Sherone Duncan v. Department of the Treasury ( 2024 )

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
SHERONE L. DUNCAN, DOCKET NUMBER
Appellant, DA-0752-18-0112-I-1
v.
DEPARTMENT OF THE TREASURY, DATE: February 27, 2024
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Danielle B. Obiorah , Esquire, Jonesboro, Georgia, for the appellant.
Ariya McGrew , Esquire, and Heather A. Southwell , Esquire, New York,
New York, for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
affirmed her removal. On petition for review, the appellant argues that the
administrative judge erred in finding that the agency proved the charge of
providing false information in matters of official interest and that the penalty was
unreasonable. Generally, we grant petitions such as this one only in the following
1
A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
2
circumstances: the initial decision contains erroneous findings of material fact;
the initial decision is based on an erroneous interpretation of statute or regulation
or the erroneous application of the law to the facts of the case; the administrative
judge’s rulings during either the course of the appeal or the initial decision
were not consistent with required procedures or involved an abuse of discretion,
and the resulting error affected the outcome of the case; or new and material
evidence or legal argument is available that, despite the petitioner’s due
diligence, was not available when the record closed. Title 5 of the Code of
Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). After fully
considering the filings in this appeal, we conclude that the petitioner has not
established any basis under section 1201.115 for granting the petition for review.
Therefore, we DENY the petition for review. Except as expressly MODIFIED to
apply the correct analysis to the appellant’s affirmative defenses of
discrimination and retaliation, we AFFIRM the initial decision.
After the initial decision was issued, the Board clarified the proper analytic
framework for adjudicating race and sex 2 discrimination claims under Title VII
and disparate treatment disability 3 discrimination claims under the Rehabilitation
Act. Pridgen v. Office of Management and Budget , 2022 MSPB 31, ¶¶ 21-25, 40.
Under Pridgen, the appellant bears the initial burden of proving by preponderant
evidence 4 that her race, sex, and/or disability was a motivating factor in her
2
The appellant also claimed disparate treatment based on pregnancy. Discrimination on
the basis of pregnancy is a type of sex discrimination protected under Title VII.
42 U.S.C. § 2000e(k); see Thome v. Department of Homeland Security , 122 M.S.P.R.
315, ¶ 26 (2015).
3
A pregnancy-related impairment may qualify as a disability under the Rehabilitation
Act when it imposes work-related restrictions that will be substantially limiting, even
though they are only temporary. Equal Employment Opportunity Commission
Enforcement Guidance on Pregnancy Discrimination and Related Issues, EEOC
No. 915.003, 2015 WL 4162723 at *19 (June 25, 2015).
4
A preponderance of the evidence is “[t]he degree of relevant evidence that a
reasonable person, considering the record as a whole, would accept as sufficient to find
that a contested fact is more likely to be true than untrue.” 5 C.F.R. § 1201.4(q).
3
removal. Pridgen, 2022 MSPB 31, ¶¶ 21, 40. Here, the administrative judge
found that the appellant failed to show that her race, sex, or disability were
motivating factors in the agency’s removal action. The appellant does not
challenge these findings on review and we see no reason to disturb them. 5
The appellant also alleged that the agency retaliated against her for
requesting a reasonable accommodation. Claims of retaliation for engaging in
activity protected under the Rehabilitation Act, including requesting reasonable
accommodation for a disability, are subject to a but-for causation standard.
Desjardin v. U.S. Postal Service, 2023 MSPB 6, ¶ 33; see Pridgen, 2022 MSPB
31, ¶¶ 44, 47. As noted in the initial decision, the appellant alleged that the
agency retaliated against her for requesting a reasonable accommodation when it
required her to submit weekly requests for advanced sick leave, began
investigating her, denied her request to transfer to Connecticut in December 2016,
and denied her request to work out of an office closer to her home. ID at 38-39;
IAF, Tab 8 at 14, Tab 24 at 7, 9, Tab 31 at 6. In addition, she testified that her
supervisor called her while she was on leave to ask her to do substantive work
and that he became upset when she input time for her work. ID at 39; HT
at 533-35. Although these experiences and denials may have been unpleasant, the
administrative judge implicitly found that they did not show that the appellant’s
protected activity was a motivating factor in her removal. Because the appellant
failed to satisfy the lower motivating factor standard, she necessarily failed to
meet the higher but-for standard. Desjardin, 2023 MSPB 6, ¶ 33. In any event,
the appellant does not challenge this finding on review, and we see no reason to
revisit it.
5
Because we discern no error with the administrative judge’s motivating factor analysis
or conclusions regarding the appellant’s discrimination claims, it is unnecessary for us
to address whether discrimination or retaliation was a but-for cause of the removal
action. See Pridgen, 2022 MSPB 31, ¶¶ 20-25.
4
NOTICE OF APPEAL RIGHTS 6
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:
6
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); 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
6
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
7
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. 7 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.
7
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.
8
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.