Davis v. Department of Homeland Security , 239 F. App'x 586 ( 2007 )

Note: This disposition is nonprecedential.
United States Court of Appeals for the Federal Circuit
2006-3061
JULIA DAVIS,
Petitioner,
v.
DEPARTMENT OF HOMELAND SECURITY,
Respondent.
Julia Davis, of Palm Springs, California, pro se.
Domenique Kirchner, Senior Trial Counsel, Commercial Litigation Branch, Civil
Division, United States Department of Justice, of Washington, DC, for respondent. With
her on the brief were Peter D. Keisler, Assistant Attorney General, and Bryant G. Snee,
Assistant Director.
Appealed from: United States Merit Systems Protection Board
NOTE: This disposition is nonprecedential.
United States Court of Appeals for the Federal Circuit
2006-3061
JULIA DAVIS,
Petitioner,
v.
DEPARTMENT OF HOMELAND SECURITY,
Respondent.
___________________________
DECIDED: May 30, 2007
___________________________
Before RADER, GAJARSA, and DYK, Circuit Judges.
PER CURIAM.
The petitioner, Julia Davis, seeks review of a final decision by the Merit Systems
Protection Board (“Board” or “MSPB”) denying her Petition for Review of an Initial
Decision of an Administrative Judge concluding that she voluntarily resigned from her
position as a Customs and Border Patrol Officer (“CBPO”) for the Department of
Homeland Security (“DHS”). The Board refused to consider an inconsistent decision of
the EEOC based on the same sexual harassment charges as the Administrative Judge
considered, giving as its sole reason that it did not consider “any of the parties’
submissions filed after May 23, 2005.” See Davis v. Dep’t of Homeland Sec., No. SF-
0752-04-0760-I-1, 2005 (M.S.P.B. Sept. 21, 2005). For the reasons stated herein, we
vacate and remand to the Board.
BACKGROUND
Ms. Davis was employed by the DHS as a CBPO at the San Ysidro Port of Entry
in southern California. In early 2003, Ms. Davis complained she was sexually harassed
by a senior supervisor. She filed a formal complaint for sexual harassment with the
Equal Employment Opportunity Commission (“EEOC”). The EEOC determined that the
supervisor had harassed Ms. Davis and awarded her damages. The transcript and
decision of the EEOC were not admitted as a part of the evidentiary record before the
Board.
During early 2004, Ms. Davis applied for and was granted 480 hours of unpaid
Family and Medical Leave Act (“FMLA”) leave to care for her allegedly terminally ill
husband. Ms. Davis applied for and was also granted additional FMLA leave, but the
additional leave was for therapy for her post-traumatic stress disorder resulting from the
harassment. While Ms. Davis was on FMLA leave, her supervisor Ms. Boutwell learned
that Ms. Davis was actually present on a movie set, where her husband was the
director. In an ensuing investigation, the Assistant Director of Operations at the
Portland Field Office determined that Ms. Davis had submitted fraudulent FMLA leave
requests. The Assistant Director found that (1) the medical certification provided by
Ms. Davis was insufficient to justify the FMLA leave taken, (2) the movie was filmed
during the time that Ms. Davis took FMLA leave, (3) Ms. Davis wrote the screenplay for
the movie, (4) Ms. Davis and her husband were on the movie set during the period she
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was on FMLA leave, and (5) Mr. Davis was not incapacitated. Based upon these
findings, he concluded that the allegation that Ms. Davis had submitted fraudulent FMLA
leave requests was substantiated.
Upon returning from her FMLA leave, Ms. Davis made numerous allegations
against Ms. Boutwell. She alleged that Ms. Boutwell (1) purposefully assigned her to
work with contagious aliens having HIV or tuberculosis (“TB”), causing her to contract
TB; (2) threw her handbag on the floor, resulting in damage to her cell phone; (3)
lowered her interim performance rating from “outstanding” to “excellent”; and (4) broke
into her locker. She alleged that Ms. Boutwell pursued these actions because of Ms.
Davis’s national origin, gender, and/or prior EEO complaint. Ms. Davis’s allegations that
Ms. Boutwell behaved improperly were found to be unsubstantiated, except for the
allegation regarding the locker break-in because that investigation was not completed
prior to Ms. Davis’s resignation.
In addition to her complaints regarding Ms. Boutwell, Ms. Davis also made three
allegations of agency misconduct categorizing them as “whistle-blowing disclosures.”
