Lionel Washington v. Department of Veterans Affairs ( 2023 )

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
LIONEL WASHINGTON, DOCKET NUMBER
Appellant, DA-0752-15-0413-I-1
v.
DEPARTMENT OF VETERANS DATE: February 15, 2023
AFFAIRS,
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Brenda Richardson, San Antonio, Texas, for the appellant.
Thomas Herpin, Esquire, and Cecilia G. Isenberg, 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
affirmed his 20-day suspension for failure to follow instructions and delay in
carrying out an assigned duty. 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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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 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
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 aff ected the outcome of the case; or
new and material evidence or legal argument is available that, despite the
petitioner’s due diligence, was not available when the record closed. Title 5 of
the Code of Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). After
fully considering the filings in this appeal, we conclude that the petitioner has not
established any basis under section 1201.115 for granting the petition for review.
Therefore, we DENY the petition for review 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 Medical Records Technician, GS-0675-05, at the
agency’s South Texas Veterans Health Care System, in San Antonio, Texas.
Initial Appeal File (IAF), Tab 8 at 108, 110. The agency suspended him for
20 days for Failure to Follow Instructions (2 specifications) and Delay in
Carrying Out an Assigned Duty (1 specification). Id. at 108, 110-13. The
appellant filed an equal employment opportunity (EEO) complaint, alleging that
the agency discriminated against him and subjected him to a hostile work
environment based on race, age, and reprisal for prior EEO activity. IAF, Tab 2
at 7-17. On May 7, 2015, the agency issued a final agency decision finding no
discrimination, retaliation, or harassment. Id. This appeal followed. IAF, Tab 2.
¶3 The appellant asserted on appeal that the suspension was discriminatory
based on his race and age, and was imposed in retaliation for prior Board appeals
and EEO complaints. Id. at 2. The administrative judge found that the agency
proved both charges by preponderant evidence. IAF, Tab 33, Initial Decision
3
(ID) at 2-10. The administrative judge further found that the appellant failed to
show by preponderant evidence that the agency’s action resulted from
discrimination or retaliation. ID at 10-21. The administrative judge also found
that the penalty promoted the efficiency of the service and was reasonable , and
she affirmed the agency’s action. ID at 21-25. The appellant filed a petition for
review. Petition for Review (PFR) File, Tab 1. The agency did not respond.
ANALYSIS
¶4 On review, the appellant reargues the claims he raised before the
administrative judge, taking issue with the findings of fact regarding whether he
committed the charged conduct and whether the agency’s reasons for taking the
action against him were pretextual. His arguments are unpersuasive.
¶5 In particular, the appellant challenges the administrative judge’s findings on
the first specification of the first charge, Failure to Follow Instructions. Id. at
3-6. This specification involves the appellant’s refusal to schedule a fact-finding
meeting that he had been instructed to attend. IAF, Tab 8 at 115. The appellant’s
supervisor offered him a choice of days and times for scheduling such a meeting,
and he did not respond to the supervisor’s email request. Id. The fact-finding
meeting pertained to an insufficiently documented request for leave under the
Family and Medical Leave Act (FMLA). Id. at 126-27. The appellant maintains
that he took the leave to care for family members, that it had been approved, and
that the administrative judge erred by not recognizing those facts. PFR File,
Tab 1 at 3-4.
¶6 The administrative judge, however, properly sustained the specification.
An employee must comply with an agency order, even when he may have
substantial reason to question it, while taking steps to challenge its validity
through whatever channels are appropriate. Pedeleose v Department of Defense,
110 M.S.P.R. 508, ¶ 16 (2009). Management has a fundamental right to expect
that its decisions will be obeyed and its instructions carried out. Id. Here, the
4
agency instructed the appellant by email on March 3, 2014, to schedule his
attendance at a fact-finding meeting because he had not submitted medical
documentation in support of his request for FMLA leave for December 11, 2013.
IAF, Tab 8 at 115, 125-26. The appellant responded on March 5, 2014, without
answering the agency’s specific request regarding his availability for the meeting,
and instead asked to meet with Human Resources. Id. at 124. He also stated that
he intended to speak with his union about receiving outside representation , and he
resubmitted his FMLA application. Id. at 125-26. In the 2 weeks that followed,
the appellant failed to set a date for a fact-finding meeting, despite his immediate
supervisor’s March 24, 2014 email asking him whether he was refusing to
participate in the fact finding. Id. at 124. As of that date, the appellant still had
not indicated whether he would attend the meeting. Id. Although he asserted that
he needed time to secure representation, he did not comply with the instructions
in his supervisor’s email by setting a date and time for the meeting, even if he
considered such a meeting to be unnecessary or the request to be a form of
harassment. See id. at 124-25; PFR File, Tab 1 at 6. He has not provided any
credible evidence that complying with his immediate supervisor’s instructions
would have caused irreparable harm or placed him in a dangerous situation. See
Pedeleose, 110 M.S.P.R. 508, ¶ 17. Indeed, attending such a meeting may have
assisted the appellant in obtaining the proper documentation for the December 11,
2013 absence.
