Lois Starkey v. Department of Housing and Urban Development , 2024 MSPB 6 ( 2024 )

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
2024 MSPB 6Docket No. DC-315H-18-0258-I-4
Lois A. Starkey,
Appellant,
v.
Department of Housing and Urban
Development,
Agency.
March 22, 2024
John J. Rigby , Esquire, Arlington, Virginia, for the appellant.
Nicole Y. Drew , Washington, D.C., for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
OPINION AND ORDER
¶1 The agency has filed a petition for review of the initial decision, which
reversed the appellant’s probationary termination. For the reasons discussed
below, we DENY the agency’s petition for review and AFFIRM the initial
decision.
BACKGROUND
¶2 The appellant filed the instant appeal, asserting that the agency terminated
her competitive-service probationary appointment for partisan political reasons.
Starkey v. Department of Housing and Urban Development, MSPB Docket
2
No. DC-315H-18-0258-I-1, Initial Appeal File (IAF), Tab 1 at 6. The
administrative judge held the requested hearing before issuing an initial decision.
Starkey v. Department of Housing and Urban Development, MSPB Docket
No. DC-315H-18-0258-I-3, Appeal File (I-3 AF), Hearing Transcript (HT) 1 ;
Starkey v. Department of Housing and Urban Development, MSPB Docket
No. DC-315H-18-0258-I-4, Appeal File (I-4 AF), Tab 4, Initial Decision (ID).
¶3 The following facts, as further described in that initial decision, are not
materially disputed. In June 2017, the Trump administration named a new
political appointee as General Deputy Assistant Secretary for Housing (GDASH).
HT at 171 (testimony of the GDASH). Prior to this political appointment, some
of the appointee’s professional experience included working for Republicans in
both houses of Congress. Id. at 171-72.
¶4 The next month, in July 2017, the agency hired the appellant as a GS -14
Manufactured Housing Specialist, a career competitive-service position, within
the agency’s Office of Manufacturing Housing Programs (OMHP),
in Washington, D.C. IAF, Tab 11 at 23. The appellant’s prior professional
experience included several positions with the Manufactured Housing Institute,
most recently as the Vice President of Regulatory Affairs, as well as a Legislative
and Policy Associate position with the National Council of State Housing
Agencies. I-3 AF, Tab 7 at 20-24. In addition, the appellant had worked as a
Legislative Assistant for a Democratic Congressional representative, served as a
political appointee for the Carter administration, held an elected position as a
member of her local Democratic committee, and managed the campaign of her
husband, who ran for elected office as a Democrat. E.g., I-3 AF, Tab 7 at 24-25;
1
We note that the table of contents to the transcript identifies incorrect page numbers
for the testimony of the appellant’s first-level supervisor and altogether omits the
testimony of another witness, the Senior Advisor. Compare HT at 3 (table of contents),
with HT at 225-26 (introducing the appellant’s first-level supervisor and placing her
under oath), 269-70 (introducing the Senior Advisor and placing her under oath).
However, there is no reason to believe that the transcript is otherwise incomplete or
inaccurate.
3
HT at 10-12 (testimony of the appellant). The appellant’s first-, second-, and
third-level supervisors held career positions with the agency. HT at 108-09
(testimony of the second-level supervisor), 227 (testimony of the first-level
supervisor), 371-72 (testimony of the third-level supervisor). Notably, though,
the second-level supervisor had political ties that included running for office as a
Republican in the 1990s, but more recently running as a Democrat in 2011.
HT at 109 (testimony of the second-level supervisor).
¶5 Just days after the appellant began working for the agency, the head of a
Washington, D.C.-based industry group—the Manufactured Housing Association
for Regulatory Reform (MHARR)—sent a complaint to several agency officials,
including the agency’s White House Liaison, advisors to the President, and the
Chief of Staff to the Secretary of Housing and Urban Development. IAF, Tab 6
at 15-16, 19-20, 29. In this letter, MHARR complained that the agency had
retained the appellant’s second-level supervisor, “an Obama Administration
holdover,” and hired the appellant, “an Obama donor herself,” whom he further
described as having connections to “Obama supporter, Warren Buffet.” Id.
at 15-16. He attached public contribution records to evidence the appellant’s
contributions to “Obama for America” in 2012. Id. at 17. Among other things,
the MHARR complaint described the agency’s actions in this regard as
“amazingly ill-considered, offensive and arguably scandalous,” surmising that
both individuals would “defy and resist” the administration’s policies. Id. at 15.
¶6 In August 2017, the month after the agency hired the appellant, she met
with her first- and second-level supervisors to discuss an ongoing dispute
between the agency and a state partner, the Oregon State Administrative Agency.
IAF, Tab 6 at 11-12; HT at 123 (testimony of the second-level supervisor).
The appellant suggested that it might be helpful to discuss the matter with the
Oregon Manufactured Housing Association to assist in resolving the dispute, and
her second-level supervisor agreed. The second-level supervisor tasked the
appellant with contacting the Oregon Manufactured Housing Association. HT
4
at 123-24 (testimony of the second-level supervisor). This was not well received
by the agency’s state partners in Oregon.
¶7 In September 2017, the agency’s state partners in Oregon sent a letter to the
Secretary of Housing and Urban Development, threatening to withdraw from their
partnership, in part due to the appellant’s alleged sharing of “sensitive
government-to-government discussions with outside parties.” IAF, Tab 11
at 17-21. When this complaint reached the appellant’s second-level supervisor,
she issued an internal memorandum to the appellant’s third-level supervisor and
the GDASH, defending OMHP’s action and assuring them that the appellant had
not shared any confidential or sensitive information. IAF, Tab 6 at 31-32.
¶8 In October 2017, the head of MHARR sent another complaint to the
agency that was the subject of discussions among the appellant’s first-, second-,
and third-level supervisors. I-3 AF, Tab 9 at 98-99. However, it is not apparent
whether that complaint, like the prior MHARR complaint, involved anyone’s
political affiliation. Id.
¶9 In a November 2017 performance appraisal by her first- and second-level
supervisors, the agency rated the appellant “outstanding,” the highest possible
rating, and described her as an “invaluable asset.” I-3 AF, Tab 7 at 26-37.
