Robyn H. Briggs v. Department of the Treasury ( 2014 )

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
ROBYN H. BRIGGS, DOCKET NUMBER
Appellant, AT-0752-14-0271-I-1
v.
DEPARTMENT OF THE TREASURY, DATE: November 21, 2014
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Robyn H. Briggs, Doraville, Georgia, pro se.
Sharon Gipson Allen, Atlanta, Georgia, 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
sustained her 15-day suspension. Generally, we grant petitions such as this one
only when: the initial decision contains erroneous findings of material fact; the
initial decision is based on an erroneous interpretation of statute or regulation or
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
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).
BACKGROUND
¶2 The appellant is a Contact Representative for the Internal Revenue Service
(IRS). Initial Appeal File (IAF), Tab 4, subtab 4b. Effective November 12, 2013,
the agency suspended the appellant from her position for 15 days based on a
charge of failure to display professional behavior when responding to customer
calls. IAF, Tab 4, subtabs 4c, 4i. The charge is supported by three specifications
in which the agency asserts that the appellant failed to exhibit courteous and
professional behavior to taxpayers during telephone calls on April 8, 2013,
April 22, 2013, and April 29, 2013. IAF, Tab 4, subtab 4i. The agency explained
that the appellant, as a Contact Representative, was required to provide customer
service to taxpayers by responding to telephone calls in a professional manner
without talking down to customers and by dealing with the customer’s feelings, if
appropriate, through tone, voice inflection, and rate of speech. Id. The
appellant’s supervisor testified that, after she randomly reviewed recordings of
the appellant’s telephone calls in response to a complaint from a congressman’s
office asserting that the appellant had been rude to one of his constituents during
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a phone call, she determined that the appellant had engaged in unprofessional
behavior on several calls. IAF, Tab 17, Hearing Compact Disc (CD)
at Tracks 1-2.
¶3 The appellant filed an appeal contesting the charge and asserting an
affirmative defense that the agency acted in reprisal for her prior equal
employment opportunity (EEO) activity. IAF, Tab 1 at 5. Following a hearing,
the administrative judge issued an initial decision sustaining the 15-day
suspension. IAF, Tab 21, Initial Decision (ID). The administrative judge found
that the agency proved two of its three specifications and its charge of failure to
display professional behavior based on audio recordings of the appellant’s
telephone calls that the agency played during the hearing. ID at 3-10. The
administrative judge further found that the appellant failed to establish her
affirmative defense of reprisal based on a prior EEO complaint that she had filed
in 2010. ID at 14-16. In reaching her decision, the administrative judge found
that, although the proposing official was aware of the appellant’s prior EEO
activity, there was no evidence that her suspension was issued in retaliation
because the appellant unquestionably committed the misconduct at issue, the
deciding official was not aware of her prior EEO activity, and the lapse in time
between her protected activity and suspension was too long to support an
inference of retaliation. ID at 15-16.
¶4 At the close of the hearing, the administrative judge instructed the agency
to provide the audio recordings of the appellant’s telephone calls that were played
during the hearing to be admitted as an agency exhibit. IAF, Tab 17, Hearing CD
at Track 4; IAF, Tab 18. The administrative judge further informed the appellant
that she could object to the audio recordings if she believed them to be altered
from what had been played during the hearing. IAF, Tab 17, Hearing CD
at Track 4. The appellant subsequently objected to the CD, asserting that she
believed that two of the calls had been altered. IAF, Tab 19. On review, the
appellant argues that both the audio recordings played during the hearing and
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those on the CD produced by the agency after the hearing are altered or
inaccurate and the administrative judge thus erred in relying on the audio
recordings. Petition for Review (PFR) File, Tab 1 at 4-6. The appellant also
reasserts that the agency retaliated against her. Id. at 6-7.