First, Ms. Davis sent a memorandum to the DHS Office of Inspector General (“OIG”)
asserting that the Assistant Area Port Director and the CBPO Supervisor ordered a
CBPO to falsify a document. This allegation was later determined to be unfounded.
Second, six days later Ms. Davis faxed a memorandum to the FBI, alleging that a
“national security breach” had occurred on July 4, 2004. This allegation was later found
meritless, as well. Third, Ms. Davis alleged to the DHS OIG that supervisors ordered a
subordinate to falsify detention cell records. This allegation was also later determined
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to be unfounded. Thus, all three of Ms. Davis’s “whistle-blowing” disclosures – made in
less than one month – were later found meritless.
In August, Ms. Davis complained that she was denied the opportunity to work
overtime on Sundays in retaliation for her prior EEOC and whistle-blowing activities.
This complaint was also determined to be unfounded since she had been on FMLA
leave for over a month and a half and had been scheduled to work on at least three
Sundays since she had returned from leave.
On August 19, 2004, Ms. Davis was directed to appear before the DHS Office of
Professional Responsibility (“OPR”) on August 26, 2004 to testify regarding her various
allegations. Pending the investigation, the Associate Special Agent in Charge of the
OPR placed her on non-duty pay status, and revoked her credentials, weapon, and
computer access. Subsequently, Ms. Davis notified the DHS on August 23, 2004 that
she was “involuntarily resigning.” Consequently, she did not testify before the OPR as
requested. On August 30, 2004, Ms. Davis then filed a constructive discharge
(i.e. involuntary resignation) claim before the MSPB.
Ms. Davis claimed that the DHS’s actions were taken in retaliation for her filing
an EEO complaint and making protected whistle-blowing disclosures. A hearing was
held before an Administrative Judge (“AJ”) of the MSPB. Based on oral testimony at the
hearing and other submitted record evidence, the AJ concluded that the working
conditions were not so severe that a reasonable person in her position would have felt
compelled to resign. He found that, while Ms. Davis may have been subjected to sexual
harassment, the agency took appropriate measures to curtail the conduct. The AJ
found insufficient evidence to support a finding that Ms. Boutwell caused Ms. Davis to
2006-3061 4
contract TB, that she singled out Ms. Davis for contact with contagious aliens, or that
Ms. Boutwell forcibly threw Ms. Davis’s handbag. He further determined that none of
the allegations against Ms. Boutwell were supported by the evidence. Moreover, the AJ
found that the agency investigations of Ms. Davis, including the fraudulent request for
FMLA leave, by their very nature, would have been stressful for Ms. Davis. He
concluded, however, that stress and anxiety do not demonstrate that a reasonable
person would have been compelled to resign. According to the AJ, the DHS had a
legitimate basis to investigate the truthfulness of Ms. Davis’s allegations. For example,
the facts Ms. Davis raised in support of her request for FMLA leave appeared to be
contradicted by the evidence. The AJ also determined that her inconsistent statements
raised genuine issues as to the truthfulness of her allegations that supervisors had
ordered subordinates to falsify documents.
The AJ concluded that Ms. Davis had “freely and voluntarily” resigned because
she resigned in the face of an agency order to appear for further questioning regarding
the truthfulness of her allegations. Since the AJ found that Ms. Davis voluntarily
resigned, he also decided that the Board had no jurisdiction over Ms. Davis’s Individual
Right of Action (“IRA”) claim because there was no adverse action under
5 U.S.C. § 2302(a). After the initial decision of the AJ, on June 17, 2005, the EEOC
issued a decision concerning the same sexual harassment charges as were raised
before the AJ. The EEOC found that the supervisor’s ‘inappropriate conduct and the
agency’s complicity were so objectively offensive as to alter the conditions of
complainant’s employment. Given the nature and depth of the agency’s betrayal of
2006-3061 5
complainant, no reasonable person could have continued working in such an
employment environment.’
Ms. Davis filed a Petition for Review by the Board of the Initial Decision of the AJ.
On July 6, 2005, she also moved to have the EEOC transcript and the EEOC’s decision
regarding her sexual harassment claim admitted into the record. The Board denied
Ms. Davis’s Petition for Review, making the AJ’s decision final. The Board denied the
petition because it concluded there was no new, previously unavailable evidence and
the AJ made no error in law or factual determination. Id. In reaching this decision, the
Board noted that it did not consider any submissions filed after May 23, 2005, which
was the date the evidentiary record closed. Id. Ms. Davis appeals the final Board
decision to this court.