Yet, despite the support from her immediate chain of command, the appellant’s
third-level supervisor terminated the appellant soon thereafter, after consulting
with the GDASH and others. IAF, Tab 1 at 9-10; HT at 188-89 (testimony of the
GDASH), 341-45 (testimony of the third-level supervisor). The reason for the
December 19, 2017 termination, as described in the termination letter, was the
appellant’s alleged release of sensitive information to industry stakeholders in
Oregon, as described in the complaint by the agency’s partners from Oregon State
Government. IAF, Tab 1 at 9, Tab 11 at 17-18. The day before, the GDASH also
detailed the appellant’s second-level supervisor from her GS-15 position as
Administrator of OMHP to a position described as comparable to that of an
5
administrative assistant. HT at 109, 131 (testimony of the second-level
supervisor), 181 (testimony of the GDASH).
¶10 The appellant filed the instant appeal, arguing that the agency
impermissibly terminated her for partisan political reasons. IAF, Tab 1 at 6. The
administrative judge agreed and reversed the probationary termination, finding
that officials cited the Oregon complaint as a mere pretext to remove the
appellant for known political affiliations. ID at 38-49.
¶11 The agency filed a petition for review. Starkey v. Department of Housing
and Urban Development, MSPB Docket No. DC-315H-18-0258-I-4, Petition for
Review (PFR) File, Tab 1. The appellant filed a response, and the agency replied.
PFR File, Tabs 5, 9. The parties also submitted competing arguments, evidence,
and pleadings regarding interim relief. PFR File, Tab 5 at 4, Tabs 6-7, Tab 9 at 4-
5.
ANALYSIS
The agency failed to comply with its interim relief obligations.
¶12 The Board’s regulations provide that, if an appellant was the prevailing
party in the initial decision, and the initial decision granted the appellant interim
relief under 5 U.S.C. § 7701(b)(2)(A), an agency’s petition for review must be
accompanied by a certification that the agency has complied with the interim
relief order. Thome v. Department of Homeland Security, 122 M.S.P.R. 315, ¶ 15
(2015); 5 C.F.R. § 1201.116(a). The Board’s regulations further contemplate that
if an agency fails to submit the required certification with its petition, the Board
may, in its discretion, dismiss the agency’s petition for review. Guillebeau v.
Department of the Navy, 362 F.3d 1329, 1332-33 (Fed. Cir. 2004) (discussing
how the regulatory provisions required dismissal until May of 1999, when the
Board amended the regulation to establish that dismissal was discretionary);
Thome, 122 M.S.P.R. 315, ¶¶ 15-16; 5 C.F.R. § 1201.116(e).
6
¶13 A separate provision explains that an appellant may request dismissal of an
agency’s petition for failing to provide the required interim relief, but the Board
will dismiss the appellant’s motion if it is not filed within 25 days of the date of
service of the agency’s petition, unless the appellant shows that the motion is
based on information not readily available before the close of the time limit.
5 C.F.R. § 1201.116(d).
¶14 Here, although the appellant requested dismissal of the agency’s petition for
its failure to provide interim relief, she did not do so within the allotted time, and
we have no reason to conclude that her untimely motion was based upon new
information. See PFR File, Tab 7. Accordingly, we dismiss the appellant’s
motion, pursuant to 5 C.F.R. § 1201.116(d). The question remains, however,
whether the Board should dismiss the agency’s petition on its own accord. See
5 C.F.R. § 1201.116(a), (e); see also Harding v. Department of Veterans Affairs,
451 F. App’x 947, 950 (Fed. Cir. 2011) (stating that “even without a timely
challenge to the agency’s interim relief, the Board remains obligated to ensure
that the agency has complied with the interim relief order”). 2
¶15 In the initial decision, dated October 21, 2019, the administrative judge
ordered the agency to provide interim relief and warned of the consequences for
failing to do so. ID at 51. Nevertheless, the agency did not include certification
regarding interim relief with its November 22, 2019 petition for review, as
required under the Board’s regulations. PFR File, Tab 1; 5 C.F.R. § 1201.116(a).
Instead, the agency waited until after the appellant requested dismissal of its
petition for review before submitting a “Notice of Interim Relief,” nearly
3 months after the issuance of the initial decision and 2 months after the agency
filed its petition for review. PFR File, Tab 6. In that pleading, the agency
indicated that the appellant “will receive the same grade, pay, and employment
benefits as her previous position” and “will return to duty on January 21, 2020.”
2
The Board may follow a nonprecedential decision of the U.S. Court of Appeals for the
Federal Circuit when, as here, it finds it to be persuasive. Caros v. Department of
Homeland Security, 122 M.S.P.R. 231, ¶ 24 n.11 (2015).
7
Id. at 4. The agency also attached a Standard Form 52, dated the day before,
retroactively placing the appellant in an interim appointment as of the date of the
initial decision in this appeal. 3 Id. at 7. Simply put, nearly 3 months after the
order to do so, the agency had still not provided the appellant with all of
her interim relief and had only just begun the process of doing so.
Compare ID at 51, with PFR File, Tab 6 at 7. The agency provided no
explanation for its delay. Nevertheless, we find that the appellant will not be
prejudiced by a decision on the merits of the agency’s petition, and considering
the totality of the circumstances, we decline to dismiss the agency’s petition for
failure to provide interim relief.
We clarify the legal standard for an appeal brought under 5 C.F.R. § 315.806(b).
¶16 An individual in the competitive service who, like the appellant, is serving
an initial probationary period and has not completed 1 year of current continuous
service has no statutory right of appeal to the Board. Marynowski v. Department
of the Navy, 118 M.S.P.R. 321, ¶ 4 (2012); IAF, Tab 1 at 4, 9; see 5 U.S.C.
§ 7511(a)(1)(A). However, under certain limited circumstances, there may be a
regulatory right of appeal under 5 C.F.R. § 315.806. As relevant here, such an
individual “may appeal . . . a termination not required by statute which he or she
alleges was based on partisan political reasons or marital status.” 5 C.F.R.
§ 315.806. To establish Board jurisdiction under that provision, the appellant
must prove by preponderant evidence that her termination was, in fact, based on
partisan political reasons or marital status. 4 Marynowski, 118 M.S.P.R. 321, ¶ 5.
3
The agency indicated that it would not return the appellant to her previous office with
OMHP because it had determined that her presence there would be unduly disruptive.
PFR File, Tab 6 at 4, 7 (citing 5 U.S.C. § 7701(b)(2)(A)(II)). We will not review that
determination. Cook v. Department of the Army, 105 M.S.P.R. 178, ¶ 7 (2007) (stating
that the Board does not have the authority to review the merits of the agency’s
determination that his return would be unduly disruptive).
