Kimberly Patrick v. Federal Deposit Insurance Corporation ( 2024 )


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  •                       UNITED STATES OF AMERICA
    MERIT SYSTEMS PROTECTION BOARD
    KIMBERLY PATRICK,                               DOCKET NUMBER
    Appellant,                         NY-0752-12-0130-I-6
    v.
    FEDERAL DEPOSIT INSURANCE                       DATE: April 29, 2024
    CORPORATION,
    Agency.
    THIS FINAL ORDER IS NONPRECEDENTIAL 1
    Kimberly Patrick , Parlin, New Jersey, pro se.
    Beth A. Wilt , Esquire, Arlington, Virginia, for the agency.
    Scott David Cooper , Esquire, Fairfax, Virginia, for the agency.
    BEFORE
    Cathy A. Harris, Chairman
    Raymond A. Limon, Vice Chairman
    FINAL ORDER
    The agency has filed a petition for review of the initial decision that
    reversed the appellant’s removal, and the appellant has filed a cross petition for
    review of the initial decision and a motion to dismiss the agency’s petition for
    review for failure to comply with the administrative judge’s interim relief order.
    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    A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
    For the reasons discussed below, we DENY the appellant’s motion to dismiss,
    GRANT the agency’s petition for review, DENY the appellant’s cross petition for
    review, and REVERSE the initial decision.            The appellant’s removal is
    SUSTAINED.
    BACKGROUND
    The appellant was a Grade-12 Examiner for the agency. Patrick v. Federal
    Deposit   Insurance   Corporation,    MSPB     Docket    No. NY-0752-12-0130-I-4,
    Appeal File (I-4 AF), Tab 43 at 41.     In her position, she participated in, and
    sometimes directed, the examination of banks in order to determine their financial
    condition, evaluate their management, and ascertain their compliance with
    applicable laws and regulations. I-4 AF, Tab 44 at 103.
    On October 15, 2008, the agency proposed the appellant’s removal based
    on 16 specifications of “excessive absences resulting in [the appellant’s] inability
    to perform [her] duties on a regular basis.”        I-4 AF, Tab 43 at 63.       The
    specifications charged that the appellant was absent from duty and had been
    granted leave without pay (LWOP) for the partial pay period from March 5, 2008,
    through March 14, 2008, and for each full pay period from March 17, 2008,
    through October 3, 2008.      
    Id. at 64-66
    .    Following the appellant’s written
    response, in which she challenged the action and alleged retaliation for
    whistleblowing activity, 
    id. at 52-61
    , the deciding official issued a January 9,
    2009 decision sustaining the charge and removing the appellant, effective
    January 16, 2009, 
    id. at 43-49
    .
    After some proceedings in Federal district court, on March 28, 2012, the
    appellant filed this Board appeal, challenging her removal and raising an
    affirmative defense of whistleblower retaliation.       Patrick v. Federal Deposit
    Insurance Corporation, MSPB Docket No. NY-0752-12-0130-I-1, Initial Appeal
    File (IAF), Tab 1 at 5, 10-11. There ensued several years of delay related to the
    district court proceedings. Ultimately, however, the Board appeal proceeded to
    3
    adjudication, and the administrative judge issued an initial decision reversing the
    removal on due process grounds.          Patrick v. Federal Deposit Insurance
    Corporation, MSPB Docket No. NY-0752-12-0130-I-6, Appeal File (I-6 AF),
    Tab 87, Initial Decision (ID). Specifically, she found that the deciding official
    violated the appellant’s right to due process by basing his decision on absences
    that occurred both before and after those set forth in the charge. 2 ID at 14-16.
    She ordered the agency to provide the appellant interim relief in the event that
    either party petitioned for review. ID at 17.
    The agency has filed a petition for review, Petition for Review (PFR) File,
    Tab 1, and the appellant has filed a motion to dismiss the agency’s petition for
    failure to provide interim relief, PFR File, Tab 3, a response to the agency’s
    petition, PFR File, Tab 9, and a cross petition for review. PFR File, Tab 10. The
    agency has filed a reply to the appellant’s response to its petition for review, PFR
    File, Tab 13, and a response to her cross petition for review. PFR File, Tab 15.
    ANALYSIS
    The appellant’s motion to dismiss the agency’s petition for review for failure to
    provide interim relief is denied.
    When, as here, the appellant was the prevailing party in the initial decision
    and interim relief was ordered, a petition for review filed by the agency must be
    accompanied by a certification that the agency has complied with the interim
    relief order, either by providing the interim relief ordered, or by making a
    determination that returning the appellant to the place of employment would
    cause undue disruption to the work environment. 
