Kristin Strong v. Federal Deposit Insurance Corporation ( 2024 )

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
KRISTIN A. STRONG, DOCKET NUMBER
Appellant, CH-0752-19-0188-I-2
v.
FEDERAL DEPOSIT INSURANCE DATE: August 26, 2024
CORPORATION,
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
A. Brian Henson , Esquire, and Frank DeMelfi , Esquire, Decatur, Georgia,
for the appellant.
William M. Edwards , Esquire, Kansas City, Missouri, for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
Henry J. Kerner, Member
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
sustained her demotion to a nonmanagerial position at a different duty location
and subsequent removal. On petition for review, the appellant argues that she did
not engage in the conduct charged by the agency in the demotion action and that
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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 penalty of removal was unreasonable, and she reasserts her affirmative
defense of reprisal for filing equal employment opportunity (EEO) complaints.
Petition for Review, Tab 1 at 6-17. 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 supplement the administrative judge’s discussion of the penalty of
a demotion to a nonmanagerial position at a different duty location and to include
the appropriate standard of causation for the appellant’s EEO reprisal claim, we
AFFIRM the initial decision.
The administrative judge correctly found that the agency proved the
charges of inappropriate conduct and refusal to accept a directed assignment by
preponderant evidence, and that the appellant’s demotion to a nonmanagerial
position at a different duty location and subsequent removal promoted the
efficiency of the service and were reasonable. Strong v. Federal Deposit
Insurance, MSPB Docket No. CH-0752-19-0188-I-2 Appeal File (AF), Tab 51,
Initial Decision (ID) at 11-23. In analyzing the refusal to accept a directed
assignment charge, although the administrative judge did not cite to our
reviewing court’s decision in Cobert v. Miller, 800 F.3d 1340 (Fed. Cir. 2015),
which requires that the Board apply the two-step burden shifting approach
3
because it is the “law of the circuit,” id. at 1349, he nonetheless applied the
correct legal framework as similarly set forth by the Board in
Umshler v. Department of the Interior, 44 M.S.P.R. 628, 630 (1990), ID at 20-21.
Although the appellant has submitted what appears to be a substantive
petition for review, upon closer examination, the arguments in her petition for
review are nearly identical to arguments made below before the administrative
judge in her close of record brief. PFR File, Tab 1 at 6-17; AF, Tab 47 at 6-15.
The Board has held that incorporating arguments made in a submission before the
administrative judge fails to meet the Board’s criteria for review because such a
pleading “does not explain how or why the [administrative judge] erred.” See
Mulroy v. Office of Personnel Management, 92 M.S.P.R. 404, ¶ 15 (2002),
overruled on other grounds by Clark v. Office of Personnel Management ,
120 M.S.P.R. 440, ¶ 12 (2013); see also Jackson v. Department of the Army,
99 M.S.P.R. 604, ¶ 9 (2005) (finding that the standard for granting review was
not met when the appellants disputed the administrative judge’s factual findings
by referencing their closing argument submitted below).
Nonetheless, we modify the initial decision in two regards. Regarding the
penalty of demotion to a nonmanagerial position and subsequent reassignment to
a different duty location, which was imposed as a result of a sustained
inappropriate conduct charge, we find that, although not raised by either party,
such a penalty constitutes a unitary penalty under Brewer v. American Battle
Monuments Commission, 779 F.2d 663 (Fed. Cir. 1985). In Brewer, our
reviewing court held that a reduction in grade and subsequent reassignment to
another duty location, which resulted from the same misconduct and
corresponding disciplinary action, constitute a unitary penalty, and that the Board
must review the entire agency action to determine whether it is reasonable in light
of the sustained misconduct. 779 F.2d at 664-65. Here, although the decision
letter for the demotion did not directly reassign the appellant to a specific new
position, it referenced a forthcoming letter that was issued the same day detailing
4
the reassignment. AF, Tab 6 at 12-13, Tab 30 at 5-7. Moreover, the appellant’s
position description indicated that she could be reassigned or relocated to any
geographical location where her services were needed as determined by
management. AF, Tab 5 at 77, 83. Further, the proposing official stated in an
affidavit that the agency believed that having the appellant remain in the same
work unit would be disruptive to the staff, given the circumstances surrounding
her demotion, and would put at risk the mission -critical functions of the unit.
Id. at 61. Based on the foregoing, we supplement the initial decision to find that
the actions taken by the agency here constitute a unitary penalty of a demotion to
a nonmanagerial position at a different duty location and that such a penalty was
reasonable under the circumstances of this case.
We also modify the initial decision to reflect the appropriate standard of
causation for the appellant’s EEO reprisal claims. Below, the administrative
judge concluded that the appellant failed to provide any evidence, beyond her
conjecture, that her demotion and removal “were motivated to any extent by
retaliatory or discriminatory animus.” ID at 24. However, in Pridgen v. Office of
Management and Budget, 2022 MSPB 36, ¶¶ 46-47, the Board held that, for an
appellant to establish a claim of reprisal for EEO activity based on a disability,
she must show that her protected activity is a but-for cause of the agency action..
Because the administrative judge correctly concluded that the appellant failed to
meet a lower motivating factor standard, we find that she could not have met the
higher but-for standard. See Haas v. Department of Homeland Security, 2022
MSPB 36, ¶¶ 31-32 (modifying an initial decision to recognize that the more
stringent but-for standard applied because an employee’s EEO reprisal claim
arose under the Rehabilitation Act, while affirming the administrative judge’s
conclusion that the employee failed to satisfy even the lesser “motivating factor”
standard). Accordingly, we affirm the administrative judge’s ultimate conclusion
that the appellant did not prove this affirmative defense, but modify the initial
decision to include the appropriate standard of causation as reflected here.
5
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).
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:
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.
6
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
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
7
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
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
8
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
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
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.
9
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.