4
An appellant has the right to a hearing on the jurisdictional issue only if she first
makes a nonfrivolous allegation of jurisdiction, i.e., allegations of fact that, if proven,
would establish that her termination was based on partisan political reasons or marital
status. Green-Brown v. Department of Defense, 118 M.S.P.R. 327, ¶ 5 (2012). An
8
¶17 In adjudicating appeals under this provision, the Board and the U.S. Court
of Appeals for the Federal Circuit have found that an appropriate analytical
framework can be adapted from Title VII Federal sector discrimination law.
Stokes v. Federal Aviation Administration, 761 F.2d 682, 686-87 (Fed. Cir. 1985);
McClintock v. Veterans Administration, 6 M.S.P.R. 475, 478 (1981). We reaffirm
that approach, while noting one important difference between Title VII and the
regulatory appeal right at issue here, i.e., the difference between motivating
factor and but-for causation.
¶18 Under Title VII, Federal personnel actions “shall be made free from any
discrimination based on race, color, religion, sex, or national origin.” 42 U.S.C.
§ 2000e-16(a). The Board has interpreted this language as setting forth a
motivating factor standard of causation. Pridgen v. Office of Management and
Budget, 2022 MSPB 31, ¶¶ 20-21; see also Babb v. Wilke, 589 U.S. 399, 406-07
(2020) (interpreting “shall be made free from” to mean motivating factor
causation in the context of the Federal sector provision of the Age Discrimination
in Employment Act). To prove motivating factor causation, the appellant need
only show that the prohibited consideration played any part in the way the
decision was made, even if the agency would ultimately have made the same
decision in the absence of the discriminatory motive. Wilson v. Small Business
Administration, 2024 MSPB 3, ¶ 11; Pridgen, 2022 MSPB 31, ¶ 21. In contrast
to Title VII, under 5 C.F.R. § 315.806(b), the appellant must prove that her
termination was “based on” partisan political reasons or marital status. We hold
that, under this regulation, the appellant is required to prove that the prohibited
consideration was a but-for cause of her termination. In Gross v. FBL Financial
Services, Inc., 557 U.S. 167, 176-77 (2009), the Supreme Court found that
29 U.S.C. § 623(a)(1), which prohibits discrimination “because of age” in private
sector employment, should be read as requiring that the plaintiff prove but-for
appellant who establishes Board jurisdiction under 5 C.F.R. § 315.806(b) thereby
prevails on the merits.
9
causation. The Court further found that the statutory phrases “based on” and
“because of” have the same meaning in this regard. Id. (citing Safeco Ins. Co. of
America v. Burr, 551 U.S. 47, 63-64 & n.14 (2007)). But-for causation is a
higher standard than motivating factor and requires proof that the prohibited
consideration was necessary to the outcome of the agency’s decision. Bostock v.
Clayton County, 140 S. Ct. 1731, 1740 (2020); Wilson, 2024 MSPB 3, ¶ 15;
Pridgen, 2022 MSPB 31, ¶¶ 21-22 & n.4.
¶19 Notwithstanding these differences between Title VII and 5 C.F.R.
§ 315.806(b), Title VII analytical frameworks remain applicable to the extent that
they may be used to prove but-for causation. As far as section 315.806(b) is
concerned, the appellant may proceed in at least two ways. First, in cases
involving at least some circumstantial evidence, an appellant may use the
burden-shifting framework set forth in McDonnell Douglas Corp. v. Green,
411 U.S. 792, 802-04 (1973). Wilson, 2024 MSPB 3, ¶¶ 16-17 (explaining how
McDonnell Douglas may be used to prove but-for causation in a Title VII claim).
Second, the appellant may prove but-for causation under a mixed-motive
framework. See id., ¶ 18. The appellant may also choose to proceed under both
theories simultaneously. See id., ¶ 19.
¶20 In this case, the appellant proceeded under the McDonnell Douglas
framework. See I-4 AF, Tab 3. To prove but-for causation under McDonnell
Douglas, the appellant must first establish a prima facie case of discrimination.
Wilson, 2024 MSPB 3, ¶ 16. To establish a prima facie case, an appellant must
generally show that (1) she is a member of a protected class, (2) she suffered an
adverse employment action, and (3) the unfavorable action gives rise to an
inference of discrimination. Id.; see Furnco Construction Corp. v. Waters, 438
U.S. 567, 575-77 (1978). If the appellant makes out a prima facie case, then the
burden shifts to the agency to provide a nondiscriminatory explanation for the
action. Wilson, 2024 MSPB 4, ¶ 17. If the agency fails to give a
nondiscriminatory explanation or the appellant proves that the agency’s
10
explanation was pretext, then the appellant has proven that discrimination was a
but-for cause of the action. Id.The appellant met her burden of proof.
¶21 Broadly speaking, the administrative judge found that the appellant’s
termination was unusual, not justified, and notably comparable to the
reassignment of the other individual targeted by MHARR’s partisan political
complaints—the appellant’s second-level supervisor. ID at 41-49. He also found
that the GDASH was responsible for both actions, and he did not credit the
GDASH’s testimony that she knew of the second-level supervisor’s political
affiliation but not the appellant’s. ID at 38-41. Under these circumstances, as
further discussed in the initial decision, the administrative judge concluded that
the appellant’s termination was based on partisan political reasons and that the
Oregon incident was merely used as a pretext for doing so. ID at 49. For the
following reasons, we agree.
The decision to terminate the appellant’s appointment was unusual
and unjustified.
¶22 The stated reason for the appellant’s termination was her alleged sharing of
sensitive information with the Oregon Manufactured Housing Association, as
described in the Oregon complaint. IAF, Tab 1 at 9-10, Tab 11 at 17. Yet the
appellant’s second-level supervisor, who was both an attorney and the
Administrator of OMHP, responded by issuing a contemporaneous intra-agency
memorandum to explain otherwise. IAF, Tab 6 at 31-32; HT at 106-09
(testimony of the second-level supervisor). That memorandum was directed to
the appellant’s third-level supervisor and the GDASH. IAF, Tab 6 at 31-32.
¶23 During the hearing, the appellant’s second-level supervisor further
discussed the appellant’s handling of the ongoing dispute between the agency and
its Oregon partner. Among other things, she described how the appellant had not
shared confidential or sensitive information, and in fact had acted in accordance
with advance instructions from her chain of command and existing OMHP policy,
11
which was set by the second-level supervisor herself. HT at 125-29, 133, 138-52
(testimony of the second-level supervisor). The second -level supervisor also
explained that a prior Deputy Administrator of OMHP had used the same policy
and that OMHP had recently handled a comparable situation with another state
partner, Michigan, in a similar manner. Id. at 124, 132, 138, 150-52, 161.