    5 U.S.C. § 7701
    (b)(2)(A)(ii),
    (B); 
    5 C.F.R. § 1201.116
    (a); see Ayers v. Department of the Army, 
    123 M.S.P.R. 11
    , ¶ 6 (2015).
    In its petition for review, the agency questions the propriety of the interim
    relief order because the appellant admitted that her impairment prevents her from
    2
    The administrative judge found that the appellant did not prove her whistleblower
    defense. ID at 12-14.
    4
    returning to duty, and because the appellant is currently receiving disability
    payments from both the Social Security Administration and the Office of
    Personnel Management.      PFR File, Tab 1 at 16-17.     Nevertheless, the agency
    representative also certified under oath that the agency has fully complied with
    the administrative judge’s interim relief order.     
    Id. at 16
    .   In her motion to
    dismiss, the appellant argues that the agency has not provided her interim relief,
    chiefly because it has not sent her a standard form (SF) 50 documenting the
    cancellation of its removal action. PFR File, Tab 3. The appellant has included
    copies of correspondence with the agency regarding her return to duty. PFR File,
    Tab 3 at 13-18, Tab 4 at 5-8.
    Ordinarily, when an appellant challenges the agency’s certification of
    compliance with an interim relief order, the Board will issue an order affording
    the agency the opportunity to submit evidence of compliance.               
    5 C.F.R. § 1201.116
    (b). If the agency fails to provide evidence of compliance in response
    to such an order, the Board may, at its discretion, dismiss the agency’s petition
    for review. 
    5 C.F.R. § 1201.116
    (e). In this case, however, we find it unnecessary
    to issue such an order because the appellant has herself submitted evidence
    demonstrating that the agency is in compliance with the administrative judge’s
    interim relief order.   That evidence shows that the agency has restored the
    appellant to her former position by ordering her to return to duty and describing
    how that process would be accomplished, and it has explained that an SF-50
    documenting her restoration is available to her through the agency’s secure email
    system once she returns to duty. PFR File, Tab 3 at 13-18, Tab 4 at 5-8. That the
    SF-50 documenting the appellant’s restoration to duty was not mailed to her is
    immaterial. An SF-50 is only documentation of a personnel action; it does not
    constitute the personnel action itself, and it does not control an employee’s status
    and rights.   Fox v. Department of the Army, 
    120 M.S.P.R. 529
    , ¶ 22 (2014);
    Hunt-O’Neal v. Office of Personnel Management, 
    116 M.S.P.R. 286
    , ¶ 10 (2011);
    see Grigsby v. Department of Commerce, 
    729 F.2d 772
    , 774–76 (Fed. Cir. 1984).
    5
    That the appellant disagrees with the agency’s position on this matter and has
    chosen not to return to the workplace fails to support a finding that the agency is
    not in compliance with the administrative judge’s interim relief order, and we
    therefore decline to dismiss the agency’s petition for review on that basis.
    The agency did not violate the appellant’s right to due process.
    The administrative judge reversed the appellant’s removal, finding that the
    agency violated the appellant’s right to due process because the deciding official
    based his decision on the appellant’s absences from October 23, 2007, through
    January 9, 2009, the date the decision letter was issued, despite the fact the
    charge only referenced the appellant’s absences from March 5, 2008, through
    October 3, 2008. ID at 14-15. Specifically, the administrative judge found that
    the deciding official referred several times in the decision letter to having
    considered the appellant’s absences from October 22, 2007, and continuing, and
    that his hearing testimony was essentially in accord, until he began to “catch on”
    to the “problem,” whereupon he then stated that he only considered the
    appellant’s excessive absences as set forth in the specifications under the charge.
    ID at 15; I-4 AF, Tab 43 at 43-49; Hearing Transcript (HT) at 51, 68-69
    (testimony of the deciding official).    In suggesting that the deciding official
    thereby considered new and material evidence, and that such consideration
    constituted a violation of the appellant’s due process rights, the administrative
    judge relied upon Stone v. Federal Deposit Insurance Corporation, 
    179 F.3d 1368
    (Fed. Cir. 1999). ID at 14. The agency argues on review that Stone does not
    support reversing the appellant’s removal. PFR File, Tab 1 at 9-10. We agree.
