Aerielle Wynn v. Department of Veterans Affairs ( 2024 )

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
AERIELLE WYNN, DOCKET NUMBER
Appellant, AT-0752-20-0497-X-1
v.
DEPARTMENT OF VETERANS DATE: March 28, 2024
AFFAIRS,
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Aerielle Wynn , Montgomery, Alabama, pro se.
Mary Sellers , Montgomery, Alabama, for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
FINAL ORDER
In a January 25, 2021 compliance initial decision granting the appellant’s
petition for enforcement, the administrative judge found the agency in partial
noncompliance with the Board’s final decision reversing the appellant’s demotion
on due process grounds. Wynn v. Department of Veterans Affairs, MSPB Docket
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
No. AT-0752-20-0497-C-1, Compliance File (CF), Tab 4, Compliance Initial
Decision (CID); Wynn v. Department of Veterans Affairs, MSPB Docket No.
AT-0752-20-0497-I-1, Initial Appeal File, Tab 8, Initial Decision (ID). For the
reasons discussed below, we now FIND the agency in compliance and DISMISS
the appellant’s petition for enforcement.
DISCUSSION OF ARGUMENTS AND EVIDENCE ON COMPLIANCE
In a June 8, 2020 initial decision, the administrative judge found that the
agency failed to provide the appellant due process in effecting her demotion from
her position of Medical Administration Officer, GS-0301-12, to Administrative
Officer, GS-0341-11. ID at 3-4. Therefore, he reversed the demotion and
ordered the agency to restore the appellant to the Medical Administration Officer,
GS-0301-12, position effective April 26, 2020, and to provide her the appropriate
amount of back pay with interest and benefits. ID at 4. The June 8, 2020 initial
decision became the final decision of the Board after neither party filed a petition
for review by July 13, 2020. ID at 6.
In a December 4, 2019 petition for enforcement, the appellant argued that
the agency was not in compliance with the Board’s final decision because she had
still not been restored to her prior position of Medical Administration Officer,
GS-0301-12. CF, Tab 1. In the January 25, 2021 compliance initial decision, the
administrative judge agreed, finding that, although the agency demonstrated that
it had canceled the appellant’s demotion, returned her to a GS -12 position, and
paid her the appropriate amount of back pay and benefits, it failed to show that it
had returned her to the specific position she occupied prior to the reversed
demotion, i.e., Medical Administration Officer, GS-0301-12. CID at 4. The
administrative judge considered the agency’s justification for failing to do so—
namely, that someone else now encumbered her former position—but found this
was insufficient to constitute a strong overriding interest for assigning the
appellant to a different position. CID at 5. Regarding the agency’s assertion that
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it was in compliance because it recently offered the appellant a Health Systems
Specialist position, he found that the agency failed to show that such position was
the same as the position from which she was demoted. CID at 4 n.1. Thus, the
administrative judge granted the appellant’s petition for enforcement and ordered
the agency to restore the appellant to the position of Medical Administration
Officer, GS-0301-12. CID at 5.
On January 29, 2021, the agency notified the Board that it was in
compliance with the Board’s final decision and submitted a January 3, 2021
Standard Form 50 (SF-50) reflecting that the appellant occupied the GS-0301-12
Medical Administration Officer position. Wynn v. Department of Veterans
Affairs, MSPB Docket No. AT-0752-20-0497-X-1, Compliance Referral File
(CRF), Tab 1. 2 The appellant objected to the agency’s claim of compliance,
explaining that, although she held the Medical Administration Officer position on
paper, she had not been assigned to the position since 2019. CRF, Tab 2. In
addition, she provided evidence showing that the agency placed her on a
temporary detail to the Safety Service Line effective February 19, 2020, until
further notice and that, as late as December 29, 2020, she was still reporting to
the Safety Service Chief. Id. at 8, 11.
On April 8, 2021, the Board ordered the agency to respond to the
appellant’s challenges to its compliance. CRF, Tab 4. In an April 28, 2021
2
As noted in the compliance initial decision, the Board’s regulations provide that, upon
a finding of noncompliance, the party found to be in noncompliance must do the
following: (i) To the extent that the party decides to take the actions required by the
initial decision, the party must submit to the Clerk of the Board, within the time limit
for filing a petition for review under 5 C.F.R. § 1201.114(e), a statement that the party
has taken the actions identified in the initial decision, along with evidence establishing
that the party has taken those actions; and/or (ii) To the extent that the party decides not
to take all of the actions required by the initial decision, the party must file a petition
for review under the provisions of 5 C.F.R. §§ 1201.114-.115. 5 C.F.R. § 1201.183(a)
(6). As the agency has submitted evidence of compliance and neither party filed a
petition for review, the appellant’s petition for enforcement has been referred to the
Board for a final decision on issues of compliance pursuant to 5 C.F.R. § 1201.183(c).
CRF, Tab 3.
4
submission, the agency stated that the appellant was no longer on detail and
provided an SF-50 reflecting that she was reassigned effective January 17, 2021,
to the position of Health System Specialist, GS-0671-12, in the Office of the
Director. CRF, Tab 5. The agency stated that the appellant’s current position is
“substantially equivalent in scope and status to her former position.” Id. at 5. In
response, the appellant again argued that the agency had not complied with the
Board’s order. CRF, Tab 6. She explained that, although she had applied for and
accepted the Health System Specialist position, she did so only because of the
agency’s continued noncompliance, which forced her to “seek alternative
opportunities instead of literally sitting on a detail doing nothing day in and day
out, waiting for them to comply.” Id. at 4-5. In addition, she argued that the
duties of the Health System Specialist position are not similar to those of the
Medical Administration Officer position and that the two positions are not in the
same job series, do not have the same occupational code, and do not have the
same promotion potential. Id. at 4-5.