DISCUSSION
We have jurisdiction over an appeal of a final decision of the Board pursuant to
28 U.S.C. § 1295(a)(9). Whether the Board has jurisdiction to adjudicate a particular
appeal is a question of law, which this court reviews de novo. Herman v. Dep’t of
Justice, 193 F.3d 1375, 1378 (Fed. Cir. 1999); Middleton v. Dep’t of Def., 185 F.3d
1374, 1379 (Fed. Cir. 1999). The Board has jurisdiction over an appeal filed by an
employee who has resigned if the employee proves, by a preponderance of the
evidence, that his resignation was involuntary, and thus tantamount to removal. Staats
v. U.S. Postal Serv., 99 F.3d 1120, 1123-24 (Fed. Cir. 1996).
This court must affirm the Board’s decision unless we find it to be arbitrary,
capricious, an abuse of discretion, or otherwise not in accordance with law; obtained
without procedures required by law, rule or regulation having been followed; or
2006-3061 6
unsupported by substantial evidence. 5 U.S.C. § 7703(c). Substantial evidence is
defined as “such relevant evidence as a reasonable mind might accept as adequate to
support a conclusion.” Dickey v. Office of Pers. Mgmt., 419 F.3d 1336, 1339
(Fed. Cir. 2005) (quoting Consol. Edison Co. v. NLRB, 305 U.S. 197, 229 (1938)).
A determination of the credibility of witnesses is the province of the official who
heard their testimony and saw their demeanor. Griessenauer v. Dep’t of Energy,
754 F.2d 361, 364 (Fed. Cir. 1985). Thus, credibility determinations are virtually
unreviewable. Id. There is a presumption that administrative actions are correct and
that “government officials act in good faith” in discharging their duties. Gonzales v.
Def. Logistics Agency, 772 F.2d 887, 892 (Fed. Cir. 1985).
I.
Ms. Davis argues that the Board made an improper “boilerplate” decision denying
her Petition for Review of the Initial Decision and that this Court should conduct a
de novo review of the evidence. She asserts that the Board did not state with sufficient
particularity and clarity the reasons for denying review and relies on Ninth Circuit cases
as persuasive authority for this requirement. Ninth Circuit precedent does not bind this
circuit, but may be persuasive authority. In this case, however, the Board sufficiently
expressed its reasons for denying review pursuant to 5 C.F.R. §§ 1201.115(d) and
1201.114(i). Specifically, the Board noted that the newly submitted evidence was
previously available, the AJ made no error in law or regulation that affected the
outcome, and the record on review had already closed. Id. Thus, the Board did not
issue a “boilerplate” decision.
II.
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Ms. Davis claims that the AJ violated her due process rights by being pre-
disposed against her, hampering her presentation of the case, and abusing his
discretion. Ms. Davis has only provided conclusory characterizations of the judge’s
behavior during the hearing without identifying any specific examples from the record in
support. Hence, she has not demonstrated that the AJ violated her due process rights.
III.
To establish Board jurisdiction where a claim of involuntary resignation is made,
an appellant must overcome the presumption of voluntariness by making a non-frivolous
allegation that the resignation was the result of misinformation, deception, or coercion
by the agency. Dick v. Dep’t of Veterans Affairs, 290 F.3d 1356, 1362 (Fed. Cir. 2002).
Coercion is established by proving: “(1) that one side involuntarily accepted the terms of
another; (2) that circumstances permitted no other alternative; and (3) that said
circumstances were the result of coercive acts of the opposite party. . .” Middleton v.
Dep’t of Def., 185 F.3d 1374, 1379 (Fed. Cir. 1999). The former employee must prove
by a preponderance of the evidence that, under the totality of the circumstances,
a reasonable person in the appellant’s position would have felt compelled to resign.