    In Stone, the court held that the introduction of new and material
    information by means of ex parte communications to the deciding official
    undermines the public employee’s constitutional due process guarantee of notice
    and the opportunity to respond, and that procedural due process guarantees are
    not met if the employee has notice only of certain charges or portions of the
    6
    evidence and the deciding official considers new and material information. 3
    Stone, 
    179 F.3d at 1376
    . Here, although the administrative judge found that the
    deciding official based his decision on absences that occurred both before and
    after those identified in the specifications, ID at 14, we find that the deciding
    official found “all specifications contained in the October 15, 2008 Letter of
    Proposed Removal [] sustained.” 4 I-4 AF, Tab 43 at 48 (emphasis removed). To
    the extent that the deciding official described all of the appellant’s absences,
    those the administrative judge referred to as an ex parte communication were also
    clearly referenced in the proposal notice in describing the appellant’s continuous
    absence. Id. at 63-64.
    Moreover, even if the absences that occurred both before and after those
    described in the proposal notice were considered an ex parte communication, not
    every ex parte communication is a procedural defect so substantial and so likely
    to cause prejudice that it undermines the due process guarantee and entitles the
    claimant to an entirely new administrative proceeding, and only ex parte
    communications that introduce new and material information to the deciding
    official will violate the due process guarantee of notice.           Stone, 
    179 F.3d at 1376-77
    .    Among the factors deemed useful for the Board to weigh in
    considering whether new and material information has been introduced by means
    3
    Ex parte communications have been broadly construed to include information known
    by the deciding official. Stone, 
    179 F.3d at 1376
    . The real focus of Stone and its
    progeny is the consideration of information of which the appellant was not afforded
    notice and an opportunity to respond and is grounded in the Supreme Court’s decision
    in Cleveland Board of Education v. Loudermill, 
    470 U.S. 532
     (1985), which extended
    the Fifth Amendment Due Process Clause to an individual’s loss of Government
    employment.
    4
    We have reviewed the deciding official’s hearing testimony, particularly that
    described by the administrative judge as his “catching on” to “the problem.” ID at 15.
    Contrary to the administrative judge’s findings, we find that, after his memory was
    refreshed by his examination of the decision letter, which was drafted approximately
    9 years before the Board hearing, the deciding official testified that he considered as
    excessive absences those set forth under the specifications in the notice of proposed
    removal. HT at 67-69 (testimony of the deciding official).
    7
    of ex parte contacts are whether the ex parte communication introduces
    cumulative information or new information; whether the employee knew of the
    error and had a chance to respond to it; and whether the ex parte communication
    was of the type likely to result in undue pressure upon the deciding official to
    rule in a particular manner. Stone, 
    179 F.3d at 1377
    .
    Although the administrative judge cited Stone, ID at 14, she did not address
    the Stone factors.   We do so now.       First, in the decision letter, the deciding
    official described the appellant’s absences from the time they began in 2007,
    prior to considering the absences charged in the proposal notice, I-4 AF, Tab 43
    at 43, as did the proposal notice itself, id. at 63, and therefore that information
    cannot be considered “new.”       Moreover, the appellant addressed her absences
    beginning in 2007 in her reply to the proposal notice. Id. at 52-53. While the
    deciding official briefly noted in the decision letter that the appellant had not
    returned to work “to date,” that is, to the date the decision letter was issued, id.
    at 63, such that the appellant did not have an opportunity to address those
    absences, there is no suggestion that the deciding official’s description of any of
    the appellant’s absences either before or after the significant 7-month period of
    absences set forth in the proposal notice’s specifications was likely to result in
    undue pressure upon him to rule in a particular manner.          Weighing the Stone
    factors, we find that the information alleged to be an ex parte communication was
    not “so likely to cause prejudice that no employee can fairly be required to be
    subjected to a deprivation of property under such circumstances.”               Stone,
    
    179 F.3d at 1377
    .     We therefore find that the agency did not violate the
    appellant’s due process rights and that the removal cannot be reversed on that
    basis. 5
    5
    Although we have found that there was no due process violation, we must determine
    whether the deciding official’s consideration of the information at issue may have
    constituted harmful procedural error. We find that the appellant has not shown that any
    such error was likely to have caused the agency to have reached a different conclusion
    about the removal action, given the extent of her absences. See Mathis v. Department
    of State, 
    122 M.S.P.R. 507
    , ¶ 16 n.4 (2015); Tom v. Department of the Interior,
    8
    The agency has proven its charge of excessive absences.