¶24 The appellant’s first-level supervisor, who was Deputy Administrator of
OMHP during the relevant period and was also serving as Acting Administrator
of OMHP by the time of hearing, provided additional support for the appellant’s
actions. HT at 246, 248-53 (testimony of the first-level supervisor). She testified
that the second-level supervisor was responsible for establishing the policy, she
agreed with the policy at the time, and the appellant carried out the policy in good
faith, notwithstanding the negative reaction from their state partner in Oregon.
Id. This individual indicated that upon taking over as Acting Administrator, she
ran OMHP somewhat differently than the outgoing Administrator to “cover”
herself and avoid repercussions stemming from the politics surrounding OMHP
work. Id. at 247-49, 262-64.
¶25 The appellant provided a written statement and testimony similar to that of
her first- and second-level supervisors. IAF, Tab 6 at 11-12; HT at 28-30
(testimony of the appellant). She indicated that her second-level supervisor, as
Administrator of OMHP, had broad authority and exercised that authority in a
manner comparable to years past, when different officials were in control of
OMHP and the appellant was on the receiving end of those policies in the private
sector. HT at 34-37 (testimony of the appellant).
¶26 Neither of the appellant’s immediate supervisors was involved in the
appellant’s termination. The first-level supervisor testified that she first learned
of the appellant’s termination after it had already occurred and that no one ever
explained to her the reason for the termination or who made the decision. HT
at 232-33, 238-39, 251, 261 (testimony of the first-level supervisor).
The first-level supervisor described those circumstances as unusual, indicating
12
that she had never experienced a similar situation and she was not aware of
anything similar involving other agency employees and their supervisors.
Id. at 233, 261-62. The appellant’s second-level supervisor testified that she, too,
was not consulted on the appellant’s termination and was shocked to learn about
it, after the fact. HT at 129-30, 133-34, 155-56 (testimony of the second-level
supervisor).
¶27 The administrative judge found the appellant and her first- and second-level
supervisors to be credible witnesses. ID at 15 n.23, 19 n.29, 22 n.36. To resolve
credibility issues, an administrative judge must identify the factual questions in
dispute, summarize the evidence on each disputed question, state which version
he believes, and explain in detail why he found the chosen version more credible,
considering such factors as: (1) the witness’s opportunity and capacity to observe
the event or act in question; (2) the witness’s character; (3) any prior inconsistent
statement by the witness; (4) the witness’s bias, or lack of bias; (5) the
contradiction of the witness’s version of events by other evidence or its
consistency with other evidence; (6) the inherent improbability of the witness’s
version of events; and (7) the witness’s demeanor. Hillen v. Department of the
Army, 35 M.S.P.R. 453, 458 (1987). 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. Haebe v. Department of Justice, 288 F.3d 1288, 1301 (Fed. Cir. 2002).
In fact, the Board must give “special deference” to an administrative judge’s
demeanor-based credibility determinations, “[e]ven if demeanor is not explicitly
discussed.” Purifoy v. Department of Veterans Affairs, 838 F.3d 1367, 1373
(Fed. Cir. 2016).
¶28 In this matter, the administrative judge properly considered the Hillen
factors and made demeanor-based credibility determinations. Concerning the
appellant, he noted that her version of events was internally consistent and
13
corroborated in material part with the other credible evidence of record.
Moreover, he observed that the appellant appeared sincere and responsive when
testifying. ID at 15 n.23. The administrative judge determined that the first-level
supervisor was an “extremely credible witness” who had no apparent motive to lie
or fabricate her testimony. He found that her testimony was “straightforward,
sincere, unrehearsed, and consistent with the credible record evidence.” ID at 22
n.36. Additionally, the administrative judge concluded that the second-level
supervisor’s testimony was corroborated by other record evidence and that she
testified in a believable and straightforward manner without a sign of improper
bias. ID at 19 n.29. There are no “sufficiently sound” reasons for overturning
the administrative judge’s demeanor-based credibility determinations in this case.
Therefore, we defer to them. See Purifoy, 838 F.3d at 1373; Haebe, 288 F.3d
at 1301.
¶29 In contrast to the appellant’s first- and second-level supervisors—the ones
who were not consulted but had OMHP expertise, a detailed understanding of
what occurred, the authority to direct the appellant’s actions, and a firm
belief that the appellant was an outstanding employee who had acted
appropriately—agency officials involved in the appellant’s termination, including
the appellant’s third-level supervisor, the Senior Advisor to the GDASH, the
GDASH, and the Acting Associate General Counsel, lacked or ignored the
relevant facts and expertise.
¶30 The appellant’s third-level supervisor, who signed the appellant’s
termination letter, indicated that she lacked expertise in OMHP matters and was
unsure whether the appellant’s information sharing was appropriate.
HT at 335-36, 338, 352 (appellant’s third-level supervisor). The third-level
supervisor also testified that she failed to realize that the second-level supervisor
had instructed the appellant to engage in the information sharing and, in
hindsight, she acknowledged the appellant should not have been blamed.
Id. at 350-51, 375. She did, however, recall that the appellant’s second-level
14
supervisor defended the appellant’s actions as consistent with existing OMHP
policy. Id. at 350. Once again, the second-level supervisor’s defense is
reflected in her memorandum to the third-level supervisor and the GDASH.
IAF, Tab 6 at 31-32. According to her meeting notes and hearing testimony, the
third-level supervisor discussed the second-level supervisor’s defense of the
appellant when summoned to a meeting with the GDASH and the Senior Advisor
to consider terminating the appellant. HT at 335-36 (testimony of the third-level
supervisor); I-3 AF, Tab 12 at 4. However, she described the GDASH and the
Senior Advisor as insisting that the appellant’s actions were incorrect and
contrary to law. HT at 335-36 (testimony of the third-level supervisor); I-3 AF,
Tab 12 at 4.
¶31 The Senior Advisor to the GDASH, who testified that she first raised the
idea of terminating the appellant in the aforementioned meeting, indicated that
she had many years of experience within the agency but no experience working
with OMHP. HT at 274, 276, 279, 284-85 (testimony of the Senior Advisor).
Nevertheless, she concluded that the appellant should be terminated based on the
Oregon complaint alone, without additional investigation or information,
including whether the appellant had simply followed existing policy and
instructions from her chain of command. Id. at 275-76, 279-82, 291-92
(testimony of the Senior Advisor). The Senior Advisor disputed the third-level
supervisor’s meeting notes and testimony, asserting that the third-level supervisor
did not disclose that the appellant’s chain of command approved of the
appellant’s conduct. Compare id. at 290-91, 298-302, with HT at 335-36
(testimony of the third-level supervisor); IAF, Tab 6 at 31-32; I-3 AF, Tab 12
at 4. She instead described the third-level supervisor as a passive participant in
the meeting who essentially agreed to carry out the termination without
explanation or objection. HT at 302, 304-06 (testimony of the Senior Advisor).
