Kiwanna Goodwin v. Pension Benefit Guaranty Corporation ( 2022 )

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
KIWANNA A. GOODWIN, DOCKET NUMBER
Appellant, DC-315I-22-0138-I-1
v.
PENSION BENEFIT GUARANTY DATE: July 11, 2022
CORPORATION,
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Kiwanna A. Goodwin, Brandywine, Maryland, pro se.
John Scott Hagood and Sara Robinson, Washington, D.C., for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
Tristan L. Leavitt, Member
FINAL ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
dismissed her appeal of an agency action returning her from a GS-15 Supervisory
IT Specialist to her former GS-14 IT Specialist position during her supervisory
probationary period based on a finding that she failed to raise a nonfrivolous
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
allegation of marital status discrimination. Generally, we grant petitions such as
this one only in the following circumstances: the initial decision contains
erroneous findings of material fact; the initial decision is based on an erroneous
interpretation of statute or regulation or the erroneous application of the law to
the facts of the case; the administrative judge’s rulings during either the course of
the appeal or the initial decision were not consistent with required procedures or
involved an abuse of discretion, and the resulting error affected the outcome of
the case; or new and material evidence or legal argument is available that, despite
the petitioner’s due diligence, was not available when the record closed. Title 5
of the Code of Federal Regulations, section 1201.115 ( 5 C.F.R. § 1201.115).
After fully considering the filings in this appeal, we conclude that the petitioner
has not established any basis under section 1201.115 for granting the petition for
review. Therefore, we DENY the petition for review and AFFIRM the initial
decision, which is now the Board’s final decision. 5 C.F.R. § 1201.113(b).
¶2 On review, the appellant repeats her argument that she was treated
differently as a “single (never married), [B]lack” new supervisor and that all of
the married managers in her division had successfully completed their supervisory
probationary period “despite any issues they had.” Petition for Review (PFR)
File, Tab 1 at 4; Initial Appeal File (IAF), Tab 4 at 9. She resubmits her
self-made chart setting forth the marital status and race of new managers, as well
as the marital status and race of the Office of Information Technology senior
leadership team. PFR File, Tab 1 at 5; IAF, Tab 4 at 9. For the first time on
review, she identifies a specific comparator who purportedly received preferential
treatment from the agency through personnel moves, a “married [A]sian male new
manager.” PFR File, Tab 1 at 4-5. The appellant submits evidence and argument
challenging the merits of her termination from her supervisory position and
raising various issues unrelated to jurisdiction, including purported actions that
the agency has taken against her since the issuance of the initial decision and a
Freedom of Information Act request she filed for documents related to the
3
agency’s investigation of her harassment complaint. PFR File, Tab 1 at 4-18,
Tab 3 at 4-45.
¶3 Under 5 C.F.R. § 1201.115, the Board generally will not consider evidence
submitted for the first time with a petition for review absent a showing that it was
unavailable before the close of the record below despite the party’s due diligence.
Pirkkala v. Department of Justice, 123 M.S.P.R. 288, ¶ 5 (2016); see Clay v.
Department of the Army, 123 M.S.P.R. 245, ¶ 6 (2016) (stating that the Board
generally will not consider a new argument raised for the first time on review
absent a showing that it is based on new and material evidence). However,
we have considered the appellant’s new evidence and argument to the extent it
concerns the issue of the Board’s jurisdiction because the Board’s jurisdiction can
be raised at any time including on review. See Pirkkala, 123 M.S.P.R. 288, ¶ 5
(considering evidence submitted for the first time on review because it was
relevant to the Board’s jurisdiction).
¶4 Even considering the appellant’s new arguments and evidence, she has
presented no basis for disturbing the administrative judge’s finding that her
allegations are “conclusory and speculative” and do not rise to the level of a
nonfrivolous allegation of marital status discrimination. IAF, Tab 7, Initial
Decision (ID) at 8 (citing Smirne v. Department of the Army, 115 M.S.P.R. 51,
¶ 8 (2010)). We agree with the agency’s argument the appellant fails to provide
any supporting evidence that the newly identified comparator ’s marital status
played any role in his successful completion of his supervisory probationary
period. PFR File, Tab 4 at 6-10. The appellant submits purported sections from
her harassment and discrimination complaints to the agency that include mention
of probing personal questions from a subordinate and allegations of pregnancy
discrimination at least 5 years prior to her selection for the supervisory position.
PFR File, Tab 5 at 4, 9. She also claims on review that the agency’s Equal
Employment Opportunity (EEO) office had told her that it would be hard for her
to prove that she was harassed based on her “race and sex” becau se both her and
4
her alleged harasser were “black females,” that she could not file an age
discrimination complaint because she was under 40 years old, and that District of
Columbia law did not apply to her as a Federal employee. Id. at 5-6. These
arguments undercut her allegation of marital status discrimination and suggest
that she raised them only after first claiming discrimination and retaliation on
other grounds.
¶5 Therefore, we find that the appellant has not raised any specific allegations
on review that are “more than mere conjecture” and would support a finding of
marital status discrimination. See Ellis v. Department of the Treasury,
81 M.S.P.R. 6, ¶ 13 (1999); see also Stokes v. Federal Aviation Administration,
761 F.2d 682, 686 (Fed. Cir. 1985) (stating that an appellant must provide
supporting facts and that merely conclusory pleadings are insufficient ).
The administrative judge also correctly found that the appellant’s claims of
retaliation for EEO activity and discrimination on the basis of race do not provide
an independent basis for finding Board jurisdiction in the absence of an otherwise
appealable action. ID at 7; see Wren v. Department of the Army, 2 M.S.P.R. 1, 2
(1980), aff’d, 681 F.2d 867, 871-73 (D.C. Cir. 1982); see also Penna v. U.S.
Postal Service, 118 M.S.P.R. 355, ¶ 13 (2012).
¶6 Accordingly, we affirm the initial decision.
NOTICE OF APPEAL RIGHTS 2
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
2
Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.
5
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.cafc.uscourts.gov. Of partic ular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
6
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, 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
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with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012. This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in
section 2302(b) other than practices described in section 2302(b)(8), or
2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial
review either with the U.S. Court of Appeals for the Federal Circuit or any court
of appeals of competent jurisdiction. 3 The court of appeals must receive your
3
The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law b y the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of c ompetent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510.
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petition for review within 60 days of the date of issuance of this decision.
5 U.S.C. § 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
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.