Tab 5 at 1-3. He
ordered the appellant t o show cause why the appeal should not be dismissed as
untimely. Id. at 2. In response, the appellant argued that he timely filed his
appeal in accordance with the Board ’s regulation at 5 C.F.R. § 1201.23 , which
pertains to the computation of time for complying with “any deadline” and
provides that a filing period will include the first workday after the filing date if
the filing date falls on a weekend or Federal holiday. IAF, Tab 18 a t 4. OSC
issued its notification on June 25, 2021, and he asserted that 65 days after that
was Sunday, August 29, 2021, therefore, he timely filed his appeal on Monday,
August 30, 2021 . IAF, Tab 18 at 4. The administrative judge , unpersuaded by
3
the appellant ’s claim, dismissed the appeal without holding a hearing because he
found that it was untimely filed and that the appellant failed to establish that the
time limit for filing the appeal should be tolled. IAF, Tab 22, Initial Decision
(ID) at 1, 4-5.
¶4 The appellant has filed a petition for review . Petition for Review (PFR)
File, Tab 3. The agency has filed a response in opposition to the petition for
review. PFR File, Tab 5.
DISCUSSION OF ARGUME NTS ON REVIEW
The appellant timely filed h is appeal.
¶5 The appellant challenges the administrative judge ’s finding that h is appeal
was untimely, reasserting that the time limit to file his IRA was extended to
Monday, August 30, 2021 because the 65th day after his receipt of OSC ’s
notification was Sunday, August 29, 2021 . PFR File, Tab 3 at 5-6. We agree .
¶6 An appellant may file an IRA appeal with the Board once OSC closes its
investigation into his complaint and no more than 60 days after “notification was
provided” that OSC terminated its invest igation of the appellant ’s complaint.
5 U.S.C. § 1214 (a)(3)(A ). Under the Board ’s implementing regulations, an IRA
appeal must generally be filed no later than 65 days after the date OSC issued i ts
close -out letter, or, if the letter is received more than 5 days after its issuance,
within 60 days of the date of receipt. 5 C.F.R. § 1209.5 (a)(1); e.g.,
Heimberger v. Department of Commerce , 121 M.S.P.R. 10 , ¶ 6 (2014). If the
65th day falls on a weekend or holiday, the filing period is automatically
exten ded to the next work day. Pry v. Department of the Navy , 59 M.S.P.R. 440 ,
442-43 (1993); 5 C.F.R. § 1201.23 .
¶7 Here, it is undisputed that OSC issued notification to the appellant on
June 25, 2021, and the 65th day following that date was Sunday, August 29, 2021.
ID at 4; IAF, Tab 1 at 4, 23 -24, Tab 12 at 5. In the initial decision, the
administrative judge found that when the appellant filed h is appeal on August 30,
4
2021 , it was 1 day late. Id. The administrative judge , citing Heimberger ,
121 M.S.P.R. 10 , ¶ 9, reason ed that the Board “must have a statutory mechanism
for waiving a statutory deadline ” and he had “not found any precedent for
applying [5 C.F.R.] § 1201.23 to the statutory time limit for filing an IRA
appeal.” ID at 4-5. Thus, he concluded that the appellant untimely filed his IRA
appeal. Further, he found that the appellant did not allege circumstances
warranting invocation of the doctrine of equitable tolling. ID at 5. We disagree .
¶8 As noted above, t he Board ’s regulations specifically provide that “[i]f the
date that ordinarily would be the last day for filing falls on a Saturday, Sunday, or
Federal holiday, the filing period will include the first workday after that date.”
5 C.F.R. § 1201.23 . The regulations governing IRA appeals, 5 C.F.R. Part 1209,
specify that, unless expressly provided, the Board will apply certain sub parts ,
including the sub part for computation of time, of 5 C.F.R. Part 1201 to IRA
appeals. 5 C.F.R. § 1209.3 ; see Pry, 59 M.S.P.R. at 442-43. There is no
contradictory provision for calculating time limits in Part 1209. Pry, 59 M.S.P.R.
at 442-43. Thus, because August 29, 2021 was a Sunday, the filing period for the
appellant ’s IRA appeal included the first workday that followed, August 30, 2021 .
Pry, 59 M.S.P.R. at 442-43 (finding that the 65 -day filing deadline for IRA
appeals includes the next available business day if the deadline would otherwise
fall on a Saturday, Sunday, or Federal holiday). Accordingly, we find that the
appellant ’s August 30, 2021 IRA appeal was timely, and the appeal must be
remanded for further adjudication .
¶9 On remand, the administrative judge should develop the record, as needed,
regarding the appellant ’s election of remedies, jurisdiction, and, if necessary, th e
merits of his claim before issuing a remand initial decision .
5
ORDER
¶10 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 | REYES_JOHN_A_AT_1221_21_0604_W_1_REMAND_ORDER_1999597.pdf | 2023-02-03 | null | AT-1221 | NP |
3,629 | https://www.mspb.gov/decisions/nonprecedential/VALENZUELA_MARY_G_SF_0752_22_0039_I_1_REMAND_ORDER_1999622.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
MARY G. VALENZUELA,
Appellant,
v.
DEPARTMENT OF THE NA VY,
Agency.
DOCKET NUMBER
SF-0752 -22-0039 -I-1
DATE: February 3, 2023
THIS ORDER IS NONPRECEDENTIAL1
Bosko Petricevic , Esquire, Honolulu, Hawaii, for the appellant.
Thomas J. Tangi , Jacksonville, Florida, 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 involuntary resignation appeal for lack of jurisdiction . For the
reasons discussed below, we GRANT the appellant ’s petition, VACATE the
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
require d to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board ’s case law. See 5 C.F.R. § 1201.117 (c).
2
initial decision, and REMAND the appeal to the Western Regional Office for
further adjudication in accordance with this Remand Order.
BACKGROUND
¶2 The appellant was employed as a GS-15 Physician at a Naval Health Clinic
in Hawaii . Initial Appeal File (IAF), Tab 7 at 61 . She had various serious health
issues causing her to request Family and Medical Leave Act protected leave in
October 2018, which was approved by the agency. IAF, Tab 7 at 14, 31, Tab 10
at 44, 46 -47. In April 2019 , the appellant requested a reduced work sche dule of
three 8 -hour days per week and the ability to take paid or unpaid leave as a
reasonable accommodation. IAF, Tab 10 at 49-50. After the appellant provided
the agency with requested documentation, the agency granted the appellant
interim approval o f her request in August 2019 . Id. at 52 -55, 57 -59, 61. The
appellant noted that during this time she was also allowed 3.5 hours of
administrative time each week and was not required to have 100 bookable
appointments per week . IAF, Tab 7 at 14-15, 31.
¶3 In March 2020, after the COVID -19 pandemic started, the appellant was
placed on telework due to her high risk status resulting from her health
conditions . IAF, Tab 7 at 15, 32. She had surgery in June 2020 and she was on
medical leave until October 2020. Id. at 15, 32 . In June 2020, a new individual
assumed command of the Naval Health Unit and, in August 2020, he received a
complaint from a local business owner alleging that the appellant committed a
Hatch Act Violation. Id. at 15, 32, 63 -69. He initiat ed an investigation into the
purported Hatch Act violation. Id. at 15-16, 32 -33.
¶4 Prior to her return to work, the appellant provided the new commander with
a medical note recommending that she stay on a 3 -day work schedule with 2 days
of leave. IAF, Ta b 10 at 55. In September 2020, the agency provided her with
the “final approval” of her request for accommodation, which was a modified
work schedule of four 10-hour days and the ability to schedule patients for
3
30 minutes per appointment, which was more than the standard allowance of
20 minutes. Id. The appellant also noted that the agency discontinued the
3.5 hours of administrative time that her colleagues received and required her to
have 100 bookable appointments each week , the same number as her co lleagues .
IAF, Tab 7 at 20, 35. The appellant returned to work in November 2020 on a four
10-hour day schedule . Id. at 18, 35. The agency issued the appellant a Letter of
Caution in January 2021 for a Hatch Act violation of engaging in partisan
political activity while on duty.2 IAF, Tab 10 at 84 -85.
¶5 On April 11, 2021, the appellant requested a revision of her prior
accommodation, asserting that it was insufficient, especially given the loss of the
3.5 hours of administrative time per week, an d she attribute d the development of
left arm neuropathy to her increased work hours. IAF, Tab 7 at 11 7-22, Tab 10
at 87-90. She requested three 8 -hour days each week , including 3.5 hours of
administrative time per week , scheduling in -person appointments in 30 -minute
blocks with 20 minutes for virtual appointments, a headphone assistive device,
ability to take leave as directed by her treating specialists, an ergonomic
assessment, and having no procedures scheduled until her left arm neuropathy
was resolve d. IAF, Tab 7 at 117. The agency confirmed receipt of the reasonable
accommodation request on April 19, 2021. Id. at 121 -22. That same day , the
appellant emai led a letter of resignation to an agency human resources employee,
stating that she was resign ing due to health reasons.3 IAF, Tab 10 at 92, 94.
Following her resignation, o n May 27, 2021, the agency rescinded the Letter of
2 The Letter of Caution stated that the appellant posted a photo while on duty that was
considered political because it discussed the concept of “white privilege” and “white
guilt” and how it is asso ciated with “liberal indoctrination.” IAF, Tab 10 at 84 .
3 In the April 19, 2021 email, the appellant noted that she intended for May 7 to be her
last day. IAF, Tab 10 at 92. However, she subsequently requested to delay the
effective date of her resigna tion to exhaust her leave and complete her work and other
administrative tasks. Id. at 98. The appellant ’s Standard Form 50 lists May 14 as the
effective date of her resignation. Id. at 103.
4
Caution , observing that only the Office of Special Counsel has jurisdiction to
investigate Hatch Act violations. Id. at 105-06.
¶6 The appellant timely filed the instant appeal,4 alleging that h er resignation
was involuntary based on intolerable working conditions . IAF, Tab 1 at 6. The
administrative judge issued an order inform ing the appellant that the Board may
not have jurisdiction over h er appeal, appris ing her of how to establish
jurisdiction over an involuntary resignation appeal , and order ing her to file
evidence and argument on the jurisdictional issue. IAF, Tab 3 at 2-4. In
response, the appellant alleged that s he was coerced into resigning when her new
supervisor and a subordinate manager investigated her for a fabricated Hatch Act
violation, issued her a Letter of Caution about engaging in partisan political
activity while on duty, denied her requests for reaso nable accommodation without
engaging in the interactive process, and changed her schedule from part -time to
full-time with no administrative time. IAF, Tab 7 at 12 -23, 33 -35, 38 -39.
¶7 Without holding the appellant ’s requested hearing, the administrative j udge
issued an initial decision dismissing the appeal for lack of jurisdiction. IAF,
Tab 11, Initial Decision (ID) at 1, 23 . The administrative judge found that the
appellant failed to nonfrivolously allege that her resignation was coerced based
on intol erable work ing conditions and the agency ’s denials of her reasonable
accommodation requests. ID at 22. He further found that the appellant failed to
nonfrivolously allege that she is a qualified person with a disability who could
have performed the essential functions of her position with the requ ested
accommodations. ID at 21-22.
4 On March 14, 2021, the appellant filed an equal employment o pportunity (EEO)
complaint alleging , among other things, that the agency discriminated against her based
on her race, religion, and disability. IAF, Tab 6 at 5. She subsequently amended her
EEO complaint to include a constructive discharge claim and a failure to accommodate
claim. IAF, Tab 6 at 5 -6, Tab 10 at 103. Thereafter, the agency issued a final agency
decision, finding that the appellant failed to prove her discrimination claim . IAF, Tab 6
at 5-18. As the ad ministrative judge explained, there is no timeliness issue in this
Board appeal. ID at 7 n.2.
5
¶8 The appellant has filed a petition for review of the initial decision .5 Petition
for Review (PFR) File, Tab 1. In her petition, the appellant reiterates that she
was coe rced into resigning because of the denial of her reasonable
accommodation request and because of an improper Hatch Act investigation and
the resulting L etter of Caution . PFR File, Tab 1 at 12 -19. She opines that the
administrative judge applied the incor rect evidentiary standard at the
jurisdictional stage and improperly separated her allegations of intolerable
working conditions into separate strands , which weakened the overall effect of
her allegations. Id. at 7-12. The agency has filed a response, PF R File, Tab 3, to
which the appellant has replied, PFR File, Tab 4.
DISCUSSION OF ARGUME NTS ON REVIEW
¶9 An employee -initiated action, such as a resignation, is presumed to be
voluntary and, thus, outside the Board ’s jurisdiction. Vitale v. Department of
Veterans Affairs , 107 M.S.P.R. 501 , ¶ 17 (2007). An involuntary resignation,
however, is tantamount to a removal and, therefore, is within the Board ’s
jurisdiction. Garcia v. Department of Homeland Security , 437 F.3d 1322 , 1328
(Fed. Cir. 2006) ( en banc ). To overcome the p resumption that a resignation is
voluntary, the employee must show that it was the result of the agency ’s
misinformation, deception, or coercion. Vitale , 107 M.S.P.R. 501 , ¶ 19. The
touchstone of a voluntariness analysis is whether, considering the totality of the
circumstances, factors operated on the employee ’s decision -making process that
deprived h er of freedom of choice. Id.
¶10 The appellant has the burden of proving the Board ’s jurisdiction by a
preponderance of the evidence. 5 C.F.R. § 1201.56 (b)(2)(i)(A). However, once
5 The appellant filed her petition for review in Hawaii, which is 5 hours behind Eastern
time. A ll pleadings filed via e -Appeal Online are time stamped with Ea stern Time.
5 C.F.R. § 1201.14 (m)(1). Although the appellant ’s Board appeal was time stamped as
being filed on January 8, 2022 , at 12:42 a.m., Eastern Time, it was actually filed on
January 7, 2022 , at 7:42 p.m., Hawaii Time. PFR File, Tab 1 at 3. Thus, the
appellant ’s petition for review, which was due on January 7, 2022, was timely filed.
6
the appellant presents nonfrivolous al legations of Board jurisdiction, she is
entitled to a hearing. Carey v. Department of Health and Human Services ,
112 M.S.P.R. 106 , ¶ 6 (2009). In determining whether the appellant ’s
submissions set forth a nonfrivolous allegation of jurisdiction entitling her to a
hearing, the Board may consider the agency ’s documentary submissions;
however, to the extent that the agency ’s evidence constitutes mere factual
contradiction of the appellant ’s otherwise adequate prima facie showing of
jurisdiction, the Board may not weigh evidence and resolve conflicting assertions
of the parties and the agency ’s evidence may not be dispositive. Ferdon v . U.S.
Postal Service , 60 M.S.P.R. 325 , 329 (1994).6
¶11 As noted, prior to the appellant ’s return to work in November 2020, she
provided the ag ency with an updated medical note requesting that she continue to
work three 8 -hour days. IAF, Tab 10 at 63. The agency did not grant this
accommodation and instead assigned the appellant a work schedule of four
10-hour days per week . In April 2021, the appellant again requested a reasonable
accommodation, asserting, among other things, that her current schedule caused
her “significant physical and mental stress, affecting [her] overall health,” and
that she had developed left arm neuropathy because of h er working conditions.
IAF, Tab 7 at 117-22, Tab 10 at 87 -90. She sought a restoration of her previous
reasonable accommodation that had been in place prior to her return to work in
November 2020. IAF, Tab 7 at 117. She also sought the 3.5 hours of
administrative time provided to her colleagues. Id. The appellant resigned soon
thereafter , citing health reasons . IAF, Tab 10 at 92, 94.
6 In her petition for review, the appellant argues that the administrative judge erred by
not ap plying the U.S. Court of Appeals for the Federal Circuit’s decision in Hessami v.
Merit Systems Protection Board , 979 F.3d 1362 (Fed. Cir. 20 20), regarding the weight
to give evidence at the jurisdictional stage of a Board proceeding. PFR File, Tab 1
at 7-9. We discern little difference between the court’s holding in Hessami and the
Board’s holding in Ferdon in this regard. Having found that the appellant made a
nonfrivolous allegation of Board jurisdiction, we need not discuss this issue further.
7
¶12 The denial of a reasonable accommodation that would have permitted an
employee to continue working despite her medical conditions, and that leads to
the employee ’s resignation, is a wrongful action that can be the basis of an
alleged involuntary resignation claim. Hosozawa v. Department of Veterans
Affairs , 113 M.S.P.R. 110 , ¶¶ 2, 6 -7 (2010) (finding that an appellant
nonfrivolously alleged that her retirement was involuntary when she alleged that
the agency denied her request for a reasona ble accommodation that would have
permitted her to continue to work full -time despite her medical conditions).
Here , the appellant asserts that her resignation was involuntary because the
agency denied her September 2020 request for accommodation that, according to
her doctors, would have permitted her to continue to work despite her various
health issues, and without which her health further worsened, causing her to
develop left arm neuropathy in April 2021 .
¶13 We recognize the passage of time between the denial of the reasonable
accommodation request and the appellant ’s resignation, but , at this stage of the
proc eedings , do not find it significant. First, according to the appellant, her
health condition deteriorated because of the agency ’s September 2020 reasonable
accommodation decision , and the fact that she work ed under the accommodation
imposed by the agency for several months does not mean that the agency ’s failure
was not the cause of the appellant ’s resignation. Second, th e Federal Circuit has
held that at the jurisdictional s tage of a Board proceeding, the Board should not
discount the probative value of an allegation that supports a claim of
involuntariness because of the passage of time. Trinkl v. Merit Systems
Protection Board , 727 F. App ’x 1007, 1010 -11 (Fed. Cir. 20 18).
¶14 In addition to the denial of her reasonable accommodation request, the
appellant also points to the Hatch Act i nvestigation and the resulting Letter of
Caution as facts that made her working conditions intolerable and caus ed her to
resign . The Board has held that being subjected to unnecessary investigations
and being unjustifiably threatened with discipline do es not suffice to establish an
8
allegation of involuntary resignation. Baldwin v. Department of Veterans Affairs ,
109 M.S.P.R. 392 , ¶¶ 19 -20 (2008). Nevertheless, in assessing whether a
resignation was involun tary, the Board must look at the to tality of the
circumstances , and thus these individual incidents, when considered with the
other record evidence, may support a finding of involuntariness. Brown v. U.S.
Postal Service , 115 M.S.P.R. 609 , ¶ 10 (stating that the issue in an involuntary
resignation appeal is whether, considering the totality of the circumstances, the
employee ’s working conditions were made so difficult that a reasonable person in
the employee ’s position would have felt compelled to resign) , aff’d , 469 F. App’x
852 (Fed. Cir. 2011) . Similarly, the appellant ’s allegations of discrimination and
reprisal must also be considered as part of the total circumstances that may
support a finding of involuntariness even if the appellant ’s evidence does not
support a finding of discrimination.7 Markon v. Department of State , 71 M.S.P.R.
574, 578 (1996) (stating that a t the jurisdictional stage of an involuntary
retirement appeal, the Board will consider allegations of discrimination to the
extent that they bear on the issue of volunta riness ).
¶15 In sum, given the low evidentiary threshold required to constitute a
nonfrivolous allegation that her resignation was involuntary , we find that the
appellant has met that burden . According ly, we remand this matter to the
Western Regional Office f or further proceedings, including the hearing requested
7 The administrative judge found that the appellant failed to nonfrivolously allege that
she was a qualified i ndividual with a disability and thus a failure to reasonably
accommodate cannot support a finding of an involuntary resignation . ID at 21-22. The
medical condition that the administrative judge found rendered the appellant unable to
perform the essentia l functions of her condition, left arm neuropathy, was, according to
the appellant, temporary and caused by the agency’s failure to accommodate her in the
autumn of 2020. Thus, we do not agree with the administrative judge’s finding that the
appellant fai led to make a nonfrivolous allegation in this regard.
9
by the appellant. To prevail on her claim, the appellant must now prove that her
resignation was involuntary by preponderant evidence.8
ORDER
¶16 For the reasons discussed above, we vacate the initial decision and remand
this case to the Western 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
8 In her petition for review, the appellant requests that if t he appeal is remanded, it be
assigned to a different administrative judge. PFR File, Tab 1 at 20. Other than the
administrative judge ’s adverse ruling, the appellant cites nothing causing us to question
the administrative judge ’s ability to fairly adjudicate this appeal on remand. See
Argabright v. Department of Defense , 113 M.S.P.R. 152 , ¶ 10 (2010) (stating that an
erroneous case -related ruling was insufficient to overcome the pre sumption of honesty
and integrity that accompanies administrative judges); Lee v. U.S. Postal Service ,
48 M.S.P.R. 274 , 281 (1991) (stating that the fact that an administrative judge has ruled
against a party in the past, or me re conclusory statements of bias, do not provide
sufficient bases for assignment of a new administrative judge ). Accordingly, we deny
the appellant ’s request. | VALENZUELA_MARY_G_SF_0752_22_0039_I_1_REMAND_ORDER_1999622.pdf | 2023-02-03 | null | SF-0752 | NP |
3,630 | https://www.mspb.gov/decisions/nonprecedential/AZAWI_SAMAR_SF_1221_16_0543_W_1_FINAL_ORDER_1999640.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 -16-0543 -W-1
DATE: February 3, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL1
Samar Azawi , Newport Beach, California, pro se .
Joseph Manuel Briones , Los Angeles, California, 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 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 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
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 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. Except as expressly MODIFIED by
this Final Orde r to also find that the appellant failed to nonfrivolously allege that
her disclosures to the Office of Inspector General (OIG), her complaint to the
Office of Special Counsel (OSC), and her report to the Secretary of the agency
(Secretary) were contributi ng factors in any personnel action , we AFFIRM the
initial decision .
¶2 The appellant was employed as a supervisory physician at the agency’s
Long Beach, California facility . Initial Appeal File (IAF), Tab 8 at 39. She filed
a Board appeal stating that, based upon false accusations, the agency red uced her
in pay, grad e, 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. IAF, Tab 1 at 2. She attached a closeout letter
from OSC that detailed her claim s that she reported patient safety practices,
delays in patient care, clinical and nonclinical staff shortages, inappropriate use
of fu nds, prohibited personnel practices, harassment, u nfair treatment, and
hostility. Id. at 8. The letter also mentioned her allegation of retaliation for
filing complaints with OSC, OIG, and the Secretary. Id. Further, the letter
detailed the appellant’s assertions that the following actions were taken against
her: (1) She was subjected to multiple investigations; (2) her colleagues made
3
false allegations against her; (3) her workload was increased; (4) her request to
hire a dditional staff was denied; (5) her supervisory and administrative dutie s as
the Chief of the Radiation -Oncology Department were removed; (6) she was
issued a Letter of Reprimand; (7) her last two performance evaluations were
lowered; (8) she was temporarily reassigned; and (9) her request for clinical
privileges was denied. Id.
¶3 The administrative judge issued an order explaining that the Board
might not have jurisdiction over this IRA appeal, informing the appellant of her
jurisdictional burden, ordering her to submit a response regarding jurisdiction ,
and providing the agency an opportunity to respond . IAF, Tab 3. The appellant
submitted a response , as did the agency. IAF, Tabs 6, 8. Subsequently, the
administrative judge issued an initial decision dismissing the appeal for lack of
jurisdiction because he found that the appell ant failed to nonfrivolously allege
that she made a protected disclosure. IAF, Tab 9, Initial Decision (ID). The
appellant submitted a petition for review , and the agency responded in opposition
to the appellant’s petition. Petition for Review (PFR) Fil e, Tabs 3, 5.
¶4 On review, the appellant has furnish ed evidence that she asserts amounts to
a nonfrivolous allegation that she made a prote cted disclosure. PFR File, Tab 3.
This evidence consists of the appellant’s correspondence from the period between
June 2008 and May 2015 , including correspondence with OSC, OIG, the
Secretary, and Congress. Id. at 6-32. Under 5 C.F.R. § 1201.115 (d), the Board
generally will not consider evidence s ubmitted for the first time with the petition
for review absent a showing that it was unavailable before the record was closed
despite the party’s due diligence. Avansino v. U.S. Postal Service ,
3 M.S.P.R. 211, 214 (1980). The appellant has not explained why this evidence,
all dated before she filed the instant appeal, was unavailable befor e the record
closed below. Accordingly, we will not consider it. See Thompson v. Department
of the Army , 122 M.S.P.R. 372 , ¶ 16 (2015).
4
¶5 The Board has jurisdiction over an IRA appea l if the appellant exhausts her
administrative remedies before OSC and makes n onfrivolous allegations that s he
made a protected disclo sure described under 5 U.S.C. § 2302 (b)(8) or engaged in
protected acti vity described under 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D),
and the disclosure or protected activity was a co ntributing factor in the agency’ s
decision to take or fail to take a personnel action . Chambers v. Department of
Homeland Security , 2022 MSPB 8, ¶ 14; see also Hessami v. Merit Systems
Protection Board , 979 F.3d 1362 , 136 7 (Fed. Cir. 2020) .. The Board’s
regulations define a nonfrivolous allegation as an assertion that, if proven, could
establish the matter at issue. 5 C.F.R. § 1201.4 (s).2 As the U.S. Court of Appeals
for the Federal Circuit recently put it: “[T]he question of whether the appellant
has non -frivolously alleged protected disclosures [or activities] that contributed
to a personnel action must be determined based on whether the employee alleged
sufficient factual matter, accepted as true, to state a claim that is plausible on its
face.” Hessami , 979 F.3d at 1364 , 1369.3 We find that the appellant has provided
no reason to disturb the administrative judge’s well -reasoned finding that she
failed to nonfrivolously allege that she made a protected disclosure. ID at 6-9;
5 C.F.R. § 1201.4 (s).
2 The regulation further provides that an allegation generally will be considered
nonfrivolous when, under oath or penalty of perjury, an individual makes an allegation
that: (1) is more than conclusory; (2) is pla usible on its face; and (3) is material to the
legal issues in the appeal. Id. Pro forma allegations are insufficient to meet the
nonfrivolous standard. Clark v. U.S. Postal Service , 123 M.S.P.R. 466 , ¶ 6 (2016),
aff’d , 679 F. App’x 1006 (Fed. Cir. 2017) , and overruled on other grounds by Cronin v.
U.S. Postal Service , 2022 MSPB 13 , ¶ 20 n.11 .
3 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, pu rsuant 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.
5
¶6 We agree with the administrative judge that the appellant’s policy
disagreements about the agency ’s fail ing to provide staffing and not reducing her
workload following a colleague’s retirement do not constitute a nonfrivolous
allegation of a protected disclosure. ID at 6-9; IAF, Tabs 1, 6. The
administrative judge correctly found that the appellant’s assertions —challenging
the agency’s decisions , such as not supplementing physician staffing,
misallocatin g support staff, and not reclassifying her patients, which required her
to carry a greater workload —did not amount to a nonfrivolous allega tion of a
violation of a law, rule , or regulation . The appellant did not identify any specific
law, rule, or regulation to support her claim, and none is clearly implicated by the
disclosure, if indeed she made such a disclosure. See Langer v. Departmen t of
the Treasury , 265 F.3d 1259 , 1266 (Fed. Cir. 2001). Likewise, the administrative
judge properly determined that a reasonable person with k nowledge of the facts
known to and readily ascertainable by the appellant would not conclude that she
was disclosing such a violation . ID at 7; s ee Rebstock Consolidation v.
Department of Homeland Security , 122 M.S.P.R. 661, ¶ 12 (2015) (holding that
vague, conclusory, and unsupported allegations do not satisfy the Board’s
nonfriv olous pleading standard); Sinko v. Department of Agriculture ,
102 M.S.P.R. 116, ¶ 17 (2006). The Board has found that when, as here , an
alleged whistleblower is expressing disagreement with fairly debatable policy
decisions, or decisions plainly within managerial discretion, her disclosures
do not fall within those defined as protected under 5 U.S.C. § 2302 (b)(8). Cf.
O’Donnell v. Department of Agriculture , 120 M.S.P.R. 94, ¶ 14 (2013) (holding
that the appellant’s alleged protected disclosure was “exactly the type of fairly
debatable policy dispute that does not constitute whistleblowing”), aff’d ,
561 F.App’x 926 (Fed. Cir. 2014) .
¶7 Similarly, we agree with the administrative judge that the appellant ’s
challenges regarding personnel and management decisions, including her
assertion that her heavy workload would lead to exhaustion, thereby endangering
6
patient safety, do not rise to the level of a nonfrivolous allegation of an abuse of
authority or gros s mismanagement . ID at 7-8; see Webb v. Department of the
Interior , 122 M.S.P.R. 248 , ¶ 10 n.3 (2015) (stating that an employee discloses an
abuse of authority when he alleges that a Federal official has arbitrarily or
capriciously exercised power that has adversely affected the rights of any person
or has resulted in personal gain or advantage to himse lf or to preferred other
persons); Francis v. Department of the Air Force , 120 M.S.P.R. 138, ¶ 12 (2013)
(stating that g ross misma nagement means a management action or inaction that
creates a substantial risk of significant adverse impact upon the agency ’s ability
to accomplish its mission and finding that the appellant’s mere disag reement with
job-related issues concerning training deficiencies did not constitute a
nonfrivolous allegation of gross mismanagement) .
¶8 We also agree that the appellant did not nonfrivolously allege that she
disclosed a gross waste of funds because her argument that the agency sh ould
have hired additional part-time or fee -for-service physicians does not address
more than a debatable expenditure. ID at 8-9; see MaGowan v. Environmental
Protection Agency , 119 M.S.P.R. 9 , ¶ 7 (2012) (stating that a gross waste of funds
is a more than debatable expenditure that is significantly out of proportion to the
benefit reasonably expected to accrue to the Government) ; IAF, Tab 6 at 11-15.
Regarding the last category of protected disclosures, the administrative judge
properly found that the appellant did not nonfrivolously allege that she disclosed
a substantial and specific danger to public health or safety. ID at 8. The
appellant asserted that , after her colleague’s retir ement, her increased workload
and requirement to be available for a greater amount of time could have placed
her patients in danger . However, she also stated that the clinic was able to
properly serve patients because of her excellent performance. IAF, Tab 6
at 16-20. Thus, given the appellant’s contradictory statements, we find that this
assertion is too speculative to constitute a nonfrivolous allegation of a protected
7
disclosure. See Chambers v. Department of the Interior , 515 F.3d 1362 , 1369
(Fed. Cir. 2008) .
¶9 Next, we agree with the administrative judge that the appellant did not
nonfrivolously al lege that when she filed her equal employment opportunity
(EEO) complaints, she participated in protected activity over which MSPB has
jurisdiction . ID at 6; IAF, Tab 8 at 19-22. Pursuant to 5 U.S.C. § 1221 (a), MSPB
only has IRA jurisdiction over equal employment opportunity (EEO) activity
covered by 5 U.S.C. § 2302 (b)(9)(A)(i) , not (b)(9)(A)(ii) . Under 5 U.S.C.
§ 2302 (b)(9)(A)(i) , it is a prohibited personnel practice to “take or fail to take, or
threaten to take or fail to take, any personnel action against any employee . . .
because of . . . the exercise of any appeal, complai nt, or grievance right granted
by any law, rule, or regulation . . . with regard to remedying a violation of
[section 2302(b)(8)] .” Section 2302(b)(9)(A)(ii) applies to the exercise of such
rights other than with regard to remedying a violation of (b)(8). Thus, MSPB
only has jurisdiction over an appellant’s EEO complaint in an IRA when the
complaint seeks to remedy whistleblower reprisal under 5 U.S.C. § 2302 (b)(8).
Bishop v. Department of Agriculture , 2022 MSPB 28, ¶ 16; Edwards v.
Department of Labor , 2022 MSPB 9 , ¶ 10.
¶10 Here, the EEO complaint contained in the record details the appellant’s
allegations that she was subjected to a hostile work environment in reprisal for
her prior EEO activity. IAF, Tab 8 at 17-22. Because this complaint is limited to
the appellant’s claims of EEO reprisal and she has not otherwise described the
details of her EEO activity , the administrative judge correctly determined that the
appellant’s EEO complain ts were not covered by 5 U.S.C. § 2302 (b)(9)(A)(i).
See Bishop , 2022 MSPB 28, ¶ 16; Mudd v. Department of Veterans Affairs ,
120 M.S.P.R. 365 , ¶¶ 6-7 (2013) .
¶11 Finally, we modify the initial decision to find that , in addition to failing to
nonfrivolously allege that she made a protected disclosure, the appellant did not
nonfrivolously allege that she participated in protected activity that was a
8
contributing factor to any personnel action . The appellant alleged that the agency
retaliated against her for filing complaints with OSC, OIG, and the Secretary.
IAF, Tab 1 at 8. Assuming th at these activities are protected under 5 U.S.C.
§ 2302 (b)(9) (A), and (C), the appellant must nonfrivolously allege that they were
one factor that tended to affect an agency’s personnel action in a ny way. Salerno
v. Department of the Interior , 123 M.S.P.R. 230 , ¶ 13 (2016) . One way to
establish this criterion is the knowledge/timing test, under which an employee
may nonfrivolously allege that the activity was a contributing factor in a
personnel action through circumstantial evidence, such as evidence that the
official who to ok the personnel action knew of the activity and that the personnel
action occurred within a period of time such that a reasonable person could
conclude that the activity was a contributing factor in the personnel action. Id.
Here, t he appellant has not submitted evidence in support of an assertion that
agency officials knew about her alleged protected activities. She has not
otherwise presented evidence that her activities were a contributing factor in the
agency’s decision to take a personnel action ag ainst her. See Stile v. Department
of Homeland Security , 116 M.S.P.R. 263, ¶ 24 (2011) (stating that the
knowledge/timing test is not the only way for an appellant to satisfy the
contributing factor standard) . Accordingly, we find that the appellant has not
nonfrivolously alleged that her protected activities were a contributing factor in
the agency’s decision to take a personnel a ction against her.4
NOTICE OF APPEAL RIG HTS5
The initial decision, as supplemented by this Final Order, constitutes the
Board’s final decision in this matter. 5 C.F.R. § 1201.113 . You may obtain
4 We have reviewed the relevant legislation enacted during the pendency of this appeal
and have concluded that it does not affect the outcome of the appeal.
5 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights incl uded in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.
9
review of this final decision. 5 U.S.C. § 7703 (a)(1). By statute, the nature of
your claims determines the time limit for seeking such review and 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 applicabl e to your
claims and carefully follow all filing time limits and requirements. Failure to file
within the applicable time limit may result in the dismissal of your case by your
chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional 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
10
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or 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
to waiver of any requirement of prepayment of fees, costs, or other security. See
42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.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 .
11
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for 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
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
12
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 Fed eral
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you ar e interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Boa rd appellants before the 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 case s with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510.
13
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWeb sites.aspx .
FOR THE BOARD:
Washington, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board | AZAWI_SAMAR_SF_1221_16_0543_W_1_FINAL_ORDER_1999640.pdf | 2023-02-03 | null | SF-1221 | NP |
3,631 | https://www.mspb.gov/decisions/nonprecedential/ADAMS_CHARLES_DERECK_DC_0752_20_0303_I_1_FINAL_ORDER_1999649.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
CHARLES DERECK ADAMS ,
Appellant,
v.
DEPARTMENT OF DEFENS E,
Agency.
DOCKET NUMBER
DC-0752 -20-0303 -I-1
DATE: February 3, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL1
Charles Dereck Adams , Herndon, Virginia, pro se.
Paul Y. Kim , Esquire, Redstone Arsenal, Alabama, 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 the appeal for lack of jurisdiction . For the reasons set forth below, the
appellant’s petition for review is DISMISSED as untimely filed without good
cause shown. 5 C.F.R. § 1201.114 (e), (g).
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or dis tinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c).
2
BACKGROUND
¶2 The appellant filed an appeal in which he alleged that certain named agency
officials had abused their power and obstructed justice when they chose to “look[]
the other way” while the agency mistreated him in 2010. Initial Appeal File
(IAF), Tab 2 at 4. He requested a hearing. Id. at 2. In support of his claim, he
submitted 94 pages of documents. IAF, Tab 3. The administrative judge issued a
jurisdictional show cause order, IAF, Tab 4, to which the appellant did not
respond.
¶3 On February 4, 2020,2 the administrative judge issued an initial decision on
the written record in which he dismissed the appeal for lack of jurisdiction. IAF,
Tab 5, Initial Decision (ID) at 1, 3. The administrative judge notified the parties
that the initial decision would beco me final on March 10, 2020, if neither party
filed a petition for review. ID at 3.
¶4 On January 14, 2021, the appellant filed a petition for review in which he
challenged the administrative judge’s jurisdictional finding, arguing that the
Board has adjudica ted many of his previous “discrimination complaints” and that,
if this matter is dismissed, there will be no other relief possible for him. Petition
for Review (PFR) File, Tab 1 at 4. With his petition, he submitted a list of the
many cases he has pursue d before the Board. Id. at 6-8.
¶5 The Clerk of the Board notified the appellant that the petition for review
appeared to be untimely filed because the initial decision was issued on
February 4, 2020, but the petition for review was not postmarked or receive d on
or before March 10, 2020. PFR File, Tab 2. The Clerk afforded the appellant an
opportunity to file a motion to accept his filing as timely and/or to waive the time
2 The initial decision is dated January 4, 2020, IAF, Tab 5, but the accompanying
certificate shows that the decision was served on the parties on February 4, 2010. IAF,
Tab 6. For reasons set forth in this decision , we believe that the January date is
incorrect but that this apparent error did not prejudice the appellant’s rights. Karapinka
v. Department of Energy , 6 M.S.P.R. 124 , 127 (1981).
3
limit for good cause, and stated that such a motion must be accompanied by a
statemen t signed under penalty of perjury, or an affidavit, postmarked, if mailed,
or sent by facsimile on or before January 29, 2021. Id. at 2. The appellant did
not respond.
ANALYSIS
¶6 The Board’s regulations require that a petition for review be filed within
35 days after the date of issuance of the initial decision, or, if a party shows that
he received the initial decision more than 5 days after it was issued, within
30 days after his receipt of the initial decision. Palermo v. Department of the
Navy , 120 M.S.P.R. 694 , ¶ 3 (2014); 5 C.F.R. § 1201.114 (e). The appellant does
not indicate that he received the February 4, 2020 initial decision more than
5 days after it was issued. Therefore, as stated in the initial decision, the petition
for review was due 35 days later, on March 10, 2020. ID at 3 -4. Therefore, the
appellant’s petition for review, filed on January 14, 2021, was 10 months late.
PFR File, Tab 1.
¶7 The Board will waive the filing deadline for a petition for review upon a
showing of good cause for the untimely filing. Palermo , 120 M.S.P.R. 694 , ¶ 4;
5 C.F.R. § 1201.114 (g). The party who submits an untimely petition for review
has the burden of establishing good cause for the untimely filing by showing that
he exercised due diligence or ordinary prudence under the particular
circumstances of the case. Palermo , 120 M.S.P.R. 694 , ¶ 4; Alonzo v.
Department of the Air Force , 4 M.S.P.R. 180 , 184 (1980). To determine whether
a party has shown good cause, the Board will consider the length of the delay, the
reasonableness of his excuse and his showing of due diligence, whether he is
proceeding pro se, and whether he has presented evidence of th e existence of
circumstances beyond his control that affected his ability to comply with the time
limit or unavoidable casualty or misfortune that similarly shows a causal
relationship to his ability to timely file his petition. Moorman v. Department of
4
the Army , 68 M.S.P.R. 60 , 62-63 (1995), aff’d , 79 F.3d 1167 (Fed. Cir. 1996)
(Table).
¶8 Applying these factors, we find that the app ellant has not shown good cause
for his filing delay. Despite his pro se status, his 10 -month delay in filing his
petition for review is significant. Dow v. Department of Homeland Security ,
109 M.S.P.R. 633 , ¶ 9 (2008) (finding a delay of more than 1 month to be
significant, despite an appellant’s pro se status). As noted, the appellant did not
respond to the Clerk of the Board’s notic e of his need to establish good cause for
his untimely filing and did not otherwise attempt to explain his filing delay. PFR
File, Tab 1. Therefore, we conclude that the appellant has set forth no grounds
for finding good cause for a waiver of the filing deadline. Bell v. Department of
Homeland Security , 112 M.S.P.R. 33 , ¶ 8 (2009) (dismissing a petition for review
as untimely filed b ecause a pro se appellant failed to respond to the Clerk’s order
on timeliness or otherwise demonstrate good cause for the delay).
¶9 Accordingly, we dismiss the petition for review as untimely filed. This is
the final decision of the Merit Systems Protectio n Board regarding the timeliness
of the petition for review. The initial decision remains the final decision of the
Board regarding the Board’s lack of jurisdiction over the underlying appeal.
NOTICE OF APPEAL RIG HTS3
You may obtain review of this final d ecision. 5 U.S.C. § 7703 (a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the 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 d escribed below do not represent 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 mo st appropriate in any matter.
5
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully foll ow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one a pplies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeki ng
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is t he court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Fe deral Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
6
Board neither endorses the services provided by any att orney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, 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 Fed eral Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case,
and your representative receives this decision before yo u do, then you must file
7
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employm ent Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleb lowing disclosures under 5 U.S.C. § 2302 (b)(8) or
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.4 The court of appeals must receive your petition for
4 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
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 co urt at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.u scourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appe al to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195,
132 Stat. 1510.
9
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD:
Washington, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board | ADAMS_CHARLES_DERECK_DC_0752_20_0303_I_1_FINAL_ORDER_1999649.pdf | 2023-02-03 | null | DC-0752 | NP |
3,632 | https://www.mspb.gov/decisions/nonprecedential/SIMON_ANTHONY_W_DA_1221_16_0269_W_1_FINAL_ORDER_1998802.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
ANTHONY W. SIMON,
Appellant,
v.
DEPARTMENT OF JUSTIC E,
Agency.
DOCKET NUMBER S
DA-1221 -16-0269 -W-1
DA-3330 -15-0621 -I-1
DATE: February 2, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL1
Anthony W. Simon , Lancaster , Texas, pro se.
Jennifer Merkle , Grand Prairie, Texas, for the agency.
John T. LeMaster , Esquire, 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
denied his requests for corrective action in these joined appeal s. For the reasons
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
require d to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c).
2
set forth below, the petition for review is DISMISSED as untimely filed without
good cause shown for the delay . 5 C.F.R. § 1201.114 (e), (g).
BACKGROUND
¶2 On September 22, 2015, the appellant filed an appeal pursuant t o the
Veterans Employment Opportunities Act of 1998, alleging that his rights to
veterans’ preference were violated when the agency failed to select him for a
position. Simon v. Department of Justice , MSPB Docket No. DA -3330 -15-0621 -
I-1, Initial Appeal Fi le, Tab 1. Thereafter, on March 16, 2016, he filed an
individual right of action appeal, alleging that the agency retaliated against him
for his protected whistleblowing activities. Simon v. Department of Justice ,
MSPB Docket No. DA -1221 -16-0269 -W-1, Ini tial Appeal File (0269 IAF) , Tab 1.
The administrative judge joined the appeals and held the appellant’s requested
hearing. 0269 IAF, Tabs 15, 30.
¶3 On September 15, 2016, the administrative judge issued an initial decision
denying the appellant’s requests for corrective action in both appeals . Simon v.
Department of Justice , MSPB Docket No s. DA -1221 -16-0269 -W-1, DA-3330 -15-
0621 -I-1, Initial Decision (ID) (Sept. 15, 2016). She provided notice to the
appellant that the initial decision would become final unless a petition for review
was filed by October 20, 2016 . ID at 2.
¶4 The appellant filed his petition for review on October 21, 2016. Petition for
Review (PFR) File, Tab 1. In an acknowledgment letter from the Office of the
Clerk of the Board (Clerk), the Clerk informed the appellant that the Board may
dismiss his petition for review as untimely filed unless he submitted a motion
showing that h is petition for review was timely filed or that good caus e existed
for the filing delay. PF R File, Tab 2. The Clerk enclosed a “Motion to Accept
Filing as Timely and/ or to Ask the Board to Waive or Set Aside the Time Limit.”
Id. The Clerk’s letter afforded the appellant until November 8 , 2016, to file that
motion. Id.
3
¶5 On November 15, 2016 , seven days after the deadline established by the
Clerk, the appell ant filed a motion on the timeliness of his petition for review .
PFR File, Tab 3. In the motion, the appellant avers that he was under a doctor’s
care for the flu , and for abrasions on his vocal chords as a result of the flu , during
the week of October 13, 2016. Id. at 4. He states that, when he returned to work,
he filed his petition for review and it was then that he discovered he was 1 day
late. Id. He attach ed to his motion a doctor’s note, whi ch stated that the
appellant had been under a doctor’s care as of October 13, 2016, and that he
could return to work on October 18, 2016. Id. at 7.
¶6 The agency moved to strike the appellant’s motion as untimely filed and,
alternatively, for leave to file a response to his petition for review. PFR File,
Tab 4. Attached to its motion, the agency submitted certain Time and Attendance
records for the appellant . Id. at 11 -14. The records show that, from October 13
to October 20, 2016, the appellant worked for 8 hours every day except on
October 17, 2016, when he worked for 6 hours and used 2 hours of annual leave ,
and on October 20, 2016, when he worked for 3 hours an d used 5 hours of annual
leave. Id. at 12 -13.
DISCU SSION OF ARGUMENTS O N REVIEW
¶7 A petition for review generally must be filed within 35 days after the date
of issuance of the initial decision or, if the party filing the petition shows that the
initial decision was received more than 5 days after it was issued, within 30 days
after the party received the initial decision. 5 C.F.R. § 1201.114 (e). Here, the
administrative judge issued the initial decision on September 15, 2016 , making
the petition for review due on or before October 20, 2016 . ID at 2. The
administrative judge informed the appellant of this deadline in the initial
decision. Id. The appellant, however, filed his petition for review on October 21,
2016 . PFR File, Tab 1. We thus find that the appella nt filed h is petition for
review 1 day late.
4
¶8 The Board will waive the time limit for filing a petition for review only
upon a showing of good cause for the filing delay. 5 C.F.R. § 1201.11 4(g). The
party submitting the untimely petition for review has the burden of establishing
good cause for the untimely filing by showing that he exercised due diligence or
ordinary prudence under the particular circumstances of the case. Palermo v.
Department of the Navy , 120 M.S.P.R. 694 , ¶ 4 (2014). To determine whether a
party has established good cause, the Board will consid er the length of the delay,
the reasonablen ess of the excuse and the party’ s sho wing of due diligence,
whether he is proceeding pro se, and whet her he has presented evid ence of
circumstances beyond his control that affected h is ability to comply with the time
limits or of unavoidable casualty or misfortune that similarly sh ows a causal
relationship to his inability to timely file h is petition. Id.
¶9 In addition, t he Board will find goo d cause to waive the time limit for filing
when an appellant has demonstrated that he suffered from an illness that affected
his ability to file on time. Sutton v. Office of Personnel Management ,
113 M.S.P.R. 576 , ¶ 10 (2010) , aff’d , 414 F. App’x 272 (Fed. Cir. 2011) ; Lacy v.
Department of the Navy , 78 M. S.P.R. 434 , 437 (1998). To establish that an
untimely filing was the result of an illness, the party must do the following :
(1) identify the time period during which he suffered from the illness; (2) submit
medical evidence showing that he suffered from the alleged illness during that
time period; and (3) explain how the illness prevented him from timely filing his
appeal or a re quest for an extension of time. Sutton , 113 M.S.P.R. 576 , ¶ 10 . The
proffered medical evidence must address the entire period of the delay.
Jerusalem v. Department of the Air Force , 107 M.S.P.R. 660 , ¶ 5, aff’d ,
280 F. App’x 973 (Fed. Cir. 2008). While there is no general incapacitation
requirement, the appellant is required to explain why his alleged illness impaired
his abili ty to mee t the Board’ s filing deadline or seek an extension of time.
Sutton , 113 M.S.P.R. 576 , ¶ 10 .
5
¶10 Although the appellant is pro ceeding pro se and the 1 -day filing delay was
minimal, the Board has consistently denied a waiver of its regulatory filing
deadline whe n a good reason for the delay is not shown. See Cabarloc v.
Department of Veterans Affairs , 112 M.S.P.R. 453 , ¶ 10 (2009). Here, the
appellant claims that good cause exists for the filing delay because he was sick in
bed with the flu. PFR File, Tab 3 at 5.2 However, he does not adequately explain
how his illness prevented him from timely filing his petition for review or
requesting an extension of time to do so. Moreover, even if the appellant could
make the required sho wing, the medical documentation he provided cleared him
to work on October 18, 2016, two days before the filing deadline. Id. at 7.
Further , although the appellant claims he was out of work and in bed sick with the
flu during the week of October 13, 2016 , the agency produced his Time and
Attendance records that show, with only two exceptions when he used annual
leave as described above, that he reported to work during that time period . PFR
File, Tab 4 at 12 -13. Under these circumstances, we find that the appellant has
failed to demonstr ate good cause for his untimely filing .
¶11 Accordingly, we dismiss the petition for review as untimely filed. This is
the final decision of the Merit Systems Protection Board regarding the timeliness
of the petition for re view. The initial decision remains the final decision of the
Board regarding the appellant’s requests for corrective action.
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
2 We deny the agency’s motion to strike the appellant’s motion on timeliness as
untimely filed. PFR File, Tab 4. Although the appellant has not established good cause
for his untimely filing, we nevertheless have considered his pleading in making our
determination concerning the timeliness of his petition for review. PFR File, Tab 3.
3 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.
6
review and the 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.
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 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 lat er than 30 calendar days
after your representative receives this decision. If the action involves a claim of
discrimination based on race, color, religion, sex, national origin, or a disabling
condition, you may be entitled to representation by a court -appointed lawyer and
to waiver of any requirement of prepayment of fees, costs, or other security. See
42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district courts can be found at their respective
websites, which can be access ed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the
8
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later th an 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial r eview either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.4 The court of appeals must receive your petition for
4 The original statutory provision that provided for judicial review of certain
whistlebl ower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
9
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the 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.
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195,
132 Stat . 1510.
10
Contact information for the courts of appeals can be 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 | SIMON_ANTHONY_W_DA_1221_16_0269_W_1_FINAL_ORDER_1998802.pdf | 2023-02-02 | null | S | NP |
3,633 | https://www.mspb.gov/decisions/nonprecedential/DAVIS_SHERLENA_E_DA_0752_21_0227_I_1_FINAL_ORDER_1998852.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
SHERLENA E. DAVIS,
Appellant,
v.
DEPARTMENT OF THE AI R FORCE,
Agency.
DOCKET NUMBER
DA-0752 -21-0227 -I-1
DATE: February 2, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL1
Sherlena E. Davis , Oklahoma City, Oklahoma, pro se.
Michael J. Taber and Michele S. McNaughton , Tinker Air Force Base ,
Oklahoma, for the agency.
BEFORE
Cathy A. Harris , Vice Chair man
Raymond A. Limon, Member
Tristan L. Leavitt, Member
Member Leavitt dissents without an opinion.
FINAL ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
affirmed her removal for attendance reasons . 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 nonprecedentia l 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 th e Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c).
2
errone ous 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 d ue diligence, was not available when the record closed. Title 5
of the Code of Federal Regulations, section 1201.115 ( 5 C.F.R. § 1201.115 ).
After fully considering the filings in this appeal, we conclude that the petitioner
has not established any basis under section 1201.115 for granting the petition for
review. Therefore, we DENY the petition for review . Except as expressly
MODIFIED to supplement the administrative judge’s findings on the appellant’s
claim of religious discrimination , we AFFIRM the initial decision .
BACKGROUND
¶2 The appellant was a GS -06 Pharmacy Technician stationed at the Medical
Treatment Cente r (MTC) in Tinker Air Force Base, Oklahoma. Initial Appeal
File (IAF), Tab 1 at 1, 7. Her primary duties included filling and refi lling
prescriptions, entering orders into a medical database, checking medication stock,
inspecting the pharmacy, and consul ting with patients and physicians. IAF,
Tab 29, Hearing Transcript ( HT) at 14 (testimony of the appellant’s supervisor),
141-42 (testimony of the appellant). The appellant worked an 8 -hour per day
schedule, Monday through Friday. IAF, Tab 7 at 56.
¶3 Begin ning in March 2020, in response to the COVID -19 pandemic, the
agency made a series of changes to its operations in the pharmacy and in the
MTC as a whole. HT at 14 -22 (testimony of the appellant’s supervisor). As
relevant here, one of the changes was tha t the agency began requiring people to
wear masks when entering the MTC. The agency stationed personnel at the MTC
entryway both to screen individuals for fever and to enforce its masking policy.
3
HT at 20 -21 (testimony of the appellant’s supervisor). Ne vertheless, employees
were able to remove their masks once inside the facility, as long as they kept
physically distanced from other people. HT at 22, 28 (testimony of the
appellant’s supervisor).
¶4 In September 2020, the appellant was stopped twice at th e entryway for not
wearing a mask. HT at 23, 28 (testimony of the appellant’s supervisor), 135 -36
(testimony of the appellant). The appellant had several meetings with agency
officials, including her supervisor, the Officer in Charge of the pharmacy, and the
Noncommissioned Officer in Charge, and informed them that she had a sincerely
held religious belief that precluded her from wearing a mask or other face
covering. HT at 23 -25, 54 -55 (testimony of the appellant’s supervisor), 135 -37
(testimony of the appellant) .
¶5 In November 2020, the agency made its masking policy more stringent,
requiring individuals in the MTC to be masked at all times unless they were alone
in a room, behind closed doors. HT at 22 -23, 28 -29 (testimony of the appellant’s
supervisor) . Things came to a head on November 2, 2020, when the appellant
met with her first- and second -level supervisor s and the Noncommissioned
Officer in Charge and was informed that, if she did not wear a face covering, she
would not be able to enter the MTC a nd report for duty. IAF, Tab 14 at 109; HT
at 52 (testimony of the appellant’s supervisor), 154 (testimony of the appellant).
The appellant notified these officials that she intended to pursue her remedies
through the equal employment opportunity (EEO) p rocess. IAF, Tab 14 at 109.
The appellant filed an informal EEO complaint on November 4, 2020, and
subsequently filed a formal complaint of discrimination. HT at 140 (testimony of
the appellant).
¶6 In early November, the appellant began to absent herself from work in order
to avoid the mask requirement. IAF, Tab 14 at 68, 70, 8 6; HT at 29 (testimony of
the appellant’s supervisor). The appellant took annual leave from Wednesday,
November 4 through Friday, November 6, 2020. IAF, Tab 20 at 9. The
4
followin g week, the appellant took annual leave on November 9, 10, and 12,
2020, with November 11 being the Veterans Day Holiday. IAF, Tab 14 at 74. It
is not clear from the record what the appellant’s status was for Friday,
November 13, 2020. It a ppears that, at this point, her annual leave balance was
exhausted. IAF, Tab 14 at 82, Tab 24 at 4 -5; HT at 29 (testimony of the
appellant’s supervisor). Nevertheless, the appellant remained absent from work.
On each day of the following workweek, beginning November 16, 2020, the
appellant informed her supervisor that she would not be coming into work due to
her religious objection to the mask requirement. IAF, Tab 14 at 68, 70, 86, 94. It
appears that the next time the appellant communicated with her supervisor wa s
December 2, 2020, when she retroactively requested 6 hours of annual leave ,
3 hours each on the days before and after Thanksgiving. Id. at 91.
¶7 After that, the appellant did not communicate with her supervisor again
until January 2021, when her supervisor propo sed her removal. IAF, Tab 7
at 56-58; HT at 40 (testimony of the appellant’s supervisor). The proposal was
based on two charges —unauthorized absence and failure to comply with
established leave procedures. IAF, Tab 7 at 56. Under the u nauthorized absence
charge, the agency alleged that the appellant failed to report for duty as scheduled
on November 17 and 18, 2020, and from November 30, 2020 , to January 4, 2021.
Id. Under the failure to comply with established leave procedures charge , the
agency alleged that the appellant failed to follow leave requesting procedures on
those same dates. Id. After the appellant responded, the agency issued a decision
sustaining the charges and removing her effective April 5, 2021. IAF, Tab 1 at 7,
Tab 7 at 16 -18, 29 -34.
¶8 The appellant filed a Board appeal, raising affirmative defenses of harmful
procedural error, retaliation for EEO activity, and discrimination based on
religion. IAF, Tab 1 at 3, 5, Tab 4 at 2, Tab 21 at 3. After a hearing, the
admi nistrative judge issued an initial decision affirming the appellant’s removal.
IAF, Tab 27, Initial Decision (ID). The administrative judge sustained both
5
charges and upheld the removal penalty. ID at 6 -10, 19 -21. She further found
that the appellant f ailed to prove any of her affirmative defenses. ID at 10 -18.
¶9 The appellant has filed a petition for review, contesting the administrative
judge’s findings on her claims of religious discrimination and EEO reprisal.
Petition for Review (PFR) File, Tab 1. The agency has responded to the petition
for review, and the appellant has filed a reply to the agency’s response.2 PFR
File, Tabs 4 -5.
ANALYSIS
¶10 The Board generally will consider only issues raised in a timely filed
petition or cross petition for review. 5 C.F.R. § 1201.115 . The appellant does
not contest the administrative judge’s findings on the charges, nexus, or penalty,
or her findings on the appellant’s affirmative defense of ha rmful procedural error.
PFR File, Tab 1 at 63. Indeed, the appellant appears to concede that her removal
would promote the efficiency of the service but for the issues of religious
discrimination and retaliation for EEO activity. Id. We have reviewed t he
administrative judge’s findings on the uncontested issues of charge, nexus,
penalty, and harmful procedural error, and we discern no basis to disturb them.
ID at 6 -10, 17 -21. Arguably, the two charges should have been merged to the
extent that they co ver the same dates and are otherwise based on the same facts.
See McNab v. Department of the Army , 121 M.S.P.R. 661 , ¶ 4 n.3 (2014).
Nevertheless, even if the administrative judge erred in considering these charges
separately, we find no indication that this had any effect on the outcome of the
initial decision. See Panter v. Department of the Air Force , 22 M.S.P.R. 281 ,
282 (1984) (holding that a n adjudicatory error that is not prejudicial to a party’s
substantive rights provides no basis to reverse an initial decision ). This is
2 The appellant also filed a supplement to her petition for review, but this consists only
of two identical copies of the pleading that she submitted in her original petition for
review filing. PFR File, Tab 1 at 63, Tab 2.
6
particularly so considering that the deciding official credibly testified that he
would have removed the appellant based on either of the two charges alone. ID
at 14 n.10; HT at 92 -93 (testimony of the deciding official).
¶11 However, even if an ag ency proves its charges, the Board may not sustain
an adverse action if the appellant proves by preponderant evidence that the
agency’s decision was based on a prohibited personnel practice under 5 U.S.C.
§ 2302 (b). 5 U.S.C. § 7701 (c)(2)(B); 5 C.F.R. § 1201.56 (b)(2)(i)(C), (c)(2). In
this case, the appellant claim s that the agency’s decision was based on two
different prohibited personnel practices under 5 U.S.C. § 2302 (b)(1)(A) —
discrimination based on religion and retaliation for EEO activity. IAF, Tab 21
at 3; see 42 U.S.C. § 2000e -16(a). The administrative judge considered the
appellant’s religious discrimination claim under both disp arate treatment and
reasonable accommodation theories. ID at 10 -16.
¶12 An appellant who asserts an affirmative defense of disparate treatment
discrimination based on religion, in violation of 42 U.S.C. § 2000e -16, must
prove by preponderant evidence that the prohibited consideration was a
motivating factor in the contested personnel action. Pridgen v. Office of
Management & Budget , 2022 MSPB 31 , ¶¶ 20-21. However, to obtain the full
measure of relief available under the statute , the appellant must show that
religion was a but -for cause of the action. Id., ¶ 22. In determining whether the
appellant has met her burden, the Board must consider all of the evidence
together as a whole. See id. ¶ 24.
¶13 In her initial decision , the administrative judge found that the appellant
failed to meet her initial burden of showing that her religious beliefs were a
motivating factor in her removal. ID at 12. She found that the appellant
presented no evidence to support her claim and that both the appellant ’s
supervisor and the deciding official credibly testified that the removal action was
not motivated by any animus toward the appellant for her relig ious convictions.
7
ID at 12; HT at 68 -69 (testimony of the appellant ’s supervisor); HT at 91
(testimony of the deciding official ).
¶14 On petition for review , the appellant argues that a Human Resource s
Specialist testified at the hearing that the appellant ’s religious beliefs were the
root cause of her removal. PFR File, Tab 1 at 63. We find that the appellant has
mischaracterized this testimony. The Human Resources Specialist conceded that
the appellant ’s religious objection to wearing a mask led to the a bsences
underlying her removal, a fact which is not in dispute. HT at 123 (testimony of
the Human Resource s Specialist). However, t his testimony does not suggest that
the religious convictions themselves, either alone or in conjunction with the
unauthori zed absences, were a motivating factor in the removal.
¶15 The appellant also argues that a Pharmacy Technician testified that her
removal was based on religious discrimination. PFR File, Tab 1 at 63. We
disagree with the appellant ’s characterization of th is testimony as well. When
asked whether “the root of the appellant ’s termination was because of her
religious beliefs and not wearing a mask,” this witness responded that he believed
that her removal “was due to not wearing the mask.” HT at 130 -31 (test imony of
the Pharmacy Technician). The record shows that this nonmanager ial,
nonsupervisory employee was not involved in the removal process and that he
misunderstood the nature of the charges underlying the removal. HT at 131
(testimony of the Pharmacy Technician). We find no basis to conclude that he
had any knowledge of the motives of the responsible agency officials. In any
event, although the appellant ’s religious beliefs, her refusal to wear a mask, and
the absences underlying her removal are link ed, a finding that the appellant was
removed for either unauthorized absences or failure to follow masking policy
does not entail a finding that the removal was motivated by the appellant ’s
religious beliefs.
¶16 The appellant further argues that the proposing official initially included in
the proposal notice information about the appellant refusing to wear a mask due
8
to her religious beliefs, but the Human Resources office deleted that language
from the final copy of the proposal. PFR File, Tab 1 at 63. The appellant ’s
argument is supported by the record. HT at 48 -49 (testimony of the appellant ’s
supervisor), 122 -23 (testimony of the Human Resources Specialist). The
supervisor’s initial draft of the proposal is not included in the record, however,
and the record does not otherwise reflect her words in substance, meaning, or
context. In any event, the record shows that the Human Resources office deleted
this language because it determined that the masking requirement and the
appellant ’s religious objections to it were not d irectly relevant to the
absence -related charges. HT at 122 -23 (testimony of the Human Resources
Specialist). We find no basis to infer from this that religious discrimination was
a motivating factor in the appellant ’s removal.
¶17 To prove an affirmative defense of discrimination based on a failure to
accommodate an employee’s religious beliefs, an appellant must show that she
holds a bona fide religious belief that conflicts with an employment requirement;
has informed her employer of the conflict; and was discharged or disciplined for
failing to comply with the conflicting requirement. See Reed v. Department of
Transportation , 76 M.S.P.R. 126 , 131 (1997); Miller v. U.S. Postal Service ,
EEOC Appeal No. 01930003 , 1993 WL 1505208 , at *3 (Sept . 23, 1993). If the
appellant meets this burden, the Board will consider whether the agency has
shown that it could not reasonably accommodate the appellant without undue
hardship or that the appellant has been accommodated .3 Miller , 1993 WL
3 Both Title VII and the Americans with Disabilities Act (ADA) require employers to
make “reasonable accommodation s” for their employees absent “undue hardship. ”
42 U.S.C. § § 2000e (j), 12112(b)(5). However, the sta ndard for undue hardship in a
religious accommodation case under Title VII is far lower than the standard for undue
hardship in a disability accommodation case under the ADA. Petitioner v. Department
of Energy , EEOC Petition No. 0320130027 , 2014 WL 480211 0, at *6 n.2. (Sep t. 19
2014). Under Title VII, the threshold for undue hardship is “ more than a de minimis
cost,” 29 C.F.R. § 1605.2 (e)(1), whereas under the ADA, the threshold for undue
hardship is “ significant difficulty or expense ,” 42 U.S.C. § 12111 (10).
9
1505208, at *3. The reasonableness of an employer’s accommodation must be
determined on a case -by-case basis, taki ng into account the unique circumstances
of each situation. Id. Accommodations for religious practices include, but are
not limited to , voluntary substitutions or swaps, flexible scheduling, or lateral
transfers and changes of job assignments. 29 C.F.R. § 1605.2(d)(1) . Any
reasonable accommodation proffered by the employer that removes the conflict
between the employee’s religious beliefs and the requir ements of the work place
is suffic ient to meet its accommodation obligation. Miller , 1993 WL 1505208,
at *4. To show undue hardship, an agency must demonstrate that an
accommodation would require more than a de minimis cost. Trans World
Airlines v. Hardison , 432 U.S. 63 , 74 (1977). Relevant factors may include the
type of workplace, the nature of t he employee’ s duties, the identifiable cost of the
accom modation in relation to the size and operating costs of the employer, and
the number of employees who will in fact need a particular accommodation.
Frances A. v. Department of Justice , EEOC Appeal No. 2019004187 , 2020 WL
7241814 , at * 4 (Nov. 30 , 2020) .
¶18 In her initial decision , the administrative judge found that the appellant
proved her prima facie case. Specifically, she found that the appellant had a bona
fide religious belief that conflicted with the agency ’s masking requirement, the
appellant communicated this fact to the agency , and the appellant ’s removal was
based on absences related to her religious objections to the mask mandate . ID
at 15-17. However, she also found that the agency met its burde n of showing
that accommodating the appell ant’s beliefs would have caused an undue hardship.
ID at 17-19. The administrative judge found that the appellant suggested and the
agency considered various forms of accommodation, including spending the day
in a closed office typing prescriptions and w orking alone at the pharmacy at
night, but the agency reasonably rejected those proposals due to unfeasibility and
10
safety and security concerns.4 Id. As set forth below, we modify the initial
decision to supplement these findings .
¶19 On petition for review , the appellant argues that it would not have been an
undue hardship for the agency to allow her to work from home. PFR File, Tab 1
at 63. She argues that she previously worked a t a Coumadin clinic, telephoned
patients to schedule their appointments, and never had to go into the pharmacy to
fill a prescription. Id. However, during the time period at issue, the appellant
was not working at the Coumadin clinic; she was working at a pharmacy as a
Pharmacy Techni cian, and filling prescriptions was a major part of her job.
Moreover, the record shows that during the early stages of the pandemic, the
pharmacy reduced staffing by having half of the staff work in the pharmacy and
the other half “telework.” HT at 15 ( testimony of the supervisor). However,
even though these employees’ hours were recorded as telework and they were
technically in duty status, there is no work that a Pharmacy Technician can
perform from home, so these “teleworking” employees were, in real ity, not
performing any duties whatsoever. HT at 16, 18 (testimony of the appellant’s
supervisor). If there was any arrangement at any cost that the agency could have
made for the appellant to perform some sort of work from home, there is no
evidence of it in the record. An accommodation that would have essentially
4 To the extent th e administrative judge found that the agency offered reasonable
accommodations in the form of wearing a scarf or face shield, such measures fell within
the heart of the appellant’s religious objections, and thus would not have removed the
conflict between the appellant’s religious beliefs and the requirements of the workplace.
Moreover, the administrative judge’s finding that the appellant’s proposed
accommodations needed to have enabled her to perform the “essential functions ” of her
position also appears to be incorrect. As set forth above, an accommodation for
religious practices may include a change in job assignments. For the reasons set forth
below, however, these errors do not warrant a different result. See Panter v.
Department of the Air Force , 22 M.S.P.R. at 282 (holding that an adjudicatory error
that is not prejudicial to a party’s substantive rights provides no basis for reversal of an
initial decision).
11
required the agency to pay the appellant for not working would result in more
than a de minimis cost, and therefore impose an undue hardship .
The appellant also argues that she could have stayed behind closed doors and
typed all day, and that there are already several Pharmacy Technicia ns who do
that. PFR File, Tab 1 at 63. However, there is no evidence in the record that this
is the case. In any event, a s the administrative judge correctly found, the
appellant’s proposal would essentially require that she remain in a closed office
all day every day without leaving to use the restroom or for any other urgent
reason that might come up, which is not realisti c. ID at 15. Such an
accommodation would thereby bring the appellant into contact with coworkers
and/or patients when she would leave the closed office unmasked during the work
day, thereby exposing those individuals to a heightened risk of contracting
COVID -19. This would constitute an undue hardship to the agency . See
Aukamp -Corcoran v. Lancaster General Hospital , No. 19 -5734, 2022 WL
507479 , at *6 -8 (E.D. Pa. 2022) ( finding that granting a nurse’s request for a
religious exemption from an influenza vaccination requirement would result in an
undue hardship due to the potential for increased hospitalization and death to
patients ); Barrington v. United Airlines, Inc. , 566 F. Supp. 3d 1102 (D. Colo.
2021) (holding that the increased risk of employees con tracting COVID -19, if
they were required to come into contact with unvaccinated coworkers , alone
constituted an undue hardship ).
¶20 In support of this determination, the Equal Employment Opportunity
Commission ’s Compliance Manual on Religious Discrimination, Section 12
(Jan. 15, 2021), https://www.eeoc.gov/laws/guidance/section -12-religious -
discrimination#_ftnref256 , describes what constitute s more than a de minimis
cost for purposes of determining undue hardship :
Costs to be considered include not only direct monetary costs but
also the burden on the conduct of the employer’s business. For
example, courts have found undue hardship where the
accommodation dim inishes efficiency in other jobs, infringes on
12
other employees’ job rights or benefits, impairs workplace safety, or
causes coworkers to carry the accommodated employee’s share of
potentially hazardous or burdensome work. Whether the proposed
accommodatio n conflicts with another law will also be co nsidered.
Example 37 of the Compliance Manual explains that a steel mill laborer’s
requested religious accommodation , to be permitted to wear a skirt because her
faith prohibited her from wearing pants, would pos e an undue hardship because
the eviden ce established that wearing pants was necessary for safety reasons
around the machinery operated by the laborer . Similarly, we find that the
appellant’s requested accommodation would impose an undue hardship because it
would impair workplace safety during the COVID -19 pandemic . See Barrington ,
566 F. Supp. 3d 1102 ; see also Bhatia v. Chevron U.S.A., Inc. , 734 F.2d 1382 ,
1383 -84 (9th Cir. 1984) (holding that the employer did not have to accommodate
the employee’s request that he be permitted to maintain a beard when the
company had a legitimate safety concern that the beard would prevent an airtight
seal of a mask in the event of exposure to toxic gas and expose the company to
liability); Draper v. U.S. Pipe & Foundry Co. , 527 F.2d 515 , 521 (6th Cir. 1976)
(“safety considerations are highly relevant in determining whether a proposed
[religious] accommodation would produce an undue hardship on an employer’s
business”) . This is particularly so given the wide segment of the population at
increased risk for getting severely ill from COVID -19, including those with a
weakened immune system, see Press Release, Centers for Disease Control and
Prevention (CDC), CDC updates, expands list of people at risk of severe
COVID -19 illness (June 25, 2020 ), https://www.cdc.gov/media/releases/2020/
p0625 -update -expands -covid -19.html , and the fact that the appellant worked in a
medical setting, i.e., a pharmacy within the 300-400 employee MTC that also
housed a family practice clinic, an optometry clinic, a flight medicine clinic, a
physical therapy clinic, an x -ray area, a chiropractor, a pediatric clinic, and an
OB/GYN clinic , HT at 19 (testimony of the appellant’s su pervisor ). The
appellant agreed that her clinic sees patients with compromised immune system s.
13
HT at 154 (testimony of the appellant) . On July 14, 2020, before the events at
issue in this appeal, the CDC indicated that it had “reviewed the latest science
and affirms that cloth face coverings are a critical tool in the fight against
COVID -19 that could reduce the spread of the disease,” and that “[t]here is
increasing evidence that cloth face coverings help prevent people who have
COVID -19 from spre ading the virus to others.” Press Release, CDC, CDC calls
on Americans to wear masks to prevent COVID -19 spread (July 14, 2020),
https://www.cdc.gov/media/releases/ 2020/p0714 -americans -to-wear -masks.html .
The press release quoted the CDC Director as saying that “[c]loth face coverings
are one of the most powerful weapons we have to slow and stop the spread of the
virus – particularly when used universally within a c ommunity setting.” Id.
Under the particular circumstances of this case, we find that accommodation of
the appellant’s religious beliefs would have require d more than a de minimis cost ,
and thereby impose d an undue hardship upon the agency.
¶21 The appellant further argues that the agency should have allowed her to
work in the pharmacy alone, at night, when no other employees were present.
PFR File, Tab 1 at 63. In her initial decision , the administrative judge found that
the agency reasonably rejected this proposal “ due to safety and security concerns,
both because the appellant would be alone in the clinic after hours and because
the pharmacy contains narcotics and other controlled drugs. ” ID at 15. The
appellant disputes this fi nding, arguing that she would not have been in the
building alone because hou sekeeping staff was nearby. In addition, t here are
cameras at the narcotics vaults, and she was the vault custodian for 2 years. PFR
File, Tab 1 at 63. We are not persuaded tha t the presence of housekeeping staff
somewhere in the building provides adequate security for a pharmacy during
hours that it would otherwise be shut down and secured. Nor do we find that the
appellant ’s religious accommodation needs should require the ag ency to remove
any layers of security from the measures that it takes to protect the controlled
substances and other valuable property contained within the pharmacy. As with
14
the accommodation addressed above, workplace safety concerns establish that
this requested accommodation would involve more than a de minimis cost to the
agency . For these reasons, we find that the appellant has not provided a
sufficient basis for us to disturb the administrative judge ’s finding that the
agency could not reasonably ac commodate the appellant without undue hardship.
ID at 14 -16.
¶22 Although we hold that the appellant in this case has not shown that the
agency could accommodate her religious belief without undue hardship, our
holding is limited to the facts of this particul ar case. This is especially so
considering the unique time period at issue in this appeal, which was at the
height of the COVID -19 pandemic and prior to the widespread availability of
vaccines. The Board will analyze a religious accommodation claim based on the
facts in existence at the time in which the operative events occurred. See Prach
v. Hollywood Supermarket , Inc. , No. 09-13756, 2010 WL 4608781 , at *1 (E.D.
Mich. 2010 ) (holding that the reasonableness of a religious accommodation is
generally determined on a case -by-case basis according to the facts as th ey
existed at the time of employment). We do not intend to foreclose the possibility
that an employee’s religious objection to masking could be accommodated in
other situations, including situations in which telework is a viable option , the
duty station and employment type lend themselves more readily to physical
distancing, or there is another position in which the employee ’s beliefs can be
accommodated and to which she could be reassigned or transferred in accordance
with 29 C.F.R. § 1605 .2(d)(1)(iii) . To the contrary, we take this occasion to
remind agencies that religious liberty is integral to the Federal Merit System , see
5 U.S.C. §§ 2301 (b)(2), 2302(b)(1), and any denial of a request for religious
accommodation will be closely scrutinized by the Board.
¶23 As with a claim of status -based discrimination under Title VII, to prove a
claim of retaliation for EEO activity, an appellant must prove by preponderant
evidence that the prohibited consideration was a motivating factor in the
15
contested personnel action. Pridgen , 2022 MSPB 31 , ¶ 30. Likewise, to obtain
the full measure of relief available under the statute, she must prove that
retaliation was a but -for cause of the action. Id., ¶¶ 22, 30.
¶24 In h er initial decision , the administrative judge found that the appellant
failed to make her initial showing that EEO reprisal was a motivating factor in
her removal. ID at 17. Although the appellant engaged in protected EEO activity
and both the proposing and deciding officials were aware of it, she found no
credible evidence to show that it was a motivating factor in the removal. Id. On
petition for review , the appellant argues that the deciding o fficial was aware of
her EEO complaint.5 PFR File, Tab 1 at 63. Based on the appellant’s argument,
it appears that she misunderstands the initial decision . As stated previously, the
administrative judge found that the deciding official was aware of the appellant ’s
EEO complaint; she simply did not find that this fact alone was enough to prove
the appellant ’s claim. ID at 17. We decline to reweigh the evidence on review.
See Gardner v. Department of Veterans Affairs , 123 M.S.P.R. 647 , ¶¶ 33-34
(2016), clarified by Pridgen , 2022 MSPB 31 , ¶¶ 23-24. For these reasons, we
find that the appellant has not provided the Board a sufficient basis to disturb the
administrative judge ’s finding that her EEO activity was not a motivating factor
in her removal.6 Accordingly, we affirm the initial decision.
5 To the extent the appellant may be alleging that the agency’s decision to place her in
an absence without leave (AWOL) status, rather than grant her leave without pay , was
based on disparate treatment religious discrimination or EEO reprisal, an agency’s
decision to place an appellant in an AWOL status is not itself an action appealable to
the Board. See, e.g. , Rose v. Department of Defense , 118 M.S.P.R. 302 , ¶ 14 (2012).
6 Because we discern no error with the administrative judge’s motivating factor analysis
or conclusion regarding the appellant ’s discrimination and retaliation claims , we do not
reach the question of whether the appellan t’s religion or EEO activity was a “but -for”
cause of the removal action. See Pridgen , 2022 MSPB 31 , ¶ 22 (holding that, while an
appellant who proves motivating factor and nothing more may be entitled to some
prospective relief, to obtain the full measure of relief available under the statute, she
must prove but -for causation.)
16
NOTICE OF APPEAL RIG HTS7
The initial decision, as supplemented by this Final Order, constitutes the
Board’s final decision in this matter. 5 C.F.R. § 1201.113 . You may obtain
review of this final decision. 5 U.S.C. § 7703 (a)(1). By statute, the nature of
your claims determines the time limit for seeking such review and the appropria te
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 opti on 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 r eview the law applicable to your
claims and carefully follow all filing time limits and requirements. Failure to file
within the applicable time limit may result in the dismissal of your case by your
chosen forum.
Please read carefully each of the three m ain possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the d ate of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
7 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.
17
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 2043 9
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within t he court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for informati on regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawfu l discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. ____ , 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 recei ves this decision. If the action involves a claim of
18
discrimination based on race, color, religion, sex, national origin, or a disabling
condition, you may be entitled to representation by a court -appointed lawyer and
to waiver of any requirement of prepa yment of fees, costs, or other security. See
42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C . 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
19
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no 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.8 The court of appeals must receive your
petition for review within 60 days of the date of issuance of this decision.
5 U.S.C. § 7703 (b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “G uide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit , you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
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.
20
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 | DAVIS_SHERLENA_E_DA_0752_21_0227_I_1_FINAL_ORDER_1998852.pdf | 2023-02-02 | null | DA-0752 | NP |
3,634 | https://www.mspb.gov/decisions/nonprecedential/ELMORE_NICOLE_S_CH_0752_16_0416_I_1_REMAND_ORDER_1998869.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
NICOLE S. ELMORE,
Appellant,
v.
DEPARTMENT OF VETERA NS
AFFAIRS,
Agency.
DOCKET NUMBER
CH-0752 -16-0416 -I-1
DATE: February 2, 2023
THIS ORDER IS NONPRECEDENTIAL1
Tinita Cole , Dayton, Ohio, for the appellant.
Demetrious A. Harris , Esquire , and Anita Carmichael , Dayton, Ohio,
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 appellant’s removal . For the reasons discussed below, we GRANT
the agency’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 administrative judges are not
required to follow or dis tinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c).
2
case to the regional office for further adjudication in accordance with this
Remand Order.
BACKGROUND
¶2 On November 9, 2015, the parties entered into a settlement agree ment
resolving the appellant’s prior r emoval appeal. Initial Appeal File (IAF), Tab 4
at 6-9. Pursuant to the terms of the settlement agreement, the agency agreed, in
relevant part, to rescind the appellant’s removal and to reinstate her to the
position of Medical Support Assistant (MSA) after she served a 5 -day suspension.
Id. at 8. In exchange, the appellant agreed to the provisions of a Last Chance
Agreement (LCA), which provided, in relevant part, that she would adhere to
Section IX of the agency’s Employee Handbook, VA Directive 5011 (Hours of
Duty and Leave), and all other policies, procedures, and processes reg arding
interactions with staff and veterans. Id. at 6, 9. The appellant further agreed that
her failure to comply with the terms and conditions of the LCA would result in
her immediate removal and that she waived all appeal rights in connection with a
removal pursuant to the LCA. Id.
¶3 On January 5, 2016, the agency reinstated the appellant. IAF, Tab 1 at 8.
On March 24, 2016, the Program Director of the Mental Health Service (Program
Director) notified the appellant that she was being charged with 2 h ours of
absence without leave (AWOL) in connection with an unauthorized absence from
her workstation between 8:30 a.m. and 10:30 a.m. on March 1, 2016. IAF, Tab 4
at 11. He notified her that he considered her response that she was, in fact, at her
workst ation between 8:00 a.m. and 9:45 a.m. on that date, but decided to proceed
with the charge because her response was inconsistent with the statements of two
other employees and his own observation. Id. at 11, 16. As a result, the agency
reinstated the app ellant’s prior removal and removed her from her position
effective May 13, 2016. IAF, Tab 1 at 8 -9.
3
¶4 The appellant appealed her removal to the Board, arguing that she did not
violate the LCA. Id. at 1-2, 14 -15. After holding the appellant’s requested
hearing, the administrative judge issued an initial decision finding that the
appellant proved that she did not violate the terms of the LCA and, therefore, that
the appeal rights waiver was not enforceable. IAF, Tab 24, Initial Decision (ID)
at 11 -12. Ac cordingly, she reversed the appellant’s removal. ID at 12.
¶5 The agency petitioned for review of the initial decision, and the appellant
responded in opposition to the agency’s petition for review. Petition for Review
(PFR) File, Tabs 1, 4.
DISCUSSION OF ARGUMENTS ON REVIEW
¶6 The Board lacks jurisdiction over an action taken pursuant to an LCA in
which an appellant waives her right to appeal to the Board. Bruhn v. Department
of Agriculture , 124 M.S.P.R. 1 , ¶ 9 (2016) . An appellant may establish that an
appeal rights waiver should not be enforced against her by showing, as relevant
here, that she complied with the LCA. Id. If an appe llant raises a nonfrivolous
allegation that she complied with an LCA, she is entitled to a jurisdictional
hearing to determine whether she, in fact, complied with the LCA.2 Id. At the
hearing, the appellant must prove jurisdiction by a preponderance of t he
evidence .3 Garcia v. Department of Homeland Security , 437 F.3d 1322 , 1344
(Fed. Cir. 2006) (en banc) ; 5 C.F.R. § 1201.56 (b)(2)(i)(A).
¶7 Here, as noted above, the appellant argued that she did not breach the LCA
because she was not AWOL , as alleged by the agency. IAF, Tab 1 at 15, Tab 4
at 2. In support of this claim, she submitted her March 9, 2016 response to the
2 Nonfrivolous allegations of Board jurisdiction are allegations of fact that, if proven,
could establish a prima facie case that the Board has jurisdiction over the matter at
issue. 5 C.F.R. § 1201.4 (s).
3 A preponderance of the evidence is the degree of relevant evidence that a reasonable
person, considering the record as a whole, would accept as sufficient to find that a
contested fact is more like ly to be true than untrue. 5 C.F.R. § 1201.4 (q).
4
Program Director regarding the potential AWOL charge, in which she stated that
she was at her desk between 8:00 a.m. and 9:45 a.m., at which time she took her
break, and returned to her desk at 10:07 a.m. IAF, Tab 4 at 16. The appellant
explained that, during her break, she was assisting a veteran in the hallway and
called an agency Social Worker to further assist the veteran. Id. She stated that
she and the veteran met the So cial Worker in the hallway and talked to him
together for approximately 15 minutes. Id. She also submitted a number of
witness statements, some of which supported her version of events and some of
which supported the agency’s position that the appellant was not at her work
station for 2 hours, as well as documents showing work she performed at
8:35 a.m., 8:37 a.m., 10:28 a.m., 10:36 a.m., 10:46 a.m., and 11:00 a.m . on the
date in question. Id. at 1-2, 12 -15, 17 -20, 25 -47. Because of the conflicting
evidence, the administrative judge found that it was appropriate to hold a
jurisdictional hearing to determine whether the appellant breached the LCA by
being away from her workstation for 2 hours on March 1, 2016, in violation of
agency policies. IAF, Tab 7.
¶8 At the hearing, the Pro gram Director conceded that the appellant’s 2 hours
of AWOL should be reduced to account for her authorized 15 -minute break, but
he maintained that she was away from her desk between 8: 30 a.m. and 10:30 a.m.
and that her duties re quired her to be at her desk. Hearing Transcript (HT)
at 7-14 (testimony of the Program Director) . He testified that he was in and out
of the workstation area during that period and noticed for the first time at around
8:30 a.m. that the appellant was no t at her desk. HT at 8 (testimony of the
Program Director) . He also testified that, because the Mental Health Clinic was
understaffed that morning, he called T.D., another MSA, to fill in and that she
arrived on the unit at about 9 a.m. Id. According t o the Program Director, T.D.
informed him at 10 a.m. that the appellant had not been to the unit since she
arrived. Id. He further testified that he personally saw the appellant return to t he
unit at around 10:30 a.m. Id. at 9.
5
¶9 T.D. confirmed the Prog ram Director’s testimony, testifying that she arrived
on the unit at approximately 9 a.m., that the appellant was not at her desk at that
time, and that the appellant did not return to the unit until ap proximately
10:30 a.m. HT at 33 -35 (testimony of P.D. ). Her earlier report of contact
similarly stated that s he came to the Mental Health C linic at around 9 a.m. on
March 1, 2016, to cover the staffing shortage and that the appellant was not there
until approximately 10:30 a.m. or 10:45 a.m. IAF, Tab 4 at 14.
¶10 The agency’s Suicide Prevention Case Manager (Case Manager) testified
that she saw the appellant in the hallway cha tting with two men at 8:25 a.m. —
before her daily 8:30 a.m. meeting —and saw her again chatting with the same
two men near a stairwell after the meeting. HT at 25, 27 -28 (testimony of the
Case Manager) . Her earlier written report of contact provided the same
information, but clarified that she saw the appellant talking to the two men near
the elevator after her meeting at approxi mately 10:45 a.m. on the date in question
IAF, Tab 4 at 13. She further testified that she saw T.D. in the Mental Health
Clinic that morning. HT at 28 (testimony of the Case Manager) .
¶11 Contrary to the testimonies of the Program Director, T.D., and the Case
Manager, the appellant testified that she was at her duty station between 8 a.m.
and 9:45 a.m., that she took her authorized break at 9:45 a.m., and that she
returned to her duty station at 10 :07 a.m. on March 1, 2016. HT at 21 -23
(testimony of the appellant) . She testified that, contrary to the testimony of the
agency witnesses, T.D. did not work in the Mental Health Clinic that morning.
Id.
¶12 A Clinical Nurse Specialist testified that , as s tated in her March 9, 2016
report of contact, she saw the appellant at her duty station at approximately
9:30 a.m., which she remembered because the appellant said “hello ” to a patient
she had just seen. HT at 18 (testimony of the Clinical Nurse Specialis t); IAF,
Tab 4 at 20.
6
¶13 In the initial decision, the administrative judge found that all of the
witnesses testified in a straightforward and truthful manner , but concluded that
the agency’s evidence was inconsistent with the record as a whole and that the
evidence supporting the appellant’s position was more persuasive. ID at 9 -11.
Specifically, she found that the appellant’s version of events was supported by the
hearing testimony of the Clinical Nurse Specialist who testified that she saw the
appellant at her workstation at 9:30 a.m. and the unsworn written statements of
three other MSAs, the Social Worker, and the vet eran. Id. The written
statements of two MSAs confirmed the appellant’s statement that T.D. did not in
fact w ork on the unit on the morn ing in question , further noting that T.D. did not
report to the unit until approximately 3:50 p .m.4 IAF, Tab 4 at 17 -18. One of
these statement s also confirmed the appellant’s testimony that the appellant left
for a break at approximately 9:45 a.m. with a veteran and that she was not gone
for 2 hours. Id. at 17. The Social Worker’s written statement confirmed the
appellant’s earlier written stat ement regarding her meeting with the veteran,
stating t hat she called him at 9:58 a.m., he went to meet her and the veteran on
the stairway i n front of the service elevator, and he spoke to them for
approximately 12 to 15 minutes. Id. at 15. The veteran’ s written statement
indicated that he spoke to the appellant at the front desk for approximately
5 minutes after m aking his follow -up appointment . Id. at 19. He stated that the
appellant informed someone that she was going to take her break and that she
walked outside to the waiting area with him, talked to him for approximately 3 to
4 minutes, and called another employee to assist him. Id. He stated that they
walked back to the stairway to meet the other employee and they spoke to him for
approximately 10 minutes before the appellant left . Id. Another MSA submitted
4 As noted above, the Program Director testified that he called T.D. on the morning of
March 1, 2016, and asked her to cover a staffing sh ortage on the unit. HT at 8
(testimony of the Program Director) . He further testified that T.D. arrived on the unit
at 9 a.m. Id.
7
a written statement indicating that she inquired about the appellant’s whereabouts
at approximately 9:45 a.m. or 10 a.m. on March 1, 2016, and that, upon the
appellant’s return, she stated that she had been on a break. Id. at 12.
¶14 The administrative judge did not credit the hearing testimony of the Case
Manager, finding that , although there was no evidence of bias or motivation to lie
on her part, her testimony that she saw the appellant tal king to the two men at
8:25 a.m. and 10:45 a.m. on March 1, 2016, conflicted with the “uncontroverted
documentation” showing that the appellant was at her desk performing her duties
at 8:35 a.m., 8:37 a.m., 10:28 a.m., 10:36 a.m., and 10:46 a.m. ID at 10. She also
found th at the Case Manager’s testimony —that she recalled hearing other MSAs
wondering about the appellant’s whereabout s—was inconsistent with the
statements of the two other MSAs who indicated that , except for the period
between 9:45 a.m. and 10 a.m., they were aware of the appellant’s whereabouts.
Id.
¶15 The administrative judge additionally found that, although there was no
evidence or motivation to lie on the part of T.D., she could not credit her
statements in light of significant, c ontradictory evidence in the record. ID at 11.
In particular, the adm inistrative judge found that T.D.’s testimony that she
arrived at the Mental Health Clinic at 9 a.m. on March 1, 2016, was contradicted
by the appellant and two other MSAs who all state d that T.D. did not work on the
unit that morning. Id. The administrative judge also appeared to find that T.D.’s
testimony that the appellant did not return to the unit until 10:30 a.m. or
10:45 a.m. conflicted with the Program Manager’s testimony that she informed
him that the appellant had returned at 10 a.m. ID at 10 -11.
¶16 In light of these findings, the administrative judge concluded that the
appellant was away from her desk from approximately 9:45 a.m. to approximately
10:07 a.m. on the date in que stion , a time period that exceeded her authorized
break by 7 minutes. ID at 11. The administrative judge declined to sustain the
charge of AWOL for a 7 -minute period and, by extension, to find that the
8
appellant violated the LCA. Id. She concluded that , although the appellant may
have minimally exceeded her authorized break period, the record reflects that her
whereabouts were known, that she was still on her unit, and that she was assisting
a veteran. Id. Therefore, the administrative judge found tha t the appellant’s
conduct did not violate the agency’s policy and that she did not breach the LCA.
Id.
¶17 On review, the agency argues that the administrative judge made erroneous
credibility determinations, improperly credited the written statements over
hearing testimony, erroneously referred to some written statements as testimony,
failed to account for the fact that the documentation showing when the appellant
performed duties also shows that she did not perform any duties between
8:37 a.m. and 10:28 a. m., and misconstrued the hearing testimony of the Program
Director. PFR File, Tab 1 at 6 -12.
¶18 In resolving credibility issues, the trier of fact must identify the factual
questions in dispute, summarize the evidence on each disputed question, state
which version she believes, and explain in detail why she found the chosen
version more credible, considering such factors as: (1) the witness ’s opportunity
and capacity to observe the event or a ct in question; (2) the witness’ s character;
(3) any prior incons istent statemen t by the witness; (4) a witness’ s bias, or lack of
bias; (5) t he contradiction of the witness’ s version of events by other evidence or
its consistency with other evidence; (6) the inheren t improbability of the
witness’s version of events; and (7) the witness’ s demeanor. Hillen v.
Department of the Army , 35 M.S.P.R. 453 , 458 (1987 ). The Board must d efer 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 may overturn such determinations only when it has “sufficiently
sound” reasons for doing s o. Haebe v. Department of Justice , 288 F.3d 1288 ,
1301 (Fed. Cir. 2002). Thus, the Board may overturn demeanor -based credibility
determination s when the administrative judge’ s findings are incomplete,
9
inconsistent with the weight of the evidence, and do not reflect the record as a
whole. Rapp v. Office of Personnel Management , 108 M.S.P.R. 674 , ¶ 13 (2008).
¶19 As noted above, the administrative judge found that all of the agency
witnesses testified in a straightforward and truthful manner but that the evidence
supporting the ap pellant’s version of events was more persuasive. ID at 9.
Although we defer to the administrative judge’s determination regarding the
demeanor of each witness, we agree with the agency that the administrative judge
incorrectly represented the Program Dir ector’s hearing testimony, which appeared
to factor into her credibility determination s. Specifically, the administrative
judge found that T.D.’s hearing testimony that the appellant did not return to the
unit until 10:30 a.m. or 10:45 a.m. was contradict ed by the Program Manager’s
testimony that T.D. informed him that the appellant returned at 10 a.m. ID at 10 -
11. The Program Manager actually testified, however, that T.D. informed him at
10 a.m. that she had not yet seen the appellant and that he notice d the appellant
return to the unit at 10:30 a.m. HT at 9 (testimony of the Program Director) . He
did not testify that T.D. informed him at 10 a.m. that the appellant had returned.
Id.
¶20 In addition, we agree with the agency that the administrative judge failed to
properly weigh the testimonial and documentary evidence of record. Specifically,
in crediting the appellant’s version of events over the agency’s version of events,
the administrative judge relied heavily on the unsworn written statements of
individuals who did not testify at the hearing. ID at 9 -11; IAF, Tab 4 at 12, 15,
17-19. Although hearsay evidence is admissible in Board proceedings,
assessment of the probative value of hearsay evidence necessarily depends on the
circumstances of each case. Adamsen v. Department of Agriculture , 116 M.S.P.R.
331, ¶ 16 (2011); Borninkhof v. Department of Just ice, 5 M.S.P.R. 77 , 83-84
(1981). The Board generally evaluates the probative value of hearsay evidence
by considering various factors that inc lude the availability of persons with
firsthand knowledge to testify at the hearing, whether the out -of-court statements
10
were sworn, whether the declarants were disinterested witnesses to the events and
whether their statements were routinely made, the con sistency of the out -of-court
statements with other statements and evidence, whether there is corroboration or
contradiction in the record, and the credibility of the out -of-court declarant.
Adamsen , 116 M.S.P.R. 331 , ¶ 16 ; Wallace v. Department of Health & Human
Services , 89 M.S.P.R. 178, ¶¶ 6-11 (2001) , review dismissed , 41 F. App’x 455
(Fed. Cir. 2002) . Here, however, t he administrative judge failed to consider any
of these factors in crediting the unsworn out-of-court written statements over the
hearing testimony of the agency witnesses .5 ID at 9-11.
¶21 Moreover , it does not appear that the administrative judge appropri ately
considered or weighed the hearing testimony of the agency witnesses . Generally,
live testimony is more probative than an out -of-court statement. Social Security
Administration v. Whittlesey , 59 M.S.P.R. 684 , 692 (1993), aff’d , 39 F.3d 1197
(Fed. Cir. 1994) (Table); Dubiel v. U.S. Postal Service , 54 M.S.P.R. 428 , 432
(1992) (stating that the probative value of unsworn hearsay statements regarding
facts at issue is generally reduced when contradicted by live testimony regarding
the same matter); Robinson v. Department of Health & Human Services ,
39 M.S.P.R. 110 , 115 (1988) (finding that hearsay evidence may not be
sufficiently probative, in light of contradictory live testimony, to sustain an
agency ’s bu rden by preponderant evidence). We agree with the administrative
judge that the Case Manager’s testimony that she saw the appellant at 8:25 a.m.
and 10:45 a.m. may be entitled to less weight because it conflicts with the
5 The record reflects that the administrative judge granted all of the appellant’s
requested witnesses, including the veter an and the Social Worker. IAF, Tab 12. The
appellant subsequently withdrew her request for the Social Worker to testify at the
hearing. IAF, Tab 18 at 3. The veteran, although approved as a witness, did not testify
at the hearing. HT at 3. It does no t appear that either party called as witnesses the
three MSAs whose written statements supported the appellant’s version of events. IAF,
Tab 12 at 3. It is unclear from the record, however, whether any of the individuals who
submitted written statements in support of the appellant’s version of events were
unavailable to testify at the hearing.
11
documentation showing that th e appellant performed her duties 8:35 a.m. and
10:26 a.m. on March 1, 2016. IAF, Tab 4 at 25-38, 44. However, the
administrative judge did not explain why the unsworn written statements are
entitled to more weight than the straightforward hearing testimony of the Program
Director and T.D , which, as discussed above, are consiste nt with each other.6 ID
at 9-11.
¶22 In light of the foregoing, w e find that remand is necessary to allow further
development of the record and, if appropriate, a supplemental hearing. In
addition, the administrative judge should order the agency to submit t ime and
attendance records , if available, or other evidence showing when T.D. worked on
March 1, 2016. The administrative judge then should explore the issues
identified above, determine the appropriate weight that each type of evidence is
due, and issue a new initial decision fully addressing all of the record evidence.
ORDER
¶23 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
6 As correctly noted by the agency, the administrative judge improperly referred to the
written statements of two MSAs as testimony. ID at 1 0 (noting that the other MSAs
both testified that they were aware of the appellant’s whereabouts); IAF, Tab 4 at 12,
17. It is unclear, however, whether this error factored into her credibility analysis. | ELMORE_NICOLE_S_CH_0752_16_0416_I_1_REMAND_ORDER_1998869.pdf | 2023-02-02 | null | CH-0752 | NP |
3,635 | https://www.mspb.gov/decisions/nonprecedential/EMANUELE_SARAH_P_PH_0752_15_0539_B_3_FINAL_ORDER_1998911.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
SARAH P. EMANUELE,
Appellant,
v.
DEPARTMENT OF
TRANSPORTATION,
Agency.
DOCKET NUMBER
PH-0752 -15-0539 -B-3
DATE: February 2, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL1
Sarah P. Emanuele , Cornwall, New York, pro se.
Maria Surdokas , 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 sustained her removal from the Federal service . On petition for review,
the appellant argues , among other things, that the administrative judge incorrectly
rejected evidence from being accepted into the record, and she reiterates 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 nonpreceden tial 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
claims of equal emplo yment opportunity (EEO) reprisal and due process
violations. Petition for Review (PFR ) File, Tab 1. Generally, we grant petitions
such as this one only in the following circumstances: the initial decision contains
erroneous findings of material fact; th e 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 w hen the record closed. Title 5
of the Code of Federal Regulations, section 1201.115 ( 5 C.F.R. § 1201.115 ).
After fully considering the filings in this appeal, we conclude that the petitioner
has not established any basis under section 1201.115 for granting the petition for
review. Therefore, we DENY the petition for review. Except as expressly
MODIFIED to provide the appropriate standard for EEO reprisal claims,
we AFFIRM the initial decision.
¶2 The administrative judge correctly found that the agency proved the charge
of inappropriate conduct by preponderant evidence. Emanuele v. Department of
Transpor tation , MSPB Docket No. PH-0752 -15-0539 -B-3, Appeal File (B -3 AF),
Tab 102, Initial Decision (ID) at 6 -14. She also correctly found that the appellant
failed to establish that the agency violated her due process rights,2 that a nexus
2 The appellant argued below that the agency violated the Privacy Act and that such a
viola tion constitutes a violation of her due process rights. B -3 AF, Tab 86 at 40 -41.
The administrative judge did not address this argument in the initial decision; thus, we
address it here. Specifically, the appellant states that 5 U.S.C. § 552a (e) requires an
agency to “collect information to the greatest extent practicable directly from the
subject individual when the information may result in adverse determinations about an
individual’s rights, b enefits, and privileges under Federal programs. ” B-3 AF, Tab 86
at 40-41 (citing 5 U.S.C. § 522a (e)). Based on this provision, the appellant argues that
the agency was required to interview and question her prior to taking the removal action
against her and that its failure to do so constituted a violation of her due process rights.
Id. at 41. We are not persuaded by the appellant’s argument. The section of the statute
3
exists between the ap pellant’s removal for misconduct and the efficiency of the
service, and that the penalty of removal was reasonable.3 ID at 17 -21.
¶3 As it relates to the charge, the appellant argues on review that the
administrative judge erred in rejecting some of her evi dence from admission into
the record.4 PFR File, Tab 1 at 9 -11. The administrative judge accepted into the
record evidence submitted by the appellant that w as untimely filed and issued
relied upon concerns record creation and keeping and imposes the above -stated
requirements for those purposes. The statute does not indicate that these requirements
are a matter of due process for an adverse action taken against an employee. The
appellant does not cite any authority to support her contention. Accordingly, the
appellant’s argument is unconvincing.
3 We acknowledge that the administrative judge’s analysis regarding the reasonableness
of the penalty is terse. ID at 19-21. Nonetheless, we agree with her conclusion that the
penalty of removal is reasonable . See Gain es v. Department of the Air Force ,
94 M.S.P.R. 527 , ¶ 11 (2003) (explaining that the Board has upheld a penalty of
removal for disrespectful conduct); Holland v. Department of Defense , 83 M.S.P.R.
317, ¶¶ 10 -12 (1999) (concluding that a penalty of removal was reasonable for rude and
discourteous behavior toward customers, despite a lengthy Federal tenure and princ iples
of progressive discipline , and when the appellant repeatedly engaged in such behavior
and never acknowledged that such behavior was improper or expressed remorse);
Lewis v. Department of Veterans Affairs , 80 M.S.P.R. 472 , ¶ 7 (1998) (considering
whether removal was within the tolerable bounds of reasonableness for a charge of
disrespectful behavior and concluding that it was, particularly when such conduct was
directed at a superior in the presence of coworkers); Roberson v. Veterans
Administration , 27 M.S.P.R. 489 , 494 (1985) (stating that abusive language and
disrespectful behavior are not acceptable conduct and are not conducive to a stable
work environment) .
4 Related to the administrative judge’s rejection of evidence , the appellant argues on
review that the initial decision is incomplete because it does not include a discussion of
all the evidence, PFR File, Tab 1 at 11 (citing Spithaler v. Office of Personnel
Management , 1 M.S.P.R. 587 , 589 (1980)). In Spithaler , the Board explained that an
initial decision must identify all material issues of fact and law, summarize the
evidence, resolve issues of cre dibility, and include the administrative judge’s
conclusions of law and his legal reasoning, as well as the authorities on which that
reasoning rests. Spithaler , 1 M.S.P.R. at 589. Because, as later explained, we discern
no abuse of discretion in the adm inistrative judge’s rulings on evidence and the
appellant otherwise has failed to clearly state what , if any, evidence that was accepted
into the record that the administrative judge did not consider or discuss in the initial
decision , the appellant has not demonstrated that the initial decision is not in
accordance with the requirements set forth in Spithaler .
4
an order denying the agency’s request to strike that evidence but inf orming the
parties that no new submissions would be accepted into the record and that “[a]ll
other submissions will be rejected .” B-3 AF, Tab 94 at 1. Nonetheless, the
appellant attempted to file more evidentiary pleadings. B -3 AF Tabs 97 -100.
The admi nistrative judge rejected several of those submissions but explained that,
because some of the appellant’s “late -filed submissions may be relevant” to her
findings, she admitted them into the record. B -3 AF, Tab 101 at 1 -2. Regarding
the submissions she did not accept into the record, the administrative judge
explained that those documents were already in the record and/or “significantly
predate the close of the record deadline and were in the appellant’s possession
long before the close of record date.” Id. at 1. As she did in her previous order,
she explained that any pleadings not accepted would be deleted from the online
repository.5 Id. at 2.
¶4 On review, the appellant challenges the administrative judge’s rejection of
evidence and argues that she should have been afforded greater leniency given her
status as a pro se appellant.6 PFR File, Tab 1 at 10 -11, 31. These arguments are
5 The appellant also argues on review that the administrative judge was required by the
Administrative Judges Handbook to include in the record a description of the rejected
evidence and that she did not do so. PFR File, Tab 1 at 10 -11, 31. However, the
appellant does not cite to any provision of the Administrative Judges Handbook
supporting such a requirement. Id. Indeed, the only rele vant provision in that
document that requires a “Rejected Exhibit” section in the record, inclusive of a
description of such evidence, relates to evidence that is rejected due to its volume and
size. Administrative Judges Handbook , Chapter 10 , The Hearing and Its Record at 62.
The evidence here was rejected due to untimeliness and relevance. In any event, in
both orders rejecting the appellant’s submissions, the administrative judge listed what
was being excluded and, in some instances, included a brief description. B -3 AF,
Tabs 95, 101. As such, the appellant’s argument is without merit .
6 With the appellant’s petition for review, she files additional documents and a
supplement, which appear to include the pleadings and evidence rejected below.
PFR File, Tab 1 at 33 -44, Tab 2. As explained above, we discern no error in the
administrative judge’s rejection of certain evidence. See 5 C.F.R. § 1201.41 (b). To the
extent some of the d ocuments are being submitted for the first time on review, 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 closed before the
5
unpersuasive. The Board’s regulations provide an administrative judge with wide
discretion to rule on submissions of ev idence and to ensure a fair and just
adjudication of the case. 5 C.F.R. § 1201.41 (b). Here, the administrative judge
appropriately set forth fair deadlines for the submission of argumen ts and
evidence and gave the parties at least 3 weeks’ notice of those deadlines. B -3 AF,
Tab 80. Despite these deadlines, she accepted into evidence the appellant’s
untimely September 10 and 11, 2021 evidentiary submissions, ordered that no
other pleadi ngs would be accepted into the record, and later still explained that,
despite this order, she would accept into the record certain untimely -filed
submissions from the appellant that she deemed relevant to her decision. B -3 AF,
Tabs 94, 101. Accordingly, we find that the administrative judge did not abuse
her discretion under 5 C.F.R. § 1201.41 (b) when she rejected certain evidentiary
submissions from the appellant.7
¶5 Regarding the appe llant’s claim that her removal was taken in reprisal for
prior EEO activity, the administrative judge applied the standard set forth in
Warren v. Department of the Army , 804 F.2d 654 (Fed. Cir. 1986), and found that
administrative ju dge despite the party’s due diligence. See Avansino v. U.S. Postal
Service , 3 M.S.P.R. 211 , 213 -14 (1980). Here, the record closed in early
Sept ember 2021, B -3 AF, Tab 80, and all of the documents were available to the
appellant before that time . Further, the appellant has not explained why she was unable
to file any of the newly submitted documents below, nor has she explained how they are
other wise of sufficient weight to warrant an outcome different than that of the initial
decision. As such, none of the documents provides a basis to grant the petition for
review. See Russo v. Veterans Administration , 3 M.S.P.R. 345 , 349 (1980) (stating that
the Board generally will not grant a petition for review based on new evidence absent a
showing that it is of sufficient weight to warrant an outcome different from that of the
initial decision).
7 The appellant also argues on review that the administrative judge ordered sanctions
against the agency precluding it from filing additional evidence to support one of the
specifications and that the agency nonetheless filed additional evidence, which the
administrative judge ultimately considered in the initia l decision. PFR File, Tab 1 at 5,
31. After a review of the record, however, we are unable to find any evidence that the
administrative judge ordered sanctions against the agency, and the appellant has cited to
no such order. Accordingly, the appellant’s argument is without merit.
6
the appellant failed to prove that the agency official responsible for her removal
was aware of her EEO complaints and, as such, that she failed to meet her burden
of proof on this clai m. ID at 16 -17. We clarify, h owever, that when analyzing an
affirmative defense of discrimination or retaliation under 42 U.S .C. § 2000e -16,
such as the appellant’s claims here, the Board applies Title VII standards .
Savage v. Department of the Army , 122 M.S.P.R. 612 , ¶ 51 (2015) , overruled in
part by Pridgen v. Office of Management and Budget , 2022 MSPB 31, ¶¶ 23-25.
¶6 Even taking as true the appellant’s claim below and on review that everyone
at the agency was aware of her prior EEO activity, we find that, absent more, the
appellant has still failed to prove thi s claim by preponderant evidence.
Cf. Brasch v. Department of Transportation , 101 M.S.P.R. 145 , ¶ 13 (2006)
(concluding that an a ppellant’s proof of responsible agency officials’ knowledge
of protected activity under the Uniformed Services Employment and
Reemployment Rights Act, without more, is insufficient to show that such
activity was a motivating factor in the agency’s actions) . Indeed, the appellant
has not shown that the deciding official, who was also the proposing official, was
the subject of the prior EEO activity,8 that the EEO activity negatively affected
him, or that he suffered any negative consequences from the appell ant’s decision
to engage in that activity. Accordingly, we modify the initial decision to find that
the appellant failed to prove that her EEO activity was a motivating factor in her
removal.9
8 We agree with the administrative judge’s conclusion that there is no evidence that the
former Director of Operations, w ho was a subject in the appellant’s EEO complaints,
was the actual proposing and deciding official in this matter. ID at 15 -16.