Nonetheless, the Senior Advisor suggested that the circumstances of the
termination were somewhat unusual because a first- or second-level supervisor
15
would ordinarily be involved, but she indicated that it was not required.
HT at 312-14, 323 (testimony of the Senior Advisor).
¶32 The GDASH indicated that she was not an expert in the field and she had a
limited understanding of OMHP policy. HT at 212-15 (testimony of the
GDASH). She also acknowledged that the appellant’s second-level supervisor
had broad discretion to set OMHP policy. Id. at 222. However, the GDASH
could not recall the second-level supervisor’s memorandum defending the
appellant’s actions, which was addressed to the GDASH and assured her that the
appellant had acted appropriately. Id. at 179-80; IAF, Tab 6 at 31-32.
Similarly, the GDASH could not recall pertinent details of the termination
meeting with the appellant’s third-level supervisor and the Senior Advisor,
including whether there was a discussion about the second-level supervisor’s
defense of the appellant. Compare HT at 179-80, 195-97 (testimony of the
GDASH), with IAF, Tab 6 at 31-32; I-3 AF, Tab 12 at 4. The GDASH did,
however, recall coming to the conclusion that the appellant’s actions were
grounds for dismissal. HT at 185-91, 195-99 (testimony of the GDASH).
The GDASH indicated that she came to this conclusion after reviewing the
Oregon complaint and consulting with others, such as the appellant’s third-level
supervisor, her Senior Advisor, and the Acting Associate General Counsel.
Id. at 186-87, 214-15.
¶33 The Acting Associate General Counsel attended a meeting (different than
the one discussed above) with the Senior Advisor and the appellant’s third-level
supervisor to discuss the Oregon complaint. I-3 AF, Tab 12 at 4; HT at 324
(testimony of the Senior Advisor). During the hearing, this Acting Associate
General Counsel testified that, although her office was the program counsel for
OMHP, OMHP did not regularly seek their counsel during the relevant time
period. HT at 394-95, 406-09 (testimony of the Acting Associate General
Counsel). As a result, OMHP tended to take actions that she was late to learn
about, and she found many of those actions concerning. Id. at 405-09.
16
She testified that when the Oregon complaint was brought to her attention, she
was again surprised and concerned. Id. at 396-401. However, to the extent that
her concern involved the appellant, it largely centered on what the appellant
might have shared during a conference call referenced in the Oregon complaint.
Id. at 401-05, 438-39. She described this unknown as warranting follow-up to
determine whether the appellant’s information sharing was “exceedingly bad”
versus something that creates “an appearance of impropriety” and “does not
appear to be consistent with what [the agency] should be releasing.” Id. at 439.
Yet, the Acting Associate General Counsel did not know whether any follow-up
actually occurred. Id. at 427-28, 439-40. She also acknowledged that she did not
know whether the appellant’s information sharing was consistent with existing
OMHP policy or her supervisor’s instructions. Id. at 413, 427-30, 435-36,
438-39.
¶34 Approximately 1 week after the meetings discussed above, without
any further investigation or inquiry, the agency terminated the appellant’s
appointment. Compare I-3 AF, Tab 12 at 4-5 (emails indicating that the
termination meetings occurred on December 11, 2017), with IAF, Tab 1 at 9-10
(December 19, 2017 termination notice), and HT at 291-93 (testimony of the
Senior Advisor). Although the GDASH, the Senior Advisor, and the Acting
Associate General Counsel all testified that they did not realize the appellant’s
second-level supervisor had authorized the appellant’s information sharing, they
nevertheless indicated that the appellant’s termination remained warranted
because the appellant should have known not to follow those instructions. HT
at 209 (testimony of the GDASH), 281-82, 293-94 (testimony of the Senior
Advisor), 414-17 (testimony of the Associate General Counsel). The
administrative judge disagreed, finding no persuasive support for that conclusion.
ID at 44 n.68.
¶35 Unlike his determination that the appellant, her first-level supervisor, and
her second-level supervisor were credible witnesses, the administrative judge
17
expressed varying degrees of reservation concerning the credibility of those
involved in the appellant’s termination. He found the Acting Associate General
Counsel’s testimony to be largely credible, though hyperbolic at times. ID at 35
n.58, 38 n.63. He found the appellant’s third-level supervisor to be somewhat
credible but concluded that she colored her testimony to try to justify the
appellant’s termination and her involvement in the same. ID at 34 n.56.
The administrative judge found that the Senior Advisor and the GDASH were not
credible. ID at 26 n.43, 29-30 n.47. He determined that the Senior Advisor’s
memory was foggy regarding a number of relevant facts and that the justifications
she offered based on her own experience to support her conclusion that the
appellant had engaged in misconduct were “somewhat misleading and unsound.”
ID at 29-30 n.47. He also made demeanor-based credibility findings regarding
the GDASH. ID at 26 n.43. In reaching these conclusions, the administrative
judge appropriately considered the Hillen factors and relied on his observations of
the witnesses’ demeanor. Accordingly, we defer to his credibility findings. See
Purifoy, 838 F.3d at 1373; Haebe, 288 F.3d at 1301; Hillen, 35 M.S.P.R. at 458.
¶36 On review, the agency argues that the appellant’s termination was warranted
and that the administrative judge erred by concluding otherwise. PFR File, Tab 1
at 6-7, 14-15. The agency notes that the appellant’s first-level supervisor 5
indicated that Oregon’s threat to withdraw from its partnership with the agency
was unusual. Id. at 6 (citing HT at 244, 255-56 (testimony of the first-level
supervisor)). However, the testimony that the agency references merely describes
Oregon’s threat to withdraw from its partnership with the agency as unusual;
it does not suggest that the appellant acted unusually or inappropriately.
¶37 The agency also recounts how the Acting Associate General Counsel
testified that the sharing of information described in the Oregon complaint was
5
In making this argument, the agency described this individual as the appellant’s
second-level supervisor. PFR File, Tab 1 at 6. However, upon further review, it
appears that the agency intended to refer to the appellant’s first-level supervisor, not her
second-level supervisor, given the testimony referenced.