¶7 The second specification of Failure to Follow Instructions arose from the
appellant’s failure on January 29, 2014, to correct the agency’s weekly Physical
Medicine and Rehabilitation Report. IAF, Tab 8 at 115. The appellant had been
responsible for preparing this report for a number of years, and his responsibility
included correcting the report before its release each week. Id. at 115, 130;
Hearing Compact Disc (HCD) (testimony of the appellant’s immediate
supervisor). The appellant’s immediate supervisor copied the Acting Assistant
Chief, an employee who had on occasion served as the appellant’s acting
5
supervisor (acting supervisor), on an email the immediate supervisor sent to the
appellant regarding corrections the appellant needed to complete for the report.
IAF, Tab 8 at 130; HCD (testimony of the appellant’s immediate and acting
supervisors). The acting supervisor testified that she received the email as a
courtesy copy because the immediate supervisor had sent it in response to an
email message from the appellant, which the acting supervisor also had received.
HCD (testimony of the acting supervisor). The appellant asserts that his acting
supervisor was jointly responsible for making the corrections. PFR File, Tab 1 at
7-10. The appellant postulates that the agency coached his acting supervisor to
deny her responsibility for the report when she testified at his hearing. Id. at 8.
¶8 The appellant, however, presented no proof of his allegation s regarding his
acting supervisor, who testified that it was the appellant’s sole responsibility to
prepare the reports. The administrative judge strongly relied on the unrebutted
testimony from the appellant’s immediate and acting supervisors, both of whom
she found to be credible pursuant to her analysis under the Hillen factors. ID
at 7-8; see Hillen v. Department of the Army, 35 M.S.P.R. 453, 458 (1987)
(listing factors that an administrative judge may consider when assessing a
witness’s credibility). The administrative judge’s Hillen analysis addressed
demeanor evidence. ID at 7. 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).
Sufficiently sound reasons for overturning an administrative judge’s demeanor-
based credibility determinations include findings that are incomplete, inconsistent
with the weight of the evidence, and do not reflect the record as a whole.
Faucher v. Department of the Air Force, 96 M.S.P.R. 203, ¶ 8 (2004). The
appellant has not offered any such reasons for overturning the credibility findings
here.
6
¶9 The appellant further asserts that the agency waited 4 to 5 months after the
incident to bring the charge, and that the charge itself was inconsistent with his
good job performance. PFR File, Tab 1 at 10-11. Even if the appellant’s
misconduct generally was inconsistent with his performance history, the agency
proved that it occurred. ID at 3-8. Although a charge may be dismissed if an
agency’s delay in proposing the adverse action is unreasonable and the delay
prejudiced the employee’s ability to defend against the charge, Messersmith v.
General Services Administration, 9 M.S.P.R. 150, 155 (1981), the appellant has
not alleged such prejudice. In any event, we find that the delay in bringing the
charge does not appear to be unreasonable on its face or to have prejudiced the
appellant’s ability to mount a defense.
¶10 The appellant’s remaining objections on review pertain to the administrative
judge’s findings on the issues of discrimination, including a hostile work
environment and retaliation for prior EEO activity. ID at 10-21. The appellant
argues that the adverse action in this appeal is intended to sully his reputation and
diminish his chances for promotion. PFR File, Tab 1 at 2-3, 18-19. He contends
that his circumstances are emblematic of a larger problem: The majority of
agency supervisors are Caucasian males, and persons of color are
underrepresented in management. 2 Id. at 15-16. The appellant cites as an
example of this problem the fact that the agency had not yet “boarded” him for
2
The appellant included with his petition for review pages from a document entitled
Commission on Care Final Report, dated June 30, 2016, to support his contention that
Caucasian men are overrepresented in agency management. PFR File, Tab 1 at 21-27.
The Board generally will not consider an argument raised for the first time in a petition
for review absent a showing that it is based on new and material evidence not
previously available despite the party’s due diligence. Banks v. Department of the Air
Force, 4 M.S.P.R. 268, 271 (1980). Although the Final Report was issued on the same
day as the initial decision and would be considered new evidence, it does not meet the
Board’s standard for materiality, in that it is not of sufficient weight to warrant an
outcome different from that of the initial decision. See Russo v. Veterans
Administration, 3 M.S.P.R. 345, 349 (1980). The report pertains to the entire veterans’
health care system, and not just the conditions at the appellant’s facility. It also does
not address the specific allegations in the appellant’s appeal.