9 Because we find that the appellant failed to prove that her prior EEO activity was a
motivating factor in her rem oval, we do not reach the question of whether that activity
was a “ but-for” cause of the removal. See Pridgen v. Office of Management and
Budget , 2022 MSPB 31, ¶¶ 20-22, 29-33.
7
¶7 Based on the forgoing, we affirm the initial decision as modif ied.10
NOTICE OF APPEAL RIG HTS11
The initial decision, as supplemented by this Final Order, constitutes the
Board’s final decision in this matter. 5 C.F.R. § 1201.113 . 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 appropri ate for your situation and
the rights described below do not represent a statement of how courts will rule
regarding which cases fall within their jurisdiction. If you wish to seek review of
this final decision, you should immediately review the law appli cable to your
claims and carefully follow all filing time limits and requirements. Failure to file
within the applicable time limit may result in the dismissal of your case by your
chosen forum.
10 The appellant argues on review that the discovery process below was “incomplete”
and “protracted” because the agency refused to turn over information and claimed that
documentation was lost. PFR File, Tab 1 at 18-20. Based on our review of the record,
we discern no error in the administrative judge’s handling of the discovery process.
Notably, the parties have engaged in discovery in this matter for over four years.
B-3 AF, Tab 79. When the appellant was unsatisfied with the agency’s discovery
responses, she filed motions to compel the agency’s responses, pursuant to Board
regulations. B -3 AF, Tabs 8 -9, 12, 73. Addressing the appellant’s discovery
challenges, the administrative judge regularly held discovery -based status conferences,
remained engaged and informed regarding the discovery disputes between the parties,
and, on several occasions, ordered the agency to respond to the appellant’s challenged
discovery requests. B -3 AF, Tabs 14, 24, 30, 38, 54. Ultimately , she either deemed the
appellant’s discovery requests not relevant , or she determined that the agency’s
response s to her discovery orders were sufficient. B -3 AF, Tab 54, 67. On review, the
appellant has not identified any specific error in these ruling s, and we discern none.
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 i n any matter.
8
Please read carefully each of the three main possible choice s of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particu lar
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.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
9
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 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.usco urts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702 (b)(1). If you hav e a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEO C by regular U.S. mail, the
address of the EEOC is:
10
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C . 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petit ion for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.12 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decisi on. 5 U.S.C.
§ 7703 (b)(1)(B).
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 jurisd iction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195,
132 Stat. 1510.
11
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following addres s:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of App eals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services prov ided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD:
Washington, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board | EMANUELE_SARAH_P_PH_0752_15_0539_B_3_FINAL_ORDER_1998911.pdf | 2023-02-02 | null | PH-0752 | NP |
3,636 | https://www.mspb.gov/decisions/nonprecedential/WYATT_ROCHELLE_M_AT_0353_16_0492_C_1_ORDER_1998919.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
ROCHELLE M. WYATT,
Appellant,
v.
UNITED STATES POSTAL SERVICE,
Agency.
DOCKET NUMBER
AT-0353 -16-0492 -C-1
DATE: February 2, 2023
THIS ORDER IS NONPRECEDENTIAL1
David Champion , Memphis, Tennessee, for the appellant.
Luis O. Rodriguez , Esquire, Philadelphia, Pennsylvania, for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
Tristan L. Leavitt, Member
ORDER
¶1 The appellant has filed a petition for review of the September 25, 2017
compliance initial decision, which found the agency in partial noncompliance
with the Board’s final decision in the underlying appeal. Wyatt v. U.S. Postal
1 A nonprecedential order is one that the Board has determined does not add
significantly to the 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
Service , MSPB Docket No. A T-0353 -16-0492 -C-1, Compliance Petition for
Review (CPFR) File, Tab 1; Wyatt v. U.S. Postal Service , MSPB Docket No.
AT-0353 -16-0492 -C-1, Compliance File (CF), Tab 10, Compliance Initial
Decision (CID). For the reasons set forth below, the appellant’s com pliance
petition for review is DISMISSED as untimely filed without good cause shown.
5 C.F.R. § 1201.114 (e), (g).
BACKGROUND
¶2 On September 25, 2017, the administrative judge issued a compliance
initial decision finding the agency in noncompliance with the Board’s final
decision in the underlying appeal to the extent it had failed to pay the appellant
any back pay. CID at 1-3. A ccordingly, the administrative judge granted the
appellant’s petition for enforcement and ordered the agency to pay her the
ordered back pay. CID at 3. Regarding the disputed issue of entitlement to
overtime pay as part of the back pay award, the adminis trative judge agreed with
the agency’s position that the appellant was not entitled to it because she did not
have a history of working overtime during the time of year included in the back
pay period. CID at 3 n.2.
¶3 The administrative judge informed the a gency that, if it decided to take the
actions required by the compliance initial decision, it must submit to the Clerk of
the Board a narrative statement and evidence of compliance and that, if it decided
not to take the required actions, it must file a pe tition for review. CID at 4-5;
5 C.F.R. § 1201.183 (a)(6)(i) -(ii). The administrative judge also informed the
appellant that she could request Board review of the compliance initial dec ision
by filing a petition for review within 35 days, i.e., no later than October 30, 2017,
or within 30 days after she actually received the decision if she proved that she
received it more than 5 days after issuance. CID at 5. The administrative judge
provided the appellant specific instructions regarding how to file a petition for
review. CID at 5-8.
3
¶4 On October 30, 2017, the agency filed a statement of compliance pursuant
to 5 C.F.R. § 1201.183 (a)(6)(i), and the matter was referred to the Board for a
final decision on the agency’s compliance.2 Wyatt v. U.S. Postal Service , MSPB
Docket No. AT -0353 -16-0492 -X-1, Compliance Referral File (CRF), Tabs 1-2;
see 5 C.F.R. § 1201.183 (c). In a November 15, 2017 response, the appellant,
through her representative, challenged the agency’s compliance, arguing that it
had not paid her the appropriate amount of back pay and impro perly denied her
overtime back pay. CRF, Tab 3.
¶5 In a May 22, 2018 Order, the Board informed the appellant that her
response to the agency’s compliance submission appeared to challenge the
administrative judge’s finding that she was not entitled to overt ime pay as part of
her back pay award but that such challenge must be raised with the Board through
a petition for review of the compliance initial decision.3 CRF, Tab 4.
Accordingly, the Board ordered the appellant to state whether she intended her
Nove mber 15, 2017 compliance response to also serve as a petition for review of
the compliance initial decision. Id. at 1-2. The appellant responded in the
affirmative, and the Board docketed her November 15, 2017 submission as a
petition for review of the S eptember 25, 2017 compliance initial decision. CRF,
Tab 5 at 2; CPFR File, Tabs 1-2.
¶6 In a June 14, 2018 letter acknowledging the appellant’s compliance petition
for review, the Board informed her that her petition appeared to be untimely filed
because i t was not filed on or before October 30, 2017, the 35th day following the
issuance of the compliance initial decision, or within 30 days after receipt of the
2 The agency’s compliance with the actions identified in the compliance initial decision
will be addressed in a separate order in MSPB Docket No. AT -0353 -16-0492 -X-1.
3 Pursuant to the Board’s regula tions, an appellant’s challenges to an initial decision
may be raised with the Board through a petition for review of that decision, not through
a response to the noncomplying party’s statement of compliance. See 5 C.F.R.
§§ 1201.114 (a)(1), 1201.183(a)(1).
4
decision if it was received more than 5 days after issuance. CPFR File, Tab 2 at
1-2. The letter explained to the appellant that the Board’s regulations require a
petition for review that appears untimely filed to be accompanied by a motion to
accept the filing as timely and/or to waive the time limit for good cause. Id. at 2.
¶7 On June 25, 2018, th e appellant filed a motion to waive the deadline for
filing her petition for review on the ground that she did not understand that the
compliance initial decision denied her claim for overtime back pay.4 CPFR File,
Tab 3
ANALYSIS
¶8 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 aft er the date the appellant received the initial decision. 5 C.F.R.
§ 1201.114 (e). Here, the appellant has not alleged that she received the
compliance initial decision more than 5 days after its issuance. Therefore, her
petition for review of the September 25, 2017 compliance initial decision must
have been filed no later than October 30, 2017, i.e., the 35th day after issuance of
the compliance initial decision. CID at 5. As the appellant did not file her
petition for review until November 15, 2017, it is untimely filed by 16 days.
CPFR File, Tab 1 at 1.
¶9 The Board will waive the deadline for filing a pet ition for review 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 a petition, a party must show that
4 On July 10, 2018, the agency responded to the appellant’s motion to waive the time
limit, 1 day after the agency’s deadline to file such a response. CPFR File, Tab 5; see
5 C.F.R. § 1201.55 (b). The agency subsequently filed a motion to waive its own
untimeliness. CPFR File, Tab 7. Because we find herein that the appellant did not
demonstrate good cause to waive the untimeliness of her petition for review, we also
hereby deny as moot the agency’s motion to waive its untimeliness.
5
she exercised due diligence or ordinary prudence under the particular
circumstances of the case. Rivera v. Social Security Administration ,
111 M.S.P.R. 581 , ¶ 4 (2009); 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 circumstances beyond her control th at
affected her ability to comply with the time limits or of unavoidable casualty or
misfortune that similarly shows a causal relationship to her inability to timely file
her petition. Rivera , 111 M.S.P.R. 581 , ¶ 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).
¶10 The appellant argues that good cause exists to excuse her 16 -day filing
delay because she did not understand that the compliance initial decision denied
her claim for overtime back pay as it “did not clearly state the appellant would
not receive overtime.” CPFR File, Tab 3 at 1 -2. Ordinarily, the belated
discovery of a basis for filing a petition for review does not establish good cause
for waiving the filing deadline. Carroll v. Office of Personnel Management ,
114 M.S.P.R. 310 , ¶ 10 (2010). Nonetheless, the Board has found good cause to
excuse an untimely filed pe tition for review when the outcome of the appeal itself
was unclear because of ambiguities in the initial decision. Id.
¶11 Here, the compliance initial decision did not leave the outcome of the
appeal itself unclear but rather included a sufficiently clear statement that the
administrative judge agreed with the agency’s argument that the appellant was not
entitled to overtime pay as part of her back pay award. CID at 3 n.2.
Specifically, the administrative judge stated that, “[b]ased upon the evidence
submitted in this matter, it appears that the agency’s position that the appellant is
not entitled to overtime is valid because she does not have a history of working
overtime except around Christmas, and the back pay period in the instant matter
does not inc lude the Christmas period.” Id. She also noted that “[t]he Board’s
6
back pay award does not seek to put the appellant in a better position than she
would have been otherwise.” Id. The appellant’s claim that she failed to
comprehend the effect of these s tatements, particularly given that she was
represented at all times during the compliance proceedings, is not reasonable and
thus does not demonstrate good cause for her untimeliness.
¶12 The appellant has not alleged any other basis for finding that good ca use
existed to excuse her filing delay and thus has not shown that she exercised due
diligence or ordinary prudence in filing her petition . In addition, we note that she
was represented and that her filing delay of 16 days was not minimal. See, e.g. ,
Crozier v. Department of Transportation , 93 M.S.P.R. 438 , ¶ 7 (2003) (finding
13-day delay in filing petition for review was not minim al); Beck v. General
Services Administration , 86 M.S.P.R. 489 , ¶ 7 (2000) (15-day delay not minimal).
Accordingly, the appellant has not established good cause to excuse her filing
delay.
¶13 In light of the foregoing, we dismiss the appellant’s petition for review as
untimely filed without good cause shown.5 This Order does not constitute a final
order and therefore is not subject to judicial review under 5 U.S.C. § 7703 (a)(1).
Upon the Board’s final resolution of the remaining issues in this petition for
5 Even if the appellant had timely filed her petition for review, she has not shown any
error in the administrative judge’s determina tion that she was not entitled to overtime
pay as part of her back pay award. Overtime may be calculated either on the basis of an
employee’s prior overtime assignments or upon the experience of similarly situated
employees during the relevant period. Ball v. U.S. Postal Service , 91 M.S.P.R. 364,
¶ 8, aff’d , 53 F. App’x 910 (Fed. Cir. 2002). However, a status quo ante remedy does
not require that the appellant be placed in a better position than she was in at the time
of the agency’s action. Hagan v. De partment of the Army , 99 M.S.P.R. 313 , ¶ 8 (2005).
Here, the back pay period at issue was March 16 through July 26, 2016. The agenc y
provided evidence showing that, during the same 4 -month period in 2015 and 2017, the
appellant did not work any overtime hours. CF, Tab 6 at 6 -44. The appellant’s
submitted evidence does nothing to dispel the agency’s claim, as it only shows that she
worked overtime around the Christmas holiday in 2015, which does not overlap with the
relevant back pay period. CF, Tab 8 at 3 -4. Thus, as the administrative judge properly
found, the appellant is not entitled to overtime pay as part of her back pay award .
7
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 | WYATT_ROCHELLE_M_AT_0353_16_0492_C_1_ORDER_1998919.pdf | 2023-02-02 | null | AT-0353 | NP |
3,637 | https://www.mspb.gov/decisions/nonprecedential/WYATT_ROCHELLE_M_AT_0353_16_0492_X_1_ORDER_1998921.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
ROCHELLE M. WYATT,
Appellant,
v.
UNITED STATES POSTAL SERVICE,
Agency.
DOCKET NUMBER
AT-0353 -16-0492 -X-1
DATE: February 2, 2023
THIS ORDER IS NONPRECEDENTIAL1
David Champion , Memphis, Tennessee, for the appellant.
Luis O. Rodriguez , Esquire, Philadelphia, Pennsylvania, for the agency.
BEFORE
Cathy A. Harris, Vice Chair
Raymond A. Limon, Member
Tristan L. Leavitt, Member
ORDER
¶1 In a September 25, 2017 compliance initial decision, the administrative
judge found the agency in partial noncompliance with the Board’s final decision
in the underlying appeal. Wyatt v. U.S. Postal Service , MSPB Docket No.
1 A nonprecedential order is one that the Board has determined does not add
significantly to the 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
AT-0353 -16-0492 -C-1, Compliance F ile, Tab 10, Compliance Initial Decision
(CID). Accordingly, the administrative judge granted the appellant’s petition for
enforcement and again ordered the agency to pay her all appropriate back pay.
CID at 2. For the reasons discussed below, we find t hat the agency has complied
in part with the Board’s final decision but remains in noncompliance to the extent
it has failed to restore to the appellant all appropriate annual leave.
BACKGROUND
¶2 In a May 11, 2017 initial decision, the administrative judge f ound that the
agency violated the appellant’s restoration rights and ordered the agency to
retroactively restore her to her former assignment. Wyatt v. U.S. Postal Service ,
MSPB Docket No. AT -0353 -16-0492 -I-1, Initial Appeal File, Tab 35, Initial
Decision (ID) at 10. The administrative judge further ordered the agency to pay
the appellant the appropriate amount of back pay, with interest, and to adjust her
benefits with appropriate credits and deductions as required by the Postal Service
regulations no la ter than 60 calendar days after the date of the initial decision.
ID at 10 -11. Finally, the administrative judge ordered the agency to inform the
appellant in writing of all actions taken to comply with the Board’s order.
ID at 11. The initial decision became the final decision of the Board on June 15,
2017, after neither party petitioned the full Board for review. ID at 13.
¶3 The appellant, through her designated representative, petitioned for
enforcement of the Board’s final decision, arguing that the agency had not taken
any action towards compliance. Wyatt v. U.S. Postal Service , MSPB Docket No.
AT-0353 -16-0492 -C-1, Compliance File (CF), Tab 1. She subsequently alleged
that, although the agency restored her to her former assignment as of June 26,
2017, it had still not paid her any back pay. CF, Tab 9 at 1-2. In a September 25,
2017 compliance initial decision, the administrative judge found that the agency
had not disputed that it had failed to pay the appellant as requ ired and therefore
granted her petition for enforcement. CID at 2. The administrative judge noted
3
that the parties disagreed as to whether the appellant was entitled to overtime pay
as part of the back pay award but stated that “it appears that the agenc y’s position
that appellant is not entitled to overtime is valid [.]” CID at 3 n.2.
¶4 On October 30, 2017, the agency filed a statement of compliance with the
actions identified in the compliance initial decision pursuant to 5 C.F.R.
§ 1201.183 (a)(6)(i), and the matter was referred to the Board for a final decision
on the agency’s compliance. Wyatt v. U.S. Postal Service , MSPB Docket No.
AT-0353 -16-0492 -X-1, Compliance Referral File (CRF ), Tabs 1-2; see 5 C.F.R.
§ 1201.183 (c). In a November 15, 2017 response, the appellant argued that the
agency’s submission did not demonstrate compliance because it was inaccurate in
several aspects of its back pay calculations, including the following: (1) night
differential pay; (2) Sunday premium pay; (3) holiday work hours; (4) holiday
leave hours; (5) restored annual leave and sick leave hours; (6) out of schedule
premium pay; (7) Thrift Savings Plan (TSP) regular and TSP Roth deposits; and
(8) W -4 tax withholding request.2 CRF, Tab 3 at 1-2. The appellant did not,
however, provide any evidence or details in support of her assertions of
inaccuracy. Id.
¶5 On August 3, 2018, the B oard issued an order requesting additional
information from the agency. CRF, Tab 7. The order instructed the agency to
provide a narrative statement explaining the various aspects of the back pay
2 The appellant also challenged in her compliance response the administrative judge’s
finding that she was not entitled to overtime pay as part of her back pay award. CRF,
Tab 3. However, pursuant to the Board’s regulations, an appellant’s challenges to an
initial decision may be raised with the Board through a petition for review of that
decision, not through a response to the noncomplying party’s statement of compliance.
See 5 C.F.R. §§ 1201.114 (a)(1), 1201.183(a)(1). Accordingly, the appellant’s
contentions that she is entitled overtime pay as part of her back pay award are not
properly before us and will not be addressed in this compliance referral proceeding. A
separate decision dismissing as untimely filed the appellant’s petition for review of the
compliance initial decision was issued in MSPB Docket No. AT -0353 -16-0492 -C-1.
Wyatt v. U.S. Postal Servi ce, MSPB Docket No. AT -0353 -16-0492 -C-1, Order (Feb. 2,
2023).
4
payment to ensure that the agency’s evidence demonstrated full compliance. Id.
at 1-2. The order also required the agency to include in its narrative statement a
response to the appellant’s claim that the back pay calculations were inaccurate.
Id. at 2.
¶6 On August 28, 2018, the agency filed a supplemental state ment of
compliance, which contained the required narrative statement. CRF, Tab 10. The
narrative statement explained the different portions of the appellant’s back pay
calculations and offered rebuttals to some of the appellant’s claims of inaccuracy.
Id. at 4 -7.
¶7 On September 13 and 17, 2018, the appellant filed responses to the agency’s
supplemental statement of compliance. CRF, Tabs 11 -12. In relevant part, the
appellant repeated, again without any supporting evidence or detailed
explanation, that the agency’s back pay calculations were inaccurate. CRF,
Tab 11 at 1 -4, Tab 12 at 1.
¶8 On April 19, 2019, the Board issued another order requesting further
information from the agency. CRF, Tab 13. The order instructed the agency to
provide additional det ail regarding two separate aspects of the appellant’s back
pay and benefits: (1) why the appellant’s night work differential pay was reduced
by 2 hours; and (2) how it calculated the amount of the appellant’s restored
annual leave. Id. at 1 -2. In a May 17, 2019 response, the agency explained and
provided evidence showing that the 2 -hour discrepancy in the night differential
pay arose out of an internal audit that revealed the appellant had already been
paid those 2 hours. CRF, Tab 16 at 4, 7 -16. With r espect to the annual leave, the
agency argued that it properly calculated the appellant’s restored annual leave by
multiplying her hours per pay period by the number of pay periods in her back
pay period and again included exhibits in support of its argume nt. Id. at 5, 17 -18.
¶9 The appellant filed a response to the agency’s May 17, 2019 submission.
CRF, Tab 17. The response repeated, without any new details, her claims that the
agency’s back pay calculations were incorrect. Id.
5
ANALYSIS
¶10 When the Board finds a personnel action unwarranted or not sustainable, it
orders that the appellant be placed, as nearly as possible, in the situation she
would have been in had the wrongful personnel action not occurred. Vaughan v.
Department of Agricul ture, 116 M.S.P.R. 319 , ¶ 5 (2011). The agency bears the
burden to prove its compliance with a Board order. Id. An agency’s assert ions of
compliance must include a clear explanation of its compliance actions supported
by documentary evidence. Id. The appellant may rebut the agency’s evidence of
compliance by making “specific, nonconclusory, and supported assertions of
continued non compliance.” Id.
¶11 Here, as described above, the administrative judge ordered the agency to
retroactively restore the appellant to her former assignment and to pay her all
appropriate back pay with interest and to adjust her benefits with appropriate
credit s and deductions in accordance with the Postal Service regulations. ID
at 10-11. Although the appellant acknowledged that the agency has restored her
to her former assignment, outstanding compliance issues remain regarding the
agency’s obligation to prov ide her back pay and benefits in accordance with the
Postal Service regulations. CID at 3. The agency has submitted multiple
pleadings containing a full accounting of the back pay, interest, and benefits paid
to the appellant. The appellant has raised o bjections to the agency’s calculations
of individual components in the back pay award, each of which will be addressed
in turn.
Sunday Premium Pay, Holiday Pay, and TSP Deposits
¶12 The appellant argues that her back pay did not include Sunday Premium
Pay, Hol iday Pay, and TSP deposits. CRF, Tab 3 at 1 -2. The agency’s Back Pay
Report, however, reflects that all three categories of pay were included in her
back pay. The Report demonstrates that 108.09 hours of Sunday Premium Pay
and 12 hours of Holiday Pay we re included in the back pay and that TSP funds
were both withdrawn from her back pay and deposited in her TSP account. CRF,
6
Tab 1 at 6 -10, Tab 10 at 6 -7, 10. Accordingly, the appellant’s claim is incorrect
and does not demonstrate agency noncompliance wi th the Board’s order.3
Out of Schedule Premium Pay
¶13 The appellant argues that the agency’s calculation for her Out of Schedule
Premium Pay was incorrect, stating that the agency originally informed her that
she was entitled to 472.50 hours of Out of Sched ule Premium Pay, whereas the
Back Pay Report reflects only 310.01 hours of Out of Schedule Premium Pay.
CRF, Tab 3 at 1 -2. However, the original Form 8039 provided to the appellant,
which the appellant cites in support of her claim, reflects 317.50 hours of Out of
Schedule Premium Pay, which was the exact amount paid to her by the agency.
CRF, Tab 10 at 6. Therefore, the appellant’s claim is incorrect and does not
demonstrate agency noncompliance with the Board’s order.
Annual Leave
¶14 The appellant argu es that the agency did not restore to her the proper
amount of annual leave. CRF, Tab 3 at 1. The agency claims that the appellant
initially lost annual leave for six pay periods and was then restored annual leave
for six pay periods. CRF, Tab 10 at 6, Tab 16 at 5. In its May 17, 2019 response,
the agency declares that “[u]nder no possible theory can Appellant sustain and/or
prove that she was entitled to a bigger adjustment than the one made by the [U.S.
Postal Service].” CRF, Tab 16 at 5. But the ba ck pay period in question,
3 The appellant includes in her submission a claim for 78 “holiday leave hours,” a
category of compensation that does not otherwise appear in her back pay records. CRF,
Tab 3 at 1 -2. The appe llant provides no explanation as to why she believes she is
entitled to this compensation as part of her back pay. See i d. Without further detail,
the appellant’s claim is nothing more than an unsupported, conclusory allegation and is
therefore denied. See Brown v. Office of Personnel Management , 113 M.S.P.R. 325 , ¶ 5
(2010).
7
March 19 through July 18, 2016, appears to consist of at least eight pay periods.4
As such, the agency’s math appears to be incorrect; the appellant is entitled to
eight pay periods’ worth of restored annual leave, not six. Thu s, we find the
agency noncompliant with respect to the appellant’s annual leave and order the
agency to restore two additional pay periods of annual leave to the appellant. The
agency must submit evidence that it has restored the annual leave in accordanc e
with this Order.
W-4 Tax Withholding
¶15 The appellant argues that the agency did not use the correct W -4 tax
withholding for her back pay. CRF, Tab 3 at 2. The Board does not have
jurisdiction to consider tax withholding issues, however. See Quackenbush v.
Department of Justice , 45 M.S.P.R. 543 , 544 (1990). We therefore find the
agency compliant on this issue.
Night Differential Pay
¶16 The a ppellant argues that the agency’s night differential pay total was
inaccurate, stating that the agency’s original night differential total was 88 hours,
before being reduced to 86 hours in its final calculation. In response, the agency
admits to the 2 -hour reduction but explains that this reduction came as a result of
an internal audit revealing that the appellant had already been paid the 2 hours in
question. CRF, Tab 16 at 4. The agency has provided credible evidence
confirming this explanation, and th e appellant has not provided any argument
showing that the agency’s explanation is incorrect. CRF, Tab 16 at 7 -16.
Therefore, the agency has demonstrated compliance with respect to night
differential pay.
4 See United States Postal Service Organization Informat ion, 2016 Pay Period Inclusive
Dates, https://about.usps.com/postal -bulletin/2015/pb22429/html/info_001.htm (last
accessed Feb. 2 , 202 3).
8
Conclusion
In sum, the agency’s combined submi ssions show that the agency has now
reached full compliance on all but one of the outstanding issues. Specifically, the
agency’s narrative statement and supporting documentation demonstrate that it
paid the appellant the requisite amount of back pay and i nterest and made all
appropriate adjustments to her benefits, with the exception of her annual leave, as
discussed above. CRF, Tab 1 at 4-31, Tab 10 at 7, 10.
ORDER
¶17 Accordingly, we ORDER the agency to submit, within 30 calendar days of
the date of this Order, evidence demonstrating that it has restored an additional
two pay periods of annual leave to the appellant and a narrative explanation of its
efforts to reach compliance. If the agency fails to submit the required
information, the Board may issue a n order to show cause why sanctions should
not be imposed against the responsible agency official pursuant to 5 U.S.C.
§ 2304 (e)(2)(A) and 5 C.F.R. § 1201.183 (c).
¶18 The appellant may submit a reply to the agency’s evidence of compliance
with this Order within 21 calendar days of the date of service of the agency’s
submission. Any such reply must be limited to whether the agency timely
restored to her an addition al two pay periods of annual leave. If the appellant
does not respond to the agency’s submission within 21 days, the Board may
assume that the appellant is satisfied and dismiss the petition for enforcement.
FOR THE BOARD:
Washington, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board | WYATT_ROCHELLE_M_AT_0353_16_0492_X_1_ORDER_1998921.pdf | 2023-02-02 | null | AT-0353 | NP |
3,638 | https://www.mspb.gov/decisions/nonprecedential/LUFT_RICHARD_L_DA_0432_21_0090_I_1_FINAL_ORDER_1998959.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
RICHARD L. LUFT,
Appellant,
v.
DEPARTMENT OF THE AR MY,
Agency.
DOCKET NUMBER
DA-0432 -21-0090 -I-1
DATE: February 2, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL1
Richard L. Luft , Fort Worth, Texas, pro se.
Amber D. Garcia , Esquire, and Karen Denise Haertl , Esquire, Fort Worth,
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
upheld the removal action for unsatisfactory performance and found that he did
not prove his claims of failure to accommodate and disparate treatment disability
discrimination . On petition for review, the appellant challenges some of the
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or dis tinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c).
2
administrative judge’s findings regarding the unsatisfactory performance charge
and his analysis of the disparate treatment disability discrimination claim, and
he raises a claim of administrativ e judge bias. 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 result ing 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 f or
review. Therefore, we DENY the petition for review. We MODIFY the initial
decision to supplement the administrative judge’s analysis of the appellant’s
disparate treatment disability discrimination claim, but we still find that the
appellant did not p rove this claim . Except as expressly MODIFIED herein, we
AFFIRM the initial decision.
¶2 The appellant claims on review that his supervisor did not allow him to be
trained and that he did not have proper software experience . Petition for Review
(PFR ) File, Tab 1 at 9. T he administrative judge addressed these claims in the
initial decision. He made numerous demeanor -based credibility determinations in
favor of the appellant’s supervisor. Initial Appeal File, Tab 36, Initial Decision
(ID) at 19. The Bo ard 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 ).
3
The appellant has not pre sented such sufficiently sound reasons . In particular,
the appellant asserts that he “recorded more than 20 to 30 acts of perjury” and
that his supervisor committed perjury “12 times.” PFR File, Tab 1 at 9.
However, he failed to identify a specific instance in which his supervisor or
another a gency official committed perjury. See, e.g. , Hubbard v. Department of
Veterans Affairs , 51 F. App’x 8, 9 (Fed. Cir. 2002) (explaining that
Mr. Hubbard’s arguments did not persuade the court to reverse the Board’s
decision because, among other things, “his allegations of perjury [did] not
identify . . . what was said that was untruthful”).2 Thus, this argument is not
persuasive. Moreover, the Board will not disturb an administrative judge’s
findings when , as here, he considered the evidence as a whole, dr ew appropriate
inferences, and made reasoned conclusions on issues of credibility. See Crosby v.
U.S. Postal Service , 74 M.S.P.R. 98, 106 (1997); Broughton v. Department of
Health and Human Services , 33 M.S.P.R. 357, 359 (1987).
¶3 We have considered the administrative judge’s analysis of the substantive
elements of a chapter 43 unacceptable performance action . We discern no error
with his analysis or his conclusion that the agency proved the charge by
substantial evidence. ID at 5 -34; see Lee v. Departm ent of Veterans Affairs ,
2022 MSPB 11 , ¶ 15.
¶4 Regarding the appellant’s disparate treatment disability discrimination
claim, we modif y the initial decision to supplement the administrative judge’s
analysis based on recent case law. In Pridgen v. Office of Management and
Budget , 2022 MSPB 31 , ¶¶ 35-42, the Board cited to Southerland v. Department
of Defense , 119 M.S.P.R. 566 (2013), which was relied upon by the
administrative judge , ID at 38 -40, and clarified the proper standard for analyzing
a status -based disability discrimination claim. Under both Southerland and
2 The Board may follow a nonprecedential decision of the U.S. Court of Appeals for the
Federal Circuit whe n, as here, it finds the court’s reasoning persuasive. Erlendson v.
Department of Justice , 121 M.S.P.R. 441 , ¶ 6 n.2 (2014).
4
Pridgen , however, the appellant bears the initial burden to show that his disability
was a motivating factor in the removal action. Pridgen , 2022 MSPB 31 , ¶ 40;
Southerland , 119 M.S.P.R. 566, ¶¶ 18, 23. We discern no error with the
administrative judge’s conclusion that the appellant did not prove that his
disability was a motivating factor in his removal. ID at 39 -40. Because the
appellant did not meet this initial bu rden, we do not reach the question of whether
his disability was a “but -for” cause of the removal action.3 See Pridgen ,
2022 MSPB 31 , ¶¶ 40, 42.
¶5 We have also considered the appellant’s argument that his supervisor
showed general hostility to his health conditions. PFR File, Tab 1 at 9. The
administrative judge evaluated this argument in the initial decision. ID at 39 -40.
He considered the evidence as a whole, drew appropriate inferences, and made
reasoned conclusions on issues of credibility. See Crosby , 74 M.S.P.R. at 106;
Broughton , 33 M.S.P.R. at 359. We discern no error with his analysis in this
regard.
¶6 The appellan t states on review that his doctor told him that he was “in the
beginning stages of Multiple Sclerosis .” PFR File, Tab 1 at 9 . However, he does
not provide any corroborating documentation to support this diagnosis or any
evidence that he apprised the agency of this diagnosis or its impact on his
performance at any time before the removal action was effected. Accordingly,
this single state ment on review does not warrant a different outcome.
¶7 We have considered, but do not find persuasive, t he appellant’s claims of
administrative judge bias. Id. An administrative judge’s conduct during the
course of a Board proceeding warrants a new adjudic ation 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
3 It does not appear that the appellant is challenging on review the administrative
judge’s analysis of his failure to accommodate claim. We discern no error with the
administrative judge’s analysis of this claim, ID at 34 -38, and we affirm it herein.
5
the Army , 287 F.3d 1358 , 1362 -63 (Fed. Cir. 2002) (quoting Liteky v. United
States , 510 U.S. 540 , 555 (1994)). The appellant has identified no action or
statement of the administrative judge that evidences such favoritism or
antagonism.
¶8 Having determined that the agency proved the charge, and the appellant did
not prove his disability discrimination claims, we lac k the authority to mitigate
the removal penalty. See Lisiecki v. Merit Systems Protection Board , 769 F.2d
1558 , 1566 -67 (Fed. Cir. 1985) (holdi ng that the Board has no authority to
mitigate a removal action taken under 5 U.S.C. chapter 43 for unacceptable
performance). Accordingly, we affirm the removal action .4
NOTICE OF APPEAL RIG HTS5
The initial decision, as supplemented by this Final Order , constitutes the
Board’s final decision in this matter. 5 C.F.R. § 1201.113 . You may obtain
review of this final decision. 5 U.S.C. § 7703 (a)(1). By statute, the nature of
your claims determines the time limit for seeking such review and the appropriate
forum with which to file. 5 U.S.C. § 7703 (b). Although we offer the following
summary of available appeal rights, the Merit Systems Protection Board does not
provide legal advice on which option is 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
4 The appellant includes a copy of his removal S tandard Form 50 on review. PFR File,
Tab 1 at 11. Evidence that is already a part of the record is not new . Meier v.
Department of the Interior , 3 M.S.P.R. 247 , 256 (1980).
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
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.
If you are interested in securing pro bono representation for an appeal 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.
7
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful 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 in volves a claim of
discrimination based on race, color, religion, sex, national origin, or a disabling
condition, you may be entitled to representation by a court -appointed lawyer and
to waiver of any requirement of prepayment of fees, costs, or other secur ity. See
42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decis ion.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
8
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegation s of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the F ederal Circuit or any court of appeals of
competent jurisdiction.6 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
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 Cir cuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any o ther circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195,
132 Stat. 1510.
9
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” whi ch is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.g ov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representati on in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/ Court_Locator/CourtWebsites.aspx .
FOR THE BOARD:
Washington, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board | LUFT_RICHARD_L_DA_0432_21_0090_I_1_FINAL_ORDER_1998959.pdf | 2023-02-02 | null | DA-0432 | NP |
3,639 | https://www.mspb.gov/decisions/nonprecedential/TEMPLETON_CLARENCE_M_DE_1221_21_0032_C_1_REMAND_ORDER_1998971.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
CLARENCE M. TEMPLETO N, III,
Appellant,
v.
DEPARTMENT OF THE AI R FORCE,
Agency.
DOCKET NUMBER S
DE-1221 -21-0032 -C-1
DE-1221 -21-0032 -R-1
DE-4324 -21-0067 -C-1
DE-4324 -21-0067 -R-1
DATE: February 2, 2023
THIS ORDER IS NONPRECEDENTIAL1
Jerald Rule , Washington, D.C. , for the appellant.
Bobbie Garrison , Joint Base Andrews, Maryland, for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
Tristan L. Leavitt, Member
REMAND ORDER
¶1 The appellant has filed petitions for review of the compliance initial
decisions docketed as Templeton v. Department of the Air Force , MSPB Docket
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case 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
No. DE -1221 -21-0032 -C-1, and Templeton v. Department of the Air Force , MSPB
Docket No. DE-4324 -21-0067 -C-1, which denied his petitions for enforcement of
the parties’ settlement agreement s that resolved his individual right of action
(IRA) and Uniformed Services Employment and Reemployment Rights Act of
1994 (USERRA) appeals. For the reasons set forth herein we REOPEN the
underlying appeals , docketing them as Templeton v. Department of the Air Force ,
MSPB Docket No. DE-1221 -21-0032 -R-1, and Templeton v. Department of the
Air Force , MSPB Docket No. DE-4324 -21-0067 -R-1.2 We also JOIN the
compliance appeals . We GRANT the appellant’s petitions for review, VACATE
the initial decisions dismissing the underlying appeals as settled , VACATE the
compliance initial decisions denying the appellant’s petitions for enforcement ,
and REMAND the reopened appeal s to the field office for further adjudication in
accordance with this Remand Order.
2 The Board will exercise its discretion to reopen an appeal only in unusual or
extraordinary circumstances and generally within a short period of time after the
decision becomes final. 5 C.F.R. § 1201.118 . We recognize that the initial decisions in
the appellant’s underlying appeals became final in February 2021. Templeton v.
Department of the Air Force , MSPB Docket No. DE-1221 -21-0032 -W-1, Initi al
Decision at 3 (Jan. 19, 2021); Templeton v. Department of the Air Force , MSPB Docket
No. DE-4324 -21-0067 -I-1, Initial Decision at 3 (Jan. 22, 2021). However, the appellant
sought enforcement of the settlement agreements that resolved the appeals in
April 2021, only 2 months after the initial decisions became final. Templeton v.
Department of the Air Force , MSPB Docket No. DE-1221 -21-0032 -C-1, Compliance
File, Tab 1 ; Templeton v. Department of the Air Force , MSPB Docket No. DE-4324 -21-
0067 -C-1, Compliance File , Tab 1. Further, we find the circumstances here unusual
because, as discussed below, the parties only became aware that the settlement
agreements were premised on a mutual mistake of fact after the agency attempted
compliance, and the disc overy of this mistake of fact was an intervening event that
directly bears on the dismissal of the underlying appeals as settled . Jennings v. Social
Security Administration , 123 M.S.P.R. 577 , ¶ 17 (2016) (explaining that unusual or
extraordinary circumstances that justify reopening an appeal include, as relevant here,
an intervening event that directly bears on the result ). Therefore, we exercise our
discretion to reopen the underlying appeals.
3
BACKGROUND
¶2 From June 1, 1986, to March 31, 2004, the appellant served a number of
tours of duty in the military. Templeton v. Department of the Air Force , MSPB
Docket No. DE -1221 -21-0032 -W-1, Initial Appeal File (0032 IAF), Tab 9 at 46.
Then beginning in November 2009, he served in a series of appointments in
Federal agencies and departments. 0032 IAF, Tab 9 at 19, Tab 10 at 41.
As relevant to this appeal , the appellant asserted that he made two deposit s to
receive service credit for a portion of his military service towards his Federal
Employees’ Retirement System (FERS) retirement , while employed at the
Department of the Navy and Department of Veterans Affairs, in 2013 and 2015
respec tively . 0032 IAF, Tab 7 at 3, Tab 9 at 81, Tab 10 at 41.
¶3 In March 2018, he was appointed to a position with the agency, and was
employed with the agency at all times relevant t o this appeal. 0032 IAF,
Tab 9 at 18. Between 2018 and 20 19, the appellant attempted to correct
his military service credit to reflect that he paid the two deposits, which should
have resulted, by his calculation, in 1133 days of creditable FERS service as of
September 2015 . 0032 IAF, Tab 1 at 5, 10 , Tab 7 at 3-4, Tab 9 at 52-54.
In July 2019, after the appellant contacted U.S. Senator Martin Heinrich , Senator
Heinrich’s office requested assistance in correcting the appellant’s service credit.
0032 IAF, Tab 9 at 56-60. However, as of September 2019, the agency could not
determ ine whether the appellant had paid a deposit for all periods of service.
Id. at 47, 67 -71. In June 2020 , he filed a complaint with the Office of Special
Counsel asserting that the agency ceased helping him correct his service
computation date after he co ntacted Senator Heinrich . 0032 IAF, Tab 1 at 10.
¶4 Subsequently, in November 2020, the appellant filed an appeal alleging that
the agency failed to credit him with 1133 days. 0032 IAF, Tab 1. The regional
office separately docketed the appeal as an IRA ap peal and a USERRA appeal.
0032 IAF, Tab 15; Templeton v. Department of the Air Force , MSPB Docket
No. DE-4324 -21-0067 -I-1, Initial Appeal File (0067 IAF), Tab s 1, 6.
4
The administrative judge made a preliminary finding that the Board has
jurisdiction over both appeals. 0032 IAF, Tab 15.
¶5 In January 2021, the parties entered into two substantially similar
settlement agreements. 0032 IAF, Tab 18 at 4 -7, Tab 20 at 4 -7. In exchange for
the appellant withdrawing his appeals, the agency agreed to “complete any
documentation needed to correct [his] creditable military service to 1133 days”
and “request this correction from the Defense Finance and Accounting Services
(DFAS) within . . . 45 days” in both agreement s. 0032 IAF, Tab 18 at 4 -5,
Tab 20 at 4 -5.3 The a gency also agreed to provide the appellant with a lump sum
payment of $300 dollars in the IRA agreement , 0032 IAF, Tab 18 at 4 , and status
updates to the appellant every 14 days in the USERRA agreement , 0032 IAF,
Tab 20 at 5. The administrative judge then issued a substantively identical initial
decision in each appeal, dismissing the appeal s as settled and entering the
settlement agreement s into the record for enforcement purposes. 0032 IAF,
Tab 21, Initial Decision ; 0067 IAF, Tab 10, Initial Decision. Neither party
petitioned for review, and the initial decisions became the final decisions of the
Board. 5 C.F.R. § 1201.113 (providing that, absent a timely filed petition for
review, the initial decision generally becomes the Board’s final decision within
35 days after issuance).
¶6 The agency submitted the payment voucher for the $300 dollars and
the documentation to DFAS to in crease the appellant’s creditable FERS service
by 1133 days. Templeton v. Department of the Air Force , MSPB Docket
No. DE-1221 -21-0032 -C-1, Compliance File (CF), Tab 5 at 8 -14. In
February 2021, DFAS advised the agency that the appellant ’s deposit result ed in
1124 days of creditable FERS service. Id. at 16, 25. On April 11, 2021, the
appellant filed separate petitions for enforcement of the parties’ settlement
3 To the extent the initial decisions, settlement agreements, and other documents and
pleadings are identical in these appeals, we will cite to the record in the appellant’s IRA
appeal for the sake of clarity and simplicity.
5
agreements, raising the same issue. Specifically, he alleged that the agency failed
to “provi de[] the requested relief.” CF, Tab 1 at 3. The agency responded,
submitting evidence and argument to show that it had complied with the
settlement agreement s by timely submitted documentation to DFAS, with
follow -up notices to the appellant. CF, Tab 5. According to the agency, it
disagreed with DFAS as to whether the appellant’s FERS credit for military
services was 1133 days as the agency calculated, or 1124 days, as DFAS
calculated. Id. at 5, 21, 25.
¶7 In substantively identical compliance initial dec isions, the administrative
judge found that the appellant failed to establish the agency breached the
settlement agreements and denied his petitions for enforcement. CF, Tab 9,
Compliance Initial Decision (CID) at 2, 4 -5. Specifically, she found it undis puted
that the agency timely provided DFAS with the promised documentation and the
appellant with status updates in accordance with t he terms of the agreement.
CID at 4. She further concluded that the parties did not dispute that DFAS’s
calculation of 11 24 days of service credit were correct. Id.
¶8 The appellant has filed the same petition for review of the compliance
initial decision in each appeal. Compliance Petition for Review (CPFR) File,
Tab 1. The agency has responded, and the appellant has replie d. CPFR File,
Tabs 4 -5.
DISCUSSION OF ARGUME NTS ON REVIEW
The parties’ settlement agreement must be set aside for mutual mistake of fact.
¶9 Federal employees covered under FERS can receive credit for military
service performed after 1956 by paying “a deposit (including interest, if any)” of
3% of military basic pay before separation.4 Simpkins v. Department of Labor ,
4 Joinder of two or more appeals filed by the same appellant may be appropriate when
joinder would expedite processing of the appeals and would not adversely affect the
interests of the parties. Boechler v. Department of the Interior , 109 M.S.P.R. 542 , ¶ 14
(2008), aff’d , 328 F. App’x 660 (Fed. Cir. 2009); 5 C.F.R. § 1201.36 (a)(2), (b). We
6
107 M.S.P.R. 651 , ¶ 19 (2008) ; 5 U.S.C. §§ 8411 (c)(1)(B), 8422(e)(1)(A);
5 C.F.R. § 842.307 (b). Here, t he dispute as to the appellant’s FERS credit
occurred because the agency appeared to calculate the appellant’s FERS credit
using calendar days , and thus, believed he was entitled to 1133 days. 0032 IAF,
Tab 1 at 5; CF, Tab 5 at 43 -45. DFAS calculated his FERS credit as 1124 days ,
based upon a 30 -day month in accordance with the Department of Defense
Financial Management Regulation , DoD 7000.14 -R, volume 7A, chapter 1.
CF, Tab 8 at 4, 7. There is some support for DFAS ’s calculation . See 5 U.S.C.
§ 8411 (a)(1) (providing that “[t]he total service of an employee or Member is the
full years an d twelfth parts thereof, excluding from the aggregate the fractional
part of a month, if any); Begley v. Office of Personnel Management , 60 F.3d 804,
805-06 (Fed. Cir. 1995) ( upholding the Office of Personnel Management’s
interpretation of the same language in 5 U.S.C. § 8332 (a), governing service
credit under the Civil Service Retirement S ystem , as providing for 30 days ’ credit
for each full calendar month of work ). However, we need not resolve here the
question of how to properly calculate the number of days per month for purposes
of FERS service credit because we must voi d the agreement as relying on
a mutual mistake of fact.
¶10 A settlement agreement is a contract between the parties that may be set
aside or voided only on the basis of certain limited grounds, including, as relevant
here, a mutual mistake of material fact under which both p arties acted. Vance v.
Department of the Interior , 114 M.S.P.R. 679 , ¶ 12 (2010). A mutual mistake of
fact is a shared, mistaken belief of the parties regarding a material assumption of
fact underlying their agreement. Id. A mistake of fa ct is material if it involves
a “basic assumption” underlying an agreement. Brady v. Department of the Navy ,
find that these compliance appeals, based on the same underlying military service
deposit and involving substantially similar settlement agreements, initial decisions, and
petitions for review , meet the regulatory criteria; therefore, we join them.
7
95 M.S.P.R. 619 , ¶ 8 (2004). A settlement term is material when it is central to
the agreement and numerous other provisions depend on it. Id.
¶11 The relevant provision of the settlement agreements provided that the
agency would submit the documentation to DFAS to correct the appellant’s
creditable military service to 1133 days. 0032 IAF, Tab 18 at 5, Tab 20 at 4 -5.
The settlement agreements d id not specify what would h appen if the appellant
was not entitled to 1133 days. 0032 IAF, Tab 18 at 5, Tab 20 at 4 -5. Although
they contemplated that the appellant might be owed a refund or be required to pay
additional deposits in order to receive credit for the service dates at issue, the
agreements were premised on the assumption that, based on the military dates of
service at issue, DFAS would credit the appellant with 1133 days of FERS
service. CF, Tab 5 at 13, 40. Thus, both parties believed that, by taking the steps
outli ned in the agreement, the appellant would receive 1133 days of creditable
military service based on his military service dates. Id. at 5, 22 -28; 0032 IAF,
Tab 1 at 10, Tab 7 at 3. Furthermore, there is nothing in the agreement s that
suggest that the part ies intended the result that the appellant’s entitlement would
be 9 days less than they both calculated.
¶12 Thus, it appears the parties executed their settlement agreement s under
a mutual mistake of material fact, i.e., that DFAS would process 1133 days of
FERS service credit .5 Cf. Vance , 114 M.S.P.R. 679 , ¶¶ 12, 14-16 (finding
5 We have alternatively considered whether the error here is one of law regarding how
to apply the relevant statutes and regulations for crediting the appellant’s military
service . However, we need not resolve whether the mistake here was legal or factual in
nature, because a mutual mistake of law that goes to the heart of the agreement , as the
error does here, also requires that it be set aside . Potter v. Department of Veterans
Affairs , 111 M.S.P.R. 374 , ¶ 9 (2009). We observe that there appears to be another
fatal flaw regarding the agreement settling the appellant’s USERRA appeal. That
agreement requires the agency to process the appellant’s military service credit without
providing any addition al benefits to the appellant. 0032 IAF, Tab 20 at 4 -7. Arguably,
the agency was obligated to process the appel lant’s service credit even absent the
agreement; therefore , the agreement may lack consideration for the appellant’s waiver
of his Board appeal rights . See Black v. Department of Transportation , 116 M.S.P.R.
8
a settlement agreement had to be set aside when both part ies may have operated
under a mistake of fact that the appellant could have a clean employment record
or, alternatively, the agency acted in bad faith in failing to advise the appellant
that his assumption that he could have a clean record was mistaken). Therefore,
we find that the settlement agreement s must be set aside based on mutual mistake
of a material fact. Ordinarily, a finding that a settlement agreement must be set
aside results in the reinstatement of the underlying appeal. Id., ¶ 16. However ,
when a settlement agreement must be set aside because of the failure of
an essential part of that agreement, but the appellant has obtained other benefits
pursuant to that agreement, the Board has found it appropriate to offer the
appellant a choice between reinstating his appeal or accepting the settlement
agreement as is. Id.
¶13 Accordingly, remand of the reopened appeals is necessary. On remand, the
administrative judge shall inquire whether the appellant wishes to reinstate his
IRA and USERRA appeals or accept the parties’ settlement agreement s
notwithstanding the fact that, according to DFAS, he is not entitled to 1133 days.
Alternatively, the parties may choose to negotiate a new settlement agreement.
The administrative judge shall then issue a new initial decision.
87, ¶¶ 17 -18 (2011) (explaining that a waiver of appeal rights was unenforceable when
there was no conside ration for the employee’s waiver).
9
ORDER
¶14 For the reasons discussed above, we remand the appellant’s reopened
appeals to the field office for further adjudication in accordance with this Remand
Order.
FOR THE BOARD:
Washington, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board | TEMPLETON_CLARENCE_M_DE_1221_21_0032_C_1_REMAND_ORDER_1998971.pdf | 2023-02-02 | null | S | NP |
3,640 | https://www.mspb.gov/decisions/nonprecedential/LANE_DON_W_AT_0752_16_0357_I_1_FINAL_ORDER_1999010.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
DON W. LANE,
Appellant,
v.
DEPARTMENT OF THE TR EASURY,
Agency.
DOCKET NUMBER
AT-0752 -16-0357 -I-1
DATE: February 2, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL1
Don W. Lane , Atlanta, Georgia, pro se.
Jessica Rice , Esquire, Atlanta, 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
sustained the agency’s action suspending him for 30 days . Generally, we grant
petitions such as this one only in the following circumstances : the initial decision
contains erroneous findings of material fact; the initial decision is based on an
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and a dministrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c).
2
erroneous interpret ation 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 a buse 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 Federa l 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 12 01.115 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 appellant formerly served as a GS-08 Contact Representative with the
Internal Revenue Service . Initial Appeal File (IAF), Tab 4 at 38.2 In an April 30,
2015 decision , the agency suspended the appellant for 30 calendar days based on
the following charges: (1) absence without leave (AWOL) ; (2) failure to follow
proper leave procedures ; and (3) failure to follow his manager’s directive and
display of unprofessional behavior. Id. at 40 -45.
¶3 The appellant filed an equal employment opportun ity (EEO) complaint
regarding the suspension, and the agency issued a final agency decision finding
no discrimination , from which the appellant timely appealed to the Board. IAF,
Tab 1, Tab 4 at 12 -27. In his appeal, the appellant alleged that the suspen sion
lasted for a period of 34 calendar days and was unlawful because it was greater
than that set forth in the proposal and decision. IAF, Tab 1 at 5. The appellant
also raised the following affirmative defenses: (1) harmful procedural error ;
2 Effective August 28, 2015, the appellant retired from the Federal service. IAF, Tab 4
at 71.
3
(2) discr imination on the base s of race and sex ; (3) retalia tion for protected EEO
activity ; and (4) unspecified prohibited personnel practices. Id. At the
prehearing conference, the appellant also appears to have alleged discrimination
on the base s of color and disability and that the agency interfered with his rights
to take leave under the Family and Medical Leave Act of 1993 (FMLA). IAF,
Tab 26 at 3 n.1, 4, 7. The administrati ve judge notified the appellant of his
burdens of proof to establish his affirmativ e defenses of race, color, sex, a nd
disability discrimination; reprisal ; retaliation for whistleblowing ; and harmful
procedural error; and notified the agency that it must prove that it comported with
the FMLA to prove its charge of AWOL. Id. at 3 n.1, 4 -11.
¶4 Following a hearing, the administrative judge issued an initial decision
sustaining the agency’s action and concluding that the appellant had not proven
his affirmative defenses . IAF, Tab 32 , Initial Decision (ID) . The administrative
judge split the agency’s third charge into two charges, one of failure t o follow a
management directive and one of unprofessional behavior. ID at 7. T he
administrative judge concluded that the agency had pro ven the charges by
preponderant evidence , a nexus be tween the a ppellant’s misconduct and the
efficiency of the service, and that the penalty was reasonable. ID at 3 -14. The
administrative judge noted that the appellant raised a mitigating factor fo r the
first time at the hearing but concluded that the fa ctor was not mitigating. ID
at 13. The administrative judge found that the appellant was suspended for 30 ,
not 34 , calendar days, because the Standard Form (SF) 50 effecting the
appella nt’s suspension reflected that he was suspended for 30 calendar days .
According to the administrative judge, the fact that the appellant turned in his
badge prior to the weekend before his suspension, when he did not work
weekends , did not extend the suspension. ID at 13 n.4. The administrative judge
also concluded that the appellan t did not prove his affirmative defenses of
discrimination on the bases of race, color, sex, and disability; retaliation for prior
EEO activity, or retaliation for whistlebl owing. ID at 14 -22. T he administrative
4
judge further held that the appellant’s ar gument that the agency did not correctly
input his time and attendance during March 2015 concerning his requested leave
under the FMLA did not show that the agency was motivated by prohibited
animus in suspending the appellant. ID at 21 n.8.
¶5 The appellan t tim ely filed a petition for review in which he argues that the
administrative judge erred in finding that the suspension lasted for 30 days when
his time and attendance records reflect he was suspended for 32 days, and the
agency committed harmful error in enlarging the suspension . Petition for R eview
(PFR) File, Tab 1 at 2-3. The appellant also argues for the first time that the
agency unlawfully interfered with his use of leave under the FMLA when it
responded to his request for FMLA leave for June 4, 2015 , by placing him in a
suspension status on that date, and that this action creates an inference of
discrimination against the appe llant on the base s of his race and sex and in
retaliation for protected activity “in violation of 5 U.S.C. 2302 (b)(1)(A) .” Id.
at 3-4. The agency has filed a response oppos ing the petition for review. PF R
File, Tab 3.
DISCUSSION OF ARGUME NTS ON REVIEW
¶6 The appellant does not challenge the admin istrative judge’s findings that
the agency proved the charges . PFR File, Tab 1. The appellant also does not
challenge the administrative judge’s findings that the agency proved a nexus
between the appellant’s misconduct and the efficiency of the service and the
reasonableness of the penalty. Id. We discern no reason to disturb those
findings. See ID; Clay v. Department of the Army , 123 M.S.P.R. 245 , ¶ 6 (2016)
(finding no reason to disturb the adm inistrative judge’s findings when she
considered the evidence as a whole, drew appropriate inferences, and made
reasoned conclusions on issue s of credibility) ; Broughton v. Department of
Health & Human Services , 33 M.S.P.R. 357 , 359 (1987) (same) .
5
¶7 On review, the appellant does not dispute that the suspension in question
began on May 4, 2015, but he reiterates his argument below that the suspension
ended on June 4, 2015 , for a period of 32 days . Id. at 1-2. The appellant argues
that the administrative judge should have relied on the appellant’s time and
attendan ce records, which show him in a suspension status on June 3 and 4, 2015,
rather than what is reflected on his SF -50, to determine t he length of the
suspension. IAF, Tab 4 at 38, 65; PFR File, Tab 1 at 2 -3.
¶8 The weight of the evidence before us indicates t hat the agency suspended
the appellant for 30 days. The notice of proposed suspension and the decision
letter issued to the appellant both notified him that he was to be suspended from
duty for a period of 30 days . IAF, Tab 4 at 40, 44 . Specifically, th e decision
provided that the appellant would be suspended from duty “for a period of thirty
(30) calendar days commencing Monday, May 4, 2015” and instructed him to
“return to duty at 7:30am on Wednesday, June 3, 2015.” Id. at 40. The SF -50
initiating the suspension on May 4, 2015 , reflects the suspension was to end on
June 2, 2015, and the SF -50 ending the suspension reflects the appellant was to
return to duty on June 3, 2015. Id. at 38 -39. E ach SF -50 was prepared within 2
days following the event it documented . Id. The administrative judge correctly
calculated the period of May 4 to June 2, 2015 , to be 30 days. ID at 13 n.4.
¶9 The appellant offered conflicting testimony as to whether he understood
that he was supposed to retur n to work on June 3, 2015, but it is undisputed that
he understood he was supposed to return to work on June 4, 2015. Hearing
Compact Disc (HCD), File 5 (testimony of the appellant ). The appellant did not
return to work on either date and alleged that on June 3, 2015, he requested to
take leave on June 4, 2015. Id. The record contains an Office of Personnel
Management Form 71, Request for Leave or Approved Absence, dated June 3,
2015 , requesting leave for June 4, 2015 , but the appellant offered no evide nce
show ing that the agency received this request or that the request was approved.
IAF, Tab 4 at 66. The appellant’s time and attendance records show him in a
6
suspension s tatus on June 3 and 4, 2015, 2 days beyond the 30 -day suspension
period set forth in the proposal notice , decision letter , and SF -50s. Id. at 65.
¶10 Except for the appellant’s time and attendance records, the record reflects a
clear intention by the agency to impose a 30 -day suspension. The propos al
notice , decision letter , and SF -50s effecting and ending the suspension each
correctly calculated a 30 -day suspension. Id. at 38 -40, 44; see Clark v.
Department of State , 2 M.S.P.R. 57 5, 576 (1980) ( finding that , despite an error in
computation in the agency’s decision letter, in which the decision letter referred
to a 14 -day suspension and a contemporaneous SF-50 stated the correct period of
suspension, the record reflected a clear int ention to effect a 14 -day suspension).
Further, the agency clearly communicated the end date of the 30 -day suspension
to the appellant in its decision. IAF, Tab 4 at 40; see Clark , 2 M.S.P.R. at 576
(holding that a 14 -day suspension was effected when the agency’ s decision letter
referred to a 14 -day suspension, the agency amended in writing the computational
error in the return -to-duty date prior to the expiration of the 14-day period, and
such action was communicated to the appellant during that time frame ).
¶11 Thus, t he appellant’s status for the 2 days following his 30 -day suspension
appears to be nothing more than a ministerial error reflecting an incorrect
characterization of the appellant’s leave status for the 2 days on which he did not
return to work following the suspension . IAF, Tab 4 at 65. Although the agency
should correct the appellant’s time and attendance records, we see no basis for
reversal of the agency’s action. It is clear the agency sus pended the appellant for
30, rather than 32 (or 34), days as the appellant has alleged , and no harmful error
resulted from the administrative error that denoted the appellant’s status as
suspended for 2 days after the suspension ended.
¶12 On review, the appellant also alleges that the agency interfered w ith his
ability to take leave under the FMLA as to his request to take lea ve on June 4,
2015, but below, he only alleged that the agency interfered with his requests for
leave in March 2015. IAF, Tab 29 at 6 ; PFR File, Tab 1 at 3 -4. The Board
7
generally will not consider an argument raised for the first time in a petition for
review absent a showing that it is based on new and material evidence not
previously available despite the party ’s due diligence. Banks v. Department of
the Air Force , 4 M.S.P.R. 268 , 271 (1980). The argument that the agency
interfered with the exercise of the appellant’s rights under the FMLA regarding
his alleged r equest to take leave on June 4, 2015 , was submitted for the first time
on review, and he offers no arg ument as to why he did not raise this argument
before . Likewise, t here is no evidence that this argument is based on new and
material evidence that would justify consideration of the issue.
¶13 Even if the appellant had raised the issue below, he nevertheless cannot
show that the agency interfered with the exercise of his rights under the FMLA
such that the suspension should be reversed . If an agency base s an adverse action
on its interference with an employee ’s rights under the FMLA , the adverse action
is a violation of law and cannot stand. Gross v. Department of Justice ,
77 M.S.P.R. 83 , 90 (1997). Here, the appellant’s alleged request for leave under
the FMLA for June 4, 2015 , did not occur until June 3, 2015, the day after he had
served his 30 -day suspension . IAF, Tab 4 at 66 . Thus, there is no evidence that
the agency based the adverse action at issue on the appellant’s June 3, 2015
request for leave.
¶14 On review, the appellant also argues that the agency placed him in a
suspension status instead of granting his request for F MLA leave on June 4, 2015,
and so an inference must be drawn from this act that the agency discriminated
against him on the base s of his race and sex and retaliated against him for
engaging in protected activity “in violation of 5 U.S.C. 2302 (b)(1)(A).” PFR
File, Tab 1 at 3-4. The appellant has argued for the first time on review that the
alleged d enial of his request to take FMLA leave on June 4, 2015 , constituted
evidenc e of discrimination and retaliation . Id. As provided above, the Board
generally will not consider an argument raised for the first time on review absent
a showing that it is based on new and material evidence not previously available
8
despite the party ’s due diligence. Banks , 4 M.S.P.R. at 271. The appellant has
offered no such explanation s here.
¶15 Again, e ven if we were to consider this new argument , the alleged denial of
this FMLA leave request does not warrant reversal of the administrative judge’s
finding that the appellant did not prove his affirmative defenses. See Russo v.
Veterans Administration, 3 M.S.P.R. 345 , 349 (1980) ( holding that the Board will
not grant a petition for review based on new evidence absent a showing that it is
of sufficient weight to warrant an outcome different from that of the initial
decision ). The appellant has proffered no evidence that th e agency was in receipt
of the re quest for FMLA leave on June 4, 2015 , or denied the leave request. IAF,
Tab 4 at 66 ; PFR File, Tab 1 at 3-4. Further, the leave request in question
occurred after the appellant served the suspension, and he has not offere d any
evidence to establish a causal connection between the leave request and the
earlier suspension. Compare IAF, Tab 4 at 38 , with IAF, Tab 4 at 66.
Accordingly, this evidence does not support an inference of discriminatory
animus and is not of suffici ent weight to warrant an outcome different from that
of the initial decision.
¶16 The appellant does not challenge the administrative judge’s findings
regarding his remaining affirmative defenses . In denying the appellant’s
affirmative defense s of discriminat ion on the bases of race, color, and sex, the
administrative judge applied the evidentiary standards set forth in Savage v.
Department o f the Army , 122 M.S.P.R. 612 , ¶¶ 42-43, 51 (2015) , overruled on
other grounds by Pridgen v. Office of Management and Budget , 2022 MSPB 31,
¶¶ 23-25. ID at 14 -16. In Savage , the Board stated that, when an appellant
asserts an affirmative defense of disc rimination or retaliation under 42 U.S.C.
§ 2000e -16, the Board first will inquire whether the appellant has shown by
preponderant evidence that the prohibited consideration was a motivating fact or
in the con tested personnel action. Savage , 122 M.S.P.R. 612 , ¶ 51. The Board
further stated that, in making this initial showing, an appellant may rely on direct
9
evidence or any of the three types of circumstantial evidence described in Troupe
v. May Department Stores Co. , 20 F.3d 734 (7th Cir. 1994) . Savage ,
122 M.S.P.R. 612 , ¶ 51. Following the issuance of the initial decision in this
matter, the Board clarified that the types of evidence set forth in Savage are not
subject to differing evidentiary standards and explained that “all evidence belongs
in a single pile and must be evaluate d as a whole.” Gardner v. Department of
Veterans Affairs , 123 M.S.P.R. 647 , ¶ 29 (quoting Ortiz v. Werner Enterprises,
Inc., 834 F.3d 760 , 766 (7th Cir. 2016)) , clarified by Pridgen , 2022 MSPB 31 ,
¶¶ 23-24. Here, the administrative judge discussed the distinction between direct
and circumstantial evidence, but there is no indication that he disregarded any
evidence because it was not direct or indirect. ID at 14 -16. Regardless of the
characterization of the appellant’s evidence relating to his c laim s of
discrimination on the bases of race, color, and sex , the administrative judge
properly considered the evidence as a whole in finding that the a ppellant failed to
prove these affirmative defense s. ID at 16 .
¶17 In denying the appellant’s affirmative defense of disparate treatment
disability discrimination, the administrative judge correctly applied the
evidentiary framework of McDonnell Douglas Corp. v. Green , 411 U.S. 792
(1973) . ID at 16 -20; see Pridgen , 2022 MSPB 31, ¶¶ 25, 42. Assuming without
deciding that the appellant was disabled within the meaning of the Americans
with Disabilitie s Act, the administr ative judge considered the evidence of
disability discrimination as a whole and concluded that the appellant had not
shown that the relevant agency officials were motivated by animus against those
with the appellant’s stated disability. ID at 20. As such , we discern no basis
upon which to disturb the administrative judge’s ultimate finding that the
appellant failed to establish his discrimination claims.3 See Clay , 123 M.S.P.R.
3 Because we affirm the administrative judge’s finding that the app ellant failed to prove
that race, color, sex, or disability discrimination were motivating factors in the agency’s
actions, we need not resolve the issue of whether the appellant proved that
10
245, ¶ 6. We also do not disturb the administrative judge’s finding s that the
appellant failed to establish his claim s of retaliation for prior protected activity or
whistleblower retaliation. ID at 20-22.
¶18 The appellant has not shown that the initial decision was based on
erroneous findings of fact or that there is new evidence that warrants an outcome
different from that of the initial decision. Thus, we deny the petition for review
and affirm the initial decision, which is now the Board’s final 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 t he time limit for seeking such
review and the 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.
discrimination was a “but -for” cause of the agency’s decisions. See Pridgen ,
2022 MSPB 31, ¶¶ 20-22, 29-33.
4 Since the issuance of the initial decision in th is matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.
11
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition 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
12
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 recei ves this decision. If the action involves a claim of
discrimination based on race, color, religion, sex, national origin, or a disabling
condition, you may be entitled to representation by a court -appointed lawyer and
to waiver of any requirement of prepa yment of fees, costs, or other security. See
42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative 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 revie w to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
13
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pur suant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.5 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
5 The original statutory provision that provided for judicia l review of certain
whistleblower claims by any court of 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 judi cial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court 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
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov /probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Co urt_Locator/CourtWebsites.aspx .
FOR THE BOARD:
Washington, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board | LANE_DON_W_AT_0752_16_0357_I_1_FINAL_ORDER_1999010.pdf | 2023-02-02 | null | AT-0752 | NP |
3,641 | https://www.mspb.gov/decisions/nonprecedential/GLINCOSKY_CAROLYN_M_DC_0432_17_0112_I_2_REMAND_ORDER_1999023.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
CAROLYN M. GLINCOSKY ,
Appellant,
v.
DEPARTMENT OF THE NA VY,
Agency.
DOCKET NUMBER
DC-0432 -17-0112 -I-2
DATE: February 2, 2023
THIS ORDER IS NONPRECEDENTIAL1
Ernest J. Wright , Esquire, Jacksonville, North Carolina, for the appellant.
Benjamin Ackison and Ralph H. Kohlmann , Esquire, Camp Lejeune, North
Carolina, for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limo n, Member
Tristan L. Leavitt, Member
REMAND ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
affirmed her removal for unacceptable performance under 5 U.S.C. chapter 43 .
For the reasons discussed below, we GRANT the appe llant ’s petition for review,
VACATE the initial decision, and REMAND the case to the Washington 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 in accordance with this Remand Order and Santos
v. National Aeronautics and Space Administration , 990 F.3d 1355 (Fed. Cir.
2021) .
BACKGROUND
¶2 The following facts in this appeal were stipulated to by the parties and are
not contested on review . T he appellant occupied a GS-9 Housing Manager
position at Camp Lejeune, North Carolina . Glincosky v. Department of the Navy ,
MSPB Docket No. DC -0432 -17-0112 -I-2, Appeal File (I -2 AF) , Tab 11 at 2. In
April 2016 , the agency placed her on a performance improvement plan (PIP)
based on alleged unacceptable performance in the critical elements Employee
Assessment and Development, Technical Competence, and Supervisory . Id.
at 3-6; Glincosky v. Department of the Navy , MSPB Docket No. DC-0432 -17-
0112 -I-1, Initial Appeal File (IAF) , Tab 7 at 76-79. After the agency found that
the appellant had failed to reach an acceptable level of performance during the
PIP, it proposed and effected her removal , effective June 30, 2016 , based on
unacceptable perform ance in the above three critical elements. IAF, Tab 7 at 80,
117-23, 135-43; I-2 AF, Tab 11 at 6-7. The appellant timely filed this Board
appeal challenging the action and alleging race discrimination and a hostile work
environment based on race and reprisal fo r equal employment opportunity (EEO)
activity . IAF, Tab 1 at 3, Tab 8 ; I-2 AF, Tab 9 at 4, Tab 11 at 8-9.
¶3 At the time the initial decision was issued, the Board ’s case law stated that,
in a performance -based action under 5 U.S.C. chapter 43, an agency mus t
establish by substantial evidence the following : (1) the Office of Personnel
Management approved its performance appraisal system; (2) the agency
communicated to the appellant the performance standards and critical elements of
her position; (3) the appellant ’s performance standards are valid under 5 U.S.C.
§ 4302 (c)(1); (4) the agency warned the appellant of the inadequacies of h er
performance during the appraisal period an d gave h er a reasonable opportunity to
3
improve; and (5) the appellant ’s performance remained unacceptable in at least
one critical element. White v. Department of Veterans Affairs , 120 M.S.P.R. 405 ,
¶ 5 (2013).2 Substantial evidence is the “degree of relevant evidence that a
reasonable person, considering the record as a whole, might accept as adequate to
support a conclusion, even th ough other reasonable persons might disagree. ”
5 C.F.R. § 1201.4 (p).
¶4 In an initial decision after a hearing , the administrative judge determined
that the agency established the elemen ts set forth above, finding that the appellant
failed to demonstrate acceptable performance during the appraisal period in three
critical elements of her position. I -2 AF, Tab 13, Initial Decision (ID) at 7-25.
The administrative judge also found that th e appellant failed to prove her
affirmative defenses of race discrimination and retaliation for protected EEO
activity by preponderant evidence. ID at 26 -32.
¶5 In her petition for review, the appellant ’s arguments generally focus on her
PIP, contending th at 30 days was too short a period to afford her a reasonable
opportunity to improve and demonstrate acceptable performance. Petition for
Review (PFR) File, Tab 1 at 2 -3. She asserts that her PIP was impossible to pass
and claims that the administrative j udge ignored her testimony that the hostile
work environment she endured both before and during the PIP period interfered
with her ability to perform. Id. at 3. Although the appellant disagrees with the
outcome of her appeal, she does not specifically ch allenge the administrative
judge ’s finding or the agency ’s evidence that her performance was unacceptable
on the Employee Assessment and Development, Technical Competence, and
Supervisory critical elements. ID at 22 -26. As discussed below, we discern no
basis to disturb the administrative judge’s findings in the initial decision.
2 Although White provides that criterion 3 requires that performance standards be valid
under 5 U.S.C. § 4302 (b)(1) , the National Defense Authorization Act for Fiscal Year
2018 redesignated subsection 4302(b) as subsection 4302(c). Pub. L. No. 115 -91,
§ 1097(d)(1)(A), 131 Stat. 1283, 1619 (2017).
4
ANALYSIS
The appellant has not established that the administrative judge erred in finding
that the appellant was provided with a reasonable opportunity to improve and that
her pe rformance was unacceptable on at least one critical element .
¶6 We agree with the administrative judge that the 30 -day PIP period was
sufficient for the appellant to demonstrate improved performance. ID at 21; see,
e.g., Towne v. Department of the Air Force , 120 M.S.P.R. 239, ¶ 10 (2013)
(finding that a 30 -day PIP can satisfy an agency ’s obligation to provide an
employee with a reasonabl e opportunity to demonstrate acceptable performance ).
We also agree with the administrative judge that the agency established by
substantial evidence that it afforded the appellant a reasonable opportunity to
demonstrate acceptable performance. ID at 15 -21. The administrative judge
found that the appellant ’s supervisor and other agency officials testified in a
clear, direct, and straightforward manner that was consistent with the
documentation of the deficiencies in the appellant ’s performance. ID at 20 . In
contrast, the administrative judge found that the appellant ’s testimony was neither
direct nor straightforward. Id. Pursuant to the testimony before her, the
administrative judge found that the appellant ’s supervisor discussed the changes
in the ap pellant ’s critical elements with her and, along with other agency
officials, held substantive weekly PIP meetings in which they repeatedly advised
the appellant of what was expected of her to demonstrate acceptable performance.
ID at 20 -21.
¶7 The appellan t cites three Board cases in support of her argument that the
agency denied her a fair and meaningful opportunity to improve her performance.
PFR File, Tab 1 at 3. In Beasley v. Department of the Air Force , 25 M.S.P.R.
213, 215 (1984), the Board found that because the agency did not inform the
appellant therein that her performance was unacceptable before it proposed her
removal under chapter 43, the agency failed to afford her a reasonable
opportunity to improve and demonstrate acceptable performance. The appellant
claims this is what happened to her, PFR File, Tab 1 at 3, but, as noted above and
5
unlike the appellant in Beasley , the a gency placed her on a PIP before proposing
her removal, and we agree with the administrative judge that the record reflects
that she received the guidance and time sufficient under that PIP to demonstrate
acceptable performance, ID at 20 -21. In Zang v. De fense Investigative Service ,
26 M.S.P.R. 155 , 157 -58 (1985), the Board also found that the agency failed to
afford the employee a sufficient opportunity to improve, finding that the
counselling she received was “often disparaging in nature, did not produce
guidance or advice on how to improve her work, ” and did not warn her of any
possible performance -based action. Moreover, the Board found th at the outcome
in Zang was pre-ordained because the supervisor in that case “had begun to
assemble a secret, negative record ” against the employee within 3 days after he
began service. Id. at 157. Although the appellant here argues that the result in
her removal was pre -ordained, PFR File, Tab 1 at 3, she has identified no such
evidence in support of her claim. Lastly, the appellant cites Deskins v.
Department of the Navy , 29 M.S.P.R. 276 (1985), also in support of her claim that
the agency denied her a reasonable opportunity to demonstrate acceptable
performance, PFR File, Tab 1 at 3. In Deskins , the Board found that the appellant
therei n “was subjected to verbal abuse and denied the additional time and
facilities necessary ” to demonstrate improved performance . 29 M.S.P.R. at 278.
As discussed below, the administrative judge in this matter found otherwise,
determining that the credible testimony of the appellant ’s supervisor showed that
she, along with other agency officials, held substantive weekly PIP meetings in
which they repeatedly advised the appellant of what was expected of her to
demonstrate acceptable performance. ID at 20 -21. Thus, we find the cases the
appellant cites are all distinguishable from the instant matter.
¶8 Because the record showed that the appellant explicitly acknowledged
receipt of her adjusted critical elements, and the testimony of agency officials
matched t he contemporaneous notes that the appellant ’s supervisor made of the
PIP meetings, the administrative judge found that the agency advised the
6
appellant of what was expected of her and afforded her a reasonable opportunity
to improve her performance. ID at 20-21. The Board must defer to an
administrative judge ’s credibility determinations when they are based, explicitly
or implicitly, on observing the demeanor of witnesses testifying at a hearing; the
Board may overturn such determinations only when it has “sufficiently sound ”
reasons for doing so. Haebe v. Department of Justice , 288 F.3d 1288 , 1301 (Fed.
Cir. 2002) . The appellant offers no such reasons and, consequently, we concur
with the administrative judge ’s analysis. Moreover, contrary to the appellant ’s
assertion, the administrative judge did not ignore her testimony, PFR File, Tab 1
at 3, but instead concluded that she failed to establis h the existence of a hostile
work environment, ID at 32; I -2 AF, Tab 9 at 4, 9 -13. Nevertheless, even if the
administrative judge had not addressed the appellant ’s claim or could have gone
into greater detail in her analysis, her failure to mention all the evidence of record
does not mean that she did not consider it in reaching her decision. Marques v.
Department of Health and Human Services , 22 M.S.P.R. 129 , 132 (1984), aff’d,
776 F.2d 1062 (Fed. Cir. 1985) (Table).
¶9 As noted above, the appellant d id not specifically challenge the
administrative judge ’s finding or the agency ’s evidence that her performance was
unacceptable on the Employee Assessment and Development, Technical
Competence, and Supervisory critical elements, ID at 22 -26, and instead chose to
focus on the issues analyzed above. Nevertheless, we agree with the
administrative judge that the agency established that the appellant failed to meet
at least one critical element of her position during the PIP. ID at 21 -26. On the
first critical element, Employee Assessment and Development, the administrative
judge found that the appellant failed to schedule her employees for training as
instructed. ID at 23; IAF, Tab 7 at 76 -77. Concerning the second critical
element, Technical Competence, the administrative judge found that the appellant
failed to submit any of the rep orts required under this element, despite receiving
an extension, and failed to address several other issues, including releasing the
7
daily email inbox, such that her supervisor had to complete this task for her. ID
at 23; IAF, Tab 7 at 77 -78. On the thi rd critical element, Supervisory, the
administrative judge found that the appellant failed to make required bi -weekly
visits to the Joint Reception Center, despite her supervisor having reduced the
original requirement from weekly visits. ID at 24; IAF, T ab 7 at 78. Under this
element, the administrative judge also found that the appellant failed to provide a
schedule for the cross -training of her employees and to provide her supervisor
with missing documents, such that her supervisor had to get the docum ents from
each of the appellant ’s subordinate employees herself. ID at 24.
¶10 We discern no reason to disturb the administrative judge ’s demeanor -based
credibility determinations that the agency satisfied its burden to demonstrate the
appellant ’s unaccepta ble performance under chapter 43. ID at 21 -26; Haebe ,
288 F.3d at 1301. Especially considering the appellant ’s failure to challenge the
administrative judge ’s finding that she completed only one task on the
spreadsheet that her supervisor prepared to help her organize her work, ID
at 17-18; IAF, Tab 7 at 115 -16, we agree with the administrative judge ’s ultimate
finding that the appellant failed to demonstrate acceptable performance in three
critical elements, ID at 21 -26.
The appellant has not establ ished any error in the administrative judge ’s
determinations on her affirmative defenses of race discrimination and retaliation
for protected EEO activity.
¶11 The appellant does not specifically challenge the administrative judge ’s
findings on her affirmative defenses. The only mention that the appellant makes
concerning this issue on review is to reiterate her argument that she was subjected
to, among other things, a hostile work environment and harassment that interfered
with her ability to perform before a nd during the PIP period. PFR File, Tab 1
at 3. Concerning the appellant ’s assertion of race discrimination, as noted above,
the administrative judge found no direct or circumstantial evidence to support the
appellant ’s claims. ID at 30.
8
¶12 Concerning th e alleged hostile work environment, we agree with the
administrative judge that the appellant ’s allegations —in which she recounted a
regional manager ’s insistence that she identify the source of a photograph of an
individual accused of making threats; a subsequent accusation that the appellant
was insubordinate when she refused to do so; and criticism of the appellant ’s
management of her staff —do not describe the sort of severity or pervasiveness
required to support her assertion of a hostile work environme nt. ID at 32; I -2 AF,
Tab 9 at 4, 9 -13. Thus, e ven if these events occurred, the appellant has not
demonstr ated that they would be sufficiently severe or pervasive to create a
working environment that a reasonable person would find hostile or abusive. See,
e.g., Godesky v. Department of Health and Human Services , 101 M.S.P.R. 280 ,
¶ 14 n.* (2006) (finding that an appellant ’s allegations did not establish hostile
work environment discrimination because he did not show that the complained -of
conduct was sufficiently severe or pervasive enough to create an objectively
hostile or abusive work environment); see also Burlington Indus tries, Inc. v.
Ellerth , 524 U.S. 742 , 754 (1998) (finding that a hostile work environment claim
requires a showing of severe or pervasive conduct ).
¶13 The appellant also argues that the administrative judge failed to explain
why she found the testimony of the appellant ’s lone witness not credible
concerning the allegations of a hostile work environment. PFR File, Tab 1 at 3.
Contrary to the appell ant’s assertion on review, the administrative judge
explained that she found that the witness ’s testimony was not clear and
straightforward, and she further found that he was biased because the same
supervisor had placed the witness on a PIP, after which h e had resigned rather
than challenge the action. ID at 29 -30; see Rodriguez v. Department of Homeland
Security , 108 M.S.P.R. 76, ¶ 18 (2008) (upholding the administrative judge ’s
determination that a witness was not credible because of potential bias arising
from his removal by the agency), aff’d, 314 F. App ’x 318 (Fed. Cir. 2009),
overruled on other grounds by Thomas v U.S. Pos tal Service , 116 M.S.P.R. 453 ,
9
¶ 10 (2011) . Considering, as noted above, the lack of any other evidence in
support of the appella nt’s allegations of a hostile work environment, we find that
the witness ’s testimony, as cited by the administrative judge, that the regional
manager was hostile to all of the employees in the office is insufficient for the
appellant to satisfy her burden to establish that the agency engaged in conduct
that was severe or pervasive enough to comprise a hostile work environment. ID
at 29; see G odesky , 101 M.S.P.R. 280 , ¶ 14.
¶14 We note that the administrative judge stated that, to meet her burden of
proof on retaliation for EEO activity, the appellant must establish not only that
she engaged in protected activity and that the accuse d official was aware of that
activity, but also that there is a “genuine nexus ” between the protected activity
and the adverse employment action. ID at 31. The administrative judge
explained that, to establish such a nexus, the appellant must prove that the
employment action was taken because of the protected activity. Id. However,
under Savage v. Department of the Army , 122 M.S.P.R. 612, ¶¶ 35-51 (2015),
overruled in part by Pridgen v. Office of Management and Budget , 2022 MSPB
31, ¶¶ 23-25, when an appellant asserts an affirmative defense of discrimination
or retaliation under 42 U.S.C. § 2000e -16, the Board first will inquire whether the
appellant has shown by preponderant evidence that the prohibited consideration
was a motivating factor in the contested personnel ac tion, id., ¶ 51. Such a
showing is sufficient to establish that the agency violated 42 U.S.C. § 2000e -16,
thereby committing a prohibited personnel practice under 5 U.S.C. § 2302 (b)(1).
Id.
¶15 Based on our review of the record, we find that the appellant failed to meet
her initial burden of showing by preponderant evidence that the prohibited
consideration was a motivating factor in the contested personnel action. As the
administrative judge correctly found, the appellant did not present evidence to
support her retaliation claim, ID at 31, and her claim is therefore mere
10
speculation concerning the basis for her removal.3 Therefore, the appellant failed
to establish this affirmative defense.
Remand is necessary to afford the parties an opportunity to submit evidence and
argument regarding whether the appellant ’s placement on a Performance
Improvement Plan (PIP) was proper .
¶16 Although t he appellant has identified no basis for us to disturb the
administrative judge ’s findings below, we nonetheless must remand this appeal
for another reason. During the pendency of the petition for review in this case,
the U.S. Court of Appeals for the Fed eral Circuit held in Santos , 990 F.3d
at 1360 -61, that in addition to the five elements of the agency ’s case set forth in
the initial decision, the agency must also justify the institution of a PIP by
proving by substantial evidence that the employee ’s per formance was
unacceptable prior to the PIP. The Federal Circuit ’s decision in Santos applies to
all pending cases, including this one, regardless of when the events took place.
Lee v. Department of Veterans Affairs , 2022 MSPB 11, ¶ 16. Although the record
in this appeal may already contain evidence concerning the appellant ’s
performance leading up t o the PIP, we remand the appeal to give the parties the
opportunity to present argument and additional evidence on whether the
appellant ’s performance during the period leading up to the PIP was unacceptable
in one or more critical elements. See id., ¶¶ 15-17. On remand, the
administrative judge shall accept argument and evidence on this issue, and shall
hold a supplemental hearing if appropriate. Id., ¶ 17.
¶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 in at least one critical element
was at an unacceptable level prior to her placement on the PIP, the administrative
3 Because the appellant here failed to prove her initial burden that a prohibited factor
played any part in the agency ’s decision to remove her , ID at 30-31, we do not reach the
question of whether discrimination or retaliation for EEO activity was a but-for cause
of that decision. Pridgen , 2022 MSPB 31 , ¶¶20 -25, 30.
11
judge may incorporate her prio r findings on the other elements of the agency ’s
case and the appellant ’s affirmative defense s in the remand initial decision. See
id. Regardless of whether the agency meets its burden, if the argument or
evidence on remand regarding the appellant ’s pre -PIP performance affects the
administrative judge ’s analysis of the appellant ’s affirmative defense s, she should
address such argument or evidence in the remand initial decision. See Spithaler
v. Office of Personnel Management , 1 M.S.P.R. 587 , 589 (1980) (explaining that
an initial decision must identify all material issues of fact and law, summarize the
evidence, re solve issues of credibility, and include the administrative judge ’s
conclusions of law and his legal reasoning, as well as the authorities on which
that reasoning rests).
ORDER
¶18 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 | GLINCOSKY_CAROLYN_M_DC_0432_17_0112_I_2_REMAND_ORDER_1999023.pdf | 2023-02-02 | null | DC-0432 | NP |
3,642 | https://www.mspb.gov/decisions/nonprecedential/MARTIN_BEVERLY_SF_0752_17_0412_I_1_REMAND_ORDER_1999029.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
BEVERLY MARTIN,
Appellant,
v.
UNITED STATES POSTAL SERVICE,
Agency.
DOCKET NUMBER
SF-0752 -17-0412 -I-1
DATE: February 2, 2023
THIS ORDER IS NONPRECEDENTIAL1
Beverly Martin , Medford, Oregon, pro se.
Trever Cox -Neuroth , Landover, Maryland, 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
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board ’s case law. See 5 C.F.R. § 1201.117 (c).
2
REMAND the case to the regional office for further adjudication in accordance
with this Remand Order.
BACKGROUND
¶2 The appellant retired from the EAS -25 Human Resources Business Data and
Systems Analyst position2 effective May 29, 2015. Initial Appeal File (IAF),
Tab 1. On July 20, 2015, the appellant filed a formal equal employment
opportunity (EEO) complaint alleging that her retirement was involuntary . IAF,
Tab 4 at 21. On February 23, 2017 , the Equal Employment Opportunity
Commission issued an order dismissing the appellant ’s request for a hearing and
indicating that the agency should process the complaint in accordance with the
procedures for mixed -case complaints, i.e., complaints involving matters
appealable to the Board, and should issue a final agency decision (FAD) . IAF,
Tab 10 at 38 -39. There is no evidence that the a gency issued a FAD, and, on
May 3, 2017, the appellant timely filed this appeal because more than 120 days
had elapsed since she filed her formal EEO compliant without the agency issuing
a FAD . IAF, Tab 1 , Tab 10 at 38 -39; see 29 C.F.R. § 1614.302 (d)(1)(i) .
¶3 At the Board, t he appellant timely initiat ed discovery , and by the agency ’s
admission, its responses were due on June 8, 2017. IAF, Tab 19 at 4. The agency
moved for an extension of time to respond to the appellant ’s interrogatories and
request s of production of documents. Id. The admin istrative judge denied the
agency’s request, IAF, Tab 20, and, when the agency failed to respond to the
appellant ’s discovery requests, she filed a motion to compel, IAF, Tab 22. The
agency moved for another extension of time to respond to the appellant ’s
discovery requests. IAF, Tab 23. The administrative judge granted the agency ’s
2 The appellant was employed at the Postal Service Headquarters facility in
Washington, D.C. However, at the time that she retired , the agency was allowing the
appellant , for her convenience , to reside in Medford, Oregon, while still maintaining
her status as an employee at the agency ’s Headquarters in Washington, D.C. Initial
Appeal File , Tab 4 at 6.
3
motion, affordi ng it until July 10, 2017, to respond to the appellant ’s discovery
requests. IAF, Tab 25. Notwithstanding this order, the administrative judge
issued the initial decision dismissing the appellant ’s appeal on June 27, 2017,
nearly 2 weeks before the agenc y’s responses t o discovery were due. IAF,
Tab 27.
¶4 In her petition for review, the appellant states that she consulted the Board’s
regional office and was left with the understanding that she would have the
opportunity to complete discovery and to present all of her evidence at a hearing.
Petition for Review (PFR) File, Tab 5 at 6.
ANALYSIS
¶5 An administrative judge ’s rulings regarding discovery matters are subject to
an abuse of discretion standard. Wagner v. Environmental Protection Agency ,
54 M.S.P.R. 447 , 452 (1992), aff’d, 996 F.2d 1236 (Fed. Cir. 1993) (Table). The
rules governing discovery in Board proceedings are set out in the Board ’s
regulations at 5 C.F.R. §§ 1201.71 -.75. These regulations require that
“[d]iscovery must be completed within the time period designated by the
judge . . . .” 5 C.F.R. § 1201.73 (d)(4 ). Initial discovery r equests must be served
within 30 days of the administrative judge ordering the agency to produce its file
and response. 5 C.F.R. § 1201.73 (d)(1). A party must respond to a discovery
request within 20 days. 5 C.F. R. § 1201.73 (d)(2). Generally, any discovery
requests following the initial discovery request must be served within 10 days of
service of the response. Id. If a party serves objections to a discovery request or
if the responding party does not timely respond to the discover y request, the
requesting party h as 10 days to file a motion to compel discovery. 5 C.F.R.
§ 1201.73 (d)(3 ).
¶6 In the acknowledgment order, the administrative judge set the time frame
for discovery consistent with the provisions of the Board ’s regu lations, indicating
that initial discovery request s must be served wi thin 30 days o f May 5, 2017 , and
4
the opposing party ’s responses to discovery must be served no later than 20 days
after the da te of service of the discovery request. IAF, Tab 2. Here, as noted, the
discovery period was extended until July 10, 2017, and t he administrative judge
issued the initi al decision on June 27, 2017 . As the agency ’s response to the
appellant’s discovery request could have been filed on the last day provided for
such a response, issuing the initial decision prior to the close of discovery
effectively denied the appellant the opportunity to contest the agency ’s
objections, to follow up with requests for fur ther discoverable material based
upon the agency ’s initial response , or to file a motion to compel . It also denied
her the opportunity to submit into the record evidence obtained during discovery.
¶7 As the party beari ng the burden of proof on the claim that her retirement
was involuntary , the appellant is entitled t o obtain evidence to support her claim.
See Jenkins v. Environmental Protection Agency , 118 M.S.P.R. 161 , ¶ 26 (2012 ).
By issuing the initial decision prior to completing discovery, the administr ative
judge deprived the appellant of the opportunity to submit additi onal relevant
evidence that she had obtained during the disco very process. See Lynch v.
Department of Defense , 114 M.S.P.R. 219, ¶ 11 (2010). Thus, we find it
necessary to remand the appeal for further adjudication.
ORDER
¶8 Accordingly, we remand this appeal for further adjudication and a new
initial decision consis tent with this Remand Order. In so remanding, we make no
finding on whether the appellant has made a nonfrivolous allegation that her
retirement was involuntary, entitling her to a hearing . See Thomas v . Department
of the Navy , 123 M.S.P.R. 628, ¶ 11 (2016) (finding that in a constructive adverse
action appeal, if an appellant makes a nonfrivolous allegation of fact establishing
Board jurisdiction, she is entitled to a hearing at which she must prove
jurisdiction by preponderant evidence ). Rather, we remand because the appellant
has not had a full and fair opportunity to o btain evidence in support of her claim
5
that the agency forced her retirement . Based on the record as currently
developed , we cannot say that the a ppel lant’s discovery requests would not have
led to relevant admissible eviden ce concerning the appellant ’s allegations of
involuntary retirement .
FOR THE BOARD:
Washington, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board | MARTIN_BEVERLY_SF_0752_17_0412_I_1_REMAND_ORDER_1999029.pdf | 2023-02-02 | null | SF-0752 | NP |
3,643 | https://www.mspb.gov/decisions/nonprecedential/BARACKER_THERESA_DE_0752_21_0158_I_1_REMAND_ORDER_1999113.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
THERESA BARACKER,
Appellant,
v.
DEPARTMENT OF THE IN TERIOR,
Agency.
DOCKET NUMBER
DE-0752 -21-0158 -I-1
DATE: February 2, 2023
THIS ORDER IS NONPRECEDENTIAL1
Jeffrey A. Dahl , Esquire, Albuquerque, New Mexico, for the appellant.
Benjamin Fischer , Lakewood, Colorado, 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.
REMAND ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
dismissed her involuntary resignation appeal for lack of jurisdiction. For the
reasons discussed below, we GRANT the appellant ’s petition for review an d
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
require d to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board ’s case law. See 5 C.F.R. § 1201.117 (c).
2
REMAND the case to the Denver Field Office for further adjudication in
accordance with this Remand Order.
BACKGROUND
¶2 The appellant alleged in her appeal that the agency improperly denied her
participation in its Voluntary Early Retirement Authority (VERA) program , and
that the denial resulted in her involuntary resignation . Initial Appeal File (IAF),
Tab 6 at 4, 9. Specifically, a ccording to the appellant, the agency misled her
regarding her eligibility to participate in the early retirement progra m and that the
denial of her eligibility was the culmination of harassment and abuse motivated
by a confrontation her husband had with one of her supervisor s several years
earlier when her husband worked with the supervisor. Id. at 4-5. The appellant
explained that the agency had offered various employees, including her, a
voluntary early retirement , but ultimately denied her participation on the grounds
that she was an essential employee. Id. at 12 . She alleged that the agency had
engaged in preferenti al treatment in deciding which employees could participate
in the ea rly retirement program. Id. After the agency denied her participation in
the early retirement program, the appellant resigned , and this appeal followed .
IAF, Tab 1 at 6, 10.
¶3 The administrative judge gave the appellant notice of the elements and
burdens she must meet to be entitled to a hearing on a n involuntary retirement or
resignation claim . IAF, Tab 3. Both parties responded on the jurisdictional issue
and the agency move d to dismiss the appeal for lack of jurisdiction. IAF,
Tabs 6-7, 13 . Without holding the appellant ’s requested hearing, the
administrative judge issued an initial decision finding that the appellant failed to
make a nonfrivolous allegation sufficient to overcome the presumption that her
resignation was voluntary , and he dismissed the appeal for lack of jurisdiction .
IAF, T ab 14, Initial Decision (ID) at 5.
3
¶4 In her petition for review, the appellant argues that her resignation was the
result of the agenc y’s improper denial of her participation in its VERA program
and that the agency treated her unfairly regarding her eligibility for the program .
Petition for Review (PFR) File , Tab 1 at 5-8. She also contends that the
administrative judge improperly weighed the evidence to conclude that she did
not reasonably rely on the agency ’s early retirement offer. Id. at 8-10. The
agency has filed a response to the appellant ’s petition for review. PFR File,
Tab 3.
DISCUSSION OF ARGUME NTS ON REVIEW
¶5 An involu ntary retirement or resignation is tantamount to a removal, and, as
such, is appealable to the Board. Aldridge v. Department of Agriculture ,
111 M.S.P.R. 670 , ¶ 7 (2009). To overcome the presumption of voluntariness, an
appellant must show that the retirement or resignation resulted from agency
coercion, deception, or misinformation. Id., ¶ 8. Where, as here, there is a claim
that an involuntary action resulted from misinformation, an appellant must show:
(1) that the agency made misleading statements; and (2) that the appellant
reasonably relied on the misinformation to h er detriment. Id. (citing Scharf v.
Department of the Air Force , 710 F.2d 1572 , 1574 -75 (Fed. Cir. 1983) ). An
appellant is entitled to a hearing on the issue of Board jurisdiction over an appeal
of an allegedly involuntary resignation or retirement only if she makes a
nonfrivolous allegation casting doubt on the presumption of voluntariness.
Burgess v. Merit S ystems Protection Board , 758 F.2d 641 , 643 (Fed. Cir. 1985).
Nonfrivolous allegations of Board jurisdiction are allegations of fact which, if
proven, could establish the matter a t issue. 5 C.F.R. § 1201.4 (s).
¶6 In the initial decision dismissing the appeal because the appellant failed to
make a nonfrivolous allegation that her re signation was involuntary, the
administrative judge stated that he was relying “exclusively on the appellant ’s
contentions. ” ID at 2 n.3. On review, the appellant argues that the administrative
4
judge improperly considered the agency ’s evidence in determi ning that its offer
of early retirement was conditional, and not a promise on which the appellant
could reasonably rely. PFR File, Tab 1 at 8 -10. In Hessami v. Merit Systems
Protection Board , 979 F.3d 1362 , 1369 (Fed. Cir. 2020), the U.S. Court of
Appeals for the Federal Circuit (Federal Circuit) cautioned that, when evaluating
Board jurisdiction, the Board may not deny jurisdiction by crediting the agency ’s
interpretation of the evidence. However, the Board need not consider the
appellant ’s allegations “in a vacuum, ” and may consider sources such as matters
incorporated by reference or integral to the claim. Id. at 1369 n.5. In his
analysis, citing the appellant ’s sworn allegations, the administrative judge found
that the appellant failed to make a nonfrivolous allegation of a broken promise or
a reasonable reliance on a promise made by the agency. ID at 3 -4. In doing so,
he specifically not ed that the appellant disputed the agency ’s determination that
she was an essential employee. ID at 3. In her sworn statement, the appellant
claimed that she was not identified as an essential employee on the agency ’s
Continuity of Operations plan , but her supervisor was, and the agency
nevertheless allowed her supervisor to participate in the VERA program . IAF,
Tab 6 at 12. Thus, the initial decision shows that the administrative judge made
his decision based on the appellant ’s sworn allegations, not t he agency ’s
evidence.
¶7 As indicated above, a n appellant may rebut the presumption of
voluntariness by presenting suff icient evidence to show that her resignation was
based on agency -supplied misinformation. In Baldwin v. Department of Veterans
Affairs , 109 M.S.P.R. 392 , ¶ 26 (2008) , for example, the Board found that the
appellant made a nonfrivolous allegation that he resigned due to agency
misinformation when an agency human resources specialist told Mr. Baldwin that ,
if he resigned before his removal became effective, “he could still obtain a full
retirement annuity, pr ovided that he later complete [d] the relevant annuity
application paperwork .” Baldwin , 109 M.S.P.R. 392 , ¶¶ 27 -28. Nevertheless, the
5
agency crossed out the word retirement on the Standard Form 52 submitted by
Mr. Baldwin , wrote in resignation , and processed his request as a resignation as
he was not yet eligible for immediate retirement. Id., ¶¶ 9, 30 .
¶8 However, in this matter, unlike the appellant in Baldwin , the appellant did
not resign due to reliance on agency misinformation concerning her eligibility for
the VERA program because she resigned after the agency told her she would not
be eligible for the program . Therefore , she did not rely on an agency assertion
that she was eligible to retire , as the appellant in Baldwin had. Stated differently,
even if the appellant was misled, she fails to show that she relied on any
misinformation to her detriment. Aldridge , 111 M.S.P.R. 670 , ¶ 8. She did not
resign in reliance o n the agency ’s initial offer of VERA participation as it had
been withdrawn by the time of her resignation . The appellant may have been
discouraged or aggrieved about her treatment by the agency concerning the
VERA program, and the agency ’s decision concerning the VERA program may
well be incorrect,2 but it has no connection to her decision to resign.
¶9 In her response to the administrative judge ’s jurisdictional order, the
appellant also claim ed that she resigned due to a pattern of harassment by her
second -level supervisor that she blamed on a confrontation between the
appellan t’s husband and her second -level supervisor. IAF, Tab 6 at 4. However,
the administrative judge did not address the claim in the initial decision and the
appellant does not raise it on review. Instead, she reiterates her argument that her
second -level s upervisor admitted that he had the ability to offer an early
retirement to the appellant, but decided , without explanation, not to do so . PFR
File, Tab 1 at 7 ; IAF, Tab 6 at 4. While this may not be fair , it does not rebut the
presumption of voluntarines s. Miller v. Department of Defense , 85 M.S.P.R. 310 ,
¶ 32 (2000) (“Dissatisfaction with work assignments, a feeling of being unfairly
criticized, or difficult or unpleasant working conditions are generally not so
2 We make no assertion concerning the merits of the appellant VERA claim.
6
intolerable as to compel a reasonable person to resign”); see Searcy v.
Department of Commerce , 114 M.S.P.R. 281 , ¶ 13 (2010) (finding, among other
things , that a refusal to grant an educational waiver to allow the employee to
appl y for certain vacancies did not create intolerable working conditions).
¶10 As explained below, however, the appellant may challenge the agency ’s
VERA program denial in an appeal before the Board. Thus, we must remand the
appeal for the administrative judge t o hear the appellant ’s challenge .
The Board has jurisdiction over the appellant ’s appeal of the agency ’s decision to
deny her participation in VERA .
¶11 The administrative judge only addressed the appellant ’s involuntary
resignation claim. See ID. As noted, however, the appellant also argued below
that she was improperly denied participation in the agency ’s early retirement
program and she reiterates this argument on review. PFR File, Tab 1 at 5 -7.
¶12 In Adams v. Department of Defense , 688 F.3d 1330 , 133 4-36 (Fed. Cir.
2012), the Federal Circuit affirmed the Board ’s decision sustaining the
appellant ’s removal based on the revocation of his sec urity clearance but
disagreed with the Board ’s decision that it lacked jurisdiction to review the
employing agency ’s denial of h is request to participate in the agency ’s voluntary
early retirement program . The court reasoned that the voluntary early retir ement
benefit is part of the Feder al Employees ’ Retirement System (FERS) under which
Mr. Adams was covered and the Board has jurisdiction over decisions that affect
an individual ’s rights or interests under FERS. Id. at 1335; see 5 U.S.C. §§ 8414 ,
8461(e)(1). In Dawson v. Department of Agriculture , 121 M.S.P.R. 495 , ¶ 16
(2014), the Board extended the court ’s holding in Adams to individuals in the
Civil Service Retirement System. The Board also clarified that an employee is
not required to obtain a reconsideration decision from the Office of Personnel
Management prior to filing a Board appeal of an agency decision. Id., ¶ 17.
¶13 The appellant here made a nonfrivolous allegation that the agency denied
her eligibility for the VERA program by engaging in preferential treatment in
7
deciding which employees could participate in the program. IAF, Tab 6 at 12.
The agency ’s denial significantly affected the appellant ’s rights or interests under
FERS, 5 U.S.C. § 8461 (e)(1), and thus is an appealable “administrative action ”
within the Board ’s jurisdiction, Adams , 688 F.3d at 1335 -36; Dawson ,
121 M.S.P.R. 495 , ¶¶ 16-17. The agency argued below that the appellant failed to
argue or allege that she applied for an early retirement under the agency’s VERA
program , but the appellant appears to argue that this was due to the agency ’s
improper decision concerning he r eligibility . IAF, Tab 7 at 8, Tab 13 at 5 n.1. If
the administrative judge determines that the appellant did not submit an
application for the agency’s VERA program , he should examine whether the
agency ’s conduct in determining that the appellant was n ot eligible for VERA
program justifies the waiver of any pertinent filing deadline for such benefits.
See Dawson , 129 M.S.P.R. 495, ¶¶ 19-22 (denying relief because the agency ’s
alleged misconduct did not justify waiver of the filing deadline for VERA
benefits).
¶14 On remand, the administrative judge shall afford the parties an opportunity
to submit evidence and argument on the issue s set forth in this Remand Order,
and adjudicate the merits of the appellant ’s appeal, as set forth above.
ORDER
¶15 For the reasons discussed above, we REMAND this case to the Denver
Field Office for further adjudication in accordance with this Remand Order.
FOR THE BOARD:
Washington, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board | BARACKER_THERESA_DE_0752_21_0158_I_1_REMAND_ORDER_1999113.pdf | 2023-02-02 | null | DE-0752 | NP |
3,644 | https://www.mspb.gov/decisions/nonprecedential/HOLMES_SHIRLEY_L_SF_0432_17_0319_C_1_FINAL_ORDER_1999123.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
SHIRLEY L. HOLMES,
Appellant,
v.
DEPARTMENT OF THE NA VY,
Agency.
DOCKET NUMBER
SF-0432 -17-0319 -C-1
DATE: February 2, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL1
James Savatone , Monterey, California, for the appellant.
Michelle J. Hirth , Monterey, California, for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
Tristan L. Leavitt, Member
FINAL ORDER
¶1 The agency has petitioned for review , and the appellant has cross -petitioned
for review, of the February 28, 2018 compliance initial decision in this petition
for enforcement action . Compliance Petition for Review (CPFR) File, Tab s 2, 7;
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case 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
Compliance File, Tab 9 , Compliance Initial Decision. For the reasons set forth
below, we DISMISS the petition for enforcement as settled.
¶2 After the filing of the agency’s petition for review and the appellant’s cross
petition for review , the parties filed a joint motion to dismiss and a document
entitled “Negotiated Settlement Agreement and Release.” CPFR File, Tab 13.
The settlement agreement provides, among other things, for the dismissal of the
petition for enforcement.2 Id. at 7, 10.
¶3 Before dismissing a matter as settled, the Board must decide whethe r the
parties have entered into a settlement agreement, whether they understand its
terms, and whether they intend to have the agreement entered into the record for
enforcement by the Board. See Mahoney v. U.S. Postal Service , 37 M.S.P.R.
146, 149 (1988). In addition, before accepting a settlement agreement into the
record for enforcement purposes, the Board must determine whether the
agreement is lawful on its face and whether the parties freely entered into it. See
Massey v. Office of Personnel Management , 91 M.S.P.R. 289 , ¶ 4 (2002),
overruled on other grounds by Delorme v. Department of the Interior ,
124 M.S.P.R. 123 , ¶¶ 11 -21 (2017) (holding that the Board may enforce
settlement agreements that have been entered into the record, independent of any
prior finding of Board jurisdiction over the underlying matter being settled).
¶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. CPFR File, Tab 13 at 11 . Accordingly, we find
that dismissing the appeal with prejudice to refiling (i.e., the parties no rmally
2 The settlement agreement purports to apply as well to the matter underlying the
petition for enforcement, Holmes v. Department of the Navy , MSPB Docket No.
SF-0432 -17-0319 -I-1, and to a separate appeal, Holmes v. Department of the Navy ,
MSPB Docket No. SF -0432 -18-0218 -I-1. CPFR File, Tab 13 at 7, 10. Both of these
cases are already closed: Holmes , MSPB Docket No. SF -0432 -17-0319 -I-1, through a
separate settlement agreement, and Holmes , MSPB Docket No. SF -0432 -18-0218 -I-1
through a dismissal without prej udice.
3
may not refile this appeal) is appropriate under these circumstances. In addition,
we find that the agreement is lawful on its face and freely entered into, and we
accept the settlement agreement into the record for enforcement purposes.
¶5 This is the final decision of the Merit Systems Protection Board in this
petition for enforcement action . Title 5 of the Code of Federal Regulations,
section 1201.113 ( 5 C.F.R. § 1201.113 ).
NOTICE TO THE PARTIES OF THEIR
ENFORCEMENT RIGHTS
If the agency or the appellant has not fully carried out the terms of the
agreement, either party may ask the Board to enforce the settlement agreement by
promptly filing a petition for enforcement with the office that issued the initial
decision on this appeal. The petition should contain specific reasons why the
petitioning party believes that the terms of the settlement agreement have not
been fully carried out, and should include the dates and results of any
communications between the parties. 5 C.F.R. § 1201.182 (a).
NOTICE OF APPEAL 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).
Althou gh we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
3 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.
4
filing time limits and requirements. Failure to fi le within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a pe tition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1 )(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/ probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the 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 o r in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Fed eral Circuit), within 30 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 you r representative receives this decision before
you do, then you must file with the district court no later than 30 calendar days
after your representative receives this decision. If the action involves a claim of
discrimination based on race, color, relig ion, sex, national origin, or a disabling
condition, you may be entitled to representation by a court -appointed lawyer and
to waiver of any requirement of prepayment of fees, costs, or other security. See
42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.as px.
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in th is case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
6
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C . 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. C ourt of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.4 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(B).
4 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195,
132 Stat. 1510.
7
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Gu ide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warr ants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD:
Washington, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board | HOLMES_SHIRLEY_L_SF_0432_17_0319_C_1_FINAL_ORDER_1999123.pdf | 2023-02-02 | null | SF-0432 | NP |
3,645 | https://www.mspb.gov/decisions/nonprecedential/MAXBERRY_DENNIS_L_CH_3443_21_0370_I_1_FINAL_ORDER_1999158.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
DENNIS L. MAXBERRY,
Appellant,
v.
DEPARTMENT OF THE AR MY,
Agency.
DOCKET NUMBER
CH-3443 -21-0370 -I-1
DATE: February 2, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL1
Dennis L. Maxberry , Chippewa Falls, Wisconsin, pro se.
Paul Andrew Schorn , Esquire, 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 his appeal for lack of jurisdiction . On petition for review, the appellant
argues that the administrative judge should have entered a default judgment
against the agenc y for its failure to file a timely submission to 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 jurisdictional order. Petition for Review File, Tab 1. Generally, we grant
petitions such as this one only in the following circumstances: the initial decision
contains erroneou s findings of material fact; the initial decision is based on an
erroneous interpretation of statute or regulation or the erroneous application of
the law to the facts of the case; the administrative judge’s rulings during either
the course of the appeal o r the initial decision were not consistent with required
procedures or involved an abuse of discretion, and the resulting error affected the
outcome of the case; or new and material evidence or legal argument is available
that, despite the petitioner’s due diligence, was not available when the record
closed. Title 5 of the Code of Federal Regulations, section 1201.115 ( 5 C.F.R.
