LaRay J. Benton v. Nuclear Regulatory Commission ( 2014 )

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
LARAY J. BENTON, DOCKET NUMBER
Appellant, DC-0432-12-0751-I-2
v.
NUCLEAR REGULATORY DATE: December 23, 2014
COMMISSION,
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
LaRay J. Benton, Mitchellville, Maryland, pro se.
Elva Bowden Berry, Esquire, and Molly Barkman Marsh, Washington, DC,
for the agency.
BEFORE
Susan Tsui Grundmann, Chairman
Anne M. Wagner, Vice Chairman
Mark A. Robbins, Member
FINAL ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
affirmed his removal. Generally, we grant petitions such as this one only when:
the initial decision contains erroneous findings of material fact; the initial
1
A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
2
decision is based on an erroneous interpretation of statute or regulation or the
erroneous application of the law to the facts of the case; the 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. See 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, and based on the following points and authorities, 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 May 11, 2011, the agency issued the appellant, a GG-13 General
Engineer (Reactor), a Notice of Performance Deficiencies advising him that his
performance under Critical Element #2, Technical Analysis and Problem Solving,
was below the fully successful level. MSPB Docket No. DC-0432-12-0751-I-1,
Initial Appeal File (I-1 IAF), Tab 15 at 16. Under that element, the appellant was
required to evaluate technical issues related to health, safety, and environmental
review, including licensing activities, to solve problems that arose in technical
and programmatic reviews, and to present recommendations for resolution. Id.,Tab 16 at 141. The applicable standards involved quality, timeliness and
quantity, and supervision needed/independence. Id. The Notice explained that,
because of the appellant’s continued lack of improvement, even with an
increasing level of supervisor oversight, he was in danger of falling to the
unacceptable level. Id., Tab 15 at 16. On November 21, 2011, the agency issued
the appellant a Notification of Unacceptable Performance and Implementation of
Performance Improvement Requirements Memorandum (PIRM), advising him
that his performance under Critical Element #2 was now unacceptable and
3
providing examples of such. Id. at 10. The Notification provided that the PIRM
period was to last until March 20, 2012, and set out the assignments the appellant
was expected to complete. Id.¶3 On May 9, 2012, the agency proposed to remove the appellant based on his
unacceptable performance under Critical Element #2, id. at 3, and, on July 16,
2012, the agency issued a decision to remove him, effective that day, id., Tab 12
at 8. The appellant filed a timely Board appeal of the removal action in which he
alleged, inter alia, retaliation for whistleblowing activity. The administrative
judge dismissed the appeal without prejudice, subject to the appellant’s right to
refile no later than 15 days after the Board ruled on the retroactivity of several
provisions of the Whistleblower Protection Enhancement Act. 2 Benton v. Nuclear
Regulatory Commission, MSPB Docket No. DC-0432-12-0751-I-1, Initial
Decision at 1, 3 (Jan. 23, 2013); MSPB Docket No. DC-0432-12-0751-I-2, Initial
Appeal File (I-2 IAF), Tab 1.
¶4 The appellant timely refiled the appeal and requested a hearing. The
administrative judge afforded the appellant an opportunity to set forth his
affirmative defenses, I-2 IAF, Tab 7, and he responded, id., Tab 10, after which
the administrative judge set out the burdens of proof for both parties, id., Tab 52.
The parties made numerous additional submissions, id., Tabs 53-59, and the
administrative judge convened a hearing. Id., Tab 60. Thereafter, she issued an
initial decision affirming the agency’s action. Id., Tab 62, Initial Decision (I-2
ID) at 2, 49. She found that the agency proved that its performance appraisal
system was approved by the Office of Personnel Management (OPM), I-2 ID
2
On January 10, 2013, the appellant filed a whistleblower complaint with the Office of
Special Counsel (OSC). After OSC advised him that it had terminated its inquiry into
his allegations that the agency had engaged in retaliation in connection with poor
performance evaluations, various nonselections, and his removal, the appellant filed an
individual right of action (IRA) appeal on April 19, 2013, which the administrative
judge dismissed for lack of jurisdiction. Benton v. Nuclear Regulatory Commission,
MSPB Docket No. DC-1221-13-0508-W-1, Initial Decision (Aug. 14, 2013).