DISCUSSION OF ARGUMENTS ON REVIEW
¶5 In her initial decision sustaining the suspension, the administrative judge
noted that, while the appellant did not object to the audio recordings played
during the hearing, she objected to the CD containing the audio recordings
produced by the agency after the hearing because she alleged that portions of the
CD were inaccurate. ID at 4-5 n.1. Consequently, the administrative judge based
her findings on the audio recordings played during the hearing and did not
consider those portions to which the appellant objected. ID at 4-5 n.1. We find
unavailing the appellant’s contention that the administrative judge erred in
relying on the audio recordings played during the hearing. Because the appellant
did not object to the administrative judge’s ruling on this matter during the
proceedings below, she is precluded from doing so on review. See, e.g., Sanders
v. Social Security Administration, 114 M.S.P.R. 487, ¶ 9 (2010). We further find
that the appellant’s contention that the administrative judge erred in admitting the
CD as an exhibit provides no basis for reversal because, even if it were an error,
it did not prejudice the appellant’s substantive rights where the administrative
judge based her findings solely on the audio recordings played during the hearing,
to which the appellant did not object. ID at 4-5 n.1; see Panter v. Department of
the Air Force, 22 M.S.P.R. 281, 282 (1984) (an adjudicatory error that is not
prejudicial to a party’s substantive rights provides no basis for reversal of an
initial decision).
¶6 We note that, during the hearing, the administrative judge specifically asked
the appellant if the audio recordings played sounded at all inaccurate, and the
appellant indicated that they did not sound altered. IAF, Tab 17, Hearing CD
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at Track 4. In addition, during the hearing the appellant testified regarding the
audio recordings of her calls played by the agency without ever raising any issues
about their accuracy. 2 Id. Indeed, the appellant testified that she acknowledged
that she had talked over the taxpayers on the calls played during the hearing and,
with respect to one call, she agreed that she had engaged in uncalled-for “back
and forth” with the taxpayer, cut the taxpayer off, sounded rude and disrespectful
on the call, did not treat the taxpayer courteously or professionally, and she
expressed remorse for her actions on the call. Id.
¶7 In addition, on review the appellant also reasserts that her suspension action
was taken in reprisal for her prior EEO activity but does not offer any specific
argument challenging the administrative judge’s findings that she failed to prove
her affirmative defense. PFR File, Tab 1. With her petition, the appellant
includes a copy of an undated document which she asserts confirms that she filed
a prior EEO complaint alleging that she was subjected to sexual harassment based
on incidents that occurred in 2007 and 2008. Id. at 8. We find that this document
does not constitute new and material evidence under 5 C.F.R. § 1201.115(d)
because the appellant has not shown that it was unavailable prior to the close of
the record below despite due diligence and would not warrant an outcome
different from that of the initial decision. See, e.g., Le v. U.S. Postal Service,
114 M.S.P.R. 430, ¶ 6 (2010). The record does not reflect any dispute regarding
whether the appellant filed an EEO complaint. Rather, the administrative judge
found that there was no nexus between the appellant’s prior EEO activity and her
suspension and that the agency officials credibly testified either that they were
not aware of the appellant’s prior EEO activity or that the appellant’s prior EEO
activity had no impact on their decisions regarding the appellant’s suspension. ID
at 14-16.
2
Although the appellant indicated that the volume appeared to be amplified, she did not
maintain that the substance of the audio recordings was inaccurate. IAF, Tab 17,
Hearing CD at Track 4.
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¶8 The appellant’s general assertions on review that the administrative judge
erred in finding that she failed to prove her affirmative defense are insufficient to
disturb the administrative judge’s well-reasoned initial decision. See Crosby v.
U.S. Postal Service, 74 M.S.P.R. 98, 106 (1997) (finding no reason to disturb the
administrative judge’s findings where the administrative judge considered the
evidence as a whole, drew appropriate inferences, and made reasoned
conclusions); see also Broughton v. Department of Health & Human Services,
33 M.S.P.R. 357, 359 (1987) (same).
NOTICE TO THE APPELLANT REGARDING
YOUR FURTHER REVIEW RIGHTS
You have the right to request further review of this final decision.
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
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
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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.
FOR THE BOARD: ______________________________
William D. Spencer
Clerk of the Board
Washington, D.C.