John Ali v. Department of the Treasury ( 2023 )


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  •                            UNITED STATES OF AMERICA
    MERIT SYSTEMS PROTECTION BOARD
    JOHN A. ALI,                                    DOCKET NUMBER
    Appellant,                  AT-0752-17-0129-I-1
    v.
    DEPARTMENT OF THE TREASURY,                     DATE: April 27, 2023
    Agency.
    THIS FINAL ORDER IS NONPRECEDENTIAL 1
    James E. Tramel, III, Lilburn, Georgia, for the appellant.
    Andrew M. Greene, Esquire, and John F. Dymond, Esquire, Atlanta,
    Georgia, for the agency.
    BEFORE
    Cathy A. Harris, Vice Chairman
    Raymond A. Limon, Member
    FINAL ORDER
    ¶1         The appellant has filed a petition for review of the initial decision, which
    affirmed his removal. 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
    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    A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
    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 petit ioner 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 to
    address the administrative judge’s exclusion of video evidence, we AFFIRM the
    initial decision.
    ¶2         The appellant’s removal was based primarily on an altercation he allegedly
    caused at his place of work with a security guard. Initial Appeal File (IAF),
    Tab 4 at 16-19. The appellant alleges that the altercation began after he asked to
    speak with the security guard about the guard’s purported ly pushing the
    appellant’s fiancée a week earlier. Petition for Review (PFR) File, Tab 1 at 3.
    According to the administrative judge, the security guard testified at the hearing
    that he merely had tapped the appellant’s fiancée on the shoulder. IAF, Tab 26,
    Initial Decision (ID) at 7 n.4.
    ¶3         On review, the appellant argues that the administrative judge erred by
    excluding from the record a video purportedly showing the security guard pushing
    the appellant’s fiancée. PFR File, Tab 1 at 5. The administrative judge excluded
    the video as irrelevant. ID at 8 n.6. However, we find that the video was relevant
    because, if the appellant’s assertion is true, it would call the security guard’s
    credibility into question and because it would be worth some mitigating weight in
    determining the reasonableness of the penalty.
    ¶4         Nevertheless, the Board will only reverse an initial decision on the ground
    that the administrative judge improperly excluded evidence if the appellant
    3
    demonstrates that the error affected the outcome of the case. See Nichols v. U.S.
    Postal Service, 
    80 M.S.P.R. 229
    , ¶ 7 (1998); 
    5 C.F.R. § 1201.115
    (c). Here, the
    appellant has failed to show how the error affected the outcome of the case, and
    we find that it did not. First, even if the security guard’s credibility was lacking,
    the administrative judge relied on the testimony of two additional witnesses, who
    observed the altercation and lacked bias, to find that the appellant committed the
    charged misconduct. ID at 6.        Second, although the evidence could be worth
    some mitigating weight in determining the reasonableness of the penalty, we
    agree with the administrative judge that the fact that the appellant may have been
    provoked by the security guard’s previous behavior would not, even combined
    with other mitigating factors, outweigh the seriousness of the charges and other
    aggravating factors such that the appellant’s removal could be deemed
    unreasonable.    ID at 10-13.      Accordingly, we decline to reverse the initial
    decision on this basis; however, we modify the initial decision to the extent the
    administrative judge found the video irrelevant .
    ¶5         The appellant also argues on review that the agency failed to prove its
    charges, that he was denied the opportunity to respond to the proposal notice, and
    that the deciding official failed to sufficiently consider the appropriateness of the
    penalty before making his decision. PFR File, Tab 1 at 1‑7. We have considered
    his arguments and find that he has not provided a sufficient basis to disturb the
    explained findings on these issues set forth in the initial decision. 2 Accordingly,
    we affirm the initial decision, as modified, and uphold the appellant’s removal.
    2
    The administrative judge found that the appellant did not submit any evidence
    showing that his removal was discriminatory and thus did not establish an affirmative
    defense of disparate treatment disability discrimination. ID at 18. Other than to allege
    that the agency’s denial of his request to reschedule his oral reply was “discriminatory
    based on his medical incapacity,” the appellant does not challenge the administrative
    judge’s findings that he failed to prove this affirmative defense. PFR File, Tab 1 at 2.
    However, we will briefly address such claim in light of recent case law. A claim of
    discrimination based on an individual’s status as disabled requires that the individual be
    a qualified individual with a disability. Haas v. Department of Homeland Security,
    4
    NOTICE OF APPEAL RIGHTS 3
    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 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.
    (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.
    
    2022 MSPB 36
    , ¶ 28. Further, to establish a claim of disparate treatment disability
    discrimination, the appellant has the burden of proving that his disability was at least a
    motivating factor in his removal. See Pridgen v. Office of Management and Budget,
    
    2022 MSPB 31
    , ¶¶ 31-34. Because we agree that the appellant did not prove this claim,
    even when considering the appellant’s allegations under the correct standard, we do not
    reach the question of whether the appellant was “qualified,” see Haas, 
    2022 MSPB 36
    ,
    ¶ 29, or whether his disability was a “but-for” cause of the removal action, see Pridgen,
    
    2022 MSPB 31
    , ¶¶ 20-22, 29-33.
    3
    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
    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
    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
    6
    representative in this case, and your representative rece ives 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 or igin, 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, th e
    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
    7
    (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. 4   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 f or
    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.
    4
    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
    .
    8
    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.
    

Document Info

Docket Number: AT-0752-17-0129-I-1

Filed Date: 4/27/2023

Precedential Status: Non-Precedential

Modified Date: 4/28/2023