4
at 5-6; that the agency established that the appellant’s performance standards
were valid, I-2 ID at 6-8, and properly communicated them to him, I-2 ID at 8-9;
and that the appellant was afforded a reasonable opportunity to improve his
performance, I-2 ID at 10-14; but that, notwithstanding, his performance was
unacceptable under Critical Element #2. I-2 ID at 14-21.
¶5 The administrative judge then addressed the appellant’s affirmative
defenses, finding that he did not establish his claim of discrimination based on
race and sex under a disparate treatment theory, I-2 ID at 22-25, or his claim of
discrimination based on religion, I-2 ID at 25-27. In connection with that claim,
the administrative judge also found that the appellant did not establish any
violation of his First Amendment right to free speech. I-2 ID at 27-28. In
addition, she found that he did not establish that he was subjected to a hostile
work environment. I-2 ID at 28-29. The administrative judge next addressed the
appellant’s claim of retaliation for whistleblowing, considering his thirteen
alleged disclosures, but she found that he failed to show that any were protected.
I-2 ID at 29-35. She also considered six additional disclosures the appellant
raised in his IRA appeal but found similarly that he failed to show that any were
protected. I-2 ID at 35-37. The administrative judge found unsupported the
appellant’s claim that he was removed in reprisal for having filed a formal agency
grievance over his Fiscal Year (FY) 2010 performance appraisal. I-2 ID at 37-39.
The administrative judge found that the agency did not violate the appellant’s
right to due process under 5 U.S.C. § 7513(b)(1), I-2 ID at 39-40, and that he did
not establish any of his claims of harmful error, I-2 ID at 40-44. Finally, the
administrative judge found that the appellant did not establish his claims that the
agency retaliated against him for protected equal employment opportunity (EEO)
activity, I-2 ID at 44-45, failed to train him, I-2 ID at 46-48, and committed
prohibited personnel practices and/or violated merit system principles, I-2 ID
at 48.
5
¶6 The appellant has filed a petition for review with exhibits, Petition for
Review (PFR) File, Tabs 1-2, the agency has responded, id., Tab 4, and the
appellant has replied to that response, id., Tab 5, submitting numerous exhibits
with his reply, 3 id., Tabs 6-10.
¶7 We first address the appellant’s challenge to the administrative judge’s
finding that the agency established OPM’s approval of its performance appraisal
system. PFR File, Tab 1 at 9-10. The appellant argues that, because his
performance standards changed between FY 2010 and FY 2011, the agency was
required, but failed, to secure OPM approval for such changes. While an agency
is required to submit to OPM for approval of its appraisal system, 5 C.F.R.
§ 430.209(a), it is not required to establish that specific critical elements or
performance standards were, or are, submitted to OPM in order to establish valid
OPM approval under 5 U.S.C. chapter 43. Lee v. Environmental Protection
Agency, 115 M.S.P.R. 533, ¶ 24 (2010); Satlin v. Department of Veterans Affairs,
60 M.S.P.R. 218, 222 (1993). Here, the administrative judge found, and we
agree, that the agency established that OPM approved its performance appraisal
system based on OPM’s November 6, 2003 letter to the agency granting its
approval, I-1 IAF, Tab 16 at 152, and testimony in accord by the Deputy
Associate Director for Human Resources, deemed by the administrative judge to
be credible, I-2 ID at 5-6; see Lee, 115 M.S.P.R. 533, ¶¶ 27-28.
¶8 The appellant disputes the administrative judge’s finding that the agency
properly communicated to him the standards under which he was rated. In this
regard, he again points to changes in his standards from FY 2010 to FY 2011.
3
We have not considered any of the appellant’s numerous exhibits. They include a
pleading from one of his EEO complaints, PFR File, Tab 1 at 35, the agency’s
opposition to that pleading and the appellant’s rebuttal, id., Tab 2, which, while new,
are not material, see Russo v. Veterans Administration, 3 M.S.P.R. 345, 349 (1980); and
documents related to his performance during the PIRM period, PFR File, Tabs 5-6, and
other documents, id., Tabs 7-10, which are part of the record below and therefore are
not new. See Meier v. Department of the Interior, 3 M.S.P.R. 247, 256 (1980).