§ 1201.115 ). After fully considering the filings in this appeal, we conclude that
the petitioner has not established any basis under section 1201.115 for granting
the petition for review.2 Therefore, we DENY the petition for review and
AFFIRM the initial decision, which is now the Board’s final decision. 5 C.F.R.
§ 1201.113 (b).
NOTICE OF APPEAL RIG HTS3
You may obtain review of this final decision. 5 U.S.C. § 7703 (a)(1). By
statut e, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703 (b).
Although we offer the following summary of availab le appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
2 In consideration of the appellant’s assertion on review that the administrative judge
should have entered a default judgment against the agency, the Board lacks the
authority to do so. Burnett v. Department of Housing & Urban Development ,
114 M.S.P.R. 1 , ¶ 3 n.1 (2010) (stating that the Board lacks the authority to issue a
default judgment against an agency); Hayes v. Department of the Treasury , 74 M.S.P.R.
613, 615 (1997) (same); Jeffery v. Office of Personnel Management , 37 M.S.P.R. 356 ,
359 (1988) (same).
3 Since the issuance of the initial decision in this matter, the Board ma y have updated
the notice 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
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may resu lt in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropr iate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appea ls for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U. S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Form s 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
4
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases inv olving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obta in
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. ____ , 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
to waiver of any requirement of prepayment of fees, costs, or other security. See
42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district courts can be found at th eir respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the
EEOC’s Office of Federal O perations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
5
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Em ployment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whi stleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C ), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.4 The court of appeals must receive your petition for
4 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of 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 dec isions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195,
132 Stat. 1510.
6
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to t he court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Conta ct information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites .aspx .
FOR THE BOARD:
Washington, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board | MAXBERRY_DENNIS_L_CH_3443_21_0370_I_1_FINAL_ORDER_1999158.pdf | 2023-02-02 | null | CH-3443 | NP |
3,646 | https://www.mspb.gov/decisions/nonprecedential/DELORENZO_LUCY_F_PH_0845_17_0311_I_1_FINAL_ORDER_1998349.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
LUCY F. DELORENZO,
Appellant,
v.
OFFICE OF PERSONNEL
MANAGEMENT,
Agency.
DOCKET NUMBER
PH-0845 -17-0311 -I-1
DATE: February 1, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL1
Lucy F. DeLorenzo , Waterbury, Connecticut, 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
dismissed her appeal of a reconsideration decision by the Office of Personnel
Management (OPM) as untimely filed . 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 mat erial fact; the initial decision is based on an erroneous
interpretation of statute or regulation or the erroneous application of the law to
the facts of the case; the administrative judge’s rulings during either the course of
the appeal or the initial dec ision were not consistent with required procedures or
involved an abuse of discretion, and the resulting error affected the outcome of
the case; or new and material evidence or legal argument is available that, despite
the petitioner’s due diligence, was not available when the record closed. Title 5
of the Code of Federal Regulations, section 1201.115 ( 5 C.F.R. § 1201.115 ).
After fully considering the filings in this appeal, we conclude that the petitioner
has not established any basis under section 1201.115 for granting the petition for
review. Therefore, we DENY the petition for review. Except as expressly
MODIFIED to address the appellant’s claim that she filed a timely appeal in
April 2017 , we AFFIRM the initial decision .
BACKGROUND
¶2 On March 22, 2017, OPM issued a final decision letter concluding that the
appellant was overpaid $97,065 in retirement annuity benefits. Initial Appeal File
(IAF), Tab 6. OPM’s letter also stated, in relevant part, that “an appeal must be
filed within 30 calendar days after the date of this decision, or 30 days after
receipt of this decision, whichever is later.” Id. at 5; see 5 C.F.R. § 1201.22 (b).
On June 12, 2017, the appellant file d an appeal to the Board challenging OPM’s
final decision. IAF, Tab 1. The administrative judge issued an order to show
cause regarding the apparent untimeliness of the appeal. IAF, Tab 7. In response
to the administrative judge’s order to show cause, the appellant stated that she
previously submitted a Board appeal in April 2017 via regular mail before she
submitted her June 2017 appeal. IAF, Tab 9. The appellant also claimed she had
proof of the April 2017 filing but that it was lost when her car “w as totaled” on
April 26, 2017. Id.
3
¶3 On July 14, 2017, the administrative judge issued the initial decision,
dismissing the appeal as untimely filed, without conducting a hearing. IAF,
Tab 10. In his initial decision, the administrative judge did not ackn owledge the
appellant’s claim that she first filed an appeal in April 2017 via a letter to the
Board. Id.
¶4 In her petition for review, the appellant argues that the administrative judge
erred in dismissing her appeal as untimely filed because she submitted an appeal
via regular mail to the Board in April 2017, but she does not know “how or why,
it was never received.” Petition for Review (PFR) File, Tab 1. On March 27,
2018, the Board issued an Order to Show Cause regarding the alleged April 2017
filing d ue to the lack of evidence in the record on this issue. PFR File, Tab 5. On
April 3, 2018, the appellant submitted a response to the Order to Show Cause.
PFR File, Tab 6.
ANALYSIS
¶5 The issue on review in this case is whether the initial appeal was timely
filed, and if not, whether the appellant established good cause for the untimely
filing. With exceptions not applicable here, the deadline for filing an appeal is
30 days after the effective date, if any, of the action being appealed, or 30 days
after th e receipt of the agency’s decision, whichever is later. 5 C.F.R.
§ 1201.22 (b). Here, OPM’s final decision is dated March 22, 2017, and the
appellant has not alleged any unusual delay in her receipt of the decision. We
therefore find that her June 12, 2017 appeal was untimely filed by approximately
7 weeks.
¶6 To the extent the appellant argues that she first filed her appeal with the
Board in April 2017, we find that she has failed to esta blish that the appeal was
timely filed. It is well established that “when a party shows by preponderant
evidence that a pleading was properly addressed to the Board with postage
prepaid and placed in the U.S. Postal Service mail stream, it will be treated as
4
timely filed on the date it was placed in the [mail], regardless of whether the
Board receives it.” Gaydon v. U.S. Postal Service , 62 M.S.P.R. 198 , 202 (1994) .
However, in the present case, the appellant merely asserts that she filed an initial
appeal in April 2017, without any specific details regarding such submission.
PFR File, Tab 1. Even when asked in the Board’s Ord er to Show Cause to
provide more details regarding the alleged April filing, the appellant failed to
provide any documentation regarding the submission. PFR File, Tab 6. Instead,
she merely asserts that she filed an appeal and that all of the filing docu mentation
was lost when her car was totaled on April 26, 2017. Id. Therefore, we find that
the appellant has failed to provide the “nature and quality of evidence generally
required to establish proof that the petition . . . was timely placed in the mail
stream.” Gaydon , 62 M.S.P.R. at 202.
¶7 To the extent the appellant argues that there was good cause for the
untimely June 2017 filing, we agree with the administrative judge that the
appellant did not demonstrate good cause for the untimely filing. The Bo ard will
dismiss an untimely filed appeal unless the appellant shows good cause for the
delay in filing. 5 C.F.R. § 1201.22 (c). To establish good cause for the untimely
filing of an app eal, an appellant 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). 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 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 ti mely file her appeal. Moorman v.
Department of the Army , 68 M.S.P.R. 60 , 62-63 (1995), aff’d , 79 F.3d 1167 (Fed.
Cir. 1996) (Tab le). The appellant’s June 2017 filing is approximately 7 weeks
beyond the deadline, which is not minimal even when, as here, the appellant is
5
proceeding pro se. See Lambright v. Office of Personnel Management ,
114 M.S.P.R. 507 , ¶ 7 (2010). The appellant contends that the filing was delayed
because of unfortunate life events, the loss of her car and death of her sister,
which occurred shortly after the April 2017 deadline. IAF, Tab 9. However,
events —no matter how unfortunate —that occur after the filing deadline do not
show good cause for an untimely filing. See Menchaca v. U.S. Postal Service ,
56 M.S.P.R. 479 , 483, aff’d , 11 F.3d 1073 (Fed. Cir 1993) (Table). Thus, we
conclude that the appellant, notwithstanding her pro se status, has not shown good
cause for the untimely filing.
¶8 We therefore find that the appellant’s initial appeal was not timely filed,
and s he has failed to establish good cause for the filing delay.
NOTICE OF APPEAL RIG HTS2
The initial decision, as supplemented by this Final Order, constitutes the
Board’s final decision in this matter. 5 C.F.R. § 1201.113 . You may obtain
review of this final decision. 5 U.S.C. § 7703 (a)(1). By statute, the nature of
your claims determines the time limit for seeking such review 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 filing time limits and requirements. Failure to file
within the applicable time limit may result in the dismissal of your case by your
chosen forum.
2 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise w hich option is most appropriate in any matter.
6
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calenda r days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation f or an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
7
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of 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
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for re view to the EEOC by regular U.S. mail, the
address of the EEOC is:
8
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enha ncement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
compete nt jurisdiction.3 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(B).
3 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit cou rt of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195,
132 Stat. 1510.
9
If you submit a petition for judic ial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Pract ice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono rep resentation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD:
Washington, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board | DELORENZO_LUCY_F_PH_0845_17_0311_I_1_FINAL_ORDER_1998349.pdf | 2023-02-01 | null | PH-0845 | NP |
3,647 | https://www.mspb.gov/decisions/nonprecedential/DOYLE_JOHN_JOSEPH_DC_3330_14_0919_I_2_FINAL_ORDER_1998397.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
JOHN JOSEPH DOYLE,
Appellant,
v.
DEPARTMENT OF THE NA VY,
Agency.
DOCKET NUMBER
DC-3330 -14-0919 -I-2
DATE: February 1, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL1
John Joseph Doyle , Quincy, Massachusetts, pro se.
Emilia Muche Thompson , Esquire, N ewport, Rhode Island , for the agency .
Melanie A. Andrews , Esquire, San Diego, California, 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
granted the appellant’s request for corrective action in connection with his
Veterans Employment Opportunities Act (VEOA) appeal . Generally, we grant
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
require d to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c).
2
petitions such as this one only in the following circumstances: the initial decision
contains erroneous findings of material fact; the initial decision is based on an
erroneous interpretation of statute or regulation or the erroneous application of
the law to the facts of the case; the administrative judge’s rulings during either
the course of the appeal or the initial decision were not consistent with required
procedures or involved an abuse of discretion, and the resulting error affected the
outcome of the case; or new an d material evidence or legal argument is available
that, despite the petitioner’s due diligence, was not available when the record
closed. Title 5 of the Code of Federal Regulations, section 1201.115 ( 5 C.F.R.
§ 1201.115 ). After fully considering the filings in this appeal, we conclude that
the petitioner has not established any basis under section 1201.115 for granting
the petition for review. Therefore, we DENY the petition for revie w and
AFFIRM the initial decision, which is now the Board’s final decision. 5 C.F.R.
§ 1201.113 (b).
BACKGROUND
¶2 The appellant is a 10 -point preference eligible who was , at all times
relevant to this appeal, employed by the agency as a GS -14 Human Resources
Specialist (Labor Employee Relations) in Washington, D.C. He applied under an
agency announcement advertised on USAJOBS for the position of
Administrative/Technical Specialist, NT -05, in Newport , Rhode Island. Doyle v.
Department of the Navy , MSPB Docket No. DC -3330 -14-0919 -I-2, Appeal File
(I-2 AF), Tab 3 at 22 -25. The announcement , open March 19-21, 2014 , stated
that the position was subject to the Department of Defense Priority Placement
Program and that eligibility was limited to “ICTAP eligibles.” Id. at 22. ICTAP ,
or the Interagency Career Transition Assistance Program , “provides eligible
displaced Federal employees with interagency selection priority for vacancies in
agencies that are filling positions from outside their respective permanent
competitive service workforce s.” 5 C.F.R. § 330.701 . The agency rated the
3
appellant ineligible for the positi on on the basis that he was “not within the Area
of Consideration as specif ied in the vacancy announcement ”; that is, he was not
eligible for priority placement under ICTAP. Doyle v. Department of the Navy ,
MSP B Docket No. DC -3330 -14-0919 -I-1, Initial App eal File (IAF), Tab 10 at 9.
After determining that no ICTAP -eligible employees had applied , the agency
transfe rred a Department of the Interior employee , also a 10 -point preference
eligible , who previously had held the position at issue. I-2 AF, Tab 3 a t 3-6, 26;
Tab 4 at 4 -5. Under these circumstances, the agency had the discretion to, and
did, transfer the employee to the position without c ompetiti on. 5 C.F.R.
§ 335.103 (c)(3)(v); I-2 AF, Tab 3 at 26 .
¶3 The appellant filed a complaint with the Department of Labor (DOL)
alleging that the agency had violated his right to compete under VEOA. IAF,
Tab 1 at 10-12. Although determining that it “had merit,” DOL advised the
appellant that i t was unable to resolve t he complaint , id. at 14, prompting him to
file the instant Board appeal and to request a hearing , id. at 2. The administrative
judge determined that the appellant had established the Board ’s jurisdiction over
the appeal , IAF, Tab 13 at 3-5, and the appellant subsequently withdrew his
request for a hearing ,2 IAF, Tab 18 at 2. The administrative judge set a date for
the close of the record , I-2 AF, Tab 2 , and b oth parties submitted additional
evidence and argument , I-2 AF, Tabs 3 -6.
¶4 In an initial decision based on the written record, the administrative judge
found that , in posting an announcement open to ICTAP eligibles, the agency
signaled that it would accept applications from individuals outside its own
workforce and that it was t herefore required to accept applications from
2 The appeal was thereafter dismissed without prejudice to allow the parties additional
time to file evidence and argument. IAF, Tab 19, Initial Decision. The appeal was then
automatically refiled, I-2 AF, Tab 2, and adjudication continued.
4
preference eligible s or qualifying veterans under 5 U.S.C. § 3304 (f)(1)3 and
evaluate those applications under merit promotion procedures. I-2 AF, Tab 7,
Initial Decision (ID) at 3-11. The administrative judge further found, based on
Board precedent, that the agency’s decision to invoke its transfer authority does
not negate the right of a preference eligible or co vered veteran to compete under
section 3304(f)(1) . Montgomery v. Department of Health & Human Services ,
123 M.S.P.R. 216, ¶ 7 (2016) ; ID at 10-11. Accordingly, the administrative judge
granted the appellant’s request for corrective action , ID at 1, 11, acknowledging
that, while the appellant may not ultimately be deemed the best qualified for the
vacancy at issue, he must be afforded fair consideration, ID at 11.
¶5 The agency ha s filed a petition for review . Doyle v. Department of the
Navy , MSPB Docket No. DC -3330 -14-0919 -I-2, Petition for Review (PFR) File,
Tab 3. The appellant has responded, PFR File, Tab 6, and the agenc y has replied
to that response, PFR File, Tab 8.
ANALYSIS
¶6 On review, the agency argues that the initial decision is inconsistent with
the September 12, 1995 Presidential Memorandum on Career Transition
Assistance for Federal Employees . PFR File, Tab 3 at 8 -15. Among other things,
the agency arg ues that the Memorandum provided that it did not “create any right
or benefit, substantive or procedural, enforceable by a party against the United
States,” or its agencies. Id. at 9; Memorandum on Career Transition Assistance
for Federal Employees , 1995 Pub. Papers 1354 (Sep t. 12, 1995). The agency also
notes that the Memorandum has the same force and effect as an executive order
and has not been revoked or modified by any subsequent president or by
3 Pursuant to 5 U.S.C. § 3304 (f)(1) ,“[p]reference eligibles or veterans who have been
separated from the armed forces under honorable conditions after 3 years or more of
active service may not be denied the opportunity to compete for vacant positions for
which the agency making the announcement will accept applications from individuals
outside its workforce under merit promotion procedures. ”
5
Congress, and therefore it cannot be overridden by VEOA . PFR File, Tab 3
at 10-15. The Memorandum directed the Office of Personnel Management (OPM)
to promulgate implementing regulations.
¶7 Although this case was thoroughly briefed by the parties below, the agency
only once refer red to the Presidential Memoran dum , I-2 AF, Tab 6 at 5 , and did
not submit it or argue, as it attempts to now, the intent of the Memorandum, or its
legal force and effect and relative standing vis -à-vis veterans ’ preference rights
and the VEOA statute. Nor did t he agency address any of its specific language.
It is well settled that the Board ordinarily will not consider an argument raised for
the first time on petition for review absent a showing that it is based on new and
material evidence not previously available despi te the party ’s due diligence.
Hamilton v. U.S. Postal Service , 123 M.S.P.R. 404, ¶ 19 n.12 (2016); Banks v.
Department of the Air Force , 4 M.S.P.R. 268 , 271 (1980) . In the instant case, the
agency has offered no explanation for its failure to raise the 1995 President ial
Mem orandum . In any event, the appellant is not attempting to assert his rights
under ICTAP; he is asserting his rights under VEOA and the Veterans’ Benefit s
Improvement Act of 2004.
¶8 The agency also argues that , in finding that the right to compete under
VEO A appl ies in this situation, the administrative judge improperly deferred t o
OPM’s interpretation of 5 U.S.C. § 3304 (f)(1) as set forth in 5 C.F.R . § 335.106 .
PFR File, Tab 3 at 15-18. The agency contends that the interpretation “creates an
unreasonable accommodation of the two governmental interests [those of
displaced agen cy employees and those of preference eligible s and certain
veterans] that cannot be enforced.” Id. at 17.
¶9 As noted, 5 U.S.C. § 3304 (f)(1) provides that preference eligibles and
certain veterans “may not be denied the opportunity to compete for vacant
positions for which the agency making the announcement will accept applications
from individuals outside its own workforce under merit promotion procedures .”
However, 5 C.F.R. § 335.106 provides that such individuals “may compete for
6
vacancies under merit promotion when an agency accepts applications from
individuals outside its own workforce.” As the a dministrative judge found, the
Board considered this difference in language in Brandt v. Department of the Air
Force , 103 M.S.P.R. 6 71, ¶¶ 10-13 (2006) ; ID at 7 -8. There, the Board found that
it was appropriate to defer to OPM’s interpretation of the statute, which was
neither unreasonable nor illogical , and concluded, therefore, that the phrase
“under merit promotion procedures” in s ection 3304(f)(1) should be regarded as
modifying the verb “to compete” such that veterans must be permitted to compete
for a position under merit promotion procedures when , as here, the agency is
accepting applications from outside candidates. Brandt , 103 M.S.P.R. 671,
¶¶ 12-13; ID at 7-8. Although the agency disagrees with the Board’s
interpretation, suggesting other regulations to which the Board has not deferred,
PFR File, Tab 3 at 18 -20, the Brandt decision addresses the regulation at issue
here in a precedential decision. As valid Board precedent, the administrative
judge properly relied on the de cision in Brandt , and the agency has not set forth a
basis to disturb that decision. 5 C.F.R. § 1201.117 (c)(1).
¶10 The agency also argues that the administrative judge improperly consider ed
language from OPM’s VetGuide , which specifically states that agencies are
required to allow VEOA eligibles to apply for vacancies open to ICTAP
candidates only. PFR File, Tab 3 at 15, 19 -21. In considering the weight to be
afforded that issuance, the administrative judge found, b ased on Board precedent,
that, although the VetGuide is not entitled to the deference accorded to
regulations, positions expressed in it may be entitled to some weight , depending
in part o n factors such as the consistency o f OPM’s position, its formality, and its
persuasiveness . ID at 8-9; Durand v. Environmental Protection Agency ,
106 M.S.P.R. 533, ¶ 14 (2007); Brandt , 103 M.S.P.R. 671, ¶ 14. Applying these
factors, the administrative judge found no instance in which OPM has taken a
contrary position regarding the rights of preference eligibles or certain veterans to
compete for a vacancy open to ICTAP eligibles only; that the VetGuide “consists
7
of a formal d ocument, prepared for publication —and in fact published —on the
internet, with the apparent expectation that it would be relied on by agencies,
employees, prospective employees, and other interested members of the public,”
Brandt , 103 M.S.P.R. 671, ¶ 15; and that OPM’s interpretation of 5 C.F.R.
§ 335.106 is reasonable . ID at 8 -9. On this basis, the administrative judge
afforded deference to the position taken by OPM in the VetGuide . ID at 8-9.
Although t he agency argues against this deference, it has not, on review,
challenged the administra tive judge’s application of these factors.
ORDER
¶11 We ORDER the agency to reconstruct the hiring for the NT -05
Administrative/Technical Specialist position at the Naval Undersea Warfare
Center Division, Newport, Rhode Island, consistent with the right to
consideration requirement set forth at 5 U.S.C. § 3304 (f)(1). The Board has
jurisdiction to consider an appellant ’s claim of agency noncompliance with a
Board order . See Kerr v. National Endowment for the Arts , 726 F.2d 730 , 733
(Fed. Cir. 1984). The agency must complete this action no later than 20 days
after the date of this decision.
¶12 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).
¶13 No later than 30 days after the agency tells the appellant that it has fully
carried out the Board’s Order, the appellant may file a petition for enforcement
with the office that issued the initial decision in this appeal if the appellant
believes that the agency did not fully carry out the Board’s Order. The petition
should contain specific reasons why the appella nt believes that the agency has not
fully carried out the Board’s Order, and should include the dates and results of
any communications with the agency. 5 C.F.R. § 1201.182 (a).
8
¶14 This is the final decision of the Merit Systems Protection Board i n this
appeal. Title 5 of the C ode of Federal Regulation s, section 1201.113(c) 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 forth at Title 5 of
the United States Code (5 U.S.C.), sectio n 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 TO THE APPELL ANT REGARDING YOUR
RIGHT TO REQUEST DAM AGES
You may be entitled to be co mpensated by the agency for any loss of wages
or benefits you suffered because of the violation of your veterans’ preference
rights. 5 U.S.C. 3330c (a); 5 C.F.R. § 1208.25 (a). If you are entitled to such
compensation, and the violation is found to be willful, the Board has authority to
order the agency to pay an amount equal to back pay as liquidated damages.
5 U.S.C. 3330c (a); 5 C.F.R. § 1208.25 (a). You may file a petition seeking
compensation for lost wages an d benefits or damages with the office that issued
the initial decision in your appeal WITHI N 60 CALENDAR DAYS OF THE
DATE OF THIS DECISION.
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 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 cou rts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure t o file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questio ns
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for 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 is suance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.
10
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington , D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contai ned within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono f or information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a give n case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part , on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 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
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 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:
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 disclos ures under 5 U.S.C. § 2302 (b)(8) or
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
12
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D) ,” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.5 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
5 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows a ppellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court 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
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 | DOYLE_JOHN_JOSEPH_DC_3330_14_0919_I_2_FINAL_ORDER_1998397.pdf | 2023-02-01 | null | DC-3330 | NP |
3,648 | https://www.mspb.gov/decisions/nonprecedential/JOEL_TIMOTHY_M_SF_0752_16_0058_I_1_FINAL_ORDER_1998436.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
TIMOTHY M. JOEL,
Appellant,
v.
DEPARTMENT OF JUSTIC E,
Agency.
DOCKET NUMBER
SF-0752 -16-0058 -I-1
DATE: February 1, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL1
Richard W. Stevens , Esquire, Washington, D.C., for the appellant.
Chief Employment Law , 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 removal . Generally, we grant petitions such as this one only in the
following circumstances: the initial decision contains erroneous findings of
material fact; the initial decision is based on an erroneous interpretation of statute
or regulation or the erroneou s application of the law to the facts of the case; the
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been id entified by the Board
as significantly contributing to the Board ’s case law. See 5 C.F.R. § 1201.117 (c).
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 th e petition for review. Except as expressly MODIFIED by
this Final Order to apply under Charges 2 and 4 the correct legal standard for a
lack of candor charge, and to supplement the administrative judge ’s analysis of
the appellant ’s retaliation and race discrimination claim s, we AFFIRM the initial
decision.
BACKGROUND
¶2 The appellant , a preference -eligible veteran, was employed as a GS -13
Special Agent with the agency’s Federal Bureau of Investigation (FBI). Initial
Appeal File (IAF) , Tab 1 at 2 . On June 18, 2015 , the Unit Chief of Adjudication
Unit I of the Office of Professional Responsibility (OPR) proposed the
appellant ’s removal following an agency Office of Inspector General (OIG)
administrative inquiry into the appellant ’s alleged conduct towards Y.K., a
Korean national the appellant had met through his work on alien smuggling
matters with the FBI and whom he aided in obtaining parole to remain in the
United States. IAF, Tab 14, Subtab 4e. The proposed removal was based on the
following four charges : (1) failure to report —administrative; (2) lack of candor
not under oath; (3) u nprofessional conduct —off duty; and (4 ) lack of candor —
under oath. Id. at 3-5. On September 24, 2015, the OPR Assistant Director
issued a decision sustaining the proposed action and immediately removing the
appellant from Federal service . Id., Subtab 4a.
¶3 The appellant timely filed a Board appeal challenging the agency ’s removal
action . IAF, Tab 1. In addition, he raised the following affirmative defenses :
discrimination based on race, national origin, ethnicity, sex, and marital status;
retaliation for prior protected equal employment opportunity (EEO) activity; due
process violation; and harmful procedural error . IAF, Tab s 1, 85. Fo llowing a
hearing, the administrative judge issued an initial decision affirming the agency ’s
action. IAF, Tab 90, Initial Decision (ID). The administrative judge found that,
becaus e the appellant is a preference -eligible veteran, the Board has jurisdict ion
over the appeal. ID at 1. The administrative judge found that the agency proved
its four charges by a prepon derance of the evidence and therefore he sustained the
agency ’s charges . ID at 3 -34. Upon considering the appellant ’s affirmative
defenses , the administrative judge found that the appellant failed to prove that the
agency violated his constitutional due process rights or committed harmful
procedural error. ID at 34 -39. In addition , the administrative judge determined
that the appellant faile d to establish his race, national origin, ethnicity, sex , EEO
retaliation , and marital status discrimination claims. ID at 39-46. Finally, the
administrative judge found that the agency established the nexus requirement and
that the penalty of removal wa s reasonable under the circumstances. ID at 47 -50.
¶4 The appellant has filed a petition for review. Petition for Review (PFR)
File, Tab 3. He raises the following arguments on review : (1) the administrative
judge erred in sustaining the agency ’s charges; (2) the administrative judge
improperly denied his race discrimination and retaliation affirmative defenses;2
(3) the penalty of removal is excessive; and (4) the administrative judge abused
his discretion in denying his motion for a subpoena . Id. The a gency has filed a
response to the appellant ’s petition , and the appellant has filed a reply to the
agency ’s response. PFR File, Tabs 7 -8.
2 Because the appellant does not contest his remaining affirmative defenses, we do not
consider them.
DISCUSSION OF ARGUMENTS ON REVIEW
The administrative judge correctly sustained the agency ’s charges.
Charge 1: Failure to report —administrative
¶5 In support of this charge , the agency alleged that all FBI employees are
required to submit a Roommate Form when they live with a roommate. IAF, Tab
14, Subtab 4e at 4. The agency stated that, despite having lived with Y. K. for
several months at a time on various occasions , the appellant had failed to file the
required form . Id. The notice of proposed removal stated that the appellant ’s
actions violated FBI Offense Code 5.7, which prohibits employees from failing to
inform appropriate FBI officials “about an administrative matter which the
employee knew, or should have known, was required by FBI or [Department of
Justice] regulation or policy to be reported.” Id. at 3 -4.
¶6 Citing to Colston v. Department of the Army , 10 M.S.P.R. 158 , 160 (1982),
the appellant contends that the charge should not be sustained because the agency
did not submit the text of the policy requiring the reporting of roommates into the
record below. PFR File, Tab 3 at 13. Furthermore, he asserts that the way the
regulation was paraphrased by the agency in the decision letter is unintelligible
and ambiguous. Id. at 13 -14. He also cont ends that his delay in filing the
roommate form was due to his misunderstanding of the policy. Id. at 14. In
particular, he asserts that he waited to file the form after he had “been staying
some nights with Y.K.” because he understood a roommate situati on to be
long -term. Id. at 14 -15. He further argue s that the agency improperly charged
him with never filing a roommate form, and that the agency ’s charge should fail
because the agency did not provide evidence of 30 days of consecutive
cohabitation. Id. at 1 4-15.
¶7 The appellant ’s arguments do not provide a basis for disturbing the
administrative judge ’s finding that the agency proved its charge. Unlike in
Colston , where the agency did not submit evidence of the specific procedures that
the appellant in that case was charged with violating, the agency in this case
presented sufficient evidence of its reporting policy to meet its burden of proving
the charge.3 Specifically, in the decision letter, the OPR Assistant Director noted
that th e “Cohabitant -Roommate Policy” requires that “anyone who has a
roommate or cohabitant that the employee is sharing living quarters with for
30 consecutive days or more must report at least 60 days in advance .” IAF,
Tab 14, Subtab 4a at 5 .
¶8 Moreover, we a gree with the administrative judge ’s finding that the
appellant failed to abide by the agency ’s roommate reporting policy and that
accordingly , he violated FBI Offense Code 5.7. Following a careful review of the
testimonial and documentary evidence , the a dministrative judge found that the
agency established by preponderant evidence that the appellant cohabitated or
lived with Y.K. for the periods between July 2012 and October 2012, and
February 2013 and March 2013. ID at 6-8. The administrative judge fou nd that
the appellant did not file a “roommate report” with the agency until
October 2012, several months after first moving in with Y.K. in July 2 012. ID
at 7-9. The administrative judge considered the appellant ’s argument that he did
not live with Y.K. consecutively during this period and found that, while the
3 As previously noted, the appellant asserts that the way the regulation was paraphrased
by the agency in the decision letter is unintelligible and ambiguous . PFR File, Tab 3
at 13-14. To the extent the appellant is alleging that th e agency violated his
constitutional due process rights by not providing him with a copy of the agency ’s
reporting policy on roommates with the notice of proposed removal, any such argument
lacks merit. Fundamental due process requires that notice of char ges against an
employee be sufficiently detailed to provide a meaningful opportunity to be heard.
Mason v. Department of the Navy , 70 M.S.P.R. 584 , 586 (1996). As set forth above , the
notice of proposed removal clearly notified the appellant that the agency was charging
him with violating its roommate reporting policy. In addition, the appellant provided a
written response in which he defended himself against the charge and alleged that he
had, in fact, filed a roommate report. IAF, Tab 14, Subtab 4d at 2 ; see Yinat v.
Department of the Army , 101 M.S.P.R. 328, 333 (2005) (determining that, when an
appellant comes forward and refutes a charge made against him, the Board cannot find
that he was not given notice of the charge ). Thus, the appellant has not shown that the
agency violated his constitutional due process rights by failing to provide hi m with a
copy of its roommate reporting policy.
appellant may have left Y.K. ’s apartment at least one night per week , his
testimony establish ed that he lived in Y.K. ’s apartment throughout these periods
while paying her rent. ID at 9.
¶9 The appellant ’s alleged misund erstanding of the meaning of “roommate ”
does not pr ovide grounds for disturbing the administrative judge ’s decision to
sustain the charge. The appellant does not allege that he was not aware of the
agency ’s roommate reporting pol icy and we agree with the administrative judge ’s
well-reasoned finding that , as a Special Agent with the FBI, the appellant knew or
should have known that he was required to report that he was living with Y.K . ID
at 10; see Micali v. Department of the Tre asury , 56 M.S.P.R. 127 , 131 (1992)
(sustaining the appellant ’s removal based on a charge of failure to report his
spouse ’s income on his F ederal tax returns when the appellant had knowledge of
the relevant reporti ng requirement) , aff’d , 11 F.3d 1070 (Fed. Cir. 1993) (Table) .
¶10 The appellant is correct that the agency stated in the notice of proposed
removal that he did not file a Roommate Form. IAF, Tab 14, Subtab 4e at 4. As
previously noted, the administrative judge found that the appellant did file such a
form in October 2012. ID at 8. However, an agency need only prove the essence
of its charge and need not prove every factual specif ication . Hicks v. Department
of the Treasury , 62 M.S.P.R. 71 , 74 (1994), aff’d, 48 F.3d 1235 (Fed. Cir. 1995)
(Table) . We find that the agenc y has established the essence of its charge here.
Based on the foregoin g, we find that the administrative judge correctly sustained
Charge 1.
Charge 2: Lack of candor not under oath
¶11 In support of charge 2, the agency provided the following narrative :
[y]ou knowingly provided false information when you told a
[Department of Homeland Security (DHS) ] agent that you did not
know where Y.K. was or where she was living. You knew where she
lived, and in fact, she had spent the night at your apartment when
you re ceived the call. You also failed to be fully forthright when
you purposely provided an old phone number for Y.K., and
concealed the material information that you knew her new number.
IAF, Tab 14, Subtab 4e at 4. The agency stated that the appellant ’s actions
violated FBI Offense Code 2.5, which prohibits an employee from “[k]nowingly
providing false information when making a verbal or written statement, not under
oath . . . when the employee is questioned about his conduct or the conduct of
another pers on.” Id.
¶12 In Fargnoli v. Department of Commerce , 123 M.S.P.R. 330 (2016) , the
Board clarified the correct legal standard for a lack of candor charge. Relying on
Federal Circuit and Board precedent, the Board held that lack of candor requires
proof of the following elements: (1) that the employee gave incorrect or
incomplete information; an d (2) that he did so knowingly. Id., ¶ 17. The
administrative judge did not apply Fargnoli in assessing this charge, and he stated
that the allegation in the specification that the appellant knowingly provided false
information appears to reflect the elements of a charge other than a lack of c andor
charge. ID at 11. We therefore modify the initial decision to reflect the proper
legal standard under Fargnoli for analyzing a lack of candor charge. However,
the administrative judge nonetheless made findings regarding the requisite
elements of proof. He found that the language of FBI Offense Code 2.5, which
was cited wi thin the charge, prohibited employees from knowingly providing
false information . Id. He then went on to make comprehensive findings and
credibility determinations regarding the issue of whether the appellant knowingly
provided incomplete information. ID at 13-20. Thus, because the administrati ve
judge made comprehensive credibility determinations and findings regarding this
issue, his failure to rely on Fargnoli when assessing the agency ’s charge does not
provide a basis for remanding the initial decision . Cf. Fargnoli , 123 M.S.P.R.
330, ¶ 18 (remanding for further analysis on the lack of candor charge when the
administrative judge made no findings as to whether the appellant knowingly
gave incorrect or incomplete information).
¶13 The appellant contends on review that the agency ’s charge shoul d not be
sustained because the DHS agent questioned him about what he knew , whereas
the agency charged him under FBI Offense Code 2.5 with providing incorrect
information regarding his and Y.K. ’s conduct . PFR File, Tab 3 at 16 -25. The
appellant further a sserts that FBI Offense Code 2.5 requires that he know that the
individual asking hi m questions i s a DHS agen t, but that he did not. Id. at 25-26.
¶14 The administrative judge considered these arguments below, and found
them to be unavailing. He noted that the DHS agent was attempting to serve a
subpoena on Y.K., and that she called the appellant to seek information about the
whereabouts of Y.K. f rom the appellant because he had aided in her obtaining
parole. ID at 12-13. Because the DHS caller sought informat ion about the
movement of Y.K. from the appellant , the DHS agent ’s questions necessarily
sought information about the conduct of both Y.K. and the appellant. Id. We
agree with this finding. While the DHS agent may have sought information
regarding what the appellant knew about Y.K. ’s conduct, her questions related to
the conduct of Y.K. and the appellant all the same; the appellant ’s attempts to
distingu ish knowledge from conduct in an effort to render FBI Offense Code 2.5
inapplicable to the charge are frivolous.
¶15 Furthermore, by applying the factors set forth in Hillen v. Department of the
Army , 35 M.S.P.R. 453 , 458 (1987),4 the administrative judge found the
appellant ’s assertion that he did not know that he was being questioned by a DHS
agent t o lack credibility. ID at 15. In particular , the administrative judge found
the appellant ’s version of events to be incons istent with his own testimony and
4 In Hillen , the Board articulated factors to consider in resolving credibility issues. The
Board held that, to resolve credibility issues, an administrative judge must identify the
factual questions in disp ute, summarize the evidence on each disputed question, state
which version he believes, and explain in detail why he found the chosen version more
credible , considering such factors as: (1) the witness ’s opportunity and capacity to
observe the event or a ct in question; (2) the witness’ s character; (3) any prior
inconsistent statement by the witness; (4) a witness ’s bias, or lack of bias; (5) the
contradiction of the witness’ s version of events by other evidence or its consistency
with other evidence; (6) the inhere nt improbability of the witness’ s version of events;
and (7) the witness’ s demeanor. Hillen v. Department of the Army , 35 M.S .P.R. 453 ,
458 (1987).
with the record evidence, and to be inherently improbable . ID at 14-15. For
example, the administrative judge cited to the transcript of the telephone call
between the appellant and the DHS agent, during which the DHS ag ent stated she
was investigating a DHS matter multiple times and during which the appellant
discussed at length his actions to obtain parole for Y.K. and his living
arrangement with her. ID at 13 -14; IAF, Tab 14, Subtab 4m. The administrative
judge noted that the appellant ’s decision to discuss these matters indicated that he
was aware that he was communicating with another Government agent about Y.K.
ID at 14. The Board must defer to an administrative judge ’s credibility
determinations when, as here, t hey are based, explicitly or implicitly, on
observing the demeanor of witnesses testifying at a hearing, and may overturn
such determinations only when it has “sufficient ly sound” reasons for doing so.
Haebe v. Department of Justice , 288 F.3d 1288 , 1301 (Fed. Cir. 2002) . We find
that th e appellant has not proffered sufficiently sound reason s to set aside the
administrative judge ’s credibility finding regarding this issue.
¶16 Moreover, the administrative judge found, and the record reflects, that the
appellant did not provide the DHS agent with Y.K. ’s current phone number when
asked. ID at 15; IAF, Tab 14, Subtab 4m . Instead, he s tated that he only had an
old phone number for her and that he did not know if it still worked. IAF,
Tab 14, Subtab 4m at 10. The appellant also denied knowing where Y.K. lived.
Id. at 6. The administrative judge found that the appellant knowingly conc ealed
or omitted material information when he told the DHS agent that he did not have
Y.K. ’s current phone number because he testified that he had Y.K. ’s new phone
number on his phone. ID at 16 -17; Hearing Transcript (HT) at 441 (testimony of
the appellan t). Further, citing to the appellant ’s testimony that Y.K. had stayed
with him the night before, the administrative judge found that the agency proved
the factual portion of the specification stating that the appellant knew where Y.K.
was living and that Y.K. had spent the night with him. ID at 18 ; HT at 409
(testimony of the appellant) . The administrative judge noted that the appellant
testified that Y.K. was living in a particular apartment complex when not living
with the appellant. ID at 18-19; HT a t 409 (testimony of the appellant) .
Accordingly, the administrative judge found that the appellant knowingly
concealed false information from the DHS agent regarding where Y.K. lived. ID
at 19.
¶17 We discern no basis for disturbing the administrative judg e’s well -reasoned
and supported findings that the appellant knowingly provided false information to
the DHS agent , thereby violating FBI Offense Code 2.5 . The agency, therefore,
established the requisite elements of proof for its lack of candor charge. See
Fargnoli , 123 M.S.P.R. 330 , ¶ 17. Based on the foregoing, we find that the
administrative judge properly sustained Charge 2.
Charge 3: Unprofessional conduct —off duty
¶18 The agency provided the following narrative in support of charge 3 :
You were admonished several times by the DHS agent not to
mention the telephone call or the subpoena to Y.K. However, you
immediately returned to your apartment and informed Y.K. of the
call. You then advised her to depart the United S tates. You
intentionally attempted to interfere with official government action,
both when you told Y.K. about the call and when you told her to
return to her home country. As an FBI agent, your conduct
discredits the FBI and seriously calls into question your judgement
and character.
IAF, Tab 14, Subtab 4e at 4. The agency stated that the appellant ’s actions
violated FBI Offense Code 5.21, which prohibits employees from engaging in
off-duty conduct that dishonors the FBI or calls into question the character of the
employee. Id.
¶19 A charge of unprofessional conduct has no specific elements of proof; it is
established by providing that the employee committed the acts alleged in support
of the broad label. See Canada v. Department of Homeland Security ,
113 M.S.P.R. 509 , ¶ 9 (2010) (noting that a charge of improper conduct has no
specific elements of proof). We agree with the administrative judge ’s finding that
the appellant engaged in the charged misconduct. As noted by the administrative
judge, the record reflects that the DHS agent ins tructed the appellant to not
mention the telephone call or subpoena to Y.K. ID at 21 ; IAF, Tab 14, Subtab 4m
at 21 . The appellant testified that, following the call with the DHS agent, he met
with Y.K. to explain to her what a subpoena was. HT at 422 (testimony of the
appellant) . Citing to Hillen , the administrative judge found that, to the extent the
appellant was alleging that he did not discuss the subpoena matter with Y.K. as
alleged , but rather , sought to educate her in general about subpoenas, any such
explanation lacked credibility. ID at 23. We discern no basis for disturbing this
credib ility determination on review. See Crosby v. U.S. Postal Service ,
74 M.S.P.R. 98 , 105-06 (1997) ( stating that the Board will defer to the credibility
findings of the administrative judge and will not grant a petition for review based
on a party ’s mere disagreement with those findings).
¶20 The appellant contends on review that the charge cannot be sustained
because it require s proof that he disobey ed a direct order —that of the DHS
agent —and that he did not have a duty to obey directives by n on-FBI personnel.
PFR File, Tab 3 at 27 -29. The appellant a rgues that the charge cannot be
sustained unless his conduct was wrongful in some way, which it was not because
he had no duty to follow the DHS agent ’s instructions. Id. at 29.
¶21 The appellant ’s argument does not provide a basis for disturbing the initial
decision. Nothing in law or regulation requires an agency to affix a label to a
charge of misconduct, and an agency may simply describe actions that constitute
misbehavior in narrative form and have its discipline sustained if the efficiency of
the service suffers because of the misconduct . See Canada , 113 M.S.P.R. 509 ,
¶ 9. Here, the agency charge d the appellant not with violating an order or
instruction, but rather with unprofessional conduct. As set forth above, the
agency proved that the appellant engaged in the charged misconduct. Moreover,
by citing to FBI Offense C ode 5.21, the agency alleged that the charged
misconduct constituted misbehavior because it dishonored the FBI and called into
question the appellant ’s judgment and character . We agree with t he
administrative judge ’s finding that the agency showed by prep onderant evidence
that the sustained portions of the specification violat ed FBI Offense Code 5.21 .
ID at 25. Accordingly, we find that the administrative judge correctly sustained
Charge 3.
Charge 4: Lack of candor —under oath
¶22 The agency provided the foll owing narrative in support of this fourth
charge:
During an interview under oath, you told the OIG you had occasional
contact with Y.K. from 2009 to 2011, but you concealed the full
extent of your contacts with her. Phone and text message records
indicate d that from 2009 to 2011, you were in frequent contact with
Y.K., calling her multiple times per week and exchanging numerous
text messages.
You also failed to be fully forthright when you were questioned
about how Y.K. paid her rent and expenses. You ass erted her
parents sent her money, and you also believed she had a boyfriend
who assisted with the expenses. You also stated your only monetary
contribution was half the monthly rent for the apartment you shared.
However, between 2009 and 2013, you provid ed Y.K. with regular
cash payments from your personal bank ac count totaling nearly
$20,000. Further, Y.K. told OIG investigators that in
September 2011, she was unable to work because she was sick, so
you had given her some money.
You knowingly provided false information when you told OIG
investigators that you and Y.K. had rented separate apartments after
March 2013. However, the two of you continued to live together for
three to four months.
IAF, Tab 14, Subtab 4e at 5. The agency stated that the app ellant ’s misconduct
violated FBI Offense Code 2.6, which prohibits an employee from “[k] nowingly
providing false information in a verbal or written statement made under oath.”
Id.
¶23 The deciding official, however, did not sustain all of the charged
misconduct underlying Charge 4 in the proposal notice. IAF, Tab 14, Subtab 4a
at 8 n.5. Rather, she only sustained the second paragraph of the charge stating
that the appellant failed to be fully forthright when questioned about how Y.K.
paid her rent and expenses . Id. at 7 -8.
¶24 As set forth above, a lack of candor charge requires proof of the following
elements: (1) that the employee gave incorrect or incomplete information; an d
(2) that he did so knowingly. Fargnoli , 123 M.S.P.R. 330 , ¶ 17 . As with
Charge 2, the administrative judge did not apply Fargnoli when a ssessing
whether the agency met its burden of proof under the charge. Therefore, we
modify the initial decision to reflect the correct legal standard under Fargnoli as
to Charge 4. However, as he did for Charge 2, the administrative judge made
comprehens ive findings and credibility determinations regarding the elements of
proof that comprise a lack of candor charge in sustaining the charge.
¶25 In particular , following a careful review of the documentary and testimonial
evidence, the administrative judge fo und that the appellant concealed or omitted
financial information when questioned under oath by the OIG about how Y.K.
paid her rent and expenses. ID at 32. The administrative judge found that, while
the agency failed to adequately explain its calculatio ns regarding its $ 20,000
total, the appellant already had transferred $29,451 to Y.K. when he was
questioned by the OIG on February 28, 2013. ID at 33 -34. Moreover, the
administrative judge found that the appellant failed to be fully forthright by not
disclosing these monetary amounts to the OIG. ID at 34. In addition, the
administrative judge found that the appellant knowingly concealed financial
information , and that accordingly , the agency established that he violat ed FBI
Offense Code 2.6 . Id.
¶26 On review, the appellant appears to argue that the administrative judge
improperly found that he knowingly failed to be forthright. PFR File, Tab 3
at 32-33. He argues tha t his answers were correct within the context of the
interview, and that he did not understand that the OIG was seeking information on
all the funds he had provided Y.K. Id. at 33.
¶27 In finding that the appellant knowingly failed to be forthright in his ans wers
to the OIG , the administrative judge considered the appellant ’s assertion that his
answers to the OIG were based on a misunderstanding. ID at 32 -33. Relying on
the factors set forth in Hillen , including demeanor -based evidence, the
administrative ju dge found the appellant ’s version of events to be lacking in
credibility. ID at 33. The appellant has not provided a sound reason for
disturbing these demeanor -based credibility findings on review. See Haebe ,
288 F.3d at 1301 . Thus, we agree with the a dministrative judge ’s decision to
sustain Charge 4 .
The administrative judge properly denied the appellant ’s race discrimination and
retaliation affirmative defenses.
¶28 In analyzing the appellant ’s race discrimination and retaliation claims , the
administrative judge identified the legal standards set forth in Savage v.
Department of the Army , 122 M.S.P.R. 61 2 (2015) , overruled in part by Pridgen
v. Office of Management & Budget , 2022 MSPB 31, ¶¶ 23-25. ID at 39 -41.
When the administrative j udge issued the initial decision, he did not have the
benefit of the Board ’s decision in Gardner v. Department of Veterans Affairs ,
123 M.S.P.R. 647 (2016) , clarified by Pridgen , 2022 MSPB 31 , ¶¶ 23-24. In
Gardner , 123 M.S.P.R. 647 , ¶ 30, the Board clarified that Savage does not require
administrative judges to separate “d irect” from “indirect” evidence .
¶29 Here, as in Gardner , 123 M.S.P.R. 647 , ¶ 31, the administrative judge
discussed the distinction between direct and cir cumstantial evidence, b ut there is
no allegation that he disregarded any evidence because it was not direct or
circumstantial. Moreover, we find that the administrative judge properly
considered the documentary and testimonial evidence as a whole in deter mining
that the appellant failed to establish he was discriminated against because of his
Korean heritage or retaliated against for prior protected activity (filing a
complaint with the Ombudsman) . Specifically, the administrative judge carefully
consider ed whether there was relevant comparator evidence and found that the
appellant presented no evidence that individuals outside of his race and/or
individuals who have not contacted the Ombudsman were treated more favorably
by the FBI. ID at 42. In additio n, he found that there was nothing to suggest the
existence o f suspicious timing, ambiguous statements oral or written, behavior
toward or comments directed at other employees in the protected group, and other
bits and pieces of evidence from which an infe rence of discriminatory intent
might be drawn , even when considered with the appellant ’s unsupported
allegations. ID at 45. Moreover , the administrative judge found there was no
reason to believe the agency ’s stated reason for the removal action was pretextual
given , inter alia , that all of the agency ’s charges were sustained. ID at 46. The
administrative judge concluded that the appellant failed to establish these
affirmative defenses . Id.
¶30 The appellant challenges these findings on review, alle ging that the
administrative judge disregarded evidence of temporal proximity . PFR File,
Tab 3 at 37 -39. We find the appellant ’s argument constitutes mere disagreement
with the administrative judge ’s well -supported findings regarding the appellant ’s
race discrimination and retaliation claims , and that his allegation does not provide
a basis for disturbing these findings. W e therefore affirm the administrative
judge’s conclusion that the appellant failed to prove these affirmative defense s.5
The appellant failed to show that the administrative judge abused his discretion
by denying the appellant ’s motion for a subpoena .
¶31 Administrative judges have broad discretion in regulating discovery, and,
absent a showing that the administrative judge abused h is discre tion, the Board
will not find reversible error. Vores v. Department of the Army , 109 M.S.P.R.
191, ¶ 14 (2008), aff’d, 324 F. App ’x 883 (Fed. Cir. 2009). A party may request a
5 Because we affirm the administrative judge’s finding that the appellant failed to meet
his initial burden to prove that race or retaliation for EEO activity were motivating
factors in the agency’s actions, we need not resolve the issue of whether the appel lant
proved that discrimination or retaliation was a “but -for” cause of the agency’s
decisions. See Pridgen , 2022 MSPB 31, ¶¶ 20-22, 29-33.
subpoena to obtain the testimony of a witness and the Board has the authority to
issue a subpoena requiring the witness ’s attendance. 5 C.F .R. § 1201.81 (a). A
subpoena request must “be supported by a showing that the evidence sought is
directly material to the issues involved in the appeal.” 5 C.F.R. § 1201.81 (c).
¶32 The appellant contends on review that the administrative judge abused his
discretion by denying his motion to subpoena R.R. for a deposition. PFR File,
Tab 3 at 35 -37. He argues that R.R. was involved in the underlying investigation
and in his removal bec ause R.R. sent an email regarding the appellant to the
Human Resources Department (HRD) , instead of the Security Division. Id. at 36.
He further contends that R.R. ’s testimony was relevant to his race discrimination
claim because he attacked the appellan t’s Korean culture. Id. at 35.
¶33 Following a careful review of the evidence, the administrative judge found
that the appellant failed to meet his burden under 5 C.F.R. § 1201.81 (c). IAF,
Tab 39 at 3 -4. The administrative judge considered the appellant ’s argument that
R.R. may have initiated the underlying investigation because he told the appellant
that this ca se was being referred to HRD instead of to the Security Division. Id.
at 3. The administrative judge further considered R.R. ’s proffered testimony as it
referred to the appellant ’s affirmative defenses, and found it to not be directly
material. Id. We agree with the administrative judge ’s conclusion that the
appellant failed to meet the standard under 5 C.F.R. § 1201.81 (c); thus, we find
that the appellant has failed to show that the administrative judge abused his
discretion in denying the motion to subpoen a R.R.
The administrative judge correctly found that the agency established the nexus
requirement and that the penalty of removal was reasonable under the
circumstances .
¶34 The nexus requirement, for purposes of determining whether an agency has
shown that it s action promotes the efficiency of the service, means there must be
a clear and direct relationship between the articulated grounds for an adverse
action and either the employee ’s ability to accomplish his duties satisfactorily or
some other legitimate Government interest. Scheffler v. Department of the Army ,
117 M.S.P.R. 499 , ¶ 9 (2012), aff’d, 522 F. App ’x 913 (Fed. Cir. 2013) . The
Board has found that there is a sufficient nexus between an employee ’s
misconduct and the efficiency of the service w hen the sustained misconduct
concerned an employee ’s lack of candor during an administra tive inquiry.
Ludlum v. Department of Justi ce, 87 M.S.P.R. 56 , ¶ 28 (2000), aff’d, 278 F.3d
1280 (Fed. Cir. 2002) . Likewise, our reviewing court and the Board have found
that a sufficient nexus exists when certain types of unprofessional off-duty
conduct undermine the necessary trust and confidence in the agency’s missi on.
Brown v. Department of the Navy , 229 F.3d 1356 (Fed. Cir. 2000) (affirming the
Board’s determination that the agency established a nexus be tween the appellant’s
misconduct of having an adulterous affair with the wife of a Marine while he was
deployed overseas, given the appellant’s managerial position in an office
responsible for providing support to Marine families, including families of
Marines deployed overseas; the appellant’s misconduct undermined the necessary
trust and confidence of the agency’s mission, especially given that the wife of a
deployed Marine was a member of a unit that the appellant was directly
responsible for supporting; the court further agreed that removal was warranted
under the circumstances). We therefore find that the agency has met the nexus
requirement here.
¶35 When , as here, the agency ’s charge s have been sustained, the Board will
review an agency -imposed penalty only to determine if the agency considered all
of the relevant Douglas factors and exercised management discretion within
toler able limits of reasonableness.6 Portner v. Department of Justic e,
119 M.S.P.R. 365 , ¶ 10 (2013) , overruled on other grounds by Singh v. U.S.
Postal Service , 2022 MSPB 15, ¶ 17. In determining whether the selected penalty
6 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.
is reasonable, the Board gives due deference to the agency ’s discretion in
exercising its managerial function of maintaining empl oyee discipline and
efficiency. Portner , 119 M.S.P.R. 365, ¶ 10. 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 impo sed clearly exceede d the bounds of reasonableness. Id.
However, if the deciding official failed to appropriately consider the relevant
factors, the Board need not defer to the a gency ’s penalty determination. Id.
¶36 The appellant contends on review that the penalty of removal is excessive.
PFR File, Tab 3 at 34. He alleges that, contrary to the administrative judge ’s
finding, he disclosed that he was sharing a space with Y.K. Id. He also asserts
that the penalty i s inconsistent with the agency ’s table of penalties. Id.
¶37 The appellant ’s arguments do not provide a basis for disturbing the
administrative judge ’s finding that the deciding official considered all of the
relevant Douglas factors and exercised managemen t discretion within tole rable
limits of reasonableness. In upholding the proposed penalty, t he deciding official
considered the nature and seriousness of the misconduct and its relationship to the
appellant ’s position as an FBI agent. IAF, Tab 14, Subtab 4a; see Gaines v.
Department of the Air Force , 94 M .S.P.R. 527 , ¶ 9 (2003) (holding that in
evaluating a penalty, the Board will c onsider, first and foremost, the nature and
seriousness of the misconduct and its relationship to the employee ’s duties,
position, and responsibilities). Law enforcement officers, like the appellant, are
held to a higher standard of honesty and integrity. Prather v. Department of
Justice , 117 M.S.P.R. 137 , ¶ 36 (2011 ). The deciding official recognized that the
appellant acknowledged during his oral response that he was at fault for not filing
a roommate report in a timely manner, but determined that, despite the appellant ’s
acceptance of responsibility, the fact remains that he continued to act in an
obstruc tive manner during the OIG investigation. IAF, Tab 14, Subtab 4a at 9
n.6. She further determined that the penalty imposed was consistent with
corresponding agency offense codes. Id. at 8. She also considered mitigating
factors , such as the appellant ’s successful ratings, service with the FBI, and the
stress he was under due to separation from family, but found these factors to be
outweighed by the seriousness of the sustained misconduct. HT at 227 -29, 234
(testimony of the deciding official) . In ligh t of the above, we find that the
penalty of removal is reasonable under the circumstances of this case. See
Kamahele v. Department of Homeland Security , 108 M.S.P.R. 666 , ¶¶ 2, 15
(2008) ( finding that the remo val penalty was reasonable when the appellant
demonstrated lack of candor and inappropriate conduct); Dunn v. Department of
the Air Force , 96 M.S.P.R. 166 , ¶¶ 2, 12 -18 (2004) ( determining that removal was
reasonable when the employee engaged in conduct unbecoming and exhibited a
lack of candor ), aff’d, 139 F. App ’x 280 (Fed. Cir. 2005).
NOTICE OF APPEAL RIGHTS7
The initial decision, as supplemented by this Final Order, constitutes the
Board’s final decision in this matter. 5 C.F.R. § 1201.113 . You may obtain
review of this final decision. 5 U.S.C. § 7703 (a)(1). By statute, the nature of
your claims determines the time limit for seeking such review and the appro priate
forum with which to file. 5 U.S.C. § 7703 (b). Although we offer the following
summary of available appeal rights, the Merit Systems Protection Board does not
provide legal advice on which option is most appropriate for your situation and
the rights described below do not represent a statement of how courts will rule
regarding which cases fall within their jurisdiction. If you wish to seek review of
this final decision, you should immediate ly review the law applicable to your
claims and carefully follow all filing time limits and requirements. Failure to file
within the applicable time limit may result in the dismissal of your case by your
chosen forum.
7 Since the issuance of the init ial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.
Please read carefully each of the t hree main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the c ourt at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc. uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an app eal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neithe r endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed tha t you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. ____ , 137 S. Ct. 1975 (2017). If you have a
representative in this case, and your representative receives this d ecision before
you do, then you must file with the district court no later than 30 calendar days
after your representative receives this decision. If the action involves a claim of
discrimination based on race, color, religion, sex, national origin, or a disabling
condition, you may be entitled to representation by a court -appointed lawyer and
to waiver of any requirement of prepayment of fees, costs, or other security. See
42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district 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 you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (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.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 pr ovided for judicial review of certain
whistleblower claims by any court of 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 No vember 26, 2017. Pub. L. No. 115 -195,
132 Stat. 1510.
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Co urt of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Me rit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD:
Washington, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board | JOEL_TIMOTHY_M_SF_0752_16_0058_I_1_FINAL_ORDER_1998436.pdf | 2023-02-01 | null | SF-0752 | NP |
3,649 | https://www.mspb.gov/decisions/nonprecedential/MILLER_STACY_DC_0752_17_0111_I_1_FINAL_ORDER_1998464.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
STACY MILLER,
Appellant,
v.
DEPARTMENT OF DEFENS E,
Agency.
DOCKET NUMBER
DC-0752 -17-0111 -I-1
DATE: February 1, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL1
Bradley R. Marshall , Charleston, South Carolina, for the appellant.
Carla Eldred , APO, APO/FPO Europe , 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 alleged involuntary resignation appeal for lack of jurisdiction ,
without holding a hearing. Generally, we grant petitions such as this one only in
the following cir cumstances: the initial decision contains erroneous findings of
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c).
2
material fact; the initial decision is based on an erroneous interpretation of statute
or regulation or the erroneous application of the law to the facts of the case; the
administrative judge ’s rulings during either the course of the appeal or the initial
decision were not consistent with required procedures or involved an abuse of
discretion, and the resulting error affected the outcome of the case; or new and
material evidence or legal argum ent 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).
BACKGROUND
¶2 Until her resignation , effective August 15, 2016, the appellant was
employed by the agency as a Teacher. Initial Appeal File (IAF) , Tab 6 at 14, 16.
In October 2016, the appellant filed this appeal, alleging that she was coerced
into resigning because of a hostile work environment and discrimination based on
her age and sex, as well as reprisal related to her prior equal employment
opportunity (EEO) activity. IAF, Tab 1 at 5 -6.
¶3 The administrative judge informed the appellant how to establish
jurisdiction over her involuntary resignation claim, and ordered her to file
evidence and argument on that issue. IA F, Tab 3 at 2 -4. The appellant did not
respond. In her initial decision dismissing the appeal for lack of jurisdiction, the
administrative judge found that the appellant failed to allege any specific facts to
support her claim of involuntary resignation , and thus failed to nonfrivolously
allege jurisdiction . IAF, Tab 9, Initial Decision (ID). Because the administrative
judge found that the appellant failed to raise nonfrivolous allegations that her
3
resignation was involuntary, the administrative judge d id not hold the appellant’s
requested hearing. IAF, Tab 1 at 7; ID at 1 -2.
¶4 The appellant has filed a petition for review, arguing that she was forced to
resign due to intolerable working conditions , and, for the first time on review,
alleging specific facts in support of her claim. Petition for Review (PFR) File,
Tab 3 at 5 -23. She additionally includes for the first time on review the
transcripts of several depositions from October 2014 that were taken in
connection with an EEO complaint that she had filed, her own December 2014
declaration in support of her EEO complaint, and a handwritten summary of
another witness’s deposition —seemingly from November 2014. Id. at 28 -116.
The agency has not fil ed a response.
DISCUSSION OF ARGUME NTS ON REVIEW
The administrative judge properly found that the appellant failed to
nonfrivolously allege her resignation was the result of intolerable working
conditions based on her nonspecific factual allegations .
¶5 An ap pellant is entitled to a hearing on the issue of Board jurisdiction over
an appeal of an alleged involuntary resignation only if she makes a nonfrivolous
allegation casting doubt on the presumption of voluntariness. Jones v.
Department of the Interior , 76 M.S.P.R. 43 , 45 (1997). Nonfrivolous allegations
of Board jurisdiction are allegations of fact which, if proven, could establ ish a
prima facie case that the Board has jurisdiction over the matter at issue. Searcy v.
Department of Commerce , 114 M.S.P.R. 281 , ¶ 10 (2010).
¶6 An employee -initiated action, such as a resignation, is presumed to be
voluntary, and thus outside the Board’s jurisdiction, unless the employee presents
sufficient evidence to establish that the action was obtained through duress or
coercion or show s that a reasonable person would have been misled by the
agency. Id., ¶ 12 (citing Staats v. U.S. Postal Service , 99 F.3d 1120 , 1123 -24
(Fed. Cir. 1996) ). The appellant here has not alleged that her resignation resulted
from agency misinformation. Rather, she has argued both below and on review
4
that she resigned as a result of a hostile work environment created by her
Principal and Vice Principal. IAF, Tab 1 at 5 -6; PFR File, Tab 3 at 13-26.
In determining whether intolerable working conditions have rendered an action
involuntary, the issue is whether, considering the totality of the circumstances,
the employee’s working conditions were made so difficult that a reasonable
person in the employee’s position would have felt compelled to resign. Brown v.
U.S. Postal Service , 115 M.S.P.R. 609 , ¶ 10, aff’d , 469 F. App’x 852 (Fed. Cir.
2011) ; Searcy , 114 M.S.P.R. 281, ¶ 12. In maki ng this determination, the Board
will consider allegations of discrimination and reprisal only insofar as those
allegations relate to the issue of voluntariness and not whether they would
establish discrimination or reprisal as an affirmative defense.2
Brown, 115 M.S.P.R. 609 , ¶ 10 .
¶7 The administrative judge found that , although the appellant indicated that
she filed an EEO complaint and used various adjectives to describe the purported
improper acts by the agency, she failed to allege any specific facts to support her
claim.3 ID at 5. In doing so, the administrative judge properly considered the
appellant’s allegations of discrimination only insofar as they related to the issue
of voluntariness. Id.
¶8 On review, the appellant appears to restate many of her generalized
allegations . PFR File, Tab 3 at 5 -26. She also expands on some of these
allegations . For example, she a sserts that she was “isolated, aggressively
2 The appellant argues that she established her retaliation and a hostile work
environment claims under Title VII standards. PFR File, Tab 3 at 16 -26. Because these
legal standards are not applicabl e to the instant appeal, her arguments that she met them
are not persuasive. See Brown , 115 M.S.P.R. 609 , ¶ 10.
3 The administrative judge observed that although the appellant indicated in her initial
appeal that she had attached documents which “set forth in detail” the “conduct giving
rise to this appeal,” no such documents were attached to her pleading. ID at 5 & n.3
(quoting IAF, Tab 1 at 6). Similarly, despite the appellant’s assertion on review that
she attached a “Pre -complaint Intake Form which sets forth a summary of events which
gives rise to this complaint,” PFR File, Tab 3 at 6 -7, no such form was attach ed to her
petition for review.
5
questioned, yelled at, mocked, mimicked, second -guessed, micromanaged ,
castigated and falsely po rtrayed” by her Principal and Vice Principal. Id. at 8, 10,
26. She also characterizes these managers as “ harshly judg [ing] her ” grading
practices and claims that they “move[d] the poor performing students into her
classes in mass .” Id. at 11 -12. She alleges that in the last 7 months of her
employment she was “ subjected to a heightened level of hostility .” Id. at 7-8.
Additionally, she asserts that the Principal attempted to intimidate her to prevent
her from testifying at a deposition, but fails to provide any clarifying details
about this alleged intimidation —such as whether it occurred in -person, what
statem ents he made or behavior he exhibited, or when it happened. Id. at 22.
These allegations are still vague, conclusory, or otherwise unsupported, and
therefore do not satisfy the Board’s nonfrivolous pleading standard. See Green v.
Department of Veterans Affairs , 112 M.S.P.R. 59 , ¶¶ 10 -11 (2009) (f inding that
an appellant’s allegations that coworkers “spread[ ] rumors” about him because
they were “trying to get back at [him] for some reason” were vague and general,
thus falling short of nonfrivolous allegations of intolerable working conditions
that could establish jurisdiction over his allegedly forced resignation) ; Dodson v.
U.S. Postal Service , 67 M.S.P.R. 84 , 87 (1995) (finding that the appellant failed
to set for th specific assert ions of fact, which, if proven, wo uld support her claim
that her retirement resulted from “duress” and “misinformation”); Collins v.
Defense Logistics Agency , 55 M.S.P.R . 185 , 189-90 (1992) (finding, in the
context of an involuntary resignation appeal in which the appellant argued that
she was forced to resign because of discrimination and retaliation, that her failure
to make allegations specifying the particular acts of harassment, discrimination,
or retaliation directed toward her warranted dismissing the appeal for lack of
jurisdiction without affording her a jurisdictional hearing), modified on other
grounds by Ferdon v. U.S. Postal Service , 60 M.S.P.R. 325 , 329 -30 (1994) ;
5 C.F.R. § 1201.4 (s)(1) (providing that to be considered nonfrivol ous, an
allegation generally needs to be , amongst other things, more than conclusory).
6
Accordingly, these allegations do not warrant a different outcome from that of the
initial decision.
The appellant’s factual allegations and legal arguments raised for the first time on
review fall short of nonfrivolous allegations that her resignation was the result of
intolerable working conditions.
¶9 The appellant has provided some more specific allegations of fact on
review. PFR File, Tab 3 at 5 -10, 102-12. She also alleges for the first time that
the agency failed to accommodate her disability , harassed her based on that
disability, and retaliated against her for activity other than her own EEO
complaints . Id. at 5-8, 18. The question of whether the appe llant resigned
involuntarily implicates the Board’s jurisdiction, see Quiet v. Department of
Transportation , 104 M.S.P.R. 292 , ¶ 6 ( 2006), an issue that is always before the
Board, Poole v. Department of the Army , 117 M.S.P.R. 516 , ¶ 9 (2012).
Accordingly, we have consider ed the appellant’s new argument and allegations on
review. See Schoenig v. Department of Justice , 120 M.S.P.R. 318 , ¶ 7 (2013)
(recognizing that the Board m ay consider evidence submitted for the first time on
petition for re view if it implicates the Board’ s jurisdiction ); Lovoy v. Department
of Health & Human Services , 94 M.S.P.R. 571 , ¶ 30 (2003) (considering an
appellant’s jurisdictional arguments raised for the first time on review) .
Nevertheless, as indicated below, we find that she still fai ls to raise a
nonfrivolous allegation that her resignation was involuntary.
The appellant’s new legal arguments do not provide a basis to disturb the
initial decision.
¶10 An agency’s denial of a reasonable accommodation to an eligible employee
is a factor to be considered in determining whether the agency coer ced the
appellant’s resignation. Brown , 115 M.S.P.R. 609 , ¶ 16 . Here, however, the
appellant fails to indicate what accommodations she requested, when she made
her requests , or that the requested accommodations would have permitted her to
7
continue working.4 PFR File, Tab 3 at 5 -7. Accordingly, the appellant’s
assertion fails to meet the nonfrivolous pleading standard. Collins , 55 M.S.P.R.
at 189-90; see Hosozawa v. Department of Veterans Affairs , 113 M.S.P.R. 110 ,
¶ 7 (2010) (finding that an appellant nonfrivolously alleged her resignation was
involuntary when it followed the agency’s denial of her request to telecommute ,
which her doctor indicate d would have permitted her to continue work ing).
¶11 The appellant also alleges for the first time on review that the agency
harassed her because of her disability and retaliated against her because of her
role as a union representative and for assisting in the EE O complaints of other
employees. PFR File, Tab 3 at 6. She raises additional bases of retaliation,
including for reporting abuses of power and other wrongdoing such as the
manipulation of transcripts, attendance policy violations, hostility toward
teache rs, and improprieties in hiring and the assignment of work and classrooms .
Id. at 7-8. To the extent that the appellant alleges she was retaliated against for
making a protected disclosure or engaging in a protected activity , we may only
consider such cl aims in the context of this appeal insofar as they relate to the
issue of whether her resignation was voluntary, and not whether she established
separate affirmative defense s.5 See Coufal v. Department of Justice ,
98 M.S.P.R. 31, ¶ 24 (2004) ; see also 5 U.S.C.§ 2302 (b)(9)(A) -(B); Alarid v.
Department of the Army , 122 M.S.P.R. 600 , ¶ 10 (2015) (explaining that
performing union -related duties, such as filing grievances and representing other
employees in the grievance process, are protected activities under section
2302(b)(9) ). These new alleged bases for the agency’s actions fail for the same
4 Although the appellant asserts that she suffers from back conditions that have resulted
in lifting and sitting restrictions, PFR File, Tab 3 at 5-6, she does not clarify if her
requests for accommodation were related to the se conditions and restrictions.
5 An involuntary resignation claim is cognizable in an individual right of action (IRA)
appeal. Mastrullo v. Department of Labor , 123 M.S.P.R. 110 , ¶ 10 (2015). We make
no finding regarding whether the Board would have jurisdiction over an IRA appeal of
the appellant’s resignation or the viability of any such claim .
8
reasons the appellant’s allegations of EEO discrimination and reprisal failed
below; they are unaccomp anied by specific allegations of fact .
The appellant’s new factual allegations do not state a basis to disturb the
initial decision.
¶12 The appellant’s December 2014 declaration, which she submits for the first
time on review, c ontains some specific allegat ions of fact . PFR File, Tab 3 at
102-112. We have considered these allegations but have accorded them relatively
little weight. The incidents described therein occurred at least 20 months prior to
the appellant’s August 2016 resignation .6 IAF, Tab 6 at 14. Although an
appellant is not limited to “any particular time frame” in asserting that an
agency’s actions coerced her into resigning or retiring, “the most probative
evidence of involuntariness will usually be evidence in which there i s a relatively
short period of time between the employer’s alleged coercive act and the
employee’s retirement.” Terban v. Department of Energy , 216 F.3d 1021 , 1024
(Fed. Cir. 2000). Thus, in Terban , when the appellant decided to retire in June
1997, the U.S. Court of Appeals for the Federal Circuit found that the Board was
well within its discretion when it afforded relatively little weight to t he
intolerable working conditions that he allegedly suffered between 1993 and 1995.
Id. at 1023 -24. As the court noted, the appellant’s “own actions —i.e., continuing
to withstand the unwelcome treatment —indicate that he had an alternative to
retirement.” Id. at 1024 -25.
¶13 To summarize, the appellant allege s such incidents as the following: (1 ) the
Principal and Vice Principal interviewed students to solicit information that they
then misrepresent ed and use d against her, PFR File, Tab 3 at 105; ( 2) in a hostile
6 In the petition for review, the appellant’s representative asserts that during her last
3 months of employment, the appellant was subjected to various forms of harassment,
such as the Vice Principal appearing at her classroom doorway and silently glaring at
her on at least 50 occasio ns. PFR File, Tab 3 at 25 -26. The appellant’s representative
appears to be mistaken, as the appellant discussed these alleged incidents in her
December 2014 declaration. Id. at 102 -06, 109, 112.
9
email, the Vice Principal once demanded that she submit 2 weeks ’ worth of
lesson plans, id. at 107; ( 3) the Vice Principal told the appellant’s supervisor that
she was the worst teacher in the school, id. at 109; ( 3) the Vice Principal tried to
set her up for failure in 2013 by putting students who did not get along in her
study hall, id. at 108; ( 4) in 2013, the Vice Principal violated procedures by
setting up appointments between the appellant and the parents of two of her
failing student s on the last day of the school year rather than 2 weeks in advance,
id. at 109 -10; ( 5) in 2014, the Vice Principal repeatedly accused her, falsely, of
showing movies all class period, id. at 10 6-07; and ( 6) on Decembe r 5, 2014, the
Vice Principal coached a parent on what to say to the appellant during an
unscheduled meeting he forced her to hold , after which he falsely accused the
appellant of trying to avoid the parent in question , id. at 10 2-04.
¶14 We find that , even if proven , these alleged working conditions are not so
difficult as to leave a reasonable person with no choice but to resign. An
employee is not guaranteed a stress -free working environment. Brown ,
115 M.S.P.R. 609 , ¶ 15. Dissatisfaction with work assignments, a feeling of
being unfairly criticized, or difficult or unpleasant working conditions are
generally not so intolerable as to compel a reasonable person to resign. Id. Thus,
the Board has found that an appellant’s assertions of being overworked,
groundlessly criticized, denied a merit increase and bonus, and denied a more
flexible schedule tha n others, due in part to her sex , age, and prior EEO activity,
failed to constitute nonfrivolous allegations that she was coerced into retiring.
Id., ¶¶ 13, 15. Similarly, the appellant’s allegations here fail to amount to
nonfrivolous allegations that she was coerced into resigning.
¶15 The appella nt also asserted that the Vice Principal was physically
threatening and that she was afraid he would physically harm her, in addition to
causing her fear, stress, anxiety, and depression . PFR File, Tab 3 at 104 -05.
Specifically, the appellant alleged the following: (1) at the end of the 2013
school year, she witnessed the Vice Principal follow and then yell at a colleague
10
while closing the space between them, id. at 68, 111-12; (2) on December 13,
2013, the Vice Principal “cornered ” the appellant in her classroom and “denied
[her] the right to have another teacher present ” while he was there, which so
unnerved her that she filed a police report, id. at 102; (3) in or before October
2014, the Vice Principal came to her classroom “more than 50 times” to silently
stare at her, id. at 102; (4) after the appellant met with the Vice Principal in his
office in November 2014, he arrived at his next meeting with his bloody hand
wrapped in tissue, saying that he had lost his temper, id. at 104; and (5) one day
in December 2014, the appellant returned to school 45 minutes after it had ended
to find the Principal and Vice Principal standing at her classroom doorway, and
later noticed indications that they had been at her desk —despite their suggest ions
to the contrary , id. at 112.
¶16 Although the appellant’s allegations concerning the Vice Principal’s
threatening manner are smore concerning, the only specific alleged instances of
such behavior occurred 20 or more months prior to her resignation. Becau se of
this significant lapse in time, the alleged harassment and threatening behavior is
entitled to little weight in determining whether the appellant’s resignation was
involuntary. See Terban , 216 F.3d at 1024 . None of the appellant’s factual
allegations suggest that the agency was forcing her to make any type of decision
in August 2016, and her decision to resign at that time appears to have been
entirely self -initiated. See Brown , 115 M.S.P.R. 6 09, ¶ 15 (declining to conclude
an appellant nonfrivolously alleged she involuntarily retired under such
circumstances) ; see also Terban , 216 F.3d at 1025 (finding that the petitioner was
“unable to establish any precipitating event that occurred relatively close in time
to his retirement which would have given a reasonable employee no choice but to
retire ”).
¶17 The appellant indicated she filed an EEO complaint in or about
Decembe r 2013, PFR File, Tab 3 at 102, but asserts that an EEO administrator
“refused to properly process or otherwise entertain ” her complaints of
11
discrimination and that the agency “improperly sat on ” and refused to investigate
her complaints,7 id. at 7. Although an agency’s mishandling of an appellant’s
EEO complaint may be considered in evaluating her claim of involuntary
resignation, Axsom v. Department of Veterans Affairs , 110 M.S.P.R. 605 , ¶ 17
(2009), here the appellant’s EEO complaint was before the Equal Employment
Opportunity Commission (EEOC) by at least October 2014, PFR File, Tab 3
at 29. Accordingly, regardless of whethe r the agency mishandled her EEO
complaint, the appellant was able to pursue her claims before the EEOC long
before her resignation, and she does not assert that her claims were inadequately
addressed in that forum.8
¶18 “[T]he doctrine of coercive involunta riness is a narrow one.”
Staats , 99 F.3d at 1124. Considering the totality of the circumstances, we find
that the appellant’s allegations fail to indicate that her working conditions were
made so difficult that a reasonable person in her position would h ave felt
compelled to resign at the time she did. Accordingly, we deny the petition for
review, and affirm the initial decision dismissing the appeal for lack of
jurisdiction without holding a hearing.
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
7 The appellant also asserts that an EEO manager facilitat ed and enabled discrimination
and retaliation against her , but provides no specific factual allegations in support of her
assertion. PFR File, Tab 3 at 7.
8 The record does not reveal how the appellant’s EEO complaint was resolved.
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.
12
Systems Protection Board does not provide legal advice on which option is most
appropriat e for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applica ble to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choice s of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 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
13
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 receives this decision before
you do, then you must file with the district court no later than 30 calendar days
after your representative receives this decision. If the action involves a claim of
discrimination based on race, color, religion, sex, national origin, or a disabling
condition, you may be entitled to representation by a court -appointed lawyer and
to waiver of any requirement of prepayment of fees, costs, or other security. See
42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case,
14
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative 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.10 The court of appeals must receive your petition for
10 The original statutory provisio n that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
15
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and F orms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representatio n
for Merit Systems Protection Board appellants before the Federal Circuit. The
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 retroact ive to November 26, 2017. Pub. L. No. 115 -195,
132 Stat. 1510.
16
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD:
Washington, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board | MILLER_STACY_DC_0752_17_0111_I_1_FINAL_ORDER_1998464.pdf | 2023-02-01 | null | DC-0752 | NP |
3,650 | https://www.mspb.gov/decisions/nonprecedential/PETERSON_LIONEL_DE_0752_14_0174_I_1_FINAL_ORDER_1998572.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
LIONEL PETERSON,
Appellant,
v.
UNITED STATES POSTAL SERVICE,
Agency.
DOCKET NUMBER
DE-0752 -14-0174 -I-1
DATE: February 1, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL1
Marisa L. Williams , Esquire, and Rhonda Rhodes , Esquire , Englewood,
Colorado, for the appellant.
Dynelle M. Tadlock , 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 and denied his affirmative defenses . On petition f or review,
the appellant challenges the administrative judge’s findings that the agency did
not violate his right to due process and that it considered all of the relevant
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case 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
factors and exercised reasonable managerial discretion in deciding to remove him .
Generally, we grant petiti ons 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 t he 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 cas e; or new and material evidence
or legal argument is available that, despite the petitioner’s due diligence, was not
available when the record closed. Title 5 of the Code of Federal Regulations,
section 1201.115 ( 5 C.F.R. § 1201.115 ). After fully considering the filings in this
appeal,2 we conclude that the petitioner has not established any basis under
section 1201.115 for granting the petition for review.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).
2 We have reviewed the appellant’s alleged new evidence submitted on review and have
determined that it is not material to his appeal. Therefore, it provides no basis to
disturb the initial decision. Russo v. Veterans Administration , 3 M.S.P.R. 345 , 349
(1980) (holding that the Board will not grant a petition for review based on new
evidence absent a showing that it is of sufficient weight to warrant an outcome different
from that of the initial decision).
3 In analyzing the appellant’s disparate penalty claim, the administrative judge cited
Lewis v. Department of Veterans Affairs , 113 M.S.P.R. 657 (2010). Initial Appeal File,
Tab 56, Initial Decision (ID) at 28. The Board, however, 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 to hold
that 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. The reference to the standard set forth in Lewis was not
prejudicial to this case , though, because, as the administrative judge properly found, the
appellant failed to satisfy e ven th at less onerous standard. ID at 28-29.
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 file. 5 U.S.C. § 7703 (b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
4 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is mo st appropriate in any matter.
4
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful d iscrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. ____ , 137 S. Ct. 1975 (2017). If you have a
representative in this case, and your representative receive s this decision before
you do, then you must file with the district court no later than 30 calendar days
after your representative receives this decision. If the action involves a claim of
discrimination based on race, color, religion, sex, national origi n, or a disabling
condition, you may be entitled to representation by a court -appointed lawyer and
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. di strict courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the 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
6
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.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal 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.
5 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195,
132 Stat. 1510.
7
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 | PETERSON_LIONEL_DE_0752_14_0174_I_1_FINAL_ORDER_1998572.pdf | 2023-02-01 | null | DE-0752 | NP |
3,651 | https://www.mspb.gov/decisions/nonprecedential/MCNEIL_SAMUEL_SF_4324_16_0531_I_1_FINAL_ORDER_1998623.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
SAMUEL MCNEIL,
Appellant,
v.
UNITED STATES POSTAL SERVICE,
Agency.
DOCKET NUMBER
SF-4324 -16-0531 -I-1
DATE: February 1, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL1
Samuel McNeil , Azusa, California, pro se.
Catherine V. Meek , Long Beach , California, 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 initi al decision, which
dismissed his Uniformed Services Employment and Reemployment Rights Act of
1994 (USERRA) appeal as barred under the equitable doctrine of laches. On
petition for review, the appellant argues that the agency failed to comply with a
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or 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
1989 Board decision2 but does not directly address the grounds for dismissal of
his USERRA 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
administrative judge’s rulings during either the course of the appeal or the initial
decision were not consistent with required procedures or involved an abuse of
discretion, and the resulting error affe cted the outcome of the case; or new and
material evidence or legal argument is available that, despite the petitioner’s due
diligence, was not available when the record closed. Title 5 of the Code of
Federal Regulations, section 1201.115 ( 5 C.F.R. § 1201.115 ). After fully
considering the filings in this appeal, we conclude that the petitioner has not
established any basis under section 1201.115 for granting the petition for review.
Therefore, we DENY the petition for review and AFFIRM the initial decision,
which is now the Board’s final decision. 5 C.F.R. § 1201.113 (b).
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 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
2 The appellant’s removal from the agency was affirmed in an October 11, 1989 initial
decision. In a November 1, 1991 final decision, the Board denied the appellant’s
petition for review and, among other things, sust ained his removal.
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
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.
If you are interested in securing pro bono representation for an 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
4
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on 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 any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 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 original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdictio n.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195,
132 Stat. 1510.
6
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D .C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/C ourtWebsites.aspx .
FOR THE BOARD:
Washington, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board | MCNEIL_SAMUEL_SF_4324_16_0531_I_1_FINAL_ORDER_1998623.pdf | 2023-02-01 | null | SF-4324 | NP |
3,652 | https://www.mspb.gov/decisions/nonprecedential/DASHIELDS_JERRY_PH_3443_17_0110_I_1_FINAL_ORDER_1998629.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
JERRY DASHIELDS,
Appellant,
v.
DEPARTMENT OF VETERA NS
AFFAIRS,
Agency.
DOCKET NUMBER
PH-3443 -17-0110 -I-1
DATE: February 1, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL1
Jerry Dashields , Baltimore, Maryland, pro se.
Shelly S. Glenn , Esquire, Baltimore, Maryland, 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 initial decision, which
dismissed his appeal for failure to prosecute . Generally, we grant petitions such
as this one only in the following circumstances: the initial decision contains
erroneous findings of material fact; the initial decision is based on an erroneous
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
require d to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c).
2
interpretation of statute or regulation or the erroneous application of the law to
the facts of the case; the administrative judge’s rulings during either the course of
the appeal or the initial decision were not consistent with required procedures or
involved an abuse of discretion, and the resulting error affected the outcome of
the case; or new and material evidence or legal argument is available that, despite
the petitioner’s due diligence, 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 conc lude 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 In his appeal, the appellant, who is a GS -0083 -06 Police Officer with the
Department of Veterans Affairs in Baltimore, Maryland , initially appeared to be
challenging a reassignment without a loss of pay or grade. Initial Appeal File
(IAF), Tab 1 at 3, 5. The administrative judge issued a jurisdictional order, to
which the appellant did not respond. IAF, Tab 2 at 2 -4. Thereafte r, the agency
provided its file and asserted that no action had taken place, i.e., the agency had
merely proposed reassigning personnel. IAF, Tab 4 at 6. The administrative
judge issued a show cause order , which directed the appellant to show that the
Board had jurisdiction over his appeal and warned him that he might be
sanctioned by dismissal of his appeal for failure to prosecute i f he did not
respond. IAF, Tab 5. After the appellant failed to respond, the administrative
judge issued a second order t o show cause. IAF, Tab 6. The appellant responded
with two brief pleadings that addressed the state of negotiations between his
bargaining unit and the agency over the proposed reassignment of age ncy Police
Officers. IAF, Tabs 9, 11. He also raised his belief that he was experiencing
retaliation as a w histleblower for having filed this appeal. IAF, Tab 9. The
administrative judge then issued a n order directing the appellant to nonfrivolously
allege the Board’s jurisdiction over his purported individua l right of action (IRA)
3
appeal. IAF, Tab 13. When the appellant did not respond, the administrative
judge issued a final order to show cause. I AF, Tab 14. The appellant again did
not respond, and the administrative judge issued the initial decision dis missing
the appeal for failure to prosecute. IAF, Tab 15, Initial Decision (ID).
¶3 The appellant has filed a petition for review. Petition for Review (PFR)
File, Tab 1. He has not specifically addressed the initial decision and instead
simply states that he has “filed a notice with Office of Special Counsel 1213
Investigation.” Id. at 3.
¶4 Although dismissal for failure to prosecute is a severe sanction,
administrative judges have discretion to impose such a sanction when necessary
to serve the ends of just ice. Williams v. U.S. Postal Service , 116 M.S.P.R. 377 ,
¶ 7 (2011) (citing Chandler v. Department of the Navy , 87 M.S.P.R. 369 , ¶ 6
(2000) ); 5 C.F.R. §§ 1201.41 (b)(11), .43(b) . The sanction of dismissal may be
imposed when a party has failed to exercise basic due diligence in complying
with Board orders, or when a party has exhibited negligence or bad faith in its
efforts to comply. Williams , 116 M.S.P.R. 377 , ¶ 7. The Board has upheld
imposing the sanction of dismissal w hen an appellant ’s repeated failure to
respond to multiple Board orders reflects a failure to exercise basic due diligence.
Id., ¶ 9.
¶5 Here, the appellant failed to submit responsive pleadings to some orders and
did not respond to other orders at all . The administrative judge issued a total of
five orders pertaining to the appellant’s jurisdictional burden, three of which were
orders to show cause. IAF, Tabs 2, 5 -6, 13 -14. Two of the orders warned the
appellant that repeated failure to follow Board orders could result in the dismissal
of his appeal for failure to prosecute. IAF, Tabs 5, 14. The appellant submitted
two pleadings in response to the administrative judge’s initial orders . IAF,
Tabs 9, 11. Neither of these pleadings addressed why he believed the Board had
jurisdiction over his appeal of the reassignment. Instead, he di scussed the
negotiations between his bargaining unit and the agency over the proposed
4
reassignment of Police Officers within the agency’s Baltimore sites. Id.
Additionally, he alleged that the agency had retaliated against him for
whistleblowing after he had filed this appeal. IAF, Tab 9. The administrative
judge then issued a comprehensive jurisdictional order regarding the appellant’s
purported IRA appeal . IAF, Tab 13. When the appellant failed to submit any
respon se to that order , the administrativ e judge issued a final order to show cause ,
once more warning him that failure to respond might result in dismissing his
appeal . IAF, Tab 14. The appellant again did not respond , and the administrative
judge dismissed the appeal for failure to prosecute. ID at 3. The administrative
judge’s action dismissing the appeal was appropriate because the appellant did
not respond to the Board ’s last two orders , reflecting a failure to e xercise basic
due diligence . See Williams , 116 M.S.P.R. 377, ¶¶ 9-12.
¶6 In the appellant’s brief pe tition for review, he references what may be an
ongoing investigation by the Office of Special Counsel (OSC) pursuant to
5 U.S.C. § 1213 , which concerns the disclosure of information to OSC about
certain types of agency wrongdoin g. PFR File, Tab 1 at 3. There is no
independent right to appeal to the Board following OSC’s investigation into such
a disclosure , see 5 U.S.C. § 1213 , and we find the appellant’s assertion to be
immaterial to the decision whether to dismiss this appeal for failure to prosecute .
Even assuming that the matter pending with OSC is not a disclosure of
information under 5 U.S.C. § 1213 but a complaint of reprisal for whistleblowing
disclosures or other protected activity as described in 5 U.S.C. § 1214 (a)(3), we
find no basis to disturb the i nitial decision. T he administrative judge’s
January 30, 2017 or der fully explained how the appellant could establish
jurisdiction over such reprisal claims as an IRA appeal under 5 U.S.C. § 1221 .
IAF, Tab 13. The appellant’s brief assertion on review fails to explain his failure
to respond to the administrative judge’s orders or otherwise show that this appeal
should not be dismissed for failure to prosecute.
5
NOTICE OF APPEAL RIG HTS2
You may obtain review of this final decision. 5 U.S.C. § 7703 (a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which t o file. 5 U.S.C. § 7703 (b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriat e for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applica ble to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choice s of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
2 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise w hich option is most appropriate in any matter.
6
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
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 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
7
to waiver of any requirement of prepayment of fees, costs, or other security. See
42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed thr ough the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receiv e
this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Wash ington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5S W12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no cha llenge to the Board’s
8
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.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 “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.
3 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 201 8, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The Al l Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195,
132 Stat. 1510.
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 | DASHIELDS_JERRY_PH_3443_17_0110_I_1_FINAL_ORDER_1998629.pdf | 2023-02-01 | null | PH-3443 | NP |
3,653 | https://www.mspb.gov/decisions/nonprecedential/COX_MICHAEL_S_DE_0752_16_0260_I_1_FINAL_ORDER_1998636.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
MICHAEL S. COX,
Appellant,
v.
DEPARTMENT OF THE AR MY,
Agency.
DOCKET NUMBER
DE-0752 -16-0260 -I-1
DATE: February 1, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL1
Janice L. Jackson , Leavenworth, Kansas, for the appellant.
Kristine H. Bell , Esquire, Fort Leavenworth, Kansas, 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
affirmed his removal for failure to maintain a condition of employment .
Generally, we grant petitions such as this one only in the following
circumstances: the initial de cision 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 th e course of the appeal or the initial decision
were not consistent with required procedures or involved an abuse of discretion,
and the resulting error affected the outcome of the case; or new and material
evidence or legal argument is available that, desp ite the petitioner’s due
diligence, was not available when the record closed. Title 5 of the Code of
Federal Regulations, section 1201.115 ( 5 C.F.R. § 1201.115 ). After fully
considerin g the filings in this appeal, we conclude that the petitioner 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 f inal decision. 5 C.F.R. § 1201.113 (b).
BACKGROUND
¶2 The appellant was employed as a n Operations Research Analyst and,
accordin g to his position description, his position required a secret security
clearance . Initial Appeal File (IAF), Tab 8 at 8 -9. In September 2014, he entered
a guilty plea in Missouri state court and was sentenced to 4 years of probation on
the basis of felony marijuana possession. Id. at 16 -17. In January 2015 , the
Department of Defense Consolidated Adjudication Facility (DODCAF) issued a
memorandum of intent t o revoke his security clearance, including a statement of
reason s explaining the agency’s security concerns and informing him of his right
to respond to the preliminary decision . Id. at 21 -27. In April 2015, DODCAF
revoked the appellant’s access to classified information and informed him of his
right to appeal its decision to the Personnel Security Appeals Board (PSAB) . Id.
at 34 -36. In October 2015, the PSAB denied his appeal. Id. at 43.
¶3 In January 2016, the agency proposed the appellant’s removal for failure to
maintain a condition of employment. IAF, Tab 8 at 4 -6. The appellant , who was
3
represented by his union representative , responded orally a nd in writing. IAF,
Tab 7 at 18 -134. In March 2016, the agency imposed his removal. Id. at 14 -17.
¶4 The appellant filed the instant appeal challenging his removal. IAF, Tab 1.
After holding the appellant’s requested hearing, the administrative judge issued
an initial decision sustaining the removal. IAF, Tab 21, Initial Decision (ID).
¶5 The appellant has filed a petition for review , and the agency has responded.
Petition for Review (PFR) File, Tabs 1, 3.2
DISCUSSION OF ARGUME NTS ON REVIEW
¶6 In Departm ent of the Navy v. Egan , 484 U.S. 518 , 526 -30 (1988) , the
Supreme Court held that , in an appeal of an adverse action under chapter 75 on
the basi s of the revocation of a security clearance, the Board may not review the
merits of the underlying clearance determination. Instead, the Board has the
authority to review the following: (1) whether the appellant’ s position required a
clearance; (2) wheth er the clearance was denied , revoked , or suspended; and
(3) whether the employee was provided the proced ural protections specified in
5 U.S.C. § 7513 .3 Grimes v. Department of Justice , 122 M.S.P.R. 36 , ¶ 7 (2014).
2 On review, the appellant has submitted documents titled “Introduction to the Position
Classification Standards” and “Position Description/Instructions for Completing
Option al Form 8.” PFR File, Ta b 1 at 11 -17. The agency has submitted the following
for the first time on review: a March 2017 declaration regarding its policies and the
appellant’s position description; its policies for drafting and classifying positions and
drafting descriptions; an d the appellant’s position descriptions. PFR File, Tab 3
at 11-59. The Board generally will not consider evidence submitted for the first time on
review absent a showing that it is new and material. Avansino v. U.S. Postal Service ,
3 M.S.P.R. 211 , 214 (1980); 5 C.F.R. § 1201.115 (d). To constitute new and material
evidence, the information contained in the documents, not just the documents
themselves, must have been unavailable despite due diligence when the record closed.
Grassell v. Department of Transportation , 40 M.S.P.R. 554 , 564 (1989). The evidence
that the agency and the appellant have submitted, including documents that were
created, policies that were in effect, and position descriptions that had been created
before the record closed below, as well as a declaration about the policies and position
descriptions, is not new and material, and, accordingly, we have not considered it.
3 It is undisputed that th e appellant’s security clearance was indeed revoked . IAF,
Tab 8 at 21, 34 -36, 43.
4
Additionally, because, pursuant to 5 U.S.C. § 770 1(c)(2)(A), the Board may not
sustain an adverse action if the employee can show “harmful error” in the
application of the agency’ s procedures, the Board may review whether the agency
complied with its own procedures for revoking a security c learance. Romero v.
Department of Defense , 527 F.3d 1324 , 1328 (Fed. Cir. 2008); Schnedar v.
Department of the Air Force , 120 M.S.P.R. 516 , ¶ 8 (2014).
¶7 The agency submitted the appellant’s position description , which states that
“[t]he incumbent of this position must qualify for and maintain a SECRET
clearance.” IAF, Tab 8 at 10 (capitals in original) . At the hearing, the appellant
testified that this was his position description and agreed that his position
required security access and a secret clearan ce. Hearing Compact Disc (HCD)
(testimony of the appellant). Based o n this position description and the
appellant’s testimony, the administrative judge found that his position required a
security clearance. ID at 4.
¶8 On review, t he appellant challenges t his finding . PFR File, Tab 1 at 7 ; ID
at 4. Specifically, he asserts that the agency failed to properly draft his position
description in that it was not certified by a supervisor, in violation of the Federal
Personnel Manual (FPM) and chapter 51 of Title 5. PFR File, Tab 1 at 7. The
Director, Civilian Personnel Advisory Center , reviewed the appellant’s position
description and testified that, in 2010, when the appellant’s position description
was last reviewed, there was no expectation that position de scriptions in the
electronic system would be certified in the certification block of the description .
HCD (testimony of the Director). She further testified that, although the
descriptions did not have supervisory certifications, this did not invalidate them.
Id.
¶9 The appellant argues that Optional Form 8 of the FPM include s a place for a
supervisory signature , thus indicating that the agency should have included a
signature on his position description. PFR File, Tab 1 at 7. The FPM was
abolished on December 31, 1993 , and therefore , while it is instructive, the Board
5
is not required to abide by its provisions . Drury v. Office of Personnel
Management , 79 M.S.P.R. 493, ¶ 8 (1998). We find no basis fo r applying the
FPM here, when the appellant is attempting to relate its sample forms to the
agenc y’s electronic system for clas sifying positions . We also find nothing in
chapter 51 of Title 5, which includes provisions addressing position
classification s that would require the agency to draft a positi on description in a
particular manner. The appellant has pointed to no other agency policy or
statutory requirement that would indicate that hi s position description was
invalid . Accordingly, we find, on the basis of the appellant’s testimony and his
position description, that he was employed in a position that required a security
clearance.
¶10 The appellant argues, however, that his position no longer required a
security clearance because he had no need to ac cess classified information since
2007 . PFR File, Tab 1 at 8. The Board lacks authority to review the agency’s
reasons for imposing a security clearance requirement. West v. Department of the
Navy , 63 M.S.P.R. 86, 88 -89 (1994). Consequently, even if the appellant is
correct that he did not need to access classified information, it is not for the
Board to decide why the agency required his position to have a security clearance.
Thus, the appellant’s argument does not provide a reason for disturbing our
conclusion that the agency proved its charge.
¶11 The appellant next asserts that his Commander improperly influenced the
DODCAF decision through a January 8, 2015 memorandum and that the
administrative judge incorrectly found that this was not an attempt to influence
the DODCAF process . PFR File, Tab 1 at 8 -9; ID at 8; IAF, Tab 8 at 50 . On
January 8, 2015, the appellant’s Commander requested expedi ted readjudication
of the appellant’ s securit y clearance. IAF, Tab 8 at 50. He stated that the
appellant remaining employ ed without a clearance was resulting in continued paid
administrative leave , and the office could not gainfully employ the appellant or
move forward with disciplinary action without the re adjudication of his clearance
6
being completed . Id. As the administrative judge found, the Commander was not
advocating for a particular outcom e of the readjudication , and the appellant has
pointed to no reason that this memorandum affected his substantive rights. ID
at 8. Accordingly, we find no basis for disturbing the initial decision ’s
determination that the Commander did not interfere with the agency’s process for
adjudicating the appellant’s clearance . See Crosby v. U.S. Postal Service ,
74 M.S.P.R. 98 , 106 (1997) (f inding no reason to d isturb the administrative
judge’ s findings when she considered the evidence as a whole, drew appropriate
inferences, and made reasoned conclusions on issues of credibility ).
¶12 Next, the appellant argues that, having demonstrated that h is position did
not require a security clearance, he also has demonstrated that the agency did not
prove a nexus between his removal and the efficiency of the service. PFR File,
Tab 1 at 8. To the contrary, because we have sustained the agency’s charge on
the basis of his failure to maintain his security clearance, the adverse action
promotes the efficiency of the service as the absence of the clearance is fatal to
his entitlement to his position . Munoz v. Department of Homeland Security ,
121 M.S.P.R. 483, ¶ 13 (2014) . Finally, the appellant asserts that we should
apply the Douglas4 factors to determine the appropriate penalty. PFR File, Tab 1
at 8. However, c onsideration of the Douglas factors would be inappropriate in
this case because , absen t a statute or regulation requiring the agency to seek out
alternative employment, we la ck the authority to review whether reassignment to
a position not requiring a security clearance would have been feasible.5 Munoz ,
121 M.S.P.R. 483, ¶¶ 15-16.
4 In Douglas v. Veterans Administration , 5 M.S.P.R. 280, 306 (1981), the Board
articulated a nonexhaustive list of factors to be considered when evaluating the penalty
to be imposed for an act of misconduct, hereinafter the Douglas factors.
5 The appellant has not identified any statute, regulation, or oth er source requiring the
agency to formally reassign him, assign him other duties, or seek reinstatement of his
clearance before removing him .
7
NOTICE OF A PPEAL 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 right s 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 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
9
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
10
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 competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195,
132 Stat. 1510.
11
Contact information for the courts of appeals can be 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 | COX_MICHAEL_S_DE_0752_16_0260_I_1_FINAL_ORDER_1998636.pdf | 2023-02-01 | null | DE-0752 | NP |
3,654 | https://www.mspb.gov/decisions/nonprecedential/HODGE_GARY_T_PH_0752_16_0163_I_3_FINAL_ORDER_1998655.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
GARY T. HODGE, SR .,
Appellant,
v.
DEPARTMENT OF VETERA NS
AFFAIRS,
Agency.
DOCKET NUMBER
PH-0752 -16-0163 -I-3
DATE: February 1, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL1
Joel J. Kirkpatrick , Esquire, Plymouth, Michigan, for the appellant.
Lauren Russo , Esquire, Philadelphia, Pennsylvania, for the agency.
Marcus S. Graham , Esquire, Pittsburgh , Pennsylvania, 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
sustained his reduction in grade and pay from the GS -0996 -15 Supervisory
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
require d to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c).
2
Veterans Service Examiner position to the GS -0096 -13 Veterans Claims
Exami ner position , effective January 10, 2016. On petition for review, the
appellant argues that the agency failed to prove the charges of conduct
unbecoming and lack of candor . He also challenges the administrative judge’s
determination that his hearing test imony was not credible , and he contends that
the penalty exceeds the bounds of reasonableness . Generally, we grant petitions
such as this one only in the following circumstances: the initial decision contains
erroneous findings of material fact; the init ial 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 consi stent 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 th e record closed. Title 5
of the 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 In analyzing the appellant’s disparate penalty claim, we have considered the Board’s
recently issued decision in Singh v. U.S. Postal Service , 2022 MSPB 15. Singh
overruled Lewis v. Department of Veterans Affairs , 113 M.S.P.R. 657 (2010) , to clarify
that, when analyzing disparate penalty claims, broad similarity between employees is
insufficient to establish that they are appropriate comparators and to hold t hat the
relevant inquiry is whether the agency knowingly and unjustifiably treated employees
who engaged in the same or similar offenses differently. Here, the appellant has failed
to satisfy even the less onerous , pre -Singh standard.
3
NOTICE OF APPEAL RIGHTS3
You may obtain review of this final decision. 5 U.S.C. § 7703 (a)(1) . By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703 (b).
Although we offer the following summar y of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
3 Since the issuan ce of the initial decision in this matter, the Board may have updated
the notice 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 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
you do, then you must file with the district court no later than 30 calendar days
after your representative receives this decision. If the action involves a claim of
discrimination 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/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 you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
other protected activities listed in 5 U.S.C. § 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) ot her than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.4 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D .C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the 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 pro vision that provided for judicial review of certain
whistleblower claims by any court of 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 appel lants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is ret roactive to November 26, 2017. Pub. L. No. 115 -195,
132 Stat. 1510.
7
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/C ourtWebsites.aspx .
FOR THE BOARD:
Washington, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board | HODGE_GARY_T_PH_0752_16_0163_I_3_FINAL_ORDER_1998655.pdf | 2023-02-01 | null | PH-0752 | NP |
3,655 | https://www.mspb.gov/decisions/nonprecedential/MUZEREUS_ANTHONY_E_DC_3330_16_0605_I_1_FINAL_ORDER_1998663.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
ANTHONY E. MUZEREUS, III,
Appellant,
v.
DEPARTMENT OF THE AR MY,
Agency.
DOCKET NUMBER
DC-3330 -16-0605 -I-1
DATE: February 1, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL1
Michael W. Macomber , Albany, New York, for the appellant.
Leah S. Serrano , Alexandria, Virginia, for the agency.
BEFORE
Cathy A. Harris , Vice Chairman
Raymond A. Limon , Member
Tristan L. Leavitt , Member
FINAL ORD ER
¶1 The appellant has filed a petition for review of the initial decision, which
denied his request for corrective action pursuant to the Veterans Employment
Opportunities Act of 1998 (VEOA) . On petition for review, the appellant assert s
that the agency should have considered his military service toward meeting 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
time -in-grade and specialized experience requirement s for the position at issue
and that the administrative judge improperly relied on Kerner v. Department of
the Interior , 778 F.3d 1336 (Fed. Cir. 2015) , in denying corrective action.
Generally, we grant petitions such as this one only in the following
circumstances: the initial decision contains erroneous findings of material fact;
the initial decision is based on an erroneous 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 decision. 5 C.F.R. § 1201.113 (b).
¶2 As the administrative judge properly concluded, when an agency fills a
vacancy via the merit promotion process, a preference -eligi ble veteran does not
receive any advantage beyond the ability to apply and be considered for the
position. Miller v. Federal Deposit Insurance Corporation , 818 F.3d 1357 ,
1359 -60 (Fed. Cir. 2016); Walker v. Department of the Army , 104 M.S.P.R. 96, ¶
15 (2006) (finding that 5 U.S.C. § 3304 (f)(1) does not provide preference
eligibles with any advantage beyond the opportunity to compete for particular
positions ); see Montgomery v. Department of Health & Human Services ,
123 M.S.P.R. 216, ¶ 11 (2016) (finding that the right to compete under 5 U.S.C.
§ 3304 (f) includes the agency’s consideration of the veteran’s application).
However , the opportunity -to-compete provision set forth in 5 U.S.C. § 3304 (f)
does not apply to veterans , like the appellant , already employed in the Federal
3
civil service who are seeking merit promotions. Oram v. Department of the Navy ,
2022 MSPB 30, ¶¶ 15-17 (citing Kerner , 778 F.3d at 1338 -39). Thus, the
appellant was not entitled , pursuant to 5 U.S.C. §§ 3304 (f) or 3311 , or any other
veterans’ preference statute or regulation, to consideration of his non -Federal
civil service experience, i.e., his military experience , for the purposes of
determining whether he met the time -in-grade or other eligibility requirement s of
the position . Kerner , 778 F.3d at 1339 .
¶3 On review, the appellant argues that his case is distinguishable from Kerner
because the petitioner in Kerner lacked the requisite specialized experience,
whereas the appellant had the required specialized experience , but the agency did
not consider it. Petition for Review (PFR) File, Tab 1 at 11. However, t he
petitioner in Kerner explicitly argued , as did the appellant here, that the agency
violated his rights under 5 U.S.C. § 3304 (f) because it did not credit his
non-Federal civil service experience towards the time -in-grade requirement in
accordance with 5 U.S.C. § 3311 . Kerner , 778 F.3d at 1337 -38. We find no
principled basis to distinguish Kerner on its facts. The appellant also asserts on
review that the U.S. Court of Appeals for the Federal Circuit (Federal Circuit)
engaged in “misplace[d] reliance on the legislative history of the VEOA,” in
reaching its conclusion in Kerner and that the Board should thus reject the
principle of stare decisis and not follow the court’s decision. PFR File, Tab 1
at 13-16. Kerner is contr olling authority that the Board is bound to follow .
Oram , 2022 MSPB 30 , ¶ 17; see Conner v. Office of Personnel Management ,
120 M.S.P.R. 670, ¶ 6 (2014) , aff’d , 620 F. App’x 892 (Fed. Cir. 2015)
(explaining that i t is axiomatic that precedential decisions of the Federal Circuit
are controlling authority for the Board and that the Board is bound to follow them
unless they are overruled by the court sitting en banc ). The appellant further
argues on review that Kerner is inconsistent with another Federal Circuit case,
Lazaro v. Department of Veterans Affairs , 666 F.3d 1316 (Fed. Cir. 2012), and
that Kerner , therefore , is of little precedential value. PFR File, Tab 1 at 9 -10.
4
The court’s decision in Lazar o does not state whether the vacancy announcement
in question was filled through an open competitive process or merit promotion
procedures, and thus the strength of any comparisons among Kerner , Lazaro , and
the instant case is not clear.2 The appellant’s arguments on review do not
demonstrate that he is entitled to corrective action.
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 m ay result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
2 In a recent nonprecedential decision, the Federal Circuit interpreted Lazaro as not
involv ing a vacancy filled using the merit promotion process. Barry v. Department of
Defense , No. 2017 -2142 , 2017 WL 5474219 (Fed. Cir. Nov. 15, 2017).
3 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.
5
Court o f Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for re view to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
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
6
representative in this case, and your representative receives this decision before
you do, then you must file with the district court no later than 30 calendar days
after your representative receives this decision. If the action involves a claim of
discri mination based on race, color, religion, sex, national origin, or a disabling
condition, you may be entitled to representation by a court -appointed lawyer and
to waiver of any requirement of prepayment of fees, costs, or other security. See
42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourt s.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC b y regular U.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 requiri ng a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
7
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 201 2. This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (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) o ther than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.4 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D .C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
4 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of ap peals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower repr isal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195,
132 Stat. 1510.
8
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/C ourtWebsites.aspx .
FOR THE BOARD:
Washington, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board | MUZEREUS_ANTHONY_E_DC_3330_16_0605_I_1_FINAL_ORDER_1998663.pdf | 2023-02-01 | null | DC-3330 | NP |
3,656 | https://www.mspb.gov/decisions/nonprecedential/STOGLIN_COREY_DEMOND_CH_3330_17_0105_I_1_REMAND_ORDER_1998677.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
COREY DEMOND STOGLIN ,
Appellant,
v.
DEPARTMENT OF HOMELA ND
SECURITY,
Agency.
