Andrew Terry v. Department of Veterans Affairs ( 2024 )

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
ANDREW TERRY, DOCKET NUMBER
Appellant, PH-0752-22-0235-I-1
v.
DEPARTMENT OF VETERANS DATE: March 21, 2024
AFFAIRS,
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Andrew Terry , Pittsburgh, Pennsylvania, pro se.
Angela Madtes , Esquire, Pittsburgh, Pennsylvania, 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 chapter 75 removal based on the charge of inappropriate
conduct. 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
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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).
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or the erroneous application of the law to the facts of the case; the administrative
judge’s rulings during either the course of the appeal or the initial decision
were not consistent with required procedures or involved an abuse of discretion,
and the resulting error affected the outcome of the case; or new and material
evidence or legal argument is available that, despite the petitioner’s due
diligence, was not available when the record closed. Title 5 of the Code of
Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). After fully
considering the filings in this appeal, we conclude that the petitioner has not
established any basis under section 1201.115 for granting the petition for review.
Therefore, we DENY the petition for review. Except as expressly MODIFIED to
VACATE two non-material findings of fact concerning the first specification of
the agency’s charge, we AFFIRM the initial decision.
On petition for review, the appellant argues, among other things, that the
administrative judge erred in finding that the agency proved its first specification
of the charge of inappropriate conduct. Petition for Review (PFR) File, Tab 1
at 6-11, 15; Initial Appeal File (IAF), Tab 30, Initial Decision (ID) at 2-6. The
agency’s first specification concerned three text messages of a “highly
inappropriate nature” sent from the appellant’s personal cell phone to another
employee. IAF, Tab 6 at 20. The text messages cited in the specification
addressed the employee by name and included statements such as, “[t]ry me again
and it will be your job,” and “[now] you are done. If you wish to act like a dumb
bitch, you will be treated like a dumb bitch.” Id. On review, the appellant
re-asserts that the agency cannot prove this specification because he sent the three
texts listed in this specification to the employee’s husband—the owner of the cell
phone—and not the employee. PFR File, Tab 1 at 6-11, 15; IAF, Tab 1 at 5,
Tab 4 at 3, 17, 20, Tab 6 at 63. He contends that, contrary to two findings by the
administrative judge, he did not admit at the hearing to sending the texts to the
employee, PFR File, Tab 1 at 7; ID at 5-6, 8, and the evidence did not establish
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that the employee was routinely using her husband’s cell phone, PFR File, Tab 1
at 8-9; ID at 8.
We agree with the appellant that these findings of fact were erroneous
because they were unsupported by the record, and we vacate these findings. IAF,
Tab 28, Hearing Recording (HR) (testimony of the appellant); ID at 5-6, 8.
Nonetheless, although the Board may grant a petition for review based on a
factual error, such error must be material. 5 C.F.R. § 1201.115(a)(1). A material
error is one that is of sufficient weight to warrant an outcome different from that
of the initial decision. Id. We find that the texts listed in the agency’s first
specification were clearly directed at the employee and not at her husband, even
though her husband owned the cell phone. IAF, Tab 6 at 44, 63. Thus, we find
no material error in the administrative judge’s decision to sustain the first
specification. ID at 2-6.
The appellant also argues on review that the administrative judge abused
his discretion by barring the appellant from continuing his cross-examination of
the deciding official regarding “ANY Douglas factor.” PFR File, Tab 1 at 12-13;
IAF, Tab 27 at 3; see Douglas v. Veterans Administration, 5 M.S.P.R. 280, 306
(1981) (setting forth a non-exhaustive list of factors relevant to the penalty
determination in adverse actions). To obtain reversal of an initial decision on the
ground that the administrative judge abused his discretion in excluding evidence,
the petitioning party must show on review that relevant evidence, which could
have affected the outcome, was disallowed. Jezouit v. Office of Personnel
Management, 97 M.S.P.R. 48, ¶ 12 (2004), aff’d, 121 F. App’x. 865 (Fed. Cir.
2005). We have reviewed the hearing testimony in its entirety. HR (testimony of
the deciding official). We find that the appellant has not shown that, if not for
the administrative judge’s rulings, he was likely to obtain evidence during his
cross-examination of the deciding official that would have resulted in an outcome
different from that of the initial decision. Id. Thus, we affirm the initial
decision.
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NOTICE OF APPEAL RIGHTS 2
The initial decision, as supplemented by this Final Order, constitutes the
Board’s final decision in this matter. 5 C.F.R. § 1201.113. You may obtain
review of this final decision. 5 U.S.C. § 7703(a)(1). By statute, the nature of
your claims determines the time limit for seeking such review and the appropriate
forum with which to file. 5 U.S.C. § 7703(b). Although we offer the following
summary of available appeal rights, the Merit Systems Protection Board does not
provide legal advice on which option is most appropriate for your situation and
the rights described below do not represent a statement of how courts will rule
regarding which cases fall within their jurisdiction. If you wish to seek review of
this final decision, you should immediately review the law applicable to your
claims and carefully follow all filing time limits and requirements. Failure to file
within the applicable time limit may result in the dismissal of your case by your
chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
2
Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.
5
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); 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
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prepayment of fees, costs, or other security. See 42 U.S.C. § 2000e-5(f) and
29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
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disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction. 3 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
3
The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510.
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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.