6
PFR File, Tab 1 at 10-11. The administrative judge considered the testimony of
the proposing official to the effect that the changes were made by Human
Resources, that they were minor, and that they applied to all employees, not just
the appellant. I-2 ID at 9. The appellant has not identified any substantive
changes to his standards and our review does not reveal any. Compare I-1 IAF,
Tab 20 at 13, with I-1 IAF, Tab 16 at 139. Moreover, the appellant signed and
approved his performance plan elements and standards at the beginning of the
rating period for FY 2011 and again at the mid-year review. I-1 IAF, Tab 16
at 139. Therefore, he has not shown error in the administrative judge’s finding
that the agency properly communicated his standards to him.
¶9 The appellant alleges that the agency failed to show that his performance
was unacceptable because he did not receive an official rating for FY 2011 and
that therefore his rating of record is his rating for FY 2010 which was minimally
successful and does not support removal. PFR File, Tab 1 at 11-12. The
administrative judge found, based on the testimony of the Deputy Associate
Director for Human Resources, which she found credible, that, because the
appellant was placed on a PIRM period in November 2011, his FY 2011 rating
was held in abeyance and that, under those circumstances, the agency was not
required to provide him with a performance rating during that period. 4 I-2 ID
at 10-11, 42. In any event, an agency is not estopped even by a prior satisfactory
appraisal from taking a performance-based action against an employee at any time
during the appraisal cycle where the employee’s performance in a critical element
becomes unacceptable. 5 C.F.R. §§ 432.104, 432.105(a),(b); Lee v. Department
of Labor, 110 M.S.P.R. 355, ¶ 11 (2008). We therefore agree with the
administrative judge that the agency’s failure to give the appellant a performance
rating for FY 2011 prior to removing him did not preclude the subsequent action.
4
The administrative judge also considered this claim as one of harmful error, finding
that the agency did not commit any error, much less harmful error. I-2 ID at 42.
7
¶10 The appellant argues that he was not warned of his performance
deficiencies prior to, or during, the appraisal period and was not afforded a
reasonable opportunity to improve. PFR File, Tab 1 at 13. As noted, 5 months
before the appellant was notified of the PIRM period, he received a Notice of
Performance Deficiencies which explained, and provided examples to show, that
his supervisors viewed his work products as deficient in quality, not technically
sound, and not organized in a logical manner. I-1 IAF, Tab 15 at 16. The agency
also denied the appellant’s within-grade increase on similar grounds. Id. at 19.
¶11 In determining whether an agency has afforded an employee a reasonable
opportunity to demonstrate acceptable performance, relevant factors include the
nature of the duties and responsibilities of the employee’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. The duties of a Reactor Engineer include serving as the principal
and/or lead reviewer in the area of nuclear power plant technology, which
includes reactor systems, reactor core design, and evaluations of design basis
accident analyses, and performing and coordinating reviews and evaluations of
reactor core and systems design, postulated accidents, and design basis accident
dose assessments. I-1 IAF, Tab 15 at 3. The appellant has not challenged that the
PIRM period lasted in excess of 120 days. The Board has found that a 30-day
performance improvement period can satisfy an agency’s obligation to provide an
employee with a reasonable opportunity to demonstrate acceptable performance.
Lee, 115 M.S.P.R. 533, ¶ 33. The record further reflects that, during the PIRM
period, the agency provided the appellant with detailed written feedback and
conducted regular meetings at which his supervisors provided summaries of his
progress. I-2 IAF, Tabs 34-43. This degree of assistance is greater than that
which the Board has found sufficient to meet an agency’s obligation. See
Goodwin v. Department of the Air Force, 75 M.S.P.R. 204, 208-09 (1997). We
therefore find that the appellant has not shown error in the administrative judge’s
8
finding that the agency proffered substantial evidence that it afforded the
appellant a reasonable opportunity to improve. See Towne v. Department of the
Air Force, 120 M.S.P.R. 239, ¶ 20 (2013).