DOCKET NUMBER
CH-3330 -17-0105 -I-1
DATE: February 1, 2023
THIS ORDER IS NONPRECEDENTIAL1
Corey Demond Stoglin , Minneapolis, Minnesota, pro se.
Douglas Mark Livingston , Esquire, Houston, Texas, 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 i nitial decision, which
denied his request for corrective action in connection with his appeal under the
Veterans Employment Opportunities Act (VEOA) and dismissed for lack 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
jurisdiction his appeal under the Uniformed Services Employment and
Reemployment Rights Act (USERRA) .
¶2 For the reasons discussed below, we GRANT the appellant’s petition for
review , VACATE that portion of the initial decision addressing the USERRA
appeal , AFFIRM the portions of the initial decision addressing the appellant’s
VEOA, race discrimination, and whistleblower retaliation claims, and REMAND
the case to the regional office for further adjudication in accordance with this
Remand Order.
BACKGROUND
¶3 The appella nt is a 30% disabled preference -eligible veteran. Initial Appeal
File (IAF), Tab 4 at 12, 14. On March 28, 2016, the agency issued vacancy
announcement CIS -1659155 -EO1 for the position of Equal Employment
Opportunity Manager (Deputy Chief), GS -15, IAF, Tab 6 at 13 -15, and the
appellant applied. Subsequently, he was notifie d that, although he was one of the
referred and considered applicants, another applicant was selected for the
position. Id. at 5.
¶4 On October 12, 2016, the Department of Labor (DOL), Veterans’
Employment and Training Group (VETS), acknowledged receipt of the
appellant’s VEOA complaint.2 IAF, Tab 1 at 7 -8. Unable to resolve the
complaint, DOL VETS advised the appellant on November 15, 2016, of his right
to appeal to the Board, id. at 9, which he did. In claiming that he was denied the
right to compete fo r the position, the appellant alleged that the agency retaliated
against him because he had another VEOA/USERRA complaint pending before
DOL,3 the appeal of which was currently before the Board, MSPB Docket
No. CH-3330 -16-0616 -I-1, that the agency engaged in racial discrimination, and
2 The appellant did not submit a copy of the complaint he filed with DOL.
3 The appellant asserted that his “DOL complaint was originally filed as a USERRA
complaint.” IAF, Tab 4 at 8.
3
that the appeal should be treated as a claim that the agency violated the
Whistleblower Protection Act (WPA). IAF, Tab 1 at 5. He requested a hearing .
Id. at 2.
¶5 The administrative judge issued an order on VEOA jurisdiction and notice
of proof requirements in connection with the app ellant’s VEOA appeal. IAF,
Tab 3. In his response, the appellant alleged that, in failing to select him for the
position in question, the agency violated his veterans’ preference rights and that it
also denied him the right to compete under 5 U.S.C. § 3304 (f)(1). IAF, Tab 4
at 4-7. The appellant reiterated his claim that the agency’s action was in
retaliation for his other pending VEOA/U SERRA claim, and he also raised the
possibility that, as to the nonselection, the agency violated his rights under
USERRA by not properly crediting the experience he earned while he was in the
military. Id. at 6. The agency moved that the appeal be dismi ssed for lack of
jurisdiction. IAF, Tab 6.
¶6 In an initial decision based on the written record, the administrative judge
first addressed the appellant’s claim under VEOA regarding his nonselection,
finding that he did not show that the agency violated a st atutory or regulatory
provision related to veterans’ preference, noting that he did not dispute that he
was referred for consideration under the vacancy announcement at issue. IAF,
Tab 7, Initial Decision (ID) at 3 -5. The administrative judge further fou nd that,
in the context of his VEOA appeal, the Board lacks authority to review the
appellant’s racial discrimination claim. ID at 5. Regarding the appellant’s claim
of retaliation for having pursued another VEOA/USERRA matter, the
administrative judge s tated that he could file a retaliation complaint with the
Office of Special Counsel (OSC). The administrative judge then addressed the
appellant’s claim of retaliation under the WPA, finding that he failed to show that
he exhausted his remedy before OSC. ID at 6. As to the appellant’s USERRA
claim, the administrative judge found that the appellant “failed to make an initial
showing, by preponderant evidence, that his military status was at least a
4
motivating or substantial factor in the agency’s decision to select another
candidate for the positon at issue.” The administrative judge denied the
appellant’s request for corrective action under VEOA and dismissed his USERRA
claim. ID at 7.
ANALYSIS
The appellant’s VEOA appeal
¶7 On review, the appellant does not specifically challenge the administrative
judge’s decision denying him corrective action under VEOA. Petition for Review
(PFR ) File, Tab 1 at 3-5. We discern no error in that regard. The agency
advertised the position i n question by a vacancy announcement , which indicated
that it was open to the following classes of persons: “Current or Former
Employees with Competitive Status; Reinstatement Eligibles; OPM Interchange
Agreement Eligibles; VEOA, Disability, Surplus/Displa ced Eligibles.” IAF,
Tab 6 at 27. The appellant was found qualified for the position and his
application was referred to the hiring official under the Schedule A (30% disabled
veteran) hiring authority . Id. at 18, 22. Because the agency exercised its
discretion to fill the vacancy under the merit promotion process, the ranking and
selection rule s that apply to the competitive -examination process, including
veterans’ preference, do not apply. Joseph v. Federal Trade Commission ,
505 F.3d 1380 , 1382 (Fed. Cir. 2007); Perkins v. U.S. Postal Service ,
100 M.S.P.R. 48 , ¶ 9 (2005). Moreover, although a preference eligible is entitled
to have a broad range of experience considered by the agency in reviewing his or
her application for a position, how the agency adjudges and weig hs those
experiences is beyond the Board’s purview. See, e.g. , Asatov v. Agency for
International Development , 119 M.S.P.R. 692 , ¶ 7 (2013) (stating that the matter
at issue in a VEOA appeal is not whether a particular agency action is proper and
should be sustained), overruled on other grounds by Dean v. Department of
Labor , 122 M.S.P.R. 276, aff’d in part, rev’d in part , 808 F.3d 497 (Fed. Cir.
5
2015) . The appell ant has not established that his nonselection violated his rights
under a statute or regulation relating to veterans’ preference, 5 U.S.C.
§ 3330a (a)(1)(A), and, to the extent he claims that there were irregularities in the
selection process, such claims do not compel a contrary result.
¶8 Nor has the appellant shown that he was denied the right to compete under
that part of the VEOA stat ute. 5 U.S.C. §§ 3330a (A)(1)(B), 3304(f)(1). He
applied for the position, and his application was referred noncompetitively to the
hiring authority for consideration. Nothing more is required. Scharein v.
Department of the Army , 91 M.S.P.R. 329 , ¶¶ 9-10 (2002) (emphasizing that
VEOA does not guarantee a preference eligible a positon of employment ), aff’d ,
No. 02 -3270, 2008 WL 5753074 (Fed. Cir. Jan. 10, 2008). While the appellant
questions whether his application was actually forwarded to the hiring official,
PFR File, Tab 5 at 3, he has submitted no evidence in su pport of his claim, and
evidence submitted by the agency supports the administrative judge ’s contrary
finding , IAF, Tab 6 at 18, 22. Even though the appellant in this case was not
selected, we agree with the administrative judge that he was not denied the right
to compete under VEOA.4 Joseph , 505 F.3d at 1383 -84.
¶9 The appellant argues on review that he was d enied a hearing. PFR File,
Tab 1 at 3. He has not, however, shown error in the administrative judge ’s
4 The appella nt suggests on review that he has evidence that shows that the documents
submitted by the agency may have been altered or created after the start of the appeal.
He also states that he was, and is still, waiting for information to be verified that may
show that the agency has submitted false evidence. PFR File, Tab 5 at 3. However, he
has not submitted any additional evidence that is new and material, despite the fact that
the Acting Clerk of the Board granted him an extension of time in which to submit a
single supplement to the reply to the agency’s response to his petition for review. PFR
File, Tabs 6 -7. The emails the appellant submitted on review, PFR File, Tab 5 at 4 -5, 8,
are not new. Avansino v. U.S. Postal Service , 3 M.S.P.R. 211 , 214 (1980) (holding 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 reco rd was
closed despite the party’ s due diligence). Further, to the extent the appellant argues
that “the record [below] was abruptly closed without notice,” PFR File, Tab 1 at 4, his
claim is not borne out by an examination of the record , IAF, Tab 2 at 6 , Tab 3 at 7.
6
finding that none was required because there is no genuine dispute of material
fact in this VEOA appeal and one party, here, the agency, must prevail as a matter
of law. Davis v. Department of Defense , 105 M.S.P.R. 604 , ¶ 12 (2007); ID at 2
n.1.
The appellant’s USERRA appeal
¶10 To establish jurisdiction under 38 U.S.C. § 4311 (a), an appellant must
allege that: (1) he performed duty or has an obligation to perform duty in a
unformed service of the United States; (2) the agency denied h is initial
employment, reemployment, retention, promotion, or any benefit of employment;
and (3) the denial was due to the performance of duty or obligation to perform
duty in the unformed service. Williams v. Department of the Treasury ,
110 M.S.P.R. 191, ¶ 8 (2008 ). Despite language in the initial decision that
appears to suggest that the administrative judge adjudicated this claim on the
merits, he concluded that the Board lacks jurisdiction to address it and he
dismissed it. ID at 9. Although we acknowledge th at USERRA claims should be
broadly construed, Williams , 110 M.S.P.R. 191, ¶ 8, we nonetheless conclude that
the administrative ju dge’s jurisdictional finding regarding 38 U.S.C. § 4311 (a) is
correct.
¶11 The appellant’s claim of discrimination is based solely on the fact that his
relevant experience for the position in questi on was derived from his time in the
military, and he assumes that the hiring official would have been aware that this
was the case. IAF, Tab 4 at 8. Notwithstanding, the appellant’s bare assertion
that the hiring official did not select him for the posit ion due to his military
service does not rise to the level of a nonfrivolous allegation. Under the
circumstances, we agree with the administrative judge’s ultimate disposition
dismissing the appellant’s USERRA appeal under 38 U.S.C. § 4311 (a) for lack of
jurisdiction. Absent a nonfrivolous allegation of Board jurisdiction under
38 U.S.C. § 4311 (a) of the USERRA statute, the appellant was not entitled to a
7
hearing in connection with that provision. Downs v. Department of Veterans
Affairs , 110 M.S.P.R. 139, ¶¶ 17-18 (2008).
¶12 However, there is another provision of USERRA, section 4311(b), which
provides that an employer may not retaliate against an individual for pursuing or
assisting another individual in pursuing his USERRA rights. The appellant
argues on review th at, in connection with his USERRA appeal, he raised a claim
of retaliation below, PFR File, Tab 1 at 4 -5, alleging that, when he was under
consideration for the GS -15 position, he had a pending complaint with DOL
alleging a USERRA violation regarding his n onselection for a GS -14 position ,
IAF, Tab 1 at 7.
¶13 According to 38 U.S.C. § 4311 (b):
An employer may not discriminate in employment against or take
any adverse employment action against any person because such
person (1) has taken an action to enforce a protection afforde d any
person under this chapter, (2) has testified or otherwise made a
statement in or in connection with any proceeding under this chapter,
(3) has assisted or otherwise participa ted in an i nvestigation under
this chapter, or (4) has exercised a right provided for in this chapter.
38 U.S.C. § 4311 (b). If an appellant engages in one or more forms of the
protected activity described above, an agency violates section 4311(b) if the
appellant’s protected activity “is a motivating factor in the employer’s action,
unless the employer can prove that the acti on would have been taken in the
absence of such person’s [protected activity] .” 38 U.S.C. § 4311 (c)(2). In other
words, an agency violates section 4311(b) if it would not have taken the action
but for the appellant’s protected activity. Burroughs v. Department of the Army ,
120 M.S.P.R. 392, ¶ 7 (2013). To establish juris diction under section 4311(b), as
under section 4311(a), the appellant must raise nonfrivolous allegations in
support of his claim.
¶14 The Board has held that an administrative judge must inform an appellant of
the USERRA burdens and methods of proof in a U SERRA appeal. Haynes v.
U.S. Postal Service , 89 M.S.P.R. 9, ¶ 7 (2001). Although the appellant raised this
8
argument below, IAF, Tab 1 at 5, the administrative judge failed to issue an order
setting forth, first , the requirements for establishing jurisdiction, and , then , the
requirements for establishing a claim, under section 4311(b) of USERRA. To the
extent that the agency, in at tempting to challenge the appellant’s claim, addressed
the USERRA statute, its discussion was incomplete and did not serve to put the
appellant on notice of the statutory requirements. IAF, Tab 6 at 8; cf. Nichols v.
Department of the Interior , 69 M.S.P.R. 386, 388 -89 (1996) (holding that an
appeal need not be remanded to address a jurisdictional issue whe n an agency ’s
motion to dis miss provides the appellant with notice that was lacking in the
acknowledgment order). Because the appellant has not been afforded proper
notice, a remand is required. Haynes , 89 M.S.P.R. 9 , ¶¶ 7-8.
ORDER
¶15 For the reasons discussed above, we remand this case to the regional office
for further adjudication in accordance with this Remand Order. On remand, the
administrative judge shall inform the appellant of the burdens and elements of
proof in a USERRA retaliation claim brought under 38 U.S.C. § 4311(b). After
affording such notice, the administrative judge shall allow for further
development of the record. If he determines that the appellant has established
Board jurisdiction over this claim, the administrative judge shall convene a
hearing. Down s, 110 M.S.P.R. 139, ¶ 17. In his remand initial decision, the
administrative judge may adopt his prior findings concerning the ap pellant’s
VEOA appeal , his claim under section 4311(a) of USERRA , his claim of race
discrimination, and his whistleblower claim under the WPA .
FOR THE BOARD:
Washington, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board | STOGLIN_COREY_DEMOND_CH_3330_17_0105_I_1_REMAND_ORDER_1998677.pdf | 2023-02-01 | null | CH-3330 | NP |
3,657 | https://www.mspb.gov/decisions/nonprecedential/PATEL_JANAKKUMAR_T_DC_0432_17_0032_I_1_REMAND_ORDER_1998688.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
JANAKKUMAR T. PATEL,
Appellant,
v.
DEPARTMENT OF COMMER CE,
Agency.
DOCKET NUMBER
DC-0432 -17-0032 -I-1
DATE: February 1, 2023
THIS ORDER IS NONPRECEDENTIAL1
Janakkumar T. Patel , Nashville, Tennessee, pro se.
Taron Murakami , Alexandria, Virginia, 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 the agency’s action removing him for unacceptable performance
pursuant to 5 U.S.C. chapter 43. For the reasons set forth below, we GRANT the
petition for review. We AFF IRM the initial decision IN PART AS MODIFIED to
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c).
(1) supplement the administrative judge’s analysis to find that the agency
communicated its performance standards to the appellant , and (2) apply the
Board’s current standard for analyzing age and national origin discrimination
claims . We VACATE the initial decision IN PART and REMAND the appeal to
the regional office for further adjudication consistent with the U.S. Court of
Appeals for the Federal Circuit’s decision in Santos v. National Aeronautics &
Spac e Administration , 990 F.3d 1355 (Fed. Cir. 2021) .
BACKGROUND
¶2 The appellant was employed at the agency as a Patent Examiner
(Examiner), GS -11. I nitial Appeal File (IAF), Tab 4 at 45. This position requires
incumbents to examine assigned patent applications from first action to their final
disposition within an assigned period of time. IAF, Tab 15 at 13. The
performance plan for this position in cludes the following critical elements:
(1) quality; (2) production; and (3) docket management.2 IAF, Tab 5 at 21.
¶3 Within the quality element, the plan distinguishes between category 1,
category 2, and category 3 errors, based on the activities involve d. IAF, Tab 15
at 49 -51. As a GS -11 Examiner, to achieve a marginal rating in the quality
element, which is the minimum rating above unacceptable, the appellant was
required to have an error rate in category 1 and category 2 of 7.49% or less.3 Id.
at 54-55. The activities under which category 2 errors may be charged include,
among other tasks, “[m]aking proper rejections under 35 U.S.C. §§ 102 and 103
with supporting rationale, or determining ho w claim(s) distinguish over the prior
[issued patents].” Id. at 50. The plan provides that if an examiner disagrees with
the determination that he has committed an error, he has the opportunity to rebut
2 The performance plan also includes stakeholder interaction, which is a noncritical
element. IAF, Tab 5 at 21.
3 Category 3 errors only apply to certain work of GS -14 and GS -15 Examiners and thus
were not applicable to the appellant. IAF, Tab 15 at 50 -51.
it or, if the issue remains unresolved, make a pres entation regarding the issue to a
director. Id. at 49.
¶4 On October 6, 2014, the agency orally warned the appellant that his
performance was unacceptable in the Quality (Category 2) critical element. IAF,
Tab 5 at 69. Subsequently, the agency issued the a ppellant a letter confirming the
oral warning. Id. at 69 -74. The agency informed him that, during the fourth
quarter of fiscal year 2014, 5 of the 39 applications that he submitted contained
category 2 errors, which was an unacceptable error rate of 12.8 2%. Id. at 69. It
stated that the seven bi -week period between October 1, 2014 and January 10,
2015, would serve as an evaluation period during which he must achieve the
marginal level of performance. Id. at 73 -74. During the evaluation period, he
was required to achieve at least the marginal level of performance, meaning that
his error rate could not exceed 7.49% for category 2 errors. Id. at 74. The letter
further stated that this period would be ext ended one bi -week for every 80 hours
of approved absence. Id. As the appellant had taken 113 hours of leave, the
improvement period was extended to January 24, 2015. IAF, Tab 6 at 6.
¶5 On March 19, 2015, the agency warned the appellant in writing of his
unacceptable performance. Id. at 103 -08. It stated that, during the oral warning
evaluation period, 7 of the 55 actions he submitted contained a category 2 error,
for an unacceptable error rate of 12.73%. Id. at 103. Thus, the agency placed the
appellan t under a “written warning of unacceptable performance” beginning on
March 22, 2015, and ending on June 27, 2015, to be extended one bi -week for
every 80 hours of approved leave. Id. at 108. The period was extended until
July 11, 2015. IAF, Tab 7 at 6. Six of the 47 actions that the appellant prepared
during this period contained category 2 errors. IAF, Tab 14 at 60 -64. Thus, his
error rating during the period was 12.77%, which was greater than the maximum
allowable error rate of 7.49%.4 IAF, Tab 5 a t 5-13. The appellant chose not to
rebut any of the errors charged during the written warning period. IAF, Tab 14
at 68.
¶6 On October 23, 2015, the agency proposed the appellant’s removal for
unacceptable performance in the Quality critical element on the basis of his
12.77% category 2 error rate during the written warning period. IAF, Tab 5
at 5-13. The agency explained that all of these errors involved his responsibility
to “formulat[e] rejections under 35 U.S.C. §§ 102 and 103 with supporting
rationale, or [determine] how claim(s) distinguish over the prior [issued patents].”
Id. at 6 -11. He responded orally and in writing. IAF, Tab 4 at 52 -109. The
agency imposed the removal, effective Marc h 25, 2016. Id. at 47 -50.
¶7 The appellant filed the instant appeal challenging his removal and requested
a hearing.5 IAF, Tab 1. After conducting the appellant’s requested hearing, the
administrative judge issued an initial decision sustaining the removal . IAF,
Tab 28, Initial Decision (ID). Specifically, he sustained the agency’s charge and
found that the appellant did not prove his affirmative defense of discrimination on
the bases of race, national origin , or age. ID at 3 -9.
¶8 The appellant has filed a petition for review and the agency has responded
in opposition to his petition. Petition for Review (PFR) File, Tabs 1, 4.
DISCUSSION OF ARGUME NTS ON REVIEW
¶9 At the time the initial decision was issued, the Board’s case law stated that,
in an appeal of a performance -based removal under chapter 43, the agency must
4 The agency originally included 8 errors out of 49 actions, which included 2 errors
from cases that the appell ant had begun to process prior to the warning period, but it
later corrected the total actions to 47. IAF, Tab 14 at 60 -61, 69 -70.
5 The agency issued a final decision on the appellant’s equal employment opportunity
complaint on September 15, 2016. IAF, Tab 1 at 12 -24.
establish the foll owing by substantial evidence:6 (1) the Office of Personnel
Management (OPM) approved its performance appraisal system and any
significant changes thereto; (2) the agency com municated to the appellant the
performance standards and critical elements of h is position; (3) the appellant’s
performance standards were valid under 5 U.S.C. § 4302 (b)(1);7 (4) the agency
warned the appellant of the inadequacies of h is performance during the appraisal
period and gave h im a reasonable opportunity to demonstrate acceptable
performance; and (5) the appellant’s performance remained unacceptable in one
or more of the critical elements for which he was provided an opportunity to
demonstrate acceptable performance. Lee v. Environmental Protection Agency ,
115 M.S.P.R. 533 , ¶ 5 (2010) .
¶10 Here, the administrative judge found that OPM approved the agency’s
appraisal system, the performance standards at issue are valid under 5 U.S.C.
§ 4302 (b)(1), the agency warned the appellant about his inadequate performance
and gave him a reasonable opportunity to demonstrate acceptable performance,
and his performance remained unacceptable in the Quality critical element.
ID at 3-9; IAF, Tab 5 at 26-39, Tab 15 at 115. The appellant does not challenge
the administrative judge’s findings regarding OPM’s approval and the validity of
the standards under 5 U.S.C. § 4302 (b)(1), and we find no reason to distu rb them.
PFR File, Tab 1. Further, although the administrative judge did not make a
finding that the appellant received notice of his performance standards, the record
reflects that the appellant acknowledged discussing his position and receiving his
performance standards in October 2013 and October 2014. IAF, Tab 5 at 16, 45.
6 Substantial evidence is the “degree of relevant evidence that a reasonable person,
considering the record as a whole, might accep t as adequate to support a conclusion,
even though other reasonable persons might disagree.” 5 C.F.R. § 1201.4 (p).
7 As a result of the enactment of the National Defense Authorization Act for Fiscal Year
2018, Pub. L. No. 115 -91, § 1097(d)( 1), 131 Stat. 1283, 16 19 (2017), the criteria that
were set forth in 5 U.S.C. § 4302 (b)(1) at the time the initial decision was issued now
appear in 5 U.S.C. § 4302(c)(1).
Accordingly, we modify the initial decision to find that the agency notified the
appellant of his performance standards.
¶11 Thus, the only remaining issues concerning the agency’s burden of proof
based on the Board’s case law at the time the initial decisi on was issued are
(1) whether the agency warned the appellant about his performance and gave him
a reasonable opportunity to improve and (2) whether his performance remained
unacce ptable in at least one critical element. As discussed below, we find that the
agency met its burden regarding these issues.
The agency warned the appellant about his performance and gave him a
reasonable opportunity to improve.
¶12 The administrative judge fo und that the agency proved by substantial
evidence that it warned the appellant about his performance and provided him
with a reasonable opportunity to improve. ID at 4 -6. He noted that the agency
provided the appellant with an oral and written warning a nd that, during the
written warning period, the appellant’s first -line supervisor met with him once
per week. Id. The appellant argues that the agency did not provide him a
sufficient and proper opportunity to improve and instead attempted to undermine
him by collecting information during weekly meetings and returning cases
multiple times. PFR File, Tab 1 at 4 -5.
¶13 The employee’s right to a reasonable opportunity to improve is a
substantive right and a necessary prerequisite to all chapter 43 actions. Towne v.
Department of the Air Force , 120 M.S.P.R. 239 , ¶ 8 (2013). In determining
whether the agency has afforded the appellant a reasonable opportunity to
demonstrate acceptable performance, relevant factors include the nature of the
duties and responsibilities of the appellant’s position, the performance
deficiencies involved, and the amount of time which is sufficient to enable th e
employee to demonstrate acceptable performance. Id.
¶14 The appellant was expected to draft actions that were free from errors in
matters such as how a claim was distinguishable from prior issued patents . IAF,
Tab 15 at 50-51, 54 -55. However, he exceede d this error rat e. IAF, Tab 5
at 5-13. The agency’s expectation over this aspect was not unreasonable.
Further, the agency provided the appellant a sufficient time period to improve by
issuing an oral warning to him in October 2014 but not proposing his removal
until October 2015, after providing him with two improvement periods of over
seven bi -weeks. IAF, Tab 5 at 5 -13, 69 -74, Tab 6 at 6, 103 -08, Tab 7 at 6; see
Lee, 115 M.S.P.R. 533, ¶ 33 (finding that a perfo rmance improvement period of
60 days was sufficient).
¶15 The appellant asserts that his first -line supervisor used the weekly meetings
to collect evidence to support his removal. P FR File, Tab 1 at 4. He also asserts
that his first -line supervisor returned cases to him multiple times in an untimely
manner and asked him to make changes without proper directions or guidance,
with the goal of hindering his production. Id. at 4 -5. In finding that the agency
provided the appellant with the proper opportunity to improve, the administrative
judge credited the testimony of the appellant’s first -line supervisor that, during
the second improvement period, he met with the appellant at least once per week
to discuss errors and how to correct them. ID at 5 -6; Hearing Transcript (HT) at
73 (testimony of the appellant’s first -line supervisor); IAF, Tab 14 at 73 -189.
The administrative judge also credited the first -line supervisor’s testimony th at he
returned the appellant’s work, sometimes on multiple occasions, because of
continued problems with the work product. ID at 8; HT at 73 -74 (testimony of
the appellant’s first -line supervisor). The appellant’s arguments do not provide a
reason to dis turb the administrative judge’s finding, which is implicitly based
upon the demeanor of the appellant’s first -line supervisor during the hearing.8
8 The appellant argues that his group director denied him a transfer request and did not
offer him a last -chance agreement prior to removing him . PFR Fil e, Tab 1 at 5; IAF,
Tab 17 at 5 -9. He has not stated any basis for his entitlement to a transfer or a last -
chance agreement and thus this argument does not provide a reason for disturbing the
initial decision. See Broughton v. Department of Health & Human Services ,
33 M.S.P.R. 357 , 359 (1987) (finding no reason to disturb the administrative judge’s
See Purifoy v. Department of Veterans Affairs , 838 F.3d 1367 , 1373 (Fed. Cir.
2016) (finding that the Board must defer to an administrative judge’s findings
when they are implicitly based upon the demeanor of witnesses who testified at
the hearing).
The appellant’s performance remained unacceptable in the Quality element.
¶16 The administrative judge found that the agency proved by substantial
evidence that the appellant’s performance remained unacceptable in the Quality
element. ID at 6 -9. Specifically, he found that the appellant’s first -line
supervisor provided him with notice and explained each charged error as it
occurred as well as 14 days to submit a response to the error but that the appellant
did not respond. ID at 6 -7; IAF, Tab 7 at 43 -134, Tabs 8-13, Tab 14 at 1-70.
¶17 The appellant argues that, although there had been no issue with his
performance when he was a GS -7 and GS -9 Examiner, after he was promoted to a
GS-11 Examiner with the accompanying more complicated work, his first -line
supervisor did not provide proper guidance. PFR File, Tab 1 at 4 -5. The
appellant’s fist -line supervisor testified that he had expressed concerns about
promoting the appellant to the GS -11 level because of the quality of his work and
his inability to handle the mo re complicated duties of a GS -11 Examiner. HT
at 51 (testimony of the appellant’s first -line supervisor). Additionally, in contrast
to a GS -7 or GS -9 Examiner, the agency expects a GS -11 Examiner to work
independently and to submit many actions in final form. HT at 25 -26 (testimony
of the appellant’s first -line supervisor) , at 194 -95 (testimony of the deciding
official); compare IAF, Tab 15 at 41 -42, with id . at 43-44. Thus, the appellant’s
arguments that his performance at the lower grades had been acceptable or that
his first -line supervisor should have provided him more guidance are not
findings when he considered the evidence as a whole, drew appropriate inferences, and
made reasoned conclusions).
persuasive because, as opposed to his prior position, the GS -11 position required
him to perform additional duties and to do so more independently than before.
¶18 The appellant also challenges the method by which his first -line supervisor
and the agency reviewed his work. PFR File, Tab 1 at 4 -5. For instance, he
states that the agency erred in its determination that four cases included clear
errors, that his first -line supervisor found clear errors without explaining how his
interpretation was incorrect or why the references he used in the cases were
unreasonable, and that his fi rst-line supervisor returned some of his work to him
eight times. Id.; IAF, Tab 23 at 15 -19, 46 -47.
¶19 These arguments are not persuasive. The administrative judge credited the
testimony of the appellant’s first -line supervisor that he spent significant t ime
with the appellant explaining the errors in his cases and that any returned work
was due to persistent issues with the cases. ID at 8; HT at 73 -75 (testimony of
the appellant’s first -line supervisor). The appellant’s argument that his
performance was acceptable is belied by the fact that he did not challenge the
errors at the time. IAF, Tab 14 at 68. Additionally, the agency’s quality
assurance reviewer agreed with the appellant’s first -line supervisor that the cases
contained clear errors. Id. at 60.
¶20 Further, because the administrative judge’s finding that the appellant’s
performance remained unacceptable is implicitly based upon the credible
demeanor of his first -line supervisor at the hearing, the finding is entitled to
deference. See Purifoy , 838 F.3d at 1373. We find that the appellant’s
challenges do not provide a basis for disturbing that finding because they
constitute mere disagreement with the initial decision and are not supported by
the record. See Crosby v. U.S. Postal Service , 74 M.S.P.R. 98 , 106 (1997)
(finding no reason to d isturb the administrative judge’ s findings when she
considered the evidence as a whol e, drew appropriate inferences, and made
reasoned conclusions on issues of credibility ). Therefore, we agree with the
administrative judge that the appellant’s performance remained unacceptable in
the Quality element, despite the efforts of the agency.
The appellant did not prove age or national origin discrimination.
¶21 Finally , the appellant reasserts that the agency discriminated against him on
the bases of age and national origin.9 PFR File, Tab 1 at 5; IAF, Tab 23 at 43 -45.
Below, he asserted that he d id not believe that other employees in his unit who
were younger and of a different national origin had to wait for over 2 weeks to
have their cases reviewed, had their work returned to them as often as he did, or
received notification of errors in bulk em ails. IAF, Tab 23 at 44 -45. The
administrative judge found that the appellant’s nonspecific allegations without
supporting evidence were insufficient to support his discrimination claims. ID
at 9. He also found that the appellant had failed to present any evidence to show
that “the agency’s action was motivated by discrimination.” Id. On review, the
appellant asserts that y ounger examiners of a different national origin were
“probably ” not subject to the same high number of returns and vague guidance
addressing how to correct office actions . PFR File, Tab 1 at 5.
¶22 If a performance -based removal action under chapter 43 is supported by
substantial evidence, the Board will sustain the action unless the appellant shows
the following by a preponderance of the evidence: (1) the agency committed
harmful procedural error in reaching its decision; (2) the decision was based on a
prohibited personnel practice; or (3) the decision was not in accordance with
law.10 5 U.S.C. §§ 2302 (b), 7701(c); Lee, 115 M.S.P.R. 533, ¶ 6; 5 C.F.R.
§ 1201.56 (b)(2)(i)(C). The Age Discrimination in Employment Act states that
“personnel actions . . . shall be made free from any discrimination based on age.”
9 The appellant does not discernably challenge the administ rative judge’s conclusion
that he failed to prove his claim of discrimination on the basis of his race. ID at 9.
10 A preponderance of the evidence is the degree of relevant evidence tha t 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).
29 U.S.C. § 633a (a). Similarly, Title VII requires that such actions “shall be
made free from any discrimination based on race, color, religion, sex, or national
origin.” 42 U.S.C. § 2000e -16(a) . Thus, an appellant may prove a claim of
discrimination by showing that such discrimination “play[ed] any part” in the way
a decision was made. Babb v. Wilkie , 140 S. Ct. 1168 , 1173 -74 (2020); Pridgen
v. Office of Management & Budget , 2022 MSPB 31, ¶ 21. A finding that
prohibited discrimination played “any part” in the contested action is the same as
a finding of “motivating factor.” Pridgen , 2022 MSPB 31, ¶ 21. Although an
appellant who proves motivating factor and nothing more may be entitled to
injunctive or other forward -looking relief, to obtain the full measure of rel ief
available under the statute, including status quo ante relief, compensatory
damages, or other forms of relief related to the end result of an employment
decision, the appellant must show that discrimination was a but -for cause of the
employment outcome . Id., ¶ 22. One may prove discrimination under these
different standards of proof by various methods, including comparator evidence.
Id., ¶¶ 23-24.
¶23 We find that the appellant’s speculative allegations do not support a finding
that his age and/or nation al origin were motivating factors in his removal. ID
at 9; see Lee , 115 M.S.P.R. 533, ¶ 43 (finding the appellant failed to prove that
his removal for unacceptable performance constituted national origin
discrimination based on a remark of his second -level supervisor and his vague
testimony that five predecessors in his position , who were of a different national
origin, were not required t o perform the same types of assignments he was
required to perform ). Accordingly, we agree that the appellant has not proven his
discrimination claims.11
11 The appellant asserts that the group director and the deciding official did not judge
his case independently. PFR File, Tab 1 at 5. To the extent that he is arguing that the
agency violated his right to due process because the deciding official did not properly
consider his case, we disagree. F undamental due process requires that the tenured
public employee have “oral or written notice of the charges against him, an explanation
Remand is required in light of Santos .
¶24 Although the administrative judge correctly cited the Board’s precedent
setting forth the relevant legal standard for chapter 43 actions at the time he
issued his initial decision, s ubsequent to the initial decision, the Federal Circuit
held for the first time that , to support such an action, an agency “must justify
institution ” of a performance evaluation period by showing that the employee’s
performance was unacceptable prior to the same . 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 during the appraisal
period prior to the performance evaluation period 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 took place. Id., ¶ 16. Although
the agency here introduced evidence show ing that it orally warned the appellant
of inadequacies with his performance prior to the issuance of the written warning
of unacceptable performance that triggered the evaluation period , IAF, Tab 5
at 69-74, the parties nonetheless did not have an opportunity before the
administrative judge to address the modified legal standard set forth in Santos .
We t herefore remand this case for further adjudication of the appellant’s removal.
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
of the employer’ s evidence, and an opportunity to present his side of the st ory.”
Cleveland Board of Education v. Loudermill , 470 U.S. 532 , 546 (1985) . Here, the
agency proposed the appellant’s removal, provided him wit h detailed information
supporting the proposal, and allowed him the opportunity to respond before imposing
the removal. IAF, Tab 4 at 47 -50, 52 -109, Tab 5 at 5 -13. The deciding official cited
the appellant’s oral and written responses specifically in the decision. IAF, Tab 4
at 47-48. Thus, we find that the agency provided him the proper process before
imposing his removal. See Lee v. Department of Labor , 110 M.S.P.R. 355 , ¶ 9 (2008)
(finding that the agency provided the appellant with due process when it gave her notice
of the reasons underlying the charge of unacceptable performance under 5 U.S.C.
chapter 43 and an opportunity to re spond to those reasons).
the appellant’s chapter 43 appeal because the parties were not informed of the
modified standard set forth in Santos ).
¶25 On remand, the administrative judge shall accept evidence and argument on
whether the agency proved by substantial evidence that the appellant’s
performance prior to the evaluation period was unacceptable. The administrative
judge shall hold a supplementa l 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
administrative judge may incorporate h is prior findings on other elements 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 prior performance affects the administrative judge’s analysis o f the
appellant’s affirmative defenses, he should address such argument or evidence in
his remand initial decision. See Spithaler v. Office of Personnel Management ,
1 M.S.P.R. 587 , 589 (1980) (explaining that an initial decision must identify all
material issues of fact and law, summarize the evidence, resolve issues of
credibility, and include the administrative judge’s conclusions of law a nd his
legal reasoning, as well as the authorities on which that reasoning rests ).
ORDER
¶26 For the reasons discussed above, we grant the appellant’s petition for
review, affirm the initial decision in part as modified to (1) find that the agency
communicated its performance standards to the appellant , and (2) clarify the legal
standard applicable to the appellant’s discrimination -based affirmative defenses .
We vacate the initial decision in part and remand this case to the regional office
for further adju dication consistent with Santos .
FOR THE BOARD:
Washington, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board | PATEL_JANAKKUMAR_T_DC_0432_17_0032_I_1_REMAND_ORDER_1998688.pdf | 2023-02-01 | null | DC-0432 | NP |
3,658 | https://www.mspb.gov/decisions/nonprecedential/LARABEE_ROBERT_B_DE_1221_19_0059_W_2_FINAL_ORDER_REDACTED_2014841.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
ROBERT B. LARABEE,
Appellant,
v.
DEPARTMENT OF HOMELA ND
SECURITY,
Agency.
DOCKET NUMBER
DE-1221 -19-0059 -W-2
DATE: February 1, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL1
David J. Holdsworth , Esquire, Sandy, Utah, for the appellant.
Sandra K. Whittington , Esquire, Irving, Texas, for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon , Member
Tristan L. Leavitt , Member
Member Leavitt recused 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
denied his request for corrective action in this individual right of action (IRA)
1 A nonprecedential order is one that the Board has d etermined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisi ons. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c).
2
appeal. For the reasons discussed below, we GRANT the appellant’s petition for
review , REVERSE the initial decision IN PART, and GRANT the appellant’s
request for corrective action with respect to his 3 -day suspension . We AFFIRM
the initial decision insofar as it denied corrective action with respect to the
appellant’s receipt on July 26, 2018 , of a No Contact Order (NCO) .
BACKGROUND
¶2 The appellant has been employed by the agency as a Transportation
Security Manager (TSM) at the Salt Lake City, Utah International A irport since
2007 . MSPB Docket No. DE -1221 -19-0059 -W-2 (W-2 AF) , Tab 33 , Initial
Decision (ID) at 3.2 As a TSM, the appellant oversees the Supervisory
Transportation Security Officers (STSOs). Id. During the relevant time, the
appellant was supervised in March 2018 by Lead TSM M.C. and beginning in
April 2018 by Lead TSM C.D .3 Id. Above the Lead TSMs are Assistant Federal
Secu rity Directors (AFSDs), who are supervised by the Deputy Federal Security
Director , up to the Federal Security Director (FSD). Id.
The Appellant’s Protected Disclosures
¶3 In March 2018, several STSOs informed the appellant that they believed
another TSM, TSM Doe ,4 had b een violating standard operating procedures
(SOPs) related to passeng er screenings at security checkpoints. ID at 4. In
response, the appellant disclosed the alleged SOP violations to Lead TSM M.C. ,
approximately the second week of March 2018, who relayed the concerns to Lead
2 The appellant’s appeal was dismissed without prejudice at his request to allow him to
exhaust an additional personnel action before the Office of Special Counsel and
thereafter litigate his claims together before the Board. MSPB Docket No. DE -1221 -
19-0059 -W-1, Initial Appeal File (IAF), Tabs 22 -23.
3 This change in supervision occurred as a result of Lead TSM M.C. being promoted to
an Assistant Federal Security Director position. ID at 3.
4 The administrative judge referred to this individual as Ja ne Doe instead of her real
name to avoid “the gossip that caused problems for the agency and appellant.” ID at 3
n.4.
3
TSM C.D.5 Id. In March or April 2018, the ap pellant also disclosed TSM Doe’s
alleged SO P violations to A FSD R.S. ID at 5. On March 27, 2018, one of the
STSOs also emailed the FSD on behalf of himself and several other STSOs to
inform the FSD of the alleged SOP violations by TSM Doe. ID at 5 ; W-2 AF,
Tab 12 at 111 . In response, the FSD tasked AFSD R.S. to “look into” the alleged
SOP violations. ID at 6. AFSD R.S. conducted “soft conversation s” with the
STSOs and TS M Doe and o n April 16, 2018, AFSD R.S. emailed the FSD his
findings that TSM Doe was switching lanes between Standard , Pre-Check , or
Canine -enhanced screening (CES) without adjusting the proper settings for the
Unpredictable Screening Process or notifying the STSOs, but that accor ding to
TSM Doe, the Leads or Desk Officer always confir med the switch. Id.; W-2 AF,
Tab 12 at 64 -66. AFS D R.S.’s conversations with the STSOs also revealed that
TSM Doe had poor relationships and communication issues with the STSOs . W-2
AF, Tab 12 at 64-66.
TSM Doe’ s Promotion and the Agency’s Investigation into the Appellant’s
June 14, 2018 complaint regarding TSM Doe
¶4 In April 2018, the agency posted a vacancy announcement for a Lead TSM
position, to which the appellant, TS M Doe, and another TSM, TSM K.D. , among
others, applied. ID at 6. TSM Doe and TSM K .D. were interviewed for the
position, but the appellant was not. Id. Sometime after May 16, 2018, the
appellant had a private conversation in th e manager’s office with TSM K.D. at the
beginning of their work shift, during which they discussed the appell ant’s
frustration with TSM Doe either being interviewed or selected for the Lead TSM
position.6 Id. During their conversation, the appellant referenced that TSM Doe
had previously been arrested for driving under the influence (DUI) and that
5 It is unclear whether Lead TSM C.D. learned at the time that the allegations came
from the STSOs or the appellant. ID at 4.
6 It is un clear from the record whether this conversation took place prior to TSM Doe
being selected for the position or not.
4
several officers had seen a picture of TSM Doe’s “chest, ” which had circulated
among the officers on the floor. Id. According to the appellant , he “commented
on how strange it seem[ed] that someone who has been arrested at work twice and
has circulated i nappropriate photos of herself throughout the workplace and who
has continual violations of the SOPs has continued to be promoted.” W-2 AF,
Tab 14 at 57. TSM K.D. summarized their conversation as follows:
[The appellant] was v enting to me about the situa tion specifically not
getting an interview for the Lead manager position and the fact that
[TSM Doe] got the position. [The appellant] had mentioned her
history of DUI and the photo for [sic] her chest. [The appellant]
brought up the allegations recently reported by the supervisors at
checkpoint 1. [The appellant] mentioned that [TSM Doe] had been
arrest [sic] for a DUI and that several officers on the floor h ad seen a
picture of her chest.
Id. at 82. On May 24, 2018, TSM Doe was selected for the Lead TSM position.
ID at 7. On June 13, 2018, the appellant met with the FSD regarding his concerns
with TSM Doe being selected for the Lead TSM position. Id. On June 14, 2018,
the appellant followed up via an email to the FSD in which he informed th e FSD
he intended to file a discrimination complaint and raised various concerns
regarding his nonselection for an interview and TSM Doe’s selection for the
position , including the following: (1) AFSD R.S.’s inquiry into TSM Doe’s
alleged SOP violations was inadequate ; (2) the interview process was unfair,
possibly discriminatory, and the agency improperly favored TSM Doe; (3) the
appellant was troubled by TSM Doe’s promotion because she had violated the
SOPs, sh e was previously arrested at work twice for a DUI and for failure to pay
traffic tickets and received only letter s of reprimand for each incident, even
though progressive discipline should have been taken , and TSM Doe was rumored
to have emailed a picture of her breasts to many on the screening workforce on
multiple occasions, and although the appellant had not seen the photos, many
officers and sup ervisors had told him about them. W-2 AF, Tab 12 at 26 -34. The
appellant requested an independent investigat ion into his allegations. Id. at 33.
5
¶5 On June 15, 2018, the FSD appointed S.T., a Deputy FSD from outside of
the state of Utah , to conduct an investigation into the appellant’ s concerns. Id.
at 21. Such concerns were characterized for purposes of the investigation as “Did
TSA Screening Leade rship discriminate against [the appellant] based on his age,
Standard Operating Procedures (SOP) violations, religion, and work experience. ”
Id. at 15. Investigator S.T. interviewed numerous employees and on July 25,
2018 , he issued a report concluding the following: (1) the appellant was not
discriminated against based on his identified protected classes when he was not
interviewed for the Lead TSM position; (2) TSM Doe was provided with Official
TSA interview qu estions approximately 2 years ago, but there was no evidence
that she received an unfair advantage in the interview process for the May 2018
Lead TSM vacancy; (3) on multiple occasions, TSM Doe acted in an
inappropriate manner which would be in violation o f the TSA’s Employee
Responsibilities and Code of Conduct; and (4) the agency’s prior investigation
regarding the alleged SOP violations by TSM Doe was inadequate and failed to
gather the necessary evidence.7 Id. at 17-18. The report recom mended the
following: (1) R equire TSM Doe to review TSA MD 1100.73 -5, Handbook
Employee Responsibilities and Code of Conduct, Sections I and M; (2) Issue
TSM Doe a letter of counseling on her inappropriate comments and conduct;
(3) assign remedial training to TSM Doe th at focuses on interpersonal
communications, stress management, team building, and how to provide
constructive feedback; and (4) if another allegation of misconduct is reported
concerning TSM Doe , ensure thorough fact -finding is completed ; if the allegation
is validated , take immediate disciplinary action. Id. at 18.
7 The investigation did not address the appellant’s concerns regarding TSM Doe’s prior
DUI and photograph.
6
TSM Doe’s Complaint Against the Appellant and the Agency’s Investigation
¶6 On or before July 13, 2018, TSM Doe8 informed AFSD C.V. that she felt
uncomfortable working with the appellant. ID at 8 . On July 13, 2018, AFSD
C.V. and TSM Doe met with the FSD to discuss TSM Doe’s concerns regarding
the appellant, which included that since her promotion to Lead TSM, her
conversations with the appellant had become heated and felt potentially
aggressive t o her. ID at 9. During this conversation the FSD informed TSM Doe
“about the allegations [he] was made aware of regarding a photo some employees
may possess or may have seen that showed her exposed breasts.” Id. On July 19,
2018, TSM Doe filed a writte n complaint titled “Sexual Harassment / Hostile
Work Environment .” Id.; W-2 AF, Tab 11 at 16 -17. In her complaint, TSM Doe
reported that the appellant was speaking to staff about her DUI and claiming to
have seen a photograph of her breasts, she was not comfortable being in the same
room as him, and she feared wh at his next actio ns would be. W -2 AF, Tab 11
at 16-17. On Ju ly 26, 2018, Deputy FSD G.G. appointed D.S., an Assistant FSD
of Inspections at the Salt Lake City airport to conduct an investigation into TSM
Doe’s allegations. Id. at 13. Investigator D.S. conducted interviews of numerous
employe es and concluded the following regarding the photograph : (1) the
evidence did not support a finding that the appellant had seen or possessed a
photograph o f TSM Doe’s breasts or was telling other employees he had seen
such a photograph; (2) the appellant had been told about the photograph by other
Transportation Security Officers ( TSOs ) and STSOs; (3) the appellant told TSM
K.D. about the photograph of TSM Doe’s “chest”; and (4) many employees were
aware of the photo graph and there was no evidence that they had made any efforts
to stop the discussion or dissemination of the photograph.9 Id. at 8 -11.
8 Although at this point TSM Doe had been promoted to Lead TSM as of May 24, 2018,
for consistency we refer to her as TSM Doe throughout this decision.
9 Employees do not appear to have been specifically asked if they reported the
photograph at the time of the incident many years ago or at any point thereafter. W -2
7
Investigator D.S. concluded the foll owing regarding TSM Doe’s DUI: (1) the
DUI and arrest of TSM Doe were common k nowledge among TSA employees and
TSM D oe talked openly about her DUI ; (2) t he appellant was involved in one
documented conversation about the DUI ; and (3) there was no evidence th at the
appellant or many other employees attempted to quash rumors about TMS Doe’s
DUI. Id. at 10 -11. Investigator D.S. also concluded that no employees admitted
to being asked or persuaded by the appellant to make disparaging comments about
TSM Doe. Id. at 10. Investigator D.S. ’s report did not make any
recommendations. Id. at 12 .
The Appellant’s Discipline
¶7 On July 26, 2018, the same day that Investigator D.S. was appointed to
investigate TSM Doe’s allegations of harassment by the appellant , AFSD C.V.
issued the appellant a n NCO which informed him that an allegation had been
made concerning his conduct towards TSM Doe and instructed him to
immediately cease and desist from any verbal or physical offensive or unwanted
conduct as well as directed the app ellant not to have any contact with TSM Doe
or other o fficers until further notice. ID at 9-10; W -2 AF, Tab 11 at 19 -20.
AFSD C.V. also informed the appellant that , as a result of the NCO , he would be
transferred to the Regulatory group. ID at 10. Following Investigator D.S. ’s
August 30, 2018 report of investigation into TSM Doe’s harassment complaint ,
on November 30, 2018, Lead TSM C.D. issued the appellant a notice of proposed
3-day suspension based on two charges: (1) Discourteous Conduct ; and
(2) Inappropri ate Comments of a Sexual Nature. W-2 AF, Tab 14 at 61 -67. Both
charges were based on the appellant’s pr ivate conversation with TSM K.D. on or
about May 16, 2018 , during which he expressed his displeasure that TSM Doe
had been selected for an int erview or for the position and mentioned her prior
AF, Tab 11 at 31 -136. According to the appellant he did report the photograph up the
chain of command in the past. Id. at 83.
8
DUI and the photograph of TSM Doe’s chest. Id. at 61. After affording the
appell ant an opportunity to respond, id. at 57-59, on December 17, 2018 ,
AFSD R.S. issued a decision sustaining both charges and suspending the
appe llant for 3 days, id. at 47 -55.
Procedural H istory
¶8 The appellant filed a Board appeal alleging that the agency’s decision to
issue him the July 26, 2018 NCO and suspend him for 3 days consti tuted reprisal
for his prior protected disclosures.10 W-2 AF, Tab 1. After holding the
appellant’s requested hearing, the administrative judge issued an initial decision
denying the appellant’s r equest for corrective action. ID at 1. The administrative
judge found that the appellant met his burden of proving that he made protected
disclosures concerning TSM Doe’s alleged SOP violations between March and
June 2018, and that such protected disclosures were a contributing factor in the
agency’s July 26, 201 8 issuance of the NCO and December 17, 2018 decision to
suspend him for 3 days. ID at 12 -18. However, the administrative judge found
that the agency proved by clear and convincing evidence that it would have issued
the NCO and the 3 -day suspension absent the appellant’s protected disclosures.
ID at 19 -28.
¶9 The appellant has filed a petition for review in which he disputes in detail
the findings in the initial decision, which largely amount s to a challenge to the
administrative judge’s clear and convincing analysis.11 Petition for Review (PFR)
10 Although the appellant initially alleged that the agency’s decision to reassign him as
a result of the NCO also constituted whistleblower reprisal, a claim over which the
administrative judge found jurisdiction, the appellant subsequently clarified that he was
only challenging the agency’s NCO and 3 -day suspension. ID at 2 n.1.
11 With his petition, the appellant has submitted various additional documents, many of
which are part of the record below. PFR File, Tab 1 at 19 -43; W -2 AF, Tab 8 at 60 -66,
Tab 22 at 10 -14, Tab 14 at 86 -89. However, to the extent such documents are not part
of the record bel ow, we have not considered them because the appellant has not asserted
or shown that such documents are based on new or material information not previously
9
File, Tab 1. The agency has opposed the appellant’s petition , and the appellant
has fil ed a reply. PFR File, Tabs 4 -5.
DISCUSSION OF ARGUME NTS ON REVIEW
¶10 To obtain corrective action in an IRA appeal, the appellant must meet his
initial burden of establishing by preponderant evidence that his protected
disclosure was a contributing factor in the personnel actions in dispute. 5 U.S.C.
§ 1221 (e)(1); Elder v. Department of the Air Force , 124 M.S.P.R. 12 , ¶ 39
(2016). Here, the administrative judge found that the appellant met his burden by
proving by preponderant evidence that his prote cted disclosures concerning
TSM Doe’s alleged SOP violations were a contributing factor in the agency’s
decision to issue him the NCO and suspend him f or 3 days.12 ID at 12-18. Thus,
the burden then shifted to the agency to establish by clear and convincing
eviden ce that it would have taken those same personnel actions absent the
available, despite his due diligence, when the record closed. See Banks v. Department
of the Air Force , 4 M.S.P.R. 268 , 271 (1980); 5 C.F.R. § 1201.115 (d).
12 On review, the app ellant questions why the administrative judge did not consider his
additional reports of misconduct by TSM Doe as protected disclosures. PFR File, Tab 1
at 4, 7. The appellant also requests that the Board review whether the administrative
judge properly denied his request for reconsideration of the jurisdictional rulings , but
does not explain how such a request established error in the administrative judge’s
findings. Id. at 17-18. To the extent the appellant is challenging the administrative
judge’s ju risdictional rulings, we find that his conclusory assertions on review fail to
establish error in the administrative judge’s findings. See, e.g. , Mulroy v. Office of
Personnel Management , 92 M.S.P.R. 404 , ¶ 11 (2002) (finding that the appellant’ s
petition for review did not meet the Board’s criteria for review because he did not
explain how or why the administrative judge erred), overruled on other grounds by
Clark v. Office of Personnel Management , 120 M.S.P.R. 440 (2013 ). Additionally,
even assuming the a dministrative judge erred in finding the appellant’s motion for
reconsideration untimely, the appellant’s motion did not explain or address the basis for
his belief that he reasonably believed that his additional alleged protected disclosures
evidenced any of the c ategories of wrongdoing under 5 U.S.C. § 2302 (b)(8). W-2 AF,
Tab 22; see Panter v. Department of the Air Force , 22 M.S.P.R. 281 , 282 (1984)
(stating that an adjudicatory error tha t is not prejudicial to a party’ s substantive rights
provides no basis for reversal).
10
appellant’s protected disclosure s. 5 U.S.C. § 1221 (e)(2); Elder , 124 M.S.P.R. 12 ,
¶ 39. 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 preponderant evidence. 5 C.F.R.
§ 1209.4 (e). In determining whether an agency has shown by clear and
convincing evidence that it would have taken the same personnel action in the
absence of whistleblowing, the Board will consider the following factors: (1) the
strength o f the agency’s evidence in support of its action; (2) the existence and
strength of any motive to retaliate on the part of agency officials who were
involved in the decision; and (3) any evidence that the agency takes similar
actions against employees who are not whistleblowers but who are otherwise
similarly situated. Carr v. Social Security Administration , 185 F.3d 1318 , 1323
(Fed. Cir. 1999); Jenkins v. Environmental Protection Agency , 118 M.S.P.R. 161 ,
¶ 16 (2012).
The agency proved by clear and convincing evidence that it would have issued
the appellant a n NCO absent his protected disclosures.
¶11 As an initial matter, the administrative judge did not address whether the
agency’s NCO amounted to a personnel action within the meaning of 5 U.S.C.
§ 2302 (a)(2) . As a result of the agency’s N CO the appellant was transferred to
the SLC R egulatory group that same day. ID at 10. A detail, transfer, or
reassignment is a personnel action under 5 U.S.C. § 2302 (a)(2) (A)(iv). However,
according to the administrative judge, the appellant withdrew his claim that the
agency’s decision to reassign him constituted reprisal for his protect ed
disclosures. ID at 2 n.1 . Assuming without deciding that the agency’s decision
to issue the NCO alone amounted to a personnel action, we discern no error in the
administrative judge’s finding that the agency would have issued the NCO absent
the appell ant’s protected disclosures . ID at 20 -23. In particular, the
administrative judge found that the agency had legitimate reasons for issuing the
NCO while it conducted an investigation into TSM Doe’s allegations of
11
harassment. ID at 20. Even the appellan t acknowledges on review that the
agency “had every right and [was] obligated to separate [TSM] Doe and
[himself]” because “at the time [TSM] Doe made her [hostile work environment]
statement against [him] the agency could not have known if [TSM Doe’s]
allegations against [him] were true and they would have been required to take
action to separate us per MD [Management Directive] 1100.73.3.” PFR File,
Tab 1 at 9. We agree with the administrative judge that, although TSM Doe had a
motive to reta liate again st the appellant, such motive was outweighed by the
agency’s legitimate need to separate the appellant until it could co nduct an
investigation into TSM Doe’s allegations. ID at 22 -23. On review, the appellant
raises various arguments that the agency’ s NCO was not reasonable, violated his
rights, and exceeded the agency’s authority based on , among other things, the
specific language which he contends was unclear and failed to inform him of the
specific allegations against him . PFR File, Tab 1 at 10-11. However, in an IRA
appeal, the Board lacks jurisdiction to adju dicate the merits of or the procedures
used to effect the agency’ s underlying personnel action ; rather the relevant
inquiry is whether the agency had strong evidence to support its personnel
actions. See, e.g ., Phillips v. Department of Transportation , 113 M.S.P.R. 73 ,
¶ 15 (2010) ; Ramos v. Department of the Treasur y, 72 M.S.P.R. 235 , 240 (1996) .
Thus, such arguments fail to establish any error in the administrative judge’s
finding s that the a gency had strong evidence in support o f its decision to issue the
NCO, which outweighed any motive to retaliate, and , thus, the agency met its
clear and convincing burd en with respect to its decision to issue the NCO.
The agency failed to prove by clear an d convincing evidence that it would have
issued the appellant a 3 -day suspension absent his protected disclosures.
¶12 Regarding Carr factor 1, the strength of the agency’s evidence in support of
its decision to suspend the appellant for 3 days, the administrative judge found
that the agency had strong evidence that th e appellant remarked to TSM K.D.
concerning TSM Doe’s prior DUI and h er rumored “chest ” photograph , and that
12
such comments violated multiple agency codes of conduct, including the
requirement that the appellant , as a manager , provide positive leadership and
ensure a hospitable workplace. ID at 23. On review, the appellant disput es that
his comments to T SM K.D. were improper or amounted to misconduct. PFR F ile,
Tab 1 at 5 . He also reiterates his argument that TSM Doe’s harassment
complaint, which led to his investigation and 3 -day suspension, was motivated by
reprisal for his protected disclosures concerning her alleged SOP violations as
evidenced by the fact that her harassment claims were shifting and unclear,
unsupported, and lacked merit . Id. at 4-6.
¶13 We agree with the appellant that his comments to TSM K.D. do not provide
strong evidence for the agency’s decision to discipline him. The administrative
judge did not make any specific findings to support his cursory conclusion that
the appellant’s statements violated multiple agency codes of conduct. Nor did he
cons ider the context in which the appellant’s comments were made. The record
before the agency at the time it proposed and decided the appellant’s 3 -day
suspension does not support a conclusion that the appellant ’s comments amounte d
to “Discourteous Conduct” or “Inappropriate Comments of a Sexual N ature.” We
note that the appellant’s comments were not made directly to TSM Doe, as is
often the case for similar charges . The agency appears to have viewed the
appellant’s comments to TSM K.D. as improper because he was “involved” in the
incidents that led to TSM Doe’s harassment complaint and because his actions led
to TSM Doe feeling that “she was experiencing a hostile w ork environment, in
part because . . . employees [were] claiming to hav e seen a picture of her
breasts.” W -2 AF, Tab 14 at 51. However, the evidence does not show that the
appellant ever claimed to have seen the photograph or that TSM Doe was aware
of the appellan t’s private comments to TSM K.D. , such that his comments could
have contributed to TSM Doe feeling harassed. W-2 AF, Tab 11 at 8. The
proposing official testified that he did not have any evidence that TSM K.D.
informed TSM Doe of the appellant’s comments. Hearing Transcript (HT)
13
at 80-83 (Jan. 29, 2020 ). Similar ly, TSM K.D. testified that she never informed
anyone of the appellant’s comments except the investigator during the agency’s
investigation into TSM Doe’s complaint. HT at 227 -29 (Jan. 28, 2020) .
¶14 Rather, the record reflects that , according to TSM Doe, it was the FSD who
informed her that the appellant had seen a photo graph of her breasts and was
making disparaging comments about her to other employees by talking about her
prior DUI. W-2 AF, Tab 11 at 51 -52. Such information appears to have been an
inaccurate summary of the FSD’s conversation with the appellant on June 13,
2018, when they met to discuss the appellant’s concerns about TSM Doe being
promoted and the appellant’s perception that she had received a pattern of
preferential treatment with res pect to promotions and lenient discipline. During
the course of the agency’s investigation into TSM Doe’s harassment complaint,
the FSD explained how he had mistakenly summarized his conversation with the
appellant whe n he met with TSM Doe regarding her h arassment complaint .
According to the FSD , on July 13, 2018 , he mistakenly informed TSM Doe that
the appellant had seen a photo graph showing her exposed breasts, but after
reviewing his notes regarding his July 13, 2018 conversation with the appellant,
he met with TSM Doe and corrected such misinformation by informing her that
the appellant had actually indicated that he heard abou t the photo graph , but did
not tell the FSD that he had personally seen it. Id. at 18. According to the FSD,
he did not otherw ise tell TSM Doe that the appellant was making disparaging
comments about her, but rather had simply informed the appellant that if he was
making disparaging comments about TSM Doe to anyone, he needed to cease
immediately. Id. Thus, the appellant’s private comments to TSM K.D. , of which
TSM Doe was not aware , could not have contributed to TSM Doe’s belief or
feeling that she was experienc ing a hostile work environment due to employees
discussing or claiming to have seen a picture of her breasts as the agency
apparently determined .
14
¶15 Similarly, the record does not reflect that TSM Doe had strong evidence in
support of her harassment claims , which led to an investigation of the appellant
and his 3 -day suspension . See Russell v. Department of Justice , 76 M.S.P.R. 317 ,
323-24 (1997) (stating that it is proper to consider evidence regarding an
investigation if it is so closely related to a personnel action that it could have
been pretext for gathering evidence to retaliate against an employee for
whistleblowing ); see also Mangano v. Department of Veterans Affairs ,
109 M.S.P.R. 658 , ¶ 44 (2008) (finding that an investigation could have been a
pretext for retaliation when it was convened by the agency official who was the
subject of the appellant’s whistleblowing). TSM Doe’s allegations of harassment
were shifting and unsubstantiated by other employees. For example, in her
written complaint, TSM Doe alleged that she felt harassed because the appellant
had made disparaging comments about her to other TSMs and to STSOs at
checkpoint 1, the appellant had seen a picture of her breasts , and the appellant
was allegedly telling the STSOs that they should make claims against her that she
was rude, yelled at the m and prevented them from doing their jobs. W -2 AF,
Tab 11 at 16. However, when asked to describe the harassment in her affidavit,
TSM Doe identified other general workplace issues , such as work -related texts
and discussions with the appellant , as the so urce of the appellant’s alleged
harassment, failed to identify specific disparaging comments she alleged the
appellant made to other employees or who told her the appellant was allegedly
making them , with the exception of the inaccurate comments she heard from the
FSD. Id. at 49 -52. Affidavits from other TSOs and STSOs interview ed did not
support TSM Doe’s contention that the appellant was discussi ng her DUI or the
photograph, making other disparaging comments about her, or otherwise
harassing her . Id. at 44 -136. Rather they reflect that both TSM Doe’s prior DUI
and photograph occurred sometime approximately 5 to 10 years ago and were
common knowledge among many employees , and the issues appear to have
resurfaced as a resul t of TSM Doe’s recent promoti on. Id. at 8-11, 74, 112, 117,
15
130. Significantly, according to numerous employees, TSM Doe talked openly
about her DUI and is alleged to have sent the photograph of her breasts to
employees herself many years ago or was at least aware that it was being shared,
and “thought it was funny and no big deal ” at the time. Id. at 10, 44 -45, 69 .
¶16 Moreover, the record reflects that t he appellant’s comments to TSM K.D.
were not made to disparage or harass TSM Doe as the agency found , but rather in
the context of the appellant expre ssing his frustration concerning perceived
favoritism, preferential treatment, and/or the unfairness of TSM Doe being
interviewed and/or selected for the L ead TSM position .13 W-2 AF, Tab 14 at 48
(noting that there was “no other reason for [the appellant’s] comments regarding
[TSM Doe’s] arrests, except to disparage her to [his] coworker ”). In her affidavit
TSM K.D. stated that she did not view the appellant’s c omments as disparaging
and noted that the appellant did no t agree with the situation and had notified
those in his chain of command and filed a grievance about it. Id. at 82-84. The
fact that the appellant mentioned TSM Doe’s prior DUI and photograph as
examples, among other reasons why he felt TSM Doe had impr operly received
preferential treatment and should not have been selected for the position does not
provide strong evidence that the appellant made inappropriate comments of a
sexual nature or engaged in discourteous conduct. The appellant privately
discus sed these concerns with his peer, TSM K.D. , and shortly thereafter raised
his same concerns with the FSD verbally and in writing, which resulted in the
agency’s investigation regarding the interview process and TSM Doe’s alleged
misconduct.
¶17 Moreover, t he agency’s own investigation into TSM Doe’s harassment
complaint shows that the appellant’s perception that TSM Doe received
13 Although the proposing official questioned the appellant prior to making his decision
to propose the appellant’s 3 -day suspension, the proposing official testified that he did
not seek any additional information from TSM K.D. regarding the context of her
conversation with the appellant after reviewing the results of Investigator D.S.’s
Investigation. HT at 76 -80 (Jan. 29, 2020).
16
preferential treatment was shared by other employees who similarly vented to
TSM K.D. about the situation. W-2 AF, Tab 11 at 39; 98 -99, 130. TSM K.D.
herself also appears to have believed that there was tr uth to some of the
appellant’s allegations . Id. at 39. Rather than the appellant’s behavior being the
issue, employees largely had issues working with TSM Doe or perceived that
management treated her more leniently by failing to sufficiently investigate and
discipline her appropriately for her alleged misconduc t, including the alleged
SOP violations reported by the appellant and others, and instead promoted her.
Id. at 39, 98 -99. The results of Investigator S.T.’s investigation into the
appellant’s claims lend support to this perception to the exte nt it conclu ded the
following: (1) AFSD R.S.’s investigation into TSM Doe’s alleged SOP violations
“was inadequate and failed to gather the necessary evidence to support the
allegatio n by [the appellant]”; and (2) a lthough TSM Doe was not afforded
preferential treatm ent in connection with her promotion to the Lead TSM
position, she may have previously been provided preferential treatment in
connection with a prior interview in which she received official TSA int erview
questions in advance. W -2 AF, Tab 12 at 17 -18. N otably, S.T.’s investigation,
while finding the prior investigation of the alleged SOP violations insufficient,
similarly did not gather the information to ascertain whether there was any merit
to the alleged SOP violations and instead recommended that if another report of
misconduct was made against TSM Doe, it be investigated thoroughly . Thus, it
appears the agency never sufficiently investigated the alleged SOP violations that
formed the basis of the appellant’s protected disclosures, and instead promot ed
TSM Doe. Investigator S.T. did not investigate the circumstances surrounding
TSM Doe’s prior DUI or photograph , but he did find that she had engaged in
additional misconduct, including raising her voice and berating TS A employees.
Id. Thus, based on his recommendation, TSM Doe received a letter of counseling
for her misconduct. Id. at 6, 18.
17
¶18 In ligh t of the conclusions of AFSD R.S.’s, Investigator S.T.’s , and
Investigator D.S. ’s investigations, we fin d it difficult to reconcile the agency’s
lack of sufficient investigation into TSM Doe’s alleged SOP violations, its
treatment of the appellant compared to TSM Doe , or its rationale for issuing the
appellant a 3-day suspension and TSM Doe a nondisciplinary letter of counseling.
See Chambers v. Departmen t of the Interior , 116 M.S.P.R. 17 , ¶ 30, (2011)
(stating that it behooves an agency, when faced with the “clear and convincing
evidence” standard, to fully explain all of its potentially questi onable actions to
meet that burden).
¶19 Regarding the second Carr factor, the existence and strength of any motive
to retaliate on the part of agency officials who were involved in the decision, we
agree with the administrative judge that TSM Doe had a strong motive to retaliate
against the appellant for his disclosure of her alleged SOP violations and that her
July 19, 2018 complaint significantly contributed to the agency’s decision to
issue th e 3-day suspension. ID at 25; see Whitmore v. Department of Labo r,
680 F.3d 1353 , 1371 (Fed. Cir. 2012) ( when applying the second Carr factor, the
Board will consider any motive to retaliate on the part of the agency official who
ordered the action, as well as any motive to retaliate on the part of other agency
officia ls who influenced the decision ); Russell , 76 M.S.P.R. at 326 (finding that
agency officials had a motive to retaliate because they were the subjects of the
appellant’s protected activity, they were the subjects of an investigation due to
the appellant’s protected disclosure, and knew about the appellant’s protected
disclosur e when they reported the appellant for an investigation that formed the
basis of the appellant’s charged misconduct).
¶20 The record reflects that TSM Doe began complain ing about the appellant ’s
alleged harassment 2 weeks after she was interviewed in connec tion with the
agency’s investigation concerning the appellant’s allegations, which included the
appellant’s protected disclosures regarding TSM Doe’s alleged SOP violations.
As the administrative judge found, TSM Doe was likely aware that the appellant
18
had accused her of violating SOP s by the time of her June 28, 2018 interview
because, d uring that interview, TSM Doe was informed that the investigator “was
conducting an Informal Administrative Inquiry based on allegations received
from [the appellant] ” and asked whether she had ever violated SOP s. ID at 16,
18; W-2 AF, Tab 12 at 78-79. During h er June 28, 2018 interview, TSM Doe was
also asked whether she believed she had a good working relationship with the
appellant, to which she responded:
I believe I do. I don’t know of any reason why I wouldn’t. We’ve
had our moments where we disagree or had some rough moments.
There was a specific instance where he called me and wanted to run
CES and I said no. He was running cameras (Closed Circuit
Television (CCTV)) and said that we needed to do it. I told him “ No
this is my checkpoint and I will run it the way I want to!” Was I
disrespectful, yes. But I did apologize later and when the I bands
came in I let them know imme diately that it happened. I don’ t feel
like he (Bryce) was able to let it go. I don’ t think he likes people
who disagree with him. He has pushed back and raised his voice to
me and told me to do things. He has walked all over me. He is used
to people doing what he says and when someone doesn’t or pushes
back it’ s something he holds onto.
W-2 AF, Tab 12 at 79. Notwithstanding this response, 2 weeks later, on July 13,
2018, TSM Doe reported to her superiors how “extremely uncomfortable” she
was working with the appellant and that she b egan to feel harassed by the
appellant after she was promoted to the L ead TSM position on May 24 , 2018 , and
shortly thereafter on July 19, 2018, she filed her harassment complaint. ID at 8;
HT at 8 (Jan. 29, 2020) (testimony of AFSD C.V. that TSM Doe report ed her
concerns regarding the appellant the same day or 24 hours prior to when they met
with the FSD on July 13, 2018). Additionally , in her affidavit in support of her
sexual harassment complaint, TSM Doe stated that she felt harassed by the
appellant in part because “the false claims against her were explored in an earlier
investigation,” which we construe as a reference to the investigation by
Investigator S.T. into the appellant’s allegations that included , among other
things, TSM Doe’s alleged SOP violations. W-2 AF, Tab 11 at 51. Thus, the
19
timing of TSM Doe’s complaint closely following TSM Doe learning of the
appellant’s protected disclosures related to her alleged SOP violations as well as
the addition al circumstantial evidence in the record , including TSM Doe’s
shifting explanation of the appellant’s alleged h arassment and reference to his
claims made against her, suggest that TSM Doe’s harassment complaint was
motivated by reprisal for the appellant’s protected disclosures . See Chambers ,
116 M.S.P.R. 17 , ¶¶ 58, 66 (noting that because direct evidence of a retaliatory
motive is rare, circumstantial evidence may be relied on to give rise to an
inference of impermissible intent , and finding that the timing of the agency’s
personnel action shortly after the appellant’s protected disclosures suggested that
the agency was motivated t o retaliate).
¶21 We also disagree with the administrative judge’s finding that Lead
TSM C.D., the proposing offici al, had no motive to retaliate and instead we find
that both the proposing and deciding officials as well as the FSD may have had
some motive to retaliate to the extent the appellant’s disclosure reflected upon
them as managers.14 See Whitmore , 680 F. 3d at 1370 (stating that those
responsible for the agency’ s performance overall may well be motivated to
retaliate even if they are not directly im plicated by the disclosures, and even if
they do not know the whistleblower personally, as the criticism reflects on them
in their capac ities as managers and employees); Chambers v. Department of the
Interior , 116 M.S.P.R. 17 , ¶ 69 (finding motive to retaliate because the proposing
and deciding officials were high level officials and the disclosures “reflected on
both of them as rep resentatives of the general instituti onal interests of the
14 Although the administrative judge found that the deciding official had a motive to
retaliate, we disagree with his reasoning t hat such a motive stemmed from the
appellant’s report that the deciding official did not conduct a thorough investigation
into the appellant ’s disclosure concerning TSM Doe’s alleged SOP violations. ID at 26.
The appellant ’s June 13 -14, 2018 reports to the FSD regarding the insufficiency of the
prior investigation were not alleged protected disclosures at issue in this appeal, such
that they could have provided the deciding official with a motive to retaliate. W -2 AF,
Tab 18; IAF, Tab 19.
20
agency”). Here, the proposing official , Lead TSM C.D. , was TSM Doe’s
supervisor, W -2 AF, Tab 12 at 66, and, thus, the appellant’s report concerning
TSM Doe’s alleged misconduct in violating SOPs c ould have reflected poorly
upon him as a man ager. Similarly, the deciding official A FSD R.S. was a level
above and supervised the Lead TSMs, such that the appellant’s disclosure could
have similarly reflected poorly upon him. ID at 3. Additionally , such disclosures
could have also reflected poorly upon the FSD , who was the highest ranking
individual and had the primary responsibility of ensuring the security of
transportation modes throughout the state of Utah. ID at 3; HT at 179 (Jan. 28,
2020 ).
¶22 Regarding the third Carr factor, we find insufficient evidence in the record
concerning whether the agency took similar actions against other similarly
situated employees who were not whistleblowers. As discussed in Carr factor 2,
the agency’s investigatio n concerning TSM Doe’s harassment complaint revealed
that many TSO s and STSOs had di scussed TSM Doe’s prior DUI and photograph
at some point in time , that such issues were common knowledge, employees had
viewed TSM Doe’s mug shots regarding her DUI, employ ees had viewed and
circulated the chest photograph, with one employee having had the photograph
confiscated from his locker by the investigator. W-2 AF, Tab 11 a t 8-11, 44 -136.
However, the record is not developed concerning the specific discipline, if a ny,
issued to these individuals or whether such employees were also whistleblowers.
Although the deciding official briefly testified that some of these individuals may
have been discipline d, he could not recall the details surrounding any such
discipline. HT at 267 -68 (Jan. 28, 2020). Thus, the circumstances , including the
proposing and deciding officials and the nature of the charge s or penalties
imposed , are too unclear to make a meaningful comparison . See Whitmore ,
680 F.3d at 1373 -74 (noting that d ifferences in kinds and degrees of conduct
between otherwise similarly situated persons within an agency can and should be
accounted for to arrive at a well -reasoned conclusion regarding Carr factor 3).
21
Similarly, although the proposing official also test ified that he proposed
discipline for other employees for discussing the photograph, possessing the
photograph, and failing to report the discussion of the photograph, he did not
identify which e mployees or the nature of the charged misconduct or the speci fic
penalties proposed. HT at 71 (Jan. 29, 2020 ).
¶23 Finally, t he administrative judge considered TSM K.D. as a comparator and
determined that there was some evidence that the agency took a similar action
against her by issuing her a letter of counseling for failing to report the
appellant’s May 16, 2018 comments to her about TSM Doe’s DUI and
photograph. ID at 27. However, it is unclear whether TSM K.D. is a proper
comparator to the extent she may have also engaged in protected whistleblowing.
See, e.g. , Siler v. Environmental Protection Agency , 908 F.3d. 1291 , 1299 (Fed.
Cir. 2018) (noting that Carr factor 3 focuses o n the agency’s treatment of
non-whistleblower employees accused of similar misconduct). The record
reflects that on July 1, 2018, TSM K.D. reported to Investigator S.T. that she
believed that TSM Doe had previously been given an unfair advantage in
competing for a prior position and that, notwithstanding her reports at the time,
agency leadership ignored her concerns and determined there was nothing
improper about TSM Doe receiving the questions . W -2 AF, Tab 12 at 52 -54.
Accordingly, i n light of the lack of clarity of evidence re levant to Carr factor 3,
we find it is not a significant factor in the Board’ s analysis. Nonetheless, while
the agency does not have an affirmative burden to produce evidence concerning
each and every Carr factor, the Federal Circuit has held that failure to produce
such evidence if it exists “may be at the agency’s peril,” and “may well cause the
agency to fail to prove its case overall.” Whitmore , 680 F.3d at 1374 .
¶24 Weighing the Carr factors, we do not find that the agency has proved by
clear and convincing evidence that it would hav e suspended the appellant for
3 days absent his protected disclosure s. Rather, w e find that the relatively weak
evidence in support of TSM Doe’s harassment complaint , the agen cy’s decision to
22
suspend the appellant , and Carr factor 3, is far outweighed by the strong motive
to retaliate on the part of TSM Doe and any motive to retaliate on the part of the
proposing and deciding officials . See Miller v. Department of Justice , 842 F.3d
1252 , 1263 (Fed. Cir. 2016) (noting that the agency’s clear and convincing
burden is a “high burden of proof” that Congress demanded in c ases whe n the
employee has already shown that whistleblowing was a contributing factor and
the burden shifts to the Governmen t to show independent causation).
Accordingly, we reverse the initial decision in part and grant the appellant’s
request for corre ctive action with respect to his 3 -day suspension.
ORDER
¶25 We ORDER the agency to cancel the appellant’ s 3-day suspension and
remove all references to the suspension from the appellant’s personnel records.
See Kerr v. National Endowment for the Arts , 726 F.2d 730 (Fed. Cir. 1984). The
agency must complete this action no later than 20 days after the date of this
decision.
¶26 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.
¶27 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).
23
¶28 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 communications with the agency. 5 C.F.R. § 1201.182 (a).
¶29 For agencies whose payroll is administered by either the National Financ e
Center of the Department of Agriculture (NFC) or the Defense Finance and
Accounting Service (DFAS), two lists of the information and documentation
necessary to process payments and adjustments resulting from a Board decision
are attached. The agency is ORDERED to timely provide DFAS or NFC with all
documentation necessary to process payments and adjustments resulting from the
Board’s decision in accordance with the attached lists so that payment can be
made within the 60 -day period set forth above.
NOTIC E TO THE APPELLANT R EGARDING
YOUR RIGHT TO REQUES T
ATTORNEY FEES AND CO STS
You may be entitled to be paid by the agency for your reasonable attorney
fees and costs. To be paid, you must meet the requirements set forth at Title 5 of
the United States Code (5 U.S.C.), sections 7701(g), 1221(g), or 1214(g). The
regulations may be found at 5 C.F.R. §§ 1201.201 , 1201.202, and 1201.203. If
you believe you meet these requirements, you must f ile a motion for attorney fees
and costs WITHIN 60 CALENDAR DAYS OF THE DATE OF THIS DECISION.
You must file your motion for attorney fees and costs with the office that issued
the initial decision on your appeal.
24
NOTICE TO THE APPELL ANT REGARDING
YOUR R IGHT TO REQUEST CONS EQUENTIAL AND/OR
COMPENSATORY DAMAGES
You may be entitled to be paid by the agency for your consequential
damages, including medical costs incurred, travel expenses, and any other
reasonable and foreseeable consequential damages. To be paid, you must meet
the requirements set out at 5 U.S.C. §§ 1214 (g) or 1221(g). The regulations may
be found at 5 C.F.R. §§ 1201.201 , 1201.202 and 1201.204.
In addition, the Whistleblower Protection Enhancement Act of 2012
authorized the award of compensatory damages including interest, reasonable
expert witness fees, and costs, 5 U.S.C. § 1214 (g)(2), which you may be entitled
to receive.
If you believe you are entitled to these damages, you must file a motion for
consequential damages and/or compensatory damages WITHIN 60 CALENDAR
DAYS OF THE DATE OF THIS DECISION. You must file your motion with the
office that issued the initial decision on your appeal.
NOTICE TO THE PARTIE S
A copy of the decision will be referred to the Special Counsel “to
investigate and take appropriate action under [5 U.S.C.] section 1215,” based on
the determination that “there is reason to believe that a current employee may
have committed a prohibited personnel practice” under 5 U.S.C. § 2302 (b)(8) or
section 2302(b)(9)(A)(i ), (B), (C), or (D). 5 U.S.C. § 1221 (f)(3). Please note
that while any Special Counsel investigation related to this decision is pending,
“no disciplinary action shall be taken against any employ ee 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).
25
NOTICE OF APPEAL RIGHTS15
You may obtain re view of this final decision. 5 U.S.C. § 7703 (a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703 (b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situat ion and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claim s and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general ru le, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
15 Since the iss uance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.
26
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 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 m ust file with the district court no later than 30 calendar days
after your representative receives this decision. If the action involves a claim of
discrimination based on race, color, religion, sex, national origin, or a disabling
condition, you may be e ntitled to representation by a court -appointed lawyer and
27
to waiver of any requirement of prepayment of fees, costs, or other security. See
42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district courts can be found at their respe ctive
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employme nt
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702 (b)(1) . If you have a representative in this case,
and your representative receives this decision before you do, then 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
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
28
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.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.
If you are interested in securing pro bono representation for an appeal to
the U.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.
16 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows ap pellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195,
132 Stat. 1510.
29
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
DEFENSE FINANCE AND ACCOUNTING SERVICE
Civilian Pay Operations
DFAS BACK PAY CHECKLIST
The following documentation is required by DFAS Civilian Pay to compute and pay back pay
pursuant to 5 CFR § 550.805. Human resources/local payroll offices should use the following
checklist to ensure a request for payment of back pay is complete. Missin g documentation may
substantially delay the processing of a back pay award. More information may be found at:
https://wss.apan.org/public/DFASPayroll/Back%20 Pay%20Process/Forms/AllItems.aspx .
NOTE: Attorneys’ fees or other non -wage payments (such as damages) are paid by
vendor pay, not DFAS Civilian Pay.
☐ 1) Submit a “SETTLEMENT INQUIRY - Submission” Remedy Ticket. Please identify the
specific dates of the back pay period within the ticket comments.
Attach the following documentation to the Remedy Ticket, or provide a statement in the ticket
comments as to why the documentation is not applicable:
☐ 2) Settlement agreement, administrative determinatio n, arbitrator award, or order.
☐ 3) Signed and completed “Employee Statement Relative to Back Pay”.
☐ 4) All required SF50s (new, corrected, or canceled). ***Do not process online SF50s
until notified to do so by DFAS Civilian Pay.***
☐ 5) Certified timecards/corrected timecards. ***Do not process online timecards until
notified to do so by DFAS Civilian Pay.***
☐ 6) All relevant benefit election forms (e.g. TSP, FEHB, etc.).
☐ 7) Outside earnings documentation. Include record of al l amounts earned by the employee
in a job undertaken during the back pay period to replace federal employment.
Documentation includes W -2 or 1099 statements, payroll documents/records, etc. Also,
include record of any unemployment earning statements, wor kers’ compensation,
CSRS/FERS retirement annuity payments, refunds of CSRS/FERS employee premiums,
or severance pay received by the employee upon separation.
Lump Sum Leave Payment Debts: When a separation is later reversed, there is n o 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. T he
annual leave will be restored to the employee. Annual leave that exceeds the annual leave
ceiling will be restored to a separate leave account pursuant to 5 CFR § 550.805(g).
NATIONAL FINANCE CEN TER CHECKLIST FOR BA CK PAY CASES
Below is the information/documentation required by National Finance Center to process
payments/adjustments agreed on in Back Pay Cases (settlements, restorations) or as ordered by the Merit
Systems Protection Board, EEOC, and courts .
1. Initiate and submit AD -343 (Payro ll/Action Request) with clear and concise information describing
what to do in accordance with decision.
2. The following information must be included on AD -343 for Restoration:
a. Employee name and social security number.
b. Detailed explanation of request.
c. Valid agency accounting.
d. Authorized signature (Table 63).
e. If interest is to be included.
f. Check mailing address.
g. Indicate if case is prior to conversion. Computations must be attached.
h. Indicate the amount of Severance and Lump Sum Annual Leave 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. | LARABEE_ROBERT_B_DE_1221_19_0059_W_2_FINAL_ORDER_REDACTED_2014841.pdf | 2023-02-01 | null | DE-1221 | NP |
3,659 | https://www.mspb.gov/decisions/nonprecedential/FLOWERS_REGINA_R_NY_0752_16_0288_I_1_FINAL_ORDER_1997999.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
REGINA R. FLOWERS,
Appellant,
v.
DEPARTMENT OF VETERA NS
AFFAIRS,
Agency.
DOCKET NUMBER
NY-0752 -16-0288 -I-1
DATE: January 31, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL1
Ena Thompson -Judd , St. Albans, New York, for the appellant.
Michael J. Berger , Esquire, Brooklyn, New York, for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
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
reversed the appellant’s removal on due process grounds . Generally, we grant
petitions such as this one only in th e following circumstances: the initial decision
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value ; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c).
2
contains erroneous findings of material fact; the initial decision is based on an
erroneous interpretation of statute or regulation or the erroneous application of
the law to the facts of the case; the 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).
BACKGROUND
¶2 The appellant was a Nursing Assistant for the agency, stationed at the
Veterans Administra tion Medical Center (VAMC) in Northport, New York .
Initial Appeal File (IAF), Tab 1 at 1, Tab 4 at 7. Effective, August 6, 2016, the
agency removed her for misconduct under 5 U.S.C. chapter 75. IAF, Tab 4
at 7-10. The appellant filed a Board appeal and requested a hearing. IAF, Tab 1.
Although not raised by the appellant, during the hearing, the administrative judge
identified a potential due process issue and developed the record concerning
whether the appellant was afforded notice of the reasons for her removal and an
opportunity to respond. IAF, Tabs 18 -19, Hearing Compact Disc (HCD).
¶3 After the close of the record, the administrative judge issued an initial
decision reversing the appellant’s removal on due process grounds. IAF, Tab 22,
Initial Dec ision (ID). Specifically, the administrative judge found that the
appellant had requested an oral response and the agency scheduled one for her,
but the agency subsequently canceled the oral response meeting, failed to
3
reschedule it, and ultimately issued its decision without hearing the appellant’s
response. ID at 3 -6.
¶4 The agency has filed a petition for review, disputing the administrative
judge’s findings of fact and credibility determinations concerning the events that
transpired around the appellant’ s request for an oral response. Petition for
Review (PFR) File, Tab 1. The appellant has not responded to the petition for
review.
ANALYSIS
¶5 An agency’ s failure to provide a tenured public employee with an
opportunity to present a response, either in pers on or in writing, to an appealabl e
agency action that deprives her of h er property right in h er employment
constitutes an abridgement of her constitutional right to minimum due process of
law, i.e., prior noti ce and an opportunity to respond. Cleveland Bo ard of
Education v. Loudermill , 470 U.S. 532 , 546 (1985). It is undisputed that the
appellant in this case did not actually respond to the notic e of proposed removal,
either orally or in writing. IAF, Tab 4 at 8. The issue is whether the agency gave
her a meaningful opportunity to do so. See Stone v. Federal Deposit Insurance
Corporation , 179 F.3d 1368 , 1377 (Fed. Cir. 1999) (explaining that due process
entails a meaningful opportunity to respond to the proposal) .
¶6 The circumstances of this case arise from a prior, rescinded notice of
proposed removal. Specifically, the agency originally proposed the appellant’s
removal on May 12, 2016, based on two charge s of misconduct. IAF, Tab 4
at 11; HCD, Day 1 at 3:51:00 (testimony of the appellant). On June 14, 2016, the
appellant met with the deciding official for an oral reply, but she did not give a
reply at that time due to confusion concerning the charges.2 HCD , Day 1
2 According to the appellant, when she appeared at this meeting, the agency, for the first
time, presented her additional charges that were not pa rt of the original May 12, 2016
proposal. HCD, Day 1 at 3:51:30 (testimony of the appellant). Therefore, the deciding
4
at 3:50:10 (testimony of the appellant). The deciding official permitted the oral
reply to be rescheduled. Id. It appears that t he oral reply was rescheduled for
June 16, 2016. IAF, Tab 17 at 7. However, on that day, the agency learned that
the appellant had designated a union representative , so it again postponed the oral
reply date, pending communication with the appellant’s representative.3 Id.
According to the appellant, the Human Resources Representative handling her
case stated that he would call her and tell her when the rescheduled meeting
would be, but this never happened. HCD, Day 1 at 3:55:10 (test imony of the
appellant). On June 21, 2016, a Human Resources Representative emailed the
appellant’s union representative, asking whether the appellant still wished to give
an oral reply. IAF, Tab 17 at 6 -7. On June 23, 2016, the union representative
responded, stating that she had been on travel but would speak with the appellant
and let the agency know when she could come. Id. at 6.
¶7 It is undisputed that the appellant’s union representative went to the
Northport VAMC shortly thereafter —it would appear sometime between June 23
and June 27, 2016, and met with the Human Resources Representative. HCD,
Day 1 at 4:35:15 (testimony of the union representative), 4:45:20 (testimony of
the Human Resources Representative). However, there is conflicting testimony
about what transpired. The appellant’s union representative testified that she met
with the Human Resources Representative about “several issues,” including the
appellant’s case. The Human Resources Representative informed her that the
appellant was on vacation, but that he would reschedule the oral reply meeting
once the appellant returned. Id. at 4:26:00, 4:35:30 (testimony of the union
representative). The appellant’s union representative testified that she never
heard back from the agency about the oral reply date. Id. at 4:36:30 (testimony of
official determined that the appellant should be afforded an additional 14 days to
respond. Id. at 3:52:15 (testimony of the appellant).
3 This union representative is the same individual who is representing the appellant in
the instant Board appeal.
5
the union representative). The Human Resources Representative gave a different
account. He testified that the appellant’s representative met with him and two
other agency officials about unrelated business , i.e. tours of duty for Nursing
Assistants. Id. at 4:45:25 (testimony of the Human Resources Representative).
He recalled that he and the union representative also engaged in some small talk,
but he specifically denied that they discussed dates for an or al reply or any other
aspect of the appellant’s case. Id. at 4:45:45 (testimony of the Human Resources
Representative).
¶8 Shortly thereafter, on June 27, 2016, the agency rescinded the original
May 12, 2016 proposal notice and replaced it with a new notice of proposed
removal containing additional charges. IAF, Tab 4 at 11. There is conflicting
testimony about whether the appellant actually received this new proposal notice
prior to receiving the decision under appeal. HCD, Day 1 at 3:55:45 (testimony
of the appellant), 4:18:25 (testimony of the Nurse Manager). However, it is
undisputed that the appellant’s union representative received it no later than
June 29, 2016, and that neither the appellant nor her representative contacted the
agency at any point thereafter to schedule a reply to the new proposal. IAF,
Tab 17 at 1; HCD, Day 1 at 4:32:10, 4:37:35 (testimony of the union
representative), 4:44:45 (testimony of the Human Resources Representative). On
or about July 14, 2016, the deciding official issu ed a removal decision, without
having heard any reply from the appellant. IAF, Tab 4 at 8 -10, Tab 17 at 4 -5.
¶9 In her initial decision, the administrative judge credited the testimony of the
appellant that it was always her intention to make an oral reply. ID at 5. The
administrative judge also credited the testimony of the appellant’s union
representative that she orally requested a reply meeting when she met with the
Human Resources Representative in June 2016. Id. The administrative judge
found it imm aterial that the agency subsequently rescinded and reissued the
proposal, stating that it was “unreasonable on the part of the agency to require
that [the appellant] make a new request to make an oral reply” to the revised
6
notice, “given that she had unequ ivocally expressed her desire to do so after
receipt of the first notice of proposed removal.” Id. The administrative judge
further found that it was reasonable for the appellant and her representative to
believe that the agency would schedule an oral re ply meeting as requested. ID
at 6. She concluded that “the agency was on notice that the appellant wished to
given an oral reply, but failed to give her the opportunity to do so prior to the
issuance of the decision,” thereby violating her right to due p rocess. Id.
¶10 On petition for review, the agency argues that the administrative judge did
not adequately explain why she found the union representative’s account of the
June meeting more credible than the Human Resources Representative’s account.
PFR File, Tab 1 at 4 -6. We disagree. To resolve credibility issues, an
administrative judge must identify the factual questions in dispute, summarize the
evidence on each disputed question, state which version he believes, and explain
in detail why he found the c hosen version more credible, considering such factors
as: (1) the witness’s opportunity and capacity to observe the event or act in
question; (2) the witness’s character; (3) any prior inconsistent statement by the
witness; (4) a witness’s bias, or lack o f bias; (5) the contradiction of the witness’s
version of events by other evidence or its consistency with other evidence; (6) the
inherent improbability of the witness’s version of events; and (7) the witness’s
demeanor. Hillen v. Department of the Army , 35 M.S.P.R. 453 , 458 (1987). In
this case, the administrative judge explained that she found the union
representative “credible based on her demeanor. Her testimony was
straightforward, unequivocal and detailed.” ID at 5. The administrative judge
further found that the union representative’s version of events was consistent with
her acti on of driving to the Northport VA MC prior to the issuance of the removal
decision and was also consistent with her June 23, 2016 email, in which she
conveyed to the agency her intent to meet with the deciding official for a reply.
Id. Although the admini strative judge did not discuss each and every one of the
Hillen factors as they relate to both the union representative and the Human
7
Resources Representative, under the circumstances, this is not a sufficiently
sound reason for us to disturb the administr ative judge’s findings. See Haebe v.
Department of Justice , 288 F.3d 1288 , 1301 (Fed. Cir. 2002) (holding that the
Board must defer to an admin istrative judge’s demeanor -based credibility
determinations and may overturn such determinations only when it has
“sufficiently sound” reasons for doing so); see also Stein v. U.S. Postal Service ,
57 M.S.P.R. 434 , 440 (1993) (holding that the administrative judge’s decision not
to discuss each and every Hillen factor did not mean he failed to consider them).
¶11 Moreover, even if we were to ac cept the agency’s invitation to re -weigh the
testimony without deference to the administrative judge, in light of all the Hillen
factors, we would reach the same conclusion. Both the union representative and
the Human Resources Representative had the same opportunity and capacity to
observe what happened at the meeting, there is no relevant character evidence or
prior inconsistent statement for either witness, and both the witnesses, as agents
for the appellant and the agency respectively, had similar ince ntives for bias.
Demeanor aside, the key factors that differentiate the testimony of these two
witnesses are the inherent probability of their competing versions of events and
how they fit in with the rest of the evidence. In this regard, we find it impr obable
that, immediately after expressing her desire for an oral reply in the appellant’s
case, the union representative would travel to the Northport VAMC on business
and not raise the matter at all. Furthermore, the union representative’s account of
this meeting fits logically with the remainder of the evidence. Specifically, if the
union representative had requested an oral reply during her meeting with the
Human Resources Representative, this would explain why her previous email of
June 23, 2016, conv eyed a desire to schedule an oral reply meeting, but her
subsequent email of June 29, 2016, email did not. IAF, Tab 17 at 1, 6. Although
it is not, strictly speaking, logically inconsistent with the June 23 and 29, 2016
emails, the Human Resource Represe ntative’s account of the intervening meeting
cannot explain why the appellant’s union representative was pursuing an oral
8
reply before that meeting but not after it. For these reasons, we find no basis to
depart from the administrative judge ’s credibility determinations.
¶12 The agency also argues that, even if the union representative had requested
an oral reply during her meeting with the Human Resources Representative, this
request pertained to the original May 12, 2016 proposal, and not to the June 27,
2016 proposal under which the appellant was ultimately removed. PFR File,
Tab 1 at 6 -8. It argues that Massey v. Department of the Army , 120 M.S.P.R. 226
(2013) , and Alford v. Department of Defense , 118 M.S.P.R. 556 (2012), the cases
that the administrative judge cited in support of her conclusion, are
distinguishable from the instant appeal. Id.; ID at 6. Specifically, the agency
argues that, in Massey and Alford , the respondent agencies failed to honor the
appell ants’ clear and timely requests for oral reply, whereas the appellant in this
case failed to make any clear request. PFR File, Tab 1 at 6 -7. The agency states
that it “took numerous affirmative actions to try and coordinate a reply ,” and that
even if it were on notice that the appellant wanted an oral reply, “ this does not
create the requirement for the Agency to force a reply to happen .” Id. at 7-8.
¶13 We have considered the agency ’s arguments, but we are not persuaded. We
agree with the agency that, prio r to the meeting between the union representative
and the Human Resources Representative, it took numerous affirmative actions to
coordinate a reply. However, the agency subsequently failed to carry out the
singular important step of getting the response meeting on the deciding official ’s
calendar and communicating the time and place of the meeting to the appellant .
This was the step that the appellant was still waiting for the agency to complete
when, on July 14, 2016, the agency issued its removal decis ion. Nor do we
believe that the agency was absolved of carrying out the appellant ’s request when
it rescinded the May 12, 2016 proposal and issued a new one in its place.
Considering that the second proposal was issued the same day that the first one
was rescinded and the two were factually related, we agree with the
administrative judge that the agency remained on notice that the appellant wished
9
to make an oral reply. ID at 5. Just as agency continued to communicate with the
same union representative , despite the appellant ’s failure to designate her in
connection with what was technically a new removal action, so the agency should
have continued with the process of scheduling an oral response in connection with
that union representative ’s prior request. We acknowledge that, when the agency
forwarded the union representative the new proposal on June 29, 2016, it stated
that “[i] f [the appellant ] choo ses to do so, she has 14 calendar days to reply to the
notice. ” IAF, Tab 17 at 1. Howev er, we do not think that this seemingly
boilerplate statement was sufficient to put the union representative on notice that
the agency would not honor her previous request for an oral reply. As for
Massey , 120 M.S.P.R. 226 , and Alford , 118 M.S.P.R. 556 , we agree with the
agency that both of those cases involved fact patterns that are different from the
one presented in this appeal. Nevertheless, we find that they are instructive on
the general proposition that an agency is required to act with reasonable diligenc e
in scheduling an oral reply when one is requested, and that an agency’s failure to
do is inconsistent with requirements of due process .
¶14 Finally, the agency urges the Board to analyze its failure to schedule an oral
reply as a matter of procedural error rather than due process . PFR File, Tab 1
at 9. However, the initial decision that the agency cites in support of its argument
has no precedential value and is not binding on the Board . See Harris v.
Department of the Navy , 15 M.S.P.R. 464 , 467 n.4 (1983) . As explained above,
the appellant reasonably relied on the agency to schedule an oral reply as
requested, and by failing to do so, the agency deprived her of the ability reply to
the proposed removal at all. This is a violation of the appellant ’s right to due
process and requires automatic reversal of the action. Schibik v. Department of
Veterans Affairs , 98 M.S.P.R. 591 , ¶ 10 (2005) .
10
ORDER
¶15 We ORDER the agency to agency to cancel the removal and to retroactively
restore the appellant effective August 6, 2016.4 See Kerr v. National Endowment
for the Arts , 726 F.2d 730 (Fed. Cir. 1984). The agency must complete this
action no later than 20 days after the date of this decision.
¶16 We also ORDER the agency to pay the appellant the correct amount of back
pay, interest on back pay, and other benefits under the Office of Personnel
Management’s regulations, no later than 60 calendar da ys 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 ou t 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.
¶17 We further ORDER the agency to tell the appellant promptly in writing
when it believes it has fully carried out the Board’s Order and of the actions it has
taken to carry out the Board’s Order. The appellant, if not notified, should ask
the agency about its progress. See 5 C.F.R. § 1201.181 (b).
¶18 No later than 30 days after the agency tells the appellant that it has fully
carried out the Board’s Order, the appellant may file a petition for enforcemen t
with the office that issued the initial decision on this appeal if the appellant
believes that the agency did not fully carry out the Board’s Order. The petition
should contain specific reasons why the appellant believes that the agency has not
4 We take notice that the agency removed the appellant again, effective April 4, 2017,
the appellant appealed this subsequent remo val to the Board, and the administrative
judge issued a final decision dismissing the appeal for failure to prosecute. Flowers v.
Department of Veterans Affairs , MSPB Docket No. NY -0752 -17-0119 -I-1, Initial
Appeal File, Tab 4 at 8, Tab 21, Initial Decisio n. Neither party petitioned for review,
and that initial decision became the final decision of the Board. See 5 C.F.R.
§ 1201.113 . Nothing in this nonprecedential Final Order should b e interpreted as
ordering relief in connection with the April 4, 2017 removal.
11
fully ca rried out the Board ’s Order, and should include the dates and results of
any communications with the agency. 5 C.F.R. § 1201.182 (a).
¶19 For agencies whose payroll is administered by either the National Finance
Center of the Department of Agriculture (NFC) or the Defense Finance and
Accounting Service (DFAS), two lists of the information and documentation
necessary to process payments and adjustments resulting from a Board decision
are attac hed. 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 se t forth above.
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
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 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.
12
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more informat ion.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your peti tion to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s websi te, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representati on for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you hav e claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
13
judicial review of this decision —including a disposition of your discrimin ation
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 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 onl y, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
14
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 2 0507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial 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. C ourt of Appeals for the Federal Circuit or any court
of appeals of competent jurisdiction.6 The court of appeals must receive your
petition for review within 60 days of the date of issuance of this decision.
5 U.S.C. § 7703 (b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
6 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The A ll Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195,
132 Stat. 1510.
15
U.S. Court of Appeals
for the Federal Circui t
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petiti oners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our we bsite at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorne y will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD:
Washington, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board
DEFENSE FINANCE AND ACCOUNTING SERVICE
Civilian Pay Operations
DFAS BACK PAY CHECKLIST
The following documentation is required by DFAS Civilian Pay to compute and pay back pay
pursuant to 5 CFR § 550.805. Human resources/local payroll offices should use the following
checklist to ensure a request for payment of back pay is complete. Missin g documentation may
substantially delay the processing of a back pay award. More information may be found at:
https://wss.apan.org/public/DFASPayroll/Back%20Pay%20Process/Forms/AllItems.aspx.
NOTE: Attorneys’ fees or other non -wage payments (such as damages) are paid by
vendor pay, not DFAS Civilian Pay.
☐ 1) Submit a “SETTLEMENT INQUIRY - Submission” Remedy Ticket. Please identify the
specific dates of the back pay period within the ticket comments.
Attach the following documentation to the Remedy Ticket, or provide a statement in the ticket
comments as to why the documentation is not applicable:
☐ 2) Settlement agreement, administrative determination, arbitrator award, or order.
☐ 3) Signed and completed “Employee Statement Relative to Back Pay”.
☐ 4) All required SF50s (new, corrected, or canceled). ***Do not process online SF50s
until notified to do so by DFAS Civilian Pay.***
☐ 5) Certified timecards/corrected timecards. ***Do not process online timecards until
notified to do so by DFAS Civilian Pay.***
☐ 6) All relevant benefit election forms (e.g. TSP, FEHB, etc.).
☐ 7) Outside earnings documentation. Include record of all amounts earned by the employee
in a job undertaken during the back pay period to replace federal employment.
Documentation includes W -2 or 1099 statements, payroll documents/records, etc. Also,
include record of any unemployment 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 se paration 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.
DISSENTING OPINION O F TRISTAN L. LEAVITT
in
Regina R. Flowers v. Department of Veterans Affairs
MSPB Docket No. NY -0752 -16-0288 -I-1
¶1 For the reasons set forth below, I respectfully dissent fr om the majority
opinion in this case.
¶2 By letter dated May 12, 2016, the agency proposed to remove the appellant.
See Initial Appeal File (IAF), Tab 4 at 11. On June 14, 2016, the appellant met
with the deciding official for an oral reply, but did not ultimatel y go forward due
to confusion concerning the charges. Hearing Compact Disc 1 (HCD) (testimony
of the appellant). The oral reply was rescheduled for the afternoon of June 16,
2016. IAF, Tab 17 at 7-8. However, in the morning on that date, the appellant
designated a new union representative. Id. at 7. The agency’s Human Resources
representative, S.S., informed the appellant’s newly designated representative that
the oral reply was scheduled for later that day and asked if she wished to
reschedule. Id. It appears the appellant’s representative neither appeared for the
oral reply at the appointed time nor confirmed that she wished to reschedule. See
id. at 6-7.
¶3 On June 21, 2016, S.S. followed up with the appellant’s representative,
noting the agency h ad “not received an indication” as to whether the appellant still
wished to present an oral reply. Id. S.S. followed up with the representative yet
again on June 23, 2016. Id. at 6. That day, the representative responded stating,
“I will get to [the ap pellant] and let you know when I can come.” Id. According
to the representative, at some point thereafter, but before June 27, 2016, she had a
meeting with S.S. and others, during which she asked S.S. to schedule an
appointment for her and the appellant to meet with the deciding official. HCD
(testimony of the appellant’s union representative).
2
¶4 By letter dated June 27, 2016, the agency rescinded the May 12, 2016,
proposal notice and issued a revised proposal to remove the appellant. IAF, Tab 4
at 11. On June 29, 2016, S.S. provided a copy of this new proposal notice and the
associated evidence file to the appellant’s representative by email. IAF, Tab 17
at 1, 9. In the body of his email, S.S. stated, “If Ms. Flowers chooses to do so, she
has 14 calendar days to reply to the notice.” Id. The attached proposal notice
stated the same and also provided a telephone number for the appellant to call to
“make arrangements for [her] oral reply.” IAF, Tab 4 at 12. The appellant did not
call the provided nu mber by the 14 -day deadline to schedule an oral reply.1 On
July 14, 2016, the agency issued its decision to remove the appellant, effective
August 6, 2016. IAF, Tab 4 at 7-10, Tab 17 at 4-5.
¶5 The majority finds the appellant reasonably relied on the agency to schedule
an oral reply, as she purportedly requested before the agency rescinded the
May 12 proposal notice. In the majority’s view, at that point, the agency was
responsible for getting the response meeting on the deciding official’s calendar
and communicating the time and place of the meeting to the appellant.
¶6 Like the majority, I find Massey v. Department of the Army , 120 M.S.P.R.
226 (2013) instructive in this appeal, but for a different reason. In Massey , the
agency granted the appellant an extension with respect to her oral reply, but
did not make clear whet her the deadline specified was the date by which the
appellant must request an oral reply, or the date by which the oral reply must be
completed. Id., ¶ 8. Without an “explicit statement” as to the terms of the
extension, the appellant “reasonably surmise d” the specified deadline was the date
by which she must request an oral reply. Id.
¶7 In this case, the June 27 proposal notice told the appellant she had 14 days
to reply, and what she needed to do to schedule it. The majority finds this
“seemingly boil erplate statement” was not sufficient “to put the union
1 Based on June 29, 2016, the reply deadline would have been July 13, 2016.
3
representative on notice that the agency would not honor her previous request for
an oral reply.” I see no reason why the appellant would ignore clear instructions,
boilerplate or not. Regardless, i n addition to the proposal notice itself, S.S.
informed the representative of the 14 -day deadline directly in the text of an email,
which is clearly not boilerplate language. IAF, Tab 17 at 1. At that point, unlike
the circumstances present in Massey , I do not believe the appellant and her
representative could have reasonably continued to assume S.S. was working on
scheduling an oral reply.
¶8 Assuming arguendo that the representative did ask S.S. —at some point
between June 24 and June 26—to schedule a repl y for the appellant, she does not
assert that S.S. agreed to do so, or that they discussed any specific dates at that
time. Upon receiving the email from S.S. on June 29, the representative did not
seek any clarification from S.S., express any confusion, or in any way reference
their prior conversation. Instead, she essentially did nothing. She admits that,
other than requesting the evidence file, see id. , she made no further attempt to
communicat e with the agency regarding this matter after receiving the reissued
proposal notice.2 HCD (testimony of the appellant’s union representative).
¶9 I see no agency negligence, design, or improper action that prevented the
appellant from responding before a d ecision was made. See Smith v. U.S. Postal
Service , 789 F.2d 1540 , 1543 (Fed. Cir. 1986); cf. Gordon v. Department of
Agriculture , 25 M.S.P.R. 438 , 440 (1984) (where the appellant’s attorney
requested a hearing continuance after being told not to expect such request would
be grant ed, the Board found the appellant’s due process rights were not violated
2 The appe llant took no action, in the 3 weeks between the issuance of the removal
decision and the effective date of her removal, to raise her due process argument to the
agency. See HCD (testimony of the appellant’s union representative). This may have
been due to the erroneous advice of her representative. Specifically, her representative
advised her that if she (the appellant) made any effort to discuss the removal decision
with the deciding official, she would be precluded from filing a Board appeal and her
only option would be to proceed through the negotiated grievance process. Id.
4
when the administrative judge held the hearing on the originally scheduled date
notwithstanding that the appellant’s attorney failed to appear, noting that a
“reasonable attorney” wou ld have confirmed whether the extension had been
granted and would not have “assumed that the hearing had been continued”) .
Rather, she was given a clear deadline , with instructions to follow for scheduling ,
and she simply failed to comply. Accordingly, I would vacate the initial decision,
find no due process violation, and remand the appeal for further adjudication on
the merits.
/s/
Tristan L. Leavitt
Member | FLOWERS_REGINA_R_NY_0752_16_0288_I_1_FINAL_ORDER_1997999.pdf | 2023-01-31 | null | NY-0752 | NP |
3,660 | https://www.mspb.gov/decisions/nonprecedential/JOHNSON_NORMAN_A_NY_831M_21_0122_I_1_REMAND_ORDER_1998009.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
NORMAN A. JOHNSON,
Appellant,
v.
OFFICE OF PERSONNEL
MANAGEMENT,
Agency.
DOCKET NUMBER
NY-831M -21-0122 -I-1
DATE: January 31, 2023
THIS ORDER IS NONPRECEDENTIAL1
Norman A. Johnson , Brooklyn, New York, pro se.