7
promotion. 3 Id. at 12-13, 16-17. He similarly argues that the administrative
judge failed to allow him to present evidence of his credentials , which show that
his job qualifications exceeded those of his supervisors. Id. at 17. Regarding his
discrimination claim related to the suspension at issue in this appeal, the
appellant asserts that both his immediate and acting supervisors refused to
acknowledge that he is African-American, 4 and that the suspension is part of a
pattern of “covert racism.” PFR File, Tab 1 at 12-13. Regarding his claim of
retaliation for EEO activity, the appellant asserts that the agency’s actions against
him, including the request to schedule a fact-finding meeting and the suspension
itself, closely followed his prior EEO activity and occurred 4 to 5 months after
the events underlying those actions. Id. at 4-5, 10-11. He further asserts that the
agency officials’ possible reference to his EEO activity during a discussion of a
personnel action evidences their retaliatory animus. Id. at 16.
¶11 The appellant bore the burden of proof on the issues of discrimination and
retaliation, and he chose not to testify. ID at 12; 5 C.F.R. § 1201.56(b)(2)(C).
On review, he explained his fear that, if he testified, it might “elicit very
emotional responses that he could not control.” PFR File, Tab 1 at 18. The
appellant, however, could have offered a statement under oath regarding his
claims, and such a statement would have had evidentiary value. Truitt v.
Department of the Navy, 45 M.S.P.R. 344, 347 (1990) (explaining that sworn
statements that are not rebutted are competent evidence of the matters asserted
3
Here, the appellant is referencing the agency’s failure to promote him since he was
converted from a competitive-service Title 5 employee to a Title 38 employee in 2008.
IAF, Tab 13 at 2-3.
4
The appellant’s immediate supervisor testified that he is Hispanic and that he is
unaware of the appellant’s race. He stated that the appellant never informed him of his
race, and that he is unaware of the appellant’s age. HCD (testimony of the appellant’s
immediate supervisor).
8
therein). Instead, his representative set forth his allegations in the pleadings. 5
IAF, Tab 13. The statements of a party’s representative in a pleading, however,
do not constitute evidence. Hendricks v. Department of the Navy, 69 M.S.P.R.
163, 168 (1995).
¶12 In making her findings, the administrative judge relied upon the testimony
of various agency witnesses, including the appellant’s supervisor, the proposing
official, and the deciding official. ID at 12-15, 17-21. Based in part on demeanor
evidence, she found that these officials testified credibly that their actions were
not motivated by discrimination or retaliation. ID at 14, 20-21. The Board will
defer to such credibility determinations unless it has “sufficiently sound” reasons
for overturning them. Haebe, 288 F.3d at 1301 . The administrative judge also
considered various other factors in assessing witness credibility, including
witness bias, or lack thereof, and the consistency of the witnesses with one
another and with other record evidence. ID at 14-15, 19-21; see Hillen,
35 M.S.P.R. at 458. The appellant has not identified any reason to overturn these
findings other than the mere fact that he disagrees with them. See Faucher,
96 M.S.P.R. 203, ¶ 8.
¶13 The administrative judge considered the evidence the appellant presented in
support of his allegations of discrimination and retaliation. ID at 13-14, 18-19.
Even after taking such evidence at face value, she found that he had offered little
information other than unsupported allegations to show that his race or age was a
motivating factor in the suspension. ID at 14-15; see Pridgen v. Office of
Management and Budget, 2022 MSPB 31, ¶¶ 20-22. She likewise found that the
appellant offered no direct evidence of retaliatory motive in his suspension, ID
at 19, and the circumstantial evidence he offered was not probative of retaliation,
ID at 19-20. She therefore found that the appellant did not show that the
5
Although the appellant’s representative signed the response to the administrative
judge’s order on affirmative defenses under penalty of perjury, the appellant himself
made no declaration or affidavit in support of the pleading. IAF, Tab 13 at 56.
9
proposing and deciding officials had any motive to retaliate against him for his
prior EEO activity or his Board appeals. ID at 20-21. We agree with these
findings.
¶14 Accordingly, we find that the appellant has offered no reason to disturb the
administrative judge’s findings, and we thus affirm the initial decision. 6
NOTICE OF APPEAL RIGHTS 7
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.
6
The appellant also references an additional 14-day suspension imposed by the agency
based on different charges, which is still pending at the Equal Employment Opportunity
Commission (EEOC) Office of Federal Operations. PFR File, Tab 1 at 18. That
suspension is not before the Board in the instant appeal. IAF, Tab 21 at 1-2. We also
find no error in the administrative judge’s denial of the appellant’s request to
consolidate his Board appeal with his three pending EEOC cases, which include the
14-day suspension. ID at 2 n.6.
7
Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.
10
(1) Judicial review in general. As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.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
11
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board, 582 U.S. ____ , 137 S. Ct. 1975 (2017). If you have a
representative in this case, and your representative receives this decision before
you do, then you must file with the district court no later than 30 calendar days
after your representative receives this decision. If the action involves a claim 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:
12
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012. This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “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. 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
8
The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195,
132 Stat. 1510.
13
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
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: /s/ for
Jennifer Everling
Acting Clerk of the Board
Washington, D.C.