    As a general rule, an agency may not take an adverse action based on an
    employee’s use of approved leave.       Coombs v. Social Security Administration,
    
    91 M.S.P.R. 148
    , ¶ 12 (2002). However, an exception exists when the following
    criteria are met: (1) the employee was absent for compelling reasons beyond his
    control so that agency approval or disapproval of leave was immaterial because
    he could not be on the job; (2) the absences continued beyond a reasonable time,
    and the agency warned the employee that an adverse action could be taken unless
    he became available for duty on a regular, full-time or part -time basis; and (3) the
    agency showed that the position needed to be filled by an employee available for
    duty on a regular, full-time or part-time basis. Cook v. Department of the Army,
    
    18 M.S.P.R. 610
    , 611-12 (1984). This exception is applicable only under unusual
    circumstances, such as when the employee is unable to return to duty because of
    the continuing effects of illness or injury. 
    Id.
    For the reasons explained in the initial decision, we agree with the
    administrative judge that the first criterion is met. ID at 10; I-6 AF, Tab 53. As
    to the second criterion, we observe that the agency did not warn the appellant
    until on or about August 6, 2008, that she could be removed for excessive
    approved absences unless she returned to duty by August 18, 2008.           I-4 AF,
    Tab 43 at 113-14. The Board has held that absences that predate the warning
    required under Cook cannot be used to support an excessive absence charge.
    Williams v. Department of Commerce, 
    2024 MSPB 8
    , ¶¶ 6-8. In light of this
    holding, and given the nature of the agency’s return-to-work letter, we find that
    specifications 1 through 12 of the charge cannot be sustained. I-4 AF, Tab 43
    at 64-65.   Nevertheless, specifications 13 through 16 cover the period from
    August 18, 2008, onward and encompass 280 hours of approved LWOP.                 
    Id. at 65-66
    . We agree with the administrative judge that these specifications are
    sustained, ID at 10, and we find that the appellant’s complete absence from work
    
    97 M.S.P.R. 395
    , ¶ 43 (2004).
    9
    during these 7 consecutive weeks continued beyond a reasonable time, see Curtis
    v. U.S. Postal Service, 
    111 M.S.P.R. 626
    , ¶¶ 2, 10 (2009) (sustaining a charge of
    excessive absence based on 77 days of LWOP over a 4-month period), overruled
    on other grounds by McCauley v. Department of the Interior, 
    116 M.S.P.R. 484
    (2011); Gartner v. Department of the Army, 
    104 M.S.P.R. 463
    , ¶¶ 10-11 (2007)
    (sustaining a charge of excessive absence based on 333.5 hours of absence over a
    6-month period). We also agree with the administrative judge that the third Cook
    criterion is satisfied because there were insufficient staff in the appellant’s unit to
    cover the workload in her absence.       ID at 10; HT at 15-16 (testimony of the
    deciding official), 73, 115 (testimony of the appellant’s supervisor). Therefore,
    even excluding the 944 hours of absence covered in specifications 1 through 12,
    we find that the Cook exception applies.
    In her cross petition for review, the appellant argues that some of the hours
    of approved leave cited in the proposal notice were covered under the Family and
    Medical Leave Act of 1993 (FMLA) and therefore the charge cannot be sustained.
    PFR File, Tab 10 at 8. However, we find that the administrative judge handled
    this issue correctly by excluding the FMLA-protected leave from her analysis. ID
    at 10; I-4 AF, Tab 44 at 7. Although FMLA-protected leave cannot be used to
    support a charge of excessive absence, McCauley, 
    116 M.S.P.R. 484
    , ¶ 11, an
    agency’s inclusion of such leave in its charge does not require automatic reversal.
    The remedy in this situation is for the Board to exclude the FMLA-covered leave
    from its tabulation of the total absences at issue. See Hamilton v. U.S. Postal
    Service, 
    84 M.S.P.R. 635
    , ¶¶ 16-17 (1999). Because all of the claimed FMLA-
    protected leave falls within the 944 hours already excluded above, the appellant’s
    argument provides insufficient basis to disturb the initial decision.
    The appellant also argues that, by removing her “during the statutory
    one-year period,” the agency effectively deprived her of her right to restoration.
    PFR File, Tab 10 at 9.      The appellant’s argument pertains to the removal of
    10
    compensably injured employees and does not apply to the instant appeal, in which
    no compensable injury is involved.
    The appellant also argues that, in removing her based on the charge of
    excessive absences, the agency should not have considered the medical
    documents she submitted to the administrative judge, who placed them under seal.
