Nadine Chatman v. Department of Agriculture ( 2024 )

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
NADINE M. CHATMAN, DOCKET NUMBER
Appellant, DC-1221-18-0809-W-2
v.
DEPARTMENT OF AGRICULTURE, DATE: June 26, 2024
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Nadine M. Chatman , Fairfax, Virginia, pro se.
Martin A. Gold , Esquire, and Stephanie Ramjohn Moore , Esquire,
Washington, D.C., for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
Henry J. Kerner, Member*
*Member Kerner did not participate in the adjudication of this appeal.
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
denied her request for corrective action in connection with her individual right of
action appeal. On petition for review, the appellant challenges the administrative
judge’s analysis and findings on the merits of her appeal, argues that the
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
administrative judge abused her discretion in rulings she made during
adjudication, and exhibited bias. 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. Except as expressly
MODIFIED to further examine whether the appellant met her burden to show
contributing factor regarding her 2014 performance rating, we AFFIRM the initial
decision.
Below, the administrative judge properly found that the appellant failed to
establish the contributing factor element of her burden of proof regarding her
2014 rating by means of the knowledge/timing test. Mason v. Department of
Homeland Security, 116 M.S.P.R. 135, ¶ 26 (2011); ID at 16-20. The Board has
held, however, that, if an administrative judge determines that an appellant has
failed to satisfy the knowledge/timing test, he shall consider other evidence, such
as evidence pertaining to the strength or weakness of the agency’s reasons for
taking the personnel action, whether the whistleblowing was personally directed
at the official taking the action, or whether these individuals had a desire or
motive to retaliate against the appellant. Dorney v. Department of the Army,
117 M.S.P.R. 480, ¶ 15 (2012). Because the administrative judge did not
consider such evidence, we do so now.
3
Regarding the strength of the agency’s reasons for the appellant’s Superior
rating, there is scant evidence in the record, except for the final rating itself.
Chatman v. Department of Agriculture, MSPB Docket No. DC-1221-18-0809-
W-2, W-2 Appeal File (AF), Tab 39 at 44. The appellant has not otherwise
submitted evidence to show that she was entitled to an Outstanding rating. It is
the burden of the appellant to establish that her protected disclosures/activity was
a contributing factor to the personnel action, and we do not find that the appellant
has presented any evidence that would lead us to second-guess the appellant’s
supervisor’s rating the appellant as Superior. Mithen v. Department of Veterans
Affairs, 119 M.S.P.R. 215, ¶ 11 (2013). Thus, the evidence in support of the
appellant’s rating is strong.
While the appellant’s disclosures to the Office of Special Counsel (OSC)
implicated her first-line supervisor, we believe that, in order for the supervisor to
be motivated to retaliate, she must have had knowledge of the protected
disclosures/activity. In other words, in order for an official to have motive or
desire to retaliate against an employee because she made protected disclosures or
engaged in protected activity, we believe it necessary first for that official to have
knowledge of that employee’s protected disclosure or activity. See Dorney,
117 M.S.P.R. 480, ¶ 14 (stating that a disclosure is a contributing factor if it
affects an agency’s decision to threaten, propose, take, or fail to take a personnel
action). The administrative judge found, and we agree, that the appellant’s first-
line supervisor did not have actual or constructive knowledge of the appellant’s
disclosures to OSC. Thus, we find it unlikely that the supervisor had a motive to
retaliate against the appellant based on a protected disclosure or activity of which
she was unaware. See Sherman v. Department of Homeland Security ,
122 M.S.P.R. 644, ¶ 9 (2015) (explaining that a disclosure could only have been a
contributing factor in a performance evaluation if the official learned of it before
making the decision).
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In sum, considering these other factors, we do not find that the appellant
established that her protected disclosures/activity was a contributing factor in her
2014 performance rating, and that the administrative judge’s failure to conduct
such an alternative analysis did not prejudice the appellant’s substantive rights.