Carla Robinson , Washington, D.C., for the agency.
BEFORE
Cathy A. Harris, Vice Cha irman
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 his appeal regarding an overpayment of Civil Service Retirement
System (CSRS) annuity benefits 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
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 . 5 C.F.R. § 1201.113 (b). However, we REMAND
the matter of the proper calculation of the appellant’s annuity and any resulting
overpayment to the Office of Personnel Management ( OPM ) for its further
considerat ion consistent with this Remand Order.
BACKGROUND
¶2 On July 2, 2021, the appellant filed a Board appeal challenging a June 21,
2021 determination by OPM that he had been overpaid $7,088.50 because of his
concurrent receipt of CSRS annuity benefits and Office of Workers’
Compensation Programs (OWCP) benefits between November 1, 2015, and
May 30, 2021. Initial Appeal File (IAF), Tab 1 at 3-4, 12.2 The appellant a lso
disputed OPM’s calculation of his monthly CSRS deferred annuity payments. Id.
at 13-14. In so doing, he explained that he had already appealed OPM’s
2 OPM’s June 21, 2021 determination seemingly contradicted a prior finding that the
appellant could permissibly receive CSRS deferred annuity benefits and OWCP benefits
concurrently because they stemmed from two separate periods of Federal service. IAF,
Tab 1 at 6-7; Johnson v. Office of Personnel Management , MSPB Docket No. NY-0831 -
17-0205 -I-1, Initial Appeal File, Tab 11 at 6.
3
calculation of his monthly annuity payments to the Board only to have OPM
“rescind its prior decisions.” Id. at 14.
¶3 The administrative judge dismissed the matter for lack of jurisdiction
because OPM had not yet issued a final decision regarding the $7,0 88.50
overpayment. IAF, Tab 9, Initial Decision at 2. The appellant has filed a petition
for review of the initial decision. Petition for Review (PFR) File, Tab 1.
ANALYSIS
¶4 The Board generally has jurisdiction over OPM determinations affecting an
appe llant’s rights or interests under CSRS only after OP M has issued a final
decision. Morin v. Office of Personnel Management , 107 M.S.P.R. 534 , ¶ 8
(2007), aff’d , 287 F. App’x 864 (Fed. Cir. 2008); see 5 U.S.C. § 8347 (d)(1);
5 C.F.R. § 831.110 . As an excepti on to this general rule, however, the Board may
assert jurisdiction over an appeal concerning a retirement matter in which OPM
has refused or improperly failed to issue a final decision. Hasanadka v. Office of
Personnel Management , 116 M.S.P.R. 636 , ¶ 21 (2011).
¶5 Here, the appellant has, since 2017, repeatedly attempted to appeal a
2016 recalculation of his CSRS deferred annuity benefits. E.g., Johnson v. Office
of Personnel Management , MSPB Docket No. NY-0831 -17-0205 -I-1, Initial
Appeal File (0205 IAF), Tab 1 at 1. Indeed , on both April 26, 2017, and June 19,
2018, OPM issued reconside ration decisions concluding that, as a result of the
2016 recalculation, the appellant had been overpaid $13,860.40 in annuity
benefits between December 12, 2008, and October 30, 2015 . 0205 IAF, Tab 11
at 5-6; Johnson v. Office of Personnel Management , MS PB Docket No. NY-0831 -
18-0149 -I-1, Initial Appeal File (0149 IAF), Tab 1 at 5-6. OPM, however,
subsequently rescinded both of these reconsideration decisions and, on
January 21, 2020, ultimately elected to waive recoupment of the $13,860.40 debt
stemming from the overpayment. 0205 IAF, Tab 13 at 4; 0149 IAF, Tab 15
at 4-5; Johnson v. Office of Personnel Management , MSPB Docket No. NY-0831 -
4
20-0025 -I-1, Initial Appeal File (0025 IAF), Tab 9 at 7.3 Thus, the appellant has
yet to have the opportunity to litigat e the 2016 recalculation of his benefits.
¶6 We agree with the administrative judge’s conclusion that OPM had not yet
issued a final decision regarding the $7,088.50 overpayment, which allegedl y
accrued between November 1, 2015, and May 30, 2021.4 IAF, Tab 1 at 3.
However, the Board may assert jurisdiction over an appeal concerning a
retirement matter in which OPM has refused or improperly failed to issue a final
decision . As stated, the pro se appellant has repeatedly attempted to challenge
the 2016 recalculation of his CSRS deferred annuity benefits; this recalculation
would undoubtedly impact the $7,088.50 overpayment. It is unclear from the
record whether OPM’s apparent failure to provide the appellant with an
appealable decision regarding the 2016 recalculation of his CSRS deferred
annuity benefits is intentional; thus, w e find that it is preferable to allow OPM to
clearly express its position regarding both the calculation of the appella nt’s
annuity benefits and any overpayment related thereto before we determine
whether to exercise jurisdiction. See Hasanadka , 116 M.S.P.R. 636 , ¶ 21.
3 In waiving collection of the $13,860.40 overpayment, OPM st ated that the
overpayment stemmed from “CSRS disability annuity payments”; however, the
appellant has not received CSRS disability retirement benefits since 1985. 0025 IAF,
Tab 9 at 7 (emphasis added); IAF, Tab 1 at 6, 11.
4 The appellant’s initial $13, 860.40 debt purportedly accrued between December 12,
2008, and October 30, 2015 , because of the 2016 recalculation of his CSRS deferred
annuity benefits. 0205 IAF, Tab 11 at 5-6. His current debt of $7,088.50 apparently
began to accrue on November 1, 2015, i.e., immediately thereafter. IAF, Tab 1 at 3-4.
The appellant’s current debt is purportedly related to his receipt of both CSRS deferred
annuity benefits and OWCP benefits. Id. at 3. The record, however, reflects that the
appellant has been c ontinually receiving OWCP benefits since 1996. PFR File, Tab 1
at 11.
5
ORDER
¶7 We therefore remand both matters to OPM for its further consideration.
Should OPM issue a final decision5 that is unfavorable to the appellant regarding
the recalculation of his CSRS deferred annuity benefits and/ or any outstanding
debt related to an overpayment thereof , he may file a new appeal of that decision
to the Board . See 5 U.S.C. § 8347 (d)(1); 5 C.F.R. § 831.110 . The appellant’s
appeal must be filed within the time limits set forth in the Board’s regulations.
See 5 C.F.R. § 1201.22 .
¶8 We also ORDER OPM to tell th e 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 B oard’s Order. The appellant,
if not notified, should ask OPM about its progress. See 5 C.F.R. § 1201.181 (b).
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 Ord er. The petition should contain specific
reasons why the appellant believes OP M has not fully carried out the Board’s
5 OPM argued before the adm inistrative judge that the June 21, 2021 determination
did not “appear[]” to constitute an initial decision because the determination did not
inform the app ellant of his right to request reconsideration. IAF, Tab 6 at 4. However,
OPM has previously provided the appellant with an initial decision absent such
information. 0149 IAF, Tab 1 at 5-6, Tab 10 at 2, 20 -21. Acc ordingly, we find that the
June 21, 202 1 deter mination constitutes an initial decision.
6
Order, and should include the dates and results of any communications with
OPM. See 5 C.F.R. § 1201.182 (a).
FOR THE BOARD:
Washington, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board | JOHNSON_NORMAN_A_NY_831M_21_0122_I_1_REMAND_ORDER_1998009.pdf | 2023-01-31 | null | NY-831M | NP |
3,661 | https://www.mspb.gov/decisions/nonprecedential/HALL_ROSETTA_M_CH_1221_19_0053_W_1_FINAL_ORDER_1998028.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
ROSETTA M. HALL,
Appellant,
v.
DEPARTMENT OF AGRICU LTURE,
Agency.
DOCKET NUMBER
CH-1221 -19-0053 -W-1
DATE: January 31, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL1
Rosetta M. Hall , Florissant, Missouri, pro se.
John Hippe , Esquire, St. Louis, Missouri, for the agency.
BEFORE
Cathy A. Harris , Vice Chairman
Raymond A. Limon , Member
Tristan L. Leavitt , Member
Member Leavitt recused 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
dismissed her individual right of action appeal for lack of jurisdiction. On
petition for review, the appellant recounts her history of disputes with the age ncy
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
and expresses her disagreement with the disposition of her various appeals,
complaints, and grievances . Generally, we grant petitions such as this one only in
the following circumstances: the initial decision contains erroneous findings of
material f act; the initial decision is based on an erroneous interpretation of statute
or regulation or the erroneous application of the law to the facts of the case; the
administrative judge’s rulings during either the course of the appeal or the initial
decision w ere not consistent with required procedures or involved an abuse of
discretion, and the resulting error affected the outcome of the case; or new and
material evidence or legal argument is available that, despite the petitioner’s due
diligence, was not avai lable when the record closed. Title 5 of the Code of
Federal Regulations, section 1201.115 ( 5 C.F.R. § 1201.115 ). After fully
considering the filings in this appeal, we conclude that the petitioner has not
established any basis under section 1201.115 for granting the petition for review.
Therefore, we DENY the petition for review and AFFIRM the initial decision,
which is now the Board’s final decision. 5 C.F.R. § 1201.113 (b).
NOTICE OF APPEAL RIG HTS2
You may obtain review of this final decision. 5 U.S.C. § 7703 (a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703 (b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how cour ts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
2 Since the issuance of the initial decision in this matter, the Board may have updated
the not ice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.
3
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have question s
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contain ed within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono fo r information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
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 Circu it), within 30 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:
5
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises 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.3 The court of appeals must receive your
petition for review within 60 days of the date of issuance of this decision.
5 U.S.C. § 7703 (b)(1)(B).
3 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 201 8, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The Al l Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195,
132 Stat. 1510.
6
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be 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_1221_19_0053_W_1_FINAL_ORDER_1998028.pdf | 2023-01-31 | null | CH-1221 | NP |
3,662 | https://www.mspb.gov/decisions/nonprecedential/ANDERSON_MARK_SF_0752_16_0451_I_1_FINAL_ORDER_1998034.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
MARK ANDERSON,
Appellant,
v.
DEPARTMENT OF THE IN TERIOR,
Agency.
DOCKET NUMBER
SF-0752 -16-0451 -I-1
DATE: January 31, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL1
Brook L. Beesley , Alameda, California, for the appellant.
Dusty Parson , Boise, Idaho, for the agency.
BEFORE
Cathy A. Harris , Vice Chairman
Raymond A. Limon , Member
Tristan L. Leavitt , Member
Member Limon recused himsel f and
did not participate in the adjudication of this appeal.
FINAL ORDER
¶1 The appellant has filed a petition for revie w of the initial decision, which
sustained his removal on the basis of a medical inability to perform the duties of
his position . Genera lly, we grant petitions such as this one only in the following
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
require d to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board ’s case law. See 5 C.F.R. § 1201.117 (c).
2
circumstances: the initial decision contains erroneous findings of material fact;
the initial decision is based on an erroneous interpretation of statute or regulation
or the erroneous applica tion 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 th e outcome of the case; or new and material
evidence or legal argument is available that, despite the petitioner ’s due
diligence, was not available when the record closed. Title 5 of the Code of
Federal Regulations, section 1201.115 ( 5 C.F.R. § 1201.115 ). After fully
considering the filings in this appeal, we conclude that the petitioner has not
established any basis under section 1201.115 for granting the petition for review.
Therefore, we DENY the petition for review and AFFIRM the initial decision,
which is now the Board ’s final decision. 5 C.F.R. § 1201.113 (b).
BACKGROUND
¶2 The appellant was employed as a Hydromechanic. Initial A ppeal File
(IAF), Tab 4 at 16. The agency proposed his removal on February 17, 2016 , on
the basis of his medical inability to perform due to his medical conditions. Id.
at 51-53. The appellant orally replied and s ubmitted documen ts in support of his
reply. Id. at 20 -37. The agency imposed the appellant ’s removal on March 29,
2016. Id. at 17 -18. He filed the instant appeal challenging his re moval and
requested a hearing. IAF, Tab 1.
¶3 After holding the appellant ’s requested hearing, the administrative judge
sustained his removal. IAF, Tab 25, Initial Decision (ID). She found that the
agency proved its charge of medical inability to perform. ID at 7 -13. She also
found that the appellant failed to prove the foll owing affirmative defense s:
disab ility discrimination on the bas is of failure to provide a reasonable
accommodation ; equal employment opportunity (EEO) retaliation ; harmful
procedural error or a due process violation based on his allegation that he was
3
unable to select the representative of his choice ; and that the action was not in
accordance with law based on an agency disclosure in 2009 that he asserted
violated the Health Insurance Portability a nd Accountability Act of 1996. ID at
13-26. She furthe r found that the agency established that the removal promoted
the efficiency of the service and that the penalty of removal was within the
toler able limits of reasonableness. ID at 26 -28.
¶4 The appella nt has filed a petition for review in which he primaril y
challenges the administrative judge’s finding that he failed to prove his disability
discrimination claim .2 Petition for Review (PFR) File, Tab 5. The agency has
not responded.3
DISCUSSION OF ARGUME NTS ON REVIEW
¶5 An agency is required to make reasonabl e accommodation to the known
physical and mental limitations of an otherwise qualified individual with a
disability unless the agency can show that accommodation would cause an undue
hardship on its business operations . See Miller v. Department of the Arm y,
121 M.S.P.R. 189 , ¶ 13 (2014) . Reasonable accommodation includes
modifications to the manner in which a position is customa rily performed to
enable a qualified individual with a disability to perform the essential job
2 The appellant has not challenged the administrative judge ’s findings that the agency
proved its charge, the removal action promoted the efficiency of the service, and the
penalty was within the tol erable limits of reasonableness . Petition for Review ( PFR )
File, Tab 5. He also did not challenge her findings that he failed to establish that the
agency retaliated against him for his prior EEO activity, that the agency did not commit
harmful procedural error or a due process violation regarding the selection of his
representative, and that he had not proven his claim that the removal was not in
accordance with law . Id. We find no reason to disturb these findings. See Crosby v.
U.S. Postal S ervice , 74 M.S.P.R. 98 , 106 (1997) (finding no reason to d isturb the
administrative judge ’s findings when she considered the eviden ce as a whole, drew
appropriate inferences, and made reasoned conclusions on issues of credibility ).
3 Although the agency did not file a response to the petition for review , the agency ’s
representative at that time entered a notice of appearance regarding the petition for
review. PFR File, Tab 7.
4
functions . Id. To establish disability discrimination, an employee 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 . Id.
¶6 The administrative judge found that, assuming the appellant meets the
definition of a person with a d isability under 29 C.F.R. § 1630.2 (g) in that he has
a medical condition that interferes with activities of daily living, he did not
establish his affirmative defense of disability discrimination. ID at 13 -18. She
found that he did not establish that he could perform the esse ntial functions of the
Hydromechanic position with or without reasonable accommodation because his
physician stated that he was not able to maintain “the proper alertness” for that
position . ID at 13 -14; IAF, Tab 4 at 62. The appellant also did not other wise
identify a reasonable accommodation that would have allowed him to perform the
essential functions of the position , and the administrative judge found that no
such accommodation was apparent from the record. ID at 14. The administrative
judge furthe r concluded that the appellant did not establish that he could perform
the essential functions of a vacant funded position to which he could have been
reassigned. Id.
¶7 Although the appellant contended that the agency should have offered him a
position that the agency identified in September 2016, IAF, Tab 20 at 10 -11, the
administrative judge found that the existence of this position did not demonstrate
the existence of a vaca nt funded position to which the appellant could have been
reassigned prior to his removal, ID at 16. She also found that the appellant failed
to engage in the interactive process by failing to provide the agency with an
updated ré sumé and responses to a brief questionnaire and affirmative stat ement
that he was willing to accept a non equivalent position . ID at 17 -18. Pursuant to
the requirement s of the interactive process and agency policy, his refusal
undermined his argument that the agency should have mor e thoroughly searched
5
for a vaca nt funded position for him. ID at 16; IAF, Tab 20 at 26-43. The
administrative judge stated that his refusal to provide the agency the necessary
information or engage in the interactive process supported a finding that the
agency could not have provided him a vacant funded position . ID at 17-18; IAF,
Tab 4 at 81 -88, Tab 5 at 4 -34. Thus, the administrative judge concluded that the
appellant failed to prove his affirmative defense. ID at 18.
¶8 On review, t he appellant argues that the agency improperly failed to assess
his me dical condition. PFR File, Tab 5 at 2-5. He previously asserted in his oral
reply to the proposed removal that the agen cy could have ordered an independent
fitness -for-duty examination and otherwise atte mpted to obtain medical
information on his behalf. IAF, Tab 20 at 56. However, we find no reason that
the agency would have collected additional medical information because the
appellant submitted an August 2015 letter from his physician stating that it was
unlikely that he would be able to return to the same work environment and that he
could not continue in the same position . IAF, Tab 4 at 74. T hus, the agency
already was able to determine that he could not perform the duties of his position
without a dditional medical information . Cf. Arche rda v. Department of Defense ,
121 M.S.P.R. 314, ¶¶ 20-21 (2014) (finding that the agency was entitled to
request medical documentation to determine whether the appellant met his
position’s requirement ). As a result, the agency began the process for
reassignment that would have allowed it to identify other positions for which the
appellant wa s qualified, but he did not participate in this process .4 IAF, Tab 4
4 To the extent that the appellant is challenging whether the agency reviewed the
medical evidence he submitted prior to his removal, we note that the agency specifically
mentioned the August 2015 letter from his physician in determining that he could not be
accommodated in his Hydromechanic position. IAF, Tab 20 at 48 -49. The proposing
official also specifically mentioned the letter. IAF, Tab 4 at 51. The appellant did not
submit any subsequent medical information. IAF, Tab 20 at 5 3-58. We therefore see
no basis for finding that the agency neglected to consi der the appellant’s medical
information.
6
at 99-101. Accordingly, the agency would have had no reason to collect
additional medical information.
¶9 The appellant next assert s that the agency failed to follow its procedures in
that he was not required to submit an updated résumé and a questionnaire for the
agency to begin a search for an alternative position and that his failure to do so
would only have limit ed the agency’s sea rch to equivalent positions within the
employing bureau/office and commuting area and/or limit consideration for
certain categories of positions. PFR File, Tab 5 at 4. The agency notified th e
appellant that, pursuant to its policy, p rior to initiating a search for any position,
he was required to submit an updated résumé and questionnaire. IAF, Tab 4
at 77-78, Tab 5 at 37. He did not do so. If he had submitted a questionnaire
requesting that the ag ency expand its search to a non equivalent , vacant funde d
position in his bureau/ office , it would have initiated this broader search under the
policy . IAF, Tab 20 at 28. However, the possibility of this broader search does
not affect the requirement that the appellant initially was required to submit a
résumé .5 On December 21, 2015, the agency issued a letter finding that he could
not be reassigned because he did not provide the proper documentation . IAF,
Tab 4 at 99-100. He was provided the opportunity t o respond but did not do so .
Id. Thus, contr ary to the appellant’s argument , agency policy required him to
5 The appellant cites the agency’s questionnaire, “Employee Questionnaire for
Reassignment: Preferences on Parameters for Conducting an Expanded Search for a
Vacant Position ,” for the proposition that he was not re quired to submit a résumé or
questionnaire prior to the agency ’s initiating its search. PFR File, Tab 5 at 4. He cites
the statement that, “[i] f you fail to respond to the questions above, the search for a
vacant, funded position will be limited to ‘equi valent’ position s within the employing
bureau/office and current commuting area.” Id.; IAF, Tab 4 at 89. He also cites the
statement that , “[i]f you answer ‘no’ to any question, or fail to answer any question, a
search for vacant, funded positions in tha t category will not be conducted and you will
have waived your right to consideration for such positions as a form of reasonable
accommodation. ” PFR File, Tab 4 at 4 (emphasis added) ; IAF, Tab 4 at 87. By its very
title, this questionnaire relates to the agency’s expanding its job search —and not its
initiat ion—and the statements above limit that expansion. This document does not
affect the agency’s requirement that the appellant submit a résumé prior to initiating its
job search.
7
submit proper documentation , and, despite being provided ample opportunity to
do so, he excluded himself from consideration for reassignment.
¶10 The appellant also challenges the administrative judge’s f inding that he
failed to cooperate with the agency and failed to e ngage in the interactive proces s.
PFR File, Tab 5 at 3. To determine the appropriate reasonable accommodation,
the agency may engage in an informal, “interactive process” with the employee .
See Brown v. Department of the Interior , 121 M.S.P.R. 205 , ¶ 21 (2014) ,
overruled on other grounds by Haas v. Department of Homel and Security , 2022
MSPB 36 ; 29 C.F.R. § 1630.2 (o)(3). However, when the existence or nature of a
reasonable accommodation is not obvious, and the employee fails to respond to
reasonable requests for medical information and documentation, the agency will
not be found to have violated its duty to provide a reasonable ac commodation
because the appellant failed to fulfill his obligations in the interactive process .
White v. Department of Veterans Affairs , 120 M.S.P.R. 405, ¶ 12 (2013) . The
appellant requested a reaso nable accommodation on November 14, 2015. IAF,
Tab 20 at 46. The agency found that he was not qualified for his position and
thus explained to him how to initiate the reassignment proces s. IAF, Tab 4
at 77-78. He did not do so. Id. at 99-100. Further, the accommodation was not
obvious , as the appellant did not identify what positions he would have accepted.
Given these facts, we agree with the administrative judge that the appellant failed
to engage in the interactive process. ID at 16 -18.
¶11 The appellant next argues that the agency should have appointed him to the
Security Guard position prior to his removal. PFR File, Tab 5 at 3, 5. However,
as previously discussed, the appellant d id not provide the necessary information
for the agency to appoint him to the position. IAF, Tab 4 at 99 -100. Further, as
the administrative judge stated , there was no evidence that this position was
8
vacant and funded at the time of the appellant’s removal.6 ID at 15 -16.
Accordingly, we sustain the appellant’s removal.7 See Brown , 121 M.S.P.R. 205,
¶¶ 23-25 (finding that the appellant failed to prove that the agency discriminated
against her by failing to reasonably accommodate her when the agency had
previously offered to convert her to two positions and the agency was not
required to assign he r to another position because it was not vacant).
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 th e time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703 (b).
Although we offer the following summary of available appeal rights, the Merit
6 To the extent that the appellant asserts that the agency committed harmful procedural
error in applying its procedures for providing reasonable accommodation , we find n o
such error in that, regardless of the application of procedures, the appellant did no t
demonstrate his entitlement to a reasonable accommodation in the form of reassignment
because he failed to engage in the interactive process.
7 The appellant challenges the administrative judge’s denial of his motion to compel,
which dismissed his discovery requests on timeliness grounds. PFR File, Tab 5 at 5;
IAF, Tab 18 , Tab 21 . He also asserts that the administrative judge improperly denied
his motion for his physician to testify by telephone at a later date after the hearing and
his reconsider ation motion. PFR File, Tab 5 at 5 ; Hearing Compact Disc (HCD) . At
the hearing, the administrative judge denied the appellant’s motion regarding the
additional testimony, stating that the appellant could have requested a subpoena for the
physician and th e hearing date had been set for a long time. HCD. An administrative
judge has broad discretion in ruling on discovery matters, and , absent an abuse of
discretion, the Board will not find reversible error in such rulings. Kingsley v. U.S.
Postal Service , 123 M.S.P.R. 365, ¶ 16 (2016 ); see generally O’Connor v. Department
of the Interior , 21 M.S.P.R. 687 , 690 (1984) (holding that the denial of the appellant’s
request of a subpoena duces tecum filed after the hearing closed w as not improper when
the appellant could not show that the evidence sought was not discoverable through use
of due diligence). Although the appellant disagrees with the administrative judge’s
rulings, he has not identified how she abused her discretion regarding such matters , and
thus this disagreement does not provide a reason for disturbing the initial decision.
8 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.
9
Systems Protec tion Board does not provide 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 r eview of this 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 c hosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional 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
10
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or 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
to waiver of any requirement of prepayment of fees, costs, or other security. See
42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district courts can be found at t heir respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the 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,
11
and your rep resentative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EE OC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2 302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.9 The court of appeals must receive your pe tition for
9 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction exp ired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of A ppeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
12
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Cir cuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195,
132 Stat. 1510.
13
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsit es.aspx .
FOR THE BOARD:
Washington, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board | ANDERSON_MARK_SF_0752_16_0451_I_1_FINAL_ORDER_1998034.pdf | 2023-01-31 | null | SF-0752 | NP |
3,663 | https://www.mspb.gov/decisions/nonprecedential/TOGIA_TAVITA_P_SF_0752_21_0073_I_1_FINAL_ORDER_1998036.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
TAVITA P. TOGIA,
Appellant,
v.
DEPARTMENT OF THE IN TERIOR,
Agency.
DOCKET NUMBER
SF-0752 -21-0073 -I-1
DATE: January 31, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL1
Gwen Tauiliili -Langkilde , Esquire, Pago Pago, for the appellant.
Rachel Wieghaus , Washington D.C. , for the agency.
Kevin D. Mack , Esquire, Sacramento, California, 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.
FINAL ORDER
¶1 The appellant has filed a petition for review of the initial decision,
which dismissed his involuntary resignation ap peal for lack of jurisdiction.
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any fu ture decisions. In contrast,
a precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c).
2
On petition for review, the appellant argues that the administrative judge wrongly
denied him a hearing and did not consider all of the information that he had
provided in support of his involuntary resignation claim , including affidavits
from a coworker and his spiritual advisor. Petition for Review (PFR) File, Tab 1
at 3-4. 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 proce dures 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 Much of the appellant’s arguments on review concern his prior removal
appeal , which an administrative judge mitigated to a 30 -day suspension . Togia v.
Department of the Interior , MSPB Docket No. SF -0752 -19-0343 -I-1, Initial
Deci sion (July 17, 2019); PFR File, Tab 1 at 4-6. To the extent that the
appellant’s arguments about his extended administrative leave and circumstances
of his return to duty status, including his assertion that the agency should have
assigned him another sup ervisor, constitute an argument that the agency failed to
comply with the interim relief order while its petition for review was pending
before the Board, such arguments should have been made in challenge to the
3
agency’s certificatio n of compliance2 in that appeal. PFR File, Tab 1 at 4;
see 5 C.F.R. § 1201.116 (b).
¶3 The administrative judge thoroughly addressed the appellant’s arguments
and third -party declarations, as well as the agen cy’s documentary submissions, in
finding that he failed to make a nonfrivolous allegation that his resignation was
involuntary. Initial Appeal File (IAF), Tab 10, Initial Decision (ID) at 5-12.
Contrary to the appellant’s arguments , the administrative ju dge did not require
the appellant to prove his allegations at the jurisdictional stage and did not
improperly weigh evidence or make any factual findings. PFR File, Tab 1 at 5-6;
see Ferdon v. U.S. Postal Service , 60 M.S.P.R. 325 , 329 (1994) (stating that the
Board may consider the agency’s documentary submissions in determining
whether the appellant has made a nonfrivolous allegation but tha t
an administrative judge may not weigh evidence and resolve conflicting
assertions of the parties). We agree with the administrative judge that none of the
appellant’s allegations regarding his supervisor’s purported unfair treatment
during his extended adminis trative leave or approximately 1 week in a duty status
prior to his resignation , including limited job duties and severe restrictions on
his activities, evince the type of intolerabl e working conditions that
would compel a reasonable person to resig n. PFR File, Tab 1 at 4 -6; IAF, Tab 1
at 10 -12, Tab 8 at 13 -15; ID at 5 -12; see Miller v. Department of Defense ,
85 M.S.P.R. 310 , ¶ 32 (2000) (finding that dissatisfaction with work assignments,
a feeling of being unfairly criticized, or difficult or unpleasant working
2 The administrative judge erred in stating that the appellant’s remedy for the agency’s
purported failure to comply with the initial decision was a petition for enforcement.
Initial Appeal File, Tab 10, Initial Decision at 6. The Board’s regulations do n ot allow
for a petition for enforcement of an interim relief order. Ayers v. Department of the
Army , 123 M.S.P.R. 11 , ¶¶ 7-8 (2015 ); see 5 C.F.R. § 1201.182 (a)-(b). Nevertheless ,
the administrative judge properly noted that the app ellant could have addressed
noncompliance in the removal appeal instead of resigning . See Panter v. Department of
the Air Force , 22 M.S.P.R. 281 , 282 (1984 ) (explaining that an adjudicatory error that
is not prejudicial t o a party’s substantive rights provides no basis for reversal of an
initial decision).
4
conditions are generally not so intolerable as to compel a reasonable person to
resign). Because the appellant has n ot presented nonfrivolous allegations of
Board jurisdiction, he is not entitled to a jurisdictional hearing. See Ferdon ,
60 M.S.P.R. at 329 .
¶4 Accordingly, we deny the petition for review and affirm the initial decision.
NOTICE OF APPEAL RIG HTS3
You may ob tain review of this final decision. 5 U.S.C. § 7703 (a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the 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 you r claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a gener al rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
3 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the n otice, the
Board cannot advise which option is most appropriate in any matter.
5
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of par ticular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the servic es provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected b y an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil act ion with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Me rit 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
6
you do , then you must file with the district court no later than 30 calendar days
after your representative receives this decision. If the action involves a claim of
discrimination based on race, color, religion, sex, national origin, or a disabling
condition, you may be entitled to representation by a court -appointed lawyer and
to waiver of any requirement of prepayment of fees, costs, or other security. See
42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file an y such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case,
and your rep resentative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EE OC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
7
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
other protected activities listed in 5 U.S.C . § 2302 (b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personne l practice described in
section 2302(b) other than practices described in section 2 302(b)(8), or
2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial
review either with the U.S. Court of Appeals for the Federal Circuit or any court
of appeals of competent jurisdiction.4 The court of appeals must receive your
petition for review within 60 days of the date of issuance of this decision.
5 U.S.C. § 7703 (b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D .C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
4 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 20 17. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195,
132 Stat. 1510.
8
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/C ourtWebsites.aspx .
FOR THE BOARD:
Washington, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board | TOGIA_TAVITA_P_SF_0752_21_0073_I_1_FINAL_ORDER_1998036.pdf | 2023-01-31 | null | SF-0752 | NP |
3,664 | https://www.mspb.gov/decisions/nonprecedential/STOGLIN_COREY_D_CH_3330_17_0501_I_1_REMAND_ORDER_1998047.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
COREY D. STOGLIN,
Appellant,
v.
DEPARTMENT OF AGRICU LTURE,
Agency.
DOCKET NUMBER
CH-3330 -17-0501 -I-1
DATE: January 31, 2023
THIS ORDER IS NONPRECEDENTIAL1
Corey D. Stoglin , Minneapolis, Minnesota, pro se.
Martin A. Gold , 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 appellan t has filed a petition for review of the initial decision, which
denied his request for corrective action in his appeal under the Veterans
Employment Opportunities Act of 1998 (VEOA) and dismissed his appeal under
the Uniformed Services Employment and Reem ployment Rights Act of 1994
1 A nonprecedential order is one that the Board has determined does not add
significantly to the 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
(USERRA) for lack of jurisdiction. For the reasons discussed below, we GRANT
the appellant’s petition for review, AFFIRM the finding that the appellant is not
entitled to corrective action under VEOA , VACATE the jurisdictional dismissal
of the appellant’s USERRA claim , and REMAND the case to the Central
Regional Office for further adjudication in accordance with this Remand Order .
BACKGROUND
¶2 The appel lant, a 30% disabled preference -eligible veteran, is employed as a
GS-12 Equal Opportunity Specialist. Initial Appeal File (IAF), Tab 6 at 8, 10,
Tab 10 at 21. On October 19, 2016, the appellant applied under vacancy
announcement AG OASCR -2016 -0292 for the GS -14 Equal Opportunity
Specialist (Team Lead) position . IAF, Tab 10 at 10, 26-30. On or around
Febr uary 1, 2017, the appellant learned that the agency did not select him for the
position. IAF, Tab 6 at 4, 40. He requested that the agency reconsider its
determination. Id. at 40. The agency reevaluated his application and aff irmed its
determination on February 7, 2017. Id. at 40 -41.
¶3 On June 29, 2017, the appellant filed a complaint with the Department of
Labor (DOL), alleging that the agency violated his veterans’ preference rights.
IAF, Tab 1 at 6. On July 20, 2017, DOL c losed the appellant’s complaint,
determining that the evidence did not support his allegation that the agency
violated his veterans’ preference rights. Id. at 7 -8. On August 5, 2017, the
appellant filed the instant Board appeal. IAF, Tab 1.
¶4 The administ rative judge issued an order in forming the appellant of the
criteria required to meet his burden of proving jurisdiction over his appeal,
including the exhaustion and timeliness prerequisites that must be fulfilled to
pursue a VEOA claim with the Board. I AF, Tab 4 at 1 -6. In his response, the
appellant reiterated his belief that the agency violated his rights under a statute or
regulation relating to veterans’ preference and raised a claim that the agency may
have violated USERRA. IAF, Tab 6 at 4 -7. The agency moved to dismiss the
3
appeal on the grounds that the appellant’s DOL complaint was untimely filed and
equitable tolling was inapplicable. IAF, Tab 9 at 9 -11.
¶5 Without holding the appellant’s requested hearing, the administrative judge
issued an ini tial decision that denied the appellant’s request for corrective action
under VEOA, finding that he did not file his VEOA complaint with the Secretary
of Labor within 60 days of the alleged violation, as required by statute, and failed
to provide a basis f or the 60 -day deadline to be equitably tolled. IAF, Tab 12,
Initial Decision (ID) at 4 -7. He also dismissed the appellant’s USERRA claim for
lack of jurisdiction. ID at 7 -8.
¶6 The appellant has filed a petition for review. Petition for Review (PFR)
File, Tab 1 at 4. The agency has filed a response to the petition. PFR File, Tab 3.
DISCUSSION OF ARGUME NTS ON REVIEW
The administrative judge proper ly denied the appellant’s claim for corrective
action under VEOA.
¶7 Under VEOA, a preference eligible who alleg es that an agency violated his
or her rights under any statute or regulation relating to veterans’ preference may
file a complaint with the Secretary of Labor. 5 U.S.C. § 3330a (a)(1)(A). Such a
complaint “must be filed within 60 days after the date of the alleged violation.”
5 U.S.C. § 3330a (a)(2)(A). The 60 -day deadline is not jurisdictional; rather , it is
similar to a statute of limi tations that is subject to equitable tolling. Kirkendall v.
Department of the Army , 479 F.3d 830 , 842 -43 (Fed. Cir. 2007); Bent v.
Department of State , 123 M.S.P.R. 304 , ¶ 12 (2016). The U.S. Supreme Court
has explained that Federal courts have typically applied equitable reli ef only
sparingly and that it is allowed only in situations “where the claimant has actively
pursued his judicial remedies by filing a defective pleading during the statutory
period, or where the complainant has been induced or tricked by his adversary’s
misconduct into allowing the filing deadline to pass.” Irwin v. Department of
Veterans Affairs , 498 U.S. 89 , 96 (1990); see Heimberger v. Departme nt of
Commerce , 121 M.S.P.R. 10 , ¶ 10 (2014). When , as here, the appellant failed to
4
timely file a VEOA complaint with the Sec retary of Labor and did not establish
grounds for equitable tolling, the Board must deny the request for corrective
action. Garcia v. Department of Agriculture , 110 M.S.P.R. 371 , ¶ 13 (2009).
¶8 It is undisputed that the appellant did not timely file his VEOA complaint
with the Secretary of Labor.2 IAF, Tab 6 at 4. There is neither argument nor
evidence that the appellant filed a defective complaint within the statutory
period.3 The appellant argues on review , however, that the agency engaged in
“trickery” when it provided incomplete facts and denied knowledge of his equal
employment opportunity ( EEO ) activity. I AF, Tab 9 at 11; PFR File, Tab 1
at 4-5. While the agency has acknowledged that it incorrectly wrote in its
response below that the appellant had not filed an EEO complaint, PFR File,
Tab 3 at 6, he does not explain how the agency’s action provides a basis for the
60-day deadline to be equitably tolled . Because the agency’s misstatement
occurred after the filing deadline already had passed, he could not have been
induced or tricked into missing the deadline by the agency’s misstatement. See
Hayes v. Department of the Arm y, 111 M.S.P.R. 41 , ¶ 11 (2009). Thus , it appears
2 The record shows that the agency no tified the appellant of his non selection on or
around February 1, 2017, and then reaffirmed its decision on February 7, 2017, in
response to his request for recon sideration. IAF, Tab 6 at 40 -41. The appellant did not
file a complaint with the DOL until June 29, 2017. Id. at 108. Thus, the filing of the
appellant’s VEOA complaint with the Secretary of Labor was well beyond the statutory
deadline outlined in 5 U.S.C. § 3330a (a)(2)(A). It occurred more than 60 days from the
date of the alleged violation.
3 A defective pleading is one that does not satisfy t he criteria for such a pleading but
nevertheless manifests an intention for it to serve as such a pleading. See Gingery v.
Office of Personnel Management , 119 M.S.P.R. 43 , ¶ 18 n.5 (2012); Greco v.
Department of Homeland Security , 110 M.S.P.R. 135 , ¶ 8 (2008). For instance, the
appellant ’s pursuit of his remedies in the wrong forum within the limitations period
may qualify as a defective pleading . See I rwin , 498 U.S. at 96 n.3; Brown v. U.S.
Postal Service , 110 M.S.P.R. 381, ¶ 14 (2009 ). While the appellant has alleged that he
initiated an EEO complaint on March 13, 2017, there is no evidence that this complaint
amounted to a defective pleading that he intended to file with DOL . IAF, T ab 6 at 4;
see Brown , 110 M.S.P.R. 381 , ¶ 13. He does not proffer the EEO complaint or show
that his EEO comp laint encompassed a veterans’ preference claim. Id.
5
that the appellant’s failure to file a timely complaint with DOL was the result of
his own lack of due diligence in preserving his legal rights, which is not grounds
for equitable tolling. Brown v. U.S. Postal Service , 110 M.S.P.R. 381, ¶ 12
(2009).
¶9 We have considered the appellant’s allegation that he was wrongly denied a
hearing. PFR File, Tab 1 at 3. A VEOA complainant does not h ave an
unconditional right to a hearing before the Board, and the Board may dispose of a
VEOA appeal on the merits without a hearing. Coats v. U.S. Postal Service ,
111 M.S.P.R. 268 , ¶ 13 (2009). Disposition of a VEOA appeal withou t a hearing
is appropriate when , as here, there is no genuine dispute of material fact and one
party must prevail as a matter of law. Id.
¶10 We also decline to consider any argument or evidence that the appellant
submits for the first time on review because he has failed to show that it was
unavailable, despite his due diligence, when the record closed. See Banks v.
Department of the Air Force , 4 M.S.P.R. 268 , 271 (1980); Avansino v. U.S.
Postal Service , 3 M.S.P.R. 211 , 214 (1980); 5 C.F.R. § 1201.115 (d).
The administrative judge did not issue proper Burgess notice for the appellant’s
USERRA claim.
¶11 Under USERRA, the B oard has jurisdiction over a person alleging
discrimination in Federal employment on account of prior military service or
military obligations. 38 U.S.C. §§ 4311 (a), 4324(b)(1); Henderson v. U.S. Postal
Service , 95 M.S.P.R. 454 , ¶ 5 (2004). USERRA provides, in relevant part, that
“[a] person who . . . has performed . . . service in a uniformed service shall not be
denied initial employment . . . on the basis of that . . . performance of
service . . . .” 38 U.S.C. § 4311 (a).
¶12 To establ ish Board jurisdiction under 38 U.S.C. § 4311 (a), an appellant
must nonfrivolously allege that: (1) he performed duty or has an obligation to
perform duty in a uniformed service of the United Sta tes; (2) the agency denied
him initial employment, reemployment, retention, promotion, or any benefit of
6
employment; and (3) the denial was due to the performance of duty or obligation
to perform duty in the uniformed service. Swidecki v. Department of Co mmerce ,
113 M.S.P.R. 168 , ¶ 6 (2010). A claim of discrimination under USERRA should
be broadly and liberally construed to determi ne whether it is nonfrivolous,
particularly whe n, as here, the appellant is pro se. Id. The weakness of the
assertions in support of a claim is not a basis to dismiss the USERRA appeal for
lack of jurisdiction; rather, if the appellant fails to develop h is contentions, his
USERRA claim should be denied on the merits. Id.
¶13 The appellant argues on review that the administrative judge did not
correctly adjudicate the USERRA issue . PFR File, Tab 1 at 4. For the reasons
set forth below, we agree.
¶14 Although the appellant raised a USERRA claim in his response to a VEOA
jurisdiction order, IAF, Tab 6 at 6 -7, the admin istrative judge did not issue
another order apprising the appellant of the showing he was required to make to
establish Board jurisdiction over his USERRA claim . See Burgess v. Merit
Systems Protection Board , 758 F.2d 641 , 643 -44 (Fed. Cir. 1985) ( explaining that
an appellant must receiv e explicit information on what is required to establish an
appealable jurisdictional issue) . Neither the agency’ s response nor the initial
decision set forth the burdens and elements of proof to establish Bo ard
jurisdiction over the USERRA claim . IAF, Ta b 9 at 8; ID at 7 ; see Scott v.
Department of Justice , 105 M.S.P.R. 482 , ¶ 6 (2007) (finding that an
administrative judge’s failure to provide an appellant with proper Burgess notice
can be cured if the agency’s pleadings contain the notice that was lacking in the
acknowledgment order, or if the initial decision itself put the appellant on notice
of what he must do to establish jurisdiction so as to afford him the opportunity to
meet his jurisdictional burden for t he first time on petition for review).
¶15 Rather, in the initial decision, the administrative judge state s that the
appellant must make an initia l showing that his military obligation was a
“substantial or motivating factor” in the agency action —a requirement that do es
7
not arise at the jurisdictional stage. ID at 7-8; see Lazard v. U.S. Postal Service ,
93 M.S.P.R. 337 , ¶ 9 (2003). The administrative judge’ s determination that the
appellant failed to make the requisite initial showing may be relevant to the
merits of the USERRA claim, but it does not necessarily precl ude a finding of
jurisdiction. ID at 7 -8; see Swidecki , 113 M.S.P.R. 168, ¶¶ 8 -9.
¶16 We therefore remand this appeal so that the administrative judge can inform
the appellant of his burden s and elements of proof on his USERRA claim , afford
him an opportunity to show that his appeal is within th e Board’ s jurisdiction , and ,
if the appellant makes the requisite showing , adjudicate the claim on the merits.
ORDER
¶17 For the reasons discussed above, we remand the case to the C entral
Regional Office for further adjudication in accordance with this Remand Order.
The administrative judge should incorporate by reference our analysis a nd
disposition of the appellant’ s VEOA claim in the new initial decision on the
USERRA claim so that the appellant will have a single decision with appropriate
notice of appeals rights addressing both of his claims. See Goldberg v.
Department of Homeland Security , 99 M.S.P.R. 660 , ¶ 12 (2005).
FOR THE BOARD:
Washington, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board | STOGLIN_COREY_D_CH_3330_17_0501_I_1_REMAND_ORDER_1998047.pdf | 2023-01-31 | null | CH-3330 | NP |
3,665 | https://www.mspb.gov/decisions/nonprecedential/GEFFRARD_JOSEPH_S_DC_0432_16_0627_I_1_REMAND_ORDER_1998060.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
JOSEPH S. GEFFRARD,
Appellant,
v.
DEPARTMENT OF THE TR EASURY,
Agency.
DOCKET NUMBER
DC-0432 -16-0627 -I-1
DATE: January 31, 2023
THIS ORDER IS NONPRECEDENTIAL1
Joseph S. Geffrard , Columbia, Maryland, 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
REMAND ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
affirmed his removal for unacceptable performance under 5 U.S.C. chapter 43 .
For the reasons discussed below, we GRANT the appellant ’s petition for review
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required 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
and REMAND the case to the Washington Regional Office for further
adjudication in accordance with this Remand Order.
BACKGROUND
¶2 The appellant was previously employed as a GS -13 IT Specialist (Systems
Analyst) with the agency. Initial Appeal File (IAF), Tab 20 at 26. His job duties
included the following, among other things: ensuring the integration of IT
programs and services; designing, developing, and managing IT security systems;
managing assigned projects; leading IT systems development projects f rom
design to support; and evaluating the effectiveness of installed systems and
services. Id. at 162. The appellant ’s Performance Plan included the five
following critical elements: (1) Employee Satisfaction -Employee Contribution ;
(2) Customer Satisfact ion-Knowledge ; (3) Customer Satisfaction -Application ;
(4) Business Results -Quality ; and (5) Business Results -Efficiency. Id. at 147 -59.
Additionally, each critical element had three sub-elements, lettered “A” through
“C,” respectively. Id. The appellan t’s performance was rated on a five-tier
scale, including the following ratings: Outstanding (level 5), Exceeds Fully
Successful (level 4), Fully Successful (level 3), Minimally Successful (level 2),
and Unacceptable (level 1). Id. at 171 , see id. at 122, 125.
¶3 By a letter dated September 22, 2015, the appellant ’s first -line supervisor
placed him on a 60 -day Performance Improvement Plan (PIP) to address his
performance in critical elements 2, 3, 4, and 5. IAF, Tab 20 at 113 -20.
Specifically, the P IP letter informed the appellant that his performance was
unacceptable and that he was failing sub -elements (identified as performance
“aspects ”) 2B, 2C, 3B, 3C, 4B, 5A, and 5C of the respective critical elements. Id.
The notice informed the appellant th at, in order to attain a Fully Successful level
of performance, he must meet all of the performance aspects listed in the critical
job elements during the PIP period, and to attain a Minimally Successful level of
performance and to retain retention in his position, he must fail no more than one
3
performance aspect during the PIP period. Id. at 120. The notice also included
suggestions for what the appellant should do to meet the performance aspects , and
informed him that his supervisor would meet with him on a biweekly basis during
the PIP period to review his work, asses s his progress, and answer any questions
or provide necessary guidance. Id. at 119 -20.
¶4 During a November 17, 2015 PIP counseling session, the appellant ’s
supervisor agreed to extend the PIP period by 14 calendar days, for the period
from December 3, 2015 , through December 17, 2015, to provide the appellant
with additional counseling due to the supervisor ’s absences during the PIP period.
See id. at 79 -80. After the close of the extended PIP period, on December 18,
2015, the appellant met with his supervisor for a debriefing and to discuss his
performance during the PIP. See IAF, Tab 33 at 36 -57. By a letter dated January
14, 201 6, the agency proposed the appellant ’s removal under 5 U.S .C. chapter 43,
for unacceptable performance in critical element s 2, 3, 4, and 5 . IAF, Tab 20 at
60-69. After the appellant and his union representative provided an oral response
to the proposal, see id. at 35 -58, the agency issued a decision sustaining the
specifications of unacceptable performance and removing the appellant from his
position, effective April 26, 2016, id. at 29-33.
¶5 The appellant filed a Board appeal, challenging the merits of the agency ’s
action and raising the affirmative defenses of discrimination based on national
origin and reprisal for requesting reasonable accommodation . IAF, Tab 1 at 1-5;
Tab 39 at 1-2, n.1; see IAF, Tab 38 . After a hearing, IAF, Tab 43, the
administrative judge issued an initial decisio n affirming the appellant ’s removal ,
IAF, Tab 44, Initial Decision (ID). He found that the agency met its burden of
proof on each of the elements of its case and that the appellant failed to prove his
affirmative defenses. ID at 7-20.
¶6 The appellant has f iled a petition for review in which he alleges that the
administrative judge improperly rejected three of his witnesses, challenges the
administrative judge ’s credibility determinations and asserts that an agency
4
witness “committed perjury, ” and requests t hat the Board allow his new legal
counsel to “review his case, ” indicating that his union representatives “messed up
[his] case ” during the oral reply to the removal proposal. Petition for Review
(PFR) File, Tab 1 at 4. The agency has filed a respons e in opposition to the
petition for review, and the appellant has not filed a reply. PFR File, Tab 3 .
DISCUSSION OF ARGUME NTS ON REVIEW
The administrative judge correctly concluded that , under the law in effect at the
time, the agency satisfied its burden to prove that the appellant ’s performance
was unacceptable.
¶7 At the time the initial decision was issued, the Board ’s case law stated that,
in a performance -based action under 5 U.S.C. chapter 43, an agency must
establish by substantial evidence that: (1) the Office of Personnel Management
(OPM) approved its performance appraisal system and any significant changes
thereto; (2) the agency communicated to the appellant the performance standards
and critical elements of his position; (3) the appellant ’s performan ce standards
are valid under 5 U.S.C. § 4302 (c)(1); (4) the agency warned the appellant of the
inadequacies in his performance during the appraisal period and gave him an
adequate opportunity to de monstrate acceptable performance; and (5) after an
adequate improvement period, the appellant ’s performance remained unacceptable
in at least one critical element. Towne v. Department of the Air Force ,
120 M.S.P.R. 239 , ¶ 6 & n.5 (2013); see 5 U.S.C. § 7701 (c)(1)(A). The
administrative judge addressed each of these elements i n turn and found that the
agency carried its burden with respect to all of them. ID at 6 -18. These findings
are supported by the record, and the appellant does not challenge them on petition
for review. 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. ”).
Accordingly, w e affirm the administrative judge ’s findings in this regard.
5
The administrative judge correctly determined that the appellant failed to prove
his affirmative defenses.
¶8 The appellant does not challenge the administrative judge ’s finding that he
failed to prove his affirmative defense of national origin discrimination. PFR
File, Tab 1 at 4 ; see ID at 16-18. In denying the appellant ’s discrimination
affirmative defense s, the administrative judge applied the evidentiary standards
set forth in Savage v. Department of the Army , 122 M.S.P.R. 612 , ¶¶ 42, 48,
49-51 (2015) , overruled in part by Pridgen v. Office of Management & Budget ,
2022 MSPB 31 , ¶¶ 23-25, finding that the appellant failed to introduce any
evidence to support his conclusory claims of national origin discrimination and
retaliation for requesting a reasonable accommodation. IAF, Tab 44, Initial
Decision (ID) at 16-20. In Gardner v. Department of Veterans Affairs ,
123 M.S.P.R. 647 , ¶¶ 30-31 (2016) , clarified by Pridgen , 2022 MSPB 31 ,
¶¶ 23-24, the Board clarified that it will not separate direct from indirect evidence
and proceed as if such evidence were subject to different legal standards. Rather,
the Board will evaluate the evidence as a whole, “in a single pile, ” to determine
whether the appellant has shown by a preponderance of the evidence that the
prohibited conside ration was a motivating factor in the contested personnel
action. Id. (quoting Ortiz v. Werner Enterprises , Inc., 834 F.3d 760 , 766 (7th Cir.
2016)). With respect to the appellant ’s national origin discrimination claim, the
administrative judge determined that , aside from unsupported speculation that
agency officials “maybe ” removed him because he was not from the United
States, the appellant had failed to produce any evidence to support this
affirmative defense claim. ID at 18. Regardless of the characterization of the
evidentiary standard s, we find that the administrative judge properly considered
the evidence as a whole in finding that the ap pellant did not prove that national
6
origin discrimination was a motivating factor in his removal and so the appellant
failed to prove this claim.2
¶9 Regarding the appellant ’s affirmative defense of reprisal for requesting
reasonable accommodation , the admini strative judge also concluded that the
appellant failed to prove this claim, which the appellant has not challenged on
review. PFR File, Tab 1 at 4, see ID at 18-20. Requesting reasonable
accommodation is activity protected by the Americans with Disabilities Act, as
amended by the Americans with Disabilities Act Amendments Act (ADAAA) , 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,
37 (recogn izing that requesting reasonable accommodation and complaining of
disability discrimination are activities protected by the ADAAA) . After the
issuance of the initial decision in this case, the Board clarified in Pridgen that
this type of claim requires that the appellant prove “but-for” causation as his
initial burden . Pridgen , 2022 MSPB 31, ¶¶ 46-47. Because we agree with the
administrative judge ’s finding that , based on the evidence as a whole, the
appellant failed to meet the lesser burden of proving that his protected activity
was a motivating factor in his removal, we also find that he failed to meet the
more stringent “but-for” standard that applies to his retaliation claim. See ID at
18-20. Accordingly, we also conclude that the appellant failed to prove this
affirmative defense, as modified to incorporate the correct standard identified in
Pridgen .
Remand is necessary t o afford the parties an opportunity to provide evidence and
argument concerning whether the appellant ’s placement on the PIP was proper.
¶10 Despite our conclusion that the administrative judge correctly determined
that the appellant ’s performance was unaccept able based on the standard
2 Because we find that the appellant failed to prove that national origin was a
motivating factor in his removal, we do not reach the question of whether his activity
was a “but -for” cause of the remova l action. See Pridgen , 2022 MSPB 31 , ¶¶ 20-25.
7
applicable at the time the initial decision was issued, after the initial decision in
this case was issued, the U.S. Court of Appeals for the Federal Circuit issued a
precedential decision in Santos v. National Aeronautics & Space Administration ,
990 F.3d 1355 , 1360 -61 (Fed. Cir. 2021), holding that part of the agency ’s burden
of proof under chapter 43 is to show by substantial evidence that the appellant ’s
performance leading up to the PIP was unacceptable. Following the issuance of
Santos , the Board issued an Opinion and Order in Lee v. Department of Veterans
Affairs , 2022 MSPB 11 ¶ 15, which incorporated the changes made by Santos ,
setting forth the agency ’s burden of proof as follows: to defend an action under
chapter 43, the agency must prove b y 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 appellant ’s performan ce 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
warned the appellan t 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.
¶11 Although the record contains evidence indicating that the appellant ’s
performance was unacceptable prior to the initiation of the PIP, see IAF, Tab 20
at 121 -45, Tab 33 at 28 -31, we nevertheless must remand the appeal to give the
parties the opportunity to present argument and additional evidence on whether
the appellant ’s performance during the period leading up to the PIP was
unacceptable in one or more critical elements, see Lee , 2022 MSPB 11, ¶¶ 15‑17.
On remand, the administrative judge shall accept argument and evidence on this
issue and shall hold a supplemental hearing , if appropriate. Id., ¶ 17. The
administ rative judge shall then issue a new initial decision consistent with Santos .
See id. If the agency makes the additional showing required under Santos on
8
remand, the administrative judge may incorporate in the remand initial decision
his prior findings on the other elements of the agency ’s case, and the appellant ’s
affirmative defenses, as modified herein to apply the proper standard. See id.
However, regardless of whether the agency meets its burden, if the argument or
evidence on remand regarding the a ppellant ’s pre -PIP performance affects the
administrative judge ’s analysis of the appellant ’s affirmative defenses, he should
address such argument or evidence in the remand initial decision. See Spithaler
v. Office of Personnel Management , 1 M.S.P.R. 587 , 589 (1980) (explaining that
an initial decision must identify all material issues of fact and law, summarize the
evidence, resolve issues of credibility, and include the administrative judge ’s
conclusions of law and his legal reasoning, as well as the authorities on which
that reasoning rests).
The appellant ’s remaining arguments do not warrant Board review.
¶12 On review, the appellant argues that the administrative judge rejected three
of his witnesses because the administrative judge “claimed that [he] didn ’t know
what they were going to say. ” PFR File, Tab 1 at 4. He asserts that the
administrative judge “rejected ” his supervisor as a witness, but a “few days prior
to” the hearing “said that he could consider having her as a witness if [the
appellant] provided all the information. ” Id. The appellant stated that he told the
administrative judge prior to the hearing that he had a “legally obtained phone
conversation ” between himself and his supervisor, but that the administrative
judge informed him that he would not be allowed to “play the tape in court. ” Id.
¶13 The appellant ’s challenges to the administrative j udge ’s evidentiary rulings
are unpersuasive. An administrative judge has wide discretion to control the
proceedings, including the authority to exclude testimony and evidence he
believes would be irrelevant or immaterial. Sanders v. Social Security
Admin istration , 114 M.S.P.R. 487 , ¶ 10 (2010). The Board has found that, to
obtain reversal of an initial decision on the ground that t he administrative judge
abused his discretion in excluding evidence, the petitioning party must show on
9
review that the administrative judge disallowed a relevant witness or evidence
that could have affected the outcome. Id. In contrast to the appellant ’s assertion,
the administrative judge approved his supervisor as a witness, despite the
appellant ’s failure to file a subpoena request for the former Federal employee.
IAF, Tab 39 at 5. Similarly, the initial decision demonstrates that the
administrative judge considered the transcript of the recording but found that the
document was “difficult to comprehend without additional background and
context and therefore [did] little to advance the appellant ’s claims. ” ID at 15
n.16. The appellant did not file an exception to the summary of the prehearing
conference, in which the administrative judge granted the appellant ’s request to
call his supervisor as a witness and allowed him to introduce relevant portions of
the recording transcript to refute or corrobor ate material facts during the hearing.
IAF, Tab 39 at 5 -6. Additionally, the appellant failed to articulate any reason
why the unknown testimony of his former coworker, to whom he had not spoken
prior to the prehearing conference, could have affected the outcome of the appeal.
PFR File, Tab 1 at 4; IAF, Tab 39 at 5. To the extent that the appellant sought to
introduce the testimony of his former supervisor to demonstrate his prior
“outstanding ” performance, the administrative judge found her ratings of the
appellant ’s performance were not in dispute in the record. IAF, Tab 39 at 5.
¶14 The record also clearly refutes the appellant ’s argument on review that the
administrative judge “told [him] that the burden of proof was not with the
Agency. ” PFR File, Tab 1 at 4. The administrative judge provided explicit
instructions to the parties in both the hearing order and summary of prehearing
conference that the agency had the burden of proof regarding the removal action
and the appellant had the burden of proving his affirmative defenses. IAF,
Tab 30 at 4 -9, Tab 39 at 2 ‑5.
¶15 Additionally, the appellant challenges on review the administrative judge ’s
credibility determination regarding an unspecified witness. PFR File, Tab 1 at 4.
He argues that the administrative judge “called the witnesses credible, and one of
10
the witnesses committed perjury in his court room. ” Id. The appellant claims
that he “pointed it out ” to the administrative judge, who “said it wasn ’t important
at that point. ” Id. In its response to the petition for review, the agency notes that
the appellant failed to identify the witness who allegedly committed perjury, but
speculates that the appellant was referring to the testimony of the deciding
official, who maintained that he appeared in person at the appellant ’s oral reply,
despite the appellant ’s insistence that he was not there in person. PFR File, Tab 3
at 8; IAF, Tab 43 (He aring Recording). The Board must give due 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 ). To the extent that the appellant challenges
the administrative judge ’s credibility determination of the deciding official, we
conclude that the initial decision adequately addresses the administrative judge ’s
reasons for finding that the deciding offic ial was a credible witness.
¶16 Finally, regarding the appellant ’s discussion of his unsuccessful attempts to
obtain legal representation prior to his oral reply to the proposed removal and his
assertion that his union representatives “messed up [his] case, ” the appellant ’s
failure to secure his own representation during the proceedings below does not
form a basis for granting his petition on review. PFR File, Tab 1 at 4; see
Brum v. Department of Veterans Affairs , 109 M.S.P.R. 129 , ¶ 5 (2008) .
11
ORDER
¶17 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 | GEFFRARD_JOSEPH_S_DC_0432_16_0627_I_1_REMAND_ORDER_1998060.pdf | 2023-01-31 | null | DC-0432 | NP |
3,666 | https://www.mspb.gov/decisions/nonprecedential/MANI_VINCENT_M_DC_0752_19_0577_I_3_FINAL_ORDER_1998069.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
VINCENT M. MANI,
Appellant,
v.
DEPARTMENT OF HEALTH AND
HUMAN SERVICES,
Agency.
DOCKET NUMBER
DC-0752 -19-0577 -I-3
DATE: January 31, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL1
Vincent M. Mani , Palmyra, Virginia, pro se.
Andrea M. Downing , 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
sustained his removal . On petition for review, the appellant argues that the
administrative judge was biased and hostile towards him and conducted an unfair
hearing. Petition fo r Review (PFR) File, Tab 1 at 4 -6. Additionally, he disputes
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
require d to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c).
2
the administrative judge ’s findings sustaining the merits of the agency’s charges.2
Id. at 7-13. Generally, we grant petitions such as this one only in the following
circumstances: the initial decision contains erroneous findings of material fact;
the initial decision is based on an erroneous interpretation of statute or regulation
or the erroneous application of the law to the facts of the case; the administrative
judge’s rulings during either the course of the appeal or the initial decision
were not consistent with required procedures or involved an abuse of discretion,
and the resulting error affected the outcome of the case; or new and material
evidence or legal argument is available that, despite the petitioner’s due
diligence, was not available when the record closed. Title 5 of the Code of
Federal Regulations, section 1201.115 ( 5 C.F.R. § 1201.115 ). After fully
considering the filings in this appeal, we conclude that the petitioner has not
established any basis under section 1201.115 for granting the petition for review.
Therefore, we DENY the petition for review and AFFIRM the initial decision,
which is now the Board’s final decision. 5 C.F.R. § 1201.113 (b).
¶2 In making a claim of bias or prejudice aga inst an administrative judge,
a party must overcome the presumption of honesty and integrit y that accompanies
administrative adjudicators . Oliver v. Department of Transportation , 1 M.S.P.R.
382, 386 (1980). The fact that an administrative judge has ruled against a party
in the past, or mere conclusory statements of bias, do not provide sufficient bases
for disqualification. Lee v. U.S. Postal Service , 48 M.S.P.R. 274 , 281 (1991) .
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 anta gonism that would make
fair judgment impossible.” Bieber v. Department of the Army , 287 F.3d 1358 ,
2 The appellant also attached approximately 80 pages of documents to his petition for
review. PFR File, Tab 1 at 14 -95. The documents attached to the petition for review
are already contained in the record as part of the appellant’s prehearing submissions .
Mani v. Department of Health & Human Services , DC -0752 -19-0577 -I-3, Appeal File
(I-3 AF), Tab 16, Tab 25 at 4 -14.
3
1362 -63 (Fed. Cir. 2002) (quoting Liteky v. United States , 510 U.S. 540 ,
555 (1994)).
¶3 We find no evidence in the record to suggest that the administrative judge
exhibited any antagonism t owards the appellant. To the contrary, the record
demonstrates that the administrative judge treated the appellant fairly throughout
the adjudication of his appeal and provided him with a high degree of leniency as
is appropriate for a pro se appellant . There was no thing improper, for example,
in the administrative judge disallowing individuals as witnesses when the
appellant could not set forth the relevancy of their expec ted testimony
or expecting the appellant to present his case challenging the agency witnesses
during cross -examination of those witnesses.3 Furthermore , we find that the
administrative judge’s findings are well reasoned, supported by the record, and in
accordance with the law . Accordingly, we discern no basis to disturb them .4
3 Contrary to the appellant’s claims, the administrative judge did not reject his
prehearing exhibits or prevent him from using them during the hearing. PFR File,
Tab 1 at 4 -5. However, in the initial decision, the administrative judge explained that
he d id not consider the parties’ prehearing exhibits unless they were moved into the
record at the hearing. I-3 AF, Tab 41, Initial Decision (ID) at 31 n.26. An
administrative judge must consider all relevant evidence , whether it was offered at the
hearing o r transmitted as part of the administrative record. See Woodward v. Office of
Personnel Management , 74 M.S.P.R. 389 , 399 (1997) (st ating that an administrative
judge must consider de novo all relevant evidence presented by both parties, whether
offered at the hearing or transmitted as part of the administrative record). Nevertheless,
upon review of the appellant’s prehearing submissi ons, which included email
communications with various agency personnel, doctor’s notes, performance appraisals,
and written summaries of his arguments and requested remedies, we do not find that
these documents contradict or undermine the administrative ju dge’s findings. I -3 AF,
Tabs 16 -25. Furthermore, while the appellant argues in general terms that the exhibits
should have been considered, he fails to identify any document that, had the
administrative judge considered it, would have resulted in a diffe rent outcome. PFR
File, Tab 1 at 4 -13. Therefore, the adjudicatory error was not prejudicial to the
appellant’s substantive rights and provides no basis to reverse the initial decision . See
Panter v. Department of the Air Force , 22 M.S.P.R. 281 , 282 (1984) (stating that an
adjudicatory error that is not prejudicial to a party’s substantive rights provides no basis
for reversal of an initi al decision).
4 After the issuance of the initial decision, the Board issued its decision in Pridgen v.
Office of Management and Budget , 2022 MSPB 31 , addressing , among other things, the
4
Crosby v. U.S. Postal Service , 74 M.S.P.R. 98 , 106 (1997) (declining to disturb
the administrative judge’s findings where she considered t he evidence as a whole,
drew appropriate inferences, and made reasoned conclusions); Broughton v.
Department of Health & Human Services , 33 M.S.P.R. 357 , 359 (1987) (same) .
NOTICE OF APPEAL RIG HTS5
You may obtain review of this final decision. 5 U.S.C. § 7703 (a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703 (b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable t ime
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular fo rum is the appropriate one to review your case, you
should contact that forum for more information.
analytical framework for disability discrimination claims . The administrative judge
applied the correct legal standard, i.e. , the mixed motive analysis, to the appellant’s
claim . IAF, Tab 41, Initial Decision (ID) at 43 -44. Moreover , the administrative judge
correctly found that the appellant failed to show that his disabilities were a motivating
factor in the decision to remove him, noting that his “conclusory assertions are woefully
insuffic ient” to meet the necessary standard. ID at 45. We also agree with the
administrative judge that the appellant did not prove his claim that the agency failed to
reasonably accommodate him . ID at 46. In sum, there is no basis to disturb the initial
decision.
5 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.
5
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U .S.
Court of Appeals for the Federal Circuit, which must be received by the court
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
6
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.usco urts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702 (b)(1). If you hav e a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEO C by regular U.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 requ iring a signature, it must be addressed to:
7
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b ) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction .6 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D .C. 20439
6 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195,
132 Stat. 1510.
8
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the 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 | MANI_VINCENT_M_DC_0752_19_0577_I_3_FINAL_ORDER_1998069.pdf | 2023-01-31 | null | DC-0752 | NP |
3,667 | https://www.mspb.gov/decisions/nonprecedential/HOLLAND_SHARON_B_DA_0752_11_0696_P_1_FINAL_ORDER_1998079.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
SHARON B. HOLLAND,
Appellant,
v.
DEPARTMENT OF THE AI R FORCE,
Agency.
DOCKET NUMBER
DA-0752 -11-0696 -P-1
DATE: January 31, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL1
Sharon B. Holland , Schertz, Texas, pro se.
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, Member
FINAL ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
dismissed her appeal for compensatory damages .2 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 The administrative judge both denied the appellant’s petition for compensatory
damages and dismiss ed the appeal . Damages File, Tab 11, Damages Initial Decision
at 1, 4. Because t he ultimate dismissal of the appeal was the appropriate disposition ,
2
appellant argues , among other things, that compensatory damages are justified
because an agency investigation purportedly revealed that the agency
discriminated against African Am erican employees in promotion and career
advancement opportunities . Generally, we grant peti tions 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 c ase; 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 peti tion for review and AFFIRM the initial decision,
which is now the Board’s final decision.3 5 C.F.R. § 1201.113 (b).
Jackson v. U.S. Postal Service , 79 M.S.P.R. 46 , 54-55 (1998), we discern no error in the
language concurrently denying the appellant compensatory damages.
3 For the first time on petition for review, the appellant argues that the administrative
judge erred by not ordering the agency to investigate and adjudicate her discrimination
claim s when the administrative judge adjudicated them in 2012 . Petition for Review
(PFR) File, Tab 1 at 1. The appellant did not explain why she was unable to raise th is
argument prior to the close of the record before the administrative judge , and thus we
need not consider it. Clay v. Department of the Army , 123 M.S.P.R. 245 , ¶ 6 (2016)
(stating that the Board generally w ill 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). Further , the appellant
provides no authority that w ould empower the Board to order the agency to investigate
and adjudicate her discrimination claims, and we are aware of none. Lastly , the
appellant’s claim in her reply to the agency’s response to her petition for review
regarding the agency representativ e’s improper service of pleadings , PFR File, Tab 4
at 2-3, does not show any error in the initial decision or Board authority to award
compensatory damages.
3
NOTICE OF APPEAL RIG HTS4
You may obtain review of this final decisi on. 5 U.S.C. § 7703 (a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703 (b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights descri bed below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow al l
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applie s to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for 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.
4
U.S. Court of Appeals
for the Feder al Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
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 receive s this decision before
you do, then you must file with the district court no later than 30 calendar days
after your representative receives this decision. If the action involves a claim of
discrimination based on race, color, religion, sex, national origi n, or a disabling
condition, you may be entitled to representation by a court -appointed lawyer and
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. d istrict courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, yo u may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in th is case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it mu st be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option appli es to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
other protected activities listed in 5 U.S.C. § 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 d escribed in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.5 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
5 The original statutory provision that provided for judicial review of certain
whistleblower claims by any c ourt of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleb lower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195,
132 Stat. 1510.
7
Conta ct information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites .aspx .
FOR THE BOARD:
Washington, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board | HOLLAND_SHARON_B_DA_0752_11_0696_P_1_FINAL_ORDER_1998079.pdf | 2023-01-31 | null | DA-0752 | NP |
3,668 | https://www.mspb.gov/decisions/nonprecedential/PAYTON_MARSHA_L_AT_4324_20_0483_I_1_FINAL_ORDER_1998091.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
MARSHA L. PAYTON,
Appellant,
v.
DEPARTMENT OF HOMELA ND
SECURITY,
Agency.
DOCKET NUMBER
AT-4324 -20-0483 -I-1
DATE: January 31, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL1
Marsha L. Payton , Holly Hill, Florida, pro se.
Lisa Zito and Brian Redar , Miami, 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 decision, which
dismissed her appeal under the Uniformed Services Employment and
Reemployment Rights Act of 1994 (codified as amended at 38 U.S.C.
§§ 4301 -4335) for lack of jurisdiction. On petition for review, the appellant
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
presents arguments concerning her prior Board appeals , and actions that she filed
in other fora, but she does not explain their significance to this appeal, and she
does not sho w that the administrative judge erred in finding that she failed to
make a nonfrivolous allegation that she either performed or had an obligation to
perform service in a uniformed service of the United States . Generally, we grant
petitions such as this on e only in the following circumstances: the initial decision
contains erroneous findings of material fact; the initial decision is based on an
erroneous interpretation of statute or regulation or the erroneous application of
the law to the facts of the cas e; the administrative judge’s rulings during either
the course of the appeal or the initial decision were not consistent with required
procedures or involved an abuse of discretion, and the resulting error affected the
outcome of the case; or new and mater ial evidence or legal argument is available
that, despite the petitioner’s due diligence, was not available when the record
closed. Title 5 of the Code of Federal Regulations, section 1201.115 ( 5 C.F.R.
§ 1201.115 ). After fully considering the filings in this appeal, we conclude that
the appellant has not established any basis under section 1201.115 for granting
the petition for review. Therefore, we DENY the petition for review and
AFFIRM the initial decision, which is now the Board’s final decision. 5 C.F.R.
§ 1201.113 (b).
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
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 wh ich option is most appropriate in any matter.
3
appropriate for your situation and the rights described below do not repres ent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits an d requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of 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
4
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by 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,
and your representative receives this decision before you do, then you must file
5
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review t o the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) o r
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Feder al Circuit or any court of appeals of
competent jurisdiction.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 cour t of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195,
132 Stat. 1510.
6
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/ probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Cou rt_Locator/CourtWebsites.aspx .
FOR THE BOARD:
Washington, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board | PAYTON_MARSHA_L_AT_4324_20_0483_I_1_FINAL_ORDER_1998091.pdf | 2023-01-31 | null | AT-4324 | NP |
3,669 | https://www.mspb.gov/decisions/nonprecedential/GEFFRARD_JOSEPH_S_DC_0432_16_0627_B_1_REMAND_ORDER_1998102.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
JOSEPH S. GEFFRARD,
Appellant,
v.
DEPARTMENT OF THE TR EASURY,
Agency.
DOCKET NUMBER
DC-0432 -16-0627 -I-1
DATE: January 31, 2023
THIS ORDER IS NONPRECEDENTIAL1
Joseph S. Geffrard , Columbia, Maryland, 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
REMAND ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
affirmed his removal for unacceptable performance under 5 U.S.C. chapter 43 .
For the reasons discussed below, we GRANT the appellant ’s petition for review
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required 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
and REMAND the case to the Washington Regional Office for further
adjudication in accordance with this Remand Order.
BACKGROUND
¶2 The appellant was previously employed as a GS -13 IT Specialist (Systems
Analyst) with the agency. Initial Appeal File (IAF), Tab 20 at 26. His job duties
included the following, among other things: ensuring the integration of IT
programs and services; designing, developing, and managing IT security systems;
managing assigned projects; leading IT systems development projects f rom
design to support; and evaluating the effectiveness of installed systems and
services. Id. at 162. The appellant ’s Performance Plan included the five
following critical elements: (1) Employee Satisfaction -Employee Contribution ;
(2) Customer Satisfact ion-Knowledge ; (3) Customer Satisfaction -Application ;
(4) Business Results -Quality ; and (5) Business Results -Efficiency. Id. at 147 -59.
Additionally, each critical element had three sub-elements, lettered “A” through
“C,” respectively. Id. The appellan t’s performance was rated on a five-tier
scale, including the following ratings: Outstanding (level 5), Exceeds Fully
Successful (level 4), Fully Successful (level 3), Minimally Successful (level 2),
and Unacceptable (level 1). Id. at 171 , see id. at 122, 125.
¶3 By a letter dated September 22, 2015, the appellant ’s first -line supervisor
placed him on a 60 -day Performance Improvement Plan (PIP) to address his
performance in critical elements 2, 3, 4, and 5. IAF, Tab 20 at 113 -20.
Specifically, the P IP letter informed the appellant that his performance was
unacceptable and that he was failing sub -elements (identified as performance
“aspects ”) 2B, 2C, 3B, 3C, 4B, 5A, and 5C of the respective critical elements. Id.
The notice informed the appellant th at, in order to attain a Fully Successful level
of performance, he must meet all of the performance aspects listed in the critical
job elements during the PIP period, and to attain a Minimally Successful level of
performance and to retain retention in his position, he must fail no more than one
3
performance aspect during the PIP period. Id. at 120. The notice also included
suggestions for what the appellant should do to meet the performance aspects , and
informed him that his supervisor would meet with him on a biweekly basis during
the PIP period to review his work, asses s his progress, and answer any questions
or provide necessary guidance. Id. at 119 -20.
¶4 During a November 17, 2015 PIP counseling session, the appellant ’s
supervisor agreed to extend the PIP period by 14 calendar days, for the period
from December 3, 2015 , through December 17, 2015, to provide the appellant
with additional counseling due to the supervisor ’s absences during the PIP period.
See id. at 79 -80. After the close of the extended PIP period, on December 18,
2015, the appellant met with his supervisor for a debriefing and to discuss his
performance during the PIP. See IAF, Tab 33 at 36 -57. By a letter dated January
14, 201 6, the agency proposed the appellant ’s removal under 5 U.S .C. chapter 43,
for unacceptable performance in critical element s 2, 3, 4, and 5 . IAF, Tab 20 at
60-69. After the appellant and his union representative provided an oral response
to the proposal, see id. at 35 -58, the agency issued a decision sustaining the
specifications of unacceptable performance and removing the appellant from his
position, effective April 26, 2016, id. at 29-33.
¶5 The appellant filed a Board appeal, challenging the merits of the agency ’s
action and raising the affirmative defenses of discrimination based on national
origin and reprisal for requesting reasonable accommodation . IAF, Tab 1 at 1-5;
Tab 39 at 1-2, n.1; see IAF, Tab 38 . After a hearing, IAF, Tab 43, the
administrative judge issued an initial decisio n affirming the appellant ’s removal ,
IAF, Tab 44, Initial Decision (ID). He found that the agency met its burden of
proof on each of the elements of its case and that the appellant failed to prove his
affirmative defenses. ID at 7-20.
¶6 The appellant has f iled a petition for review in which he alleges that the
administrative judge improperly rejected three of his witnesses, challenges the
administrative judge ’s credibility determinations and asserts that an agency
4
witness “committed perjury, ” and requests t hat the Board allow his new legal
counsel to “review his case, ” indicating that his union representatives “messed up
[his] case ” during the oral reply to the removal proposal. Petition for Review
(PFR) File, Tab 1 at 4. The agency has filed a respons e in opposition to the
petition for review, and the appellant has not filed a reply. PFR File, Tab 3 .
DISCUSSION OF ARGUME NTS ON REVIEW
The administrative judge correctly concluded that , under the law in effect at the
time, the agency satisfied its burden to prove that the appellant ’s performance
was unacceptable.
¶7 At the time the initial decision was issued, the Board ’s case law stated that,
in a performance -based action under 5 U.S.C. chapter 43, an agency must
establish by substantial evidence that: (1) the Office of Personnel Management
(OPM) approved its performance appraisal system and any significant changes
thereto; (2) the agency communicated to the appellant the performance standards
and critical elements of his position; (3) the appellant ’s performan ce standards
are valid under 5 U.S.C. § 4302 (c)(1); (4) the agency warned the appellant of the
inadequacies in his performance during the appraisal period and gave him an
adequate opportunity to de monstrate acceptable performance; and (5) after an
adequate improvement period, the appellant ’s performance remained unacceptable
in at least one critical element. Towne v. Department of the Air Force ,
120 M.S.P.R. 239 , ¶ 6 & n.5 (2013); see 5 U.S.C. § 7701 (c)(1)(A). The
administrative judge addressed each of these elements i n turn and found that the
agency carried its burden with respect to all of them. ID at 6 -18. These findings
are supported by the record, and the appellant does not challenge them on petition
for review. 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. ”).
Accordingly, w e affirm the administrative judge ’s findings in this regard.
5
The administrative judge correctly determined that the appellant failed to prove
his affirmative defenses.
¶8 The appellant does not challenge the administrative judge ’s finding that he
failed to prove his affirmative defense of national origin discrimination. PFR
File, Tab 1 at 4 ; see ID at 16-18. In denying the appellant ’s discrimination
affirmative defense s, the administrative judge applied the evidentiary standards
set forth in Savage v. Department of the Army , 122 M.S.P.R. 612 , ¶¶ 42, 48,
49-51 (2015) , overruled in part by Pridgen v. Office of Management & Budget ,
2022 MSPB 31 , ¶¶ 23-25, finding that the appellant failed to introduce any
evidence to support his conclusory claims of national origin discrimination and
retaliation for requesting a reasonable accommodation. IAF, Tab 44, Initial
Decision (ID) at 16-20. In Gardner v. Department of Veterans Affairs ,
123 M.S.P.R. 647 , ¶¶ 30-31 (2016) , clarified by Pridgen , 2022 MSPB 31 ,
¶¶ 23-24, the Board clarified that it will not separate direct from indirect evidence
and proceed as if such evidence were subject to different legal standards. Rather,
the Board will evaluate the evidence as a whole, “in a single pile, ” to determine
whether the appellant has shown by a preponderance of the evidence that the
prohibited conside ration was a motivating factor in the contested personnel
action. Id. (quoting Ortiz v. Werner Enterprises , Inc., 834 F.3d 760 , 766 (7th Cir.
2016)). With respect to the appellant ’s national origin discrimination claim, the
administrative judge determined that , aside from unsupported speculation that
agency officials “maybe ” removed him because he was not from the United
States, the appellant had failed to produce any evidence to support this
affirmative defense claim. ID at 18. Regardless of the characterization of the
evidentiary standard s, we find that the administrative judge properly considered
the evidence as a whole in finding that the ap pellant did not prove that national
6
origin discrimination was a motivating factor in his removal and so the appellant
failed to prove this claim.2
¶9 Regarding the appellant ’s affirmative defense of reprisal for requesting
reasonable accommodation , the admini strative judge also concluded that the
appellant failed to prove this claim, which the appellant has not challenged on
review. PFR File, Tab 1 at 4, see ID at 18-20. Requesting reasonable
accommodation is activity protected by the Americans with Disabilities Act, as
amended by the Americans with Disabilities Act Amendments Act (ADAAA) , 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,
37 (recogn izing that requesting reasonable accommodation and complaining of
disability discrimination are activities protected by the ADAAA) . After the
issuance of the initial decision in this case, the Board clarified in Pridgen that
this type of claim requires that the appellant prove “but-for” causation as his
initial burden . Pridgen , 2022 MSPB 31, ¶¶ 46-47. Because we agree with the
administrative judge ’s finding that , based on the evidence as a whole, the
appellant failed to meet the lesser burden of proving that his protected activity
was a motivating factor in his removal, we also find that he failed to meet the
more stringent “but-for” standard that applies to his retaliation claim. See ID at
18-20. Accordingly, we also conclude that the appellant failed to prove this
affirmative defense, as modified to incorporate the correct standard identified in
Pridgen .
Remand is necessary t o afford the parties an opportunity to provide evidence and
argument concerning whether the appellant ’s placement on the PIP was proper.
¶10 Despite our conclusion that the administrative judge correctly determined
that the appellant ’s performance was unaccept able based on the standard
2 Because we find that the appellant failed to prove that national origin was a
motivating factor in his removal, we do not reach the question of whether his activity
was a “but -for” cause of the remova l action. See Pridgen , 2022 MSPB 31 , ¶¶ 20-25.
7
applicable at the time the initial decision was issued, after the initial decision in
this case was issued, the U.S. Court of Appeals for the Federal Circuit issued a
precedential decision in Santos v. National Aeronautics & Space Administration ,
990 F.3d 1355 , 1360 -61 (Fed. Cir. 2021), holding that part of the agency ’s burden
of proof under chapter 43 is to show by substantial evidence that the appellant ’s
performance leading up to the PIP was unacceptable. Following the issuance of
Santos , the Board issued an Opinion and Order in Lee v. Department of Veterans
Affairs , 2022 MSPB 11 ¶ 15, which incorporated the changes made by Santos ,
setting forth the agency ’s burden of proof as follows: to defend an action under
chapter 43, the agency must prove b y 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 appellant ’s performan ce 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
warned the appellan t 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.
¶11 Although the record contains evidence indicating that the appellant ’s
performance was unacceptable prior to the initiation of the PIP, see IAF, Tab 20
at 121 -45, Tab 33 at 28 -31, we nevertheless must remand the appeal to give the
parties the opportunity to present argument and additional evidence on whether
the appellant ’s performance during the period leading up to the PIP was
unacceptable in one or more critical elements, see Lee , 2022 MSPB 11, ¶¶ 15‑17.
On remand, the administrative judge shall accept argument and evidence on this
issue and shall hold a supplemental hearing , if appropriate. Id., ¶ 17. The
administ rative judge shall then issue a new initial decision consistent with Santos .
See id. If the agency makes the additional showing required under Santos on
8
remand, the administrative judge may incorporate in the remand initial decision
his prior findings on the other elements of the agency ’s case, and the appellant ’s
affirmative defenses, as modified herein to apply the proper standard. See id.
However, regardless of whether the agency meets its burden, if the argument or
evidence on remand regarding the a ppellant ’s pre -PIP performance affects the
administrative judge ’s analysis of the appellant ’s affirmative defenses, he should
address such argument or evidence in the remand initial decision. See Spithaler
v. Office of Personnel Management , 1 M.S.P.R. 587 , 589 (1980) (explaining that
an initial decision must identify all material issues of fact and law, summarize the
evidence, resolve issues of credibility, and include the administrative judge ’s
conclusions of law and his legal reasoning, as well as the authorities on which
that reasoning rests).
The appellant ’s remaining arguments do not warrant Board review.
¶12 On review, the appellant argues that the administrative judge rejected three
of his witnesses because the administrative judge “claimed that [he] didn ’t know
what they were going to say. ” PFR File, Tab 1 at 4. He asserts that the
administrative judge “rejected ” his supervisor as a witness, but a “few days prior
to” the hearing “said that he could consider having her as a witness if [the
appellant] provided all the information. ” Id. The appellant stated that he told the
administrative judge prior to the hearing that he had a “legally obtained phone
conversation ” between himself and his supervisor, but that the administrative
judge informed him that he would not be allowed to “play the tape in court. ” Id.
¶13 The appellant ’s challenges to the administrative j udge ’s evidentiary rulings
are unpersuasive. An administrative judge has wide discretion to control the
proceedings, including the authority to exclude testimony and evidence he
believes would be irrelevant or immaterial. Sanders v. Social Security
Admin istration , 114 M.S.P.R. 487 , ¶ 10 (2010). The Board has found that, to
obtain reversal of an initial decision on the ground that t he administrative judge
abused his discretion in excluding evidence, the petitioning party must show on
9
review that the administrative judge disallowed a relevant witness or evidence
that could have affected the outcome. Id. In contrast to the appellant ’s assertion,
the administrative judge approved his supervisor as a witness, despite the
appellant ’s failure to file a subpoena request for the former Federal employee.
IAF, Tab 39 at 5. Similarly, the initial decision demonstrates that the
administrative judge considered the transcript of the recording but found that the
document was “difficult to comprehend without additional background and
context and therefore [did] little to advance the appellant ’s claims. ” ID at 15
n.16. The appellant did not file an exception to the summary of the prehearing
conference, in which the administrative judge granted the appellant ’s request to
call his supervisor as a witness and allowed him to introduce relevant portions of
the recording transcript to refute or corrobor ate material facts during the hearing.
IAF, Tab 39 at 5 -6. Additionally, the appellant failed to articulate any reason
why the unknown testimony of his former coworker, to whom he had not spoken
prior to the prehearing conference, could have affected the outcome of the appeal.
PFR File, Tab 1 at 4; IAF, Tab 39 at 5. To the extent that the appellant sought to
introduce the testimony of his former supervisor to demonstrate his prior
“outstanding ” performance, the administrative judge found her ratings of the
appellant ’s performance were not in dispute in the record. IAF, Tab 39 at 5.
¶14 The record also clearly refutes the appellant ’s argument on review that the
administrative judge “told [him] that the burden of proof was not with the
Agency. ” PFR File, Tab 1 at 4. The administrative judge provided explicit
instructions to the parties in both the hearing order and summary of prehearing
conference that the agency had the burden of proof regarding the removal action
and the appellant had the burden of proving his affirmative defenses. IAF,
Tab 30 at 4 -9, Tab 39 at 2 ‑5.
¶15 Additionally, the appellant challenges on review the administrative judge ’s
credibility determination regarding an unspecified witness. PFR File, Tab 1 at 4.
He argues that the administrative judge “called the witnesses credible, and one of
10
the witnesses committed perjury in his court room. ” Id. The appellant claims
that he “pointed it out ” to the administrative judge, who “said it wasn ’t important
at that point. ” Id. In its response to the petition for review, the agency notes that
the appellant failed to identify the witness who allegedly committed perjury, but
speculates that the appellant was referring to the testimony of the deciding
official, who maintained that he appeared in person at the appellant ’s oral reply,
despite the appellant ’s insistence that he was not there in person. PFR File, Tab 3
at 8; IAF, Tab 43 (He aring Recording). The Board must give due 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 ). To the extent that the appellant challenges
the administrative judge ’s credibility determination of the deciding official, we
conclude that the initial decision adequately addresses the administrative judge ’s
reasons for finding that the deciding offic ial was a credible witness.
¶16 Finally, regarding the appellant ’s discussion of his unsuccessful attempts to
obtain legal representation prior to his oral reply to the proposed removal and his
assertion that his union representatives “messed up [his] case, ” the appellant ’s
failure to secure his own representation during the proceedings below does not
form a basis for granting his petition on review. PFR File, Tab 1 at 4; see
Brum v. Department of Veterans Affairs , 109 M.S.P.R. 129 , ¶ 5 (2008) .
11
ORDER
¶17 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 | GEFFRARD_JOSEPH_S_DC_0432_16_0627_B_1_REMAND_ORDER_1998102.pdf | 2023-01-31 | null | DC-0432 | NP |
3,670 | https://www.mspb.gov/decisions/nonprecedential/BLAND_KEVIN_R_SF_0752_16_0368_I_1_FINAL_ORDER_1998108.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
KEVIN R. BLAND,
Appellant,
v.
DEPARTMENT OF THE AI R FORCE,
Agency. DOCKET NUMBER
SF-0752 -16-0368 -I-1
DATE: January 31, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL1
Joel J. Kirkpatrick, Esquire, Plymouth, Michigan, for the appellant.
Lawrence Lynch, Esquire, Joint Base San Antonio, Randolph, Texas, for
the agency.
BEFORE
Cathy A. Harris , Vice Chairman
Raymond A. Limon , Member
Trist an L. Leavitt, Member
FINAL ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
sustained his removal . Generally, we grant petitions such as this one only in the
following circumstances: the initial decision contains erroneous findings of
material fact; the initial decision is based on an erroneous interpretation of statute
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
or regulation or the erroneous a pplication of the law to the facts of the case; the
administrative judge’s rulings during either the course of the appeal or the initial
decision were not consistent with required procedures or involved an abuse of
discretion, and the resulting error affec ted the outcome of the case; or new and
material evidence or legal argument is available that, despite the petitioner’s due
diligence, was not available when the record closed. Title 5 of the Code of
Federal Regulations, section 1201.115 ( 5 C.F.R. § 1201.115 ). After fully
considering the filings in this appeal, we conclude that the petitioner has not
established any basis under section 1201.115 for granting the petition for review.
Therefore, we DENY the petition for review and AFFIRM the initial decision,
which is now the Board’s final decision. 5 C.F.R. § 1201.113 (b).
BACKGROUND
¶2 At all times relevant to this appeal , the appellant w as a Criminal
Investigator with the Air Force Office of Special Investigations and an Air Force
reserv ist. Initial Appeal File (IAF), Tab 5 at 133-50, Tab 6 at 7 . From October
2009 to June 2011, t he appellant was assigned to the Criminal Investigative Task
Force (CITF) , a multi -agency task force headquartered in Fort Belvoir, Virginia .
IAF, Tab 5 at 133, Tab 6 at 7 5. In June 2011, he was transferred to the agency’s
Los Angeles Air Force Base (LAAFB) and assigned to the Federal Bureau of
Investigation’s Joint Terrorism Task Force . IAF, Tab 5 at 140, Tab 6 at 68.
¶3 In April 2015, the agency proposed the appellant’s removal , alleging that ,
on multiple occasions between November 2009 and May 2014, he made deliberate
misre presentations concerning his time and attendance by indicating that he was
performing his regula r civilian duties when he was , in fact, serving in his capacity
as a military reservist , which resulted in him receiving unauthorized dual
compensation of appro ximately $40,000. IAF, Tab 4 at 62 -64. After the
appellant submitted written and oral responses to the proposed removal, the
agency replaced the original deciding official with a new deciding official, who
3
provided the appellant additional documentation in support of the proposed
removal and afforded him a second opportunity to submit oral and written replies .
Id. at 32-55; IAF, Tab 5 at 4 -7, Hearing Transcript, Day 1 (HT1) at 47 (testimony
of the original deciding official). Following the appellant’s written reply, IAF,
Tab 4 at 26 -31, the agency removed the appellant e ffective February 24, 2016, id.
at 11, 15-18.
¶4 The appellant filed an appeal of his removal with the Board, and he
requested a hearing. IAF, Tab 1. The appellan t raised affirmative defenses of
harmful procedural error and a due process violation resulting from replacing the
original deciding official with a new one , as well as a race discrimination claim.
Id. at 6.
After holding a hearing, the administrative jud ge issued an initial decision
that affirmed the appellant’s removal . IAF, Tab 2 5, Initial Decision (ID) at 1, 2 5.
The administrative judge found that the agency proved its charge, that its action
promote d the efficiency of the service, and that the penalty of removal wa s
reasonable. ID at 4-15, 22-25. The administrative judge also found that the
appellant failed to prove his affirmative defenses. ID at 15-22.
¶5 The appellant has filed a petition for revie w of the initial decision, the
agency has responded in opposition, and the appellant has replied to the agency’s
response. Petition for Review (PFR) File, Tabs 3, 5 -6.
ANALYSIS
The administrative judge correctly found that the agency proved the charge.
¶6 To establish a charge of misrepresentation, falsification, or lying, an agency
must prove that the appellant: (1) supplied wrong information; and (2) knowingly
did so with an intent to defraud, deceiv e, or mislead the agency for h is own
private material g ain. Boo v. Department of Homeland Security , 122 M.S.P.R.
100, ¶¶ 10-12 (2014) . The intent to defraud or mislead the agency may be
established by circumstantial evidence and also may be inferred when the
4
misrepresentation is made with a reckless disregard for the truth or with
conscious purpose to avoid learning the truth. Id., ¶ 10. Whether intent has been
proven must be resolved by considering the totality of the circumstances,
including the appellant’s plausible explanation, if any. Id.
¶7 In finding that the agency proved the charge, t he administrative judge
rejected the appellant’ s following two argument s, which were reiterated on
review : (1) the appellant’s recei ving dual compensation was unin tentional
because he relied on others to ensure th at his timekeeping was accurate, ID
at 12-14; PFR File, Tab 3 at 17-19; and (2) pursuant to his supervisor’s approval,
the appellant perform ed both his civilian and military duties during his tours of
reserve duty at Langley Air Force Base (Langley) in Hampton, Virginia, and
Andrews Air Force Base (Andrews) in Maryland in 2010 , ID at 7-12; PFR File,
Tab 3 at 7, 19-20.
¶8 Regarding the first argument , the administrative judge noted that in most
instances when the appellant was on reserv ist duty, he continued to personally
certify his civilian timecards, each of which reflected that he was on regular
civilian duty, not on military or annual leave. ID at 13; I AF, Tab 7 at 10 -11;
Tab 8 at 109 -10, 119 -28, 132 -33, 135-36. The administrative judge also noted
that, although the appellant admitted that he was told when he started at the CITF
that he would have up to 30 days of military leave available each year to use
during his reservist assignments, he never took any military leave while at the
CITF, despite the fact that he was on reserve duty for 124 civilian workdays
during his tenure the re. ID at 12 -13; see 5 U.S.C. § 6323 (a)(1) (authorizing a
civilian employee to use up to 15 days of military leave per fiscal year, with the
right to carry over any unused military leave into the succeeding fiscal year) . The
administrative judge further noted that, for each of the nine tours of reserve duty
that the appellant served during the relevant time period, he completed a form in
which he certified that he had applied for appropriate leave as a civilian , even
though he did not request any type of leave while in an active duty status . ID
5
at 13-14; IAF, Tab 5 at 99, 101, 104, 107, 110, 115, 118, 124, 1 28. Based on
these circumstances, we agree with the administrative judge ’s finding that the
appellant’s assertion was not credible . ID at 12.
¶9 Turning to the second argument, t he administrative judge did not credit the
appellant’s assertion that he continued to perform his civilian duties at the CITF
with his supervisor’s express authorizati on while he was on military reserve duty
at Langley and Andrew s in 2010 . Id. The administrative judge found the
appellant’s testimony that he did so “improbable,” “fraught with inconsistencies,”
and “wholly unpersuasive.” ID at 10 -11.
¶10 By contrast, the administrative judge credited the appellant’s supervisor ’s
testimony that he did not recall seeing the appellant at the CITF during his
reserve tours of duty , nor did he recall any discussions about the appellant
simultaneously working for the agency as a r eservist and a civilian. ID at 7-8.
The administrative judge found that th e supervisor’s testimony was both
internally consistent and consistent with the record. ID at 8; see Hillen v.
Department of the Army , 35 M.S.P.R. 453 , 458 (1987) (discussing the relevant
factors in making credibility determinations) . The administrative judge further
found it unlikely that the appellant’s supervisor would not recall approving such
an arrangement if he had done so. ID at 8.
¶11 The appellant challenges this finding on review, arguing that , because his
supervisor testified that he did not recall approving the appellant’s proposal to
simultaneously perform his civilian and military duties, the appellant’s testimony
that his supervisor authorized such an arrangement is unrefuted and, therefore, the
administrative judge erred in not crediting his testimony . PFR File, Tab 3
at 19-20. The appellant further asserts that, given his unrefuted testimony that his
supervisor approv ed his plan to simultaneously perform his military and civilian
duties , the agency cannot establish that he “misrepresented information w ith the
intention to deceive ,” and, thus, it cannot prove the charge. Id.
6
¶12 This argument is unavailing. The Board must defer to an administrative
judge’s credibility determinations when, as here, they are based, explicitly or
implicitly, on observ ing the demeanor of witnesses testifying at a hearing; the
Board may overturn such determinations only when it has “sufficiently sound”
reasons for doing so. Haebe v. Department of Justice , 288 F.3d 1288 , 1301 (Fed.
Cir. 2002) . Under Hillen , one of the relevant factors in making credibility
determinations is the inherent improbability of the witness’s version of events.
See 35 M.S.P.R. at 458. Thus, in assessing the appellant’s credibility, the
administrative judge appropriately considered the improbability of the appellant’s
claim s that he simultaneously perform ed his civilian and military duties during
his reserve tours of duty at Langley and Andrews with his supervisor’s express
approval. The appellant has not shown a sufficiently sound reason for
overturning the administrative judge’s explained credibility determination s.
¶13 We also find unpersuasive the appellant’s argumen t on review that the
agency failed to prove the charge of deliberate misrepresentation by alleging that
he intentionally falsified his timesheets from 2009 -2014; however, he could not
have falsified his timesheets during his entire 3-year tenure at LAAFB. PFR File,
Tab 3 at 16. Contrary to the appellant’s assertion, the agency alleged that the
appellant falsified his time cards “on multiple occasions” during the period
between November 2009 and May 2014; it did not allege that he falsified his
timecards t hroughout that whole period. IAF, Tab 4 at 62. Thus, the appellant
has shown no basis to disturb the administrative judge ’s finding that the agency
proved it s charge by preponderant evidence. ID at 15.
The administrative judge correctly found that the appellant failed to prove his
affirmative defenses.
¶14 We next consider the appellant’s affirmative defenses. Regarding the
appellant’s harmful procedural error and due process claims, the administrative
judge found that the evidenc e did not support the appellant’s allegation that the
agency replaced the original deciding official to ensure that the appellant would
7
be removed from F ederal service. ID at 15-19. As for the appellant’s claim of
race discrimination based on disparate t reatment, the administrative judge found
that the appellant failed to prove by preponderant evidence that his race was a
motivating factor in the agency’s decision to remove him. ID at 19-22.
¶15 On review , the appellant reiterates his argument below that the agency
violated his due process rights and committed harmful procedural error by
replacing the original deciding official to prevent him from issuing a decision that
was favorable to the appellant.2 PFR File, Tab 3 at 27-30; IAF, Tab 18 at 20 -21,
23. In support of this claim, the appellant relies on the following statement in a
July 2015 email from the original deciding official to agency personnel: “My
thought is that we start the settlement discussion at [the appellant] repaying
$87,040.48, 97 days suspension [without] pay, a last chance agreement and waive
all appeal rights . . . .” IAF, Tab 18 at 37. The appellant contends that this
statement shows that the original deciding official did not intend to remove him,
and he asserts that, once the age ncy learned of the original deciding official’s
intention, it replaced him with another deciding official , who “rubberstamped”
the agency’s decision to remove the appellant. PFR File, Tab 3 at 29 -30.
¶16 In finding that the appellant failed to prove these aff irmative defenses, the
administrative judge rejected the appellant’s argument that, as of July 2015, the
original deciding official had determined that removal was not appropriate. ID
at 16-17. The administrative judge credited the testimony of the origi nal deciding
official that he was planning to remove the appellant before he was replaced as
deciding official, and that his reference to a suspension instead of removal in the
2 On review , the appellant does not specifically challenge the administrative judge’s
finding that he failed to prove his affirmative defense of race discrimination based on
disparate treatment. See generally PFR File, Tab 1; ID at 19 -22. We have reviewed the
record and discern no reason to disturb this finding. Because we discern no error with
the administrative judge’s motivating factor analysis, we do not reach the question of
whether discrimina tion was a “but -for” cause of the removal action. See Pridgen v.
Office of Management & Budget, 2022 MSPB 31 , ¶¶ 22-25.
8
email discussing possible settlement was merely a “what if” scenario in the eve nt
that the appellant chose to appeal the removal. ID at 16, 19 ; HT1 at 51, 55 -56
(testimony of the original deciding official) . The administrative judge found that,
while the email evinces the original deciding official’s willingness to discuss
settleme nt in lieu of removal, it does not support the appellant’s assertion that the
agency replaced the original deciding official because he felt that removal was
not appropriate. ID at 17.
¶17 The administrative judge further found that there was no evidence that the
deciding official was merely a facilitator for a predetermined decision, or that he
failed to properly consider the evidence before him. Id. In making this finding,
the administrative judge credited the deciding official’s testimony that he
carefull y considered all of the evidence and made his own determination in
deciding to remove the appellant. Id.; HT1 at 155, 166, 177, 187-88 (testimony
of the deciding official). Therefore, the administrative judge found, the appellant
did not offer sufficient evidence to support his allegation that the agency replaced
the original deciding official in an effort to prevent him from issuing a decision
that was more favorable to the appellant. ID at 17.
¶18 The appellant argues on review that the evidence does not support the
administrative judge’s finding that the original deciding official would have
removed the appellant if he had remained the deciding official. PFR File, Tab 3
at 27; ID at 17. As noted above, in mak ing this finding, the administrative judge
credited the original deciding official’s testimony that he was planning to remove
the appellant when he was replaced as deciding official. ID at 17 (finding that the
testimony of both deciding officials was uneq uivocal, detailed, consistent, and not
inherently improbable ); HT1 at 55 (testimony of the original deciding official) .
Thus, the appellant is challenging the administrative judge ’s determination that
the original deciding official credibly testified that he always felt that removal
was an appropriate penalty.
9
¶19 This argument is unpersuasive , as the appellant has failed to identify a
sufficiently sound reason for overturning the administrative judge ’s credibility
findings, and we discern no basis to disturb those findings. Likewise, we find no
basis to disturb the administrative judge’s determination that the appellant failed
to prove his due process and harmful error claims. ID at 18 -19. As t he
administrative judge found, the appellant received notice and opportunit ies to
respond to the charge against him , ID at 18, and failed to identify any applicable
procedures that the agency failed to follow , id.; see 5 C.F.R. § 1201. 4(r) (to prove
harmful procedural error, the appellant must prove that the agency ’s error in
appl ying its procedures 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 ).
The administrative judge correctly found that the penalty of removal was
reasonable.
¶20 When , as here, all of the agency’s charges, or its sole charge, 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 tolerable limits of reasonableness. Adam v. U.S. Postal Service ,
96 M.S.P.R. 492 , ¶ 5 (2004), aff’d , 137 F. App’x 352 (Fed. Cir. 2005); Douglas v.
Veterans Administration , 5 M.S.P.R. 280, 306 (1981). In doing so, the Board
must give due weight to the agency’s primary discretion in maintaining employee
discipline and efficiency, recognizing that the Board’s function is not to displace
management’s responsibility but to ensure that managerial judgment has been
properly exercised. Adam , 96 M.S.P.R. 492, ¶ 5. Thus, the Board will modify a
penalty only when it finds that the agency failed to weigh the relevant factors or
that it clearly exceeded the bounds of reasonableness in determining the penalty.
Id.
¶21 In finding that removal is a reasonable penalty for the sustained charge, the
administrative judge determined that the deciding official considered the relevant
Douglas factors in reaching his decision . ID at 23; IAF, Tab 20 at 10-15.
10
Specifically, the administrative judge found, and the record clearly shows, that
the deciding official considere d the nature and seriousness of the offense, the
appellant’s position as a Criminal I nvestigator, and the appellant’s loss of
credibility resulting from his falsif ying his timecard s for his personal gain. ID
at 23-24; IAF, Tab 20 at 10-11. The administrative judge also noted that the
deciding official considered the appellant’s 6 years of service with the agency and
his acceptable performance, but found that these factors were insufficient to
outweigh the seriousness of the charge. ID at 25; IA F, Tab 20 at 11. The
administrative judge also con sidered the deciding official’s testimony that, given
the seriousness of the charge and its relationship to the appellant’s position as a
law enforcement officer , no lesser penalty than removal would be ap propriate . ID
at 25; IAF, Tab 20 at 24 ; HT1 at 150, 152 -54 (testimony of the deciding official) .
¶22 The appellant argues on review , as he did on his Board appeal form, that the
Douglas factors do not support his removal because other employees who
engaged in misconduct that was at least as serious as his misconduct were not
removed, and the agency failed to sufficiently explain why he received a
significantly harsher penalty than those employees . PFR File, Tab 3 at 5, 30 -33;
IAF, Tab 1 at 6. This argument is an allegation of disparate penalty. In the
prehearing conference summary, the administrative judge did not address the
appellant’s disparate penalty claim, explicitly stated that any claims not
specifically identified were to be considered withdrawn, a nd provided the parties
7 days to object to the accuracy of his summary. IAF, Tab 21 at 5, 7 -8. The
appellant did not object to the excluding of his disparate penalty claim from the
prehearing conference su mmary. Therefore, this issue is not properly be fore the
Board on review . Crowe v. Small Business Administration , 53 M.S.P.R. 631 ,
634-35 (1992) (holding that an issue is not properly be fore the Board whe n it is
not incl uded in the administrative judge’ s memorandum summarizing the
prehearing conference that states that no other issue will be considered, unless
either party objects to its exclusion from the summary).
11
¶23 In any event, even if we were to consider the appellant’s argument, it
provides no basis to disturb the initial decision. In assessing a claim of disparate
penalty, 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, ¶¶ 14, 17. The appellant has not pro vided
evidence of any similarly -situated employee being treated differently than he was;
therefore, his disparate penalty claim must fail. We thus find no basis to disturb
the administrative judge’s determination that the deciding official considered the
relevant Douglas factors and exercised his discretion within the tolerable limits of
reasonableness. ID at 25.
NOTICE OF APPEAL RIGHTS3
You may obtain review of this final decision. 5 U.S.C. § 7703 (a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which t o file. 5 U.S.C. § 7703 (b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriat e for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applica ble to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choice s of review
below to decide which one applies to your particular case. If you have questions
3 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.
12
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional 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
13
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. ____ , 137 S. Ct. 1975 (2017). If you have a
representative in this case, and your representative receives this decision before
you do, th en you must file with the district court no later than 30 calendar days
after your representative receives this decision. If the action involves a claim of
discrimination based on race, color, religion, sex, national origin, or a disabling
condition, you may be entitled to representation by a court -appointed lawyer and
to waiver of any requirement of prepayment of fees, costs, or other security. See
42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
14
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 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
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
4 The origi nal statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permane ntly allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195,
132 Stat. 1510.
15
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” whi ch is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.g ov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representati on in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/ Court_Locator/CourtWebsites.aspx .
FOR THE BOARD:
Washington, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board | BLAND_KEVIN_R_SF_0752_16_0368_I_1_FINAL_ORDER_1998108.pdf | 2023-01-31 | KEVIN R. BLAND v. DEPARTMENT OF THE AI R FORCE, MSPB Docket No. SF-0752, January 31, 2023 | SF-0752 | NP |
3,671 | https://www.mspb.gov/decisions/nonprecedential/BUMGARDNER_SHERROD_LEWIS_DC_3330_22_0043_I_1_FINAL_ORDER_1998129.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
SHERROD LEWIS BUMGAR DNER,
JR.,
Appellant,
v.
DEPARTMENT OF THE NA VY,
Agency.
DOCKET NUMBER
DC-3330 -22-0043 -I-1
DATE: January 31, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL1
Thomas F. Muther, Jr., Esquire , Denver, Colorado, for the appellant.
Dina Finkel , 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
denied the appellant’s request for corrective action in his Veterans Employment
Opportunities Act of 1998 (VEOA) appeal. On petition f or review, the appellant
argues, among other things, that the selected candidate does not have vet erans’
1 A nonprecedential order is one that the Board has determined does not add
significantly to the 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
preference rights under VEOA because he was an internal candidate and that a
hearing was necessary to determine what consideration the agency gave to
veterans’ preference in the selection process for the attorney position. Generally,
we grant petit ions 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 ca se; or new and material evidence or legal
argument is available that, despite the petitioner’s due diligence, was not
available when the record closed. Title 5 of the Code of Federal Regulations,
section 1201.115 ( 5 C.F.R. § 1201.115 ). After fully considering the filings in this
appeal, we conclude that the petitioner has not established any basis under section
1201.115 for granting the petition for review. Therefore, we DENY the petition
for review and AFFIRM the initial decision, which is now the Board’s final
decision. 5 C.F.R. § 1201.113 (b).
NOTICE OF APPEAL RIG HTS2
You may obtain review of this final decision. 5 U.S.C. § 7703 (a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703 (b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how cour ts will rule regarding which cases fall within their
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
jurisdiction. If you wish to seek review of this 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 p etition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D .C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
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 representative receives this decision before
you do, then you must file with the district court no later than 30 calendar days
after your representative receives this decision. If the action involves a claim of
discrimination based on race, color, religion, sex, national origin, or a disabling
condition, you may be entitled to representation by a court -appointed lawyer and
to waiver of any requirement of prepayment of fees, costs, or other security. See
42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.usco urts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702 (b)(1). If you hav e 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 EEO C by regular U.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 requ iring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice describe d in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.3 The court of appeals must receive your petition for
3 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit cou rt of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195,
132 Stat. 1510.
6
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(B).
