Jewel Graye v. Department of the Treasury ( 2022 )


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  •                            UNITED STATES OF AMERICA
    MERIT SYSTEMS PROTECTION BOARD
    JEWEL A. GRAYE,                                 DOCKET NUMBER
    Appellant,                        DC-0752-15-0591-I-1
    v.
    DEPARTMENT OF THE TREASURY,                     DATE: October 21, 2022
    Agency.
    THIS FINAL ORDER IS NONPRECEDENTIAL 1
    Jewel A. Graye, Washington, D.C., pro se.
    Byron D. Smalley, Esquire, and Craig A. Corliss, 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 her 15-day suspension. 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    A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
    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
    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.        Except as expressly
    MODIFIED by this Final Order to clarify the analysis of the appellant’s evidence
    of reprisal for filing complaints of discrimination, we AFFIRM the initial
    decision.
    BACKGROUND
    ¶2         The appellant is employed by the agency as a GS-14 Information
    Technology Specialist.     Initial Appeal File (IAF), Tab 5 at 10.         Effective
    March 16, 2015, she was suspended for 15 days based on two charges:
    insubordination and failure to conscientiously perform assigned duties. 
    Id.
     On
    appeal, the administrative judge sustained the charges, found that the appellant
    failed to prove her claim of reprisal for filing complaints of discrimination, and
    affirmed the suspension. IAF, Tab 32, Initial Decision (ID) at 11 -22.
    ¶3         The appellant has filed a petition for review of the initial decision, the
    agency has filed a response, and the appellant has filed a reply to the agency’s
    response. Petition for Review (PFR) File, Tabs 3, 5-6.
    DISCUSSION OF ARGUMENTS ON REVIEW
    The appellant has failed to provide a basis for reversing the administrative
    judge’s findings of fact.
    ¶4         On review, the appellant argues that the administrative judge erred when
    she found that the appellant was notified of her need to attend an October 2014
    3
    MicroPact meeting shortly prior to its start. PFR File, Tab 3 at 8. The appellant
    contends that, because her supervisor sent her the email notification from Texas
    at 10:37 a.m. local time (Central), she did not receive it in Maryland until
    11:37 a.m. local time (Eastern), since the two locations are in different time
    zones.   
    Id. at 8-9
    .     Assuming arguendo that the appellant is correct, the
    administrative judge also found that the appellant was notified of her need to
    attend MicroPact meetings in March 2014.        ID at 12-13.    Accordingly, the
    appellant’s argument provides us with no reason to disturb the admin istrative
    judge’s finding that she inexcusably missed the October 2014 MicroPact meeting.
    
    Id.
    ¶5         The appellant also argues that the administrative judge erred when she
    found that the appellant absented herself without approval from a November 4,
    2014 MicroPact meeting. PFR File, Tab 3 at 9-10. The appellant contends that
    her supervisor gave her approval to leave for 1 hour to go vote.      
    Id. at 9-10
    .
    Assuming arguendo that the appellant is correct, the administrative judge also
    found that the appellant did not explain why she could not have voted at some
    other time during the day such that she would not miss the meeting. ID at 14.
    Accordingly, the appellant’s argument provides us with no reason to disturb the
    administrative judge’s finding that she inexcusably missed the November 2014
    MicroPact meeting. 
    Id.
    ¶6         Furthermore, the appellant bases her arguments regarding her absence from
    the MicroPact meetings noted above on evidence not submitted into the record
    before it closed. PFR File, Tab 3 at 5-6, 8-10, 32-33. The Board generally will
    only consider new and material evidence upon a showing that, despite the
    petitioner’s due diligence, the evidence was not available when the record closed.
    
