Shelia Kirkley v. Department of the Army ( 2023 )

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
SHELIA Y. KIRKLEY, DOCKET NUMBER
Appellant, PH-0752-16-0404-I-1
v.
DEPARTMENT OF THE ARMY, DATE: March 15, 2023
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Cheri L. Cannon, Esquire, and John D. Vena, II, Esquire, Washington,
D.C., for the appellant.
Jeffrey C. Dozier, Esquire, Fort Meade, Maryland, for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
Tristan L. Leavitt, Member 2
FINAL ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
affirmed her removal from her Supply Management Specialist position based on
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
Member Leavitt’s name is included in decisions on which the three -member Board
completed the voting process prior to his March 1, 2023 departure.
2
the charge of inappropriate conduct. 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 t o
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 In her petition for review, the appellant argues that her represent ative did
not adequately represent her, that the administrative judge believed a coworker’s
testimony because she cried during her testimony, and that agency managers did
nothing when another coworker made threatening statements to the appellant.
Petition for Review (PFR) File, Tab 1. The appellant’s claim of inadequate
representation does not constitute a basis for reversal of the initial decision.
Sparks v. Department of the Interior, 62 M.S.P.R. 369, 371 (1994). Even if true,
the presence of inadequate counsel is not a basis for reversal because the
appellant is held responsible for the action or inaction of her chosen counsel. Id.;
Sofio v. Internal Revenue Service, 7 M.S.P.R. 667, 670 (1981) (stating that the
appellant is responsible for the errors of his chosen representativ e). Further, the
appellant has provided no support for her assertion that the administrative judge
was influenced by the accusing coworker’s tears. Additionally, the appellant has
presented no evidence to show that her perception of the agency’s response to the
3
alleged threatening behavior by a coworker is relevant to determining whether the
agency met its burden to prove the charge and the reasonableness of the penalty. 3
¶3 In a supplement to her petition for review, the appellant also argues that the
administrative judge erred in finding that the appellant’s removal would affect the
efficiency of the service and that he misapplied the Douglas factors 4 in finding
that the penalty of removal was within the bounds of reasonableness. 5 PFR File,
Tab 6.
¶4 Regarding the appellant’s assertion that her removal did not promote the
efficiency of the service, she contends that the actions she is alleged to have
taken are not misconduct. PFR File, Tab 6 at 14-16. These allegations, however,
must be taken in context, as the administrative judge explained in the initial
decision.
¶5 The administrative judge found that the deciding official misapplied the
Douglas factors, and thus his penalty determination was not entitled to deference ,
and therefore the administrative judge had to determine the maximum reasonable
3
The appellant also argued that her supervisor was rude to her and h er union
representative when giving her a memorandum on December 28, 2015, but she does not
explain the nature or purpose of that memorandum or the relevancy of her argument to
the removal appeal. On review, the appellant includes a number of emails that
compliment her performance. PFR File, Tab 1 at 9-25. Under 5 C.F.R. § 1201.115, the
Board generally will not consider evidence submitted for the first time with the petition
for review absent a showing that it was unavailable before the reco rd was closed despite
the party’s due diligence. Avansino v. U.S. Postal Service, 3 M.S.P.R. 211, 214 (1980).
The appellant has not shown that the emails, which predate the close of the record
below, were previously unavailable despite her due diligence.
4
In Douglas v. Veterans Administration, 5 M.S.P.R. 280, 305-06 (1981), the Board
articulated a nonexhaustive list of factors relevant to the penalty determination in an
adverse action.
5
To the extent that the appellant is arguing that the administrative judge erred by
referencing her failure to testify at the hearing or to speak with the agency official who
investigated the charges against her, she has not shown error. PFR File, Tab 6 a t 13;
Initial Appeal File, Tab 29, Initial Decision (ID) at 5; see, e.g., Cole v. Department of
the Air Force, 120 M.S.P.R. 640, ¶ 3 n.1 (2014) (noting by way of background that the
appellant did not testify at the Board hearing). The administrative judge did not draw
an adverse inference from the appellant’s actions and simply noted the facts. ID at 5.
4
penalty. Initial Appeal File (IAF), Tab 29, Initial Decision (ID) at 12. The
administrative judge properly reviewed the agency-imposed penalty and
considered all of the relevant Douglas factors implicated by the facts of the
appellant’s case to determine whether the penalty was within the tolerable limits
of reasonableness. See Pinegar v. Federal Election Commission, 105 M.S.P.R.
677, ¶ 53 (2007) (stating that the Board will modify a penalty only when it finds
that the agency failed to weigh the relevant factors or that it clearly exceeded the
bounds of reasonableness in determining the penalty); Douglas v. Veterans
Administration, 5 M.S.P.R. 280, 306 (1981). The administrative judge considered
the seriousness of the offense, its relationship to the appellant’s duties, position,
and responsibilities, 6 that the misconduct was intentional and repeated, that the
appellant previously had received a 5-day suspension for similar misconduct, that
the appellant’s supervisors had lost confidence in her ability to perform her
duties, and that the penalty of removal was consistent with the agency’s table of
penalties for a second offense. 7 ID at 14-15. The administrative judge also
considered as mitigating factors the appellant’s 32 years of service and
satisfactory job performance. ID at 15.
6
As the administrative judge found, belligerent and rude behavior would be
disqualifying for an individual who serves as a contact point for both customers and
coworkers. ID at 14. The appellant’s assertion that she was not such a contact point is
contradicted by her position description, which states that the incumbent has the
responsibility to plan, organize, coordinate, and advise on purchasing and contracting
efforts. IAF, Tab 8 at 14-20.
7
The appellant argues that the administrative judge failed to address the consistency of
the penalty with that imposed on other employees for the same offense and that the
administrative judge erred by not finding fault with the deciding official’s failure to
research the consistency of the penalty. PFR File, Tab 6 at 26. When analyzing
disparate penalty claims, broad similarity between employees is insufficient to establish
that they are appropriate comparators. The relevant inquiry is whether the agency
knowingly and unjustifiably treated employees differently. Singh v. U.S. Postal
Service, 2022 MSPB 15, ¶¶ 10-14. Here, the appellant failed to meet her evidentiary
burden of proof for this claim.
5
¶6 We agree with the administrative judge that, considering all of the relevant
factors, the penalty of removal for the appellant’s misconduct does not exceed the
tolerable limits of reasonableness. Regarding the appellant’s argument that the
administrative judge did not consider all of the Douglas factors, the Board has
recognized that not every factor is relevant to a particular case. See Nagel v.
Department of Health and Human Services, 707 F.2d 1384, 1386 (Fed. Cir. 1983)
(“The [B]oard never intended that each [Douglas] factor be applied mechanically,
nor did it intend mandatory consideration of irrelevant factors in a particular
case.”); Douglas, 5 M.S.P.R. at 306 (stating that not all of the factors will be
pertinent in every case, and it must be borne in mind that the relevant factors are
not to be evaluated mechanistically).
NOTICE OF APPEAL RIGHTS 8
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
8
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 i n the notice, the
Board cannot advise which option is most appropriate in any matter.
6
about whether a particular forum is the appropriate one to review your case, y ou
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
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
7
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
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
8
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. 9 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:
9
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.
9
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.