If you submit a petition for j udicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
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 | BUMGARDNER_SHERROD_LEWIS_DC_3330_22_0043_I_1_FINAL_ORDER_1998129.pdf | 2023-01-31 | null | DC-3330 | NP |
3,672 | https://www.mspb.gov/decisions/nonprecedential/WATKINS_KEMPER_STEVE_DC_1221_13_0230_W_3_FINAL_ORDER_1998138.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
KEMPER STEVE WATKINS ,
Appellant,
v.
DEPARTMENT OF DEFENS E,
Agency.
DOCKET NUMBER
DC-1221 -13-0230 -W-3
DATE: January 31, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL1
Kemper Steve Watkins , Westminster, Colorado, pro se.
Gordon R. Jimison , Esquire, and Michael Walby , Esquire, Battle Creek,
Michigan, 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 in part for lack of jurisdiction and denied in part his request for
corrective action in this individual right of action (IRA) appeal of his termination
during his supervisory probationary period. Generally, we grant petitions such as
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
require d to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c).
2
this one only when: the initial decision contains erroneous findings of material
fact; the initial decision is based on an erroneous interpretation of stat ute or
regulation or the erroneous application of the law to the facts of the case; the
administrative judge’s rulings during either the course of the appeal or the initial
decision were not consistent with required procedures or involved an abuse of
discr etion, and the resulting error affected the outcome of the case; or new and
material evidence or legal argument is available that, despite the petitioner’s due
diligence, was not available when the record closed. Title 5 of the Code of
Federal Regulations , section 1201.115 ( 5 C.F.R. § 1201.115 ). After fully
considering the filings in this appeal, we conclude that the petitioner has not
established any basis under section 1201.115 for granting the petition for review.
Therefore, we DENY the petition for review . Except as expressly MODIFIED by
this Final Order, we AFFIRM the initial decision. Specifically, we VACATE the
administrative judge’s finding that part of the appellant’s appeal was outside the
Board’s jurisdiction, FIND jurisdiction over the appeal in its entirety, and DENY
the appellant’s request for corrective action.
BACKGROUND
¶2 The appellant was appointed to a GS -14 Supervisory Property Disposal
Specialist position in the competitive service effective June 6, 2011, subject to
successfully completing a 1-year probationary period under 5 C.F.R. part 315
subparts H and I. Watkins v. Department of Defense , MSPB Docket No. DC-
1221 -13-0230 -W-1, Initial Appeal File (IAF), Tab 7 at 55. On November 19,
2011, the agency terminated him from his position based on alleged inappropriate
and unprofessional communications. Id. at 20-24. After exhausting his
administrative remedies before the Office of Special Counsel (OSC), the
appellant filed this appeal, contending that the termination constituted reprisa l for
whistleblowing. IAF, Tab 1, Tab 4 at 3-5, Tab 5 at 4-26. He requested a hearing.
IAF, Tab 4 at 6.
3
¶3 During the adjudication of the appeal, the parties disputed discovery
matters , which resulted in the administrative judge issuing an order permitting the
appellant to conduct a forensic search of the agency’s electronic mail system at
his own expense. The appellant subsequently filed multiple motions for the
admi nistrative judge’s disqualification, which were denied. Eventually, the
appellant declared that he would not participate in the adjudication of his appeal
unless it was reassigned to a different administrative judge and until the agency
provided him with all discovery documents that he believed were wrongfully
withheld from him . After providing the appellant with ample notice and an
opportunity to participate in the adjudication of his appeal, the administrative
judge canceled the hearing, allowed the rec ord to remain open for final
evidentiary submissions and argument, and decided the appeal on the written
record. Watkins v. Department of Defense , MSPB Docket No. DC-1221 -13-0230 -
W-3, Appeal File ( W-3 AF), Tabs 6-7, 9-12.
¶4 In an initial decision, t he adm inistrative judge found that the appellant
failed to prove by preponderant evidence that two of his four alleged protected
disclosures were protected, and she dismissed for lack of jurisdiction that portion
of the appeal pertaining to a third disclosure. W-3 AF, Tab 27, Initial Decision
(ID) at 8-13. She found th at the appellant proved that a fourth disclosure was
protected and was a contributing factor in the agency’s decision to terminate his
appointment during his probationary period. ID at 11-12. She further found,
however, that the agency proved by clear and convincing evidence that it would
have terminated the appellant during his probationary period even absent any
whistleblowing. ID at 3-18. She therefore denied the appellant’s request f or
corrective action. ID at 1, 19.
¶5 The appellant petitioned for review of the initial decision. Petition for
Review (PFR) File, Tab 1. The agency respond ed in opposition to the petition for
review , and the appellant replie d to the agency’s response. PFR File , Tabs 3-5.
4
ANALYSIS2
The administrative judge erred by dismissing part of the appeal for lack
of jurisdiction.
¶6 The Board has jurisdiction over an IRA appeal if the appellant has
exhausted his or her administrative remedies before OSC and makes nonfr ivolous
allegations that: (1) he engaged in whistleblowing activity b y making a protected
disclosure; and (2) the disclosure was a co ntributing factor in the agency’ s
decision to take or fail to take a personnel action. Chambers v. Department of
Homeland Security , 2022 MSPB 8 , ¶ 14; see also Hessami v. Merit Systems
Protection Board, 979 F.3d 1362 , 1364, 1369 (Fed. Cir. 2020); Yunus v.
Department of Veterans Affairs , 242 F.3d 1367 , 1371 (Fed. Cir. 2001) . The
Board’s regulations define a nonfr ivolous allegation as an assertion that, if
proven, could establish the matter at issue. 5 C.F.R. § 1201.4 (s).3 As the U.S.
Court of Appeals for the Federal Circuit recently put it: “[T]he question of
whether the appellant has non -frivolously alleged protected disclosures [or
activities] that contributed to a personnel action must be determined based on
whether the employee alleged sufficient factual matter, accepted as true, to state a
claim that is plausible on its face.” Hessami , 979 F.3d at 1362 , 1364, 1369.
¶7 In this case, the appellant established jurisdiction over his IRA appeal when
the administrative judge found that he made a nonfrivolous allegation that all four
of his disclosures were protected and were a contributing factor in a personnel
action. Watkins v. Department of Defense , MSPB Docket No. DC-1221 -13-0230 -
2 We have reviewed the relevant legislation enacted since the filing of this appeal and
find that it does not impact the outcome.
3 The regulation further provides that an allegation generally wi ll be considered
nonfrivolous when, under oath or penalty of perjury, an indiv idual makes an allegation
that: (1) is more than conclusory; (2) is plausible on its face; and (3) is material to the
legal issues in the appeal. Id. Pro forma allegations are insufficient to meet the
nonfrivolous standard. Clark v. U.S. Postal Service , 123 M.S.P.R. 466 , ¶ 6 (2016 ),
aff’d , 679 F. App’x 1006 (Fed. Cir. 2017), overruled on other grounds by Cronin v.
U.S. Postal Service , 2022 MSPB 13 , ¶ 20 n.11.
5
W-2, Appeal File ( W-2 AF ), Tab 4. The correct disposition of this appeal,
therefore, is a denial of the request for corrective action on the merits in its
entirety. See Piccolo v. Merit Systems Protection Board , 869 F.3d 1369 , 1371
(Fed. Cir. 2017) (outlining how , in IRA appeals, the Board must separate the
issue of jurisdiction from that of the merits). Because the administrative judge
afforded the appellant proper notice of the correct jurisdictional standard on more
than one occasion, IAF, Tab 3; W-2 AF , Tab 4, and because her mistaken
jurisdictional ruling does not affect th e result of the case, there is no prejudice to
the appellant’s substantive rights and no basis for reversal of the initial decision.
Panter v. Department of the Air Force , 22 M.S.P.R. 281 , 282 (1984). However,
we modify the initial decision to clarify that the appeal is within the Board’s
jurisdiction and that we, and the administrative judge, considered the appellant’s
request for correct ive action in its entirety and on its merits.
The appellant made a protected disclosure that was a contributing factor in a
personnel action.
¶8 The appellant asserted i n his OSC complaint that he made four protected
disclosures. The administrative judge found that the appellant failed to prove that
he actually made two of the claimed disclosures because there was no evidence of
record showing that he made them . The record does not contain a copy of either
disclosure, or any doc ument from which the alleged disclosures can be inferred,
or any sworn statement indicating that the appellant made the disclosures. The
only evidence of the disclosures is the appellant’s unsworn claim on appeal that
he made them . The administrative jud ge correctly found that the appellant
did not submit preponderant evidence establishing that he made the se two
disclosures. The appellant does not challenge this finding on review and we
discern no reason to disturb it.
¶9 The administrative judge also found that the appellant failed to prove that a
third disclosure was protected . The appellant asserted to OSC that on or about
October 27, 2011, he informed his superiors that if a certain military officer
6
decided to file a disc rimination complaint with “the IG ,” then he would support
her. IAF, Tab 5 at 10. The administrative judge determined that this disclosure
amounted to the appellant announcing his intent to engage in protected activity
under 5 U.S.C. § 2302(b)(9). ID at 13. Announcement of intent to engage in
protected activity under 5 U.S.C. § 2302 (b)(9) may be protected in some cases .
Cf. Mausser v. Department of the Army , 63 M.S.P.R. 41 , 44 (1994); ID at 13.
However, the Board did not have IRA jurisdiction over allegations such as th is
one under 5 U.S.C. § 2302 (b)(9) until December 2012, when the Whistleblower
Protection Enhancement Act of 2012 (WPEA) took effect.4 Pub. L. No. 112-199,
§ 202, 126 Stat. 1465 , 1476. Therefore, the administrative judge correctly found
that the appellant failed to prove that his third disclosure was protected. ID at 13.
Again, the appellant does not challenge the administrative judge ’s finding on this
and we see no reason to revisit it.
¶10 The administrative judge found that a fourth disclosure, concerning the
disposition of a large number of halon cylinders without being demilitarized, was
protected. ID at 11-12; IAF, Tab 5 at 16; W-2 AF , Tab 57 at 18-22. The
administrative judge noted that the appellant, as with his first two disclosures,
did not submit evidence showing he actually made the disclosure, but she found
sufficient evidence in the agency’s submissions to establish that the appellant
made the d isclosure and that it was protected. ID at 11-12. We agree. Moreover,
because the appellant was employed by the agency for only 5 months and made
his protected disclosure to the people in his chain of command who eventually
decided to terminate him, we find, as did the administrative judge, that the
disclosure was a contributing factor in a personnel action. Carey v. Department
4 Section 101 of the WPEA amended 5 U.S.C. § 1221 (a), (e), to extend the Board’s
jurisdiction over IRA appeals to claims of retaliation under 5 U.S.C. § 2302 (b)(9)(A)(i),
(B), (C), and (D). Pub. L. No. 112-199, 126 Stat. 1465 -66. The Board has explicitly
found that section 101(b) is not retroactive. Colbert v. Department of Veterans Affairs ,
121 M.S.P.R. 677, ¶ 7 (2014); see also Hicks v. Merit Systems Protection Board ,
819 F.3d 1318 , 1320 -21, 1323 (Fed. Cir. 2016).
7
of Veterans Affairs , 93 M.S.P.R. 676, ¶ 11 (2003) (stating that an employee may
show that a disclosure was a contributing factor in a personnel action through
circumstantial evidence, such as evidence 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 in
the personnel action).
The agency showed by clear and convincing evidence that it would have
terminated th e appellant absent his disclosure.
¶11 Because the appellant made a prima facie case of whistleblower reprisal, the
burden shifts to the agency to show by clear and convincing evidence that it
would have terminated the appellant absent his disclosure about t he halon fire
cylinders . In determining whether an agency has shown by clear and convincing
evidence that it would have taken the same personnel action in the absence of the
protected activity , the Board will co nsider all of the relevant factors , including
the following (“ Carr factors”) : (1) The strength of the agency’ s evidence in
support of its action; (2) the existence and strength of any motive to retaliate on
the part of the agency officials who were involved in the decision; and (3) any
evidence that the agency takes similar actions against employees who are not
whistleblowers but who are otherwise similarly situated. Soto v. Department of
Veterans Affairs , 2022 MSPB 6 , ¶ 11; see also Carr v. Social Security
Administration , 185 F.3d 1318 , 1323 (Fed. Cir. 1999).5 The Board consider s all
the evidence, including evidence that detracts from the conclusion 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).
5 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 s.
8
¶12 The agency terminated the appellant from his position based on a charge of
“inappropriate and unprofessional communications with agency personnel.” IAF,
Tab 7 at 21. The agency cited 13 instances in which he disparaged other
employees in emails or during a meeting in Battle Creek , Michigan , an emai l to
the Contracting Director containing aggressive criticism of the Contracting
Division, and 3 instances in which he failed to communicate information to staff.
Id. at 21-22. The agency also cited his practice of screening his telephone calls.
Id. at 22. The record contains copies of memoranda documenting the appellant’s
telephone habits and communications issues6 as well as one participant’s
memorandum from the Battle Creek meeting.7 Id. at 43-56. The administrative
judge discussed the evidence in support of the agency’s charge, and her
discussion is well -reasoned and thoroughly supported by the record. ID at 14-18.
We agree with her conclusion that it was reasonable for the agency to expect a
higher standard of decorum and diplomacy from a superv isor, especially at the
appellant’s level, and that it was entirely appropriate for the agency to use the
probationary period8 to assess the appellant’s ability to perform the functions of
6 Some example s of his communications issues include making very broad assignments
and then failing to set parameters so the assignments could be completed; failing to
issue guidance or provide clarification after saying he would do so; avoiding or
forgetting to inform his staff of impending changes with the result that his subordinate
supervisors had to take the initiative to communicate the information themselves; not
attempting to solve problems at the lowest level but instead elevating every dispute into
a complaint submitted to his superiors; delegating difficult conversations to his
subordinate supervisors; and making himself difficult to reach (most of his staff was not
co-located) by screening his telephone calls and by not responding to emails without
being promp ted to do so via telephone. IAF, Tab 7 at 25 -32.
7 Towards the end of the meeting memorandum, the author wrote, “As a group, we
agreed that the meeting was a shining example of why things have been so difficult
unnecessarily for the last 4 months.” IAF , Tab 7 at 54.
8 The appellant contended below that the agency had an illegal double standard for
probationary and permanent employees. IAF, Tab 9 at 4 -5, Tab 13; W -2 AF, Tab 3 at 4.
The purpose of the probationary period is to allow a Federal agency t o assess an
employee’s conduct and performance and to be able to terminate an unsatisfactory
employee’s employment quickly before the due process rights of a tenured civil servant
9
his position, including his ability to form productive professional relationships.
Cf. De Cleene v. Department of Education , 71 M.S.P.R. 651, 655 (1996) ( finding
that an empl oyee who engages in misconduct m ay be held to a higher standard if
he encumbers a supervisory position). This factor weighs heavily in the
agency’s favor.
¶13 As to Carr factor two, 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 them 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. Here, however, we agree with the admini strative judge ’s finding that
the agency had little motive to retaliate against the appellant for his disclosure
about the halon cylinders. ID at 15. As the administrative judge correctly stated,
the rele vant agency managers agreed with the appellant’s assessment of the
problem with the cylinders and found his recommendation for resolving the issue
to be sound. W-2 AF , Tab 58 at 4-6. This factor also weighs in favor of
the agency.
¶14 As to the third Carr factor, t he agency asserted that, in January 2012, it
proposed to terminate a GS -15 supervisory employee during his probationary
period for his unprofessional remarks, but that employee was not a whistleblower.
W-2 AF , Tab 53 at 78. The appellant also as serted that permanent employees
committed much more serious acts of misconduct, including one who used racial
slurs, but were not terminated. W-2 AF , Tab 12 at 7-8, Tab 26 at 8-9.
vest. Cf. Calixto v. Department of Defense , 120 M.S.P.R. 557 , ¶ 14 (2014) (explaining
the purposes of the probationary period for nonsupervisory employees under 5 C.F.R.
§ 315.803 (a)). This will inevitably mean that, sometimes, a probationer will lose his
job when a permanent employee who commits the same or a more serious offense might
not. This is not “illegal,” but by design. Cf. 5 U.S.C. § 7511 (a) (excluding
probationers from the statutory definition of “employee” for purposes of the Board’s
adverse action jurisdiction).
10
¶15 The third Carr factor involves comparing employees who are similarly and
not identically situated. Soto , 2022 MSPB 6 , ¶ 11; see also Whitmore , 680 F.3d
at 1373 . Nevertheless, t here is a vast difference between probationary employees
and permanent employees, not least of which is that they are subject to different
standards governing discipline. Permanent employees can only be disc iplined for
reasons that promote the efficiency of the service. 5 U.S.C. § § 7503 (a), 7513(a).
If a permanent employee is disciplined, he has the right to appeal adverse actions
to the Board, prov ided he meets the statutory definition of “employee” set forth at
5 U.S.C. § 7511 (a). There is no statute containing standards governing the
discipline of probationers and, therefore, no limits on an agency’s discretion in
this area so long as the agency’s action does not violate some other statute, such
as one of the anti -discrimination statutes or the Whistleblower Protection Act. In
other words, an agency can terminate a probationary employee for any reason or
no reason, so long as that reason is not an illegal reason. A prudent agency,
therefore, ensures that it has amassed sufficient evidence to support its case, is
careful to provide due process rights guaranteed by the United States
Consti tution, and affords a tenured employee the procedural rights set forth in
5 U.S.C. § 7513 and any other law, rule, regulation, or union contract that might
be applicable in a particular case. A probationer is entitled to none of these
things. Because an agency does not need a reason to terminate a probationer, it
need not collect any evidence or prepare itself to prove anything, although it
would be prudent to do so in most cases. The fact that t he law permits the agency
to terminate the appellant’s employment during his probationary period for any
reason that is not illegal means that he is not similarly situated to permanent
employees, who can only be removed for reasons that promote the efficie ncy of
the service.
¶16 Neither party submitted evidence concerning the GS-15 probationer’s
termination . 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
11
remove d 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 tha t this factor is neutral.
See Siler v. Environmental Protection Agency , 908 F.3d 1291 , 1299 (Fed. Cir.
2018) (holding that in the absence of re levant comparator evidence, the third Carr
factor cannot favor the agency).
¶17 If the first two Carr factors are only supported by weak evidence, the
failure to present evidence of the third Carr factor may prevent the agency from
carrying its overall burden. Smith , 2022 MSPB 4 , ¶ 30-31; see also Miller v.
Department of Justice , 842 F.3d 1252 , 126 2-63 (Fed. Cir. 2016) (where an agency
presented little or weak evidence for the first two Carr factors, the lack of Carr
factor three evidence “if anything[] tends to cut slightly against the government”).
In this case, we find that the absence of comparator evidence does not warrant a
finding that the agency did not meet its overall burden.
¶18 In summary, we find that the appella nt has not shown error in the
administrative judge’s well -reasoned conclusion , which is fully supported by the
record, that the agency proved by clear and convincing evidence that it would
have terminated the appellant during his probationary period even absent his
disclosure about the halon cylinders .
The administrative judge did not abuse her discretion in ruling on the appellant’s
discovery motions and other procedural motions.
¶19 As soon as the agency responded to the appellant’s appeal , IAF, Tabs 7-8,
the appellant began filing repetitive motions for an immediate decision in his
favor, IAF, Tabs 10-13. The administrative judge correctly informed the
appellant that the Board lacks summary judgment authority regardless of the
strength or weakness of a pa rty’s evidence . IAF, Tab 14. Despite the
administrative judge’s ruling, the appellant continued to file what amounted to
motions for summary judgment . W-2 AF , Tab 3; Tab 12 at 4; Tab 13 at 4-5;
12
Tab 18; Tab 20 at 4; Tab 25 at 7; Tabs 26-27; Tabs 40-42, 4 4; Tab 50 at 8; Tab 52
at 4; W-3 AF, Tabs 1-2, 6, 9, 13, 17 -18. Because all of the motions requested a
summary ruling in the appellant’s favor, the administrative judge correctly
construed them as motions for summary judgment and she properly denied them .
W-2 AF , Tab 45, Tab 61 at 3; see Hessami , 979 F.3d at 1368 -69 (holding that the
Board lacks summary judgment authority); Crispin v. Department of Commerce ,
732 F.2d 919 , 922 (Fed. Cir. 1984) (same ).
¶20 As to discovery, t he appellant requested a variety of emails related to his
employment with the agency. When he deemed the agency’s response
inadequate, he filed a number of motions to compel, W-2 AF, Tabs 25, 34 -35,
which the administrative judge granted in part, W-2 AF , Tab 38. The agency then
asserted that most of the relevant emails no longer existed and it provided what it
still had. W-2 AF , Tab 43. The appellant disputed the agency’s assertion and
moved for sanctions. W-2 AF , Tab 44. After requesting and receiving more
information from the agency, W-2 AF , Tabs 46, 61, the administrative judge
denied the motion for sanctions, W-2 AF , Tab 61. Howeve r, she granted the
appellant’s request for a forensic examination of the agency’s email system,
provided that any such examination would take place at the appellant’s expense,
and would be a recoverable cost should he prevail in his appeal. W-2 AF , Tab 61
at 2, Tab 63 at 2-3, Tab 66 at 3-4.
¶21 In response to one of the appellant’s motions to compel, the agency asserted
that the appellant signed for receipt of three boxes of discovery documents, and it
submits copies of U .S. Postal Service tracking sheets bearing the appellant’s
signature.9 W-2 AF , Tab 49 at 4, 6-8. The agency further made a limited waiver
of attorney -client privilege to make its discovery efforts more transparent and to
reflect that agency managers performed a search and provided documents to
counsel. Id. at 4-5, 9. The appellant, however, continued to insist, inter alia, that
9 The package weights indicated on the tracking s heets are consistent with what a box
of documents might weigh. W-2 AF , Tab 49 at 6 -8.
13
the agency’s search was inadequate and improper and that the documents he was
seeking exist ed. The administrative judge afforded the appellant t he opportunity
to prove that the documents exist ed and obtain them. Requiring the appellant to
pay the costs of the extraordinary measures required to achieve that, costs that
would be recoverable if the appellant prevails in his appeal, was a reasonable
exercise of the administrative judge’s discretion to rule on discovery matters
under 5 C.F.R. § 1201.41 (b). In any event, the appellant has not shown that the
administrative judge’s ruli ng was an abuse of discretion. Schoenrogge v.
Department of Justice , 76 M.S.P.R. 216 , 221 (1997) (finding that the
administrative 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).
The appellant’s a llegations of administrative judge bias and misconduct
are baseless.
¶22 As the parties’ discovery dispute escalated, the appellant set conditions on
his willingness to communicate with the agency, stating that he would only accept
emails from the agency’s representative after the agency complied with the
administra tive judge’s discovery orders to his satisfaction and behaved in
accordance with the appellant’s notion of professionalism.10 W-2 AF , Tab 62
at 8. After the administrative judge admonished the appellant for the second
time, W-2 AF , Tabs 61, 63, to engage in respectful and cooperative interactions
with the agency, the appellant moved that the administrative judge disqualify
herself, and he conditioned his future participation in discovery on having a
different administrative judge assigned to his case. W-2 AF, Tab 64. When the
administrative judge denied the motion, W-2 AF , Tab 65, the appellant protested
10 The agency submitted a copy of an email it received from the appellant that stated,
inter alia, “ REFER TO MY JULY 8, JULY 21, JULY 24, JULY 28 AND JULY 31
PLEADING S AND DO NOT, REPEAT, DO NOT ATT EMPT TO CON TACT ME VIA
ANY METHOD OTHER TH[AN] THROUGH THE COURT. ” W-2 AF , Tab 47 at 11
(capitalization in the original) .
14
that it was improper for the administrative judge to rule on the motion herself and
renewed his motion, specifying that it was to be decided by a “higher authority”
than the administrative judge,11 W-2 AF , Tab 67. The administrative judge
construed this motion as a motion to certify her ruling for interlocutory appeal,
which she correctly denied because it did not meet the criteria for certification
under 5 C.F.R. § 1201.91 . W-2 AF , Tab 68. The appellant, however, continued
to file motions for the administrative judge to disqualify herself. W-2 AF ,
Tabs 69, 71; W-3 AF, Tabs 1-2, 6, 13.
¶23 The appellant’s allegations of administrative judge misconduct reflect an
intense disappointment with her rulings on his various motions. However, an
administrative judge’s case -related rulings, even if erroneous, are insufficient to
establish bias warr anting her recusal or disqualification from further involvement
in the appeal . King v. Department of the Army , 84 M.S.P.R. 235 , ¶ 6 (1999) .
Here, the appellant has not shown that the administrative judge abused her
discretion in any of her discovery rulings or rulings on his numerous motions, but
even if he had, his disagreement with those rulings, however vociferous, is
insufficient to overcome the presumption of honesty and integrity that
accompanies administrative adjudicators . Oliver v. Department of
Transportation , 1 M.S.P.R . 382 , 386 (1980).
The administrative judge’s decision to cancel the hearing was an appropriate
exercise of her discretion .
¶24 The administrative judge dismissed this appeal without prejudice to its
refiling twice for reasons that are beyond the scope of this order. When the
appellant refiled his appeal after the second dismissal without prejudice, he
renewed his demands for summary judgment and for the administrative judge ’s
11 In another example of the appellant’s attempt to prescribe his own set of procedures,
he stated, “THIS JUDGE IS NOT, REPEAT NOT ALLOWED TO CERTIFY HER
OWN DISMISSAL REFUSAL, PERIOD.” W -2 AF, Tab 67 at 5 (capitalization in the
original). The Board’s regulations, however, permit the administrative judge to do
precisely that. 5 C.F.R. § 1201.42 .
15
disqualification. W-3 AF, Tabs 1-2. He further demanded an investigation into
the administrative judge ’s alleged misconduct and an award of interim
compensation. W-3 AF, Tab 1 at 4. The administrative judge then issued a
routine Acknowledgment Order , a routine Hearing Order, and a routine Notice of
Rescheduling in quick succession. W-3 AF, Tabs 3-5. The appellant responded
to these with a pleading entitled “Correction to Recent Orders” that began:
NOW COMES THE APPELLANT TO INFORM THE COURT,
[the administrative judge ] AND THE MSPB INSPECTOR
GENERAL (AND T O MOTION, ALTHOUGH NOT
NECESSARY DUE TO THE ORDERS’ STANDING
ILLEGALISTIES) AND DEEM THE 20 AND 24 FEB , 2015
COURT ORDERS NULL AND VOID. THEY HAVE NO LEGAL
BEARING AND IF ATTEMPTED TO BE CARRIED OUT AS
WRITTEN AND WITHOUT [the administrative judge’s]
IMMEDIATE REMOVAL AND A F ULL, INTERNAL
INVESTIGA TION . . . THESE ORDERS WILL NOT BE
CONSIDERED LEGAL AND/OR VALID IN ANY COURT OR
JURISDICTION AT ANY LEVEL, AT ANY TIME.
W-3 AF, Tab 6 at 4 (bold and capitalization in the original) . He also stated, “ IN
THIS CASE, MY CASE, AND ONLY AFTER [the administrative judge’s]
IMMEDIATE REMOVAL AND THE SUBSEQUENT INVESTIGATION
(THAT I MOTIONED FOR ON NUMEROUS OCCASIONS), WILL THERE
BE ANY COURT ORDERS WRITTEN AND EXECUTED . . . .” Id. at 5 (bold
and capitalization in the original; yellow highlighting omitted) . Clearly, the
appellant has neither the authority to correct an administrative judge’s order nor
the authority to declare whether an order will b e considered legal and valid.
¶25 The administrative judge informed the appellant that it appeared that he was
refusing to participate in the further adjudication of his appeal, she warned him
that any refusal to comply with her orders could result in sancti ons, and she
scheduled a telephonic status conference. W-3 AF, Tab 7. The appellant
responded by accusing the administrative judge of having the “gall” to threaten
sanctions, and stated “ THIS CASE WILL NOT GO FORWARD WITHOUT
16
HER IMMEDIATE REMOVAL . . . .” W-3 AF, Tab 9 at 5 (bold and
capitalization in the original; yellow highlighting omitted).
¶26 The appellant did not appear for the scheduled status conference, and the
administrative judge issued an Order to Show Cause why the appeal should not be
dismissed for failure to prosecute based on the appellant’s refusal to participate in
the adjudication of his appeal. W-3 AF, Tab 10. In response, the appellant
denied that he was refusing to participate and asserted that he would participate in
a fai r and unbiased proceeding after the administrative judge was disqualified and
the agency provided all of the discovery materials he had requested. W-3 AF,
Tab 11. The administrative judge decided not to dismiss the appeal for failure to
prosecute. Instea d, she noted that the appellant stated he would not participate
unless a different administrative judge were assigned to the appeal and , because
the appeal was not going to be reassigned to another administrative judge , she
canceled the hearing, set a dead line for final submissions, and decided the appeal
based on the written record. W-3 AF, Tab 12.
¶27 The Board does not deny appellants ’ requested hearings as a sanction
except in extraordinary cases. Sims v. U.S. Postal Service , 88 M.S.P.R. 101,
¶¶ 7-8 (2001). We have car efully reviewed the record and we agree with the
administrative judge that the appellant’s refusal to cooperate in the prosecution of
his appeal created a situation in which there was no realistic chance that a hearing
could actually take place. The appellant attempted to control the proceedings by
dictating which procedures he would and would not follow, he filed numerous
duplicative motions seeking reconsideration of rulings the administrative judge
stated she would not reconsider, he refused to acknowledge that the
administrative judge had any authority once he decided she was biased, and his
pleadings were replete with disrespectful and even insulting language aimed at
the agency, the agency’s representative, and the administrative judge. Under the
circumstances of this case, we agree with the administrative judge that cancelling
the hearing and deciding the appeal on the written record was the best option
17
available for moving the appeal forward. See Bilger v. Department of Justice ,
33 M.S.P.R. 602 , 607 (1987) (finding that, once an administrative judge imposes
a sanction, the Board ordinarily will not disturb such a determination unless it is
shown that the administrative judge abused her discretion or that her ruling
adverse ly affected a party’s substantive rights), aff’d , 847 F.2d 842 (Fed. Cir.
1988) (Table).
The appellant’s arguments on review are without merit.
¶28 The appellant asserts on review that the Board must reverse the initial
decision because the agency’s representative , and not the administrative judge ,
drafted the initial decision . PFR File, Tab 1 at 4-5. He contends that the initial
decision shows that the administra tive judge never read any of his pleadings, and
he allege s that she could not possibly have included so much detail in the
decision without help from the agency because the details were not available to
her in the record. Id. at 5-6. The appellant offers no evidence to support these
accusation s. Based on our review, we find that t he administrative judge has
thoroughly supported her conclusions with precise citations to the record and
accurate application s of pertinent case law. T he appellant identifies no statement
in the decision that cannot be supported by something in the evidentiary record,
and we discern none.
¶29 The appellant also renews on review his claim that the administrative judge
was biased, but these assertions are without merit for the reasons set forth ab ove.
Accordingly, we find that the administrative judge properly denied the appellant’s
request for corrective action.
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 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).
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.
19
If you submit a petition for review to the U.S. Court of Appeals 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
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, costs, or other security. See
42 U.S.C. § 2000e -5(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
21
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.13 The court of appeals must receive your
petition for review within 60 days of the date of issuance of this deci sion.
5 U.S.C. § 7703 (b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our 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
whistleblower claims by any court of 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.
Conta ct information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites .aspx .
FOR THE BOARD:
Washington , D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board | WATKINS_KEMPER_STEVE_DC_1221_13_0230_W_3_FINAL_ORDER_1998138.pdf | 2023-01-31 | null | DC-1221 | NP |
3,673 | https://www.mspb.gov/decisions/nonprecedential/DAVIS_CELESTE_H_CH_0752_17_0423_I_2_FINAL_ORDER_1998150.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
CELESTE H. DAVIS,
Appellant,
v.
DEPARTMENT OF HEALTH AND
HUMAN SERVICES,
Agency.
DOCKET NUMBER
CH-0752 -17-0423 -I-2
DATE: January 31, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL1
James E. Sullivan , Esquire, Chicago, Illinois , for the appellant.
Jean P. Kamp , Esquire, Oak Park, Illinois, for the appellant.
Jennifer Blake Smith , Julie Murphy , and Kathleen Mee , Washington, D.C.,
for the agency.
Madeha Chaudry Dastgir , Esquire, Chicago, Illinois, 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
dismissed her removal appeal without prejudice to refiling. For the reasons set
forth below, we DISMISS the petition for review as moot.
¶2 The appellant first filed her removal appeal in June 2017.
Davis v. Department of Health & Human Services , MSPB Docket No.
CH-0752 -17-0423 -I-1, Initial Appeal File (IAF), Tab 1. In August 2019, the
administrative judge dismissed the appeal without prejudice to refiling no later
than February 6, 2020 , because of a pending interlocutory appeal before the
Board . IA F, Tab 127, Initial Decision . When the appeal was automatically
refiled on February 6, 2020, the administrative judge determined that a second
dismissal without prejudice was appropriate because the interlocutory appeal was
still pending before the B oard. Davis v. Department of Health & Human
Services , MSPB Docket No. CH -0752 -17-0423 -I-2, Appeal File, Tab 2, Initial
Decision . She therefore dismissed the appeal without prejudice to refiling no
later than February 6, 2021. Id. at 2.
¶3 The appellant timely filed a petition for review of the second dismissal
without prejudice . Petition for Review File, Tab 1. While the petition for review
was pending, the appellant refiled her appeal. Davis v. Department of Health &
Human Services , MSPB Docket No. CH -0752 -17-0423 -I-3, Appeal File (I -3 AF),
Tabs 1, 6 . In November 2021, the a dministrative judge dismissed the appeal as
settled. I -3 AF, Tab 42, Initial Decision . Neither party filed a petition for review
of that decision dismissing the appeal as settled.
¶4 The only matter before the Board in this petition for review is whether the
first dismissal without prejudice was proper. The r emedy for an improperly
granted dismissal without prejudice is remand to the regional office for further
adjudication of the appeal. See, e.g. , Dey v. Nuclear Regulatory Commission ,
106 M.S.P.R. 167 , ¶¶ 9 -11 (2007). However, the underlying appeal has been
refiled and dismissed as settled during the pendency of this petition for review.
3
Therefore, there is no meaningful relief the Board could grant even if we
determined that the first dismissal without prejudice should not have been
granted . See White v. International Boundary & Water Commission , 59 M.S.P.R.
62, 64-65 (1993) (dismissing a petition for review as moot when the Board could
not grant effective relief). We therefore dismiss the petition for review.
See Villarreal v. Department of the Treasury , 13 M.S.P.R. 82, 84 (1982)
(dismissing a petition for review as moot in light of the appellant’s decision no t
to refile his appeal because a Board opinion on the initial decision would have no
effect on the p arties in question ).
¶5 This is the final order of the Merit Systems Protection Board in this appeal.
5 C.F.R. § 1201.113 (c).
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 th e time limit for seeking such
review and the 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 Protec tion Board does not provide 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 r eview of this 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 c hosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
2 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise w hich option is most appropriate in any matter.
4
about whether a particular forum is the appropriate one to review your case, you
should c ontact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circui t is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are intereste d in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellan ts before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This op tion applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
5
judicial review of this decision —includ ing a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 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 acc essed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after y ou receive
this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative 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 77 960
Washington, D.C. 20013
6
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “rais es 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 judicia l review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.3 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
3 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit 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
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
releva nce is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals fo r the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD:
Washington, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board | DAVIS_CELESTE_H_CH_0752_17_0423_I_2_FINAL_ORDER_1998150.pdf | 2023-01-31 | null | CH-0752 | NP |
3,674 | https://www.mspb.gov/decisions/nonprecedential/JACKSON_ALEXANDER_CH_0752_17_0261_I_1_FINAL_ORDER_1998161.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
ALEXANDER JACKSON ,
Appellant,
v.
UNITED STATES POSTAL SERVICE,
Agency.
DOCKET NUMBER
CH-0752 -17-0261 -I-1
DATE: January 31, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL1
Glenn L. Smith , Esquire, Grand Rapids, Michigan, for the appellant.
Hannah C. Brothers and Theresa E. Essig , 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 of the initial decision, which
reversed the appellant’s removal . On petition for review, the agency argues that
the administrative judge erred in her credibility determinations and factual
findings regarding the charges. Generally, we grant petitions such as this one
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no 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
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 e rroneous 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 e rror 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.2 5 C.F.R. § 1201.113 (b).
ORDER
¶2 We ORDER the agency to cancel the removal and to retroactively restore
the appellant effective March 7, 2017 . See Kerr v. National Endowment for the
Arts, 726 F.2d 730 (Fed. Cir. 1984). The agency must complete this action no
later than 20 days after the date of this decision.
¶3 We also ORDER the agency to pay the appellant the correct amount of back
pay, interest on back pay, and other benefits under the Office of Perso nnel
Management’s regulations, no later than 60 calendar days after the date of this
decision. We ORDER the appellant to cooperate in good faith in the agency’s
2 The appellant has filed a motion to dismiss the agency’s petition for review and a
petition for enforcement, in which he alleges that the agency failed to comply with the
administrative judge’s int erim relief order. Petition for Review File, Tabs 3, 8. We
deny the petition for enforcement because our regulations do not allow for a petition for
enforcement of an interim relief order. See Ayers v. Department of the Army ,
123 M.S.P.R. 11 , ¶ 7 (2015); 5 C.F.R. § 1201.183 . As for the appellant’s motion to
dism iss, given our disposition of this appeal in his favor, the issue of the agency’s
compliance with the interim relief order is moot. See Ayers , 123 M.S.P.R. 11 , ¶ 8.
3
efforts to calculate the amount of back pay, interest, and benefits due, and to
provide all ne cessary information the agency requests to help it carry out the
Board’s Order. If there is a dispute about the amount of back pay, interest due,
and/or other benefits, we ORDER the agency to pay the appellant the undisputed
amount no later than 60 calend ar days after the date of this decision.
¶4 We further ORDER the agency to tell the appellant promptly in writing
when it believes it has fully carried out the Board’s Order and of the actions it has
taken to carry out the Board’s Order. The appellant, if not notified, should ask
the agency about its progress. See 5 C.F.R. § 1201.181 (b).
¶5 No later than 30 days after the agency tells the appellant that it has fully
carried out the Board’ s Order, the appellant may file a petition for enforcement
with the office that issued the initial decision on this appeal if the appellant
believes that the agency did not fully carry out the Board’s Order. The petition
should contain specific reasons wh y the appellant believes that the agency has not
fully carried out the Board ’s Order, and should include the dates and results of
any communications with the agency. 5 C.F.R. § 1201.182 (a).
¶6 For agencies whose payroll is administered by either the National Finance
Center of the Department of Agriculture (NFC) or the Defense Finance and
Accounting Service (DFAS), two lists of the information and documentation
necessary to process payments and adjustments resulting from a Board decision
are attached. The agency is ORDERED to timely provide DFAS or NFC with all
documentation necessary to process payments and adjustments resulting from the
Board’s decision in accordance with the attached list s so that payment can be
made within the 60 -day period set forth above.
NOTICE TO THE APPELL ANT REGARDING
YOUR RIGHT TO REQUES T
ATTORNEY FEES AND CO STS
You may be entitled to be paid by the agency for your reasonable attorney
fees and costs. To be paid, y ou must meet the requirements set forth at Title 5 of
4
the United States Code (5 U.S.C.), sections 7701(g), 1221(g), or 1214(g). The
regulations may be found at 5 C.F.R. §§ 1201.201 , 120 1.202, and 1201.203. If
you believe you meet these requirements, you must file a motion for attorney fees
and costs WITHIN 60 CALENDAR DAYS OF THE DATE OF THIS DECISION.
You must file your motion for attorney fees and costs with the office that issued
the initial decision on your appeal .
NOTICE OF APPEAL RIG 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 fo r seeking such
review and the 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 f inal 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 for um for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
3 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most ap propriate in any matter.
5
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you m ust submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing p ro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the F ederal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the 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
representative in this case, and your representative receives this decision before
6
you do, then you must file with the district court no later than 30 calendar days
after your representative receives this decision. If the action involves a claim of
discrimination based on race, color, religion, sex, national origin, or a disabling
condition, you may be entitled to representation by a court -appointed lawyer and
to waiver of any requirement of prepayment of fees, costs, or other security. See
42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.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 fo r review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
7
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice describe d in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.4 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(B).
If you submit a petition for j udicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional informa tion about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of P ractice, and Forms 5, 6, 10, and 11.
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.
8
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD:
Washington, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board
DEFENSE FINANCE AND ACCOUNTING SERVICE
Civilian Pay Operations
DFAS BACK PAY CHECKLIST
The following documentation is required by DFAS Civilian Pay to compute and pay back pay
pursuant to 5 CFR § 550.805. Human resources/local payroll offices should use the following
checklist to ensure a request for payment of back pay is complete. Missin g documentation may
substantially delay the processing of a back pay award. More information may be found at:
https://wss.apan.org/public/DFASPayroll/Back%20 Pay%20Process/Forms/AllItems.aspx .
NOTE: Attorneys’ fees or other non -wage payments (such as damages) are paid by
vendor pay, not DFAS Civilian Pay.
☐ 1) Submit a “SETTLEMENT INQUIRY - Submission” Remedy Ticket. Please identify the
specific dates of the back pay period within the ticket comments.
Attach the following documentation to the Remedy Ticket, or provide a statement in the ticket
comments as to why the documentation is not applicable:
☐ 2) Settlement agreement, administrative determination, arbitrator award, or order.
☐ 3) Signed and completed “Employee Statement Relative to Back Pay”.
☐ 4) All required SF50s (new, corrected, or canceled). ***Do not process online SF50s
until noti fied to do so by DFAS Civilian Pay.***
☐ 5) Certified timecards/corrected timecards. ***Do not process online timecards until
notified to do so by DFAS Civilian Pay.***
☐ 6) All relevant benefit election forms (e.g. TSP, FEHB, etc.).
☐ 7) Outside ea rnings documentation. Include record of all amounts earned by the employee
in a job undertaken during the back pay period to replace federal employment.
Documentation includes W -2 or 1099 statements, payroll documents/records, etc. Also,
include record of any unemployment earning statements, workers’ compensation,
CSRS/FERS retirement annuity payments, refunds of CSRS/FERS employee premiums,
or severance pay received by the employee upon separation.
Lump Sum Leave Payment Debts: When a separation is later reversed, there is no authority
under 5 U.S.C. § 5551 for the reinstated employee to keep the lump sum annual leave payment
they may have received. The payroll office must collect the debt from the back pay award. The
annual leave will be restored to the employee. Annual leave that exceeds the annual leave
ceiling will be restored to a separate leave account pursuant to 5 CFR § 550.805(g).
NATIONAL FINANCE CEN TER CH ECKLIST FOR BACK PAY CASES
Below is the information/documentation required by National Finance Center to process
payments/adjustments agreed on in Back Pay Cases (settlements, restorations) or as ordered by
the Merit Systems Protection Board, EEOC, and cou rts.
1. Initiate and submit AD -343 (Payroll/Action Request) with clear and concise information
describing what to do in accordance with decision.
2. The following information must be included on AD -343 for Restoration:
a. Employee name and social security numb er.
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. | JACKSON_ALEXANDER_CH_0752_17_0261_I_1_FINAL_ORDER_1998161.pdf | 2023-01-31 | null | CH-0752 | NP |
3,675 | https://www.mspb.gov/decisions/nonprecedential/SCOVELL_DARLYN_C_SF_0752_16_0355_I_1_FINAL_ORDER_1998174.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
DARLYN C. SCOVELL,
Appellant,
v.
DEPARTMENT OF THE NA VY,
Agency.
DOCKET NUMBER
SF-0752 -16-0355 -I-1
DATE: January 31, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL1
Daphne E. Barbee , Esquire, Honolulu, Hawaii, for the appellant.
Ellen Johnston , Washington Navy Yard, 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
sustained the agency’s chapter 75 removal action . Generally, we grant petitions
such as this one only in the following circumstances: the initial decision contains
erroneous fin dings of material fact; the initial decision is based on an erroneous
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
require d to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c).
2
interpretation of statute or regulation or the erroneous application of the law to
the facts of the case; the administrative judge’s rulings during either the course of
the appeal or the initial decision were not consistent with required procedures or
involved an abuse of discretion, and the resulting error affected the outcome of
the case; or new and material evidence or legal argument is available that, despite
the petitioner’s due 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. Except to MODIFY the
administrative judge’s analysis of the appellant’s claim that the agency violated
her due process rights , we AFFIRM the initial decision.
BACKGROUND
¶2 The agency removed the appellant from her position as a GS-6 Lead Child
Development Program Technician for a pre -kindergarten child development
center based on her failure to follow the following instructions on child guidance
techniques:
15.3.b. The child guidance policy shall be designed to assist the
child in developing self -control, self -respect, and respect and
consideration for the rights and property of others. Clear behavioral
limits for children shall be established based on positive guidance
(what to do vice what not to do) and redirecting children toward
desired activities.
15.3.e. Restricting the child’s movements or placing the child in a
confined space as a form of punishment is prohibited.
Initial Appeal File (IAF), Tab 8 at 12 -14, 37, Tab 9 at 90 -91, Tab 10 at 30 .2
2 The agency charged the appellant with violating the Office of the Chief of Naval
Operations Instruction 1700.9e, Chapter 15.3, Child Guidance Techniques, sections b
and e. IAF, Tab 8 at 37, Tab 9 at 90 -91. Chapter 15 provides guidance and requires
training on child abuse prevention precautions, including discipline techniques, and
mandates the implementation of a child guidance policy and a touch policy. IAF, Tab 9
at 83 -95.
3
¶3 In support of the charge, the agency reli ed in part on a video recording
showing the appellant interacting w ith a child in her classroom on September 30,
2015. IAF, Tab 8 at 37-38, Tab 13 (video). The agency specified that the video
showed the appellant wrapping her arms and legs around the child, restraining
him on her lap for approximately 10 m inutes, and “pulling him by the arms and
legs” when he repeatedly attempted to escape her grasp. IAF, Tab 8 at 37-38.
The agency also stated that an agency Incident Determination Committee (IDC)
concluded that her case met the criteria for physical abuse of a child. Id. at 38.
¶4 In reply to her proposed removal, the appellant acknowledged that she
should have used different techniques to redirect the child’s attention ; however, it
was unclear from her response whether she believed that her conduct violated the
agency’s Child Guidance and Touch Po licy (Touch Policy).3 Id. at 31-32; IAF,
Tab 9 at 95 . The appellant also argued that there were mitigating factors, she was
a “good candidate for rehabilitation and re -education, ” and she was not charged
with corporal punishment. IAF, Tab 8 at 31 -32. As to the IDC determination,
she stated that the committee met in a closed -door session to consider an
allegation of child abuse made against her, and she received no due process in
that proceeding. Id. at 30. She also stated that the committee did not s peak to
her, she had no opportunity to confront her accusers or view the evidence
presented against her, and the determination was not yet final. Id.
¶5 The deciding official sustained the appellant’s removal, stating that there
was credible evidence that sh e violated the agency’s “no touch” policy by
3 To this end, the appellant made the following statements in her written reply:
(1) “Nothing in the record, or in my memory, indicates that I could be terminated for a
minor violation of the Touch Policy”; (2) “ my behavior was consistent with, not in
violation of the agenc ies Child Guidance and Touch Policy ”; (3) “Termination is an
extreme reaction to a minor (yet real) violation of the Touch Policy by an otherwise
outstanding and trustworthy employee”; (4) “My actions, as far as I can tell, fall
squarely in line with the d efinition of appropriate touch, per the written policy given to
me”; (5) “I do not disagree that on September 30, 2015 I restrained a child, consistent
with our Touch Policy.” IAF, Tab 8 at 30 -32 (grammar and punctuation in original).
4
intentionally “restricting the child’s movements or placing the child in a confined
space as a form of punishment.” Id. at 12 -13, 25 . He considered her 14 years of
Federal service, acceptable performance ratin g, performance, and lack of prior
discipline , but he found no potential for rehabilitation due to the nature of her
offense . Id. at 13, 2 5-27. The deciding official also stated that his decision was
not based on the results of the IDC determination. Id. at 12.
¶6 The appellant filed an appeal with the Board arguing that the agency
violated her right to due process, committed harmful error, and subjected her to
unlawful discrimination based on her race (Filipino Chinese) and color (brown).
IAF, Tab 1 at 7, Tab 25 at 10, Tab 29 at 2. After holding a hearing, the
administrative judge issued an initial decisi on affirming the removal. IAF,
Tab 36, Initial Decision (ID) at 1, 28 . She found that the agency proved the
charge as specified and the appellant failed to prove her claims alleging due
process violations, harmful error, a nd discrimination. ID at 12 -20. The
administrative judge also found nexus and sustained the penalty of removal. ID
at 20, 28.
¶7 The appellant has filed a petition for review wherein s he argues , among
other things, the following: (1) the agency failed to prove its charge; (2) the
administrative judge made erroneous rulings regarding one of her proffered
witnesses ; (2) her removal was precipitated by discrimination on the basis of her
race and color; ( 3) the agency violated her due process rights; and ( 4) the penalty
of removal was unreasonable under the circumstances . Petition for Review (PFR)
File, Tab 1 at 3-33. The agency has responded in opposition to her petition, and
the appell ant has replied thereto . PFR File, Tabs 3-4.
ANALYSIS
We discern no basis to disturb the administrative judge’s conclusion that the
agency proved its charge .
¶8 The appellant argues that the agency failed to prove its charge of failure to
follow instructions. PFR File, Tab 1 at 5 -13. To this end, s he asserts the
5
following: (1) her actions were both appropriate and consistent with agency
instructions and guidance ; (2) the administrative judge failed to consider all of
the evidence in the record ; and (3) the administrative judge mischaracterized
certain evidence, including the video recording of the incident . Id. We find that
these assertions do not provi de a basis to disturb the administrative judge’ s
well-reasoned finding s. ID at 6-12; see Crosby v. U.S. Postal Service ,
74 M.S.P.R . 98, 105 -06 (1997) (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); Broughton v. Department of Health
& Human Services , 33 M.S.P.R. 357 , 359 (1987) (same) ; see also Marques v.
Department of Health & Human Services , 22 M.S.P.R. 129 , 132 (1984 )
(explaining that an administrative judge’s failure to discuss all of the evidence of
record does not mean that t he evidence was not considered), aff’d , 776 F.2d 1062
(Fed. Cir. 1985) (Table). Accordingly , we discern no basis to disturb the
administrative judge’s conclusion that the agency proved its charge by
preponderant evidence.
We discern no basis to disturb th e administrative judge’s evidentiary rulings.
¶9 The appellant contends that the administrative judge abused her discretion
in “limiting and disregarding” the testimony of one of her witnesses, Dr. K. PFR
File, Tab 1 at 24 -28. Specifically , she argues that the administrative judge
abused her discretion by (1) limiting the scope of Dr. K .’s testimony prior to the
hearing, i.e., precluding her from testifying about the appellant’s lack of intent to
abuse a child , and (2) limiting the scope of Dr. K.’s testimony during the hearing .
Id. at 24-28; PFR File, Tab 4 at 13 . The appellant also seemingly argue s that the
administrative judge did not ascribe sufficient weight to Dr. K .’s testimony that
the appellant’s interactions with the child did not violate agency instructions .
PFR File, Tab 1 at 25-28. We find these assertions unavailing.
¶10 An administrative judge has broad discretion to regulate the course of the
hearing and to exclude evidence and witnesses that have not been shown to be
6
relevant, materi al, and nonrepetitious. Thomas v. U.S. Postal Service ,
116 M.S.P.R. 453 , ¶ 4 (2011); 5 C.F.R. § 1201.41 (b)(8), (10). To obtain reversal
of an initial decision on the basis of the exclusion of a witness, the appellant must
show that a relevant witness or evidence, which could have affected the outcome,
was disallow ed. See Thomas , 116 M.S.P.R. 453 , ¶ 4. Regarding the
administrative judge’s prehearing ruling , the re cord indicates that, following the
parties’ prehearing conference, the administrative judge issued an order wherein
she limited the scope of Dr. K.’s testimony o n the basis of relevance. IAF,
Tab 29 at 4-5. Specifically, she indicated that Dr. K. could not testify regarding
whether the appellant intended to abuse the child, reasoning that the agency was
not required to prove intent to abuse .4 Id. at 4. The administrative judge
explained that, if either party objected to her order, they could file a written
objection within 6 days. Id. at 8. The appellant did not object to the
administrative judge’s prehearing rulings concerning Dr. K. ; accordingly , she is
precluded from doing so on petition for review. See Tarpley v. U.S. Postal
Service , 37 M.S.P.R. 579 , 581 (1988) (stating that an appellant’s failure to timely
object to rulings on witnesses precludes the appellant from doing so on petition
for review) . Moreover , we find no basis to disturb the administrative judge’s
prehearing limitation of the scope of Dr. K.’s testimony on the basis of relevance.
See Thomas , 116 M.S.P.R. 453 , ¶ 4 .
¶11 Regarding rulings made during the hearing, the appellant appears to be
challenging the administrative judge ’s statement that she did “not need [Dr. K.] to
testify with respect to whether she perceived the [a]ppellant’s actions to be child
abuse.” PFR File, Tab 1 at 24, 26 ; Hearing Transcript (HT) at 162 (statement of
the administrative judge). The appellant d id not object to this ruling during the
hearing. See Whitehurst v. Tennessee Valley Authority , 43 M.S.P.R. 486, 491
(199 0) (explain ing that an appellant is ob liged to preserve for the Board’ s review
4 She also preclud ed Dr. K. from testifying about whether the agency afforded the
appellant due process and proper procedure. IAF, Tab 29 at 4 -5.
7
objections to the administrative judge’ s conduct of the hearing and cannot wait
until after the adjudication is complete to object for the first t ime to the
administrative judge’ s hearing -related rulings ). In any event , we find no error
with this ruling . As set forth in the initial decision, the question of whether the
agency proved its charge did not require any particular technical expertise;
indeed, even assuming that Dr. K.’s expert opinion reflected a general ly accepted
approach to childcare, the agency was free to make its own instructions regarding
the permissible behavior of its employees . ID at 10-11. The appellant’s
remaining evidentiary contention , i.e., that the administrati ve judge did not
ascribe sufficient weight to Dr. K’s testimony , does not provide a basis to disturb
the initial decision because it constitutes mere disagreement with the
administrative judge’s explained factual findings and legal conclusions therefrom .
See Riggsbee v. Office of Personnel Management , 111 M.S.P.R. 129 , ¶ 11 (2009)
(explaining that an appellant’s mere disagreement with the administrative judge’s
explained factual findings and legal conclusions therefrom does not provide a
basis to disturb the initial decision); see also Crosby , 74 M.S.P.R. at 106. Thus, a
different outcome is not warranted.
We find no basis to disturb the administrative judge’s conclusion that the
appellant failed to prove her claim of discrimination .
¶12 The appellant reasserts her affirmative defense of disparate treatment
discrimination based on her race ( Filipino Chinese ) and color (brown).5 PFR File,
Tab 1 at 30-33, Tab 4 at 14 -15. We find her contentions in this regard
unpersuasive ; indeed, the administrative judge thoroughly considered the record
as a whole and found that the appellant failed to show by preponderant evidence
that discrim ination was a motivating factor in her removal. ID at 17 -19; see
5 Although the appellant was not notified of the correct standards and burdens of proof
applicable to this affirmative defense before the hearing, the initial decision set forth
the applicable standard, thereby providing her with notice and an opportunity to meet
her burden on review. See Sabio v. Department of Veterans Affairs , 124 M.S.P.R. 161 ,
¶ 6 n.2 (2017).
8
Pridgen v. Office of Management & Budget , 2022 MSPB 31 , ¶¶ 20-22 (explaining
that an appellant may prove a claim of discrimination based on race or color
under the motivating factor standard, i.e., by proving that prohibited
discrimination played “any part” in the contested action).
¶13 We find that the appellant’s co nclusory arguments on review merely express
disagreement with the administrative judge’s weighing of the evidence. For
example, the appellant states that she overheard her Caucasian supervisor say
negative things about Filipinos and that another Filipino employee said that her
supervisor mentioned the large number of Filipinos working there and stated that
most are uneducated. PFR File, Tab 1 at 31. She also avers that all of her
accusers were Caucasian, including her supervisor and the proposing and dec iding
officials. Id. The administrative judge observed the testimony of the agency
officials and the appellant on these points , but she found insufficient evidence to
infer a discriminatory motive. ID at 18 -19. We find that the administrative
judge’s d emeanor -based credibility determinations de serve deference from the
Board.6 Purifoy v. Department of Veterans Affairs , 838 F .3d 1367 , 1372 -73 (Fed.
Cir. 2016) (finding that the Board must defer to an administrative judge’s
demeanor -based credibility determinations, “[e]ven if demeanor is not explicitly
discussed”); Haebe v. Department of Justice , 288 F.3d 1288 , 1301 (Fed. Cir.
2002).
¶14 The appellant also reasserts that other employees were treated more
leniently when they engaged in similar misconduc t. PFR File, Tab 1 at 30-33.
She argues that the agency did not discipline one of her Caucasian coworkers who
6 Further, the agency’s investigation into the appellant’s classroom conduct was
initiated by a parent, not an agency employee, complaining that her ba bysitter had
observed the appellant doing something objectionable to a different child. ID at 3. The
appellant’s supervisor and the Director responded to the parent complaint by watching
the video recording of the appellant’s classroom and saw nothing wr ong with the
conduct complained about; however, they observed the conduct underlying this removal
action. Id.
9
worked at the same child care center for the same supervisor and purportedly
engaged in similar conduct with the same child on the same day. Id. at 31 -32.
She also argues that the agency did not remove or discipline other non -Filipinos
for engaging in similar or more serious conduct. Id.
¶15 In her initial decision , the administrative judge concluded that the alleged
comparator employees were not similarly situated because they had different
supervisors, engaged in conduct that was not substantially similar to the
appellant’s misconduct, or were not subject to the same standards as the appellant
when the incidents occurred. ID at 19, 22 -25. For example, the administrative
judge found that the appellant’s Caucasian coworker was not a lead teacher like
the appellant and that she had not restricted the child’s movements in a manner
similar to that of the appellant .7 ID at 19. We discern n o basis to disturb any of
these findings . See Ly v. Department of the Treasury , 118 M.S.P.R. 481 , ¶ 10
(2012) (explaining that, for an employee to be deemed similarly situated for
purposes of an affirmative defense of discrimination based on disparate treatment,
all re levant aspects of the appellant’ s employment situation must be “nearly
identical” to that of the comparator employee ). Accordingly , we agree that the
appellant failed to prove her claim of discrimination.8
7 The administrative judge also considered the appellant’s testimony that the agency did
not discipline two Caucasian teachers for conduct that included threatening to cut a
child’s throat and lifting a child by his arm and sweeping him off his feet and pla cing
him in a seated position. ID at 25. The administrative judge found that the appellant’s
testimony concerning these incidents, which the appellant allegedly witnessed, was not
credible. Id. Although the appellant disputes this finding on review, PF R File, Tab 1
at 22, we discern no basis to disturb it, see Haebe , 288 F. 3d at 1301.
8 Because the appellant failed to show that the agency’s action was motivated by
discrimination , she necessarily failed to prove “but -for” causation . See Pridgen ,
2022 MSPB 31 , ¶ 22 (explaining that to obtain full relief, including status quo ante
relief, an appellant must prove that discriminati on was a but -for cause of the
employment outcome).
10
We agree with the administrative judge’s conclusion that the appellant failed to
prove a due process violation; however, we modify a portion of her analysis of
this claim .
¶16 The appellant contends that the administrative judge erred in finding that
she failed to prove a due process violation. PFR File, Tab 1 at 13 -15.
Specifically, she asserts that the deciding official improperly considered section c
of the Office of the Chief of Naval Operations Instruction (OPNAVINST)
1700.9e, Chapter 15.3, Child Guidance Techniques , because the notice of
proposed removal referenced only sections b and e of the same.9 Id.; IAF, Tab 8
at 37. OPNAVINST Child Guidance Techniques 15.3 .c. prohibits corporal
9 Additionally, the appellant contends that the agency violated her due process rights by
failing to timely provide her with various information, i.e., (1) a DVD video recording
of the incident underlying the charge, (2) documents pertaining to the IDC
determination, and (3) documents pertaining to prior incidents involving the appellant
being AWOL and sleeping in the classroom. PFR File, Tab 1 at 15 -20. For the reasons
set forth in the initial decision, we find the appellant’s assertions regarding the DVD
unavailing. ID at 13-14. Regarding the IDC documents, as discussed in the initial
decision, the appellant’s union representative testified that he had received IDC
documents from the appellant before t he submission of her reply to the notice of
proposed removal. PFR File, Tab 1 at 19-20; ID at 15; HT at 116-17 (testimony of the
appellant’s union representative); see Haebe , 288 F. 3d at 1301. Last, regarding the
documents pertaining to the prior inciden ts involving the appellant, the record supports
the administrative judge’s conclusion that the deciding official did not consider these
incidents in assessing the appropriate penalty; thus, these documents did not constitute
material information. ID at 16 -17; IAF, Tab 8 at 13; HT at 30 (testimony of the
deciding official); see Stone v. Federal Deposit Insurance Corporation , 179 F.3d 1368 ,
1376 -77 (Fed. Cir. 1999) (explaining that a deciding official violates an employee’s due
process rights when he relies upon new and material ex parte information as a basis for
his decisions on the merits of a proposed charge or the penalty to b e imposed).
The appellant also briefly argues that the deciding official partook in improper ex parte
communications with a “Mr. Perez,” asserting that she was unaware of the involvement
of this individual until the hearing. PFR File, Tab 1 at 30, Tab 4 at 12 -14. A review of
the hearing transcript reveals that the name “Mr. Perez” came up only once during the
hearing, i.e., when the deciding official stated during cross examination that a
“Mr. Perez” had also reviewed the record and agreed that removal was appropriate. HT
at 59 (testimony of the deciding official). The appellant’s counsel did not inquire any
further regarding the identity or involvement of this individual and the record provides
no clarity regarding the same. Thus, we find the appella nt’s vague assertion regarding
this purported ex parte communication unavailing.
11
punishment, which is defined as spanking, hitting, punching, slapping, pinching,
shaking, or any other form of physical punishment.10 IAF, Tab 9 at 90 -91.
¶17 Pursuant to the U.S. Court of Appeals for the Federal Circuit’s decisions in
Ward v. U.S. Postal Service , 634 F.3d 1274 , 1279 -80 (Fed. Cir. 2011), and Stone
v. 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. I n determining
whether a due process violation has occurred, there is no basis for distinguishing
between ex parte information provided to the deciding official and information
personally known to him , if the information was considered in reaching the
decision and not previously disclosed to the appellant . Lopes v. Department of
the Navy , 116 M.S.P.R. 470, ¶ 10 (2011) . 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 and
material information to the deciding official are constitutionally infirm. See, e.g. ,
Wilson v. Department of Homeland Security , 120 M.S.P.R. 686 , ¶ 8 (2014), aff’d ,
595 F. App’x 995 (Fed. Cir. 2015). In Stone , the Federal Circuit identified the
following factors to be used to determine if ex parte information is new and
material: (1) whether the ex parte information introduced cumulative, as opposed
to new, information; (2) whether the employee knew of the information and had
an opportunity to respond; and (3) whether the communication was of the type
likely to result in undue pres sure on the deciding official to rule in a particular
manner. Stone , 179 F.3d at 1377. Ultimately, the Board must determine
“whether the ex parte communication is so substantial and so likely to cause
prejudice that no employee can fairly be required to be subjected to a deprivation
of property under such circumstances.” Id. Due process, however, is not a
10 Section 15.3.c also states , in pertinent part , that the use of corporal punishment is
grounds for immediate dismissal. IAF, Tab 9 at 90.
12
technical conception with a fixed co ntent unrelated to time, place, and
circumstances; rather, it is a flexible concept that calls for such procedural
protections as the particular situation demands . See, e.g. , Gajdos v. Department
of the Army , 121 M.S.P.R. 361 , ¶ 18 (2014).
¶18 The administrative judge considered the appellant’s argument that the
deciding official had improperly considered section c even though she ha d not
been charged with a violation of that specific provision. ID at 15 . The
administrative judge found the argument unavailing, reasoning that, although the
deciding official may have personally believed that the appellant’s conduct
amounted to corpora l punishment under section c, he “did not consider [whether
the appellant had engaged in corporal punishment] in rendering his [remo val]
decision.” Id. We disagree with this finding. Here, t he hearing transcript
indicates that the deciding official testified that he believed that the appellant had
violated section c because, based on his review of the video, he thought that the
appellant had shaken the child by “grabb[ing] him and pull[ing] him back into
her.” HT at 40 (testimony of the deciding off icial). Later in his testimony, the
decid ing official acknowledged that he had , in fact, taken his finding regarding
corporal punishment into consideration in deciding to remove the appellant . HT
at 47 (testim ony of the deciding official). Accordingly, we vacate the
administrative judge’s finding that the deciding official did not consider section c
in deciding to remove the appellant from her position ; nevertheless, for the
following reasons, we agree with her conclusion that the appellant failed to sho w
that the agency violated her due process rights.
¶19 First , the appellant was generally aware of the policies that she was alleged
to have violated; indeed, the agency’s notice of proposed removal generally cited
“OPNAVINST 1700.9 E, Chapter 15” as a referenc e. IAF, Tab 8 at 37.
Additionally, the proposing official’s Douglas factors worksheet, which the
appellant referenced in her written reply, alleged that the appellant had
“[v]iolated . . . OPNAV 1700.9e; Chapter 15 Section 3 — Child Abuse and
13
Neglect.” Id. at 31; IAF, Tab 9 at 7. In addition to referencing the OPNAVINST ,
the notice of proposed removal also specifically referenced the agency’s Touch
Policy. IAF, Tab 8 at 37. The proposing official’s Douglas factors worksheet
also referenced this policy.11 IAF, Tab 9 at 9. This policy, like section c of
chapter 15 in the OPNAVINST , prohibits corporal punishment. Id. at 95.
Specifically, i t states as follows: “A child will not be punished by . . . shaking or
other corporal punishment.” Id. It also sets forth “the definition of what is
considered appropriate touch and inapp ropriate touch,” with examples provided.
Id. The definition of i nappropriate touching includes “corporal punishment.” Id.
¶20 Second, the notice of proposed removal identified the specific conduct that
the agency determined to be in violation of the aforementioned policies; indeed, it
stated as follows: “[Y]ou were witnessed on video . . . physically restraining a
child for approximately 10 minutes. ” IAF, Tab 8 at 37. It further explained that
the appellant was seen “ pulling [the child] by the arms and legs ” and “ wrapping
[her] own arms and legs around hi m on [her] lap to restrain him.” Id. at 37 -38.
¶21 Third, the appellant provided a specific response to the agency’s allegations
concerning her conduct ; indeed, in her written reply, she described her conduct as
follows : “He then wiggled off, crawling away from me. I leaned forward, pulled
him back towards me, and held him close to m y body – I gave him a big hug.” Id.
at 29. Notes from the appellant’s oral reply reflect that she stated, “I was trying
to hold him, but he was resisting . . . . He’d get up; I’d hold him again . . . . He
kept wiggling . . . . I was not punishing the child at all.” Id. at 33-34. She also
indicated her understanding that she was “alleged to have temporaril y breached
the ‘touch policy.’” Id. at 30. She specifically addressed this policy and
seemingly asserted that her actions constituted appropriate touch pursuant to the
11 Specifically, the worksheet stated as follows: “Each employee signs a ‘Touch Policy’
which specifically states both appropriate and inappropriate actions with children.”
IAF, Tab 9 at 9.
14
same .12 Id. at 30 -32; see IAF, Tab 9 at 95 ( indicating that appropriate touch
includes hugs and lap sitting). She acknowledged in her written reply that
“[i]nappropriate touch includes such behavior as . . . corporal punishment.” IAF,
Tab 8 at 32. She also argued in her oral reply that , under the Touch Policy, it is
appropriate to “hold children firmly ,” and she suggested that her conduct did not
constitute inappropriate touch. Id. at 34; see also HT at 266 ( testimony of the
appellant acknowledging that she stated in her reply that she did not violate the
Touch Policy).
¶22 In light of the foregoing, to the extent that the agency’s notice of proposed
removal failed to explicitly cite to section c, we find that the oversight was not so
subst antial and so likely to cause prejudice as to deprive the appellant of due
process. See Stone , 179 F.3d at 1376-77 (explaining that “not every ex parte
communication is a procedural defect so substantial and so likely to cause
prejudice that it undermines the due process guarantee”). Indeed, as discussed
above, the record showed that the appellant was notified of the conduct that the
agency found objectionable and of the policies that she was alleged to have
violated . See Harding v. U.S. Naval Academy , 567 F. App’x 920, 924 (Fed. Cir.
2014) (finding that the agency did not violate the appellant’s due process rights
when the proposal notice charged her with being under the influence of illegal
drugs but the deciding official found that she had engaged in i llegal drug use
because the appellant “could not reasonably have [been] misled” about the reason
for the proposal as the narrative portion of the proposal notice referenced illegal
drug use);13 see also Wilson , 120 M.S.P.R. 686 , ¶¶ 10-12 (finding no due process
violation when the appellant, in responding to the proposed action, made a
12 However, as discussed above, the appellant also seemingly ackn owledged a “minor”
violation of the policy. IAF, Tab 8 at 31.
13 The Board has found that it may rely on unpublished dec isions of the Federal Circuit
when , as here, it finds the court’s reasoning persuasive. E.g., Vores v. Department of
the Army , 109 M.S.P.R. 191 , ¶ 21 (2008), aff’d , 324 F. App’x 883 (Fed. Cir. 2009).
15
“specifi c and significant” response to an aggravating factor even though it was
not cited in the proposal notice) . Thus, a lthough we agree with the administrative
judge’s conclusion that the agency did not violate the appellant’s due process
rights, we modify the basis for this finding .
We agree that the penalty of removal was reasonable under the circumstances .
¶23 The appellant raises a series of arguments regarding the penalty of removal.
PFR File, Tab 1 at 20-24. To this end, she avers the following: (1) the agency
failed to engage in progressive discipline; (2) the agency failed to consider her
rehabilitative potential; and (3) she was charged with failure to follow
instructions, not child abuse, and numerous other employees who have been
similarly charged ha ve not been removed from their positions. Id.
¶24 When, as here, the agency’s charge is sust ained, the Board will review an
agency imposed penalty only to determine if the agency considered all of the
relevant factors and exercised discretion within tolerable limits of reasonableness.
Ellis v. Department of Defense , 114 M.S.P.R. 407 , ¶ 11 (2010) ; Douglas v.
Veterans Administration , 5 M.S.P .R. 280 , 305 -06 (1981). In making this
determination, the Board must give due weight to the agency’s primary discretion
in maintaining employee discipline and efficiency, recognizing that the Board’s
function is not to displace management’s responsibility , but to ensure that
managerial judgment has been properly exercised. Ellis , 114 M.S.P.R. 407 , ¶ 11;
Douglas , 5 M.S.P.R. at 306. The Board will modify an agency -imposed penalty
only when it finds that the agency failed to weigh the relevant factors or the
penalty clearly exceeds the bounds of reasonableness. Ellis , 114 M.S.P.R. 407 ,
¶ 11.
¶25 Here, the administrative judge applied the proper legal standard and
concluded that the agency’s selected penalty of removal was not unwarranted
under the circumstances and was w ithin the tolerable bounds of reasonableness.
ID at 20-28; see Ellis , 114 M.S.P.R. 407 , ¶ 11. In so doing , she reasoned that the
deciding official had considered the relevant Douglas factors . ID at 20-21; see
16
Haebe , 288 F.3d at 1301; see also Douglas , 5 M.S.P.R. at 305-06. She also
reasoned that the appellant’s conduct was “serious” in nature and “made more
serious by the fact that [she] is a lead teacher with responsibility for overseeing
and mentoring other classroom teachers .” ID at 21 ; IAF, Tab 10 at 10 . She
thoroughly considered the appellant’s claims regarding progressive discipline ,
rehabilitative potential, and disparate pe nalties,14 but she found each claim
unavailing. ID at 21 -28. For example, r egarding rehabilitative potential, the
administrative judge reasoned that the appellant had testified at the hearing that
she believed that her interaction with the child was prope r and that, if faced with
the same circumstances again, she would engage in the same conduct. ID
at 27-28; HT at 283 (testimony of the appellant). The administrative judge also
recounted the deciding official’s testimony that, given the nature of the
appellant’s offense, he had concerns about placing her back in a classroom
setting. ID at 26 -27. Accordingly , we discern no basis to disturb the
administrative judge’s conclusion that the penalty of removal was reasonable
under the circumstances. See Green v. Department of the Navy , 61 M.S. P.R. 626 ,
636 (explaining that the Board has found that failure to follow instructions may
be sufficient caus e for removal), aff’d , 36 F.3d 1116 (Fed. Cir. 1994) (Table) .
14 After the initial decision in this case was issued, the Board ov erruled some of its
prior precedent governing the analysis of claims of disparate penalties when weighing
the reasonableness of a penalty and clarified that it should not weigh the relative
seriousness of various offenses to determine if the agency treated employees who
committed different acts of misconduct differently; rather, 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 ,
¶¶ 14, 17 . Applying this standard here, we conclude that the appellant’s arguments both
before the administrative judge and on review do not show that the agency knowingly
and unjustifiably treated any employees who engaged in the same or similar offenses
differently.
17
We have considered the appellant’s remaining arguments ; however, we find them
unavailing .
¶26 We have considered the appellant’s remaining assertions ; however, we find
that none of these assertions provide a basis to disturb the initial decision . For
example, t he appellant reasserts that the agency committed harmful procedural
error. PFR File, Tab 1 at 28 -30. We find, however, that the appellant’s
arguments do not warrant disturbing the administra tive judge’s conclusions
concerning this claim . ID at 16-17.
¶27 Accordingly, we affirm the initial decision as modified.
NOTICE OF APPEAL RIG HTS15
The initial decision, as supplemented by this Final Order, constitutes the
Board’s final decision in this matter. 5 C.F.R. § 1201.113 . You may obtain
review of this final decision. 5 U.S.C. § 7703 (a)(1). By statute, the nature of
your claims determines the time limit for seeking such review and the appropriate
forum with which to file. 5 U.S.C. § 7703 (b). Although we offer the following
summary of available appeal rights, the Merit Systems Protection Board does not
provide legal advice on which option is most appropriate for your situation and
the rights described bel ow do not represent a statement of how courts will rule
regarding which cases fall within their jurisdiction. If you wish to seek review of
this final decision, you should immediately review the law applicable to your
claims and carefully follow all filin g time limits and requirements. Failure to file
within the applicable time limit may result in the dismissal of your case by your
chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to yo ur particular case. If you have questions
15 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of revie w rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.
18
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circ uit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Peti tioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attor ney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that su ch action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
19
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 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:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
20
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petit ion for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.16 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decisi on. 5 U.S.C.
§ 7703 (b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following addres s:
16 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower re prisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195,
132 Stat. 1510.
21
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of App eals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services prov ided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD:
Washington, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board | SCOVELL_DARLYN_C_SF_0752_16_0355_I_1_FINAL_ORDER_1998174.pdf | 2023-01-31 | null | SF-0752 | NP |
3,676 | https://www.mspb.gov/decisions/nonprecedential/COUGHLIN_MICHAEL_PH_3443_17_0002_I_1_FINAL_ORDER_1998183.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
MICHAEL COUGHLIN,
Appellant,
v.
DEPARTMENT OF HOUSIN G AND
URBAN DEVELOPMENT,
Agency.
DOCKET NUMBER
PH-3443 -17-0002 -I-1
DATE: January 31, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL1
Michael Coughlin , Groveland, Massachusetts, pro se.
Eric D. Batcho , Esquire, Boston, Massachusetts, 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 his nonselection and employment practices appeal for lack of
jurisdiction. Generally, we grant petitions such as this one only in the following
circum stances: the initial decision contains erroneous findings of material fact;
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
require d to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c).
2
the initial decision is based on an erroneous interpretation of statute or regulation
or the erroneous application of the law to the facts of the case; the administrative
judge’s rulings during either the course of the appeal or the initial decision
were not consistent with required procedures or involved an abuse of discretion,
and the resulting error affected the outcome of the case; or new and material
evidence or legal argument is available that, despite the petitioner’s due
diligence, was not available when the record closed. Title 5 of the Code of
Federal Regulations, section 1201.115 ( 5 C.F.R. § 1201.115 ). After fully
considering the filings in this appeal, we conclude that the petitioner has not
established any basis under section 1201.115 for granting the petition for review.
Therefore, we DENY the petition for review and AFFIRM the initial decision,
which is now the Board’s final decision. 5 C.F.R. § 1201.113 (b).
¶2 At all times relevant to the present appe al, the appellant was a
preference -eligible veteran employed by the agency as a General Engineer.
Initial Appeal File (IAF), Tab 1 at 1. He applied for a Program Analyst position
and was referred to the selecting official on the certificate of competitiv e-eligible
candidates, but the agency did not grant him an interview. IAF, Tab 7 at 17-29.
The appellant filed a grievance, alleging discrimination based on gender in the
selection process , which the agency d enied at the Step 1 and Step 2 levels. IAF,
Tab 1 at 7-12. He subsequently filed an appeal with the Board. Id. at 1 -5.
Without holding the requested hearing, the administrative judge issued an initial
decision dismissing the appeal for lack of jurisdiction, finding that the appellant
had not raise d nonfrivolous2 allegations that the appeal fell within one of the
exceptions to the general rule that nonselection decisions are not appealable to the
Board. IAF, Tab 17, Initial Decision (ID) at 1, 4, 10.
¶3 On petition for review, the appellant argues f or the first time that “the
agency had a “pattern of selecting female candidates over [him] ” and sets forth
2 A nonfrivolous allegation is an assertion that, if proven, could establish the matter at
issue. 5 C.F.R. § 1201.4 (s).
3
information regarding six positions for which he applied but was not selected
between April 2015 and November 2016. Petition for Review (PFR) File, Tab 1
at 6-8. He asserts that this “new evidence” demonstrates that the agency had a
“discriminatory hiring practice based on gender ,” and he provides copies of
various applications he submitted through USA Jobs during this same time
period. Id. at 8 , 11-21. The appellant also raises two allegations of retaliation for
the first time. Id. at 9. He alleges that , “a few hours” after the Step 2 grievance
decision, his work load was drastically reduced and that his nonselection for a
separate Management Ana lyst position was retaliation by the selecting official
who served as the deciding official in the Step 2 nonselection grievance . Id. The
appellant submits documents identifying the division of work among st individuals
in his office , as well as email correspondence with an agency official in which he
expressed his frustration at not being chosen to take on certain projects . Id.
at 22-47. The appellant states that he “did not produce this material evidence and
legal argument in previous filings” becau se he believed that “those hiring
decisions were ir relevant to the challenged hire, ” but that the initial decision
made it “apparent that the only way to challenge an individualized hiring decision
as an employment practice was to make a new argument on se lection history and
work loads before and after the challenged position. ” Id. at 10.
¶4 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 p reviou sly available despite the party’ s due diligence. Banks v.
Department of the Air Force , 4 M.S.P .R. 268 , 271 (1980); 5 C.F.R.
§ 1201.115 (d). To constitute new and material evidence, the information
contained in the documents, not just the documents themselves, must have been
unavailable despite due di ligence when the record closed . Grassell v. Department
of Transportation , 40 M.S.P.R. 554 , 564 (1989). The appellant has not made
such a showing regarding his allegations of a discriminatory pattern of hiring or
retaliation he raises for the first time o n review. The evidence that the appellant
4
submits for the first time on review is not new , as all of the documents and
underlying infor mation contained therein predate the close of the record below ,
including evidence concerning his USA Jobs application history and alleged
changes in workload after the denial of the Step 2 grievance. See Avansino v.
U.S. Postal Service , 3 M.S.P.R. 211 , 214 (1980) (stating that, under 5 C.F.R.
§ 1201.115 , the Board ordinarily 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).
¶5 In any event, the appellant’s new arguments are not a source of Board
jurisdiction. As stated in the administrative judge’s acknowledgment order and
initial decision, nonselections generally are not appealable to the Board. IAF,
Tab 2 at 2 -4; ID at 4. The initial decision correctly explained that the Board
lacks jur isdiction over discrimination claims, either concerning an individual
event or a pattern , as alleged by the appellant on review, absent an otherwise
appealable action . ID at 8-9; see 5 U.S.C. § 7702 (a)(1); Pridgen v. Office of
Management and Budget , 117 M.S.P.R. 665 , ¶ 7 (2012). Prohibited personnel
practices under 5 U.S.C. § 2302 (b) are not an independent source of Board
jurisdiction.3 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). Further, absent an otherwise appealable
action , the Board lac ks jurisdiction over the appellant’s repeated claim that the
agency committed harmful procedural error by failing to follow the governing
collective bargaining agreement or agency hiring policy. ID at 9; PFR File, T ab 1
at 8-9; see Penna v. U.S. Postal Se rvice , 118 M.S.P.R. 355 , ¶ 13 (2012 ).
¶6 To the extent that the appellant argues on review that his allegation of a
pattern of discriminatory hiring is the “only way to challenge an individualized
hiring decision as an employment practice,” PFR File, Tab 1 at 10, the appellant
3 Despite notice and opportunity, the appellant has not alleged any facts that might
implicate jurisdiction over this matter as an individual right of action appeal. IAF,
Tab 2 at 4 -5; see 5 U.S.C. §§ 1214 (a)(3), 1221.
5
mischaracterizes th e administrative judge’s findings in the initial decision.
Although a nonselection is not an appealable adverse action pursuant to 5 U.S.C.
chapter 75, the Board may address a nonselection in the context of a claim that an
employment practice that was app lied to the appellant by the Office of Personnel
Management (OPM) violated a basic requ irement set forth at 5 C.F.R. § 300.103 .
Prewitt v. Merit Systems Protection Board , 133 F.3d 885 , 887 (Fed. Cir. 1998);
5 C.F.R. § 300.104 (a). The administrative judge proper ly addressed the
appellant’s employment practice claim, finding that the appellant’s allegations
concerned an “individualized hiring decision” and not an employment practice
that OPM was involved in administering. ID at 5 -8. On review, the appellant
does not dispute these findings, and we discern no error in the administrative
judge’s analysis.
¶7 Accordingly, we deny the petition for review and affirm the initial decision.
NOTICE OF APPEAL RIG HTS4
You may obtain review of this final decision. 5 U.S.C. § 7703 (a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703 (b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for you r situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to yo ur claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
4 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matt er.
6
Please read carefully each of the three main possible choices of revi ew
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a ge neral rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this deci sion. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relev ance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals f or the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided b y any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
7
were affected by an action t hat is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an a ppropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. ____ , 137 S. Ct. 1975 (2017). If you have a
representative in this case, and your representative receives thi s decision before
you do, then you must file with the district court no later than 30 calendar days
after your representative receives this decision. If the action involves a claim of
discrimination based on race, color, religion, sex, national origin, or a disabling
condition, you may be entitled to representation by a court -appointed lawyer and
to waiver of any requirement of prepayment of fees, costs, or other security. See
42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. distric t courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file an y such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case,
and your rep resentative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EE OC is:
8
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2 302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.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).
5 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7 , 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195,
132 Stat. 1510.
9
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Cir cuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants b efore the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective website s, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD:
Washington, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board | COUGHLIN_MICHAEL_PH_3443_17_0002_I_1_FINAL_ORDER_1998183.pdf | 2023-01-31 | null | PH-3443 | NP |
3,677 | https://www.mspb.gov/decisions/nonprecedential/HAMEL_EDWARD_DE_1221_16_0046_W_1_REMAND_ORDER_1998195.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
EDWARD HAMEL,
Appellant,
v.
DEPARTMENT OF HOMELA ND
SECURITY,
Agency.
DOCKET NUMBER
DE-1221 -16-0046 -W-1
DATE: January 31, 2023
THIS ORDER IS NONPRECEDENTIAL1
Jeffrey H. Jacobson , Esquire, Tucson, Arizona, for the appellant.
John B. Barkley , Esquire, Phoenix, Arizona, for the agency.
Jaime Diaz , El Paso , Texas , for the agency.
BEFORE
Cathy A. Harris , Vice Chairman
Raymond A. Limo n, Member
Tristan L. Leavitt , Member
Member Leavitt recused himself and
did not participate in the adjudication of this appeal.
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
require d to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c).
2
REMAND ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
dismissed his individual right of action (IRA) appeal for lack of jurisdiction . For
the reasons discussed below, we GRANT the appellant’s petition for review and
REMAND the case to the Board’s field office for further adjudication in
accor dance with this Remand Order.
DISCUSSION OF ARGUM ENTS ON REVIEW
¶2 The instant decision involves the appellant’s IRA appeal. Initial Appeal
File (IAF), Tab 1. In it, he alleged that he made protected disclosures and
engaged in protected activit ies concerning Operation Fast & Furiou s—a joint
investigation between his agency and the Department of Justice’s (DOJ) Bureau
of Alcohol, Tobacco, and Firearms. IAF, Tab 13 at 14 -16. He further alleged
that these disclosures and protected activity were a contributing factor in his 2013
placement on administrative d uties as well as his 2013 and 2014 performance
appraisals. Id. at 16 -19. The appellant filed a separate adverse action appeal of
his September 26, 2014 removal. Hamel v. Department of Homeland Security ,
MSPB Docket No. DE -0752 -15-0039 -I-1, Initial Appea l File, Tab 1 at 4; Hamel
v. Department of Homeland Security , MSPB Docket No. DE -0752 -15-0039 -I-2,
Appeal File (0039 AF -2), Tab 47, Initial Decision (0039 ID) .2
¶3 Without holding the requested hearing, the administrative judge issued an
initial decision that dismissed the IRA appeal for lack of jurisdiction. IAF,
Tab 19, Initial Decision (ID). She found that the appellant failed to prove that he
exhausted his reprisal claim before the Office of Special Counsel (OSC). ID
at 3-5. The appellant has filed a p etition for review. Petition for Review (PFR)
2 We have separately issued a decision denying the appellant’s petition for review of the
initial decision that affirmed his removal. Hamel v. Department of Homeland Security ,
MSPB Docket No. DE -0752-15-0039 -I-2, Final Order ( Jan. 26, 2023 ).
3
File, Tab 1. The agency has filed a response and the appellant replied. PFR File,
Tabs 5 -6.
¶4 On review, the appellant argues that the administrative judge erred in
finding that he failed to prove exhaustion w ith OSC and, therefore, dismissing his
IRA appeal for lack of jurisdiction. PFR File, Tab 1 at 6 -17. As further detailed
below, we agree.
The appellant proved that he exhausted his claims with OSC.
¶5 The Board has jurisdiction over an IRA appeal if an appe llant has exhausted
his administrative remedies before OSC and makes nonfrivolous allegations that:
(1) he made a disclosure described under 5 U.S.C. § 2302 (b)(8), o r engaged in
protected activity described under 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D) ;
and (2) the disclosure or activity was a contributing factor in the agency’s
decision to take or fail to take a personnel action as defined by 5 U.S.C.
§ 2302 (a). 5 U.S.C. § § 1214 (a)(3) , 1221(a), (e) ; Yunus v. Department of Veterans
Affair s, 242 F.3d 1367 , 1371 (Fed. Cir. 2001). An appellant must prove
exhaustion with OSC, not merely present nonfrivolous allegations of exhaustion .
Mason v. Department of Homeland Security , 116 M.S.P.R. 135 , ¶ 9 (2011).
¶6 The Board, in Chambers v. Department of Homeland Security , 2022 MSPB
8, ¶¶ 10-11, clarified the substantive requirements of exhaustion. The
requirements are met when an appellant has provided OSC with a suf ficient basis
to pursue an investigation. The Board’s jurisdiction is limited to those issues that
previously have been raised with OSC. However, appellants may give a more
detailed account of their whistleblowing activities before the Board than they di d
to OSC. Appellants may demonstrate exhaustion through their initial OSC
complaint, evidence that they amended the original complaint, including but not
limited to OSC’s determination letter and other letters from OSC referencing any
amended allegations, and their written responses to OSC referencing the amended
allegations. Appellants also may establish exhaustion through other sufficiently
4
reliable evidence, such as an affidavit or a declaration attesting that they raised
with OSC the substance of the facts in the Board appeal. Id.
¶7 Here, the appellant’s OSC complaint first alleged that he was assigned to
Operation Fast & Furious in October 2009, he believed that the associated case
methodologies were flawed, and he brought those concerns to the attention of
senior management within the agency’s Homeland Security Investigations (HSI).
IAF, Tab 13 at 29. He described this as raising “specific concerns about the
danger of the operation to the general public.” Id. at 34.
¶8 Second, the appellant alleged that a Border Patrol Agent was murdered in
December 2010, and an investigation ensued. Id. at 29 -30. According to the
appellant, the agency sent a management team from its headquarters to conduct
interviews, in early 2012, about how HSI was involved in the operation. Id.
at 30. He further alleged that, after each day of interviews, the HSI Assistant
Special Agent in Charge (ASAC) grilled the appellant about his interview and
reported back to the HSI Special Agent in Charge (SAC). Id.
¶9 Third, the appellant alleged that the office of Senator Charles Grassley also
interviewed him about Operation Fast & Furious. Id. According to the appellant,
the HSI SAC insisted on and did sit in on this interview. Id. In his pleadings, the
appellant has alleged that the interview occurred in 2012. Id. at 9.
¶10 Fourth, the appellant alleged that he participated in interviews with the DOJ
Office of Inspector General ( OIG ) in 2011 and the Department of Homeland
Security ( DHS ) OIG in 2012, both regarding Operation Fast & Furious. Id. at 31.
He further alleged that DHS OIG separately questioned him about the truthfulness
of a statement made by the HSI SAC concerning the extent to which HS I was
involved in the operation. Id.
¶11 The appellant’s OSC complaint contains numerous other allegations
suggesting that, even if the activities described above were not protected, he may
have been perceived a s a whistleblower or as having cooperated with an OIG .
See Corthell v. Department of Homeland Security , 123 M.S.P.R. 417 , ¶¶ 9 -12
5
(2016) (recognizing that an appellant may seek corrective action in an IRA appeal
based on a claim of reprisal for perceived 5 U.S.C. § 2302 (b)(9)(C) activity);
King v. Department of the Army , 116 M.S.P.R. 689, ¶ 6 (2011) (recognizing that
an appellant may seek corrective action in an IRA appeal based on a claim of
repris al for perceived 5 U.S.C. § 2302 (b)(8) disclosures ). For example, the
appellant alleged that the HSI SAC repeatedly insinuated that the appellant was
the source for a book about Operation Fast & F urious. IAF, Tab 13 at 32. He
further alleged that, after the DHS OIG issued its final report on the operation,
the HSI SAC specifically told the appellant that he had fallen out of favor
because of his comments to the DHS OIG. Id.
¶12 According to the app ellant, the HSI SAC placed him on administrative
duties in June 2013. Id. He further alleged that the HSI ASAC told him that this
change in duties was “about Fast & Furious.” Id. at 31. In addition, the appellant
asserted that the HSI SAC made himself the approving official for purposes of
performance appraisals around the same time, and the appellant’s subsequent
performance ratings for 2013 and 2014 were tainted. Id. at 32, 34 -35.
¶13 OSC closed the appellant’s complaint in October 2015, just a month a fter it
was filed. Id. at 23 -41. In doing so, OSC described his allegations as follows:
You alleged that you suffered reprisals because of your disclosures
to the [OIG ] of both the Department of Justice and the [DHS ] and to
various officials employed by DHS, including within its headquarters
office. More specifically, your disclosures concerned alleged
wrongdoing related to the Fast & Furious operation, including your
disclosures that the operation was excessively dangerous to agents
and the public, that DHS officials pursued the operation,
notwithstanding your disclosures, and that DHS officials attempted
to minimize DHS’s involvement in the operation. The reprisals you
cited were: you were placed on administrative duties, stripped of
your law enforceme nt authority and given lowered performance
ratings in 2013 and 2014.
Id. at 40. Although OSC closed the appellant’s complaint, it did so without
determining whether it had any merit. Id. at 38. Citing limited resources and a
6
large caseload, OSC indicate d that it would not devote resources to the matter
because the allegations were intertwined with the appellant ’s removal from
service, which he had elected to appeal before the Board.3 Id.
¶14 Based on the allegations described above, we find that the appellant met his
burden of proving the exhaustion requirement. He provided OSC with a
sufficient basis to investigate the following disclosures and activities : his
disclosures to senior manageme nt regarding case methodologies employed in
Operation Fast & Furious, made at the end of 2009; his disclosures to agency
management regarding HSI’s role in the operation ; his responses during an
interview with Senator Grassley’s office regarding the operat ion in 2012; his
2011 and 2012 interviews with the DOJ and DHS OIG ; and HSI managers’
perception that he made protected disclosures or engaged in protected activity
regarding Operation Fast & Furious . He also exhausted before OSC the personnel
actions of his June 2013 change in duties, 2013 performance appraisal, and 2014
performance appraisal. Id. at 26.
The appellant met his remaining jurisdictional burden.
¶15 As previously explained, if an appellant proves that he has exhausted his
administrative remedies with OSC, his remaining jurisdictional burden is to
nonfrivolously allege that: (1) he made a protected disclosure o r engaged in
protected activity; and (2) the disclosure or activity was a contributing factor in
3 The appellant filed his Board appeal the same month that he received OSC’s letter.
IAF, Tab 1. Although the appellant did not wait 120 days after filing his OSC
complaint before filing with the Board , his app eal was ripe because OSC had notified
him that it was closing his complaint without further action . IAF, Tab 13 at 38. See
5 U.S.C. § 1214 (a)(3)(B) (explaining that an employee may file a Board appeal
120 days after seeking corrective action from OSC if OSC has not indicated whether it
will investigate his complaint) ; see Ward v. Merit Systems Protection Board , 981 F.2d
521, 526 (Fed. Cir. 1992 ) (observing that the purpose of the exhaustion requirement is
to provide OSC with an opportunity to take corrective action without Board
involvement ). In any event, because 120 days have passed since the appellant filed his
OSC complaint , his claims are now ripe. Jundt v. Department of Veterans Affairs ,
113 M.S.P.R. 688 , ¶ 7 (2010).
7
the agency’s decision to take or fail to take a personnel action as defined by
5 U.S.C. § 2302 (a). Supra ¶ 5. We find that the appellant has done so.
¶16 At a minimum, in the instant IRA appeal, the appellant nonfrivolously
alleged that he cooperated with an OIG investigation, the HSI SAC knew of that
activity, and the HSI SAC placed him on administrative duties soon thereafter.
IAF, Tab 13 at 14 -19; see C arey v. Department of Veterans Affairs , 93 M.S.P.R.
676, ¶¶ 10 -11 (2003) (recognizing that an appellant may demonstrate that his
disclosure or activity was a contributing factor in a personnel action through the
knowledge/timing test). Therefore, the appellant is entitl ed to a hearing on the
merits. Horton v. Department of Veterans Affairs , 106 M.S.P.R. 234, ¶ 14 (2007)
(recognizing that, in cases involving multiple alleged protected disclosures and
multiple alleged personnel actions, if the appellant makes a no nfrivolous
allegation that at least one alleged personnel action was taken in retaliation for at
least one alleged protected disclosure, he establishes the Board’s jurisdiction over
his IRA appeal).
Collateral estoppel applies to the question of whether t he appellant engaged in
protected activity.
¶17 In the appellant’s separate removal appeal, the administrative judge found
that the appellant made disclosures about the danger and legality of Operation
Fast & Furious that were protected by 5 U.S.C. § 2302 (b)(8). 0039 ID . She also
found that the appellant made disclosures to , and cooperated with , the DOJ and
DHS OIG, which was activity protected by section 2302(b)(9)(C).4 Id. at 37 -38.
We find those conclusions binding for purposes of the instant IRA appeal.
¶18 Collateral estoppel, or “issue preclusion,” is appropriate when: (1) an issue
is identical to that involved in the prior action; (2) the issue was actually litigated
4 In addition to finding that the appellant engaged in protected activity, she also found
that the appellant proved that it was a contributing factor in his removal. 0039 ID
at 38-41. She went on to find that the agency met its burden of proving that it would
have taken the removal action notwithstanding that protected activity. Id. at 41 -44.
8
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 who m issue
preclusion is sought had a full and fair opportunity to litigate the issue in the
prior action, either as a party or as one who se interests were otherwise fully
represented in that action. 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) . In this IRA appeal, the appellant has
raised the same alleged disclosures and activities as those raised in his removal
appeal, and the question of whether those activities were protected was actually
litigated in the removal appeal. Compare IAF, Tab 13 at 14 -16, with 0039 ID
at 36-38. The administrative ju dge’s determination on that matter was necessary
to the judgment in the removal appeal, and the agency had a full and fair
opportunity to litigate the issue. Further, the Board’s decision on the appellant’s
removal appeal is now final. 5 C.F.R. § 1201.113 (b) (providing that the initial
decision becomes final when the Board issues its decision denying a petition for
review ). Therefore, in the instant IRA appeal, the agency is collateral ly estopped
from relitigating whether the appellant’s disclosures and activities were protected.
See Jenkins v. Environmental Protection Agency , 118 M.S.P.R. 161 , ¶¶ 21 -22
(2012) (finding that an appellant was collaterally estopped from relitigating
whether her disclosure was protected for purposes of an adverse action appeal
because that question was previously answered in her IRA appeal). However, the
appellant’s status as some one perceived to have made protected disclosures or
engaged in protected activity was not adjudicated. Therefore, the appellant must
meet his burden of proof on this issue on remand.
9
ORDER
¶19 For the reasons discussed above, we remand this case to the field office for
further adjudication in accordance with this Remand Order.
FOR THE BOARD:
Washington, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board | HAMEL_EDWARD_DE_1221_16_0046_W_1_REMAND_ORDER_1998195.pdf | 2023-01-31 | null | DE-1221 | NP |
3,678 | https://www.mspb.gov/decisions/nonprecedential/HOLLAND_ANTHONY_DEWITT_DC_0752_16_0545_I_1_FINAL_ORDER_1998890.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
ANTHONY DEWITT HOLLA ND,
Appellant,
v.
UNITED STATES POSTAL SERVICE,
Agency.
DOCKET NUMBER
DC-0752 -16-0545- I-1
DATE: January 31, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL1
Donald Lemmond, Gastonia, North Carolina, 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 his restoration 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
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a precedential decision issued as an Opinion and Order has been identified by the Board as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117
(c).
2
erroneous interpretation of statute or regulation or the erroneous application of
the law to the facts of the case; the administrative judge’s rulings during either the course of the appeal or the initial decision were not consistent w ith required
procedures or involved an abuse of discretion, and the resulting error affected the
outcome of the case; or new and material evidence or legal argument is available
that, despite the petitioner’s due diligence, was not available when the record
closed. Title 5 of the 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 more fully address the appellant’s
arguments below, we AFFIRM the initial decision.
BACKGROUND
¶2 The appellant is a Letter Carrier at the Post Office in Gastonia, North
Carolina. Initial Appeal File (IAF), Tab 1 at 1. From June 28 through
December 26, 2014, he was assigned to work as an acting supervisor. IAF,
Tab 14 at 30. On September 27, 2014, he suffered on- the-job injuries to his neck
and back after another carrier drove off while he was hanging off the back of a vehicle. IAF, Tab 2 at 7. He filed a claim for compensation with the Office of
Workers’ Compensation Programs (OWCP), which OWCP accepted for the conditions of sprain of back, lumbar region, and sprain of neck. Id. at 9. In
December 2014, the appellant returned to work. IAF, Tab 13 at 65, Tab 14 at 37.
¶3 On February 4, 2015 , the appellant notified the Gastonia Postmaster that he
could no longer work with the carrier who had deliberately hurt him and
requested reassignment to a different facility . IAF, Tab 8 at 2- 3, 11. He also
submitted several letters from his doctors indicating that he should not work with
the employee that caused his accident and that he was suffering from
post-traumatic stress disorder (PTSD). Id. at 4-7.
3
¶4 On February 7, 2015, the agency offered the appellant a limited- duty
assignment at the Gastonia Post Office. IAF, Tab 14 at 14. The appellant refused
the offer explaining that he could not work with the carrier involved in the
September 27, 2014 incident. Id. The appellant stopped working in
February 2015. IAF, Tab 8 at 11. On February 19, 2015, he submitted a request
to OWCP to ex pand his claim to include his PTSD diagnosis. IAF, Tab 13
at 64-65. OWCP denied his request, finding his PTSD was not related to his
compensable injuries because it arose after he returned to work following the
initial injury when the other employee involved in the incident became
reemployed. Id .
¶5 In April 2015, the agency search ed for, but failed to locate, a position
with in a 50 -mile radius that could accommodate the appellant’s restrictions. Id .
at 68- 173. On June 30, 2015, the appellant filed an equal employment
opportunity (EEO) complaint alleging the agency had discriminated against hi m
on the basis of his disabilities when it denied his requested accommodation. IAF,
Tab 2 at 11. On July 1, 2015, the agency offered the appellant another limited -duty assignment at the Gastonia Post Office. IAF, Tab 13 at 43. The
appellant refused this offer, stating his doctor had indicated he should not work
with the carrier involved in the September 27, 2014 incident. Id. at 43- 44. On
July 29, 2015, OWCP notified the appellant that it found the July 1, 2015 job
offer suitable and in accordance with his medical restrictions. Id. at 36. On
April 11, 2016, the agency issued a final agency decision (FAD) on the
appellant’s discrimination complaint, finding no me rit to his claims. IAF, Tab 2
at 11-31. The agency’s FAD afforded the appellant Board appeal rights. Id.
at 30.
¶6 On April 29, 2016, the appellant filed a Board appeal identifying the action
that he was challenging as “no job with restrictions.” IAF, Tab 1 at 4. He
subsequently filed a copy of the April 11, 2016 FAD . IAF, Tab 2 at 11 -31. The
administrative judge issued several jurisdictional orders informing the appellant
4
of the jurisdictional requirements for a constructive suspension claim and a denial
of restoration claim and ordering the appellant to file evidence and argument
establishing Board jurisdiction. IAF, Tabs 5, 12. In his responses , the appellant
acknowledged that the agency had offered him a job that was within his
restrictions, but argued that he should have been offered a supervisor position
because at the time of his injury he was working as an acting supervisor. IAF,
Tab 15 at 2- 3, Tab 18 at 1- 2. He also argued that he should have been assigned to
a position that did not require him to interact with the carrier involved in the
September 27, 2014 incident. IAF, Tab 15 at 2 , Tab 18 at 1.
¶7 Based on the written record,2 the administrative judge issued an initial
decision dismissing the appeal for lack of jurisdiction. IAF, Tab 20, Initial
Decision (ID). The administrative judge found that the appellant failed to
nonfrivolously allege , much less prove, that the agency had denied his request for
restoration because it was undisputed that he had returned to work partially
recovered fro m a compensable injury , and the agency had offered him modified
jobs within his restrictions since February 201 5.3 ID at 3- 4.
¶8 The appellant has filed a petition for review in which he reiterates his
argument that the agency failed to offer him a position away from the carrier who
caused his injuries and disputes the agency ’s claim that it properly searched for
available work at another facility. Petition for Review (PFR) File, Tab 1 at 2.
The agency has opposed the appellant’s petition. PFR File, Tab 3.
DISCUSSION OF ARGUME NTS ON REVIEW
The administrative judge properly found that the Board lacks jurisdiction over the
appellant’s restoration appeal.
¶9 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
2 The appellant did not requ est a hearing. IAF, Tab 1 at 2 .
3 The initial decision erroneously states February 2016. ID at 3 .
5
is required to make nonfrivolous4 allegations of the following: (1) he was absent
from his position du e 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
capricious because of the agency’s failure to perform its obligations under
5 C.F.R. § 353.301 (d). See Kingsley v. U.S. Postal Service, 123 M.S.P.R. 365 ,
¶ 11 (2016); 5 C.F.R. § 1201.57 (b). After establishing jurisdiction, an appellant
must prove the merits of his restoration appeal by a preponderance of the
evidence. Kingsley, 123 M.S.P.R. 365 , ¶ 12; 5 C.F.R. § 1201.57 (c)(4).
¶10 We agree with the administrative judge that the appellant failed to
nonfrivolously allege that the agency denied his request for restoration because it
is undisputed that the appellant returned to work in December 2014, partially
recovered from a compensable injury , IAF, Tab 13 at 65, Tab 14 at 37, and the
agency subsequently offered him two limited -duty positions, IAF, Tab 13 at 43,
Tab 14 at 14. Although the appellant was dissatisfied with the agency’s
limited- duty assignment s, he admits that they were within his physical
restrictions. IAF, Tab 15 at 2. Moreover, there is no indication in the record that
OWCP ever found such assignments to be unsuitable. To the contrary , OWCP
specifically found that the July 1, 2015 position was suitable. IAF, Tab 13 at 36.
Decisions on the suitability of an offered position are within the exclusive
purview of OWCP, subject to review by the Employees Compensation Review
Board, and neither the Board nor the employing agency has the authorit y to
determine whether a position is s uitable in light of an employee’s particular
medical condition. 5 U.S.C. § 8145 ; Simonton v. U.S. Postal Service,
85 M.S.P.R. 189 , ¶ 11 (2000).
4 A nonfrivolous allegation is an assertion that, if proven, could establish the matter at
issue . 5 C.F.R § 1201.4( s).
6
¶11 We find unavailing the appellant’s argument that he was denied restoration
because the agency failed to offer him a position at another facility that did not
require him to work with the coworker involved in the September 27, 2014
incident to accommodate his PTSD. Agencies are required to “ make every effort
to restore in the local commuting area, according to the circumstances in each
case, an individual who has partially recovered from a compensable injury and
who is able to return to limited duty.” 5 C.F.R. § 353.301 (d). 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. Frye v. U.S. Postal Service, 102 M.S.P.R. 695 , ¶ 9 (2006). Determining
whether an individual suffers from a compensable medical condition is within the
exclusive purview of OWCP. Simonton , 85 M.S.P.R. 189 , ¶ 11. Because OWCP
determined that the appellant’s PTSD was not related to his compensable injury ,
IAF, Tab 13 at 64-65, the appellant has no restoration rights under 5 C.F.R. part
353 based on this condition, see, e.g., McFarlane v. U.S. Postal Service ,
110 M.S.P.R. 126 , ¶ 16 (2008) (finding that the appellant failed to raise a
nonfrivolous allegation of jurisdiction because OWCP had denied his claim of
recurrence, and thus, he did not have a compensable injury that would entitle him
to restoration).
¶12 Similarly , we find unavailing the appellant’s argument tha t the agency
improperly failed to restore him to a supervisor y position. An injured employee
who partially recovers from a compensable injury may appeal to the Board only for a Board determination of whether the agency acted arbitrarily and
capri ciously in denying restoration. 5 C.F.R. § 353.304
(c). He has no right to
appeal an alleged improper restoration. Jones v. U.S. Postal Service, 86 M.S.P.R.
464, ¶ 5 (2000) .
The Board lacks jurisdiction over the appellant’s discrimination claims.
¶13 To the extent the appellant raised a claim of disability discrimination below,
IAF, Tab 18 at 1 -2, the Board is not authorized to consider claims of
7
discrimination absent an otherwise appealable action. See, e.g., Pridgen v. Office
of Management & Budget, 117 M.S.P.R. 665 , ¶ 7 (2012). Similarly, the Board
lacks jurisdiction over an appeal of the agency’s FAD concerning the appellant’s
EEO complaint. The Board has jurisdiction over an appeal from a FA D only with
respect to matters otherwise appealable to the Board. S ee 5 U.S.C. § 7702 (a)(1)
(providing Board jurisdiction over discrimination claims raised in connection
with otherwise appealable actions). Because the Board lacks jurisdiction over the
appellant’s restoration allegations , it likewise lacks jurisdiction to consider his
discrimination claims raised in connection with such allegations. The fact that
the agency’s FAD provided the appellant with mixed- case appeal rights does not
vest the Board with jurisdiction , which is limited by statute, rule, and regulation,
over his claims . See Powell v. Department of the Army, 9 M.S.P.R. 237 , 238
(1981); see also Sage v. Department of the Army , 108 M.S.P.R. 398 , ¶ 8 (2008)
(stating that an agency cannot through its own actions confer or take away Board
jurisdiction).
¶14 Accordingly, we affirm, as modified, the initial decision.
NOTICE OF APPEAL RIG HTS5
The initial decision, as supplemented by this Final Order, constitutes the
Board’s final decision in this matter. 5 C.F.R. § 1201.113 . You may obtain
review of this final decision. 5 U.S.C . § 7703 (a)(1). By statute, the nature of
your claims determines the time limit for seeking such review and the appropriate forum with which to file.
5 U.S.C. § 7703 (b). Although we offer the following
summary of available appeal rights, the Meri t Systems Protection Board does not
provide legal advice on which option is most appropriate for your situation 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 matter, the Board may have updated
the notice 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
regarding which cases fall within their jurisdiction. If you wish to seek review of
this 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 ap plicable time limit may result in the dismissal of your case by your
chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Addi tional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
9
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) 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
to waiver of any requirement of prepayment of fees, costs, or other security. See
42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx.
