Jacinth Johnson v. Department of the Army ( 2023 )

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
JACINTH JOHNSON, DOCKET NUMBER
Appellant, CH-0752-17-0416-I-1
v.
DEPARTMENT OF THE ARMY, DATE: June 26, 2023
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Andrew Kim, Esquire, Atlanta, Georgia, for the appellant.
Trevor J. Smothers, Esquire, Fort Leonard Wood, Missouri, 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 her removal for failure to meet a condition of employment. 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
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A nonprecedential order is one that the Board has determined does not add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 nonpreceden tial 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
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, except as expressly MODIFIED to
set forth the proper standard for evaluating an affirmative defense of retaliation
for protected equal employment opportunity (EEO) activity.
BACKGROUND
¶2 The appellant was removed from her position as a GS-9 Victim Advocate,
Sexual Harassment Response Program (SHARP) for failure to meet a condition of
employment. Initial Appeal File (IAF), Tab 1 at 7-8. The appellant had served as
a Victim Advocate for approximately 3 years, at agency posts in Fort Leonard
Wood, Missouri, and in South Korea. IAF, Tab 13 at 402-05. An individual
holding the Victim Advocate position is required to maintain a D epartment of
Defense Sexual Assault Advocate Certification Program (D-SAACP)
certification, which requires recertification every 2 years. IAF, Tab 13 at 200,
274-88. Part of the recertification application requires a recommendation from a
supervisor attesting to the individual’s “moral character, professional abilities and
willingness to perform the duties” of the position. IAF, Tab 7 at 24.
¶3 In April 2017, the appellant’s first-level supervisor proposed the appellant’s
removal for failure to maintain a D-SAACP certification, a condition of her
employment. IAF, Tab 13 at 200-02. The supervisor previously had notified the
appellant verbally and in writing that she was unable to sign the necessary
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recommendation because she could not attest that the appellant possessed the
requisite professional abilities and willingness to perform the duties of the
position. Id. at 207-08, 236-37. The appellant’s D-SAACP certification expired
in February 2017. IAF, Tab 7 at 18-19. The appellant replied to the proposed
removal in writing. IAF, Tab 13 at 22-194, Tab 27, Tab 32, Initial Decision (ID)
at 3 n.2. The deciding official sustained the proposed removal, finding that the
appellant did not hold the required certification and that removal promoted the
efficiency of the service. IAF, Tab 13 at 13-21.
¶4 The appellant timely appealed her removal with the Board. IAF, Tab 1.
After holding a hearing, the administrative judge issued an initial decision
affirming the agency’s removal of the appellant for failure to meet a condition of
employment. ID at 2, 22. The administrative judge found that the agency had
proven its charge by preponderant evidence, 2 that there was a clear nexus between
the charge and the efficiency of the service, and that the appellant’s removal was
a reasonable penalty. ID at 5-12, 19-21. The administrative judge found that the
appellant failed to show by preponderant evidence that retaliation for her prior
EEO activity was a motivating factor in her removal. ID at 13-19.
¶5 The appellant has filed a petition for review. Petition for Review (PFR)
File, Tab 1. The agency has filed a response opposing the petition. PFR File,
Tab 4.
DISCUSSION OF ARGUMENTS ON REVIEW
The administrative judge correctly sustained the charge.
¶6 To sustain a charge of failure to fulfill a condition of employment, the
agency must prove the following by preponderant evidence: (1) the requirement
at issue is a condition of employment; and (2) the appellant failed to meet that
2
A preponderance of the evidence is that 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).
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condition. See Thompson v. Department of the Air Force, 104 M.S.P.R. 529,
¶¶ 9-10 (2007). Absent evidence of bad faith or patent unfairness, the Board
defers to the agency’s requirements that must be fulfilled for an individual to
qualify for appointment to and retention in a particular position. Gallegos v.
Department of the Air Force, 121 M.S.P.R. 349, ¶ 6 (2014) (citing Thompson,
104 M.S.P.R. 529, ¶ 9). As set forth in the initial decision, when, as in the
present appeal, the employing agency controls the withdrawal or revocation of the
required certification, the Board’s authority generally extends to review of the
merits of that withdrawal or revocation. ID at 4 (citing Adams v. Department of
the Army, 105 M.S.P.R. 50, ¶ 10 (2007), aff’d, 273 F. App’x 947 (Fed. Cir.