18
both unusual and something the agency should not do. 6 PFR File, Tab 1
at 6-7, 14-15 (citing HT at 395-96, 398, 429 (testimony of the Acting Associate
General Counsel)). But again, this same official also indicated that she was not
aware of any specific prohibition against the appellant’s information sharing and
she did not know whether OMHP policy permitted the same; she instead
expressed her opinion that OMHP policies and the appellant’s chain of command
should not have authorized the appellant’s information sharing. HT at 428-30,
435-38 (testimony of the Acting Associate General Counsel). In other words, the
Acting Associate General Counsel expressed disagreement with the policies and
decisions of the OMHP Administrator, another attorney who had acted within her
designated authority. Moreover, as previously mentioned, the Acting Associate
General Counsel was most concerned with what the appellant may have shared
during a conversation referenced in the Oregon complaint, yet the agency failed
to conduct any substantive follow-up about the same. Id. at 439.
¶38 The agency next argues that the appellant’s sharing of information
regarding Oregon was not comparable to how OMHP handled the situation with
Michigan because only Oregon responded by threatening to withdraw from
their partnership. PFR File, Tab 1 at 7 (citing HT at 151-52 (testimony of the
second-level supervisor), 257 (testimony of the first-level supervisor)).
However, we are not persuaded that the different reactions from these two state
partners are particularly relevant. What is most relevant is evidence that OMHP
handled these state partners similarly.
¶39 In sum, the evidence of record supports a finding that the appellant acted in
accordance with past practices by OMHP, existing OMHP policy, and the
instructions of her second-level supervisor, the Administrator of OMHP.
Nevertheless, roughly 3 months after the Oregon complaint, officials who lacked
or ignored those facts convened to abruptly terminate the appellant’s
6
The agency’s petition for review states that this individual found the appellant’s
information sharing “very usual,” but it is apparent that the agency intended to state that
she found the information sharing unusual. PFR File, Tab 1 at 6.
19
appointment, without any investigation and without consulting the appellant’s
first- or second-level supervisors.
The GDASH was responsible for the appellant’s termination.
¶40 As the administrative judge discussed, there is some conflicting evidence
regarding the degree to which the GDASH—the only political appointee involved
in this matter—was responsible for the appellant’s termination. 7
ID at 24-25, 31-33 & n.51, 56. Again, the appellant’s second-level supervisor
responded to the Oregon complaint by issuing an internal memorandum to the
appellant’s third-level supervisor and the GDASH, defending the appellant’s
actions and assuring them that the appellant had not shared any confidential or
sensitive information. IAF, Tab 6 at 31-32. The third-level supervisor
testified that she believed this explanation. HT at 332-33, 335 (testimony of the
third-level supervisor). However, she was reportedly convinced otherwise by
the GDASH, her Senior Advisor, and the Acting Associate General Counsel.
E.g., I-3 AF, Tab 12 at 4; HT at 276-79 (testimony of the Senior Advisor), 335-39
(testimony of third-level supervisor), 412-15 (testimony of the Acting Associate
General Counsel). The third-level supervisor initially indicated that she made the
termination decision herself but later testified that she was instructed to terminate
the appellant’s appointment during a meeting with the GDASH, the Senior
Advisor, and an Employee Labor Relations Specialist. HT at 343-44, 389-91
(testimony of the third-level supervisor).
¶41 The Senior Advisor characterized the third-level supervisor as a passive
participant when summoned to the meeting to discuss the appellant’s termination.
HT at 302, 304-06 (testimony of the Senior Advisor). She also indicated that she,
herself, first raised the idea of termination. Id. at 276, 279. The GDASH denied
directing the third-level supervisor to terminate the appellant’s appointment but
7
Unlike the GDASH, who was a Republican political appointee, the political
affiliations or preferences of others involved in the appellant’s termination are not
apparent based on the record.
20
acknowledged that she consented to the action, was accountable for it, and was
happy to take responsibility for it. HT at 188-91 (testimony of the GDASH).
¶42 After reviewing these accounts, the administrative judge concluded that the
GDASH, in consultation with the Senior Advisor and an Employee Labor
Relations Specialist, was the agency official who made the termination decision
and directed the third-level supervisor to carry it out. ID at 38. He noted that
others were involved, but the GDASH was the only official with the authority to
direct the third-level supervisor to act. ID at 38 n.64. As mentioned above, he
also found that the third-level supervisor colored her testimony in an attempt to
justify the GDASH’s directive, notwithstanding her own concerns about the
legitimacy and abnormality of the termination. ID at 33 n.56.
¶43 On review, the agency does not dispute the GDASH’s responsibility over
the termination, and we discern no reason to disturb the administrative judge’s
conclusion on the point. The GDASH called a meeting with her subordinate—the
third-level supervisor—for the purpose of recommending that she effectuate the
appellant’s probationary termination. The third-level supervisor abruptly did so,
just days later, in the unusual manner described above.
The administrative judge correctly found that the GDASH’s
testimony denying that she knew of the appellant’s political
affiliation was not credible.
¶44 It is undisputed that the appellant has extensive personal and professional
ties to the Democratic Party, which were included in her resume
and discussed during an office-wide introduction on her first day of work. I -3
AF, Tab 7 at 24-25; HT at 10-15 (testimony of the appellant), 111-12 (testimony
of the second-level supervisor). It is also undisputed that, after her appointment,
the head of an industry group, MHARR, sent at least one written complaint to the
agency about the political leanings of the appellant. IAF, Tab 6 at 15-17; I-3 AF,
Tab 9 at 98-99; HT at 112-13, 240-43 (testimony of the second-level supervisor).
21
¶45 The appellant’s first-level supervisor testified that she knew the appellant
previously held a political appointment. I-3 AF, Tab 7 at 24-25; HT at 228
(testimony of the first-level supervisor). Her second-level supervisor testified
that the appellant gave a full history of her background, including her political
affiliation with the Democratic Party, during an office-wide meet-and-greet event
on the appellant’s first day of work at the agency. HT at 111-12 (testimony of the
second-level supervisor).
¶46 In contrast, the officials involved in the termination all denied knowing of
the appellant’s political affiliation and indicated that they could not recall seeing
anything that would have revealed her political affiliation. HT at 210-12
(testimony of the GDASH), 284 (testimony of the Senior Advisor),
372 (testimony of the third-level supervisor), 423 (testimony of the Acting
Associate General Counsel). Despite some indication that the third-level
supervisor may have been involved in the office-wide introduction where the
appellant discussed her background, the third-level supervisor said she did not
recall the meeting. HT at 111-12 (testimony of the second-level supervisor),
228-30 (testimony of the first-level supervisor), 328 (testimony of the third-level
supervisor). She also could not recall any MHARR complaint targeting the
appellant but acknowledged seeing complaint letters from MHARR, including
some “attacking” the appellant’s second-level supervisor. HT at 328-30
(testimony of the third-level supervisor).
