Mary Turner v. National Archives and Records Admin ( 2024 )

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
MARY STOCKARD TURNER, DOCKET NUMBER
Appellant, CH-4324-19-0433-I-2
v.
NATIONAL ARCHIVES AND DATE: March 7, 2024
RECORDS ADMIN,
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Mary Stockard Turner , St Louis, Missouri, pro se.
Stephani L. Abramson , Esquire, Hannah Bergman , and Sean W. Ryal ,
College Park, Maryland, for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
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 appeal under
Uniformed Services Employment and Reemployment Rights Act (USERRA).
Generally, we grant petitions such as this one only in the following
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
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. 2
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).
Following a hearing, the administrative judge issued a thorough and
well-reasoned initial decision in which she addressed the appellant’s claims
regarding seven nonselections for promotions/details, four reassignments, four
other actions, 3 and a general claim of a hostile work environment, all of which the
appellant contended were based on discrimination due to her status as a military
reservist and in retaliation for her protected activity of asserting her rights under
2
After the record closed on review, the appellant filed a motion requesting leave to
include new evidence in her petition for review purportedly showing that the
administrative judge acted improperly. 5 C.F.R. § 1201.114(k); Petition for Review
File, Tab 6. Once the record closes on review, no additional evidence or argument will
be accepted unless it is new and material and was not readily available before the record
closed. 5 C.F.R. § 1201.114(k). Because the appellant’s motion does not show that her
evidence is material nor that it was not readily available before the record closed on
review, it is denied.
3
These included the appellant’s claims that the agency was slow in providing her office
essentials (phone and computer access) when she returned from a period of leave in
May 2018, transferred her belongings when she was on leave prior to May 15, 2018,
pressured her to change a subordinate’s appraisal during fiscal year 2013, and ignored a
complaint she filed with the Office of Inspector General in the summer of 2018.
Turner v. National Archives and Records Admin, MSPB Docket No. CH-4324-19-0433-
I-2, Appeal File, Tab 16 at 3-5.
3
USERRA. Turner v. National Archives and Records Admin, MSPB Docket No.
CH-4324-19-0433-I-2, Appeal File, Tab 32, Initial Decision (ID). The
nonselections and other events complained about by the appellant occurred
between 2012 and 2018. The administrative judge carefully examined
the documentary and testimonial evidence related to each nonselection for
promotion/detail, the reassignments, and the other actions, finding that the
appellant did not offer sufficient evidence to show that any were based on her
status as a military reservist or due to her protected activity of asserting her
USERRA rights. ID at 11-25. The administrative judge further found that the
appellant failed to prove her claim that, based on her military service or protected
activity, the agency subjected her to a hostile work environment, and that she also
failed to show that the agency had a general animosity towards veterans or those
who were obligated to perform military service. ID at 25-29. Accordingly, the
administrative judge denied the appellant’s request for corrective action. ID at 2,
30.
The appellant’s petition for review consists of a copy of the initial decision
to which she has noted, in bold, her specific objections to certain of the
administrative judge’s statements or findings. Petition for Review (PFR) File,
Tab 1 at 2-30. The great majority of these objections have no bearing on her
USERRA claim, that is, they do not explain the significance of the appellant’s
military service or protected activity to the actions of which she complains.
38 U.S.C. § 4311(a), (b); Sheehan v. Department of the Navy, 240 F.3d 1009,
1012 (Fed. Cir. 2001). Thus, they do not support a finding that the administrative
judge erred in concluding that the appellant failed to prove a violation of
USERRA. Regarding her objections to the administrative judge’s findings in
which the appellant does allude to her military service, she merely disagrees with
those findings in conclusory fashion. A petition for review must contain
sufficient specificity to enable the Board to ascertain whether there is a serious
evidentiary challenge justifying a complete review of the record. Tines v.
4
Department of the Air Force, 56 M.S.P.R. 90, 92 (1992). The appellant’s
disagreement with the administrative judge’s findings does not explain why they
are incorrect or otherwise establish error. Yang v. U.S. Postal Service,
115 M.S.P.R. 112, ¶ 12 (2010) (stating that a petition for review that consists of
mere disagreement with the initial decision does not provide a basis to grant
review); see Broughton v. Department of Health and Human Services ,
33 M.S.P.R. 357, 359 (1987) (finding that there is no reason to disturb the
administrative judge’s conclusions when the initial decision reflects that the
administrative judge considered the evidence as a whole, drew appropriate
inferences, and made reasoned conclusions).
The appellant raises two claims of bias by the administrative judge.
She first challenges the administrative judge’s statement, made after she had
reviewed the record, that “the evidence revealed tendencies on [the] [a]ppellant’s
part to interpret innocuous events negatively and let unfounded perceptions color
her review of the facts . . . .” ID at 23. On review, the appellant argues only that
the statement reflects bias on the administrative judge’s part. PFR File, Tab 1
at 24. In making a claim of bias, an appellant must overcome the presumption of
honesty and integrity that accompanies administrative adjudicators. Oliver v.
Department of Transportation, 1 M.S.P.R. 382, 386 (1980). The mere fact that an
administrative judge does not accept the appellant’s assertions or interprets
testimony in the fashion the appellant claims is correct does not constitute bias.
Protopapa v. Department of Transportation, 14 M.S.P.R. 455, 459 (1983).
Here, the appellant’s claim of bias reflects only her disagreement with the
administrative judge’s findings. We therefore find this bias claim to be without
merit.
The appellant also argues that the administrative judge’s credibility
determinations reflect bias. PFR File, Tab 1 at 28. The administrative judge
found that all of the agency witnesses were credible, and that they exhibited
appropriate demeanor, even while being questioned by the appellant. ID at 27.
5
Notably, the administrative judge did not find that the appellant was incredible,
but rather that she was generally credible, except that, when she discussed her
claims of military bias, she was not persuasive. Haebe v. Department of Justice,
288 F.3d 1288, 1301 (Fed. Cir. 2002) (finding that the Board must defer to an
administrative judge’s credibility determinations when they are based, explicitly
or implicitly, on observing the demeanor of witnesses testifying at a hearing; the
Board may overturn such determinations only when it has “sufficiently sound”
reasons for doing so); ID at 22-23, 27-28. The administrative judge further found
that the appellant could point to no evidence in the record to support her
contention that the agency had discriminated or retaliated against her based on
her military service, except for her subjective belief, and that she appeared to
have a heightened sensitivity to straightforward agency actions. ID at 23, 28.
None of these statements or findings by the administrative judge evidence bias.
Neither do the appellant’s contrary conclusory statements. 4 Lee v. U.S. Postal
Service, 48 M.S.P.R. 274, 281 (1991).
NOTICE OF APPEAL RIGHTS 5
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
4
Regarding the appellant’s argument that the administrative judge erred in her
discovery-related rulings, PFR File, Tab 1 at 10, an administrative judge has broad
discretion in ruling on discovery matters, and absent an abuse of discretion, the Board
will not find reversible error in such rulings, Kingsley v. U.S. Postal Service,
123 M.S.P.R. 365, ¶ 16 (2016). The appellant’s allegations do not establish an abuse of
discretion in this appeal.
5
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
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:
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
7
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
8
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
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. 6 The court of appeals must receive your petition for
6
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
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.
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.