2008)). A narrow exception exists in cases in which the adverse action is based
on the withholding of a national security credential, such as a security clearance
or eligibility to occupy a noncritical sensitive position. Adams, 105 M.S.P.R. 50,
¶ 11; see Department of the Navy v. Egan, 484 U.S. 518, 530-31 (1988);
Kaplan v. Conyers, 733 F.3d 1148, 1166 (Fed. Cir. 2013) (en banc). This case
does not involve considerations of national security. Accordingly, the
administrative judge properly reviewed the substance of the supervisor’s decision
not to sign the recommendation for the appellant’s D-SAACP renewal
application. ID at 6-12.
¶7 On review, the appellant challenges the administrative judge’s finding
sustaining the charge of failure to meet a condition of employment. PFR File,
Tab 1. The appellant does not dispute that the Victim Advocate position requires
a D-SAACP certification and that her certification expired. IAF, Tab 26 at 2; ID
at 4; PFR File, Tab 1. Rather, the appellant contests the administrative judge’s
factual findings and credibility determinations regarding her supervisor’s decision
not to sign the recommendation for the appellant’s D-SAACP renewal
application. PFR File, Tab 1 at 14-21; IAF, Tab 13 at 207-08. The appellant
asserts that the administrative judge erred in not discussing certain relevant topics
in detail in the initial decision. PFR File, Tab 1 at 15-21.
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¶8 As discussed in the initial decision, the notice of proposed removal and
earlier notice of intent not to sign the recommendation identified the following
reasons for the supervisor’s decision: (1) unwillingness to dedicate duty hours on
evenings and weekends as required by her position; (2) failure to meet the shared
responsibility of knowledge of current cases in the SHARP program when
covering for team members on leave; (3) poor communication skills with SHARP
team members; and (4) handling of a December 2016 case in which a victim
sought assistance from the SHARP program. IAF, Tab 13 at 200-02, 207-08; ID
at 5-6. The appellant’s arguments on review focus primarily on the
December 2016 incident. PFR File, Tab 1 at 15-18. She argues that the
administrative judge failed to consider the lack of an official complaint card
regarding the alleged dissatisfaction communicated to SHARP personnel by the
victim’s family member and the circumstances surrounding the appellant’s
“handoff” of the victim to other agency personnel. Id. The appellant also argues
that the administrative judge failed to consider that she had only been in her
position at Ford Leonard Wood for a few months and that another SHARP team
member was out on leave for an extensive period. Id. at 18-20. Finally, she
maintains that the administrative judge did not address the fact that the supervisor
did not issue the notice of intent not to sign the recommendation until after the
deadline for the D-SAACP renewal application had passed. Id. at 20.
¶9 Having considered the appellant’s arguments on review, which largely
constitute mere disagreement with the administrative judge’s findings, we discern
no reason to reweigh the evidence or substitute our assessment of the record
evidence for that of the administrative judge. See Crosby v. U.S. Postal Service,
74 M.S.P.R. 98, 105-06 (1997) (finding no reason to disturb the administrative
judge’s findings when she considered the evidence as a whole, drew appropriate
inferences, and made reasoned conclusions on issues of credibility) ; Broughton v.
Department of Health and Human Services, 33 M.S.P.R. 357, 359 (1987); see
also Haebe v. Department of Justice, 288 F.3d 1288, 1302 (Fed. Cir. 2002)
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(holding that the Board may overturn credibility determinations only when it has
“sufficiently sound” reasons for doing so). The administrative judge’s failure to
discuss in depth all aspects of the documentary evidence and hearing testimony
regarding the December 2016 incident and the appellant’s communication issues
with SHARP personnel does not mean that she did not consider them and is not a
basis to overturn her well-reasoned findings. See Marques v. Department of
Health and Human Services, 22 M.S.P.R. 129, 132 (1984), aff’d, 776 F.2d 1062(Fed. Cir. 1985) (Table).
¶10 The administrative judge properly sustained by preponderant evidence the
agency’s charge of failure to fulfill a condition of employment. ID at 12.
Regarding the December 2016 victim incident, the administrative judge found it
“more probable than not that the agency’s version of events occurred.” Id. In
finding that the testimony of the three agency witnesses from the SHARP
program supported the supervisor’s refusal to sign the recommendation due to the
concerns listed above, the administrative judge applied the appropriate factors set
forth in Hillen v. Department of the Army, 35 M.S.P.R. 453, 460 (1987), and
made reasonable credibility determinations based on a review of the record as a
whole. ID at 11-12; Hearing Transcript at 16-23, 38-45, 86-94, 117-19; see
Haebe, 288 F.3d at 1302. The appellant asserts that the agency must prove by
preponderant evidence the appropriateness of the refusal to sign the D-SAACP
renewal recommendation. PFR File, Tab 1 at 21-22. We assume for purposes of
this decision that preponderant evidence is the proper standard of review. Cf.