¶12 Although the appellant did not specifically challenge on review the
administrative judge’s finding that his performance under Critical Element #2 was
unacceptable, we note that an agency’s burden of providing substantial evidence
of an appellant’s unacceptable performance can be met largely by submissions of
documentation through the charges and the appellant’s working papers. See
Fernand v. Department of the Treasury, 100 M.S.P.R. 259, ¶ 10 (2005), aff’d,
210 F. App’x 992 (Fed. Cir. 2006); see also Salter v. Department of the Treasury,
92 M.S.P.R. 355, ¶ 12 (2002). A proposal notice can constitute valid proof of an
agency’s charges where, as here, the notice is not merely conclusory, but sets
forth in detail the employee’s errors and deficiencies. See Fernand, 100 M.S.P.R.
259, ¶ 10; see also I-1 IAF, Tab 15 at 3-9. In addition, the agency attached to the
proposal notice all the documents it relied upon, including the revised drafts to
assigned projects. I-1 IAF, Tab 15 at 21-123. Moreover, in addressing this issue,
the administrative judge considered the testimony of the three agency officials
who reviewed the appellant’s work and found it deficient. I-2 ID at 18-21.
¶13 The appellant challenges the administrative judge’s finding that he did not
establish his claims of race and sex discrimination. PFR File, Tab 1 at 17. The
administrative judge appeared to find that the appellant had not established a
prima face case but that, even if he had, the agency showed that it had a
legitimate nondiscriminatory reason for removing him. I-2 ID at 22-25.
However, because the record is complete and the agency has already articulated a
legitimate, nondiscriminatory reason for its action, i.e., his alleged unsatisfactory
performance, the agency has done everything that would be required of it if the
appellant had made out a prima facie case, and whether he in fact did so is no
longer relevant. Rather, the inquiry proceeds directly to the ultimate question of
whether, upon weighing all of the evidence, the appellant has met his overall
9
burden of proving illegal discrimination, that is, whether he has produced
sufficient evidence to show that the agency’s proffered reason was not the actual
reason for the removal and that the agency intentionally discriminated against
him. See Jackson v. U.S. Postal Service, 79 M.S.P.R. 46, 52-53 (1998). In
addressing this claim, the administrative judge considered testimony of the
proposing official (who also served as the appellant’s mentor) that he has
mentored a number of employees of various races and both sexes, and testimony
of the deciding official that he had removed four employees, two for failing a
PIRM period, an African American male and an Asian male, and that he had
terminated a Hispanic male and an African American female during probation.
I-2 ID at 24. Although the appellant challenges the administrative judge’s finding
on review, he has not referred to any specific evidence or made any specific
argument. Under the circumstances, we find that the administrative judge
reached the correct conclusion in rejecting this claim. See Lee, 115 M.S.P.R.
533, ¶ 43.
¶14 On review, the appellant argues that the administrative judge failed to
consider his claim that his whistleblowing disclosures were a contributing factor
in the agency’s decision to remove him. PFR File, Tab 1 at 18-23. The
administrative judge carefully considered the appellant’s thirteen alleged
protected disclosures, I-2 ID at 30-31, but found that he failed to show that any
were protected because his claims did not demonstrate that a disinterested
observer could reasonably conclude that the actions of the agency evidenced any
wrongdoing as defined by 5 U.S.C. § 2302(b)(8). I-2 ID at 32-35; see Shannon v.
Department of Veterans Affairs, 121 M.S.P.R. 221, ¶ 22 (2014). The appellant
has not challenged this finding and we discern no reason to disturb it. Rather the
appellant challenges the administrative judge’s failure to apply the
“knowledge/timing” test. Because the administrative judge found that the
appellant failed to show that he made any protected disclosures, a finding with
which we agree, the administrative judge was not required to determine whether
10
the agency established, by use of the knowledge/timing test or any other means,
that the appellant’s disclosures were a contributing factor in the agency’s decision
to remove him. 5 See Shannon, 121 M.S.P.R. 221, ¶ 21. And, because the
appellant failed to show that he made any protected disclosures, we also reject the
appellant’s claim on review that the administrative judge was required to consider
whether the agency showed by clear and convincing evidence that it would have
removed the appellant, even absent his disclosures. PFR File, Tab 1 at 23-25; see
Shannon, 121 M.S.P.R. 221, ¶ 24.
¶15 The appellant also argues on review that the administrative judge failed to
consider his claim that he was a perceived whistleblower. PFR File, Tab 1 at 18.
