Joseph Armstrong v. Department of Commerce ( 2024 )

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
JOSEPH ARMSTRONG, DOCKET NUMBER
Appellant, DC-0752-22-0621-I-1
v.
DEPARTMENT OF COMMERCE, DATE: April 26, 2024
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Joseph Armstrong , Rochester, New York, pro se.
Beth Leech , Washington, D.C., for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
FINAL ORDER
¶1 The appellant, a WG-10 Electrician, has filed a petition for review of the
initial decision that sustained his chapter 75 removal based on charges of failure
to follow supervisory instructions and inappropriate statements. On review, the
appellant maintains, among other things, that he was justified in failing to follow
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
supervisory instructions because he was being harassed. 2 Petition for Review
(PFR) File, Tab 4 at 5; Initial Appeal File (IAF), Tab 5 at 67, 75, 86-87.
¶2 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 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
find that the supervisor’s instructions were proper and were not outweighed by
any legitimate, countervailing interest in opposing harassment, we AFFIRM the
initial decision.
The appellant’s arguments that he was justified in failing to follow supervisory
instructions are not persuasive.
¶3 The agency’s failure to follow instructions charge included two
specifications. IAF, Tab 25, Initial Decision (ID) at 7-11; IAF, Tab 5 at 75. The
first specification concerned the appellant’s failure to follow his supervisor’s
instructions to stop recording him with his personal cell phone while the two of
2
The appellant appears to suggest, for the first time in his petition for review, that the
agency also retaliated against him for his report to the Department of Homeland
Security that his supervisor broke into his workspace. PFR File, Tab 1 at 6. To the
extent that the appellant raises a claim of whistleblower reprisal, or reprisal based on
otherwise protected, non-EEO activity, he has not shown that his argument is based on
new and material evidence not previously available despite his due diligence. Thus, we
decline to consider this new argument on review. See Pridgen v. Office of Management
and Budget, 2022 MSPB 31, ¶ 34 n.10.
3
them were performing a routine repair job. IAF, Tab 5 at 71-72, 75. The
appellant argued that he continued recording his supervisor despite the
instructions because he believed his supervisor was harassing him. Id. at 67. The
second specification concerned misconduct the following day when the appellant
failed to follow his supervisor’s instructions to accompany him to repair a light.
Id. at 75. The appellant argued that it had been “imperative” that he speak with
his second-level supervisor instead of accompanying his supervisor to the repair
job because his supervisor was speaking to him in a derogatory way. Id.
at 75, 86-87; IAF, Tab 23-1, Hearing Recording (HR) (testimony of the
appellant). On review, the appellant maintains that he was justified in failing to
follow his supervisor’s instructions. PFR File, Tab 4 at 5.
¶4 To prove a charge of failure to follow instructions, an agency must establish
that: (1) the employee was given proper instructions, and (2) the employee failed
to follow the instructions. Archerda v. Department of Defense, 121 M.S.P.R. 314,
¶ 16 (2014) (citing Hamilton v. U.S. Postal Service, 71 M.S.P.R. 547, 556
(1996)). The administrative judge, citing Smith v. Department of Transportation,
106 M.S.P.R. 59, ¶ 17 (2007), noted that an employee’s conduct is not immune
from discipline merely because it touches upon concerns of discrimination. ID
at 9. Concerning the first specification, he found that the appellant’s harassment
concerns did not excuse or justify his decisions to ignore and refuse to follow his
supervisor’s instructions to stop recording the interaction. Id. Concerning the
second specification, he stated that, even if the appellant believed he was being
spoken to in a derogatory way, this did not excuse his failure to follow his
supervisor’s instructions. ID at 11.
¶5 We modify the initial decision to provide clarification of this issue. The
Board has recognized that when an employee’s conduct underlying discipline
involves opposition to discrimination, the Board “must balance the purpose of the
statutory provisions affording protection from discrimination against Congress’s
equally manifest desire not to tie the hands of employers in the objective control
4
of personnel.” Bonanova v. Department of Education, 49 M.S.P.R. 294, 300
(1991); see generally 42 U.S.C. § 2000e-3(a) (protecting an employee’s right to
oppose discrimination). Thus, we must consider whether the appellant had a
legitimate, countervailing interest in opposing harassment that outweighed the
supervisor’s otherwise proper instructions to complete the job assignments.
¶6 We answer this question in the negative based on the administrative judge’s
thorough and well-reasoned credibility findings. The administrative judge found
credible the accounts of the appellant’s supervisor as well as the appellant’s
coworker, who witnessed the interaction related to the agency’s first
specification. ID at 7; IAF, Tab 11 at 79, 81. The appellant’s coworker explicitly
stated that the supervisor “did not threaten or pick on [the appellant] at all.” IAF,
Tab 5 at 81. The administrative judge also credited the supervisor’s account over
the appellant’s account as to the second specification. ID at 12-16. He accurately
noted, among other things, that the appellant was unable to identify at the hearing
any specific “derogatory” things that his supervisor had said that he allegedly
sought to oppose. ID at 15; HR (testimony of the appellant). We find no
sufficiently sound reason for disturbing these credibility findings, which are
entitled to deference. See Haebe v. Department of Justice, 288 F.3d 1288, 1301
(Fed. Cir. 2002). Thus, because the appellant’s allegations of harassment were
not credible, we conclude that the agency’s interest in having the appellant
complete the assigned job duties outweighed the appellant’s desire to oppose what
he allegedly perceived as harassment. 3 Accordingly, we find that the supervisory
instructions were proper and affirm the administrative judge’s finding sustaining
both specifications of this charge.
¶7 Accordingly, we affirm the initial decision as modified.
3
In light of this finding, we need not determine in what circumstances an employee’s
right to oppose harassment would outweigh an agency’s instruction to complete a job
assignment.
5
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).
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:
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.
6
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
7
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
8
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
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
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.
9
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.