Adams, 105 M.S.P.R. 50, ¶ 19 (finding that the agency “acted reasonably” in
denying the appellant access to its computer system, a condition of employment
under the agency’s control). Nevertheless, we see no reason to disturb the
administrative judge’s finding that the agency proved by preponderant evidence
the circumstances of the December 2016 victim incident, a central issue in th e
supervisor’s decision not to sign the recommendation due to concerns regarding
the appellant’s “professional abilities and willingness to perform the duties” of
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the Victim Advocate position. ID at 12; IAF, Tab 7 at 24; see Crosby,
74 M.S.P.R. at 105-06; Broughton, 33 M.S.P.R. at 359.
¶11 The appellant does not challenge, and we discern no reason to disturb , the
administrative judge’s well-reasoned findings that the agency proved the other
elements of this action by preponderant evidence—specifically, that there was a
clear nexus between the appellant’s failure to maintain a D-SAACP certification,
a condition of employment for the Victim Advocate position, and the efficiency
of the service and that removal was a reasonable penalty. ID at 19-21; PFR File,
Tab 1.
The administrative judge’s discussion of the appellants’ prima facie case of EEO
retaliation is modified to reflect the correct standard for evaluating an affirmative
defense of retaliation for protected EEO activity.
¶12 The appellant does not challenge the administrative judge’s finding that she
failed to prove her affirmative defense of retaliation for protected EEO activity.
ID at 18-19. However, we modify the administrative judge’s findings on the
appellant’s EEO retaliations claims to apply the standards as set forth in recent
law. An appellant may prove a claim of discrimination based on age, race, color,
religion, sex, or national origin under the motivating factor standard, in other
words, by proving that prohibited discrimination played “any part” in the
contested action. Pridgen v. Office of Management and Budget, 2022 MSPB 31,
¶¶ 20-22. Claims of retaliation for opposing discrimination in violation of
Title VII are analyzed under this same framework. Desjardin v. U.S. Postal
Service, 2023 MSPB 6, ¶ 32; Pridgen, 2022 MSPB 31, ¶ 30. However, a but-for
causation standard is applicable to retaliation claims based on activity protected
under the Americans with Disabilities Act (ADA), as amended by the Americans
with Disabilities Act Amendments Act of 2008. Desjardin, 2023 MSPB 6, ¶ 33.
An appellant may prevail on such a claim by showing that retaliation was a
but-for cause of the agency’s action. Desjardin, 2023 MSPB 6, ¶ 33; Pridgen,
2022 MSPB 31, ¶¶ 44-47. The but-for standard is more stringent than the
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motivating factor standard. Desjardin, 2023 MSPB 6, ¶ 31; Pridgen, 2022 MSPB
31, ¶ 47.
¶13 Here, it is not clear whether the appellant’s prior EEO activity was based on
Title VII or on the ADA. The administrative judge, applying the mixed-motive
analysis, found that the appellant failed to show that retaliation was a motivating
factor in the agency’s decision to remove her. ID at 13-14, 18-19; see Desjardin,
2023 MSPB 6, ¶ 33; Pridgen, 2022 MSPB 31, ¶¶ 33, 47. We see no error in this
finding, particularly in the absence of any challenge by the appellant on review.
Therefore, to the extent that the appellant claims retaliation for prior EEO activity
based on Title VII, she has not proven her claim. To the exten t the appellant
claims retaliation for prior EEO activity based on the ADA, her failure to meet
the lesser burden of proving that her protected activity was a motivating factor in
her removal necessarily means that she failed to meet the more stringent but-for
standard. See Desjardin, 2023 MSPB 6, ¶ 33. For these reasons, we conclude
that the appellant failed to prove this affirmative defense.
¶14 Accordingly, we deny the petition for review and affirm the initial decision.
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 an d
the rights described below do not represent a statement of how courts will rule
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.
9
regarding which cases fall within their jurisdiction. If yo u 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 you r 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 Appea ls for the
Federal Circuit, you must submit your petition to the court at the fo llowing
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
10
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. 420 (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 chal lenge 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
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.
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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 war rants 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.