    5 C.F.R. § 1201.115
    (d).    The appellant contends that her “system access was
    terminated during her suspension” and that, after she regained access, “she
    experienced intermittent software issues rendering her unable to locate and
    retrieve certain emails and files until after the record had closed.” PFR File,
    4
    Tab 3 at 5.    Because there is no indication that the appellant could not have
    retrieved the documents using the Board’s discovery procedures, we find that she
    has failed to show that the evidence previously was unavailable despite her due
    diligence.    See Ellis v. U.S. Postal Service, 
    121 M.S.P.R. 570
    , ¶ 6 (2014).
    Accordingly, we need not consider the evidence on review.
    ¶7         The appellant similarly asks the Board to reverse the administrative judge’s
    finding that the appellant’s assertion that she could not have used certain
    databases to complete an assignment was unpersuasive. PFR File, Tab 3 at 10-11.
    Notably, in her reply to the proposal notice and in her prehearing submission, she
    stated that she used one of the databases to complete the assignment. IAF, Tab 5
    at 21, Tab 24 at 8.    Regardless of the contradictory nature of the appel lant’s
    positions, however, it is apparent that she never raised this argument below. The
    Board generally will not consider an argument raised for the first time in a
    petition for review absent a showing that it is based on new and material evidence
    not previously available despite the party’s due diligence. Holton v. Department
    of the Navy, 
    123 M.S.P.R. 688
    , ¶ 18 (2016), aff’d, 
    884 F.3d 1142
     (Fed. Cir.
    2018). Because the appellant made no such showing regarding this argument, we
    will not consider it for the first time on review.
    The appellant failed to demonstrate that the administrative judge incorrectly
    applied the law to the facts of her case.
    ¶8         The appellant argues that the administrative judge erred in finding that she
    failed to prove her claim of retaliation for filing equal employment opportunity
    (EEO) complaints of discrimination because, as the administrative judge noted,
    her second-level supervisor, who was also the proposing official, stated “that the
    appellant could file as many EEO complaints as she wanted, b ut that it would
    only hurt her.”    PFR File, Tab 3 at 13; ID at 17.     In the decision letter, t he
    deciding     official intimated that the     proposing official’s   intent   was to
    communicate to the appellant that, regardless of how many complaints she filed,
    she still was required to follow her supervisors’ directions and conscientiously
    5
    perform her duties, or else further adverse actions would be taken against her.
    IAF, Tab 5 at 14-15. The proposing official averred in an affidavit that she did
    not take any action against the appellant for any discriminatory or retaliatory
    reason. IAF, Tab 30 at 167.       The administrative judge concluded that, in the
    absence of virtually any other evidence indicating that the appellant was
    retaliated against, the proposing official’s somewhat ambiguous statement was
    insufficient to prove that retaliation was a factor in the agency’s decision to
    suspend her. ID at 17-18.
    ¶9          The administrative judge’s decision was issued before the Board issued its
    decision in Gardner v. Department of Veterans Affairs, 
    123 M.S.P.R. 647
     (2016),
    which clarified that, in analyzing claims of discrimination or retaliation under
    42 U.S.C. § 2000e-16, administrative judges need not separate “direct” from
    “indirect” evidence and apply different legal standards to each, nor must they
    require appellants to demonstrate a “convincing mosaic” to prove their claims.
    Gardner, 
    123 M.S.P.R. 647
    , ¶ 30, clarified by Pridgen v. Office of Management
    & Budget, 
    2022 MSPB 31
    , ¶¶ 23-24.            Instead, administrative judges should
    consider the evidence as a whole to determine whether an appellant has shown by
    preponderant evidence 2 that the prohibited consideration was a motivating factor
    in the contested personnel action.          Id., ¶¶ 30-31.       Here, although the
    administrative judge discussed the distinction between direct and indirect
    evidence, she did not apply different legal standards to each or require the
    appellant to demonstrate a convincing mosaic to prove her claim. ID at 17 -18.
    ¶10         The decision letter provided the appellant with notice of the agency’s
    position as to the proposing official’s statement. IAF, Tab 5 at 14-15. Had the
    appellant wanted to, she could have questioned the proposing official under oath
    2
    The Board’s regulations define preponderant evidence as the degree of relevant
    evidence that a reasonable person, considering the record as a whole, would accept as
    sufficient to find that a contested fact is more likely to be true than untrue. 
    5 C.F.R. § 1201.4
    (q).
    6
    in a deposition or at a hearing before the administrative judge.               
    5 C.F.R. § 1201.33
    (a). Instead, the appellant merely expressed her own belief about the
    proposing official’s intent. IAF, Tab 31 at 9. Considering the record as a whole,
    we agree that the appellant failed to prove by preponderant evidence that her
    protected activities motivated the agency’s decision to suspend her. 3              See
    Gardner, 
    123 M.S.P.R. 647
    , ¶¶ 31-32.
    The appellant failed to provide any basis for disturbing the administrative judge’s
    conclusion that the penalty imposed was reasonable.
    ¶11         The appellant argues that her 15-day suspension was unreasonable because
    the proposing official suffered no penalty for threatening to cause her harm for
    filing EEO complaints. PFR File, Tab 3 at 14-15. Because the appellant failed to
    raise this argument below, we will not consider it on rev iew.             See Holton,
    
    123 M.S.P.R. 688
    , ¶ 18.
    ¶12         The appellant also objects to the administrative judge’s citation to a letter
    of reprimand she had received, on the basis that, as of the filing of her petition for
    review, it was going to be expunged within a month. PFR File, Tab 3 at 15 -16.
    Agencies may rely on past discipline in effecting an action for later misconduct
    so long as the agency’s ability to cite to the past action has not expired before the
    appellant engaged in the later misconduct.        Spearman v. U.S. Postal Service,
    