In a September 27, 2021 submission, the appellant notified the Board that
she had been informed that she was now being returned to her former position as
a Medical Administration Officer. CRF, Tab 8 at 3. She objected to this action,
however, arguing that the agency was involuntarily reassigning her from her new
position, which she had applied for and accepted. Id. She stated that she did not
accept or approve the reassignment back to her former position and that she
would “not be going.” Id. at 3-4.
On October 29, 2021, the agency submitted a supplemental compliance
response reflecting that, on September 23, 2021, it canceled the appellant’s
reassignment from the Medical Administration Officer position to the Health
System Specialist position. CRF, Tab 9 at 9. The agency stated the cancellation
operated to return the appellant to her former position effective April 26, 2020.
Id. at 5. The agency also provided an October 12, 2021 letter to the appellant
informing her that she was being permanently returned to her former position as a
5
Medical Administration Officer, GS-0301-12, effective October 24, 2021, and
directing her to report for duty. Id. at 10. In addition, the letter stated that all
records regarding her reassignment to the Health System Specialist position had
been removed from her record. Id.In an April 15, 2022 order, the Board directed the agency to address the
appellant’s contention that the agency had improperly involuntarily reassigned
her from the Health System Specialist position, which she applied for and
accepted as a result of the agency’s compliance delays, and whether its decision
to involuntarily reassign her from the Health System Specialist position and
remove references to it from her personnel file had placed the appellant in a
worse position than she would have been in had the reversed demotion not
occurred. CRF, Tab 10 at 3-4. The order informed the appellant of her right to
respond to the agency’s submission and cautioned her that, if she did not respond,
the Board may assume that she is satisfied and dismiss the petition for
enforcement. Id. at 4.
In a May 20, 2022 response, the agency asserted that it did not improperly
involuntarily reassign the appellant from the Health Systems Specialist position
to the Medical Administration Officer position because it had to effect this
reassignment pursuant to the Board’s orders and because the appellant had
consistently argued that she was entitled to be returned to that position, even after
accepting the Health System Specialist position. CRF, Tab 13 at 10. The agency
further stated that the appellant was not in a worse position than if the reversed
demotion had not occurred because, although the SF-50 reassigning her to the
Health System Specialist position had been removed from her official personnel
file, she was free to include that experience on her resume and had received an
“excellent” performance appraisal from her work in that position that she could
use to her advantage. Id. at 10-11.
The appellant did not respond to the agency’s May 20, 2022 submission.
6
ANALYSIS
When the Board corrects a wrongful personnel action, it is required to
ensure that the employee is returned, as nearly as possible, to the status quo ante.
Kerr v. National Endowment for the Arts, 726 F.2d 730, 733 (Fed. Cir. 1984).
Restoration to the status quo ante requires that the employee be placed back in
her former position or in a position substantially equivalent in scope and status to
her former position. Taylor v. Department of the Treasury, 43 M.S.P.R. 221,
224-25 (1990).
As described above, the agency’s evidence reflects that it has now
complied with the outstanding compliance obligation identified in the compliance
initial decision by restoring the appellant to her former position of Medical
Administration Officer, GS-0301-12. CRF, Tabs 9, 13; CID at 4-5. Although the
appellant was dissatisfied with the agency’s delays and the fact that it only
restored her to her former position after she accepted the Health System
Specialist position, she does not dispute that the agency has in fact now restored
her to former position in compliance with the Board’s order. 3 CRF, Tab 8. In
addition, she did not respond to the agency’s May 20, 2022 submission
addressing her allegations regarding her reassignment back to her former position
after she accepted the Health System Specialist position, despite being cautioned
that the Board may assume she was satisfied in the absence of a response.
Moreover, since being returned to her former position in October 2021, the
appellant has not filed anything further with the Board indicating that she still
objects to being returned to her former position pursuant to the Board’s order.
3
In notifying the Board of her objection to the agency’s decision to return her to her
former position in October 2021, the appellant argued that she “deserves to be
compensated for what [she has] been put through.” CRF, Tab 8 at 3-4. However, the
Board lacks the authority to award punitive damages or compensatory damages in
compliance cases. Cunningham v. Department of Veterans Affairs, 91 M.S.P.R. 523,
¶ 3 (2002). Although the Board has the authority to impose sanctions for failure to
comply with any order, the Board does not award damages as a sanction. Id. Moreover,
in view of the agency’s compliance, the imposition of sanctions would be inappropriate.
Mercado v. Office of Personnel Management, 115 M.S.P.R. 65, ¶ 8 (2010).
7
Accordingly, we assume that the appellant is satisfied. See Baumgartner v.
Department of Housing and Urban Development, 111 M.S.P.R. 86, ¶ 9 (2009).
In light of the foregoing, we find that the agency has established that it is
in compliance with its outstanding compliance obligation and dismiss the
appellant’s petition for enforcement. This is the final decision of the Merit
Systems Protection Board in this compliance proceeding. Title 5 of the Code of
Federal Regulations, section 1201.183(c)(1) (5 C.F.R. § 1201.183(c)(1)).
NOTICE OF APPEAL RIGHTS 4
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
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.
8
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
9
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
10
(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. 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.
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.
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 .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.