Shoaf v. Dep’t of Agric., 260 F.3d 1336, 1341-42 (Fed. Cir. 2001); Middleton,
185 F.3d at 1379.
We consider first Ms. Davis’s allegations of involuntary resignation caused by
factors other than her sexual harassment charge. With respect to those, Ms. Davis
does not contend that her resignation was the product of misinformation or deception,
and her appeal does not appear to fall into the “coercion” category. Under a Middleton
analysis, Ms. Davis’s resignation was not the result of coercion. Specifically, Ms. Davis
2006-3061 8
did not involuntarily accept the terms of the DHS, and the circumstances permitted her
to remain an employee and participate in the investigations into her conduct. Further,
the circumstances surrounding Ms. Davis’s resignation were not the result of coercive
acts of the DHS. She was found to have fraudulently represented her need for FMLA
leave, and she compounded her deception by making what was determined to be
additional false allegations.
Since involuntary resignation is a totality of the circumstances test according to
Shoaf, Ms. Davis’s subsequent allegations contributed to the circumstances and cannot
be ignored. All of her allegations, other than her sexual harassment, were determined
to be “unfounded” and when investigated, frivolous. Thus we conclude that Ms. Davis’s
allegations, other than her sexual harassment charge, do not support a finding that her
resignation was coerced. Ms. Davis chose to resign over a year after her sexual
harassment allegation had been resolved when the agency was asking her to testify
regarding the truthfulness of the additional allegations.
IV.
The Board has jurisdiction over whistle-blowing cases if:
[T]he appellant has exhausted administrative remedies before the [Office
of Special Counsel] and makes ‘non-frivolous allegations’ that (1) he
engaged in whistle-blowing activities by making a protected disclosure
under 5 U.S.C. § 2302(b)(8), and (2) the disclosure was a contributing
factor in the agency’s decision to take a personnel action as defined by
5 U.S.C. § 2302(a).
Fields v. Dep’t of Justice, 452 F.3d 1297, 1302 (Fed. Cir. 2006) (emphasis added).
Also, Congress has specified the types of disclosures that implicate the safeguards of
the act in 5 U.S.C. § 2302(b)(8).
2006-3061 9
Ms. Davis argues that even if her resignation was voluntary, the agency still took
other adverse actions. Specifically, she stated that (1) the removal of her weapon and
badge and revocation of her credentials and computer access, (2) the indictment for
marriage fraud caused by the investigation into her FMLA leave, (3) the selective
assignments to work with contagious aliens, and (4) a lowered performance evaluation
were adverse actions. With respect to the removal of her weapon, badge, credentials
and computer access, this action occurred after her last day of work. The indictment for
marriage fraud, which resulted from the investigation into her FMLA leave and not from
her alleged “whistle-blowing” activities, is not included in the record on appeal to he
Board. The indictment occurred on August 9, 2005 after the record closed on May 23,
2005. Furthermore, the alleged assignment to work with contagious aliens and the
lowering of her performance rating occurred before she began making her “whistle-
blowing” disclosures. These actions were not therefore adverse. Since Ms. Davis has
not shown any adverse actions taken by the DHS in retaliation to her disclosures, the
AJ appropriately found that there is no jurisdiction over her IRA claim.
V.
The Board did not err by denying the admission of the EEOC transcript into
evidence after the record was closed on May 23, 2005. Board regulations provide that
“[o]nce the record closes, no additional evidence or argument will be accepted unless
the party submitting it shows that the evidence was not readily available before the
record closed.” 5 C.F.R. § 1201.114(i). As the DHS points out, many of the witnesses
who testified before the EEOC also testified before the AJ. Ms. Davis could have
personally testified but did not. Also, the other witnesses who testified on her behalf at
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the EEOC hearing could have been called but were not. Thus, since Ms. Davis has not
demonstrated that these documents contain evidence that was not previously available
when the record closed, she has not proven that the denial to admit them is erroneous
and the Board properly denied the admission of the EEOC hearing transcripts.
However, the EEOC final opinion was not issued until June 17, 2005, which was after
the closing date for the evidence to be submitted to the Board. That decision was
inconsistent with the determination made by the AJ in the Initial Decision. The Board,
faced with this inconsistency, should have considered the final decision of the EEOC.
Only for this reason we vacate and remand to the Board. Upon remand, the Board
should consider the conclusion reached by the respective agencies, and resolve the
inconsistencies, if any. Our remand does not necessarily require that the Board reach a
different result; for example, the Board could find that the sexual harassment was too
far removed in time from Ms. Davis’s resignation to have rendered that resignation
involuntary, or that her resignation was voluntary because other factors described
above—unrelated to the harassment—caused her to resign voluntarily.
For the foregoing reasons, the Board’s final decision is vacated and remanded
for further proceedings consistent with this opinion.
No costs.
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