In her prehearing conference summary, the administrative judge acknowledged
the appellant’s claim, citing Juffer v. U.S. Information Agency, 80 M.S.P.R. 81,
¶ 12 (1998), wherein the Board set out the appellant’s burden of proof in such
cases. I-2 IAF, Tab 52 at 8. Where an appellant alleges that the agency
5
Of the alleged protected disclosures the appellant raises in this appeal, we note that he
raised one, his disclosure that he was denied training, in his IRA appeal. The
administrative judge found that the appellant did not nonfrivolously allege that that
disclosure was protected because the internal policy that he alleged the agency violated
was not a law, rule, or regulation, but rather guidance. In affirming the administrative
judge’s initial decision, the Board found no basis upon which to disturb her findings
that the appellant failed to nonfrivolously allege that he made any protected disclosures.
Benton v. Nuclear Regulatory Commission, MSPB Docket No. DC-1221-13-0508-W-1,
Final Order at 6-7, 9 (July 29, 2014). Whether the appellant’s disclosure that he was
denied training was a protected disclosure as raised in his IRA appeal is identical to the
affirmative defense he raises in this appeal, the issue was actually litigated in the prior
appeal, it was a critical issue in the jurisdictional determination that the Board lacked
jurisdiction over the appellant’s IRA appeal, and the appellant, the party precluded from
relitigating the issue, had a full and fair opportunity to litigate the issue in the prior
action. We therefore find that the appellant is barred by collateral estoppel from
relitigating whether his disclosure regarding denial of training was protected under the
Whistleblower Protection Act. See Jenkins v. Environmental Protection Agency,
118 M.S.P.R. 161, ¶ 22 (2012); see also Kroeger v. U.S. Postal Service, 865 F.2d 235,
239 (Fed. Cir. 1988). In so finding, we note that the Board’s regulations specifically
provide that nonprecedential final orders may be cited as authority by a party asserting
issue preclusion, claim preclusion, collateral estopppel, res judicata, or law of the case.
Jenkins, 118 M.S.P.R. 161, ¶ 22 n.3; 5 C.F.R. § 1201.117(c).
11
perceived him as a whistleblower, he must show that the agency’s perception of
him as a whistleblower was a contributing factor in its decision to take or not take
the personnel action at issue. King v. Department of the Army, 116 M.S.P.R. 689,
¶ 9 (2011). In the initial decision, the administrative judge acknowledged the
appellant’s claim, I-2 ID at 31, but made no findings on it. Inasmuch as the
record is complete, we consider his claim now. Based on our review of the
record, we find that the appellant has not shown that any agency officials
believed that he made or intended to make disclosures that evidenced the type of
wrongdoing listed under 5 U.S.C. § 2302(b)(8). See King, 116 M.S.P.R. 689, ¶ 8.
On review, the appellant claims only that he did prove that the agency perceived
him as a whistleblower, PFR File, Tab 1 at 21, but he has not pointed to any
supporting evidence. His conclusory statement, without more, does not suffice,
and we find that he has failed to meet his burden as to this claim.
¶16 The appellant argues that the administrative judge abused her discretion in
failing to join his IRA appeal with the instant appeal. PFR File, Tab 1 at 27-29.
The appellant did not request joinder in this matter. However, an administrative
judge may join cases on her own motion if doing so would expedite processing of
the cases and not adversely affect the interests of the parties. 5 C.F.R.
§ 1201.36(b)(1), (2). Adjudication of the instant appeal was scarcely underway at
the time the administrative judge issued the initial decision dismissing the
appellant’s IRA appeal for lack of jurisdiction. Under these circumstances, we
find that the administrative judge did not abuse her discretion in failing to join
the appellant’s two appeals.
¶17 The appellant argues that the administrative judge erred in failing to
consider his claim that the agency’s action violated 5 U.S.C. § 2302(b)(12),
which provides that it is a prohibited personnel practice for an agency to take an
action if to do so would violate any law, rule, or regulation implementing, or
directly concerning, the merit system principles set out at 5 U.S.C. § 2301. PFR
File, Tab 1 at 31. The merit system principle to which the appellant refers, (7),
12
states that employees should be provided effective education and training in cases
in which such education and training would result in better organizational and
individual performance. In this regard, the appellant essentially challenges the
administrative judge’s finding that he failed to establish his claim that the agency
denied him training. The administrative judge found that training is within the
discretion of the agency, that, during the PIRM period, the agency did deny the
appellant certain training that, in its view, was not designed to help him improve
his performance deficiencies but that it did approve, and he did take, other
training that the agency believed would help him in that regard. I-2 ID at 46-47.