    44 M.S.P.R. 135
    , 140 (1990). Accordingly, the appellant’s allegation provides no
    basis for disturbing the initial decision, given that, by her own admission, her
    prior discipline had not yet expired.      The appellant has not demonstrated any
    other basis for disturbing the administrative judge’s finding that the imposed
    penalty was reasonable, and we therefore decline to do so.
    3
    Because the appellant here failed to prove her initial burden that a prohibited factor
    played any part in the agency’s decision, we do not reach the question of whether
    retaliation was a but-for cause of that decision. Pridgen, 
    2022 MSPB 31
    , ¶¶ 20-25, 30.
    7
    The appellant failed to establish that the administrative judge improperly
    pressured her into withdrawing her request for a hearing.
    ¶13         The appellant alleges that she “felt pressured” by the administrative judge
    to withdraw her request for a hearing. PFR File, Tab 3 at 4. She later clarified
    her allegation by stating that the administrative judge told the parties during a
    prehearing conference that she did not understand why the appellant was
    requesting a hearing.     PFR File, Tab 6 at 7.        The appellant alleges that the
    administrative judge’s comment made it seem like the hearing was pointless
    because the outcome was predetermined.           
    Id.
     First, we note that, because the
    appellant failed to raise any such objection below, we need not consider her
    allegation on review. See Rivoire v. U.S. Postal Service, 
    103 M.S.P.R. 643
    , ¶ 11
    (2006), aff’d, 
    244 F. App’x 351
     (Fed. Cir. 2007). Second, we note that unsworn
    allegations   generally   are   insufficient    to   rebut   the   presumption   of   the
    administrative judge’s honesty and integrity.         See Gensburg v. Department of
    Veterans Affairs, 
    85 M.S.P.R. 198
    , ¶ 7 (2000).               Finally, we find that the
    appellant’s allegations, even if true, do not demonstrate any improper actions by
    the administrative judge.
    ¶14         For the reasons set forth above, we deny the appellant’s petition for review
    and affirm the initial decision sustaining her suspension.
    NOTICE OF APPEAL RIGHTS 4
    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 a ppropriate
    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
    4
    Since the issuance of the initial decision in this matter, the Board may have updated
    the notice of review rights included in final decisions. As indicated in the notice, the
    Board cannot advise which option is most appropriate in any matter.
    8
    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:
    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.caf c.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
    9
    http://www.mspb.gov/probono for information regarding pro bono representation
    for Merit Systems Protection Board appellants before the Federal Circuit. The
    Board neither endorses the services provided by any attorney nor warrants that
    any attorney will accept representation in a given case.
    (2) Judicial   or   EEOC     review   of   cases     involving    a   claim   of
    discrimination. This option applies to you only if you have claimed that you
    were affected by an action that is appealable to the Board and that such action
    was based, in whole or in part, on unlawful discrimination. If so, you may obtain
    judicial review of this decision—including a disposition of your discrimination
    claims—by filing a civil action with an appropriate U.S. district court ( not the
    U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
    receive this decision.     
    5 U.S.C. § 7703
    (b)(2); see Perry v. Merit Systems
    Protection Board, 
    582 U.S. ____
     , 
    137 S. Ct. 1975 (2017)
    .              If you have a
    representative in this case, and your representative receives this decision before
    you do, then you must file with the district court no later than 30 calendar days
    after your representative receives this decision. If the action involves a claim of
    discrimination based on race, color, religion, sex, national origin, or a disabling
    condition, you may be entitled to representation by a court-appointed lawyer and
    to waiver of any requirement of prepayment of fees, costs, o r other security. See
    42 U.S.C. § 2000e-5(f) and 29 U.S.C. § 794a.
    Contact information for U.S. district courts can be found at their respective
    websites, which can be accessed through the link below:
    http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx.
    Alternatively, you may request review by the Equal Employment
    Opportunity Commission (EEOC) of your discrimination claims only, excluding
    all other issues. 
    5 U.S.C. § 7702
    (b)(1). You must file any such request with the
    EEOC’s Office of Federal Operations within 30 calendar days after you receive
    this decision. 
    5 U.S.C. § 7702
    (b)(1). If you have a representative in this case,
    10
    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 co mmercial 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 of Appeals
    for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
    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.
    The All Circuit Review Act is retroactive to November 26, 2017. 
    Pub. L. No. 115-195, 132
     Stat. 1510.
    12
    Contact information for the courts of appeals can be found at their
    respective websites, which can be accessed through the link below:
    http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx.
    FOR THE BOARD:                                  /s/ for
    Jennifer Everling
    Acting Clerk of the Board
    Washington, D.C.
    

Document Info

Docket Number: DC-0752-15-0591-I-1

Filed Date: 10/21/2022

Precedential Status: Non-Precedential

Modified Date: 2/22/2023