¶47 Like the third-level supervisor, the Acting Associate General Counsel
acknowledged seeing MHARR complaints targeting the appellant’s second-level
supervisor but could not recall whether any targeted the appellant. HT at 423-26
(testimony of the Acting Associate General Counsel). Generally, she testified
that the MHARR complaints against the second-level supervisor were well known
and that she “would be shocked” if the GDASH was not aware of them. Id.
at 426-27. The Senior Advisor could not recall whether she had seen any letters
from MHARR. HT at 287 (testimony of the Senior Advisor).
22
¶48 The GDASH testified that she was familiar with MHARR sending many
letters to the agency, and she also acknowledged having meetings with the head
of MHARR. 8 HT at 176-78, 202-03, 218-19 (testimony of the GDASH). Yet, she
indicated that she could not recall any specific MHARR complaint about the
appellant, provided no details about her meetings with the head of MHARR, and
denied knowing anything about the appellant’s political affiliation. Id. at 211-12,
218-19, 221-22. The administrative judge did not find this testimony credible,
instead concluding that the GDASH knew of the appellant’s political affiliation
during the relevant period. ID at 26 n.43, 40-41. Specifically, he found that her
testimony that she did not recall any facts concerning her interactions with the
head of MHARR or the substance of his numerous letters to “stretch the bounds
of credulity.” ID at 41. He reached this conclusion based upon numerous factors,
including the GDASH’s demeanor and the inherent improbability of her
testimony because MHARR’s complaints were so well known, frequent, and
likely to be raised during the meetings between the GDASH and the head of
MHARR. ID at 26 n.43, 40-41.
¶49 On review, the agency argues that the administrative judge erred in finding
that the GDASH was aware of the appellant’s political affiliation. PFR File,
Tab 1 at 11-14. The agency asserts that there is no evidence to prove that the
GDASH reviewed the appellant’s resume, that she was present during the
meet-and-greet event in which the appellant discussed her background, or that she
reviewed any specific MHARR letter complaining about the appellant’s
politics. Id.
¶50 We are not persuaded by the agency’s arguments. There is ample evidence
that the head of MHARR was quite focused on the politics of the appellant and
her second-level supervisor—so much so that he regularly lodged complaints
about them that were well known and widely distributed. HT at 18-19 (testimony
8
It is unclear whether any other officials were present at the meetings between the
GDASH and the head of MHARR. The GDASH’s Senior Advisor testified that she
could not recall any such meetings. HT at 287 (testimony of the Senior Advisor).
23
of the appellant), 156-58 (testimony of the second-level supervisor), 240-43
(testimony of the first-level supervisor), 329-31 (testimony of the third -level
supervisor), 449-51 (testimony of the Acting Associate General Counsel). The
agency has not articulated a sufficiently sound reason for overturning the
administrative judge’s determination that it is improbable that the GDASH was
unaware of the appellant’s political affiliation, either from her review of
MHARR’s correspondence or from her direct meetings with the head of MHARR.
See Purifoy, 838 F.3d at 1373; Haebe, 288 F.3d at 1301.
The circumstances of the second-level supervisor’s reassignment are
relevant to this appeal.
¶51 The record shows that, the day before the appellant’s probationary
termination, the GDASH reassigned the appellant’s second-level supervisor to an
administrative position. The agency argued below that the second-level
supervisor’s reassignment is not relevant to the instant appeal. I-2 AF, Tab 2
at 26-27. However, we agree with the administrative judge that it is both relevant
and material. ID at 47 n.73. Evidence of similarly situated individuals whom the
employer treated similarly is commonly known as “me too” evidence, and its
relevance and admissibility “depends on many factors, including how closely
related the evidence is to the plaintiff’s circumstances and theory of the case.”
Sprint/United Management Co. v. Mendelsohn , 552 U.S. 379, 388 (2008); see
Didinger v. Allsteel, Inc., 853 F.3d 414, 424 (8th Cir. 2017).
¶52 In this case, both the appellant and her second-level supervisor were targets
of MHARR’s partisan political complaints, the official who decided to reassign
the second-level supervisor was the same official who decided to terminate the
appellant’s appointment, these personnel actions were taken almost
simultaneously, neither personnel action was subject to the kind of deliberation
that might normally be expected, and, as with the termination, the agency’s
justification for the reassignment was weak at best. ID at 25-26 & n.43, 47-48;
HT at 109, 131, 156 (testimony of the second-level supervisor), 181-84
24
(testimony of the GDASH), 316, 323 (testimony of the Senior Advisor), 387-88
(testimony of the third-level supervisor). Furthermore, the evidence closely
correlates with and supports the appellant’s theory of the case, i.e., the GDASH
acquiesced to pressure from MHARR to get rid of certain OMHP officials,
including the appellant, based on their political affiliation. On petition for
review, the agency argues that, for various reasons, the second-level supervisor’s
reassignment does not suggest partisan political discrimination against the
appellant. PFR File, Tab 1 at 8-10. We have considered the agency’s arguments,
but the agency has not identified any facts or circumstances that would alter our
assessment of the reassignment and how it relates to the appellant’s case or our
overall conclusion that the appellant’s termination was based on partisan political
reasons.
¶53 To conclude, the agency has presented no basis for disturbing the
administrative judge’s findings of fact. We therefore affirm the initial decision.
The evidence supports the conclusion that the appellant’s termination was not
justified, an innocent mistake, or otherwise excusable. Instead, the record before
us indicates that, more likely than not, the termination was impermissibly based
on partisan political reasons. The appellant proved, by preponderant evidence,
that partisan political reasons were a but-for cause of her probationary
termination. Accordingly, the probationary termination is reversed.
ORDER
¶54 We ORDER the agency to cancel the probationary termination and to
retroactively restore the appellant effective December 19, 2017. See Kerr v.
National Endowment for the Arts, 726 F.2d 730 (Fed. Cir. 1984). The agency
must complete this action no later than 20 days after the date of this decision.
¶55 We also ORDER the agency to pay the appellant the correct amount of back
pay, interest on back pay, and other benefits under the Office of Personnel
Management’s regulations, no later than 60 calendar days after the date of this
25
decision. We ORDER the appellant to cooperate in good faith in the agency’s
efforts to calculate the amount of back pay, interest, and benefits due, and to
provide all necessary information the agency requests to help it carry out the
Board’s Order. If there is a dispute about the amount of back pay, interest due,
and/or other benefits, we ORDER the agency to pay the appellant the undisputed
amount no later than 60 calendar days after the date of this decision.
