Precious Wiggins v. Department of Homeland Security ( 2024 )

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
PRECIOUS I. WIGGINS, DOCKET NUMBER
Appellant, NY-0752-17-0167-I-2
v.
DEPARTMENT OF HOMELAND DATE: March 21, 2024
SECURITY,
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Precious I. Wiggins , Wallkill, New York, pro se.
Beverlei E. Colston , Irving, Texas, for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
sustained the appellant’s removal. 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
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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 facts of the case; the administrative judge’s rulings during either the course of
the appeal or the initial decision were not consistent with required procedures or
involved an abuse of discretion, and the resulting error affected the outcome of
the case; or new and material evidence or legal argument is available that, despite
the petitioner’s due diligence, was not available when the record closed. Title 5
of the Code of Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115).
After fully considering the filings in this appeal, we conclude that the petitioner
has not established any basis under section 1201.115 for granting the petition for
review. Therefore, we DENY the petition for review and AFFIRM the initial
decision, which is now the Board’s final decision. 5 C.F.R. § 1201.113(b).
In her initial decision, the administrative judge sustained the appellant’s
removal from her Deportation Officer position upon finding that she failed meet a
required condition of employment when she failed to successfully complete the
Basic Immigration Enforcement Training Program (basic training). In her
petition for review, the appellant asserts that the removal action constituted
retaliation for filing an equal employment opportunity (EEO) complaint. Petition
for Review (PFR) File, Tab 2 at 1. She also may be attempting to argue on
review that she was treated more harshly than employee B because of her sex. Id.
at 4. However, the appellant did not raise any affirmative defenses before the
administrative judge. Because the appellant has not shown that she previously
was unaware of the basis for raising a claim of retaliation and discrimination, the
Board will not consider her claims now. Walker-King v. Department of Veterans
Affairs, 119 M.S.P.R. 414, ¶ 15 (2013); Vazquez v. U.S. Postal Service,
114 M.S.P.R. 264, ¶ 8 n.3 (2010).
The appellant also asserts that the deciding official offered her a
reassignment to an Enforcement Removal Assistant (ERA) position, which was
not a law enforcement position and did not require completion of basic training,
but he withdrew the offer when he learned that the appellant had filed an EEO
complaint. PFR File, Tab 2 at 1. There is no evidence to corroborate this
3
assertion. In fact, the deciding official testified without rebuttal at the hearing
that the appellant, through her union representative, rejected the offer of
reassignment on the basis that she intended to challenge her removal through the
EEO process. Hearing Compact Disc (HCD) (testimony of the deciding official).
The appellant further asserts on review that the administrative judge erred
by failing to consider all of the evidence of record, particularly that pertaining to
her disparate penalty argument, and that this deprived her of a fair and impartial
hearing. PFR File, Tab 2 at 3-4. The administrative judge’s failure to mention
all of the evidence of record does not mean that she did not consider it in
reaching her decision. Marques v. Department of Health and Human Services ,
22 M.S.P.R. 129, 132 (1984), aff’d, 776 F.2d 1062 (Fed. Cir. 1985) (Table).
The appellant also argues that other employees received better treatment
than she did when they failed to pass the required training. PFR File, Tab 2
at 1-2. In Singh v. U.S. Postal Service, 2022 MSPB 15, ¶ 13, the Board found
that, when analyzing disparate penalty claims, “[t]he universe of potential
comparators . . . should be limited to those employees whose misconduct and/or
other circumstances closely resemble those of the appellant.” As to the
appellant’s allegation that the agency should have reassigned her to an ERA
position, as it did with employee B, we find that, even assuming that the appellant
and B are similarly situated for purposes of a disparate penalty claim, the agency
treated them the same by offering ERA positions to both of them. The appellant
also alleges that employee C was permitted a third attempt to pass basic training
and she should have been afforded an additional attempt as well. PFR File, Tab 2
at 1. According to the hearing testimony of the Immigration and Customs
Academy Director, however, employee C was afforded a third attempt pursuant to
the terms of a settlement agreement. HCD (testimony of the Immigration and
Customs Academy Director). Therefore, we find that employee C is not an
appropriate comparator. .
4
Further, the appellant argues that, when she failed to complete the 1.5 mile
run in 14:30 after her second attempt, her training was terminated and she was
returned to her duty station to face eventual removal, whereas six peers from her
training class who also finished the 1.5 mile run with times over 14:30 were
permitted to remain at the Academy and complete training. PFR File, Tab 2 at 2.
However, the Immigration and Customs Academy Director testified that the six
identified employees were all on their first attempt and were only required to
finish the 1.5 mile run in 16:30 to continue in basic training, whereas the
appellant was on her second attempt and was required to complete the run in the
faster time. HCD (testimony of the Immigration and Customs Academy
Director); Wiggins v. Department of Homeland Security, MSPB Docket No.
NY-0752-17-0167-I-2 (AF-2), Tab 8 at 130-31. Accordingly, because the
appellant failed to meet the required time after two attempts, the agency’s policy
required it to terminate her training and initiate removal procedures. Id. at 131,
138. Thus, the appellant was not situated similarly to the six peers to whom she
compares herself. 2
The appellant further asserts that she entered into an October 13, 2015
employment contract with the agency under which terms she was not required to
undergo “any additional training, medical and or [sic] fitness test.” PFR File,
Tab 2 at 2. Because the appellant stipulated that the successful completion of
basic training was a requirement of her position, her argument that she was not
required to complete basic training is without merit. AF-2, Tab 19 at 2
(Stipulations, ¶¶ 2-3); see 5 C.F.R. § 1201.63 (stating that a stipulation of fact
satisfies a party’s burden of proving the fact alleged).
Finally, the appellant contends that, because she was initially hired as an
Immigration Enforcement Agent (IEA) and then promoted into a Deportation
2
The appellant also suggests that she “was held to the Immigration Enforcement Agent
standard that was obsolete,” but this is not true. PFR File, Tab 2 at 2. Both positions
required completion of the same basic training program, for which the physical abilities
standards had been in place since 2006. AF-2, Tab 8 at 129.
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Officer position when the agency began abolishing the IEA career path, she
should have been afforded two attempts as an IEA and then two further attempts
as a Deportation Officer, for a total of four attempts to pass basic training. PFR
File, Tab 2 at 1-2. She has identified no provision in the agency policy that
would have permitted this.
Accordingly, the initial decision is affirmed.
NOTICE OF APPEAL RIGHTS 3
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
3
Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.
6
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
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
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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
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
8
(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. 4 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.
4
The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510.
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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.