Dayo Stevens v. Department of Veterans Affairs ( 2024 )

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
DAYO STEVENS, DOCKET NUMBER
Appellant, PH-0714-22-0158-I-1
v.
DEPARTMENT OF VETERANS DATE: March 28, 2024
AFFAIRS,
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Dayo Stevens , Georgetown, Delaware, pro se.
Nelda R. Davis , Esquire, Baltimore, Maryland, 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
denied his affirmative defense of national origin discrimination and implicitly
dismissed his removal appeal as moot. 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
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
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 explicitly DISMISS the removal appeal as moot, we AFFIRM the
initial decision.
The Board may dismiss an appeal as moot if the appealable action is
canceled or rescinded by the agency. Fernandez v. Department of Justice,
105 M.S.P.R. 443, ¶ 5 (2007). For the appeal to be deemed moot, the employee
must have received all of the relief that he could have received if the matter had
been adjudicated and he had prevailed. Id. When an agency cancels an action
after an appellant files a Board appeal and the appellant has a viable outstanding
compensatory damages claim, such as a discrimination claim, the appeal is not
mooted by the cancellation. See Currier v. U.S. Postal Service, 72 M.S.P.R. 191,
195-97 (1996).
On review, the appellant challenges the administrative judge’s findings
regarding his affirmative defense of national origin discrimination, and he asserts
that he is entitled to compensatory damages for the pain and suffering he endured
in connection with the removal. Petition for Review (PFR) File, Tab 1.
Compensatory damages are typically not available in connection with a removal
appeal unless the appellant prevails on an affirmative defense. 2 See Currier,
2
In any event, the appellant has waived this argument because he did not timely raise it
before the administrative judge. Initial Appeal File (IAF), Tab 21 at 1 n.1, 6 (noting
that, aside from the discrimination claim, the appellant did not dispute that he was
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72 M.S.P.R. at 195-96 (explaining that, in the absence of an affirmative defense
such as a discrimination claim, compensatory damages are not available in
connection with an adverse action appeal before the Board). The appellant’s
arguments concerning his national origin discrimination claim are not clear. To
the extent the appellant is asserting that the removal action was discriminatory,
we agree with the administrative judge, for the reasons stated in the initial
decision, that there is no evidence that the agency considered the appellant’s
national origin in connection with proposing or sustaining the removal. Initial
Appeal File (IAF), Tab 28, Initial Decision (ID) at 3-13. The appellant’s
arguments on review provide no basis to disturb this finding. 3 See Crosby v. U.S.
Postal Service, 74 M.S.P.R. 98, 106 (1997); Broughton v. Department of Health
& Human Services, 33 M.S.P.R. 357, 359 (1987). To the extent the appellant is
asserting that he was subjected to harassment, separate and apart from the
removal, the Board lacks jurisdiction over a harassment claim unless it is
connected to an otherwise appealable action. See Lethridge v. U.S. Postal
Service, 99 M.S.P.R. 675, ¶¶ 8-9 (2005) (holding that claims of discrimination
and harassment are within the jurisdiction of the Board only when they are related
to an otherwise appealable personnel action). Based on the foregoing, we deny
returned to the status quo ante); see McCarty v. Department of the Navy , 67 M.S.P.R.
177, 180-81 (1995) (finding that the appellant failed to preserve an objection for review
when he failed to object to the administrative judge’s ruling contained in a prehearing
conference order).
3
We have not considered the documents filed with the appellant’s petition for review.
PFR File, Tab 1 at 5-13, 19. Under 5 C.F.R. § 1201.115, the Board generally will not
consider evidence submitted for the first time with a petition for review absent a
showing that it was unavailable before the record was closed before the administrative
judge despite the party’s due diligence. Avansino v. U.S. Postal Service, 3 M.S.P.R.
211, 213-14 (1980). Some of the documents were filed before the administrative judge
and are not new, including an excerpt from an agency handbook, which was discussed
by the administrative judge in the initial decision. ID at 10-11 n.4; see Meier v.
Department of the Interior, 3 M.S.P.R. 247, 256 (1980). To the extent any of the
documents in the petition for review are not already in the record, the appellant has not
alleged that they were unavailable before the record closed judge despite his due
diligence. See Avansino, 3 M.S.P.R. at 213-14; 5 C.F.R. § 1201.115.
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the petition for review and affirm the initial decision, as modified to explicitly
dismiss the removal appeal as moot.
NOTICE OF APPEAL RIGHTS 4
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).
4
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
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
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
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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
(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
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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. 5 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
5
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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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