The administrative judge acknowledged the appellant’s claim that the agency
allowed other employees to take certain training that it denied him, but she found
that he was not similarly situated to those employees because he was on a PIRM
period and they were not. The administrative judge concluded that the agency did
not abuse its discretion in its decision to allow or disallow certain training for the
appellant during the PIRM period. I-2 ID at 47-48. Based on the appellant’s
arguments on review which amount to mere disagreement with the administrative
judge’s findings, we discern no reason to reweigh the evidence or substitute our
assessment of the record evidence for that of the administrative judge. See
Crosby v. U.S. Postal Service, 74 M.S.P.R. 98, 105-06 (1997).
¶18 The appellant next argues that the administrative judge failed to consider
his claims that the agency violated his First Amendment rights and his Fifth
Amendment right to due process. PFR File, Tab 1 at 32-33. On the contrary, the
administrative judge considered the appellant’s claim that the agency violated his
First Amendment right to free speech when certain officials scrutinized and
questioned the Biblical quote of the Thirty-fifth Psalm that he appended to an
email he sent to the deciding official. The administrative judge found that,
because the appellant appended the quote just after he received the proposal
notice, the deciding official had a reasonable basis to question it, noting that the
agency did not discipline the appellant for it. I-2 ID at 27-28. The administrative
13
judge concluded that the deciding official struck the appropriate balance between
his concern for the safety of the agency’s employees and the appellant’s right to
free speech and that therefore the appellant did not prove this affirmative defense.
I-2 ID at 28. Similarly, the administrative judge considered the appellant’s claim
that the agency violated his Fifth Amendment right to due process with regard to
the designation of the deciding official. The administrative judge found that the
appellant was afforded notice and an opportunity to respond prior to the effective
date of his removal and that therefore he failed to show that he was denied
fundamental due process. I-2 ID at 40. Beyond his disagreement, the appellant
has not shown error in the administrative judge’s finding that he did not establish
that he was denied these constitutional rights. Cf. Arrington v. Department of the
Navy, 117 M.S.P.R. 301, ¶ 16 (2012) (where the agency did not provide the
appellant an opportunity to make a response in connection with the reduction-in-
grade action, the agency failed to provide him with minimum due process); see
Voorhis v. Department of Homeland Security, 116 M.S.P.R. 538, ¶ 28 n.5 (2011)
(the government’s concern in protecting against unauthorized access and
disclosure of law enforcement information outweighs the appellant’s interest in
providing evidence of allegedly objectionable plea bargaining practices to a
political campaign), aff’d, 474 F. App’x 778 (Fed. Cir. 2012).
¶19 Finally, the appellant argues that the administrative judge erred in failing to
address the reasonableness of the penalty. The appellant asserts that the
administrative judge should have addressed the factors set forth by the Board in
Douglas v. Veterans Administration, 5 M.S.P.R. 280, 305-06 (1981), and that, had
she done so, she would have determined that mitigation was appropriate. PFR
File, Tab 1 at 29-30. It is well established, however, and the administrative judge
14
properly found, that the Board has no authority to mitigate a removal taken under
5 U.S.C. chapter 43. See Lee, 115 M.S.P.R. 533, ¶ 6; see also I-2 ID at 43. 6
NOTICE TO THE APPELLANT REGARDING
YOUR FURTHER REVIEW RIGHTS
You have the right to request further review of this final decision. There
are several options for further review set forth in the paragraphs below. You may
choose only one of these options, and once you elect to pursue one of the avenues
of review set forth below, you may be precluded from pursuing any other avenue
of review.