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues. 5 U.S.C. § 7702 (b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
10
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.6 The court of appeals must receive your petition for
6 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on July 7, 2018, pe rmanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals for the Federal Circuit or any other circuit court of appeals of competent jurisdiction. The All Cir cuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195,
132 Stat. 1510.
11
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be 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 | HOLLAND_ANTHONY_DEWITT_DC_0752_16_0545_I_1_FINAL_ORDER_1998890.pdf | 2023-01-31 | null | DC-0752 | NP |
3,679 | https://www.mspb.gov/decisions/nonprecedential/HALL_ROSETTA_M_CH_1221_19_0062_W_1_FINAL_ORDER_1997527.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
ROSETTA M. HALL,
Appellant,
v.
DEPARTMENT OF VETERA NS
AFFAIRS,
Agency.
DOCKET NUMBER
CH-1221 -19-0062 -W-1
DATE: January 30, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL1
Rosetta M. Hall , St. Louis, Missouri, pro se.
Kent E. Duncan , Esquire, St. Louis, Missouri, for the agency.
BEFORE
Cathy A. Harris , Vice Chairman
Raymond A. Limon , Member
Tristan L. Leavitt , Member
Member Leavitt recused 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
dismissed her individual right of action appeal for lack of jurisdiction . On
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 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
petition f or review, the appellant contests various actions by her former
employ ing agencies as well as the results of several complaints and Board
appeals . Generally, we grant petitions such as this one only in the following
circumstances: the initial decision contains erroneous findings of material fact;
the initial decision is ba sed on an erroneous interpretation of statute or regulation
or the erroneous application of the law to the facts of the case; the administrative
judge’s rulings during either the course of the appeal or the initial decision
were not consistent with require d procedures or involved an abuse of discretion,
and the resulting error affected the outcome of the case; or new and material
evidence or legal argument is available that, despite the petitioner’s due
diligence, was not available when the record closed. Title 5 of the Code of
Federal Regulations, section 1201.115 ( 5 C.F.R. § 1201.115 ). After fully
considering the filings in this appeal, we conclude that the petitioner has not
established any basis under section 1201.115 for granting the petition for review.
Therefore, we DENY the petition for review and AFFIRM the initial decision,
which is now the Board’s final decision. 5 C.F.R. § 1201.113 (b).
NOTICE OF APPEAL RIG HTS2
You may obtain review of this final decision. 5 U.S.C. § 7703 (a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703 (b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how cour ts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
2 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise whic h option is most appropriate in any matter.
3
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have question s
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contain ed within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono fo r information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
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 Circu it), within 30 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:
5
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises 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.3 The court of appeals must receive your
petition for review within 60 days of the date of issuance of this decision.
5 U.S.C. § 7703 (b)(1)(B).
3 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 201 8, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The Al l Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195,
132 Stat. 1510.
6
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Conta ct information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites .aspx .
FOR THE BOARD:
Washington, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board | HALL_ROSETTA_M_CH_1221_19_0062_W_1_FINAL_ORDER_1997527.pdf | 2023-01-30 | null | CH-1221 | NP |
3,680 | https://www.mspb.gov/decisions/nonprecedential/HOLT_KENYA_K_SF_0752_16_0129_I_2_FINAL_ORDER_1997539.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
KENYA K. HOLT,
Appellant,
v.
DEPARTMENT OF THE NA VY,
Agency.
DOCKET NUMBER
SF-0752 -16-0129 -I-2
DATE: January 30, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL1
Kevin Mirch , Esquire, San Diego, California, for the appellant.
John William Torresala , Esquire, Camp Pendleton, California, 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, whic h
sustained his removal based on one charge of conduct unbecoming a civilian
police officer arising from misconduct for which imprisonment may be
imposed —namely, that he engaged in sexual misconduct for which he was
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c).
2
arrested a nd charged . Because the appellant was convicted in a California state
court of forcible rape, t he administrative judge found that collateral estoppel
precluded him from challenging the merits of the underlying misconduct. On
petition for review, the appellant argues that the administrative judge erred in
applying the Board’s case law regarding collateral estoppel, that he should have
applied the common law of California , and that the Board should stay his removal
until his criminal conviction has been fully litigated .
¶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 regulatio n
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 r esulting 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 1201.1 15 ( 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 gra nting the petit ion for review.
Therefore, we DENY the petition for review . Except as expressly MODIFIED to
consider the new and material evidence that the appellant’s criminal conviction
has been fully litigated and to apply the common law of California regarding
colla teral estoppel, we AFFIRM the initial decision.
¶3 The appellant asserts that the administrative judge should have applied the
common law of California to analyze whether he was collaterally estoppe d from
challenging his criminal conviction and the misconduct underlying the charge .
Petition for Review (PFR) File, Tab 1 at 4. The administrative judge applied the
Board’s doctrine of collateral estoppel to find that the appellant was estopped
from arguing that he did not engage in the disputed misconduct. Refi led Appeal
3
File, Tab 33, Initial Decision at 5-6 (citing Kavaliauskas v. Department of the
Treasury , 120 M.S.P.R. 509 , ¶ 5 (2014)). However, when an appellant is found
guilty of a crime under state law, the Board will apply the common law of that
state regarding collateral estoppel to determine the preclusive effect of the
conviction. Graybill v. U.S. Postal Service , 782 F.2d 1567 , 1571 -73 (Fed. Cir.
1986); see Mosby v. Department of Housing & Urban Development , 114 M.S.P.R.
674, ¶ 5 (2010). Accordingly , we modify the initial decision to consider the
doctrine of collateral estoppel under California law.
¶4 Under California law, the following four criteria govern the application of
collateral estoppel to issues raised in a prior criminal proceeding:
(1) the prior conviction must have been for a serious offense so that
the defendant was motivated to fully litigate the charges; (2) there
must h ave been a full and fair trial to prevent convictions of doubtful
validity from being used; (3) the issue on which the prior conviction
is offered must of necessity have been decided at the criminal trial;
and (4) the party against whom collateral estoppel is asserted was a
party or in privity with a party to the prior trial .
Ayers v. City of Richmond , 895 F.2d 1267 , 1271 (9 th Cir. 1990); see, e.g.,
Holguin v. City of San Diego , 135 F. Supp. 3d 1151 , 1159 (S.D. Cal. 2015).
Collateral estoppel will not be applied unless the time for appeal has elapsed. See
Ayers , 895 F.2d at 1271 -72.
¶5 Here, t he appellant’s conviction was for a serious offense, the issues are the
same, and the appellant is a party in both actions. The appellant asserts only that
he has not fully litigated hi s conviction , and thus the Board should stay his
removal to afford him the opportunity to do so . PFR File, Tab 1 at 4. However,
we have considered the agency’s argument and the case disposition information ,
submitted for the first time on review , indicat ing that the California Cou rt of
Appeal for the Fourth District, Division 2 (California Court of Appeal) , has since
affirmed the appellant’s conviction and that he did not file an appeal with the
Supreme Court of California , as this evidence and argument demonstrates that the
conviction has since been fully litigated . PFR File, Tab 6 at 7-8, Tab 9 at 29 -36;
4
see Cleaton v. Department of Justice , 122 M.S.P.R. 296 , ¶ 7 (2015), aff’d ,
839 F.3d 1126 (Fed. Cir. 2016). The California Court of Appe al affirmed the
appellant’s conviction of forcible rape on October 17, 2017. People v. Holt ,
No. E066715, 2017 WL 4640113 (Cal. Ct. App. Oct. 17, 2017) . The appellant
had 10 days to file a petition for review in the California Supreme Court. Cal. R.
Ct. 8.500(e)(1). He did not do so, and the California Court of Appeal issued a
remittitur on December 19, 2017, certifying that the case is complete . PFR File,
Tab 9 at 31. Accordingly, the appellant’s argument that the Board should stay his
removal to aff ord him the opportunity to fully litigate his appeal is moot . Thus,
we sustain the charge and affirm the removal.
NOTICE OF APPEAL RIGHTS2
The initial decision, as supplemented by this Final Order, constitutes the
Board’s final decision in this matter. 5 C.F.R. § 1201.113 . You may obtain
review of this final decision. 5 U.S.C. § 7703 (a)(1). By statute, the nature of
your clai ms determines the time limit for seeking such review and the appropriate
forum with which to file. 5 U.S.C. § 7703 (b). Although we offer the following
summary of available appeal rights, the Meri t Systems Protection Board does not
provide legal advice on which option is most appropriate for your situation 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 y our case by your
chosen forum.
2 Since the issuance of the initial decision in this matter, the Board may have updated
the not ice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.
5
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review you r case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Cir cuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for 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.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
6
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. ____ , 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 onl y, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
7
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 2 0507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Cour t of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.3 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(B).
3 The original statutory provision that provided for judicial review of certain
whistleblower claims by a ny court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whis tleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195,
132 Stat. 1510.
8
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the 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 | HOLT_KENYA_K_SF_0752_16_0129_I_2_FINAL_ORDER_1997539.pdf | 2023-01-30 | null | SF-0752 | NP |
3,681 | https://www.mspb.gov/decisions/nonprecedential/DEWS_TERRAH_A_DC_0432_18_0190_I_2_FINAL_ORDER_1997616.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
TERRAH A. DEWS,
Appellant,
v.
DEPARTMENT OF HEALTH AND
HUMAN SERVICES,
Agency.
DOCKET NUMBER
DC-0432 -18-0190 -I-2
DATE: January 30, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL1
David H. Shapiro , Esquire , and J. Cathryne Watson , Washington, D.C., for
the appellant.
Christy Te , Esquire, and Simone Jenkins , 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 removal appeal without prejudice to refiling . Generally, we grant
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 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
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 petition er’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 av ailable appeal 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 wi thin their
jurisdiction. 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 mos t appropriate in any matter.
3
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the ap propriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for revi ew to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about t he U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representat ion
for Merit Systems Protection Board appellants before the 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 case s involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
recei ve 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.usco urts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702 (b)(1). If you hav e a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEO C 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 requ iring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice describe d in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.3 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(B).
3 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law 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.
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 | DEWS_TERRAH_A_DC_0432_18_0190_I_2_FINAL_ORDER_1997616.pdf | 2023-01-30 | null | DC-0432 | NP |
3,682 | https://www.mspb.gov/decisions/nonprecedential/ROGERS_DANA_C_CB_7121_18_0006_V_1_FINAL_ORDER_1997624.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
DANA C. ROGERS,
Appellant,
v.
DEPARTMENT OF VETERA NS
AFFAIRS,
Agency.
DOCKET NUMBER
CB-7121 -18-0006 -V-1
DATE: January 30, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL1
Calanit Kedem , Esquire, Washington, D.C., for the appellant.
Robert Vega , Esquire, Hines, Illinois, for the agency.
BEFORE
Cathy A. Harris , Vice Chairman
Raymond A. Limon , Member
Tristan L. Leavitt , Member
FINAL ORDER
¶1 The appellant has filed a request for review under 5 U.S.C. § 7121 (d) of an
arbitrator ’s decision that sustained her removal for unacceptable performance .
For the re asons discussed below, we GRANT the request and REVERSE the
arbitrator’s decision.
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board ’s case law. See 5 C.F.R. § 1201.117 (c).
2
BACKGROUND
¶2 The appellant was a GS -14 Attorney -Advisor (Veterans) with the Board of
Veterans ’ Appeals . Request for Review (RFR) File, Tab 1 at 4. The appellant ’s
performanc es stand ards for the 2014 -2015 fiscal year (FY15), stated that, to
perform at the fully successful level in the productivity critical element of her
performance standards, she was required to produce “a sufficient share of [the
agency ’s] decisions and othe r work product s, unless good cause is shown. A
sufficient share is defined as 156 or more credits for the performance year. ” Id.
at 778, 781. Generally, the sufficient share required to meet the standard was
referred to as the fair share. Id. at 928 .
¶3 On September 11, 2015, the agency notified the appellant that her
performance of the duties of her po sition in the critical element of p roductivity
was unacceptable and that she was being placed on a performance improvement
plan (PIP). Id. at 923 -27. The PIP provided that the appellant ’s current
performance year, which would normally end effective September 30, 2015,
would be extended through Monday, December 28, 2015, to afford her a
reasonable opportunity to improve. Id. at 923. The PIP further pro vided that, to
successfully complete the PIP, the appellant had to meet the cumulative
productivity requirement for her extended performance year of 192 credits by
Monday, December 28, 2015. Id. at 925 . The 192 credits represented the FY15
requirement of 156 credits plus 36 credits.
¶4 On January 14, 2016, the agency proposed to remove the appellant for
unsuccessful perfo rmance in the critical element of productivity. Id. at 1019 -22.
The notice of proposed removal provided that, after receiving opportuni ties for
assistance during the PIP, the appellant failed to meet her quarterly and year -end
objectives, as follows: (1) a s of September 30, 20 15, she had only produced
124.5 credits, which is 31.5 credits sh ort of the 156 credits required , and (2) as of
December 28, 2015, she had only produced 145.5 credits, which is 37.5 credits
3
short of the 183 credits required.2 Id. On March 24, 2016, the agency issued a
decision sustaining the proposed removal and removing the appellant effective
April 1, 2016. Id. at 919.
¶5 The appellant grieved the agency ’s actio n. At arbitration, the arbitrator
identified the issues as whether : (1) the appellant ’s removal was prop er under
5 U.S.C. c hapter 43 ; (2) the agency engaged in unlawful disability discrimination ;
and (3) the removal was based on the appellant’s protected activities . Id. at 94.
The arbitrator held a hearing on June 27-28, 2017. Id. at 94, 123. She found that
the agency met its b urden of proof in a performance -based action under
chapter 43 and that the a ppellant failed to establish that the agency violated the
applicable collective bargaining agreement. Id. at 111 -17. Further, she found no
merit to the appellant’s claims that the agency removed her on the basis of her
disability, failed to offer her an effective reasonable accommodation in a timely
manner, and retaliated against her for seeking a reasonable accommodation and
invoking the FMLA . Id. at 117 -21.
¶6 In her request for review, the appellant asserts that the agency ’s removal
decision is not sup ported by substantial evidence, that the arbitration decision
erroneously interprets civil service laws, rules, and regulations, and that she
established that the agency discriminated against her on the basis of disability.
Id. at 12-23.
ANALYSIS
The Boar d has jurisdiction over the appellant ’s request for review of the
arbitrator ’s decision.
¶7 The Board has jurisdiction to review an arbitration decision under 5 U.S.C.
§ 7121 (d) when the subject matte r of the grievance is one over which the Board
2 During the PIP period, the appellant took some Family and Medical Leave Act
(FMLA) leave . Because of her FMLA leave, the agency prorated the number of credits
that she need ed to achieve to be rated at the fully successful level down to 183. Id.
at 1019 .
4
has jurisdiction, the appellant has all eged discrimination under 5 U.S.C.
§ 2302 (b)(1) in connection with the underlying action, and a final decision has
been issued. Weaver v. Social Security Administration , 94 M .S.P.R. 447 , ¶ 5
(2003). Each of those elements has been satisfied in this case. First, the subject
matter of the grievance, a removal under chapter 43, Title 5 of the United States
Code, falls within the scope of Board jurisdiction. See 5 U.S.C. § 4303 (e).
Second, the appellant alleges discriminati on on the basis of disability. RFR File,
Tab 1 at 26-28. Third, the final decision of the arbitrator has been issued in this
case. Id. at 93 -121.
The scope of the Board ’s review over the arbitrator ’s decision is limited.
¶8 The scope of the Board ’s review of an arbitrator ’s award is narrow; such
awards are entitled to a greater degree of deference than initial decisions issued
by the Board ’s administrative judges. De Bow v. Department of the Air Force ,
97 M.S.P.R. 5 , ¶ 5 (2004); see Robinson v. Department of Health & Human
Services , 30 M.S.P.R. 389 , 392 -95 (1986) (holding that the Board will not
provide de novo review of arbitrat ion decisions appealable under
section 7121(d) ). The Board will modify or set aside an arbitration decision only
when the arbitrator has erred as a matter of law in interpreting civil service law,
rule, or regulation. De Bow , 97 M.S.P.R. 5 , ¶ 5. Absent legal error, the Board
cannot substitute its conclusions for those of the arbitrator, even if it would
disagree with the ar bitrator ’s decision. Id.; Jones v. Department of the Treasury ,
93 M.S.P.R. 494 , ¶ 8 (2003) (finding that an arbitrator ’s factual de terminations
are entitled to deference unless the arbitrator erred in his legal analysis by, for
example, misallocating the burdens of proof or employing the wrong analytical
framework).
The arbitrator erred as a matter of law in interpreting chapter 43.
¶9 At the time the arbitration decision was issued, the agency was required to
prove a performance -based action under chapter 43 by establishing the following
5
by substantial evidence: (1) the Office of Personnel Management approved its
performance appraisal system; (2) the agency communicated to the appellant the
performance standa rds and critical elements of her position; (3) the appellant ’s
performance standards a re valid under 5 U.S.C. § 4302 (c)(1);3 (4) the agency
warned the appe llant of the inadequacies of her performance during t he appraisal
period and gave her a reasonable opportunity to improve; and (5) the appellant ’s
performance remained unacceptable in at least one critical element.4 Lee v.
Environmental Protection Agency , 115 M.S.P .R. 533 , ¶ 5 (2010) . Although t he
arbitrator applied the correct legal standards (at the time ), specifically listing the
elements of the agency ’s burden to prove unacceptable pe rformance pursuant to
5 U.S.C. c hapter 43 and noting that the agency had the burden to prove its case by
substantial evidence , RFR File, Tab 1 at 94, 111 , she improperly fo und that the
appellant was afforded a reasonable opportunity to improve.
¶10 Before initiating an action for unacceptab le performance under 5 U.S.C.
§ 4303 , an agency must give the employee a reasonable opportunity to
demonstrate acceptable performance. Greer v. Department of the Army ,
79 M.S.P.R. 477 , 480 (1998). The employee ’s right to a reasonable opportunity
to improve is a substantive right and a necessary prerequisite to all chapter 43
actions. Lee, 115 M.S.P.R. 533 , ¶ 32; Sandland v. General Services
3 The National Defense Authorization Act for Fiscal Year 2018 redesignated 5 U.S.C.
§ 4302 (b) as subsection 4302(c). Pub. L. No. 115 -91, § 1097(d)(1)(A), 131 Stat. 1283,
1619 (2017). Accordingly, 5 U.S.C. § 4302 (c)(1) now sets forth the statutory
requirements for a valid performance standard.
4 After the arbitration decision was iss ued in this case, the U.S. Court of Appeals for the
Federal Circuit issued its decision in Santos v. National Aeronautics & Space
Administration , 990 F.3d 1355 (Fed. Cir. 2021). In Santos , the court found that an
agency taking an action under chapter 43 must prove that the employee’s perfor mance
prior to the PIP justified her placement on the PIP. Id. at 1360 -61, 1363. Because we
find, as discussed below, that the agency did not otherwise meet its burden to prove the
basis for a chapter 43 action , we need not determine here whether the Santos decision
impacts the agency’s proof of its charge. See Pridgen v. Office of Management
and Budget , 2022 MSPB 31, ¶ 1 5 n.2.
6
Administration , 23 M.S.P.R. 583, 590 (1984). An employee’s right to a
reasonable opportunity to improve is one of the most important substantive rights
in the ent ire chapter 43 performance appraisal framework. Sandland , 23 M.S.P.R.
at 590. In determining whether the agency has afforded the appellant a
reasonable opportunity to demonstrate acceptable performance, relevant factors
include the nature of the duties a nd responsibilities of the appellant ’s position, the
performance deficiencies involved, and the amount of time which is sufficient to
enable the employee to demonstrate acceptable performance. Lee, 115 M.S.P.R.
533, ¶ 32 .
¶11 The arbitrator found that the agency prorated the appellant ’s production
standard for the duration of the PIP to three credits per week. RFR File, Tab 1
at 116. However , the record does not support this finding. As noted, the
appellant’s performance standards required that , to be fully successfully, she had
to achieve 156 credits during the performance year. RFR File, Tab 1 at 778 . The
standards thus require producing at an average rate of three credits per week to
achieve a fully successful rating .
¶12 However, pursuant to the PIP, the agency required the appellant to meet a
far higher average rate of production. Specifically, to successfully com plete the
PIP, the appellant was required to meet the cumulative productivity requi rement
for her extend ed performance year . Id. at 925 . Essentially, t he agency extended
the performance year and defined a portion of the extended performance yea r as
the P IP period. It stated that the appellant’s 87-day long PIP would begi n
effective Monday, September 28, 2015, which is the first business day after the
end of the fourth quarter , and end Monday, December 28, 2015. Id. at 923. It
further stated that the ap pellant must reach 192 credits by the end o f the extended
performance year , or by the end of the PIP period . Thus, during the 13-week PIP
period, the appellant would have had to complete 36 credits plus the
31.5 -credit -production shortfall during the 12 months of FY15, or an average of
approximately 5 credits per week , a number far higher than the average rate of
7
production required for a fully successful rating under the performance standards
given to the appellant at the beginning of the appraisal year .
¶13 Additional record evidence shows that the agency intended to increase the
standards of performance established at the begin ning of the appraisal period.
Prior to the PIP period, the appellant asked he r supervisor to forgive the
31.5 -case -credit shortfa ll for FY15. Id. at 928. In response, her supervisor stated
that she had “no authority to simply ‘forgive ’ or otherwise ignore any [f]air
[s]hare credit deficiency that [kept the appellant ] from reaching the Fully
Successful level of her annual Productiv ity requirement. ” Id. The supervisor
stated that the appellant must meet 192 credits by December 28, 2015, the end of
her PIP period. Id. at 929. The supervisor emphasized that the appellant’s
success or failure in the PIP would ultimately depend on he r ability to meet the
overall goal through the end of the PIP period, or 192 credits. Id.
¶14 By setting a performance production standard of approximately 5 credits per
week for the appellant to achieve during her PIP , the agency imposed revised
performance standards for the production element that wer e substantially
different from her prior production standard of three credits per week . The PIP
thus increased the standards of performance established at the beginning of the
appraisal period. The Board has held that a PIP that increase s the standards of
performance established at the beginning of the appraisal period does not provide
a reasonable opportunity to improve . See Betters v. Federal Emergency
Management Agency , 57 M.S.P.R. 405, 410 (1993); see also Boggess v.
Department of the Air Force , 31 M.S.P.R. 461, 462 -63 (1996) (finding that the
agency failed to provide the appellant with a reasona ble opportunity to improve
when it simultaneously presented him with substantially different performance
standards and notified him that his performance was unacceptable); cf. Brown v.
Veterans Administration , 44 M.S.P.R. 635, 644 -45 (1990) (finding that , although
the employee must have notice of how his or her performance will be judged
during the PIP, when the workload is fairly constant, an employee subject to an
8
annual numerical standard should reasonably anticipate evaluation of his or her
PIP performance under a pro -rata standard) . Under the circumstances of this
case, the arbitrator erred as a matter of law in finding that the agency provided
the appellant with a reasonable opportunity to improve , and the arbitration
decision must be reversed . De Bow , 97 M.S.P.R. 5 , ¶ 5.
The appellant failed to prove that the agency discriminated against her on the
basis of disability or re taliated against her for activity protected under
anti-disability discrimination statutes.
¶15 In her request for review, the appellant alleges that the arbitrator erred in
finding that the agency did not discriminate against the appellant on the basis of
disability by failing to timely accommodate her disability . RFR File, Tab 1 at 28.
The appellant contends that the delay in granting the accommodation she
requested, the ability to telework, ensured that she was not accommodated for the
entirety of the PIP period.
¶16 The arbitrator found that the agency had a responsibility to accommodate
the appellant and, once she made her request for accommodation, the agency
cooperated and responded promptly and granted the appellant ’s request so that
she could begin telework at the start of her PIP. Id. at 119. We agree with the
arbitrator ’s finding that the appellant failed to present evidence that the agency
failed in its obligat ion to accommodate her . Id. Regarding the appellan t’s claim
that the agency retaliated against her for request ing an accommodation, the Board
clarified in Pridgen that the “but-for” standard is applicable to retaliation claims
under the Americans with Disabilities Act Amendments Act of 2008 . Pridgen v.
Office of Management and Budget , 2022 MSPB 31, ¶¶ 43-47. Here, the arbitrator
found no causal connection between the protected activity of requesting an
accommodation and the adverse action. We therefore find that the arbitrator
9
applied the correct analysis in addressing this claim and we agree th at it lacks
merit.5
ORDER
¶17 We ORDER the agency to cancel the removal and to reinstate the appellant
to her position of Attorney -Advisor (Veterans), GS -14, effective April 1, 2016.
See Kerr v. National Endowment for the Arts , 726 F.2d 730 (Fed. Cir. 1984). The
agency must complete this action no later than 20 days after the date of this
decision.
¶18 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 cooper ate in good faith in the agency’ s
efforts to calculate the amount of back pay, interest, and benefits due, and to
provi de 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.
¶19 We further ORDER the agency to tell the appellant promptly in writing
when it believes it has fully carried out the Board’ s Order and to describe the
5 As discussed above, t he Federal Circuit ’s decision in Santos now requires the Board to
inquir e into pre -PIP activity for the purpose of assessing the merits of a chapter 43
action , but also, for the purpose of examining any affirmative defenses arising from
facts and circumstances prior to the PIP , as they could relate to the agency’s decision to
place an employee on a PIP . See Santos , 990 F.3d at 1364. Here, it is undisputed that
the agency informed the appellant that she was being placed on a PIP on September 2,
2015 , and memorialized that decision on September 10, 2015. RFR File, Tab 1 at 8,
928-33, Tab 4 at 7. It is also undisputed that the appellant filed her request for a
reasonable accommodation on September 16 , 2015. RFR File, Tab 1 at 887. Thus, the
appellant’s affirmative defenses arise out of facts and circumstances that occurred after
the agency’s decision to place the appellant on a PIP. Accordingly, remand is not
necessary to consider the appellant’s c laim s in light of Santos .
10
actions it took to carry out the Board’ s Order. The app ellant, if not notified,
should ask the agency about its progress. See 5 C.F.R. § 1201.181 (b).
¶20 No later than 30 days after the agency tells the appellant that it has fully
carried out t he Board’ s Order, she may file a petition for enforcement with the
Clerk of the Board if the appellant believes that the agency di d not fully carry out
the Board’ s Order. The petition should contain specific reasons why she 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).
¶21 For agencies whose payroll is administered by either the National Finance
Center of the Department of Agriculture (NFC) or the Defense Finance and
Accounting Service (DFAS), two lists of the information and documentation
necessary to process payments and a djustments resulting from a Board decision
are attached. The agency is ORDERED to timely provide DFAS or NFC with all
documentation necessary to process payments and adjustments resulting from the
Board ’s decision in accordance with the attached lists so that payment can be
made within the 60 –day period set forth above.
¶22 This is the final decision of the Merit Systems Protection Board in this
request for review. Title 5 of the Code of Federal Regulations,
section 1201.113(c) ( 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 mus t 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 an d 1201.203. If
you believe you meet these requirements, you must file a motion for attorney fees
11
WITHIN 60 CALENDAR DAYS OF THE DATE OF THIS DECISION. You
must file your attorney fees motion with the Clerk of the Board.
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 t o file. 5 U.S.C. § 7703 (b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriat e for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applica ble to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
6 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriat e 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.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
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 information for U.S. district courts can be found at th eir respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the
EEOC’s Office of Federal O perations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for re view to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enha ncement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
14
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
compete nt jurisdiction.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 judic ial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Pract ice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono rep resentation
for Merit Systems Protection Board appellants before the Federal Circuit. The
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 Presid ent 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 jur isdiction.
The All Circuit Review Act is retroactive 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/CourtWebsites.aspx .
FOR THE BOARD:
Washington, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board
DEFENSE FINANCE AND ACCOUNTING SERVICE
Civilian Pay Operations
DFAS BACK PAY CHECKLIST
The following documentation is required by DFAS Civilian Pay to compute and pay back pay
pursuant to 5 CFR § 550.805. Human resources/local payroll offices should use the following
checklist to ensure a request for payment of back pay is complete. Missin g documentation may
substantially delay the processing of a back pay award. More information may be found at:
https://wss.apan.org/public/DFASPayroll/Back%20Pay%20Process/Forms/AllItems.aspx.
NOTE: Attorneys’ fees or other non -wage payments (such as d amages) are paid by
vendor pay, not DFAS Civilian Pay.
☐ 1) Submit a “SETTLEMENT INQUIRY - Submission” Remedy Ticket. Please identify the
specific dates of the back pay period within the ticket comments.
Attach the following documentation to the Remed y Ticket, or provide a statement in the ticket
comments as to why the documentation is not applicable:
☐ 2) Settlement agreement, administrative determination, arbitrator award, or order.
☐ 3) Signed and completed “Employee Statement Relative to Back Pay”.
☐ 4) All required SF50s (new, corrected, or canceled). ***Do not process online SF50s
until notified to do so by DFAS Civilian Pay.***
☐ 5) Certified timecards/corrected timecards. ***Do not process online timecards until
notified to do so by DFAS Civilian Pay.***
☐ 6) All relevant benefit election forms (e.g. TSP, FEHB, etc.).
☐ 7) Outside earnings documentation. Include record of all amounts earned by the employee
in a job undertaken during the back pay period to replace federal employme nt.
Documentation includes W -2 or 1099 statements, payroll documents/records, etc. Also,
include record of any unemployment earning statements, workers’ compensation,
CSRS/FERS retirement annuity payments, refunds of CSRS/FERS employee premiums,
or sever ance pay received by the employee upon separation.
Lump Sum Leave Payment Debts: When a separation is later reversed, there is no authority
under 5 U.S.C. § 5551 for the reinstated employee to k eep 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 s eparate leave account pursuant to 5 CFR § 550.805(g).
2
NATIONAL FINANCE CEN TER CHECKLIST FOR BA CK PAY CASES
Below is the information/documentation required by National Finance Center to process
payments/adjustments agreed on in Back Pay Cases (settlements, restorations) or as ordered by
the Merit Systems Protection Board, EEOC, and courts .
1. Initiate and submit AD -343 (Payroll/Action Request) with clear and concise information
describing what to do in accordance with decision.
2. The following in formation must be included on AD -343 for Restoration:
a. Employee name and social security number.
b. Detailed explanation of request.
c. Valid agency accounting.
d. Authorized signature (Table 63).
e. If interest is to be included.
f. Check mailing address.
g. Indicate if case is prior to conversion. Computations must be attached.
h. Indicate the amount of Severance and Lump Sum Annual Leave Payment to be
collected (if applicable).
Attachments to AD -343
1. Provide pay entitlement to include Overtime, Night Diffe rential, Shift Premium, Sunday
Premium, etc. with number of hours and dates for each entitlement (if applicable).
2. Copies of SF -50s (Personnel Actions) or list of salary adjustments/changes and amounts.
3. Outside earnings documentation statement from agen cy.
4. If employee received retirement annuity or unemployment, provide amount and address to
return monies.
5. Provide forms for FEGLI, FEHBA, or TSP deductions. (if applicable)
6. If employee was unable to work during any or part of the period involved, certi fication of the
type of leave to be charged and number of hours.
7. If employee retires at end of Restoration Period, provide hours of Lump Sum Annual Leave
to be paid.
NOTE: If prior to conversion, agency must attach Computation Worksheet by Pay Period and
required data in 1 -7 above.
The following information must be included on AD -343 for Settlement Cases: (Lump Sum
Payment, Correction to Promotion, Wage Grade Increase, FLSA, etc.)
a. Must provide same data as in 2, a -g above.
b. Prior to conversion com putation must be provided.
c. Lump Sum amount of Settlement, and if taxable or non -taxable.
If you have any questions or require clarification on the above, please contact NFC’s
Payroll/Personnel Operations at 504 -255-4630. | ROGERS_DANA_C_CB_7121_18_0006_V_1_FINAL_ORDER_1997624.pdf | 2023-01-30 | null | CB-7121 | NP |
3,683 | https://www.mspb.gov/decisions/nonprecedential/HOOKER_CARLTON_E_AT_3330_17_0267_I_1_FINAL_ORDER_1997702.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
CARLTON E. HOOKER, JR.,
Appellant,
v.
DEPARTMENT OF VETERA NS
AFFAIRS,
Agency.
DOCKET NUMBER
AT-3330 -17-0267 -I-1
DATE: January 30, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL1
Carlton E. Hooker, Jr. , St. Petersburg, Florida, pro se.
Luis E. Ortiz -Cruz , Esquire, Orlando, 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 decision, which
dismissed this Veterans Employment Opportunities Act of 1998 (VEOA) 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
1 A nonprecedential order is one that the Board has determined does not add
significantly to the 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
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 MODIFIED by
this Final Order to find that the appellant exhausted his administrative remedy
with the Department of Labor (DOL ) but failed to make a non frivolous allegation
that the agency denied his right to compete , we AFFIRM the initial decision.
BACKGROUND
¶2 On December 9, 2016, the Bay Pines Veterans Affairs Healthcare System
(BPVAHCS ) Assistant Secretary for Operations, Security, and Preparedness,
issued a letter informing the appellant that he was being placed in a “‘No
Engagement ’ status” because of his disruptive behavior and intimidation of staff.
Initial Appeal File (IAF), Tab 1 at 26 -29. The Assistant Secretary informed the
appellant that h e was restricted from any engagement with B PVAHCS, his
“inquir ies to or comm unications with the BPVAHCS [would] not be answered or
addressed, ” and he was physically restricted from all BPVAHCS properties. Id.
at 26. The letter provided the appellant with an alternate location for medical
services and various points of contact, including one for “any further questions.”
Id. at 26 -27.
¶3 The agency posted a vacancy announcement for a Transportation Assistant
position , which was open from January 6 through 13, 2017 . IAF, Tab 7 at 21.
3
Status candidates were eligible to apply under merit promotion procedures or as
VEOA eligibles . Id. The vacancy also was open to disabled veterans and certain
disabled individuals under a Schedule A hiring authority . Id. at 22; 5 C.F.R.
§ 231.3102 (u). To apply as a disabled veteran or under Schedule A, the agency
directed applicants to contact its Selective Placement Coordinator at BPVAHCS.
IAF, Tab 7 at 22, 24.
¶4 On Janua ry 8, 2017, the appellant emailed the Assistant Secretary for
Operations , Security, and Preparedness, other agency officials , and third parties ,
alleging that he was unable to apply for the Transportation Assistant position
because he was prohibited from contacting the Selective Placement Coordinator.
IAF, Tab 1 at 12. He did not request information regarding how to apply and did
not send his em ail to any of the individuals or points of contact listed on the
agency’s December 9, 2016 No Engagement letter. Id. He subsequently filed a
complaint with the Department of Labor (DOL) on January 9, 2017, asserting that
the agency had banned him for lif e from applying for all jobs at BPVAHCS. Id.
at 11, 22-24. DOL informed him that it could not investigate his complaint until
he applied for a position. Id. at 3, 11. According to the appellant, he spoke to a
DOL investigator who advised him to contact the agency for information about
how to apply. Id. at 3.
¶5 On the morning of January 12, 2017, the appellant emailed the BPVAHCS
Selective Placement Coordinator to obtain information on how to apply for the
vacant Transportation Assistant position pursua nt to the Schedule A hiring
authority or as a disabled veteran . Id. at 3, 12. H e alleged, and the agency has
not disputed, that he received no response before the vacancy closed the next day.
Id. at 3. He copied the DOL investigator in his email of Jan uary 12, 2017, which
was the same date the investigator issued a file closure letter and mailed it to the
appellant. IAF, Tab 7 at 19 -20. In the file closure letter, DOL stated that the
appellant was required to apply for a position before it could inves tigate his case.
Id. at 19.
4
¶6 The appellant filed this appeal, arguing that DOL should have investigated
his VEOA complaint because the agency barred him from receiving information
from its Selective Placement Coordinator on how to apply for special employment
considerations based on his status as a disabled veteran or under Schedule A.
IAF, Tab 1 at 3. The administrative judge issued an order informing the appellant
of his burden of proving jurisdiction over a VEOA claim. IAF, Tab 3. The
appellant responded by submitting evidence and argument that he exha usted his
remedy before DOL and otherwise made nonfrivolous allegation s that met his
burden of proving jurisdiction under VEOA. IAF, Tab 7. The administrative
judge issued an initial decision that dismissed the appeal for lack of jurisdiction
finding tha t the appellant did not prove that he exhausted with DOL. IAF, Tab 8,
Initial Decision ( ID) at 4.
¶7 The appellant has filed a petition for review of the initial decision. Petition
for Review (PFR) File, Tab 1. The agency has filed a response in oppositi on to
his petition. PFR File, Tab 3.
DISCUSSION OF ARGUME NTS ON REVIEW
¶8 Here, the administrative judge found that the appellant did not satisfy the
exhaustion requirement because he failed to inform DOL that, prior to DOL
issuing its closure letter, he app lied or attempted to apply for the Transportation
Assistant position. ID at 4 . The administrative judge did not consider whether
the appellant otherwise established Board jurisdiction over his VEOA claim. ID .
For the reasons discussed below, we disagre e with the administrative judge’s
finding that the appellant failed to exhaust with DOL but find that the Board has
no jurisdiction over this appeal because the appellant did not make a nonfrivolous
allegation that the agency denied him a right to compete for the Transportation
Assistant position .
5
The Board has no jurisdiction over the appellant’s claim that the agency denied
his right to compete under 5 U.S.C. § 3304 (f)(1).
¶9 The ap pellant argues that the agency denied him his right to compete for the
Transportation Assistant vacancy because the agency was prohibited by its No
Engagement order from responding to his inquiries regarding how to apply . PFR
File, Tab 1 at 5 , 7-8; IAF, Tab 1 at 26-29. VEOA provides that :
Preference eligibles or veterans who have been separated from the
armed forces under honorable conditions after 3 years or more of
active service may not be denied the opportunity to compete for
vacant positions for which the agency making the announcement will
accept applications from individuals outside its own workforce under
merit promotion procedures.
5 U.S.C. § 3304 (f)(1); Montgomery v . Department of Health & Human Services ,
123 M.S.P.R. 216 , ¶ 4 (2016). Affected individuals may seek administrative
redress for a violation of their rights under 5 U.S.C. § 3304 (f)(1) by filing a
complaint with the Secretary of Labor and, after exhaustion of that process, filing
a timely appeal with the Board. Montgomery , 123 M.S.P.R. 216 , ¶ 4.
¶10 To meet VEOA’s requirement that he exhaust his remedy with DOL, the
appellant must establish that: (1) he filed a complaint with the Secretary of
Labor; and (2) the Secretary of Labor was unable to resolve the complaint within
60 days or has issued a written notification that the Secretary’s efforts have not
resulted in resolution of the complaint. Alegre v. Depart ment of the Navy ,
118 M.S.P.R. 424 , ¶ 12 (2012). We find that t he record reflects that the appellant
has exhausted his remedy before DOL regarding his claim. The appellant filed a
complaint with DOL on January 9, 2017. IAF, Tab 1 at 21 -23; Tab 7 at 19. On
the morning of January 12, 2017 , the appellant emailed the agency and the
investigator assigned to his DOL complaint stating that he wanted to apply for a
Transportation Assistant vacancy under Schedule A or as a veteran with a
30% service -connected disability . IAF, Tab 7 at 20. On the same day that the
appellant sent that email, the DOL investigator issued a letter notifying the
appellant that DOL had closed his case, effective January 12, 2017 , without
6
resolution. Id. at 19. We find this is sufficient proof that the appellant exhausted
his remedy with DOL concerning his claims on appeal.
¶11 To establish Board jurisdiction ove r a “right to compete” appeal under
5 U.S.C. § 3330a (a)(1)(B) , in addition to showing that he exhausted his remedy
with DOL , the appellant must make nonfrivolous allegations that : (1) he is a
veteran within the meaning of 5 U.S.C. § 3304 (f)(1) ; (2) the action at issue took
place on or after the enactment date of the Veterans’ Benefits Improvement Act
of 2004 ; and ( 3) the agency , in violation of 5 U.S.C. § 3304 (f)(1), denied him the
opportunity to compete under merit promotion procedures for a vacant position
for which the agency accepted applications from individuals out side its own
workforce. Becker v. Department of Veterans Affairs , 115 M.S.P.R. 409 , ¶ 5
(2010 ). A nonfrivolous allegation is an assertion that, if proven, could establish
the matter at issue. 5 C.F.R. § 1201.4 (s).
¶12 We find that the appellant made a nonfrivolous allegation that he met the
requirements for applying for the position (1) as a VEOA eligible candidate , (2) a
disabled veteran, and (3) under Schedule A. 5 U.S.C. § 3304 (f)(1); IAF, Tab 1
at 2, Tab 7 at 4 , 21 -22. Moreover, t he record reflects that the vacancy
announcement for the Transportation Assistant position at issue here was issued
in 2017, after the enactment of the Veterans Benefits Improvement Act of 2004.
IAF, Tab 7 at 21. Further, although neither party has addressed whether the
positi on was open to externa l candidates, we find sufficient evidence to satisfy
this requirement for purposes of the appellant’s jurisdictional burden. See
Department of Veterans Affairs, Status Candidates and Other Candidate
Definitions for Permanent Position s,
https://www.va.gov/OHRM/JobListings/Status -Candidate -and-Other -Candidate -
Definitions.pdf (last visited Jan. 30, 2023 ) (explaining the agency’s various hiring
authorities) ; 5 C.F.R. § 1201.64 (permitting the Board to take official notice of
matters that can be verified). For the reasons discussed below, however, we find
7
that the appellant has not made a nonfrivolous allegation that the agency denied
him the opportunity to compete.
¶13 In response to the show cause order on jurisdiction, the appellant alleged
that the agency denied him his right to compete because he emailed the S elective
Placement Coordinator “on January 12, 201 [7] @ 9:43 AM ,” asking her how to
apply for the Transportation Assistant position , but she did not reply. IAF, Tab 7
at 5, 20. He attributes her failure to respond to his request to the December 9,
2016 le tter he received from the agency placing him in a “No Engagement” status
and informing him that his “ inquiries or communications with BPVAHCS [would]
not be answered or addres sed.” PFR File, Tab 1 at 5 -6; IAF, Tab 7 at 5, 17.
¶14 We find that the appellant’ s assertions, if proven, could not establish that
the agency denied him his right to compete for the following reason s. First, the
vacancy announcement did not require that candidates contact the Selective
Placement Coordinator if they were seeking consideration as a VEOA eligible.
IAF, Tab 7 at 21 -22. The appellant has identified himself as preference -eligible
veteran with a 60% service -connected disability , which would have qualifi ed him
to apply under this category. IAF File, Tab 1 at 2 -3; 5 U.S.C. § 2108 ; see
https://w ww.va.gov/OHRM/JobListings/Status -Candidate -and-Other -Candidate -
Definitions.pdf (explaining that VEOA candidates are preference -eligible
veterans who separated from the armed forces under honorable conditions after
approximately 3 years of active service) . The appellant has not explained why he
did not apply for the position on this basis.
¶15 As to the appellant’s possible qualification as a disabled veteran or under
Schedule A, he sent his January 12, 2017 email to the Selective Placement
Coordinator the d ay before the vacanc y announcement closed .2 We decline to
find that any failure to respond to the appellant only one day before the
2 The appellant’s January 8, 2017 email did not seek any guidance regarding how to
apply for the position. IAF, Tab 7 at 20. Therefore, any failure by the agency to
respond did not deny the appella nt a right to compete for the position.
8
announcement closed denied him his right to compete. Further , the appellant had
other ways to contact the agency for instructions on how to apply for the position,
without violating the terms of the agency’s December 9, 2016 letter and his “No
Engagement” status. In the letter, the agency directed the appellant to use a
specific email address and telephone number to con tact the agency if he had any
questions. IAF, Tab 7 at 18. The appellant does not allege that he attempted to
contact this resource to determine how to apply for the position at issue.
¶16 Under these circumstances, we find that the appellant has not made a
nonfrivolous allegation of facts that, if proven, would establish that the agency
denied him his right to compete .3 Accordingly , we deny the petition for review
and affirm the initial decision , as modified .
NOTICE OF APPEAL RIG HTS4
The initial decision, as supplemented by this Final Order, constitutes the
Board’s final decision in this matter. 5 C.F.R. § 1201.113 . You may obtain
review of this final decision. 5 U.S.C. § 7703 (a)(1). By statute, the nature of
your claims determines the time limit for seeking such review and the appropriate
forum with which to file. 5 U.S.C. § 7703 (b). Although we offer the following
summary of available appeal rights, the Merit Systems Protection Board does not
provide legal advice on which option is most appropriate for your situation and
the rights described below do not represent a statement of how courts will rule
3 On review, t he appellant submitted documents pertaining to the agency’s
determination that he should be in a “No Engagement” status and relating to an equal
employment opportunity complaint he filed against the age ncy. PFR File, Tab 1
at 9-21. We decline to consider this information because it is not material to the
dispositive jurisdictional question. See Russo v. Veterans Administration , 3 M.S.P.R.
345, 349 (1980) (finding 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 f rom that of the initial decisio n).
4 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.
9
regarding which cases fall within their jurisdiction. If you wish to seek review of
this final decision, you should immediately review the law applicable to your
claims and carefully follow all filing time limits and req uirements. Failure to file
within the applicable time limit may result in the dismissal of your case by your
chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Boa rd order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is t he court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Fe deral Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
10
Board neither endorses the services provided by any att orney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is ap pealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriat e U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. ____ , 137 S. Ct. 1975 (2017). If you have a
representative in this case, and your representative receives this decisio n before
you do, then you must file with the district court no later than 30 calendar days
after your representative receives this decision. If the action involves a claim of
discrimination based on race, color, religion , sex, national origin, or a disabl ing
condition, you may be entitled to representation by a court -appointed lawyer and
to waiver of any requirement of prepayment of fees, costs, or other security. See
42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the
EEOC’s Office 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
11
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. ma il, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, i t must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option a pplies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practic es described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.5 The court of app eals must receive your petition for
5 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, pe rmanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Cir cuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195,
132 Stat. 1510.
12
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of App eals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals fo r the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Prote ction Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD:
Washington, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board | HOOKER_CARLTON_E_AT_3330_17_0267_I_1_FINAL_ORDER_1997702.pdf | 2023-01-30 | null | AT-3330 | NP |
3,684 | https://www.mspb.gov/decisions/nonprecedential/EOFF_JENNIFER_D_DE_0752_17_0015_I_1_FINAL_ORDER_1997714.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
JENNIFER D. EOFF,
Appellant,
v.
DEPARTMENT OF THE IN TERIOR,
Agency.
DOCKET NUMBER
DE-0752 -17-0015 -I-1
DATE: January 30, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL1
Jennifer D. Eoff , Lakewood, Colorado, pro se.
Amy Duin , Esquire, Lakewood, Colorado, 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.
FINAL ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
sustained he r removal. 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
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). We
FORWARD the appellant ’s hostile work environment claim to the Denver Field
Office for adjudication as an individual right of action (IRA) appeal.
BACKGROUND
¶2 The agency removed the appellant from her Research Geolog ist position for
failing to follow an instruction to limit her interaction with her former supervisor .
Initial Appeal File (IAF), Tab 1 at 9, 15-21; Tab 8 at 22. Specifically, the agency
charged the appellant with violating the Associate Director ’s instruction to limit
her interaction with the former supervisor to issues required for her work on the
Reserve Growth Task in the National and Glo bal Assessment (NAGA) project and
reassigning the appellant to another supervisor . IAF, Tab 11 at 9, 29. The
agency specified that the appellant intentionally vi olated the instruction on
April 28, 2016, when she sent an email to her former supervisor about a letter of
reprimand that she issued to the appellant in September 2014, concerning matters
unrelated to the NAGA project. IAF, Tab 1 at 9-10.
¶3 The agency advised the appellant in the proposal notice that, in
recommending her removal , it considered as an aggravating factor the fact that
3
she had been counseled for inappropriately contacting her former supervisor on at
least six other occasions. Id. at 10. The agency also advised the appellant that it
considered the following prior disciplinary action s as aggravating factors : (1) her
September 2014 letter of reprimand for unprofessional be havior; and (2) her
7-day suspension in 2015 for unprofessional behavior and failure to follow
instructions. Id. The agency further advised the appellant that it considered the
following mitigating factors: (1) her 5 years of Federal service; (2) her su perior
performance rating; (3) her medi cal issues ; and (4) any harassment, provocation,
personality conflicts, or other circumstances that could have contributed to her
offense. Id. at 10-12. The deciding official concluded that the removal penalty
was reasonable because the mitigatin g factors were outweighed by the appellant’s
serious misc onduct and she had no rehabilitative potentia l. Id. at 18-20.
¶4 The appellant filed a timely Board appeal of her removal and raised an
affirmative defense of whistleblower retaliation.2 IAF, Tab 1 at 3, 5. She alleged
that the agency removed her in retaliation for disclosing to management her
form er supervisor ’s “misconduct, mismanage ment, and abuses of authority.” Id.
at 5. She also referred to “ continuing hostile conditions” and a complaint that she
filed with the Office of Special Counsel (OSC) . Id. The appellant included with
her appeal a copy of a whistleblowing complaint that she filed with OSC before
her removal and OSC’s letter informing her that OSC had terminated its
investigation of her complaint. Id. at 23-62, 132 -33.
¶5 The administrative judge issued an order setting forth the proof
requirements to establish Board jurisdiction over an IRA appeal. IAF, Tab 3.
After holding a teleconference with the parties, however, the administrative
judge issued an order stating that he found it appropriate to treat the appellant ’s
2 The appella nt indicated on her appeal form that she was also appealing the denial o f a
within -grade increase . IAF, Tab 1 at 3. The administrative judge found that the
appellant withdrew this cl aim, and the appellant does not dispute this finding on review.
IAF, Tab 5 at 1.
4
case as a chapter 75 removal appeal, instead of an IRA appeal, because she did
not make an informed election to challenge her removal at OSC.3 IAF, Tab 5
at 1-2. The administrative judge summarized the appellant ’s claims on appeal as
alleging that the agency ’s rem oval action was retaliation for the following
protected disclosures and activity: (1) her April 15, 2015 email to her former
supervisor and other agency officials , purportedly disclosing her former
supervisor’s misconduct, gross mismanagement, and abuse of authority4; (2) her
October 2014 grieva nce about a letter of reprimand; and (3) her June 2015
grievance about a suspension. Id. at 3. He also informed the appellant of the
burden of proof for establish ing an affirmative defe nse of retaliation in a
chapter 75 action. Id. at 2-4.
¶6 Additionally, t he administrative judge agreed to consider whether the
alleged retal iatory actions mentioned in OSC ’s closure letter showed a pattern of
retaliation that culminated in the appellant ’s removal . IAF, Tab 5 at 2 n.3. The
administrative jud ge identified those matters as (a) a letter of reprimand, (b) the
denial of an award, (c) a suspension, and (d) a reassignment. Id. He considered
those matters relevant because, with the possible exception of the award de nial,
the agency mentioned them in the proposal to remove the appellant. Id. The
administrative judge explained that he could not order corrective action for those
matters in the context of this chapter 75 appeal. Id. He also advised the parties
to ens ure that any additions, corrections, or objections to his order and summary
be received by October 12, 2016, or they wo uld be deemed waived. IAF, Tab 5
at 1 n.2. Neither party objected or proposed any additions or corrections to the
order and summary before the filing deadline.
3 The administ rative judge made this finding —although OSC’s closure letter mentioned
the appellant’s removal —because the appellant stated that she did not inform OSC of
the agency’s removal decision or ask OSC to add it to her claim . IAF, Tab 5 at 2, Tab 7
at 3, 9.
4 IAF, Tab 1 at 5, Tab 7 at 6.
5
¶7 Both parties submitted voluminous documentation on appeal. IAF,
Tabs 7-15, 17 -30. After holding a prehearing conference, the administrative
judge issued an order and summary modifying the list of issues that he would
consider . IAF, Tab 31. He summarized the appellant ’s affirmative defense as
alleging that she was removed in reprisal for her April 15, 2015 email and her
October 2014 grievance about a letter of reprimand. Id. at 1. He indicated that
the appellant had withdrawn her prior allegation that her removal was in reprisal
for her June 2015 grievance of a suspension. Id. at 1-2. The administrative judge
also reaffirmed that he would consider the appellant ’s additional evi dence and
argument that her alleged retaliatory removal was the final event in a chai n of
retaliation consisting of her being suspended, reassigned, and denied an award .5
Id. at 2. The administrative judge advised the parties that any additions,
correcti ons, or objections to his prehearing conference order and summary must
be received by November 26, 2016, or be deemed waived. Id. at 1 n.1. Neither
party objected or made corrections to the prehearing conference order
and summary.
¶8 After holding a heari ng, the administrative judge sustained the charge based
on the stipulated facts and affirmed the agency ’s removal action. IAF, Tab 47,
Initial Decision (ID) at 1, 5, 16. In reaching his decision, the administrative
judge found that the Associate Director ’s April 27, 2015 instruction to the
appellant was proper and she did not dispute receiving the instruction or her
failure to follow it. ID at 5. The administrative judge also found that the
appellant failed to prove her affirmative defense s of whistleblower re prisal and
retaliation for filing a grievance . ID at 6-13. He found no evidence of retaliation
in the actions that preceded the appellant’s removal, including her reprimand,
5 The administrative judge indicated that the appellant had withdrawn her claim that the
chain of retalia tion began with a September 2014 letter of reprimand because it
preceded her protected activity. IAF, Tab 31 at 2.
6
reassignment, and instructi on to limit her contact with her former supervisor .6 ID
at 10. He also found that the agency proved a nexus between the charge and the
efficiency of the service, and the penalty of removal was reasonable. ID at 6, 16.
¶9 The appellant has filed a petition for review arguing that the adm inistrative
judge erred in denying her affirmative defense of whistleblower reprisal and
sustaining the removal penalty. Petition for Review (PFR) File, Tab 1. The
agency has responded in opposition to her p etition. PFR File, Tab 3.
DISCUSSION OF ARGUMENTS ON REVIEW7
¶10 The appellant does not dispute the administrative judge ’s finding that the
agency proved the charge as specified. ID at 5. We discern no basis for
disturbing that finding, which is supported by the st ipulated facts. IAF, Tab 22
at 8-10, Tab 30 at 13-16; see 5 C.F.R. § 1201.63 (indicating that a stipulation will
satisfy a party’s burden of proving the fact alleged); 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) .
¶11 On review, the appellant argues that the administrative judge erred in
finding that she failed to prove her affirmative defense of reprisal. PFR File,
Tab 1. She disputes his finding that she made no protected disclosures in her
April 14-15, 2015 emails. Id. at 25-26, 31, 94 -97. The appell ant submits
additional evidence on review and asks the Board to reconvene the hearing
because the agency did not subpoena one of her approved witnesses to testify at
the hearing. Id. at 15-18. She argues that the administrative judge failed to
address all of her alleged disclosures and retaliatory actions included in the
approximately 1,500 pages of evidence that she submitted on appeal . Id. at 18,
6 The administrative judge further noted that the appellant submitted no evidence or
argument about her claim that the retaliatory nature of her removal was evidenced by
the agency’s denying her an award. ID at 7 n.3.
7 We have reviewed the relevant legi slation enacted during the pendency of this appeal
and have concluded that it does not affect the outcome of the appeal.
7
24-27. She contends that the administrative judge failed to address this evidenc e
documenting the agency ’s “long -term harassment” and her “two -year history of
conflict with her former management team.” Id. at 18. She also challenges the
administrative judge ’s penalty analysis, arguing that he failed to consider her
health condition as a mitigating factor . Id. at 19-20. For the reasons discussed
below, we affirm the administrative judge ’s finding that the appellant failed to
prove her affirmative defense of retaliation and the removal penalty
was reasonable.
The appellant failed t o prove her affirmative defense of re prisal for
whistleblowing pursuant to 5 U.S.C. § 2302 (b)(8).
¶12 On review, the appellant disputes the administrative judge ’s finding that the
disclosures she mad e in her April 14-15, 2015 emails8 to her former supervisor
and others agency officials, about her former supervisor’s requ est for a meeting to
discuss the appellant’s alleged performance and conduct issues, were not
protected under 5 U.S.C. § 2302 (b)(8). PFR File, Tab 1 at 31, 68 -97; ID at 11,
13. The administrative judge found that the appellant failed to prove by
preponderant evidence that she made a protected disclosure under 5 U.S.C.
§ 2302 (b)(8) because she failed to explain in detail what wrongdoing she
purportedly disclosed. ID at 11. The administrative judge also reviewed the
content of the appellant ’s April 2015 emails and explained his reasons for finding
that nothing therein demonstrated that she disclosed information protected by
5 U.S.C. § 2302 (b)(8). ID at 11-13. For the reasons discussed below, we agree
with the administrative judge ’s well -reasoned finding that the appellant failed to
meet her burden of proof on her reprisal claim.
¶13 To prove an affirmative defense of whistleblower reprisal in a chapter 75
appeal, an appellant must prove by prepond erant evidence that she made a
protected disclosure under 5 U.S.C. § 2302 (b)(8), and that her protected
8 In the initial decision, the administrative judge refers to t he appellant’s April 13-15,
2015 emails, collectively, as the April 15, 2015 email. ID at 11; IAF, Tab 11 at 34-73.
8
disclosure was a contributing factor in the personnel action at issue. See
Shannon v. Depart ment of Veterans Affairs , 121 M.S.P.R. 221, ¶ 21 (2014). A
protected disclosure is a disclosure of information that the appellant reasonably
believes evidences a violation of any law, rule, or regulation, gross
mismanagement, a gross waste of funds, an abuse of authority, or a substantial
and specific danger to public health or safety. 5 U.S.C. § 2302 (b)(8); Shannon ,
121 M.S.P.R. 221, ¶ 22. The test for whether the appellant had a reasonable
belief that her disclosure evidenced wrongdoing as set forth in 5 U.S.C.
§ 2302 (b)(8)(A) is an objective one. Shannon , 121 M.S.P.R. 221, ¶ 22. A
reasonable belief exists if a disinterested observer with knowledge of the essential
facts known to and readily ascertainable by the appellant could reasonably
conclude that the actions e videnced one of the categories of wrongdoing listed in
5 U.S.C. § 2302 (b)(8)(A) . Id.
¶14 On review, the appellant provides a chart describing her alleged disc losures
in her April 14-15, 2015 emails. PFR File, Tab 1 at 94-97. She explains that she
discl osed the following information: (1) her confusion about her former
supervisor’s request for a meeting to discuss her performance and conduct, which
she describes as unfair and an unexpected a ssault; (2) her decision to contest the
performance and c onduct issues identified by her former supervisor ; and (3) her
reasons for disregarding her former supervisor’s instruction to limit the recipients
of their email exchange about her performance issue s. Id. The appellant
contends that this information constituted protected disclosures of harassment and
a hostile work environment because her former supervisor’s request for a meeting
to discuss the appellant ’s performance issues violated an ethical dut y to treat
employees with respect and provide a supportive work environment. Id. at 94,
97. She argues that she made protected disclosures of mismanagement,
supervisory misconduct, and abuses of a uthority, when she contested her former
supervisor’s purpo rtedly false description of her performance and conduct issues.
Id. at 25-26, 94-96. She also asserts that she made a protected disclosure that her
9
former supervisor was confused about her dual “supervisory and project
management responsibilities,” in em ails explaining why she disregarded the
instruction to limit the recipients of her performance related emails. Id. at 96.
¶15 To meet her burden of proof, the appellant ’s disclosures of wrongdoing
must be specific and detailed. See Linder v. Department of Justice , 122 M.S.P.R.
14, ¶ 14 (2014). Having considered the appellant ’s argument and reviewed the
contents of her emails, w e discern no reason to disturb the administrative judge ’s
well-reasoned finding that the appellant ’s vague allegations of wrongdoing in her
April 2015 em ails do not meet this standard. ID at 11-13; see Crosby v. U.S.
Postal Service , 74 M.S.P.R. 98, 105 -06 (1997) (finding no reason to disturb the
administrative jud ge’s findings when she considered the evidence as a whole,
drew appropriate references, and made reasoned conclusions); Broughton v.
Department of Health & Human Services , 33 M.S.P.R. 357, 359 (1987) (same).
The appellant ’s emails contesting the description of her performance and conduct
issues and expressing disagreement with her former supervisor’s management
decisions did not convey specific and detailed information that a disinterested
observer with knowledge of the essential facts known to and readily ascertainable
by the appellant could reasonably conclude evidenced a protected disclosure of
any wrongdoing listed in 5 U.S.C. § 2302 (b)(8)(A). See Francis v. Department of
the Air Force , 120 M.S.P.R. 138, ¶ 12 (20 13) (finding that the appellant’ s
nonspecific and poorly explained disclosure, expressing mere disagreement over
job-related issues, was insufficient to constitute a protected disclosure of any
wron gdoing in 5 U.S.C. § 2302 (b)(8)(A)); see also Czarkowski v. Department of
the Navy , 87 M.S.P.R. 107, ¶ 12 (2000) (finding that a disclosure questioning
management decisions that a re merely debatable or just simple negligence or
wrongdoing, with no element of blatancy, is not protected as a disclosure of
gross mismanagement).
10
The appellant failed to prove her affirmative defense of reprisal for exercising her
grievance right under 5 U.S.C. § 2302 (b)(9) (A)(ii).
¶16 On review, the appellant argues that her removal was “definitely”
retaliation for her October 2014 grievance about her September 2014 letter of
reprimand but identifies nothing in the record t o suggest that the agency had a
strong motive to retaliate for this protected activity.9 PFR File, Tab 1 at 28. She
further argues that the administrative judge placed too much emphasis on her
2014 grievance, to the detr iment of her other alleged activities and disclosures, in
finding that she failed to prove retaliation. Id. For the reasons discussed below,
we agree with the administrative judge ’s finding that the appellant failed to meet
her burden of proving reprisal for this protected activity.
¶17 Because the appellant did not seek to remedy whistleblowing reprisal in her
October 2014 grievance, the administrative judge properly found that her claim of
retaliation for exercising her grievance rights is covered under 5 U.S.C.
§ 2302 (b)(9) (A)(ii). ID at 8; IAF, Tab 32 at 59-62; IAF, Tab 14 at 78-140; see
Mattison v. Department of Veterans Affairs , 123 M.S.P.R. 492, ¶ 8 (2016) . To
establish an affirmative defense of retaliatio n for activit y protecte d unde r 5 U.S.C.
§ 2302 (b)(9) (A)(ii), the appellant is required to show that: (1) she engage d in
protected activity ; (2) the accuse d officia ls knew of the activity ; (3) the advers e
actio n under revie w coul d have been retaliatio n under the circumstances ; and
(4) there was a genuin e nexu s betwee n the allege d retaliatio n and the advers e
action . See Pridgen v. Office of Management & Budget , 2022 MSPB 31 , ¶ 32;
Warren v. Department of the Army , 804 F.2d 654 , 656 -58 (Fed. Cir. 1986)10; IAF,
9 The appellant also contends, for the first time on review, that the offi cial who decided
her October 2014 grievance violated departmental directives requiring him to consider
all relevant factors to ensure “equitable and effective resolution of [the] conflict.” PFR
File, Tab 1 at 25. We have not considered this argument because the appellant has not
shown that it is based on new and material evidence not previously available despite her
due diligence. See 5 C.F.R. § 1201.115 (d).
10 Historically, the Board has been bound by the precedent of the U.S. Court of Appeals
for the Federal Circuit on these types of whistleblower issues. However, pursuant to
11
Tab 5 at 4. The administrative judge found that the appellant failed to meet her
burden of proving this reprisal claim because she failed to prove a nexus between
her protected grievance activity and her removal, and we agree. ID at 8-10.
¶18 As explained in the initial decision, the administrative judge found that the
appellant ’s removal could have been retaliatory because the accused officials
knew about the protected grievance activity.11 ID at 9 & n.4. Upon weighing the
evidence, however, the administrative judge concluded that the agency ’s nominal
motive to retaliate for the appellant’s grievance activity in October 2014 did not
outweigh the agency ’s legitimat e reas on to remove her in August 2016 for her
demonstrated unwillingness to follow instructions. ID at 10. In reaching his
decision, the administrative judge found highly credible the proposing and
deciding officials ’ testimony explicitly denying retaliation a nd providing
compelling non retaliatory reason s for removing the appellant. Id. The
administrative judge found that the officials involved in the removal action had
little motive to retaliate against the appellant for her having grieved a letter of
reprimand that did not involv e them and occurred 1 ½ years before her removal.
Id. The administrative judge also found no evidence of retaliation in the actions
that preceded the removal action, including the appellant ’s reprimand,
reassignme nt, and instruction limiting her interaction her former supervisor . Id.
We have considered the appellant ’s arguments on review challenging the
administrative judge ’s weighing of evidence , and we conclude that the
the All Circuit Review Act , Pub. L. No. 115-195, 132 Stat. 1510 , appellants may file
petitions for judicial review of Board decisions on whistleblower reprisal claims 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 such claims before any appropriate court of appeal.
11 The administrative judg e found that the following accused officials knew about the
appella nt’s October 2014 grievance: (1) the proposing and deciding officials in her
removal action; (2) her former supervisor; and (3) the Associate Director who took
three actions against the ap pellant on April 27, 2015 , when he (i) proposed her
suspension, (ii) reassigned her to a new supervisor, and (iii) issued the instruction to
limit her interaction with her former supervisor . ID at 9.
12
administrative judge ’s demeanor -based cre dibility findings de serve deference
from the Board. See Purifoy v. Department of Veterans Affairs , 838 F.3d 1367 ,
1372 -73 (Fed. Cir. 2016).
The appellant ’s remaining arguments present no basis for disturbing the
initial decision .
¶19 Next, t he appellant argues that the administrative judge failed to consider
all of her disclosures and protected activity that contributed to her removal . PFR
File, Tab 1 at 5, 18, 24. For example, she contends that the administrative judge
also should have considered the following evidence : (1) her disclosures in
2014 -2015 expressing her concerns about her former supervisor ; (2) her 2015
grievance activity; (3) her requests for reconsideration of her 2014 performance
ratings and 2015 suspension; and (4 ) her disclosures to OSC, the Board, the
Office of Inspector General , and equal employment opportunity personnel . Id.
at 24-26. For the reasons discussed below, we find that the appellant ’s argument
provides no basis for disturbing the initial decision.
¶20 After holding a prehearing conference, the administrative judge issued an
order summarizing the appellant ’s affirmative defense as alleging that she was
removed in retali ation for her April 15, 2015 email disclosures and her
October 2014 grievance about her September 2014 letter of reprimand. IAF,
Tab 31 at 1-2. He indicated that the appellant had withdrawn her prior allegation
that her removal was in reprisal for a June 2015 grievance that she filed about a
suspension. Id. The administrative judge also agreed to consider the appellant ’s
evidence and argument that her removal was the final event in a chain of
retaliation, which included an award denial , a suspensi on, and a reassignment. Id.
at 2; IAF, Tab 5 at 2 n.3 . The administrative judge warned the appellant that any
additions, correc tions, or objections to his order and summary must be received
by November 26, 2016, or be deemed waived . IAF, Tab 31 at 1 n.1. The
appellant ’s failure to object and make timely additions or corrections to the
13
administrative judge ’s order on appeal precludes her from doing so on review.12
See Miller v. U.S. Postal Service , 117 M.S.P.R. 557, ¶ 7 (2012).
¶21 The appellant also appears to argue that she was denied the opportunity to
prepare her case on appeal. She argues that the agency ’s failure to provide the
admin istrative judge with “mandatory” documents adversely affected the outcome
of her appeal.13 PFR File, Tab 1 at 15. She alleges that the agency ’s delayed
response to her discovery request effectively prevented her from submitting “all
critical evid ence” before the record closed on appeal, and she submits additional
documents on review. Id. at 16, 30 -99. She also asks the Board to reconvene the
hearing so that the agency can subpoena a crucial witness approved to testify on
her behalf. Id. at 17-18. She contends t hat she was unable to reach the witness,
who was not an agency employee when the hearing occurred, and that the agency
was obligated to subpoena her. Id. For the reasons discussed below, we find that
the appellant was not denied the opp ortunity to prepare her case on appeal.
¶22 Although the appellant asserts that she was not instructed on how to deal
with these matters, we note that the administrative judge issued orders informing
her of the Board ’s discovery and subpoena procedures under 5 C.F.R.
§§ 1201.71 -1201.85. Id. at 16; IAF, Tab 2 at 3-4, Tab 6 at 2-3. In the event one
12 The appellant also argues on review that the deciding official in her October 2014
grievance about her September 2014 letter of reprimand, violated an agency directive
requiring him to consider all relevant factors in disciplinary actions because he failed to
investigate her concerns about her superv isor. She contends that the administrative
judge should have considered this issue in her removal appeal. PFR File, Tab 1 at 25.
We disagree because the appellant does not explain how the alleged procedural defect
in the agency’s grievance investigation proves that there is a nexus between her
protected grievance activity and her removal. See Warren , 804 F.2d at 656-58.
13 The appellant asserts that the agency should have made the “mandatory files”
available to the administrative judge because they “be came part of the official record”
when she submitted them to the deciding officials in her removal action, the grievance
of her suspension, and her request for reconsideration. PFR File, Tab 1 at 15. On
review, the agency contends that it provided the ap pellant with all responsive discovery
by November 23, 2016, before the record closed on December 6, 2016. PFR File, Tab 3
at 9-10.
14
party refuses to voluntarily make available pertinent documents or witnesses i n a
Board proceeding, the Board ’s rules provide , after the other party files a motion
to compel, for issuing orders to compel that documents or other discovery be
produced, and for issuing subpoenas. Kinsey v. U.S. Postal Service , 12 M.S.P.R.
503, 505 -06 (1982) ; see 5 C.F.R. § 1201.73 -75, .81 -85. The appellant does not
contend that she filed a motion to compel the documents that she sought from the
agency, and she has not shown that the evidence and argument that she submits
on review is new and material evidence, which was not available despite her due
diligence before the record closed on appeal .14 See 5 C.F.R. § 1201.115 (d).
¶23 Moreover, contrary to the appellant ’s argument on review, the agency
was not obligated to provide for her witness ’s appearanc e because the witness
was not an agency employee when the hearing occurred. PFR File, Tab 1 at 17.
The agency was obligated only to provide for the appearance of agency
employees who were approved witnesses. IAF, Tab 6 at 2-3; see 5 C.F.R.
§ 1201.33 (a). The administrative judge offered to assist the appellant in
arranging for the appearance of any approved witne sses not employed by the
agency by ordering the agenc y to make such witnesses available or by issuing a
subpoena, but the appellant di d not request his assistance. IAF, Tab 6 at 2-3.
Because the appellant failed to take advantage of the procedures available to her
prior to the close of the record, she cann ot now claim injury . Perry v. U.S. Postal
Service , 46 M.S.P.R. 425, 431 (1990), aff’d, 937 F.2d 623 (Fed. Cir.
1991) (Table) .
14 On review, t he appellant submits emails from 2013 -2016, all of which predate the
close of the record on appeal. PFR Fil e, Tab 1 at 32-93. The appellant provides a chart
with commentary about some of those emails and her alleged protected disclosures
therein. Id. at 94-98. The appellant also asserts that she was unable to upload certain
evidence before the filing deadline because the file was too large but contends that
evidence was “already part of the official record,” which the administrative judge
should have con sidered. Id. at 15. But t he appellant has not shown that the evidence
and argument she submit s on review is new and material evidence that was not
available, despite her due diligence, before the record closed on appeal. See 5 C.F.R.
§ 1201.115 (d).
15
¶24 The appellant also argues that the administrative judge should have granted
her an extension of time to file her closing brief because she did not receive
notice between December 4 and 13, 2016, to “indicate that the audio recordings
from the Hearing (December 5-6, 2016) were available”; she further asserts that
she learned of the availability of the recordings on December 19, 2016, six days
after she filed her brief . PFR File, Tab 1 at 16-17. The appellant further
contends that the Board ’s failure to make the record of the hearing available
sooner, and her lack of funds to purchase the writ ten transcript, barred her fr om
access to important evidence before she filed her closing brief. Id. at 17. The
appellant also argues that she had no opportunity, before the record closed on
appeal, to rebut false information that the agency included in its closing brief .
PFR File, Tab 1 at 6.
¶25 We are not persuaded by the appellant’s arguments. First, the Board’s
regulations provide notice to the parties that “[c]opies of recordings or existing
transcripts will be provided upon request to parties free of charge.” 5 C.F.R.
§ 1201.53 . The appellant does not assert that she requested from the regional
office a copy of the hearing recording prior to submitting her closing brief.
Second, the record does not show that the appellant requested an extension of
time to file her closing argument or for the record to remain open to rebut
argument submitted by the agenc y just before the record closed, as permitted by
5 C.F.R. § 1201.59 (c).15 The administrative judge considere d the appellant’s
15 As noted above, the appellant asserts that she received no emails from the Board
regarding the availability of the audio recordings in the e -Appeal Repository between
December 4 and Dece mber 13, 2016, and she states that the format of the audio
recordings is not “universally accessible across different computer operating systems.”
PFR File, Tab 1 at 16 -17. While the Board currently makes hearing audio files
available to the parties thro ugh the e -Appeal Repository in many instances (following
receipt of the audio files from the court reporter), 5 C.F.R. § 1201.53 (c) requires that
parties make a written request for such r ecordings, and in turn a copy of the recording is
provided to the party free of charge. Similarly, to the extent the appellant argues in her
petition that she could not afford to purchase a printed copy of the hearing transcript,
the Board’s regulation pr ovides parties with free copies of hearing recordings or
16
closing brief in reaching his decision. ID at 7 n.3. We therefore find that the
administrative judge afforded the appellant an opportunity to rebut the agency’s
closing argument.16
¶26 Regardless, we have considered the appellant’s lengthy rebuttal to the
agency ’s closing argument, in which she reject s the agency ’s characterization of
her attitude toward management, defend s her character and value to the agency,
reassert s her belief that her performance was underrated, and explain s that her
emails on April 14-15, 2015 , were intended “ to emphasize, among other thing s,
the unfairness and hostility” that she experienced from her former supervisor and
the project chief. PFR File, Tab 1 at 6-14. We find that the appellant’s response
to the agency’s closing argument does not demonstrate error in the
initial decision.
The administrative judge properly found that the agency proved a nexus between
the misconduct and the efficiency of the service , and that the removal penalty
was reasonable.
¶27 The administrative judge found that the agency established a nexus b etween
its decision to discipline the appellant for the sustained charge of failure to follow
instructions and the efficiency of the service. ID at 6. Neither party challenges
this findi ng on review, and we discern no reason to disturb it.
existing transcripts upon written request. 5 C.F.R. § 1201.53 (c) (emphasis added). In
this case, the audio recording is the official record of the hearing as no transcript exists.
See IAF.
16 Moreover, while the appellant alleges that the agency made false statements about her
performance and conduct in its closing argument, she does not contend that the agency
introduced any new evidence in its final submission. Cf. Schucker v. Federal Deposit
Insurance Corporation , 401 F.3d 1347 , 1355 -58 (Fed. Cir. 2005) (finding that it is error
to refuse to permit an appellant to rebut evidence submitted by an agency on the record
closing date in cases decided without a hearing ); Miller v. U.S. Postal Service ,
110 M.S.P.R. 550, ¶¶ 8-9 (2009) (finding it appropriate to consider new evidence
submitted on review by the appellant to rebut the agency’s evidentiary submission ,
concerning an unforeseen dispositive issue, filed at the close of the record in a case
decided without a hearing ).
17
¶28 The administ rative judge also found that the penalty of r emoval was
reasonable. ID at 13-16. In reaching his decision, the administrative judge found
that the deciding official properly considered the relevant factors in Douglas v.
Veterans Administration , 5 M.S.P.R. 280, 305 -06 (1981) . ID at 15-16. On
review, t he appellant argues that the administrative judge failed to consider her
health condition as a mitigating factor. PFR File, Tab 1 at 20. However, t he
administrative judge ’s failure to mention all of the evidence of record does not
mean that he did not consider it in reaching his decision. Marques v. Department
of Health & Human Services , 22 M.S.P.R. 129, 132 (1984), aff’d, 776 F.2d 1062
(Fed. Cir. 198 5) (Table). Moreover, the record reflects that the deciding official
considered the appellant ’s health condition in his Douglas penalty analysis , IAF,
Tab 1 at 12, and the administrative judge found the deciding official’s
consideration of the Douglas factors “thorough. ” ID at 15; see Higgins v.
Department of Veterans Affairs , 955 F.3d 1347 , 1354 -56 (Fed. Cir. 2020)
(acknowledging that although the Board’s analysis of the appellant’s medical
condition was “cursory,” it was still properly considered against the other
relevant Douglas factors when determining the reasonableness of the penalty).
Thus, we discern no error in the administrative judge ’s decision finding that the
removal penalty was reasonable for the appellant ’s proven and repeated failure to
follow the agency ’s instruction . ID at 16; see Lentine v. Department of the
Treasury , 94 M.S.P.R. 676, ¶¶ 2, 12, 15 (2003) (finding that removal was a
reasonable penalty for an employee who intentionally and re peated emailed
another employee despite explicit instructions to stop). Based on the foregoing,
we affirm the initial decision sustaining her removal.
We forward the appellant ’s claim alleging a hostile work environment to the
regional office for adjudication as an IRA appeal.
¶29 The appellant also argues on review t hat the administrative judge should
have considered her claim that she was subjected to a hostile work environment in
reprisal for whistleblowing. PFR File, Tab 1 at 16, 18, 31 ; see IAF, Tab 1 at 5.
18
In support of her argument, she refers to about 1,500 p ages of evidence that she
submitted on appeal, purportedly documenting her “long -term harassment” and
the agency ’s “discriminatory treatment of employees.” PFR File, Tab 1 at 5, 18,
24. She also argues that her misconduct “was provoked” by the “long -term
hostile [work environment].” Id. at 31. Although the administrative judge
did not adjudicate her hostile work environment claim in this chapter 75 removal
appeal , we find no reversible error.
¶30 As explained above, the appellant ’s failure to object to omitting her hostile
work environment claim from the administrative judge ’s orders summarizing the
issues under consideration in this removal appeal precludes her from doing so
now. IAF, Tabs 5, 31; see Miller , 117 M.S.P.R. 557, ¶ 7. Moreover, to the extent
that the appellant seeks corrective action for the alleged retaliatory hostile work
environment that preceded her removal, the Board cannot order corrective action
for this matter in her chapter 75 appeal. IAF, Tab 5 at 1 n.3. Regardless, the pro
se appellant may not have understood her right to file a separate IRA appeal with
the Board b ased on her hostile work environment claim. Because the record
reflects that she has exhausted her hostile work environment claim before OSC,
we forward this claim to the Board’s Denver Field Office for adjudication as an
IRA appeal.17 IAF, Tab 1 at 23, 3 1, 132 ; see Skarada v. Department of Veterans
Affairs , 2022 MSPB 17, ¶ 16 (recognizing that allegations of a hostile work
17 The appellant also asserts, for the first time on review, that the agency engaged in
“numerous instances of chara cter defamation (slander and libel),” which should have
been considered as part of the ongoing retaliation and harassment. PFR File, Tab 1
at 21-23. She contends that she found evidence of the alleged defamat ion in the
discovery that she received from th e agency, and she had no time to address it on
appeal . Id. at 21-22. We decline to consider her additional argument on review
because she has failed to demonstrate that it is based on new and material evidence tha t
previously was unavailable despite her due dilige nce. Banks v. Department of the
Air Force , 4 M.S.P.R. 268, 271 (1980) . To the extent that the appellant argues that the
alleged defamation and libel is evidence of a hostile work environment, she may
reassert this argument in her IRA appeal.
19
environment m ay constitute a personne l action under the whistleblower
protection statutes) .
NOTICE OF APPEAL RIGHTS18
You may obtain review of this final decision. 5 U.S.C. § 7703 (a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703 (b).
Although we offer the following summary of avail able appeal 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 withi n their
jurisdiction. If you wish to seek review of this 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 re sult in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the app ropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of A ppeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
18 Since the issuance of the initial decision in this matter, the Board may have u pdated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.
20
If you submit a petition for revie w to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about th e U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representati on
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 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 a ction 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 oth er security. See
42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative 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
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 2302(b)(8), or
2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial
review either with the U.S. Court of Appeals for the Federal Circuit or any court
of appeals of competent jurisdiction.19 The court of appeals must 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
19 The original statutory provision that provided for judicial review of certain
whistleblow er claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions i n certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510.
23
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 | EOFF_JENNIFER_D_DE_0752_17_0015_I_1_FINAL_ORDER_1997714.pdf | 2023-01-30 | null | DE-0752 | NP |
3,685 | https://www.mspb.gov/decisions/nonprecedential/HUDSON_TAMARA_AT_0752_17_0106_I_1_FINAL_ORDER_1997735.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
TAMARA HUDSON,
Appellant,
v.
UNITED STATES POSTAL SERVICE,
Agency.
DOCKET NUMBER
AT-0752 -17-0106 -I-1
DATE: January 30, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL1
Tamara Hudson , Fayetteville, North Carolina, pro se.
Greg Allan Ribreau , 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 termination appeal for lack of jurisdiction . 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
1 A nonprecedential order is one that the Board has determined does not add
significantly to the 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 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).
BACKGROUND
¶2 From July 9 , 2016, the appellant , a preference -eligible veteran, held the
Postal Support Employee (PSE) Sales and Services Associate (SSA) position at
the Morrisville Post Office in Morrisville, North Carolina. Initial Appeal File
(IAF), Tab 5 at 4, Tab 6 at 12. Effective July 26, 2016, she was terminated for
failing an SSA exam . IAF, Tab 6 at 13 -14. From August 20, 2016, she held the
PSE Mail Processing Clerk position at the Fayetteville Post Office in Fayetteville,
North Carolina. Id. at 43. Effective September 3 and 17, 2016, she was
reassigned to the PSE SSA position at the Lakedale Station in Fayetteville, North
Carolina . Id. at 44 -45. On or around November 9, 2016, she was terminated for
falsifying information on her application for the PSE Mail Processing Clerk
position by failing to disclose that she was a former employee at the Morrisville
Post Office and that she had been term inated for failing the SSA exam . Id. at 27,
33, 46.
¶3 The appellant thereafter filed this Board appeal of her termination and
requested a hearing. IAF, Tab 1. In a jurisdictional order, t he administrative
3
judge informed the appellant that the Board may no t have jurisdiction over her
appeal because she did not appear to be an “employee” with Board appeal rights
under 5 U.S.C. chapter 75. IAF, Tab 3. H e apprised her of her jurisdictional
burden as an employee in the excepted service or as an individual serving a
Veterans Recruitment Appointment (VRA) , and he ordered her to file evidence
and argument on the jurisdictional issue. Id. In response, the appellant alleged
that she was serving under a VRA and that the agency committed procedural
error , and sh e submitted a form documenting her military service . IAF, Tab 5.
The agency moved to dismiss the appeal for lack of jurisdiction. IAF, Tab 6
at 4-10.
¶4 Without holding the requested hearing, the administrative judge issued an
initial decision dismissing t he appeal for lack of jurisdiction. IAF, Tab 7, Initial
Decision (ID) at 1, 4. Specifically, he found that the appellant did not meet the
definition of an employee with Board appeal rights because it was undisputed that
she had not completed 1 year of cu rrent continuous service in the same or a
similar position . ID at 3. He further found that, even tacking her prior service at
the Morrisville Post Office, her length of Federal service would be inadequate for
determining that she was an employee for jurisdictional purposes . Id. Moreover ,
he found that she failed to make a nonfrivolous allegation that she was appointed
under VRA authority , and thus, he was precluded from reaching her procedural
error claim . Id.
¶5 The appellant has filed a petition for review in which she asserts that the
union stated that the Board has jurisdiction over her appeal . Petition for Review
(PFR) File, Tab 1 at 3. In addition, she has submitted a personnel form showing
that, as of November 26, 2016, she held a position with the U.S. Postal Service.
Id. at 4. The agency has filed a response. PFR File, Tab 3.
4
DISCUSSION OF ARGUME NTS ON REVIEW
The appellant has failed to make a nonfrivolous allegation that she is an
employee with chapter 75 appeal rights or that she was appo inted under VRA
authority.
¶6 The Board’s jurisdiction is limited to those matters over which it has been
given jurisdiction by law, rule, or regulation . Maddox v. Merit Systems
Protection Board , 759 F.2d 9 , 10 (Fed. Cir. 1985). The appellant bears the
burden of establishing the Board ’s jurisdiction by a preponderan ce of the
evidence. 5 C.F.R. § 1201.56 (b)(2)(i) (A). Generally, an appellant is entitled to a
jurisdictional hearing if she raises a nonfrivolous allegation of Board jurisdiction
over her appeal. Edwards v. Department of the Air Force , 120 M.S.P.R. 307 , ¶ 6
(2013). A nonfrivolous allegation is an assertion that, if proven, could establish
the matter at issue. 5 C.F.R. § 1201.4 (s).
¶7 Only an “employee,” as defined under 5 U.S.C. chapter 75, can appeal an
adverse action to the Board. Winns v. U.S. Postal Service , 124 M.S.P.R. 113, ¶ 8
(2017) , aff’d sub nom. Williams v. Merit Systems Protection Board , 892 F.3d
1156 (Fed. Cir. 2018) ; see 5 U.S.C. §§ 7511 (a)(1), 7513(d). Pursuant to 5 U.S.C.
§ 7511 (a)(1 )(B)(ii), an employee with the right to appeal to the Board includes a
preference -eligible employee of the U.S. Postal Service in the excepted service
who has completed “ 1 year of current continuous service in the same or similar
positions. ” Winns , 124 M.S.P.R. 113, ¶ 8. When analyzing
section 7511(a)(1)(B), t he Board defers to the regulation in 5 C.F.R. § 752.402 ,
which defin es “current continuous employment” as “a period of employment or
service immediately preceding an adverse action without a break in Federal
civilian employm ent of a workday.” Id., ¶¶ 13, 16 . Employees of the U.S. Postal
Service also may appeal adverse actions to the Board under 5 U.S.C. chapter 75 if
they are management or supervisory employees, or employees engaged in
personnel work in other than a purely nonconfidential clerical capacity , and have
completed 1 year of current continuous service in the same or similar positions .
39 U.S.C. § 1005 (a)(4)(A)(ii); 5 U.S.C. § 7511 (b)(8); see Winns , 124 M.S.P.R.
5
113, ¶ 8 n.4. In addition, t he Board has held that 38 U.S.C. § 4214 (b)(1)(E),
which provides limited Board appeal rights to VRA appointees, covers the U.S.
Postal Service. Toomey v. U.S. Postal Service , 71 M.S.P.R. 10 , 14-15 (1996).2
¶8 For the following reasons, we agree with the administrative judge ’s finding
that the appellant failed to nonfrivolously allege that she met the d efinition of an
employee with Board appeal rights or that she was appointed under VRA
authority . ID at 1, 3. In particular, t he appellant has not alleged, and the record
does not reflect, that she held a supervisory or management position, or was
engaged in personnel work in other than a purely nonconfidential clerical
capacity. PFR File, Tab 1; IAF, Tab 1 at 5, Tab 5, Tab 6 at 43 -46. Moreover, we
find that she has failed to make a nonfrivolou s allegation that she completed
1 year of current continuous service in the same or similar positions under
5 U.S.C. § 7511 (a)(1)(B) . Specifically, the appellant has not disputed the
agency’s evidence showing that she was terminated on or around November 9,
2016, less than 3 months after her appointment on August 20, 2016. PFR File,
Tab 1; IAF, Tab 6 at 43, 46 ; see Ferdon v. U.S. Postal Service , 60 M.S.P.R. 325 ,
329 (1994) (finding that an administrative judge may consider an agency’s
documentary submissions in determining whether an appellant has made a
nonfrivolous allegation of jurisdiction) . In addition, we find that the appellant
may not tack her prior Federal service at the Morrisville Post Office because she
had a break in service of approximately 1 month. IAF, Tab 6 at 13, 43; see
5 C.F.R. § 752.402 ; see also Winns , 124 M.S.P.R. 113, ¶ 18 (overruling a line of
2 An appellant must receive explicit information on what is required to establish an
appealable jurisdictional issue. Burgess v. Merit Systems Protection Board , 758 F.2d
641, 643 -44 (Fed. Cir. 1985). Here, the administrative judge acknowledged that he did
not provide the appellant with notice of her jurisdictional burden tailored to employe es
of the U.S. Postal S ervice. ID at 3 n.1. However, we find that she received appropriate
notice in the agency’s motion to dismiss and the initial decision, and thus, she had an
opportunity to meet her jurisdictional burden on review. ID at 2 -3; IAF, T ab 6 at 6-9;
see Milam v. Department of Agriculture , 99 M.S.P.R. 485 , ¶ 10 (2005) (explaining that
an administrative judge’s failure to provide an appellant with proper Burgess notice can
be cured through the agency’s pleadings below or the initial decision) .
6
Board decisions , which found that an appellant may establish “current continuous
service ” for purposes of section 7511(a)(1)(B) under a “continuing employment
contract” theory, despite a break in service of a workday) .
¶9 Further, we find that the appellant has failed to nonfrivolously allege that
she was appointed under 38 U.S.C. § 4214 (b)(1), which authorizes VRAs . See
Miller v. Federal Deposit Insurance Corporation , 121 M.S.P.R. 88, ¶ 16 (2014)
(discussing the history and purpose of 38 U.S.C. § 4214 ), aff’d , 818 F.3d 1361
(Fed. Cir. 2016). In particular, she has not rebutted the agency’s evidence
showing that she was appointed under 39 U.S.C. § 1001 , the appointing authority
of the U.S. Postal Service . PFR File, Tab 1; IAF, Tab 5 at 5, Tab 6 at 12-13,
43-45; see Ferdon , 60 M.S.P.R. at 329 .
¶10 The appellant’s sole argument on review is that a union told her that the
Board has jurisdiction over her appeal. PF R File, Tab 1 at 3. We find that this
conclusory statement fails to provide a reason to disturb the initial decision. With
her petition for review , the appellant has submitted a personnel form that was
processed on November 26, 2016 , which shows that she received a contractual
increase effective the same date for her PSE SSA position at the Lakedale Station .
Id. at 4. The Board generally will not consider evidence submitted for the first
time on review absent a showing that it was unavailable before the record was
closed despite the party’s due diligence. See Avansino v. U.S. Postal Service ,
3 M.S.P.R. 211 , 214 (1980); 5 C.F.R. § 1201.115 (d). Moreover, 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. See Russo v. Veterans Administration , 3 M.S.P.R. 345 ,
349 (1980) ; 5 C.F.R. § 1201.115 (d). Here, t he appellant has not addressed why
she was unable to submit the personnel form below when it predates the
close -of-record date . PFR File, Tab 1 ; IAF, Tab 3 at 5 . Further , we find that this
evidence , of which she does not explain the significance, is not of sufficient
weight to warrant an outcome different from that of the initial decision because it
7
merely shows that she had over 3 months of current continuous service in the
same or similar positions . PFR File, Tab 1. Because 5 U.S.C. § 7511 (a)(1)(B)
requires 1 year of current continuous service, we find that the appellant’s
evidence does not constitute a nonfrivolous allegation of jurisdiction .
¶11 Accordingly, we affirm the administrative judge’s decision to dismiss this
appeal for lack of jurisdiction.
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 h ow courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Fai lure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have q uestions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
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.
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.
Wash ington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/pro bono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or i n part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 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
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 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:
Office of Federal Operations
Equal Employment Opportunit y Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
10
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (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.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.
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 th e U.S. Court of Appeals
for the Federal Circuit or any other circuit court 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.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the 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 | HUDSON_TAMARA_AT_0752_17_0106_I_1_FINAL_ORDER_1997735.pdf | 2023-01-30 | null | AT-0752 | NP |
3,686 | https://www.mspb.gov/decisions/nonprecedential/HOPKINS_LORENE_AT_3330_16_0279_I_1_FINAL_ORDER_1997751.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
LORENE HOPKINS,
Appellant,
v.
DEPARTMENT OF THE AR MY,
Agency.
DOCKET NUMBER
AT-3330 -16-0279 -I-1
DATE: January 30, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL1
Lorene Hopkins , Augusta, Georgia, pro se.
Shannon M. Callahan , Fort Sam Houston, 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
denied her request for corrective action under the Veterans Employment
Opportunities Act of 1998 (VEOA) , and dismissed for lack of jurisdiction her
claims of race and disability discrimination and a violation of the Uniformed
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case 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
Services Employment and Reemployment Rights Act of 1994 (codified as
amended at 38 U.S.C. §§ 4301 -4335) (USERRA) . Generally, we grant petitions
such as this one only in the following circumstances: the initial decision
contains erroneous findings of material fact; the initial decision is based on an
erroneous interpretation of statute or regulation or the erroneous a pplication of
the law to the facts of the case; the administrative judge’s rulings during either
the course of the appeal or the initial decision were not consistent with required
procedures or involved an abuse of discretion, and the resulting error affec ted the
outcome of the case; or new and material evidence or legal argument is available
that, despite the petitioner’s due diligence, was not available when the record
closed. Title 5 of the Code of Federal Regulations, section 1201.115 ( 5 C.F.R.
§ 1201.115 ). After fully considering the filings in this appeal, we conclude that
the petitioner has not established any basis under section 1201.115 for granting
the petition for review. The refore, we DENY the petition for review and
AFFIRM the initial decision, which is now the Board’s final decision. 5 C.F.R.
§ 1201.113 (b).
BACKGROUND
¶2 The relevant background information, as set forth in the initial decision, is
generally not in dispute. Initial Appeal File (IAF), Tab 23, Initial Decision (ID).
In April 2015, the appellant, a retired Federal employee and a preference -eligible
veteran, applied for the Supervisory Educatio n Services Specialist position ,
pursuant to merit promotion vacancy announcement number
NCFR156421677139608. ID at 1-3; IAF, Tab 12 at 19 -25, Tab 14 at 4 -7, Tab 16
at 4 -8. The appellant was placed on a certificate of eligible s, referred to a
selecting pa nel for consideration, and received a high rating, but she was not
selected for the position. ID at 3 ; IAF, Tab 13 at 19, 22 -25, Tab 19 at 18 .
¶3 The appellant filed a complaint with the Office of Special Counsel (OSC),
alleging that the agency violated her veterans’ preference rights and discriminated
3
against her because of her race. ID a t 3; IAF, Tab 2 at 10 -11. After OSC closed
its investigation, she filed a complaint with the Department of Labor (DOL),
alleging that the agency violated her veterans’ pre ference rights . ID at 3; IAF,
Tab 2 at 12 -15.
¶4 After DOL closed its investigation, the appellant timely filed this appeal .
ID at 3 -4; IAF, Tab 1. In this appeal, the appellant alleged, among other things,
that the agency violated VEOA and USERRA . ID at 4-11. The administrative
judge found that the appellant made a nonfrivolous allegation that the Board has
jurisdiction over her VEOA claims pursuant to 5 U.S.C. § 3330a (a)(1)(A) and
(a)(1)(B).2 ID at 4 -7; IAF, Tab 17. Without holding the requested hearing, the
administrative judge found that the appellant failed to establish that the agency
violated VEOA because she was not entitled to any veterans’ preference in a
merit promotion vacancy announ cement and was given the opportunity to
compete for the position. ID at 7 -10. She therefore denied the appellant’s
request for corrective action regarding this claim. ID at 2. The administrative
judge further found that the appellant did not nonfrivolo usly allege that the Board
has jurisdiction over her USERRA claim . ID at 10 -11. The administrative judge
also determined that the appellant’s allegation s of race and disability
discrimination and claims of prohibited personnel practices did not provide a n
independent basis for Board jurisdiction. ID at 11-12.
¶5 The appellant has filed a petition for review, the agency has filed a
response, and the appellant has filed a reply. Petition for Review (PFR) File,
Tabs 1, 3 -4.
2 Pursuant to section 3330a(a)(1)(A), a preference eligible who alleges that an agency
has violated such individu al’s rights under any statute or regulation relating to veterans’
preference may file a complaint with the Secretary of Labor . Pursuant to
section 3330a (a)(1)(B), a veteran described in section 3304(f)(1) who alleges than an
agency has violated such section —and thus denied her an opportunity to compete for
vacant positions for which the agency making the an nouncement will accept
applications from individuals outside its workforce under merit promotion procedures —
may file a complaint with the Secretary of Labor.
4
DISCUSSION OF ARGUME NTS ON REVIEW
¶6 The Board’ s jurisdiction is limited to those matters over which it has been
given jurisdiction by law, rule , or regulation . Maddox v. Merit Systems
Protection Board , 759 F.2d 9 , 10 (Fed. Cir. 1985). A nonselection for a position
is gen erally not appealable to the Board . Pridgen v. Office of Management and
Budget , 117 M.S.P.R. 665 , ¶ 6 (2012). However, an appellant may appeal a
nonselection through various statutory means, such as VEOA or US ERRA .
Becker v. Department of Veterans Affairs , 107 M.S.P.R. 327, ¶ 5 (2007).
The administrative judge properly denied correcti ve action concerning the
appellant’s VEOA claim.
¶7 The administrative judge correctly noted in the initial decision that, as a
preference eligible and a veteran, the appellant may seek corrective action for her
VEOA claim pursuant to 5 U.S.C. § 3330a (a)(1)(A) and (a)(1)(B). ID at 6 -8.
Neither party challenges the administrative judge’s finding that the appellant has
made a nonfrivolous allegation of Board jurisdiction over her VEOA claim under
both statutory subsection s. ID at 4 -7; see Montgomery v. Department of Health
& Human Services , 123 M.S.P.R. 216, ¶ 5 (2016) (finding that the Board has
jurisdiction over the appellant’s right -to-compete claim under 5 U.S.C.
§ 3330a (a)(1)(A) and (a)(1)(B)). We affirm that finding herein.
¶8 To prevail on her VEOA cl aim pursuant to section 3330a(a)(1)(A), the
appellant must prove by preponderant evidence3 that (i) she is a preference
eligible within the meaning of the VEOA, (ii) the actions at issue occurred on or
after October 30, 1998, and (iii) the agency violated her rights under a statute or
regulation related to veterans’ preference.4 Isabella v. Department of State ,
106 M.S.P.R. 333, ¶¶ 21-22 (2007) , aff’d on recons. , 109 M.S.P.R. 453 (2008) .
3 Preponderant evidence is the degree of relevant evidence that a reasonable person,
considering the record as a whole, would accept as sufficient to find that a contested
fact is more likely to be true than untrue. 5 C.F.R. § 1201.4 (q).
4 The Board has held that 5 U.S.C. § 3304 (f)(1) is a statute relating to veterans’
preference. Walker v. Department of the Army , 104 M.S.P.R. 96 , ¶ 16 (2006).
5
To prevail on a VEOA claim pursuant to section 3330a(a)(1)(B), the appellant
must prove by preponderant evidence that : (i) she is a veteran as described at
5 U.S.C. § 3304 (f)(1) ; (ii) the actions at issue occurred on or after December 10,
2004 ; and (iii) the agenc y denied her the opportunity to compete under merit
promotion procedures for a vacant position for which the agency accepted
application s from individual s outside its own workforce. Becker v. Department of
Veterans Affairs , 115 M.S.P.R. 409 , ¶ 5 (2010) ; Graves v. Department of
Veterans Affairs , 114 M.S.P.R. 209, ¶ 19 (2010) . As noted above, it is undispute d
that the appellant is a preference eligible and a veteran, the agency accepted
applications from outside its workforce pursua nt to merit promotion procedures ,
and the nonselection occurred in 2015.
¶9 We agree with the administrative judge that t he appellant has not met her
burden to show that the agency denied her the opportunity to compete for the
position or violated her right s under a statute or regulation related to veterans’
preference . The appellant’s placement on the certificate of eligibles, referral to
the selection panel, and subsequent rating —which was lower than the selectee’s
rating , IAF, Tab 13 at 19 -20—satisfies t he agency’s obligation to provide her
with an opportunity to compete for the position. See, e.g. , Harellson v. U.S.
Postal Service , 113 M.S.P.R. 534, ¶¶ 8-11 (2010) (finding that the agency
satisfied its statutory obligation to permit the appellant, an outside candidate, to
compete for a Custodian position when an agency official involved in the
selection process reviewed the appellant’ s file to determine his qualifications, but
the agency ultimately decided to fill the positions internally) . We agree with the
administrative judge that the appellant was not entitled to veterans’ preference
because the vacancy was announced pursuant to merit promotion procedures,5 and
the appellant was given an opportun ity to compete for the position , consistent
5 The appellant asserts on review that she should have been placed at the top of the
certificate of eli gibles. PFR File, Tab 1 at 6. However, such procedures are only
applicable in the competitive examination process, not the merit promotion process.
Joseph v. Federal Trade Commission , 505 F.3d 1380 , 1382 (Fed. Cir. 2007).
6
with 5 U.S.C. § 3304 (f)(1) . Thus, she properly denied the appellant’s request for
corrective action. Because there was no genuine dispute of material fact
regarding her VEOA claim, the administrative judge proper ly did not hold the
appellant’s request ed hearing. PFR File, Tab 1 at 5; see Davis v. Department of
Defense , 105 M.S.P.R. 604, ¶ 12 (2007).
¶10 We have considered the appellant’s assertion on review that the agency
gave the selectee preferential treatment because she was serving on a detail in the
position for which the vacancy had been announced and the selectee allegedly
made some odd statements to her . PFR File, Tab 1 at 5 -6. Such allegations, even
if true, do not change our analysis of whether the appellant was given an
opportunity to compete for the position .
The administrative judge properly dismissed for lack of jurisdiction the
appellant’s USERRA claim and her allegations of discrimination and other
prohibited personnel practice s.
¶11 To establish the Board’s jurisdiction over her USERRA claim, an appellant
must make nonfrivolous allega tions that (1) she performed duty or has an
oblig ation to perform duty in a uniformed ser vice of the United States, (2) the
agency denied her initial employment, reemployment, retention, promotion, or
any benefit of employment , and (3) the denial was due to the performance of duty
or obligation to perfor m duty in the uniformed service. 38 U.S.C. § 4311 (a); Hau
v. Department of Homeland Security , 123 M.S.P.R. 620 , ¶ 11 ( 2016) , aff’d sub
nom. Bryant v. Merit Systems Protection Board , 878 F.3d 1320 (Fed. Cir. 2017) .
¶12 In the initial decision, the administrative judge noted that the appellant
alleged that the agency did not select her because of her service -related disabilit y.
ID at 10 -11 (citing IAF, Tab 12 at 5). The administrative judge concluded that
such an allegation did not constitute a nonfrivolous allegation that the agency
took the action because of the appellant’s military service. ID at 10 -11. The
appellant does not appear to challenge this finding on review, and we agree with
the administrative judge that she did not nonfrivolously allege that her uniformed
7
service was a factor in the nonselection . See McBride v. U.S. Postal Service ,
78 M.S.P.R. 411 , 415 (19 98) (finding that the appellant’s back injury, incurred
while performing military service, is incidental to her claim of disabili ty
discrimination and does not bring the claim within the Board’s USERRA
jurisdiction ). Because the administrative judge properly found that the Board
lacks jurisdiction over the appellant’s USERRA claim, she is not entitled to a
hearing. Downs v. Depart ment of Veterans Affairs , 110 M.S.P.R. 139, ¶¶ 17-18
(2008).
¶13 Regarding the appellant’s assertion that the nonselection is based on race
and/or disability discrimination or otherwise constitutes a prohibited personnel
practice, PFR File, Tab 1 at 6 -7, such claims are not an independent source of
Board jurisdiction. 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).
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.
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
Please read carefully each of the three ma in possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the da te of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.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
9
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by fili ng a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 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 you r representative receives this decision before
you do, then you must file with the district court no later than 30 calendar days
after your representative receives this decision. If the action involves a claim of
discrimination based on race, color, relig ion, sex, national origin, or a disabling
condition, you may be entitled to representation by a court -appointed lawyer and
to waiver of any requirement of prepayment of fees, costs, or other security. See
42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.as px.
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must f ile any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case,
and yo ur representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
10
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (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.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. T he All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circui t or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195,
132 Stat. 1510.
11
If you submit a petition for 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.
Contact information for the courts of appeals can be 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 | HOPKINS_LORENE_AT_3330_16_0279_I_1_FINAL_ORDER_1997751.pdf | 2023-01-30 | null | AT-3330 | NP |
3,687 | https://www.mspb.gov/decisions/nonprecedential/HARDMON_FLORETTA_AT_0752_17_0589_I_1_FINAL_ORDER_1997029.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
FLORETTA HARDMON,
Appellant,
v.
DEPARTMENT OF VETERA NS
AFFAIRS,
Agency.
DOCKET NUMBER
AT-0752 -17-0589 -I-1
DATE: January 27, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL1
Floretta Hardmon , Fairburn , Georgia , pro se .
Karen L. Mulcahy , Esquire , Bay Pines, 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 decision, which
dismissed her involuntary retirement appeal for lack of jurisdiction without
holding the requested hearing. Generally, we grant petitions such as this one only
in the following ci rcumstances: 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
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
of material fact; the initial decision is based on an erroneous interpretation of
statute or regulation or the erroneous application of the law to the facts of the
case; the administrative judg e’s rulings during either the course of the appeal or
the initial decision were not consistent with required procedures or involved an
abuse of discretion, and the resulting error affected the outcome of the case; or
new and material evidence or legal argu ment is available that, despite the
petitioner’s due diligence, was not available when the record closed. Title 5 of
the Code of Federal Regulations, section 1201.115 ( 5 C.F.R. § 1201.115 ). After
fully considering the filings in this appeal, we conclude that the petitioner has not
established any basis under section 1201.115 for granting the petition for review.
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 June 20, 2017, the appellant filed an appeal with the Board asserting
that her September 9, 2016 retirement from her GS -15 Director , Executive
Management and Communications position was involuntary. Initial Appeal File
(IAF), Tab 1, Tab 5 at 4. According to the appellant, she was forced to retire due
to a hostile work environment that impacted her overall health.2 IAF, Tab 1 at 4.
¶3 The administrative judge acknowledged the appeal, noted that resignations
and retirements are presumed to be voluntary and consequently not within the
Board’s jurisdiction, and ordered the appellant to file evidence and argument
establ ishing that the appeal was within the Board’s jurisdiction. IAF, Tab 2
at 2-3. After the appellant failed to respond to the order, the administrative judge
issued an initial decision that dismissed the appeal for lack of jurisdiction without
2 In her initial appeal form, the appellant also indicated that she was appealing a
retirement decision from the Office of Personnel Management (OPM) dated January 20,
2017. IAF, Tab 1 at 3. However, she has failed to provide such a decision from OPM
or indicate elsewhere in her appeal that she intended to appeal such a decision. Given
this, and her indications that she intended to appeal her allegedly involuntary
retirement, we find that the appellant did not inten d to appeal an OPM decision
regarding her retirement.
3
holding the requested hearing. IAF, Tab 7, Initial Decision (ID) at 1 -4; IAF,
Tab 1 at 2 .
¶4 On review, the appellant asserts that she believed that she attached details
of her complaint below but inadvertently omitted them . Petition for Review
(PFR) File, Tab 3 at 5 . Generally, the Board will decline to consider evidence or
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. Hamilton v. U .S. Postal Service , 123 M.S.P.R. 404 , ¶ 19 n.12
(2016); 5 C.F.R. § 1201.115 (d). Although the appellant has failed to make such a
showing here, we nonetheless consider the evidence and argument submitted on
review and find that it does not establish a basis for granting the petition.
¶5 An employee’s retirement is presumed to be a voluntary action and, as such,
is not within the Board’s jurisdiction. Salazar v. Department of the Army ,
115 M.S.P.R. 296 , ¶ 9 (2010). An involuntary retirement, howe ver, is tantamount
to a removal and, accordingly, is appealable to the Board. Id. The presumption
that a retirement is voluntary can be rebutted by evidence showing that the
retirement was the result of agency misrepresentation, coercion, or duress.3 Id.
¶6 The appellant bears the burden of proving by preponderant evidence that the
matter she is appealing is within the Board’s authority to review. Brown v. U.S.
Postal Service , 115 M.S.P.R. 609 , ¶ 11, aff’d , 469 F. App’x 852 (Fed. Cir. 2011).
If the appellant makes a nonfrivolous allegation that the matter is within the
Board’s jurisdiction, she is entitled to a hearing at which she must prove
jurisdiction. Id. A nonfrivolous allegation is an assertion that, if proven, could
establish the matter at issue. 5 C.F.R. § 1201.4 (s). An allegation generally will
be considered nonfrivolous when, under oath or penalty of perjury, an individual
3 The terms coercion and duress have been used interchangeably by the Board . See
Soler -Minardo v. Department of Defense , 92 M.S.P.R. 100 , ¶ 6 (2002); Heining v.
General Services Administration , 68 M.S.P.R. 513 , 519-21 (1995) ; Collins v. Defense
Logistics Agency , 55 M.S.P.R. 185 , 188 (1992) , modified on other grounds by Ferdon v.
U.S. Postal Service , 60 M.S.P.R. 325 , 329 -30 (1994) .
4
makes an allegation that is more than conclusory, is plausible on its face, and is
material to the legal issues in the a ppeal. Id.
¶7 Here, the appellant indicates that her retirement was the result of coercion
rather than misrepresentation. PFR File, Tab 3 at 17 -18. Accordingly, she is
only entitled to a hearing if she makes an allegation of fact that, if proven, could
establish that the agency coerced her retirement. See Brown , 115 M.S.P .R. 609 ,
¶ 11. For the following reasons, we find that the appellant failed to make a
nonfrivolous allegation that her retirement is an action within the Board’s
jurisdiction.