¶56 We further ORDER the agency to tell the appellant promptly in writing
when it believes it has fully carried out the Board’s Order and of the actions it has
taken to carry out the Board’s Order. The appellant, if not notified, should ask
the agency about its progress. See 5 C.F.R. § 1201.181(b).
¶57 No later than 30 days after the agency tells the appellant that it has fully
carried out the Board’s Order, the appellant may file a petition for enforcement
with the office that issued the initial decision in this appeal if the appellant
believes that the agency did not fully carry out the Board’s Order. The petition
should contain specific reasons why the appellant believes that the agency has not
fully carried out the Board’s Order, and should include the dates and results of
any communications with the agency. 5 C.F.R. § 1201.182(a).
¶58 For agencies whose payroll is administered by either the National Finance
Center of the Department of Agriculture (NFC) or the Defense Finance and
Accounting Service (DFAS), two lists of the information and documentation
necessary to process payments and adjustments resulting from a Board decision
are attached. The agency is ORDERED to timely provide DFAS or NFC with all
documentation necessary to process payments and adjustments resulting from the
Board’s decision in accordance with the attached lists so that payment can be
made within the 60-day period set forth above.
¶59 This is the final decision of the Merit Systems Protection Board in this
appeal. Title 5 of the Code of Federal Regulations, section 1201.113 (5 C.F.R.
§ 1201.113).
26
NOTICE TO THE APPELLANT
REGARDING YOUR RIGHT TO REQUEST
ATTORNEY FEES AND COSTS
You may be entitled to be paid by the agency for your reasonable attorney
fees and costs. To be paid, you must meet the requirements set out at Title 5 of
the United States Code (U.S.C.), sections 7701(g), 1221(g), or 1214(g). The
regulations may be found at 5 C.F.R. §§ 1201.201, 1202.202, and 1201.203. If
you believe you meet these requirements, you must file a motion for attorney fees
and costs WITHIN 60 CALENDAR DAYS OF THE DATE OF THIS DECISION.
You must file your motion for attorney fees and costs with the office that issued
the initial decision on your appeal.
NOTICE OF APPEAL RIGHTS 9
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
9
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.
27
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
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
28
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
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
29
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. 10 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
10
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.
30
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 .
Gina K. Grippando
Clerk of the Board
Washington, D.C.
DEFENSE FINANCE AND ACCOUNTING SERVICE
Civilian Pay Operations
DFAS BACK PAY CHECKLIST
The following documentation is required by DFAS Civilian Pay to compute and pay back pay
pursuant to 5 CFR § 550.805. Human resources/local payroll offices should use the following
checklist to ensure a request for payment of back pay is complete. Missing documentation may
substantially delay the processing of a back pay award. More information may be found at:
https://wss.apan.org/public/DFASPayroll/Back%20Pay%20Process/Forms/AllItems.aspx.
NOTE: Attorneys’ fees or other non-wage payments (such as damages) are paid by
vendor pay, not DFAS Civilian Pay.
☐ 1) Submit a “SETTLEMENT INQUIRY - Submission” Remedy Ticket. Please identify the
specific dates of the back pay period within the ticket comments.
Attach the following documentation to the Remedy Ticket, or provide a statement in the ticket
comments as to why the documentation is not applicable:
☐ 2) Settlement agreement, administrative determination, arbitrator award, or order.
☐ 3) Signed and completed “Employee Statement Relative to Back Pay”.
☐ 4) All required SF50s (new, corrected, or canceled). ***Do not process online SF50s
until notified to do so by DFAS Civilian Pay.***
☐ 5) Certified timecards/corrected timecards. ***Do not process online timecards until
notified to do so by DFAS Civilian Pay.***
☐ 6) All relevant benefit election forms (e.g. TSP, FEHB, etc.).
☐ 7) Outside earnings documentation. Include record of all amounts earned by the employee
in a job undertaken during the back pay period to replace federal employment.
Documentation includes W-2 or 1099 statements, payroll documents/records, etc. Also,
include record of any unemployment earning statements, workers’ compensation,
CSRS/FERS retirement annuity payments, refunds of CSRS/FERS employee premiums,
or severance pay received by the employee upon separation.
Lump Sum Leave Payment Debts: When a separation is later reversed, there is no authority
under 5 U.S.C. § 5551 for the reinstated employee to keep the lump sum annual leave payment
they may have received. The payroll office must collect the debt from the back pay award. The
annual leave will be restored to the employee. Annual leave that exceeds the annual leave
ceiling will be restored to a separate leave account pursuant to 5 CFR § 550.805(g).
2
NATIONAL FINANCE CENTER CHECKLIST FOR BACK PAY CASES
Below is the information/documentation required by National Finance Center to process
payments/adjustments agreed on in Back Pay Cases (settlements, restorations) or as ordered by
the Merit Systems Protection Board, EEOC, and courts.
1. Initiate and submit AD-343 (Payroll/Action Request) with clear and concise information
describing what to do in accordance with decision.
2. The following information must be included on AD-343 for Restoration:
a. Employee name and social security number.
b. Detailed explanation of request.
c. Valid agency accounting.
d. Authorized signature (Table 63).
e. If interest is to be included.
f. Check mailing address.
g. Indicate if case is prior to conversion. Computations must be attached.
h. Indicate the amount of Severance and Lump Sum Annual Leave Payment to be
collected (if applicable).
Attachments to AD-343
1. Provide pay entitlement to include Overtime, Night Differential, Shift Premium, Sunday
Premium, etc. with number of hours and dates for each entitlement (if applicable).
2. Copies of SF-50s (Personnel Actions) or list of salary adjustments/changes and amounts.
3. Outside earnings documentation statement from agency.
4. If employee received retirement annuity or unemployment, provide amount and address to
return monies.
5. Provide forms for FEGLI, FEHBA, or TSP deductions. (if applicable)
6. If employee was unable to work during any or part of the period involved, certification of the
type of leave to be charged and number of hours.
7. If employee retires at end of Restoration Period, provide hours of Lump Sum Annual Leave
to be paid.
NOTE: If prior to conversion, agency must attach Computation Worksheet by Pay Period and
required data in 1-7 above.
The following information must be included on AD-343 for Settlement Cases: (Lump Sum
Payment, Correction to Promotion, Wage Grade Increase, FLSA, etc.)
a. Must provide same data as in 2, a-g above.
b. Prior to conversion computation must be provided.
c. Lump Sum amount of Settlement, and if taxable or non-taxable.
If you have any questions or require clarification on the above, please contact NFC’s
Payroll/Personnel Operations at 504-255-4630.