Discrimination Claims: Administrative Review
You may request review of this final decision on your discrimination claims
by the Equal Employment Opportunity Commission (EEOC). See Title 5 of the
United States Code, section 7702(b)(1) (5 U.S.C. § 7702(b)(1)). If you submit
your request by regular U.S. mail, the address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
6
The appellant requested that the Board vacate the administrative judge’s decisions in
his stay requests. PFR File, Tab 1 at 33. The administrative judge denied the
appellant’s first stay request, finding that he did not show that he made protected
disclosures or that there was a substantial likelihood that he would prevail on the merits
of his appeal. Benton v. Nuclear Regulatory Commission, MSPB Docket No. DC-0432-
12-0751-S-1, Initial Appeal File, Tab 4, Order at 3 (Oct. 22, 2012). The administrative
judge denied the appellant’s second stay request on the same grounds. Benton v.
Nuclear Regulatory Commission, MSPB Docket No. DC-0432-12-0751-S-2, Initial
Appeal File, Tab 3, Order at 19 (Sept. 13, 2013). However, an appellant may not
challenge an administrative judge’s order on a stay request under the Whistleblower
Protection Act through the petition for review process; a request for an interlocutory
appeal is the only option. Mogyorossy v. Department of the Air Force, 96 M.S.P.R.
652, ¶ 24 (2004). Here, the appellant did not seek an interlocutory appeal as to the
administrative judge’s ruling on either stay request. Thus, on review the Board will not
consider the appellant’s challenge to the administrative judge’s denials of his stay
requests. See Mason v. Department of Homeland Security, 116 M.S.P.R. 135, ¶ 30
(2011).
15
If you submit your request 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, NE
Suite 5SW12G
Washington, D.C. 20507
You should send your request to EEOC no later than 30 calendar days after
your receipt of this order. If you have a representative in this case, and your
representative receives this order before you do, then you must file with EEOC no
later than 30 calendar days after receipt by your representative. If you choose to
file, be very careful to file on time.
Discrimination and Other Claims: Judicial Action
If you do not request EEOC to review this final decision on your
discrimination claims, you may file a civil action against the agency on both your
discrimination claims and your other claims in an appropriate United States
district court. See 5 U.S.C. § 7703(b)(2). You must file your civil action with
the district court no later than 30 calendar days after your receipt of this order. If
you have a representative in this case, and your representative receives this order
before you do, then you must file with the district court no later than 30 calendar
days after receipt by your representative. If you choose to file, be very careful to
file on time. 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.
Other Claims: Judicial Review
If you want to request review of the Board’s decision concerning your
claims of prohibited personnel practices described in 5 U.S.C. § 2302(b)(8),
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(b)(9)(A)(i), (b)(9)(B), (b)(9)(C), or (b)(9)(D), but you do not want to challenge
the Board’s disposition of any other claims of prohibited personnel practices, you
may request review of this final decision by the United States Court of Appeals
for the Federal Circuit or by any court of appeals of competent jurisdiction. The
court of appeals must receive your petition for review within 60 days after the
date of this order. See 5 U.S.C. § 7703(b)(1)(B) (as rev. eff. Dec. 27, 2012). If
you choose to file, be very careful to file on time.
If you need further information about your right to appeal this decision to
court, you should refer to the federal law that gives you this right. It is found in
Title 5 of the United States Code, section 7703 (5 U.S.C. § 7703) (as rev. eff.
Dec. 27, 2012). You may read this law as well as other sections of the United
States Code, at our website, http://www.mspb.gov/appeals/uscode/htm.
Additional information about the United States Court of Appeals for the Federal
Circuit is available at the court's website, www.cafc.uscourts.gov. Of particular
relevance is the court's "Guide for Pro Se Petitioners and Appellants," which is
contained within the court's Rules of Practice, and Forms 5, 6, and 11.
Additional information about other courts of appeals can be found at their
respective websites, which can be accessed through
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx.
If you are interested in securing pro bono representation for an appeal to the
United States Court of Appeals for the Federal Circuit, you may visit our website
at http://www.mspb.gov/probono for a list of attorneys who have expressed
interest in providing pro bono representation for Merit Systems Protection Board
appellants before the Federal Circuit. The Merit Systems Protection Board
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neither endorses the services provided by any attorney nor warrants that any
attorney will accept representation in a given case.
FOR THE BOARD: ______________________________
William D. Spencer
Clerk of the Board
Washington, D.C.