¶8 To establish coercion, “an employee must show that the agency effectively
imposed the terms of the employee’s resignation or retirement, that the employee
had no realistic alternative but to resign or retire, and that the employee’s
resignat ion or retirement was the result of improper acts by the agency.” Staats v.
U.S. Postal Service , 99 F.3d 1120 , 1124 (Fed. Cir. 1996). If an emp loyee’s
working conditions are so intolerable that the employee is forced to retire, the
employee’s retirement is involuntary and constitutes a constructive removal. See
Brown , 115 M.S.P.R. 609 , ¶ 10. The issue is whether, considering the totality of
the circumstances, the employee’s working conditions were made so difficult that
a reasonable person in the employee’s position would have felt compelled to
retire . See i d. In making this determination , the Board will consider allegations
of discrimination and reprisal only insofar as those allegations relate to the issue
of voluntariness and not whether they would establish discrimin ation or reprisal
as an affirmative defense. Id.
¶9 Here, the most significant allegations of intolerable working conditions
raised by the appellant include the following: (1) in January 2016, her white,
male supervisor stated she “belonged ” to him; (2) on March 14, 2016, her
supervisor falsely accused her of knowingly mailing letters to hundreds, perhaps
thousands, of deceased veterans; and (3) o n August 2, 2016, the agency decided
to suspend her for 14 days based on false allegations . PFR F ile, Tab 3 at 17-18,
5
Tab 6 at 4-7, 48. She alleges that she was subjected to a hostile work
environment because she is Black, as well as on the base s of her sex, age, and
prior opposition to discrimination . PFR File, Tab 3 at 17.
¶10 It is axiomatic that a Fe deral emplo yee is not guaranteed a stress -free
working environment free from difficulties and unpleasantness. Brown ,
115 M.S.P.R. 609 , ¶ 15; Miller v. Department of Defense , 85 M.S.P.R. 310 , ¶ 32
(2000). Regarding the appellant’s contention that her supervisor stated she
“belonged” to him, the Board has held that an employee’s perception that she was
subjected to slights by a supervisor does not render her working environment
intolerable. See Loredo v. Department of the Treasury , 118 M.S.P.R. 686 , ¶ 8
(2012) (finding that her supervisor’s religious slurs did not render the appellant’s
working conditions intolerable). The Board also has held that feelings of being
unfairly criticized at work do not render a workplace so intolerable that a
reasonable person would be compelled to separate from the agency . Brown ,
115 M.S.P.R. 609 , ¶ 15; Miller , 85 M.S.P.R. 310 , ¶ 32. Thus, the appellant’s
claims that she was falsely accused of inappropriate conduct does not render her
decision to retire involuntary. Likewise, the Board has held that the fact that an
employee faced the unpleasant alternatives between retiring and opposing a
potential removal did not r ender the retirement involuntary. Morrison v.
Department of the Navy , 122 M.S.P.R. 205 , ¶ 6 (2015). Thus, the appellant ’s
unpleasant alternatives between retiring or contesting the 14 -day suspension do
not render her retirement involuntary.
¶11 Finally, regarding the appellant’s discrimination claims, the appellant filed
an equal employment opportunity (EEO) complaint with th e agency on June 23,
2016, raising, among other things, the proposed suspension , which led to the
14-day suspension mentioned above . Hardmon v. Department of Veterans
Affairs , MSPB Docket No. AT -1221 -17-0686 -W-1, Initial Appeal File, Tab 1
6
at 27.4 In Axsom v. Department of Veterans Affairs , 110 M.S.P.R. 605 , ¶ 17
(2009) , the appellant had similarly filed EEO complaints in the months before his
allegedly involuntary resignation , and the Board found that he failed to prove that
the agency was handling the complaints inequitably and that he thus had the
option to challenge the alleged discrimination, harassment, and retaliation rather
than resign. Here, the appellant has not alleged, and the record does not indicate,
that the agency was handling her EEO complaint inequitably. Thus, as in Axsom ,
the appellant had the option to challenge the alleged discrimination rather than
retire.
¶12 Also significant to the Board’s involuntariness analysis is the existence of
time pressure to make a decision regarding whether to retire. Jones v.
Department of the Treasury , 107 M.S.P.R. 466, ¶ 10 (2007). Here, on March 29,
2016, the appellant submitted a request to retire on December 31, 2016. PFR
File, Tab 8 at 17-18. On June 14, 2016, she updated her request so that she could
retire on September 30, 2016. Id. at 16. On August 15, 2016, she indicated that
she wanted to retire as soon as possible. Id. at 12 -13. After being informed that
the earliest she could retire was September 9, 2016, she decided to retire on that
date. Id. at 11 -12. The appellant does not suggest that the agency proposed that
she retire , and it appears that the decision to retire was entirely initiated by the
appellant. This fact further suppo rts our finding that the appellant’s retirement
was not involuntary. See Brown , 115 M.S.P.R. 609, ¶ 15 (noting that the decision
to retire was “entirely self -initiated,” in finding that a retirement was not
involuntary).
¶13 In sum, for the reasons stated above, we find that the appellant’s
allegations, even if proven, would not establish that the agency coerced her into
4 The Board may take official notice of matters that can be verified, including
documents or action s in other Board appeals. Wofford v. Department of Justice ,
115 M.S.P.R. 468 , ¶ 5 n.4 (2010).
7
retiring. Accordingly, we affirm the initial decision dismissing the appeal for
lack of jurisdiction.
NOTICE OF APPEAL RIG HTS5
You may obtain review of this final decision. 5 U.S.C. § 7703 (a)(1) . By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703 (b).
Although we offer the following summar y of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be 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.
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 represe ntative receives this decision. If the 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 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
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 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.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 Plac e, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellant s,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Prote ction Board appellants before the Federal Circuit. The
6 The original statutory provision that provid ed for judicial review of certain
whistleblower claims by any court of 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 peti tions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to Novemb er 26, 2017. Pub. L. No. 115 -195,
132 Stat. 1510.
11
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD:
Washington, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board | HARDMON_FLORETTA_AT_0752_17_0589_I_1_FINAL_ORDER_1997029.pdf | 2023-01-27 | null | AT-0752 | NP |
3,688 | https://www.mspb.gov/decisions/nonprecedential/HUSIK_DAVID_AT_0752_17_0711_I_1_FINAL_ORDER_1997044.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
DAVID HUSIK,
Appellant,
v.
DEPARTMENT OF VETERA NS
AFFAIRS,
Agency.
DOCKET NUMBER
AT-0752 -17-0711 -I-1
DATE: January 27, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL1
Courtney J. Mickman , Esquire, Washington, D.C., for the appellant.
Erick D. Kraemer , Buffalo, New York, for the appellant.
Michael W. Macomber, Esquire, Albany, New York, for the appellant.
Dana C. Heck , Esquire, St. Pe tersburg, Florida, for the agency.
BEFORE
Cathy A. Harris, Vice Cha irman
Raymond A. Limon, Member
Tristan L. Leavitt, Member
Member Leavitt dissents without an 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
FINAL ORDER
¶1 The agency has filed a petition for review of the initial decision, which
reversed its 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 consistent with required procedures or involved an abuse of
discretion, and the resulting error affected the outcome of the case; or new and
material evidence or legal argument is available that, despite the petitioner’s due
diligence, was not available when the record closed. Title 5 of the Code of
Federal Regulations, sect ion 1201.115 ( 5 C.F.R. § 1201.115 ). After fully
considering the filings in this appeal, we conclude that the petitioner has not
established any basis under section 1201.115 for granting the petition for review.
Therefore, we DENY the petition for review and AFFIRM the initial decision,
which is now the Board’s final decision.2 5 C.F.R. § 1201.113 (b).
ORDER
¶2 We ORDE R the agency to cancel the removal and to retroactively restore
the appellant effective July 19, 2017. See Kerr v. National Endowment for the
Arts, 726 F.2d 730 (Fed. Cir. 1984). The agency must complete this action no
later than 20 days after the date of this decision.
2 The agency has filed a petition for review, the appellant has responded in opposition,
and the agency has filed an untimely reply. Petition for Review (PFR) File, Tabs 1,
4-5. The appellant has mo ved to strike the agency’s reply as untimely. PFR File, Tab 6.
Any reply to a response to a petition for review must be filed within 10 days after the
date of service of the response to a petition for review. 5 C.F.R. § 1201.114 (e).
Although the appellant filed his response on March 20, 2018 through e -Appeal, PFR
File, Tab 4, the agency did not file its reply until April 4, 2018, or 5 days late, PFR
File, Tab 5. Accordingly, we have not considered the reply.
3
¶3 We also ORDER the agency to pay the appellant the correct amount of back
pay, interest on back pay, and other benefits under the Office of Personnel
Management’s regulations, no later than 60 calendar days after the date of this
decision. We ORDER the appellant to cooperate in good faith in the agency’s
efforts to calculate the amount of back pay, interest, and benefits due, and t o
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 late r than 60 calendar days after the date of this decision.
¶4 We further ORDER the agency to tell the appellant promptly in writing
when it believes it has fully carried out the Board’s Order and of the actions it has
taken to carry out the Board’s Order. Th e appellant, if not notified, should ask
the agency about its progress. See 5 C.F.R. § 1201.181 (b).
¶5 No later than 30 days after the agency tells the appellant that it has fully
carried out the Board’s Order, the appellant may file a petition for enforcement
with the office that issued the initial decision on this appeal if the appellant
believes that the agency did not fully carry out the Board’s Order. The petition
should conta in specific reasons why the appellant believes that the agency has not
fully carried out the Board ’s Order, and should include the dates and results of
any communications with the agency. 5 C.F.R. § 1201.182 (a).
¶6 For agencies whose payroll is administered by either the National Finance
Center of the Department of Agriculture (NFC) or the Defense Finance and
Accounting Service (DFAS), two lists of the information and documentation
necessar y to process payments and adjustments resulting from a Board decision
are attached. The agency is ORDERED to timely provide DFAS or NFC with all
documentation necessary to process payments and adjustments resulting from the
Board’s decision in accordance with the attached lists so that payment can be
made within the 60 -day period set forth above.
4
NOTICE TO THE APPELL ANT REGARDING
YOUR RIGHT TO REQUES T
ATTORNEY FEES AND CO STS
You may be entitled to be paid by the agency for your reasonable attorney
fees and costs. To be paid, you must meet the requirements set forth at Title 5 of
the United States Code (5 U.S.C.), sections 7701(g), 1221(g), or 1214(g). The
regulations may be found at 5 C.F.R. §§ 1201.201 , 1201.202, and 1201.203. If
you believe you meet these requirements, you must file a motion for attorney fees
and costs WITHIN 60 CALENDAR DAYS OF THE DATE OF THIS DECISION.
You must file your motion for attorney fees and costs with the office that issued
the initial decision on your appeal.
NOTICE TO THE APPELL ANT
REGARDING YOUR RIGHT TO REQUEST
COMPENSATORY DAMAGES
You may be entitled to be paid by the ag ency for your compensatory
damages, including pecuniary losses, future pecuniary losses, and nonpecuniary
losses, such as emotional pain, suffering, inconvenience, mental anguish, and loss
of enjoyment of life. To be paid, you must meet the requirements s et out at
42 U.S.C. § 1981a . The regulations may be found at 5 C.F.R. §§ 1201.201 ,
1201.202, and 1201.204. If you believe y ou meet these requirements, you must
file a motion for compensatory damages WITHIN 60 CALENDAR DAYS OF
THE DATE OF THIS DECISION. You must file your motion with the office that
issued the initial decision on your appeal.
NOTICE OF APPEAL RIG HTS3
You may obtain review of this final decision. 5 U.S.C. § 7703 (a)(1). By
statute, the nature of your claims determines the time limit for seeking such
3 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the 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 y our situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of revi ew
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a ge neral rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this deci sion. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relev ance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
6
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals f or the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided b y any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action t hat is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 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 m ust file with the district court no later than 30 calendar days
after your representative receives this decision. If the action involves a claim of
discrimination based on race, color, religion, sex, national origin, or a disabling
condition, you may be e ntitled to representation by a court -appointed lawyer and
to waiver of any requirement of prepayment of fees, costs, or other security. See
42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district courts can be found at their respe ctive
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employme nt
Opportunity Commission (EEOC) 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 Opp ortunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personne l practice described in
section 2302(b) other than practices described in se ction 2302(b)(8), or
2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial
review either with the U.S. Court of Appeals for the Federal Circuit or any court
of appeals of competent jurisdiction.4 The court of appeals must receive your
4 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the Preside nt 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 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
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the 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 juri sdiction.
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/CourtWebsit es.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 leave
ceiling will be restored to a separate leave account pursuant to 5 CFR § 550.805(g).
NATIONAL FINANCE CEN TER CHECKLIST FOR BA CK PAY CASES
Below is the information/documentation required by National Finance Center to process
payments/adjustments agreed on in Back Pay Cases (settlements, restorations) or as ordered by
the Merit Systems Protection Board, EEOC, and courts .
1. Initiate and submit AD -343 (Payroll/Action Request) with clear and concise information
describing what to do in accordance with decision.
2. The following information must be included on AD -343 for Restoration:
a. Employee name and social security number.
b. Detailed explanation of request.
c. Valid agency accounting.
d. Authorized signature (Table 63).
e. If intere st 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. | HUSIK_DAVID_AT_0752_17_0711_I_1_FINAL_ORDER_1997044.pdf | 2023-01-27 | null | AT-0752 | NP |
3,689 | https://www.mspb.gov/decisions/nonprecedential/MUSSELMAN_ROBERT_C_DE_0752_17_0116_I_1_FINAL_ORDER_1997069.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
ROBERT C. MUSSELMAN,
Appellant,
v.
DEPARTMENT OF AGRICU LTURE,
Agency.
DOCKET NUMBER
DE-0752 -17-0116 -I-1
DATE: January 27, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL1
Robert C. Musselman , Fort Collins, Colorado, pro se.
Stephanie Ramjohn Moore , 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 for lack of jurisdiction his appeal of an allegedly involuntary
retirement. On petition for review, the appellant argues that the agency should
not have abolished his position, the agency could have found a more satisfactory
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case 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
position to which t o direct his reassignment , and the decision to abolish his
position was tainted by age 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 affe cted the outcome of
the case; or new and material evidence or legal argument is available that, despite
the petitioner’s due diligence, was not available when the record closed. Title 5
of the Code of Federal Regulations, section 1201.115 ( 5 C.F.R. § 1201.115 ).
After fully considering the filings in this appeal, we conclude that the petitioner
has not established any basis under section 1201.115 for granting the petition for
review. Th erefore, we DENY the petition for review and AFFIRM the initial
decision, which is now the Board’s final decision. 5 C.F.R. § 1201.113 (b).
NOTICE OF APPEAL RIG HTS2
You may obtain rev iew of this final decision. 5 U.S.C. § 7703 (a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703 (b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situati on and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
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
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court o f Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Fede ral Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attor ney 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 appe alable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems
Protection B oard , 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 actio n involves a claim of
discrimination based on race, color, religion, sex, national origin, or a disabling
condition, you may be entitled to representation by a court -appointed lawyer and
to waiver of any requirement of prepayment of fees, costs, or other s ecurity. See
42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a req uest 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 de livery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Prot ection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
other protected activities liste d in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (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 d escribed in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.3 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(B).
3 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law 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.
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 | MUSSELMAN_ROBERT_C_DE_0752_17_0116_I_1_FINAL_ORDER_1997069.pdf | 2023-01-27 | null | DE-0752 | NP |
3,690 | https://www.mspb.gov/decisions/nonprecedential/ST_PIERRE_STEPHEN_WILLIAM_PH_0432_21_0364_I_1_REMAND_ORDER_1997121.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
STEPHEN WILLIAM ST. PIERRE,
Appellant,
v.
DEPARTMENT OF JUSTIC E,
Agency.
DOCKET NUMBER
PH-0432 -21-0364 -I-1
DATE: January 27, 2023
THIS ORDER IS NONPRECEDENTIAL1
Stephen William St. Pierre , Gray, Maine, pro se.
Roselee Dodson , 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 of the initial decision, which
dismissed his removal appeal for lack of jurisdiction . 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
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
decision, and REMAND this appeal to the Northeastern Regional O ffice for
further adjudication in accordance with this Remand Order.
BACKGROUND
¶2 The appellant was employed as a GS -13 Special Agent with the Federal
Bureau of Investigation (FBI). Initial Appeal File (IAF), Tab 6 at 21. Effective
September 9, 2021, the appellant was removed from his position based on the
charge of unacceptable perfo rmance. Id. at 2 1-23.
¶3 He appealed his removal to the Board and marked on his appeal form that
he was not entitled to veterans’ preference. IAF, Tab 1 at 1. The administrative
judge informed the appellant how to make a nonfrivolous allegation that the
agency’s action was within the Board’s jurisdiction and ordered him to submit
evidence and argument on that issue. IAF, Tab 2 at 2 -5. The appellant did not
respond , but t he agency moved to dismiss the appeal, observing that an FBI
employee only qualified as an “employee” with the right to appeal to the Board if
he was a preference eligible as defined in 5 U.S.C. § 2108 and the appellant did
not fall in that category. IAF, Tab 4 at 6 -7. The admin istrative judge issued an
order directing the appellant to show how he qualified as a preference eligible
under the definition in 5 U.S.C. § 2108 . IAF, Tab 8. The appellant responded
that he is a preference eligible because he served in the U.S. Air Force from 1992
to 1999 and provided a DD Form 214 (Certificate of Release or Discharge from
Active Duty) documenting his service dates from February 12, 1992 , to
May 1, 1999 . IAF, Tab 9 at 1 -2. The administrative judge issued two additional
orders directing the appellant to show how he qualified as a preference eligible
under the definition in 5 U.S.C. § 2108 . IAF, Tabs 11-12. The appellant did not
respond.
¶4 Without holding the requested hearing, the administrative judge dismissed
the appeal for lack of jurisdiction. IAF, Tab 13, Initial Decision (ID) at 1, 4. The
administrative judge found that the appellant’s general statement of milita ry
3
service and his DD Form 214 did not provide a basis for finding that he met the
definition of a preference eligible in 5 U.S.C. § 2108 . ID at 3 -4. The
administrative judge also noted the appel lant was provided with three
opportunities to show that he met the definition of a preference eligible under
5 U.S.C. § 2108 , but he did not do so. ID at 3-4.
¶5 The appellant has filed a petition for review of the initial decision. Petition
for Review (PFR) File, Tab 1. He claims preference eligibility because , in
addition to the service from 1992 to 1999 he raised before the administrative
judge, he was on active duty military service from Septe mber 24, 1991 , to
February 11, 1992 , and he is a disabled veteran. Id. at 1. With his petition for
review, h e provides new documents in support of his claim of preference
eligibility. Id. at 2 -8. The agency has filed a response. PFR File, Tab 3.
DISCU SSION OF ARGUMENTS O N REVIEW
¶6 An FBI employee has the right to appeal to the Board if he is a preference
eligible who meet s the requirements of 5 U.S.C. § 7511 (a)(1)(B) . 5 U.S.C.
§ 7511 (b)(8); Parkinson v. Department of Justice , 874 F.3d 710 , 713
(Fed. Cir. 2017) (en banc) ; Patterson v. Department of Justice , 52 M.S.P.R. 651 ,
653-54 (1992). 5 U.S.C. § 7511 (a)(1)(B) defines an “employee” as a preference
eligible in the excepted service who has completed 1 year of current, continuous
service in the same or similar positions. The record reflects that the appellant
was employed as a Special Agent wi th the FBI since 2004. IAF, Tab 6 at 84,
91-93. As the appellant has completed more than 1 year of current continuous
service in the same position, his right to appeal to the Board hinges on whether he
was a preference eligible.
¶7 For purposes of this ap peal, a preference eligible means a veteran or a
disabled veteran. 5 U.S.C. § 2108 (3). Under Title 5 of the United States Code, a
veteran is an individual who has served on active duty in the arm ed forces during
a war, in a campaign or expedition for which a campaign badge has been
4
authorized, or during statutorily specified time peri ods i ncluding from
August 2, 1990, to January 2, 1992 , and was discharged under honorable
conditions. 5 U.S.C. § 2108 (1). A disabled veteran is an individual who served
on active duty in the armed forces, was separated under honorable conditions, and
has established the present existence of a service -connecte d disability or is
receiving compensation, disability retirement benefits, or a pension because of a
public statute administered by the Department of Veterans Affairs (DVA) or a
military department. 5 U.S.C. § 2108 (2).
¶8 The administrative judge correctly found that the appellant failed to allege
below that he was a preference eligible under 5 U.S.C. § 2108 .2 ID at 3 -4.
However, for the first time on review, the appellant provides his DD Form 214
documenting his status as an Officer Trainee in the U.S. Air Force from
September 24, 1991 , to February 11, 1992 , and a June 9, 2021 DVA letter
indicating that he is a veter an receiving compensation for a service -connected
disability. PFR File, Tab 1 at 3, 8. The appellant notes that he was unable to
submit the DD Form 214 earlier because it is an older military record secured in a
storage area unavailable for access and re view. Id. at 1.
¶9 The Board will generally 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 it does not appear that this
evidence was unavailable before the record closed below, it implicates the issue
of the Board’s jurisdiction, and therefore, we have considered it. See P oole v.
2 The appellant’s DD -214 submitted to the administrative judge reflect s that he served
on active duty with the U.S. Air Force from February 12, 1992 , to May 1, 1999 , and
that he was honorably discharged . IAF, Tab 9 at 2. His service does not confer
preference eligible status, however, because the record does not reflect that the
appellant served during a war or in a campaign or expedition for which a campaign
badge has been authorized, or that he serve d during one of the statutorily specified
periods. The appellant’s SF -50 indicated that he did not have veterans’ preference and
the appellant did not allege below that he was a disabled veteran. IAF, Tab 6 at 21.
5
Department of the Army , 117 M.S.P.R. 516 , ¶ 9 (2012) (stating that Board
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); Turner v. U.S.
Postal Service , 90 M.S.P.R. 385, ¶ 8 (2001) (considering newly submitted
evidence that an employee was a preference eligible because it was relevant to the
jurisdictional issue).
¶10 The appellant argues that he is a veteran as defined in 5 U.S.C.
§ 2108 (1)(C) , because he served on active duty in the armed forces in the
statutorily specified time period of August 2, 1990 , to Ja nuary 2, 1992. PFR File,
Tab 1 at 1. The term “veteran” as defined in 5 U.S.C. § 2108 (1)(C) applies only
to individuals whose military service included a period of “active duty as defined
by [38 U.S.C. § 101 (21)].” Active duty as relevant for this appeal is defined as
full-time duty in the armed forces, other than active duty for training .3 38 U.S.C.
§ 101(21)(A) ; Hesse v. Department of the Army , 104 M.S.P.R. 647 , ¶ 7 (2007).
Because th e DD Form 2 14 the appellant submitted on review shows that he was
an Officer Trainee in the U.S. Air Force from September 24, 1991 , to
February 11, 1992 , PFR File, Tab 1 at 3 , his service during that time period does
not constitute active duty as defined by 38 U.S.C. § 101(21)(A) . Thus, the
appellant does not qualify as a preference eligible on that basis.
¶11 The appellant also argues that he is a disabled veteran as defined in
5 U.S.C. § 2108 (2). PFR File, Tab 1 at 1. There is no dispute that the appellant
served on active duty in the armed forces and that he was separated under
honorable conditions. IAF, Tab 9 at 2 . The Board has held that th e plain
language of the statute limiting the definition of a veteran to individuals who
served on active duty for purposes other than training does not apply to the
definition of “disabled veteran” in 5 U.S.C. § 2108 (2). Hesse , 104 M.S.P.R. 647 ,
¶ 7. Therefore, the issue is whether the appellant has established the present
3 There is no indication that the appel lant was a cadet at the Air Force Academy while
serving as an Officer Trainee, and thus , 38 U.S.C. § 101(21)(D) has no application here.
6
existence of a service -connected disability or is receiving compensation,
disability retirement benefits, or a pension because of a public statute
administered by the DVA or a military department. 5 U.S.C. § 2108 (2).
¶12 The June 9, 2021 DVA letter states that the appellant has a service -
connected disability (rated at 40%) and that he is receiving monthly compensation
for that service -connected disability . PFR File, Tab 1 at 8. Significantly, the
DVA letter also states that the agency is providing the letter for the appellant to
use in applying for benefits, such as civil service preference. Id. Accordingly,
we find that the appellant nonfrivolously alleged that he is a preference eligible
as defined in 5 U.S.C. § 2108 (2). See Badana v. Department of the Air Force ,
104 M.S.P.R. 182 , ¶ 10 (2006) ( finding that a DVA disability rating constituted a
nonfrivolous allegation that an appellant was entitled to veterans’ preference);
Santiago v. U.S. Postal Service , 62 M.S.P.R. 41 , 43 (1994) ( finding that a letter
submitted for the first time on review certifying that the DVA records showed
that the appell ant had a service -connected disability required remand to determine
whether he was a preference eligible ).
¶13 If the administrative judge determines that the appellant establish ed by
preponderant evidence that he is a preference eligible as defined in 5 U.S.C.
§ 2108 (2), he shall consider whether the appellant has satisfied the requirements
of 5 U.S.C. § 7511 . If the administrative judge finds that the Board has
jurisdiction over this case, he shall then adjudicate the appeal on the merits,
including holding the hearing requested by the appellant, and issue a new initial
decision. If the administrative judge finds no jurisdiction, then the app eal may be
dismissed on that basis.
7
ORDER
¶14 For the reasons discussed above, we remand this case to the Northeastern
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 | ST_PIERRE_STEPHEN_WILLIAM_PH_0432_21_0364_I_1_REMAND_ORDER_1997121.pdf | 2023-01-27 | null | PH-0432 | NP |
3,691 | https://www.mspb.gov/decisions/nonprecedential/BARBOUR_JACQUELIN_CHARLENE_DC_1221_20_0234_W_1_FINAL_ORDER_1997139.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
JACQUELIN CHARLENE B ARBOUR,
Appellant,
v.
DEPARTMENT OF HEALTH AND
HUMAN SERVICES,
Agency.
DOCKET NUMBER
DC-1221 -20-0234 -W-1
DATE: January 27, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL1
Jacquelin Charlene Barbour , Cary, North Carolina, pro se.
Celene Wislon , Bethesda, Maryland, for the agency.
Elise Harris , Atlanta, Georgia, 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
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 appellant has filed a petition for review of the initial decision, which
dismissed her individual right of action appeal without prejudice to refiling. For
the reasons set forth below, we DISMISS the petition for review as moot.
¶2 In his January 8, 2020 initial decision, the administrative judge dismissed
the appeal without prejudice to refiling on or before July 6, 2020.
Barbour v. Department of Health & Human Services , MSPB Docket No.
DC-1221 -20-0234 -W-1, Initial Appeal File, Tab 5, Initial Decision.
The appellant timely filed a petition for review of the initial decision on
January 14, 2020. Petition for Review (PFR) File, Tab 1. While the petition for
review was pending, the regional office automatically refiled the appeal on
July 6, 2020. Barbour v. Department of Health & Human Services ,
MSPB Docket No. DC -1221 -20-0234 -W-2, Appeal File (W-2 AF), Tab 1.
On July 10, 2020, the administrative judge dismissed the refiled appeal without
prejudice to refiling on or before July 12, 2021. W -2 AF, Tab 7. The petition for
review of the first initial decision was still pending when the regional office
automatically refiled the appeal a second time on July 12, 2021.
Barbour v. Department of Health & Human Services , MSPB Doc ket No.
DC-1221 -20-0234 -W-3, Appeal File (W -3 AF), Tab 1. On July 27, 2021, the
administrative judge issued an initial decision dismissing the refiled appeal with
prejudice as withdrawn. W -3 AF, Tab 6. That decision became the final
decision of the Board when neither party filed a petition for review before the
August 31, 2021 filing deadline. Id. at 2.
¶3 The only matter before the Board in this petition for review is whether the
first dismissal without prejudice was proper.2 The remedy for an improperly
2 On July 26, 2021, the appellant filed a pleading with the Board seemingly seeking to
withdraw her petition for review. PFR File, Tab 6. O n July 29, 2021, the Office of the
Clerk of the Board issued an order requiring the appellant to confirm her intent to
withdraw the petition for review and her understanding that any withdrawal is with
3
granted dismissal without prejudice is remand to the regional office for further
adjudication of the appeal. See, e.g. , Dey v. Nuclear Regulatory Commission ,
106 M.S.P.R. 167 , ¶¶ 9-11 (2007). However, the underlying appeal has been
refiled twice and ultimately dismissed with prejudice as withdrawn during the
pendency of this petition for review. Therefore, there is no meaningful relief the
Board could grant even if we determined that the first dismissal without prejudice
should not have been granted. See White v. International Boundary & Water
Commission , 59 M.S.P.R. 62 , 64-65 (1993) (dismiss ing a petition for review as
moot when the Board could not grant effective relief) . We therefore dismiss the
petition for review. See Villar real v. Department of the Treasury , 13 M.S.P.R.
82, 84 (1982) (dismissing a petition for review as moot in light of the appellant’s
decision not to refile his appea l because a Board opinion on the initial decision
would have no effect on the parties in question).
¶4 This is the final order of the Merit Systems Protection Board in this appeal.
5 C.F.R . § 1201.113 (c).
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
prejudice to refiling with the Board. PFR File, Tab 7 . The Office of the Clerk of the
Board informed her that, if she failed to respond, it would take no further action
regarding the withdrawal request and the Board would issue a decision on her petition
for review upon restoration of a quorum. Id. The ap pellant has taken no further action
to effect the withdrawal of her petition , and, therefore, we do not treat her petition as
withdrawn .
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.
4
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefull y each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more inform ation.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit you r petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono repres entation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
5
for Merit Systems Protection Board appellants before the Federal Circuit . The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your dis crimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. ____ , 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 waiv er of any requirement of prepayment of fees, costs, or other security. See
42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
6
with the EEOC no later than 30 calendar days after yo ur representative 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 petit ion for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.4 The court of appeals must receive your petition for
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.
7
review within 60 days of the date of issuance of this decisi on. 5 U.S.C.
§ 7703 (b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following addres s:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
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 | BARBOUR_JACQUELIN_CHARLENE_DC_1221_20_0234_W_1_FINAL_ORDER_1997139.pdf | 2023-01-27 | null | DC-1221 | NP |
3,692 | https://www.mspb.gov/decisions/nonprecedential/HOWARD_JANET_DC_1221_17_0106_W_1_FINAL_ORDER_1997148.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
JANET HOWARD,
Appellant,
v.
DEPARTMENT OF COMMER CE,
Agency.
DOCKET NUMBER
DC-1221 -17-0106 -W-1
DATE: January 27, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL1
Janet Howard , Spotsylvania, Virginia, pro se.
David M. Brown , Esquire, Washington, D.C., for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
Tristan L. Leavitt, Member
Vice Chairman Harris recused herself 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
dismissed her individual right of action (IRA) appeal as barred by the doctrine of
res judicata . Generally, we grant petitions such as this one only in the following
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
require d to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c).
2
circumstances: the initial decision contains erroneous findings of material fact;
the initial decision is based on an erroneous interpretation of statute or regulation
or the erroneous application of the law to the facts of the case; the administrative
judge’s rulings during either the course of the appeal or the initial decision
were not consistent with required procedures or involved an abuse of discretion,
and the resulting error affected the outcome of the case; or new and material
evidence or legal a rgument is available that, despite the petitioner’s due
diligence, was not available when the record closed. Title 5 of the Code of
Federal Regulations, section 1201.115 ( 5 C.F.R. § 1201.115 ). After fully
considering the filings in this appeal, we conclude that the petitioner has not
established any basis under section 1201.115 for granting the petition for review.
Therefore, we DENY the petition for review and AFFIRM the initial decision,
which is now the Board’s final decis ion. 5 C.F.R. § 1201.113 (b).
DISCUSSION OF ARGUME NTS ON REVIEW
¶2 The appellant filed an IRA appeal on November 3, 2016. Initial Appeal
File (IAF), Tab 1.2 In her IRA appeal, the appellant alleged the agency removed
her, effective April 28, 2008, in retaliation for protected whistleblowing activity.
IAF, Tab 1, Tab 5, Tab 9 at 1, Tab 10. The agency asserted the appellant had
previously lit igated her removal before the Board. IAF, Tab 6 at 5. During a
2 In her initial appeal, the appellant stated she was attaching a “supporting letter from
the U.S. Office of Special Counsel [(OSC) ].” IAF, Tab 1. Subsequently, in response to
being ordered to iden tify the date of her complaint to OSC and when she received
notification from OSC that it was terminating her complaint, the appellant stated,
“Appellant has not received such notice, evidence that 120 days have passed since
appellant filed her complaint w ith OSC.” IAF, Tab 5 at 3. The initial appeal record
before us contains no OSC letter. Following the close of the record on review, the
appellant submitted an additional pleading with multiple attachments, including a
September 30, 2016 OSC letter. The Board does not accept such submissions after the
close of the record absent a motion seeking leave to file and describing the nature of
and need for the pleading. 5 C.F.R. § 1201.114 (a)(5), (k). Additionally, any such letter
is ultimately irrelevant to our decision on this petition for review, given the undisputed
facts discussed herein.
3
subsequent status conference with the administrative judge, “the appellant
confirmed that this appeal contests her 2008 removal for performance reasons, an
action that she previously appealed to the Board in Howard v. Department of
Commerce , 2008 WL 5552758 (Nov. 7, 2008), and was the subject of a final
Board order in Howard v. Department of Commerce , 11 M.S.P.R. 466 (May 19,
2009).” IAF, Tab 9.
¶3 The administrative judge ordered the appellan t to show cause why her
appeal should not be dismissed as barred by the doctrine of res judicata,
indicating she should specifically address the following question: “Why is the
agency wrong when it argues that Board law precludes me from reconsidering her
allegation that her removal, already upheld by the Board, was lawful? (She may
wish also to explain why she did not plead a whistleblower defense as part of that
case).” Id. The administrative judge also correctly explained to the appellant
that the doct rine of r es judicata precludes parties from relitigating issues that
were, or could have been, raised in a prior action, and is applicable if: (1) the
prior judgment was rendered by a forum with competent jurisdiction; (2) the prior
judgment was a final judgment o n the merits; and (3) the same cause of action
and the same parties or their privies were involved in both cases. Id.; see
Peartree v. U.S. Postal Service , 66 M.S.P.R. 332 , 336 -37 (1995).
¶4 In response to the administrative judge’s order, the appellant merely
reiterated the bases for her claim that “the Appellant’s 2008 removal upheld by
the U.S. Merit Systems Protection Board in 2 009 was not lawful.” IAF, Tab 10.
The administrative judge then dismissed the appeal as barred by the doctrine of
res judicata, finding the appellant did not argue her IRA appeal involved a
different action than her prior removal appeal and did not dispu te that: (1) the
Board had jurisdiction to adjudicate her prior removal appeal; (2 ) her prior
removal appeal was adjudicated on the merits and became final; (3 ) the parties to
that action were the same as those in her IRA appeal. IAF, Tab 13, Initial
Decision at 3.
4
¶5 In her petition for review, the appellant does not challenge any of these
findings. Petition for Review File, Tab 1. Rather, she asserts, as to her prior
appeal of her 2008 removal, that: (1) the administrative judge denied her
witnesses, thereby violating her right to due process; (2) the agency failed to
engage her in settlement discussions; and (3) the administrative judge failed to
properly consider her failure to accommodate claim. Id. None of these
arguments warrant disturbing the i nitial decision. Accordingly, the petition for
review is denied and the initial decision is affirmed.
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 t ime
limit may result in the dismis sal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to 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 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.
5
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a pe tition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional info rmation about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules o f Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
6
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 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:
7
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C . 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in
section 2302(b) other than practices described in section 2302(b)(8), or
2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial
review either with the U.S. Court of Appeals for the Federal Circuit or any court
of appeals of competent jurisdiction.4 The court of appeals must receive your
petition for review within 60 days of the date of issuance of this decision.
5 U.S.C. § 7703 (b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circui t
717 Madison Place, N.W.
Washington, D.C. 20439
4 The original statutory provision that provided for judicial review of certain
whistleblower claims by a ny court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whis tleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510.
8
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petiti oners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our we bsite at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorne y will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD:
Washington, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board | HOWARD_JANET_DC_1221_17_0106_W_1_FINAL_ORDER_1997148.pdf | 2023-01-27 | null | DC-1221 | NP |
3,693 | https://www.mspb.gov/decisions/nonprecedential/HENDERSON_JOHN_A_DC_0752_15_0803_I_2_FINAL_ORDER_1997160.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
JOHN A. HENDERSON,
Appellant,
v.
DEPARTMENT OF STATE,
Agency.
DOCKET NUMBER
DC-0752 -15-0803 -I-2
DATE: January 27, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL1
Richard Carnell Baker , Esquire, Washington, D.C., for the appellant.
Aaron L. Marcus , Patrick McMurray , and Marianne Perciaccante ,
Washington , D.C., for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Mem ber
Tristan L. Leavitt, Member
FINAL ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
dismissed his alleged involuntary retirement appeal for lack of jurisdiction.
Generally, we grant petitions such as this one only in the following
circumstances: the initial decision contains erroneous findings of material fact;
1 A nonprecedential order is one that the Board has determined does not add
significantly to the 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).
BACKGROUND
¶2 The appellant served in a series of agency positions , most recently as a
Management Analyst in the Post Analysis and Support Division of the agency’s
Bureau of Consular Affairs. Henderson v. Department of State , MSP B Docket
No. DC -0752 -15-0803 -I-1, Initial Appeal File (IAF), Tab 10 at 28. The agency
issued him an Interim Rating of Record (IRR) for the period January 1 to July 15,
2014 , reflecting a rating of not successful on three out of five Critical
Performance Elements , which earned him a summary rating of not s uccessful. Id.
at 245-52. The appellant filed a whistleblower complaint with the Office of
Special Counsel on September 5 , 2014 , contending in pertinent part that his
supervisors gave him a not successful rating in retaliation for his draft report that
he claimed showed violations of rule, regulation, or law, or gross mismanagement
in Mexico during the time his supervisor served as a Foreign S ervice Officer
there. IAF, Tab 7, Exhibit (Ex.) B at 7, 11 .2
2 The appella nt also filed an individual right of action appeal, MSPB Docket
No. DC-1221 -15-0639 -W-2, which the administrative judge dismissed for lack of
3
¶3 On October 28, 2014, the agency issued the appellant a letter placing him
on a 60 -day performance improvement plan (PIP). IAF, Tab 10 at 225 -27, 232 .
The agency subsequently denied him a November 2 014 within -grade increase . Id.
at 199-201. The appellant’s supervisor notified him on January 26, 2015 , that he
had failed t he PIP and that , as a consequence, she recommended that the agency
propose his removal . Id. at 144 . On March 31, 2015, the agency proposed the
appellant’s removal for unacceptable performance under chapter 43 . Id.
at 19-157.
¶4 The appellant retired on A pril 30, 2015 , while the proposed removal was
pending . IAF, Tab 1 at 7 . Subsequent to retiring, the appellant provided a
written response to the notice of proposed removal, IAF, Tab 7, Ex. D, but the
record does not reflect that the agency made or issued a decision on the proposed
action. He filed this alleged involuntary retirement appeal on May 30, 2015.
IAF, Tab 1. The administrative judge issued an order that provided the appellant
notice of the elements and burdens of establishing jurisdiction ove r his appeal .
IAF, Tab 2 at 2-3; Henderson v. Department of State , MSPB Docket No.
DC-0752 -15-0803 -I-2, Refiled Appeal File (RAF),3 Tab 5. Without holding the
requested hearing, the administrative judge issued an order that dismissed the
appeal for lack of jurisdiction, finding that the appellant failed to make a
nonfrivolous allegation that his decision to retire was involuntary. RAF, T ab 13,
Initial Decision (ID) at 11-19.
¶5 In concluding that the appellant failed to make a nonfrivolous allegation
that he involuntarily retired, t he administrative judge found that the appellant
could have contest ed the performance issues that the agency cited in proposing
his removal , but he chose not to , and that he instead made a calculated decision to
jurisdiction. Neither party petitioned for review of that decision , and it is now the final
decision of the Board. 5 C.F.R. § 1201.113 .
3 The administrative judge dismissed the initial appeal without prejudice and refiled it
in accordance with his instructions. IAF, Tab 20; RAF, Tab 1.
4
precipitously retire before responding to the agency’s proposed action. ID
at 12-13. He also found that the appellant failed to make a nonfrivolous
allegation that the agency coerced his retirement by making his working
conditions so intolerable that a reasonable pers on in his position would have been
compelled to retire under the circumstances. ID at 13-15. Lastly, the
administrative judge found that the appellant’s contention that he was forced to
retire because the agency’s retaliation and harassment affected his medical
condition also was insufficient to support a nonfrivolous allegation of
involuntariness. ID at 15 -19.
¶6 In his petition for review, the appellant challenges the administrative
judge’s findings, arguing that the agency rated his 2013 performance as fully
successful and that , consequently, it lacked reasonable grounds for subsequently
placing him on the PIP. Petition for Review (PFR) File, Tab 1 at 4 -6. He also
argues that the agency violated its own regulations in issuing the IRR on whi ch it
based his placement on the PIP by rating him on tasks not specifically identified
in his performance plan and for a time period less than the required minimum of
120 days . Id. at 5-8. He contends that the administrative judge erred in denying
him an evidentia ry hearing on his involuntary retirement claim. Id. at 6. He also
challenges the administrative judge’s finding that his medical evidence was
insufficient to support a nonfrivolous allegation of intolerable working conditions
or that the agency was unaware of his medical condition in that regard . Id. at 6-7.
The agency respond s in opposition to the appellant’s petition for review. PFR
File, Tab 3.
DISCUSSION OF ARGUME NTS ON REVIEW
¶7 Retirements are presumed to be voluntary, and the appellant bears the
burden of proving otherwise. See Axsom v. Department of Veterans Affairs ,
110 M.S.P.R. 605 , ¶ 12 (200 9). To overcome the presumption that a retirement
was voluntary, the employee must show that the retirement was the result of the
5
agency’ s misinformation or deception, or that the retirement was coerced by the
agency. Id. To establish involuntariness on the basis of coercion, an employee
must show that the agency effectively imposed the terms of the employee ’s
retirement , the employee had no realistic alternative but to retire , and the
employee’ s retirement was the result of improper acts by the agency. Id. The
touchstone of the “voluntariness” analysis is whether, considering the totality of
the circumstances, factors operated on the employee ’s decision -making process
that deprived him of freedom of choice. Id. If an employee claims that the
agency c oerced his retirement by creating intolerable working conditions, he must
show a reasonable employee in his position would have found the working
conditions were so difficult or unpleasant that a reasonable employee would have
felt compelled to retire . Id. The Board addresses allegations of discrimination
and reprisal in connection with an alleged involuntary retirement only insofar as
those allegations relate to the issue of voluntariness . Id.
¶8 The doctrine of coerced involuntariness is “a narrow one.” Staats v. U.S.
Postal Service , 99 F.3d 1120 , 1124 (Fed. Cir. 1996). The fact that the appellant
was faced with the unpleasant choice of retirement or opposing the proposed
performance -based removal action does not rebut the presumed voluntariness of
his ultimate choice . See Barthel v. Department of the Army , 38 M.S.P.R. 245 ,
251 (1988) . However, if the appellant can show that the agency knew that the
reasons for the proposed chapter 43 action could not be substantiated, the
proposed action would be purely coercive and w ould render his resulting
retirement involuntary . Id.
¶9 We agree with the administrative judge that the appellant failed to
nonfrivolously allege facts that, if proven, could rebut the presumption of
voluntariness and entitle him to a hearing at which he could prove that his
retirement was involuntary. ID at 11 -19; see Burgess v. Merit Systems Protection
Boar d, 758 F.2d 641 , 642-43 (Fed . Cir. 1985) (finding that an appellant is entitled
to a hearing on the issue of jurisdiction over an appeal of an allegedly involuntary
6
retirement only if he makes a nonfrivolous allegation casting doubt on the
presumption of voluntariness).
¶10 On review, t he appellant makes numerous allegations concerning his ratings
and performance plan, and he contends that the agency lacked reasonable grounds
to place him on the PIP. PFR File, Tab 1 at 4-6. However, none of his
contentions amount to a nonfrivolous allegation that he had no choice but to
retire, that the agency improperly coerced his retirement, that it lacked a
reasonable basis for its action, or that it could not have sustained the action on
appeal.4 See Barthel , 38 M.S.P.R. at 251; ID at 12; IAF, Tab 10 at 49-51, 103 -08,
123-44, 160 -69, 245 -52. For example, the appellant’s fully successful rating in
2013, in and of itself, does not indicate that his subsequent IRR was in error or
that the agency improperly placed him on the PIP. PFR File, Tab 1 at 4-5; see
4 In the past, the Board has held that there is no requirement that an agency establish the
unacceptability of pre -PIP performance in analyzing a performance -based action under
chapter 43. See, e.g., Thompson v. Department of the Navy , 89 M.S.P.R. 188 , ¶ 19
(2001). However, in Santos v. National Aeronautics & Space Adm inistration , 990 F.3d
1355 , 1360 -61 (Fed. Cir. 2021), the U.S. Court of Appeal for the Federal Circuit held
that, to support an adverse action u nder chapter 43, an agency “must justify institution
of a PIP” by showing that the employee’s performance was unacceptable before the PIP.
Here , the issue before the Board is not whether the agency can substantiate a chapter 43
action, but, rather, whethe r the appellant nonfrivolously alleged that his retirement was
involuntary . Thus, th e appellant’s allegation that his PIP was not justified should be
considered only as it relates to the issue of voluntariness of his retirement. See Barthel ,
38 M.S.P.R. at 251 (reasoning that, if the appellant can show that the agency knew that
the reasons for the proposed chapter 43 action could not be substantiated, the proposed
action would be purely coercive and would render his resulting retirement involuntary ).
We find that, under the particular circumstances of this case, the appellant’s argument
that he was improperly placed on a PIP do es not amount to a nonfrivolous allegation
that his retirement was involuntary. In relevant part , he has not nonfrivolously alleged
that the agency knew or should have known that it would not prevail on its proposed 43
action. See id. Instead, his arguments concerning the implementation of the PIP
amount only to mere disagreement with the agency’s decision to place him on one .
RAF, Tab 9 at 5 -7, 16; PFR File, Tab 1 at 4 -6; see Briscoe v. Department of Veterans
Affairs , 55 F.3d 1571 , 1573 (Fed. Cir. 1995) ( stating tha t, “[a] lthough an appellant need
not prove her entire case before she is entitled to a hearing, the [B]oard may request
sufficient evidence to determine if, in the first instance, there is any support for what
otherwise might be bald allegations.”).
7
Santos v. National Aeronautics & Space Administration , 990 F.3d 1355 , 1363
(Fed. Cir. 2021) ( requiring no “particular evidentiary sh owing with respect to [an]
employee’s pre -PIP performance ” and explaining that “[p]erformance failures can
be documented or established in any number of ways ”). Indeed, the agency
points out that , consistent with the appellant’s IRR, his 2013 performance
appraisal noted discussions with him regarding the need for him to work on and
improve his oral and written communication skills. PFR File, Tab 3 at 8; IAF,
Tab 7, Ex. A at 7. Similarly, the appellant’s contentions that his performance
plan somehow viola ted agency rules and regulations concerning the content or
length of such plans are not supported in the record and also fail to comprise a
nonfrivolous allegation that he involuntarily retired. PFR File, Tab 1 at 5. For
instance , the agency’s rule 3 FAM 2822.3 -1 only requires a new performance plan
if the temporary assignment is expected to last at least 120 days , and the record
reflects that the appellant’s detail lasted from March 24 to June 16, 2014, a total
of 84 days. IAF, Tab 10 at 245; Tab 7, Ex. C at 4 -5.
¶11 Further , regardless of the appellant’s claims regarding the agency’s
evaluation of his performance, these are the kind of arguments that he could have
made had he chosen to contest his removal before the agency or the Board as
opposed to retir ing before the agency issued a decision on the notice of proposed
removal and pursuing an involuntary retirement appeal . See Axsom , 110 M.S.P.R.
605, ¶ 17 (finding that a resignation is not involuntary if the employee had a
choice of whether to resign or contest the validity of the agency action).
¶12 We also agree with the administrative judge t hat the appellant failed to
nonfrivolous ly allege that the agency coerced his retirement by subjecting him to
intolerable and hostile working conditions. ID at 13 -15; see Miller v. Department
of Defense , 85 M.S.P.R. 310 , ¶ 32 (2000) (“An employee is not guaranteed a
working environment free of stress. Dissatisfaction with work assignments, a
feeling of being unfairly criticized, or difficult or unpleasant working conditions
are generally not so intolerable as to compel a reasonable person to resign.”). We
8
agree , moreover, that the appellant’s medical evidence is insufficient to support a
nonfrivolous allegation of involuntariness. ID at 17. As the administrative judge
found, the appellant failed to raise his medical condition as an issue before,
during, or after the PIP, and also failed to cite his m edical condition in the
response to the notice of proposed removal he submitted after he retired. ID
at 17-18; IAF, Tab 7, Ex. D. Indeed, his May 7, 2015 post-retirement response to
the notice of proposed removal predates the June 18, 2015 visit to the doctor on
whose report he bases his contentions , IAF, Tab 11, and the record does not
reflect that the appellant ever raised his medical condition as an issue even
though the agency encouraged him to identify any such co ndition and seek
accommodation i f nee d be, ID at 15 -17; IAF, Tab 10 at 29, 46 .
¶13 Thus, b ecause we agree with the administrative judge that the appellant
failed to satisfy the narrow and demanding legal standard necessary to earn a
hearing on his involuntary retirement claim, we affirm his dec ision to dismiss the
appellant’s involuntary retirement appeal for lack of jurisdiction without holding
a hearing.
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 fol lowing summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
5 Sinc e the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.
9
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the appli cable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a part icular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional 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.
10
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by 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 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
EEOC’s Office 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:
11
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, i t must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option a pplies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practic es described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.6 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).
6 The original s tatutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Revie w Act is retroactive to November 26, 2017. Pub. L. No. 115 -195,
132 Stat. 1510.
12
If you submit a petition for judicial review to the U.S. Court of Ap peals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the 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 | HENDERSON_JOHN_A_DC_0752_15_0803_I_2_FINAL_ORDER_1997160.pdf | 2023-01-27 | null | DC-0752 | NP |
3,694 | https://www.mspb.gov/decisions/nonprecedential/SENENCE_DAMIAN_F_SF_0831_16_0803_I_1_FINAL_ORDER_1997179.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
DAMIAN F. SENENCE,
Appellant,
v.
OFFICE OF PERSONNEL
MANAGEMENT,
Agency.
DOCKET NUMBER
SF-0831 -16-0803 -I-1
DATE: January 27, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL1
Rufus F. Nobles I, San Narciso, Zambales, Philippines, for the appellant.
Carla Robinson , 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 decision of the Office of Personnel Management (OPM) denying his
application for deferred retirement under the Civil Service Retirement System
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case 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
(CSRS). Generally, we grant petitions such as this one only in the following
circumstances: the initial decision contains erroneous findings of material fact;
the initial decision is based on an erroneous interpretation of statute or regulation
or the erroneous a pplication of the law to the facts of the case; the administrative
judge’s rulings during either the course of the appeal or the initial decision
were not consistent with required procedures or involved an abuse of discretion,
and the resulting error affec ted the outcome of the case; or new and material
evidence or legal argument is available that, despite the petitioner’s due
diligence, was not available when the record closed. Title 5 of the Code of
Federal Regulations, section 1201.115 ( 5 C.F.R. § 1201.115 ). After fully
considering the filings in this appeal, we conclude that the petitioner has not
established any basis under section 1201.115 for granting the petition for review.
Therefore, we DENY the p etition for review. Except as expressly MODIFIED by
this Final Order to find that the appellant did not seek to make a deposit into the
Civil Service Retirement and Disability Fund (Fund), we AFFIRM the initial
decision.
BACKGROUND
¶2 The administrative judge made the following factual findings, which the
parties do not dispute on review. The appellant formally worked as a civilian
employee of the Department of the Navy in Cubi Point , Philippines. Initial
Appeal File ( IAF) , Tab 2 at 10; Tab 3, Initial Decision (ID) at 2. He received an
indefinite appointment in the excepted service on July 18, 1966 , and his
subsequent appointments were either temporary or indefinite appointments in the
excepted service until he resigned on May 15, 199 2. ID at 2; IAF, Tab 2 at 10,
13, 16 -17; Petition for Review (PFR) File, Tab 1 at 3. Below, the parties
submitted only one Standard Form 50 (SF -50), which documents the appellant’s
retirement plan as “other.” I AF, Tab 2 at 10; ID at 2. The SF -50 remark s section
stated that he was covered by the retirement system applicable to employees hired
3
pursuant to the Filipino Employees Personnel Instructions (FEPI). IAF , Tab 2
at 10; ID at 3.
¶3 On January 28, 2014, more than 20 years after the appellant retired, he
applied for a deferred retirement annuity under the CSRS based on his service
from July 18, 1966 , to May 15, 1992 .2 IAF, Tab 2 at 8-9; ID at 4. OPM issued a
reconsideration decision denying his application. IAF, Tab 2 at 6-7.
¶4 The appellant appealed OPM ’s reconsideration decision to the Board , and
he declined a hearing on his appeal.3 IAF, Tab 1 at 1, 3. The administrative
judge issued an initial decision affirming OPM’s reconsideration decision . ID
at 2, 7-11. She found that although the appellant had sufficient creditable Federal
service, he was not eligible for a deferred annuity under the CSRS because he
failed to show that any of that service was performed in a position covered under
the CSRS . ID at 7 -11. The appellant has filed a p etition for review. PFR File,
Tab 1. OPM has filed a response in opposition to h is petition. PFR File, Tab 4.
¶5 The appellant, as an applicant, bears the burden of proving his entitlement
to an annuity. See Cheeseman v. Office of Personnel Management , 791 F.2d 138 ,
140-41 (Fed. Cir. 1986). To qualify for a civil service retirement annuity, a
Government employee must complete a t least 5 years of creditable service with at
least 1 of the last 2 years of his Federal service in a “covered” position. 5 U.S.C.
2 The administrative judge characterized the appellant as also seeking the right to make
a deposit to the Fund. ID at 4. This chara cterization was consistent with OPM’s
interpretation of a letter that the appellant submitted with his deferred annuity
application. IAF, Tab 2 at 6-7. However, his argument was that he was not required to
make such a deposit to be eligible f or an annuity. IAF, Tab 1 at 3 ; PFR File, Tab 1 at 2.
Accordingly, we modify the initial decis ion to find that the appellant only applied for a
deferred annuity.
3 This appeal was originally consolidated with seven other simultaneously filed appeals
making virtually identical claims , but the administrative judge terminated the
consolidation and iss ued a separate init ial decision for each appellant . ID at 2 n.1; see
Eight Philippine Retirement Applicants v. Office of Personnel Management , MSPB
Docket No. SF -0831 -16-0806 -I-1, Initial Appeal File , Tab 6.
4
§ 8333 (a)-(b); Quiocson v. Office of Personnel Management , 490 F.3d 1358 , 1360
(Fed. Cir. 2007). Covered service includes only an appointment that is subject to
the CSRS and for which a n employee must therefore deposit part of his pay into
the Fund. Encarnado v. Office of Personnel Management , 116 M.S.P.R. 301 , ¶ 7
(2011).
¶6 The administrative judge affirmed OPM’s reconsideration decision based on
her finding that the appellant was not eligible for a CSRS annuity because he had
not served in a position covered by the CSRS. ID at 6 -7, 9. On review, the
appellant argues that his service was covered by virtue of 5 C.F.R. § 831.303 (a)
and 5 U.S.C. § 8334 (c). PFR File, Tab 1 at 3-16. For t he reasons discussed
below, we agree with the administrative judge’s decision to affirm the OPM
reconsideration decision.
¶7 Well -established principles of law preclude this appellant from qualifying
for a deferred annuity. Temporary and indefinite appoint ments are excluded from
CSRS coverage . Quioscon , 490 F.3d at 1360; Encarnado , 116 M.S.P.R. 301 , ¶ 8;
5 C.F.R. § 831.201 (a)(1) -(2), (13) -(14). The appellant’s reliance on 5 C.F.R.
§ 831.303 (a) is misplaced, as that section only addresses whether service is
creditable, not whether it is covered. See Tate v. Office of Personnel
Management , 109 M.S.P.R. 57 , ¶¶ 7 -8 (2008) (explaining that section 831.303(a)
provides CSRS credit for pre -1969 Federal service). Further, 5 U.S.C. § 8334 (c),
which permits certain individua ls to make deposits, does not support the
appellant’s claims. Section 8334(c) applies only to individuals who, unlike the
appellant, have covered service, in other words, service during which
contributions to the Fund were withheld. Muyco v. Office of Pe rsonnel
Management , 114 M.S.P.R. 694 , ¶¶ 12 -13 (2010); 5 C.F.R. § 831.112 (a)(2)
(interpreting section 8334(c) as permitting an individual who occupied a position
“in which retirement deductions were properly withheld” to make a deposit or
5
redeposit). The appellant has not alleged that such contributions were withh eld.
¶8 Accordingly, we deny the petition for review and affirm the initial decision
as modified .
NOTICE OF APPEAL RIG HTS4
The initial decision, as supplemented by this Final Order, constitutes the
Board’s final decision in this matter. 5 C.F.R. § 1201.113 . You may obtain
review of this final decision. 5 U.S.C. § 7703 (a)(1) . By statute, the nature of
your claims determines the time limit for seeking such review and the appropriate
forum with which to file. 5 U.S.C. § 7703 (b). Although we offer the following
summar y of available appeal rights, the Meri t Systems Protection Board does not
provide legal advice on which option is most appropriate for your situation an d
the rights described below do not represent a statement of how courts will rule
regarding which cases fall within their jurisdiction. If you wish to seek review of
this final decision, you should immediately review the law applicable to your
claims and carefully follow all filing time limits and requirements. Failure to file
within the applicable time li mit may result in the dismissal of your case by your
chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
4 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.
6
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the 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
7
you do, then you must file with the district court no later than 30 calendar days
after your representative receives this decision. If the action involves a claim of
discrimination based on race, color, religion, sex, national origin, or a disabling
condition, you may be entitled to representation by a court -appointed lawyer and
to waiver of any requirement of prepayment of fees, costs, or other security. See
42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
8
(3) Judicial revi ew pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8 ) or
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Fe deral Circuit or any court of appeals of
competent jurisdiction.5 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is 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.
5 The origi nal statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permane ntly allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195,
132 Stat. 1510.
9
If you are interested in securing pro bono 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 | SENENCE_DAMIAN_F_SF_0831_16_0803_I_1_FINAL_ORDER_1997179.pdf | 2023-01-27 | null | SF-0831 | NP |
3,695 | https://www.mspb.gov/decisions/nonprecedential/ANENE_HUMPHREY_AT_0752_22_0360_I_1_FINAL_ORDER_1997199.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
HUMPHREY ANENE, JR.,
Appellant,
v.
DEPARTMENT OF THE AI R FORCE,
Agency.
DOCKET NUMBER
AT-0752 -22-0360 -I-1
DATE: January 27, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL1
David L. Scher , Esquire, Washington, D.C., for the appellant.
Neil J. Ognibene , Esquire, Tampa, Florida, for the appellant.
Filomena Gehart , Eglin A ir Force Base, 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 decision, which
dismissed his termination appeal 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 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 fi lings 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 off er the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
2 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise 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 whethe r a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(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 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 recei ves this decision before
you do, then you must file with the district court no later than 30 calendar days
after your representative receives this decision. If the action involves a claim of
discrimination based on race, color, religion, sex, national ori gin, or a disabling
condition, you may be entitled to representation by a court -appointed lawyer and
to waiver of any requirement of prepayment of fees, costs, or other security. See
42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case,
and your representative rec eives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative 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 o f Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have rai sed
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8) , or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.3 The court of appeals must receive your petition fo r
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(B).
3 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit cou rt of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195,
132 Stat. 1510.
6
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Conta ct information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites .aspx .
FOR THE BOARD:
Washington, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board | ANENE_HUMPHREY_AT_0752_22_0360_I_1_FINAL_ORDER_1997199.pdf | 2023-01-27 | null | AT-0752 | NP |
3,696 | https://www.mspb.gov/decisions/nonprecedential/ALABRE_DAMAS_J_AT_0752_22_0176_I_1_FINAL_ORDER_1997212.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
DAMAS J. ALABRE,
Appellant,
v.
DEPARTMENT OF HOMELA ND
SECURITY,
Agency.
DOCKET NUMBER
AT-0752 -22-0176 -I-1
DATE: January 27, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL1
Damas J. Alabre , Saint Augustine, Florida, pro se.
Lisa Zito , Miami, 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 decision, which
dismissed his appeal of his alleged involuntary resignation for lack of
jurisdiction . On petition for review, the appellant argues , among other things,
that his intent in submitting his resignation letter to the agency was not to resign
1 A nonprecedential order is one that the Board has determined does not add
significantly to the 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
but to seek extend ed medical leave . 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 re sulting 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 1201.11 5 (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 Although the administ rative judge correctly found that the appellant failed
to make a nonfrivolous allegation that his resignation was involuntary based on
either the agency’s purported failure to accommodate his disability or alleged
agency misinformation , Initial Appeal File (IAF), Tab 18, Initial Decision at 5-7,
the central basis for the appellant’s involuntary resignation claim is that he did
not resign but rather was placed on a medical leave of absence , which is still in
effect. IAF , Tab 1 at 3, 28, 31 ; Petition for Rev iew (PFR) File, Tab 1 at 4.
However, two letters bearing the appellant’s signature, one of which he referred
2 The administrative judge docketed a separate appeal against the Office of Personnel
Management (OPM) based on the appellant’s appeal form. Alabre v. Office of
Personnel Management , MSPB Docket No. AT-844E -22-0174 -I-1, Initi al Appeal File
(0174 IAF) , Tab 4 at 1. In that appeal , the administrative judge affirmed OPM’s final
decision dismissing the appellant’s 2021 disability retirement application on the
grounds that the application was untimely filed and the appellant did not meet the
statutory requirement to waive the filing deadline. 0174 IAF , Tab 15, Initial Decision
at 2-4. As no petition for review of the administrative judge’s initial decision was filed
in the appellant’s appeal against OPM, that matter is not before the Board.
3
to as his “letter of resignation,” IAF, Tab 15 at 89-91, irrefutably establish the
appellant’s voluntary resignation, and his claim that he did no t resign is
implausible and conclusory and thus does not amount to a nonfrivolous allegation
of Board jurisdiction .3 See 5 C.F.R. § 1201.4 (s).
NOTICE OF APPEAL RIG HTS4
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
3 The appellant also alleged that the agency improperly reduced him in grade when it
reassigned him to a GS-7 Customs Technician position in 2003, arguing that the
reduction made him unable to obtain other Federal posi tions. IAF, Tab 1 at 3, 32 -33;
PFR File, Tab 1 at 5-7. However, the appellant also stated that he agreed to accept the
agency’s proposal to reassign him to the Customs Technician position based on the
advice of his union representative, who told him that if he turned the proposal down,
the Office of Workers’ Compensation Programs ( OWCP ) would reject or discontinue
his claim. IAF, Tab 1 at 21 -23. In Reed v. U.S. Postal Service , 99 M.S.P.R. 453 , ¶ 14
(2005), aff’d , 198 F. App’x 966 (Fed. Cir. 2006), the Board found that the fact that an
appellant faced a choice between the unpleasant alternatives of a demotion and the loss
of OWCP benefits did not render his acceptance of a lower -graded position involuntary.
Because the appellant’s acceptance of the reassignment was voluntary by his own
admissions, the Board clearly lack s jurisdiction over this claim , and we need not
consider it further. See Holloway v. Department of the Interior , 82 M.S.P.R. 4 35, ¶ 21
(1999) (stating that voluntary act ions are not appealable to the Board) . Finally, though
the appellant also challenged the agency’s failure to restore him to duty after his
2004 resignation , IAF, Tab 1 at 3, 29 -30, 3 4; PFR File, Tab 1 at 5, because we find that
the appellant’s resignation was voluntary, he was not an employee for purposes of
restoration rights and had no right to make a restoration claim to the Board. Claxton v.
Department of Justice , 6 M.S.P.R. 47 , 48 (1981).
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 opt ion is most appropriate in any matter.
4
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of partic ular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
5
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by a n action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. ____ , 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 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:
6
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 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.5 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(B).
5 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 201 8, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The Al l Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195,
132 Stat. 1510.
7
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se 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 | ALABRE_DAMAS_J_AT_0752_22_0176_I_1_FINAL_ORDER_1997212.pdf | 2023-01-27 | null | AT-0752 | NP |
3,697 | https://www.mspb.gov/decisions/nonprecedential/CALHOUN_JEFFREY_O_NY_844E_21_0145_A_1_FINAL_ORDER_1997219.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
JEFFREY O. CALHOUN, JR.,
Appellant,
v.
OFFICE OF PERSONNEL
MANAGEMENT,
Agency.
DOCKET NUMBER
NY-844E -21-0145 -A-1
DATE: January 27, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL1
Jeffrey O. Calhoun, Jr., Rochester, New York, pro se.
Sherri McCall , 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
denied his motion for attorney’s fees . On petition for review, among other things,
the appellant renew s his motion for attorney fees and specifies that such fees
totaled $6,000 . 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
following circumstances: the initial decision contains erroneous findings of
material fact; the initial decision is based on an erroneous interpretation of statute
or regulation or the erroneous application of the law to the facts of the case; the
administrative judge’s rulings during either the course of the appeal or the initial
decision were not consistent with required procedures or involved an abuse of
discretion, and the resulting error affe cted the outcome of the case; or new and
material evidence or legal argument is available that, despite the petitioner’s due
diligence, was not available when the record closed. Title 5 of the Code of
Federal Regulations, section 1201.115 ( 5 C.F.R. § 1201.115 ). After fully
considering the filings in this appeal, we conclude that the petitioner has not
established any basis under section 1201.115 for granting the petition for review.
Therefore, we DENY the petition for review and AFFIRM the initial decision,
which is now the Board’s final decision.2 5 C.F.R. § 1201.113 (b).
2 Among other documents, the appellant submit s for the first time on review proof of
his payments to an attorney and an agreement describing the services he would receive
from his attorney for the $6,000 flat fee. Petition for Review File, Tab 2. The Board
need not consider the evidence the appellant files for the first time on review —all of
which appears to predate his motion for attorney fees —because he fails to show that it
was unavailable, de spite the exercise of due diligence, before the record closed below.
Avansino v. U.S. Postal Service, 3 M.S.P.R. 211 , 214 (1980). In any event, even though
the appellant and his attorney entered into a flat fee agreement, the proper method for
computing the amount of reasonable attorney fees in a Board proceeding is to base the
fee award on the number of hours of work performed multiplied by the a ttorney’s
hourly rate. Ruble v. Office of Personnel Management , 96 M.S.P.R. 44 , ¶ 13 n.*
(2004). The appellant submitted no infor mation regarding the number of hours that his
attorney or employees of his attorney’s law firm devoted to his case. Without
information about the number of hours an attorney devoted to a case, the Board cannot
determine the reasonable amount of attorney f ees. Brown v. Department of Health and
Human Services , 42 M.S.P.R. 291 , 296 (1989). The appellant therefore failed to satisfy
his burden of showing that the requested attorney fees were reasonable. See Doe v.
Pension Benefit Guaranty Corporation , 123 M.S.P.R. 1 , ¶ 6 (2015) .
3
NOTICE OF APPEAL RIG HTS3
You may obtain rev iew of this final decision. 5 U.S.C. § 7703 (a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703 (b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situati on and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for 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 o f Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Fede ral Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attor ney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appe alable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 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
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receive s
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C . 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
6
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.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 Circui t
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the 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 or iginal statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, perm anently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circu it Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195,
132 Stat. 1510.
7
Conta ct information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites .aspx .
FOR THE BOARD:
Washington, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board | CALHOUN_JEFFREY_O_NY_844E_21_0145_A_1_FINAL_ORDER_1997219.pdf | 2023-01-27 | null | NY-844E | NP |
3,698 | https://www.mspb.gov/decisions/nonprecedential/OGDEN_COREY_D_PH_844E_18_0305_I_1_FINAL_ORDER_1997223.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
COREY D. OGDEN,
Appellant,
v.
OFFICE OF PERSONNEL
MANAGEMENT,
Agency.
DOCKET NUMBER
PH-844E -18-0305 -I-1
DATE: January 27, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL1
Corey D. Ogden , Rawlings, Maryland, pro se.
Albert Pete Alston, Jr. , Washington, D.C., for the agency.
BEFORE
Cathy A. Harris , Vice Chairman
Raymond A. Limon , Member
Tristan L. Leavitt , Member
FINAL ORDER
¶1 The app ellant has filed a petition for review of the initial decision, which
affirmed the final decision of the Office of Personnel Management (OPM)
denying his application for disability retirement under the Federal Employees’
Retirement System (FERS) . For the reasons discussed below, we GRANT the
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and ad ministrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c).
2
appellant’s petition for review , REVERSE the initial decision , and DO NOT
SUSTAIN OPM’s final decision .
BACKGROUND
¶2 The appellant served as a FERS -covered Social Insurance Specialist
(Claims Representative) for the Social Security Administration from
July 19, 2009 , to July 18, 2012, and again beginning March 23, 2014.
Initial Appeal File (IAF), Tab 6 at 127, 130. The duties of this position include
adjudicating applications for Social Security benefits and providin g guidance and
assistance to applicants. Id. at 111. On or about October 3, 2016, the appellant
filed an application for disability retirement with a claimed condition of bipolar
disorder. Id. at 6 7-72. On April 30, 201 8, OPM issued a final decision de nying
the appellant’s disability retirement application on the basis that the appellant had
not shown that he was disabled from working. Id. at 5 -11.
¶3 The appellant filed a Board appeal challenging OPM’s decision.
IAF, Tab 1. After a hearing, the adminis trative judge issued an initial decision
affirming OPM’s final decision. IAF, Tab 16, Initial Decision (ID). He agreed
with OPM that the appellant had not made the requisite showing of disability.
ID at 7-8. The administrative judge acknowledged the ap pellant’s history with
bipolar disorder, but he found that the appellant failed to provide sufficient
medical documentation to show that he was disabled from working as a Claims
Representative. ID at 4 -8.
¶4 The appellant has filed a non -substantive petitio n for review, expressing
frustration with the disability retirement application and appeals process.
Petition for Review (PFR) File, Tab 1. OPM has not filed a response.
ANALYSIS
¶5 The petition for review provides no basis to disturb the initial decision.
See Weaver v. Department of the Navy , 2 M.S.P.R. 129 , 133 -34 (1980)
(recognizing that mere disagreement with an administrative judge’s findi ngs of
3
fact and conclusions of law does not warrant full review by the Board);
see generally 5 C.F.R. § 1201.115 (setting forth the regulatory bases for granting
a petition for review). To the extent that the appellant is arguing that the
administrative judge’s decision was discriminatory, his unsupported assertion of
discrimination is insufficient to rebut the pre sumption of honesty and integrity
that accompanies the administrative judge. See Bieber v. Department of the
Army , 287 F.3d 1358 , 1362 -63 (Fed. Cir. 2002). The mere fact that the
administrative judge ruled against the appellant does not establish bias.
Thompson v. Department of the Army , 122 M.S.P.R. 372 , ¶ 29 (2015).
Nevertheless, considering the appellant’s pro se status, his psychological
conditions, and the strong interest in reaching the correct result in this disability
retirement appeal, we have conducted a f ull review of the record. See Wutke v.
Office of Personnel Management , 67 M.S.P.R. 523 , 527 -28 (1995) (declining to
decide a retireme nt appeal against an appellant based on “strict application of the
adversarial model of adjudication”).
¶6 An applicant for disability retirement benefits bears the burden of proving
his entitlement to those benefits by preponderant evidence. Henderson v. Of fice
of Personnel Management , 109 M.S.P .R. 529 , ¶ 8 (2008); 5 C.F. R.
§ 1201.56 (b)(2)(ii). To qualify for disability retirement benefits under FERS, an
individual must me et the following requirements: (1) he must have completed at
least 18 months of creditable civilian service; (2) he, while employed in a
position su bject to FERS, must have become 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 must be incompatible
with either useful and efficie nt service or retention in the position;
(3) the disabling medical condition must be expected to continue for at least
1 year from the date the disability retirement benefits application is filed;
(4) accommodation of the disabling medical condition in the position held must
be unreasonable; and (5) he must not have declined a reasonable offer of
4
reassignment to a vacant position. 5 U.S.C. § 8451 (a); Henderson , 109 M.S.P.R.
529, ¶ 8; 5 C.F.R. § 844.103 (a). In determining an appellant’s entitlement to
disabili ty retirement, the Board will consider all pertinent evidence, including
objective clinical findings, diagnoses and medical opinions, subjective evidence
of pain and disability, and evidence relating to the effect of the appellant’s
condition on his abilit y to perform the duties of his position. Dunn v. Office of
Personnel Management , 60 M.S.P.R. 426 , 432 (1994).
¶7 In this case, it is undisputed that the appellant satisfies the first and fifth
requirements for a FERS disability retirement. ID at 7; see IAF, Tab 6 at 52 -53,
115-116. The administrative judge, however, found that the appellant failed to
show that he s atisfies the second requirement because he failed to establish that
he became disabled resulting in deficiencies in performance, conduct, or
attendance, or that his bipolar disorder is incompatible with either useful and
efficient service or retention in h is position. ID at 7. However , the record shows
that the appellant was exhibiting conduct and attendance deficiencies at the time
of his disability retirement application. Specifically, the Supervisor’s Statement
submitted as part of the appellant’s dis ability retirement package indicates that
the appellant’s conduct became unsatisfactory in April 2015, based on such
behavior as using inappropriate language, slamming doors, having outbursts, and
staring out the window talking to himself. IAF, Tab 6 at 6 3-64. In addition, the
agency issued the appellant a letter of reprimand on September 21, 2016, for
continued disruptive behavior and failure to follow management directives. Id.
at 97-100. The Supervisor’s Statement also indicates that the appellant’s
attendance became unacceptable in March 2016 , and that his excessive absences
have increased other employees’ workloads and affected the agency’s service to
the public. Id. at 63. Furthermore, it appears to be undisputed that the appellant
was continuous ly absent from work since September 22, 2016, and that the
agency issued him a notice of proposed removal for failure to be regular in
attendance. Hearing Recording (HR) at 3:30, 6:20 (testimony of the appellant).
5
Based on these facts, we find that the appellant has exhibited significant conduct
and attendance deficiencies in his employment.2
¶8 The administrative judge acknowledged the appellant’s service deficiencies,
but he found that the appellant failed to establish the requisite connection
between th ese deficiencies and his bipolar disorder. ID at 3, 7. Specifically, the
administrative judge found that none of the appellant’s proposed disability onset
dates, March 31, 2016, September 23, 2016, or March 31, 2017, corresponded
with the onset of his se rvice deficiencies, which according to the Su pervisor’s
Statement were April 2015, for conduct and March 8, 2016, for attendance.
ID at 7; IAF, Tab 6 at 5 -6, 63 -64, 68; HR at 55:00 (testimony of the appellant).
The administrative judge further noted that the appellant’s service deficiencies
did not begin until well after he was first diagnosed with bipolar disorder in June
2013. ID at 7; IAF, Tab 7 at 19 -20.
¶9 However, considering the evidence as a whole, we find that the appellant’s
medical history does roughly correlate with his service and attendance
deficiencies. As an initial matter, we find that the various dates of onset that the
appellant provided are not particularly probative, as he expressed some confusion
about how to determine the appropriate date. HR at 54:45 (testimony of the
appellant). Far more probative is the medical documentation, which
unambiguously shows that the appellant’s psychiatric problems first presented on
or about June 14, 2013, when he was involuntaril y committed to a hosp ital for
5 days, displaying psychotic symptoms that manifested as emotional volatility,
depressed mood, paranoia, and delusions. IAF, Tab 7 at 4 -30. Upon discharge,
2 There is insufficient evidence for us to conclude that the appellant experienced a
performance deficiency. The supervisor’s narrative statements on the appellant ’s rating
and performance documents reflect that the appellant had been counseled repeatedly for
disruptive and otherwise inappropriate behavior. IAF, Tab 6 at 117, 120. However, the
most recent performance evaluation in the record (fiscal year 2015) ref lects a summary
rating of “Successful Contribution,” with the same successful rating in all critical
elements, including “Interpersonal Skills.” Id. at 120.
6
the appellant was diagnosed with cannabis dependence and bipolar disorder,
mixed.3 Id. at 19-20. Shortly thereafter, on July 30, 2013, the appellant was
involuntarily committed again for 1 week, exhibiting similar symptoms.
Id. at 42-88. Notably, these two episodes occurred during the appellant’s break in
service between July 28, 2012, to March 23, 2014. Tab 6 at 127, 130.
Because the appellant was not employed in Federal service at the onset of his
bipolar disorder, there is unsurprisingly no corresponding service deficiency.
¶10 After the appellant’s first admission to the hospital, he fo llowed up with
outpatient psychiatric treatment, where he was prescribed medication and
diagnosed with cannabis dependence and bipolar I disorder. Id. at 31 -41.
After the appellant’s second admission to the hospital , he was prescribed new
medications and continued to follow up regularly in an outpatient setting, during
which his prescribed medication was changed again. Id. at 85, 89 -100.
The period that followed appears to have been a good one for the appellant;
the Social Security Administration reinstated him during this time, and his
medical records indicate that he was compliant with treatment, relatively stable,
and doing much better overall. IAF, Tab 6 at 127, Tab 7 at 89 -100.
However, this all changed on Ju ne 9, 2015, when the appellant, having gone off
his medication s, was admitted to the hospital for the third time, this time
displaying suicidal ideation and “bizarre behavior.” Id. at 1 01-14, 125.
This acute episode , the first since the appellant’s March 23, 2014 reinstatement,
roughly corresponds with the April 2015 onset of his conduct deficiency as
reported by his supervisor. IAF, Tab 6 at 64. We further note that the
Supervisor’s Statement itself strongly suggests that the appellant’s conduct
defici ency was the product of mental illness. According to the supervisor, around
3 At the hearing, OPM questioned the appellant about certain medical documentation in
an attemp t to elicit testimony that the appellant’s symptoms were caused by cannabis
abuse. HR at 1:01:25 (testimony of the appellant). However, our review of the
documentation shows that the treating physician ruled out substance -induced mood
disorder due to can nabis. IAF, Tab 7 at 124.
7
April 2015, the appellant’s demeanor changed, with occasional outbursts, crying,
inability to remain at work, inability to control his emotions, walking around,
talking to himself , and speaking loudly. Id. Both the sudden onset and the nature
of this behavior, which appears to be a more mild form of the behavior that led to
the appellant’s eventual June 9, 2015 hospitalization, suggest to us that his
conduct deficiency was most l ikely the product of his bipolar disorder.
IAF, Tab 6 at 64, Tab 7 at 101 -02, 104, 113.
¶11 There is nothing in the record to suggest that the appellant availed himself
of outpatient treatment between his June 15, 2015 discharge and his next
hospitalization o n March 27, 2016 , during which he displayed manic symptoms
with suicidal and homicidal ideation. IAF, Tab 7 at 117. The medical
documentation does show that the appellant had not taken his medication for
more than a year at that point because he did not think that he needed it.
Id. at 125. The appellant was discharged 3 days later, with instructions to resume
his medication and to follow up with outpatient primary and psychiatric care.
Id. at 124, 126. Just as the beginning of the appellant’s conduct deficiency
roughly correlates with his June 2015 hospitalization, the beginning of his
attendance deficiency ro ughly correlates with his March 2016 hospitalization.
IAF, Tab 6 at 63. The record shows that, between March 8 and October 14, 2016,
the appell ant used 228 hours of annual leave, 152 hours of sick leave, and
10 hours of leave without pay, although the exact dates and reasons for the leave
are not a part of the record. Id. Nevertheless, given the timing involved, we find
that the appellant’s exc essive absences were, more likely than not, at least partly
attributable to his bipolar disorder.
¶12 After the appellant was discharged from his fourth hospitalization,
it appears that he resumed regular psychiatric outpatient care and was compliant
with his medications, right up until he stopped coming to work on
September 22, 2016. IAF, Tab 7 at 127 -28. It appears that the appellant’s
avoidance of work was occasioned by his receiving the September 21, 2016
8
written reprimand for disruptive behavior, which i ncluded pacing, speaking
loudly, talking to himself, and using profanity. IAF, Tab 6 at 97 -100.
Nevertheless, the appellant continued to be compliant with treatment with the
same psychiatrist after that date, until December 2016, when he moved out of
state and had to change doctors. IAF, Tab 7 at 129 -33. The appellant then sought
the services of a new psychiatrist, who believed that the appellant would benefit
from a change in medication. Id. at 135 -38. The appellant refused, stating that
psychiatry w as invented by Nazis for brainwashing, and that he would only take
the medication that he was currently prescribed. Id. at 135. Because the
appellant and this psychiatrist could not agree on a treatment plan, the appellant
was given a list of other provi ders, one of whom he began seeing on
March 27, 2017. Id. at 135, 141. It appears that the appellant’s symptoms began
to improve at this time. His new psychiatrist opined that he was doing well on his
current medications and that these medications as well as therapy should be
continued. Id. at 141 -43, 150, 1 53. There is no indication of noncompliance with
this psychologist’s recommendations.4
¶13 Although, as explained above, we find a causal connection between the
appellant’s service deficiencies and his bipolar disorder, the Board has long held
that evidence o f the degree to which symptoms can or cannot be controlled is also
relevant in determining the existence of a disabling condition. See Wilkey -Marzin
v. Office of Personnel Management , 82 M.S.P.R. 200 , ¶ 15 (1999); Jolliffe v.
Office of Personnel Management , 23 M.S.P.R. 188 , 190 (1984) , aff’d , 785 F.2d
320 (Fed. Cir. 1985) (Table) . Voluntary refusal to accept facially reasonable
treatment will bar entitlement to a disability retirement annuity. Johnson v.
Office of Personnel Management , 87 M.S.P.R. 192 , ¶ 22 (2000). In this regard,
we note that the appellant’s condition seems to be amenable to medication, at
least to a degree, as it appears that he does better while on medication and has not
4 It would appear that the appellant changed his opposition to medication because this
new psychiatrist eventually made some adjustments. IAF, Tab 7 at 143.
9
needed to be hospitalized during periods of compliance. See supra , ¶¶ 9-12.
However, even after the appellant began taking his medicine again following his
hospitalization in March 2016, his conduct and attendance deficiencies continued.
IAF, Tab 6 at 63 -64, 97 -99, 102 -03. Although his behavior during this latter
period has not been sufficiently severe to warrant further hospitalization, it
remains unacceptable for the workplace. Id. at 97 -99, 102 -03.
¶14 The evidence described above is consistent with the appellant’s
psychiatrist’s statement for the appellant’s social security disability application,
in which he rated the appellant’s impairment in responding appropriately to
changes in the work place and interacting appropriately with coworkers as
“moderate” and his impairment in interacting appropriately with supervisors and
the public as “extreme.” Id. at 30. Although the psychiatrist’s assessment could
perhaps have been more comprehensive , nothing in the law requires that a single
provider tie all of the evidence of disability together. Henderson v. Office of
Personnel Management , 117 M.S.P.R. 313 , ¶ 19 (2012) . When, as here, there is a
significant amount of medical evidence from various providers, subjective
testimony from the appellant, and documentation by officials from the appellant’s
employing agency all consistently pointing to pervasive behavioral impairments
attendant to the appellant’s claimed and well -documented disability, the record is
sufficient for the Board to conclude that his condition precludes him from
rendering useful and efficient service i n his position. See id., ¶¶ 19 -20. There is
no suggestion that the appellant is a malingerer, and the evidence is consistent
that his bipolar disorder causes conduct problems that are wholly inappropriate
for the workplace, particularly in a customer ser vice setting. See id ., ¶ 21.
¶15 In finding that the appellant failed to establish that he suffers from a
disabling condition, the a dministrative judge considered notes that an agency
official took at a February 1, 2017 reasonable accommodation meeting,
which reflect that the appellant told the agency official that his psychiatrist did
not recommend any accommodations and wanted him just to do his job. ID at 7;
10
IAF, Tab 6 at 115 -16. However, assessing this triple -hearsay evidence according
to the factors set forth in Borninkhof v. Department of Justice , 5 M.S.P.R. 77 , 87
(1981), we find that it is highly unreliable.5 First, we find no indication th at
either the agency official who wrote these notes or the psychiatrist who
supposedly instructed the appellant to return to work were unavailable to testify.6
Second, the notes are unsworn, and they were not signed by the official who
wrote them. IAF, T ab 6 at 115 -16. Third, OPM gave no explanation for failing
to obtain a signed, sworn statement, although to be fair, it is the appellant’s
burden on this matter and these notes do not appear to have been a key part of
OPM’s case. Regarding the fourth fac tor, there is no indication that the agency
official conducting the interview had any bias one way or the other. As to the
fifth, sixth, and seventh Borninkhof factors, the idea that the appellant was
capable of “just do[ing] his job” is inconsistent with the great weight of the
evidence described above, and the psychologist’s alleged statement to this effect
is nowhere reflected in her notes of the appointment during which she allegedly
said it. IAF, Tab 7 at 135 -37. Regarding the eighth and final facto r, there is no
reason to doubt the credibility of the agency official at the time she recorded the
appellant’s statement, but the appellant’s credibility at the time is highly suspect,
considering that earlier that day he had refused adjustments to his med ication out
of paranoia about Nazi s and brainwashing. IAF, Tab 6 at 116, Tab 7 at 135.
Moreover, even putting all this serious and well -founded doubt aside and
assuming that the psychiatrist actually made the statement attributed to her,
we would find th at it is of little weight because she only saw the appellant one
time during a single brief and acrimonious office visit. IAF, Tab 6 at 115 -16;
HR at 1:03:05 (testimony of the appellant ); see Tan -Gatue v. Office of Personnel
5 Borninkhof factors aside, triple hearsay is, by its very nature, “attenuated and highly
unreliable.” Cooper v. United States , 639 F.2d 727 , 730 (Ct. Cl. 1 980).
6 The appellant himself was available and did testify at the hearing, but not as to the
truth or accuracy of these notes.
11
Management , 90 M.S.P.R. 116 , ¶ 11 (2001) (finding that medical conclusions
based on long familiarity with a patient are of greater weight th an those based on
a brief association or single examination) , aff’d , 52 F. App’x 511 (Fed. Cir.
2002 ). For these reasons, we find it inappropriate to assign any serious weight to
this evidence.
¶16 The administrative judge also noted that the appellant’s curr ent psychiatrist
is of the opinion that the appellant himself is the best arbiter of when he is ready
to return to work. ID at 7 -8; HR at 34:20 (testimony of the appellant).
However, we do not interpret this as a clinical opinion that the appellant is,
in fact, ready to return to work at this time or as a prognosis that he will be ready
to do so at any ascertainable date in the future.
¶17 Finally, at the hearing, OPM identified several notes from doctors’
appointments, reflecting that the appellant was doi ng well on the dates of the
appointments. HR at 1:02:25 (testimony of the appellant); IAF, Tab 7 at 135 -38,
141. As an initial matter, although the appellant might have been doing well on
those dates relatively speaking, we do not read these appointment notes as
reflecting an opinion that the appellant was doing well enough to return to work.
Furthermore, bipolar I disorder is episodic in nature. American Psychiatric
Association, Diagnostic and Statistical Manual of Mental Disorders , 123-31
(5th ed. 20 13) (DSM V) . The mere fact that the appellant might have lacked the
most severe symptoms of his condition on a given date does not mean that he had
recovered from his condition or was otherwise not currently disabled. See Group
v. Office of Personnel Mana gement , 109 M.S.P.R. 5 , ¶ 12 (2008). Considering
the record as a whole, we find that the appellant has shown by preponderant
evidenc e that he suffers from a disabling condition that resulted in a deficiency in
conduct and attendance.
¶18 Regarding the third element for a FERS disability retirement claim, there is
no evidence in the record that any of the appellant’s doctors expect a perma nent
recovery at any time . As noted above, bipolar I is episodic; m ore than 90% of
12
individuals who have a single manic episode go on to have recurrent mood
episodes . DSM V at 130 . We therefore find that the appellant’s condition would
have been expected to last for more than a year from the date of his
October 3, 2016 disability retirement application.
¶19 Finally, regarding the fourth element of the appellant’s disability retirement
claim, our review of the record shows that there was no reasonable
accommod ation for his bipolar disorder. The agency attempted to accommodate
the appellant by providing him frequent breaks, generous leave approval, access
to its Employee Assistance Program, and headphones to block out noise, but these
accommodations proved to b e ineffective . IAF, Tab 6 at 63 -64; HR at 57:25
(testimony of the appellant). At the hearing, OPM went through several of the
appellant’s medical documents and noted that his psychiatrists did not
recommend accommodations for him. HR, at 1:01:00, 1:09:3 0 (testimony of the
appellant); IAF, Tab 7 at 117 -26, 135 -38, 153. To the extent that OPM is
suggesting that the appellant’s doctors failed to recommend accommodations
because they believed that he could work without them, we find that such an
interpretat ion is unwarranted. The more likely explanation , based on the reco rd
before us, is that they did not believe that the appellant’s condition could be
accommodated at all . In any event, the record shows that the appellant’s
employing agency offered him several accommodations and that that the appellant
used those accommodations to no avail. There is no indication that the appellant
ever declined any accommodation offered, no doctor or agency official has
suggested any accommodation that has not been tri ed, and no such potential
accommodations are apparent to us. Mindful of the difficulties inherent in
proving a negative, we find that the record in this case is more than sufficient to
show that reasonable accommodation of the appellant’s bipolar disorder was not
possible. See Detwiler v. Office of Personnel Management , 90 M.S.P.R. 77 , ¶ 13
(2001); see also Chavez v. Office of Per sonnel Management , 6 M.S.P.R. 404 , 416
(1981) (finding it “usually impractical” for a party to prove a negative).
13
¶20 For the reasons explained above, w e find that the appellant meets all of the
criteria for a FERS disability retirement and that his application must therefore be
granted.
ORDER
¶21 We ORDER OPM to grant the appellant’ s application for disability
retirement. OPM must complete this action no la ter than 20 days after the date of
this decision.
¶22 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 appellan t 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).
¶23 No later than 30 days after OPM 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
OPM did not fully carry out the Board’s Order. The petition should contain
specific reasons why the appellant believes that OPM has not fully carried out the
Board ’s Order, and should include the dates and results of any communications
with OPM . 5 C.F.R. § 1201.182 (a).
NOTICE TO THE APPELL ANT REGARDING
YOUR RIGHT TO REQUES T
ATTORNEY FEES AND CO STS
You may be entitled to be paid by the agency for your reasonable attorney
fees and costs. To be paid, you must meet the requirements set forth at Title 5 of
the United States Code (5 U.S.C.), sections 7701(g), 1221(g), or 1214(g). The
regulations may be found at 5 C.F.R. §§ 1201.201 , 1201.202, and 1201.203. If
you believe you meet these requirements, you must file a motion for attorney fees
and costs WITHIN 60 CALENDAR DAYS OF THE DATE OF THIS DECISION.
14
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
appropriate for your situation and the rights described below do not represent a
statement of how cour ts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a p etition for review with the
U.S. Court of Appeals for the Federal Circuit, which must be received by the
court within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
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 to provide a comprehensive
summary of all available review options. As indicated in the notice, the Board cannot
advise which option is most appropriate in any matter.
15
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D .C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems 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 o f
16
discrimination based on race, color, religion, sex, national origin, or a disabling
condition, you may be entitled to representation by a court -appointed lawyer and
to waiver of any requirement of prepayment of fees, costs, or other security.
See 42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www .uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702 (b)(1) . If you have a representative in this case,
and your representative receives this decision before you do, then 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
17
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).
If you submit a petition for judicial review to the U.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
Additional information about the U.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
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.
18
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD:
Washington, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board | OGDEN_COREY_D_PH_844E_18_0305_I_1_FINAL_ORDER_1997223.pdf | 2023-01-27 | null | PH-844E | NP |
3,699 | https://www.mspb.gov/decisions/nonprecedential/COBB_WANDA_L_DA_0752_17_0373_I_1_REMAND_ORDER_1997226.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
WANDA L. COBB,
Appellant,
v.
DEPARTMENT OF THE AI R FORCE,
Agency.
DOCKET NUMBER
DA-0752 -17-0373 -I-1
DATE: January 27, 2023
THIS ORDER IS NONPRECEDENTIAL1
Wanda L. Cobb , Harlingen, Texas, pro se.
Bianca R. Deforest , Goodfellow A ir Force Base , Texas, for the agency.
Charles R. Vaith , Esquire, and James T. Hedgepeth , Randolph A ir Force
Base , Texas, 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 as settled. Generally, we grant petitions such as this one
only in th e following circumstances: the initial decision contains erroneous
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c).
2
findings of material fact; the initial decision is based on an erroneous
interpretation of statute or regulation or the erroneous application of the law to
the facts of the case; the 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 appellant’s petition for review and AFFIRM the
initial decision to the extent that it dismissed as settled all disputes, issues, and
disagreements between the appellant and the agency that are unrelated to her age
discrimina tion claim . However , we VACATE the initial decision to the extent
that it dismissed the appellant’ s age discrimination claim as settled and REMAND
the appeal for further adjudication o f her age discrimination claim in accordance
with this Remand Order.
BACKGROUND
¶2 The agency removed the appellant from her position of Acco unting
Technician. Initial Appeal File (IAF), Tab 10 at 82. She filed a timely appeal
with the Board, alleging among other things that the agency discriminated against
her based on age. IAF, Tab 1 at 5, Tab 39 at 3, Tab 62 at 1. She requested a
hearing . IAF, Tab 1 at 2.
¶3 During the hearing, the parties entered into an oral settlement agreement on
March 29, 2018, and the agency representative read it into the record. IAF,
Tab 65, Hearing Audio at 26:46 -35:30 , Tab 66, Initial Decision (ID) at 1-2. The
terms of the oral agreement included, inter alia, that the appellant’s removal
would be changed to reflect that she voluntarily resigned, her Official Personnel
3
File would be purged of documents relating to her removal, and the agency would
provide a neut ral job ref erence and pay her $15,000. H earing Audio at
26:46 -35:30. In exchange, the appellant agreed to resolve and dismiss her Board
appeal and her pending equal emp loyment opportunity (EEO) complaints against
the agency. H earing Audio at 30:49‑31:24 . After the agency representative read
the oral agreement into the record, the appellant affirmed that she had no
disagreement with the stated terms of the agreement, that she understood it, and
that she voluntarily entered into the agreement to resolve t he appeal. H earing
Audio at 35:09 -35:41. The administrative judge entered the agreement into the
record for enforcement purposes and dismissed the appeal as settled after making
the following findings : (1) the oral agreement was lawful on its face; (2) the
parties understood the terms of the oral agreement and the only enforceable terms
were those read into the record on March 29, 2018; (3) the parties entered into the
agreement voluntarily; and (4) they asked the Board to enter the agreement into
the re cord for enforcement purposes. ID at 1-2.
¶4 The appellant has filed a petition for review, the agency has responded in
opposition to her petition, and the appellant has replied. Petition for Review
(PFR) File, Tabs 1, 5 -6.
DISCUSSION OF ARGUME NTS ON REVIE W
The appellant’s allegation that the agency asked her to sign a written settlement
agreement provides no basis for reversing the initial decision .
¶5 The appellant alleges on review that the agency representative unnecessarily
sent her a written settlement agreement to sign and that the written version
differed from the oral settlement agreement read into the record at the hearing.
PFR File, Tab s 2-3. The appellant’s arguments present no basis to disturb the
initial decision.
¶6 Generally, an oral settleme nt agreement is valid and binding on the parties
even though the appellant subsequently declines to sign a written document
4
memorializing the terms of the agreement. Schwartz v. Department of E ducation ,
113 M.S.P.R. 601, ¶ 7 (2010). The administrative judge dismissed the appeal
based on the oral settlement agreement, and he properly ensured that the terms of
the agreement were mem orialized in the record. ID at 1 -2; H earing Audio
at 26:46 -37:17; see Parks v. U.S. Postal Service , 113 M.S.P.R. 60, ¶ 11 (2010)
(explaining that , before dismissing an appeal based on an oral settlement
agreement , the administrative judge should document whether the parties
intended it to be entered into the record for enforcement and ensure that the terms
are memorialized in the rec ord). Moreover, the recording of the oral settlement
agreement clearly indicates that the parties intended the terms read into the record
to be binding and en forceable. H earing Audio at 26:46 -37:17. In any event, the
terms of the oral settlement agreeme nt are identical to those in the agency’s d raft
written agreement. H earing Audio at 26:46‑35:30; PFR File, Tab 1 at 8 -10.
The appellant has not shown a basis for reversing t he initial decision dismissing
her non -age discrimination claims as settled.
¶7 A party may challenge the validity of a settlement agreement if the party
believes that the agreement is unlawful, involuntary, or the result of fraud or
mutual mistake . Bruhn v. Department of Agriculture , 124 M.S.P.R. 1, ¶ 18
(2016) . The party challenging the validity of a settlement agreement bears a
heavy burden of showing a basis for invalidation. Id. For the reasons stated
belo w, we find that the appellant has not shown a basis for reversing the initial
decision dismissing her non -age discrimination claims as settled pursuant to the
terms of the parties’ oral settlement agreement.
¶8 The appellant alleges on review that the settlem ent agreement is unlawful
because the term prohibiting her from applying for Air F orce jobs for 3 years
from the effective date of her resignation violates the Texas Statute of Frauds.
PFR File, Tab 1 at 3 -4. The relevant code section requires that certa in types of
promises or a greements be in writing and sig ned by the party to be charged with
fulfilling the promise . See Texas Business & Com mercial Code Ann otated
5
§ 26.01(b) . However, we are not persuaded by her argument. O ral settlement
agreements are valid before the Board . Futrell -Rawls v. Department of V eterans
Affairs , 115 M.S.P.R. 322 , ¶ 8 (2010); see U.S. Const . art. VI, cl. 2 (the
Supremacy Clause). Moreover, the appellant’s post -settlement remorse or change
of heart about one of the mutually agreed upon terms is an insufficient basis for
invalidating the agreement. Hinton v. Department of Veterans Affairs ,
119 M.S.P.R. 129 , ¶ 4 (2013). Similarly, to the extent that the appellant
expresses regret for having raised a claim in her removal appeal t hat the agency
violated the Uniformed Services Employment and Reemployment Rights Act of
1994 (codified as amended at 38 U.S.C. §§ 4301‑4335), this regret does not form
a basis for finding the glo bal nature of the agreement invalid. PFR File, Tab 1
at 3. Nor has the appellant explained how her misunderstanding as to the Board’s
lack of quorum period caused her to include her USERRA claim in her underlying
appeal. PFR File, Tab 1 at 4. In any event, her unilateral misunderstanding is not
a basis to invalidate the agreement for a mutual mistake of fact. Krzewinski v.
U.S. Postal Service , 72 M.S.P.R. 353, 362 (1996).
¶9 The appellant also suggests that the agreement is unlawful because the
administrative judge has no jurisdiction over her EEO claims . PFR File, Tab 1
at 3-4. We disagree. T he Board retain s juri sdiction under 5 U.S.C. § 1204 (a)(2)
to enforce an agreement if it has been entered into the record for that purpose.
Delorme v. Department of the Interior , 124 M.S.P.R. 123 , ¶ 16 (2017) . Here, t he
parties agreed to settle both the appeal and the appellant’s pending EEO
complaints. H earing Audio at 28:37 -29:34. The admini strative judge entered the
agreement into the record for enforcement purposes at the parties’ request.
Hearing Audio at 26:46 -37:17. Therefore, the Board retains jurisdiction to
enforce the entire agreement .2
2 But see the discussion below regarding oral waivers of age discrimination claims.
6
¶10 The appellant also alleges that the settlement agreement was the result of
the administrativ e judge falsely claiming an equipment failure during the hearing
so that he could discuss settlement with the parties. PFR File, Tab 1 at 3 . To
prove an allegation of coercion by an administrative j udge, a party must present
evidence that she involuntarily a ccepted the terms of another, the circumstances
permitte d no other alternative, and the circumstances resulted from the
administrative judge’ s coercive acts. Brown v. Department of Defense ,
94 M.S.P.R. 669 , ¶ 11 (2003) . The hearing audio reflects that the video portion
of the videoconferencing was “dropped” at various points , substa ntiating that
there were equipment failures during the hearing . E.g., Hearing Audio at
26:00 -26:21. The appellant does not otherwise provide evidence that the
administrative judge was dishonest as to these equipment failures. Further,
administrative jud ges are permitted to engage in frank settlement discussions with
the parties. Herman v. Department of Justice , 119 M.S.P.R. 642, ¶ 11 (2013).
Thus, w e disagree that the administrative judge engaged in coercion .
The appellant has not shown that she lacked the mental capacity to enter into a
valid settlement agreement.
¶11 On review, the appellant appears to argue that the settlement agreement was
invalid because the agency and the administrative judge knew that she had
received treatment for mental health issues resulting from workplace stress. PFR
File, Tab 1 at 4. A party to a settlement agreement is presumed to have full legal
capacity to contract unless she is mentally disabled, and the mental disability is
so severe that she cannot form the necessary intent. Parks , 113 M.S.P.R. 60, ¶ 8.
We find that the appellant has not overcome the presumption of capacity.
¶12 Although the appellant alleges that she required medical treatment and
mental health counseling for stress caused by the agency, the appellant offer s no
evidence or argumen t that she had a severe mental disability that prevented her
from forming the necessary intent when she entered into the oral settlement
agreement. PFR File, Tab 1 at 4. The appellant’s unsupported claim that her
7
mental state prec luded her from entering into a valid settlement agreement is
outweighed by her demonstrated ability to pursue her case pro se on appeal and
on review .3 For example, she filed more than 22 pleadings on appeal, including
motions, objections, and prehearing submissions. IAF, Tabs 30 -31, 34 -37, 41 -46,
48-50, 53, 56 -60, 64. She also filed a pro se petition for review and replied to the
agency’s response in opposition to her petition. PFR File, Tabs 1, 6. We
therefore find that the appellant has not met her burden of showing that her
mental state precluded her from entering into a valid settlement agreement. See
generally Parks , 113 M.S.P.R. 60, ¶ 8.
The appellant’s allegation of adjudicatory error and her arguments challenging
the merit s of her removal provide no basi s for invalidating the settlement
agreement.
¶13 The appellant alleges on review that the administrative judge abused his
discretion by allowing the agency to recall witnesses to testify against her at the
hearing and she argues the merits of her appeal. PFR File, Tab 1 at 2 -3. The
record reflects that the administrative judge granted the agency’s request to recall
two witn esses to provide testimony on the appellant’s additional claims accepted
during the hearing. IAF, Tab 62 at 1. The appellant did not identify those claims
prior to or at the prehearing conference.4 Id. We find that the appellant’s
allegations challengi ng the administrative judge’s ruling on the agency’s motion
3 At the hearing, the administrative judge observed that the agency representative
reviewed the terms of the oral ag reement with the appellant before reading it into the
record. H earing Audio at 26:47 -27:30. The appellant also affirmed on the record that
she understood the terms of the agreement, that she had no disagreement with the terms
of the agreement as read int o the record by the agency representative, and that she
voluntarily entered into the agreement to resolve the appeal. H earing Audio at
35:09 -35:41.
4 In granting the agency’s motion, the administrative judge limited the witnesses’
testimony to relevant and material testimony related to the new claims raised by the
appellant at the hearing. IAF, Tab 62 at 1. We find that the administrative judge acted
within his discretion in granting the agency’s motion. See 5 C.F.R. § 1201.41 (a)-(b)(8),
10 (authorizing administrative judges to rule on motions and witness lists and order the
appearance of witnesses whose testimony would be relevant and material).
8
to recall two witnesses to testify about new claims she raised at the hearing, and
her additional arguments challenging the merits of her appeal,5 provide no basis
to disturb the initial decision because her arguments do not concern the validity
of the oral settlement agreement. Here, the appellant agreed to dismissal of her
appeal as settled, divesting the Board of jurisdiction to review the merits of her
case. H earing Audio at 30:49 -31:23; see Nease v. Department of the Army ,
103 M.S.P.R. 118, ¶ 17 (2006) (explaining th at an appellant’s waiver of her
appeal right in a settlement agreement divested the Board of jurisdiction to
review the merits of that appeal).
The appellant’s oral agreement to waive her age discrimination claim is invalid
because the agency did not comply with the requirements of the Older Workers
Benefit Protection Act of 1990 (OWBPA) .
¶14 The appellant raised a claim of age discrimination below, and she generally
disputes the inclusion of her claims of EEO discrimination in the settlement
agreement. PFR File, Tab 1 at 2 -3; IAF, Tab 39 at 3. Before accepting a
settlement agreement of an appeal in which age discrimination has been alleged,
the Board must first verify that the agency has complied with the provisions of
the OWBPA. See 29 U.S.C. § 626(f)(1)(A) ‑(E), (f)(2); Hinton ,
119 M.S.P.R. 129, ¶ 7. As relevant here, the OWBPA requires that a waiver of
rights or claims u nder the Age Discrimination in Employment Act be in writing,
and the appellant be advised in writing to consult with an attorney before
executing the agreement and given a reasonable amount of time to consider it.
29 U.S.C. § 626(f)(1)(A) ‑(E), (f)(2). Here, the agreement does not meet these
requirements because it is oral and there is no indication that the agency advised
the appellant to consult with an attorney. Because the agency’s failure to comply
with the OWBPA invalidated the appel lant’s waiver of the appellant’s age
5 For example, the appellant argues that the administrative judge failed to address the
merits of the claims she raised on appeal, and she claims that her removal and a
nonselection were prohibited personnel practices. PFR File, Tab 1 at 2 -3.
9
discrimination claim, we remand the appeal for further adjudication of that claim
only. Hinton , 119 M.S.P.R. 129, ¶ 9. The appellant’s waiver of her other claims
remains in effect. Id. Thus, on remand, the merits of the removal action are not
at issue except to the extent that the administrative judge needs to address them to
decide whether the a ppellant can prove her affirmative defense of age
discrimination.
The appellant ’s claim of agency noncompliance is premature .
¶15 On review, the appellant also raises a claim of agency noncompliance,
arguing that she has not received payment under the terms of the agreement and
her attorney fees remain unpaid. PFR File, Tab 1 at 3. This claim is premature
because the initial decision in the underlying appeal was not yet final when she
raised this claim on review. See generally W alker v. Department of Healt h &
Human Services , 99 M.S.P.R. 367 , ¶ 8 (2005) (finding that t he appellant filed a
petition 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 petiti on for
enforcement was premature ).
¶16 We also decline to consider the appella nt’s claim that the a gency breached
her “rights to privacy and confidentiality by sending [her] an email” regarding its
request that she sign a written version of the agreement. PFR File, Tab 1 at 3. To
the extent that the appellant argues the agency bre ached the confidentiality
provision of the agreement, her claim is premat ure. H earing Audio
at 29:30 -30:16. To the extent that she is raising a new claim that the agency
violated Federal privacy laws, that claim is not properly before the Board. See
5 C.F.R. § 1201.115 (discussing the criteria for granting a petition for review).6
6 On February 14, 2019, June 4, 2019, June 17, 2019, September 9, 2019, November 30,
2019, and July 11, 2020, the appellant filed motions to submit new evidence. PFR File,
Tabs 12, 15, 18, 20, 22 , 25. In her motions, the appellant proffers that the agency has
failed to u pdate her personnel records. PFR File, Tab 12, Tab 15 at 1, Tab 25 at 2 . She
further avers that the agency has provided her a negative job reference, has “hurt [her]
financially with false information,” has committed both fraud and “breach of contract ,”
10
ORDER
¶17 For the reasons discussed above, we affirm the initial decision to the extent
that it dismissed as settled the appellant’s non -age discrimination claims. We
remand this case to the Dallas Regional Office for further adjudication of her age
discrimination claim in accordance with this Remand Order. On remand, the
administrative judge shall afford the a ppellant the opportunity between
(1) pursuing her age discrimination claim and (2) ratifying the waiver of that
claim in a written agreement that complies with the requirements of the OWBPA.
See Schwartz , 113 M.S.P.R. 601 , ¶¶ 13-14 (explaining an appellant’s option to
elect between these alternatives) .
FOR THE BOARD:
Washington, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board
and has “violated the [OWBPA].” PFR File, Tab 15 at 2-3, Tab 18 at 2, Tab 20 at 1 ,
Tab 25 at 1 -2. We deny the appellant’s motions because she has not explained how the
proposed evidence concerns the validity of the parties’ settlement agreement , apart fr om
her assertions regarding the OWBPA addressed above, or would affect the outcome of
her appeal. Moreover, her evidence of alleged agency noncompliance is premature.
See Walker , 99 M.S.P.R. 367 , ¶ 8. | COBB_WANDA_L_DA_0752_17_0373_I_1_REMAND_ORDER_1997226.pdf | 2023-01-27 | null | DA-0752 | NP |
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