Panter v. Department of the Air Force, 22 M.S.P.R. 281, 282 (1984) (finding that
an adjudicatory error that is not prejudicial to a party's substantive rights provides
no basis for reversal of an initial decision).
The appellant raises a number of issues challenging the administrative
judge’s adjudication of this appeal. First, the appellant argues that the
administrative judge did not allow a particular witness to testify regarding the
inner workings of her office. Petition for Review (PFR) File, Tab 2 at 27.
Although the appellant did not request any witnesses in her prehearing
submission, the administrative judge allowed her to make requests during the
prehearing conference, and the witness at issue was one such request. Based on
the appellant’s proffer, the administrative judge determined that the witness’s
testimony would be similar to that of another witness whom the administrative
judge had approved as the sole witness who would be allowed to testify regarding
the climate within the office. Because the appellant did not seek to substitute the
witness at issue for that witness, the administrative judge did not approve the
proffered witness to testify. W-2 AF, Tab 35. The appellant’s failure to object to
that ruling below precludes her doing so on review. Tarpley v. U.S. Postal
Service, 37 M.S.P.R. 579, 581 (1988).
The appellant also argues that the administrative judge erred when she
limited the appellant’s cross-examination of the selecting official for the 2016
vacancy. PFR File, Tab 2 at 27. The administrative judge, in fact, afforded the
appellant wide latitude in her cross-examination of the witness, only cautioning
her once when her questions exceeded the scope of direct, a ruling the appellant
did not challenge. Hearing Compact Disc (testimony of selecting official).
Administrative judges have wide discretion to regulate the course of a hearing.
5
5 C.F.R. § 1201.41(b)(6). The appellant has not, by her claim, shown that the
administrative judge abused her discretion in this regard.
The appellant also argues on review that the administrative judge erred in
not compelling the agency to present a list of the equal employment opportunity
complaints that had allegedly been filed against one of the selecting officials.
PFR File, Tab 2 at 27. The administrative judge ruled that the evidence sought by
the appellant was beyond the scope of the appeal and irrelevant. W-2 AF, Tab
28. The appellant did not challenge the administrative judge’s ruling and we
discern no error in it. Again, by her claim, the appellant has not shown that the
administrative judge abused her broad discretion regarding this discovery ruling.
Key v. General Services Administration, 60 M.S.P.R. 66, 68 (1993) (stating that
an administrative judge has broad discretion in ruling on discovery matters and,
absent a showing of an abuse of discretion, the Board will not find reversible
error in such rulings); 5 C.F.R. § 1201.41(b)(4).
In addition, the appellant raises various claims on review of bias by the
administrative judge. For example, the appellant alleges that the administrative
judge inappropriately construed a particular phrase that the selecting official used
to describe the appellant, W-2 AF, Tab 39 at 40, so as to hide what was really a
racial slur. PFR File, Tab 2 at 13. The appellant further alleges that the
administrative judge exhibited bias when she blamed the appellant for the agency
representative’s “ineptness” in attempting to stall the discovery process, id. at 26,
and when she assessed the details surrounding a discovery issue. Id. at 25. The
appellant’s claims of bias do not overcome the presumption of honesty and
integrity that accompanies administrative adjudicators . Oliver v. Department of
Transportation, 1 M.S.P.R. 382, 386 (1980). Nor is there any showing that the
appellant timely raised her claim of bias directly to the administrative judge. Lee
v. U.S. Postal Service, 48 M.S.P.R. 274, 280-82 (1991). Further, the appellant
has failed to show that the administrative judge’s comments or actions evidence
“a deep-seated favoritism or antagonism that would make fair judgment
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impossible.” Bieber v. Department of the Army, 287 F.3d 1358, 1362-63 (Fed.
Cir. 2002) (quoting Liteky v. United States, 510 U.S. 540, 555 (1994)).
NOTICE OF APPEAL RIGHTS 2
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.
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).
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.
7
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. 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
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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
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
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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 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
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 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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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: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.