    I-6 AF, Tab 53.   She argues that the agency’s doing so was in violation of a
    protective order issued by the district court.    PFR File, Tab 10 at 13-15.
    Although the appellant did not serve these documents on the agency at the time
    she submitted them to the administrative judge, she provided some of the
    documents to the agency during the period from 2007-2008 and acknowledges
    that they were subsequently returned to her in connection with her district court
    litigation. I-6 AF, Tab 53 at 1. To the extent the appellant is alleging that the
    agency violated the Privacy Act in considering these documents, the Board does
    not have jurisdiction to adjudicate Privacy Act claims, Calhoon v. Department of
    the Treasury, 
    90 M.S.P.R. 375
    , ¶ 15 (2001), and in any event, the appellant has
    fully litigated her Privacy Act claims through the courts, Patrick v. Federal
    Deposit   Insurance   Corporation,   MSPB    Docket   No. NY-0752-12-0130-I-5,
    Appeal File, Tab 32 at 4-11; I-4 AF, Tab 4, Tab 11 at 9.      In addition, citing
    5 C.F.R. part 339, regarding Medical Qualification Requirements, the appellant
    argues that the agency’s Occupational Medicine Consultant was not authorized to
    consider her medical documents because her position does not have medical
    standards. PFR File, Tab 10 at 19. However, part 339 does not preclude an
    agency from asking for and considering medical documentation in support of an
    employee’s request for LWOP based on the assertion that she is unable to perform
    her duties.    
    5 C.F.R. § 339.303
    .     The appellant further argues that the
    administrative judge omitted consideration of what she describes as certain
    “material facts” regarding these matters. PFR File, Tab 10 at 16. However, an
    administrative judge’s failure to mention all of the evidence of record does not
    mean that she did not consider it in reaching her decision.          Marques v.
    11
    Department of Health and Human Services, 
    22 M.S.P.R. 129
    , 132 (1984), aff’d,
    
    776 F.2d 1062
     (Fed. Cir. 1985) (Table).
    For the reasons discussed above, the charge of excessive absence is
    sustained.
    The appellant has not proven her whistleblower defense or her defense of
    retaliation for grievance activity.
    In an adverse action appeal such as this, an appellant’s claim of
    whistleblower retaliation is treated as an affirmative defense. As applicable here,
    to prove such a claim, an appellant must show by preponderant evidence that she
    engaged in whistleblowing activity by making a protected disclosure under
    
    5 U.S.C. § 2320
    (b)(8) that was a contributing factor in the agency’s personnel
    action.   Shannon v. Department of Veterans Affairs, 
    121 M.S.P.R. 221
    , ¶ 21
    (2014).
    In this case, the administrative judge found that the appellant made
    disclosures protected under 
    5 U.S.C. § 2302
    (b)(8). ID at 12. Specifically, the
    administrative judge found that, in 2004 and 2005, the appellant complained to
    her supervisor and a manager about changes that were made to the reports of bank
    examinations that she prepared. She further found that, because the appellant was
    not consulted about the changes and the information she deemed critical was
    deleted from some reports, the appellant reasonably believed that her supervisor
    and the manager had abused their authority. Id.; see 
    5 U.S.C. § 2302
    (b)(8)(A);
    Chavez v. Department of Veterans Affairs, 
    120 M.S.P.R. 285
    , ¶ 18 (2013). We
    agree that these disclosures were protected.
    Nevertheless, the administrative judge found that these disclosures were
    not a contributing factor in the appellant’s removal.    ID at 12-14.    The most
    common way of proving contributing factor is the knowledge/timing test of
    
    5 U.S.C. § 1221
    (e), under which contributing factor may be inferred based on the
    responsible agency officials’ knowledge of the disclosures and the temporal
    proximity between the disclosures and the action under appeal.       In her initial
    12
    decision, the administrative judge found, and the appellant did not dispute, that
    the deciding official lacked actual knowledge of the disclosures. ID at 12-13; HT
    at 14, 27-29 (testimony of the deciding official). On review, the appellant argues
    that the deciding official “should have exercised proper due diligence and
    reasonable care to gain knowledge.” PFR File, Tab 10 at 24. However, even if
    the appellant is correct, we find that this is insufficient to impute knowledge of
    the disclosures to the deciding official. Nor does there appear to be any evidence
    that any other official who influenced the removal had knowledge of the
    appellant’s disclosures.   We therefore find that the knowledge portion of the
    knowledge/timing test is not satisfied. See Pridgen v. Office of Management and
    Budget, 
    2022 MSPB 31
    , ¶ 64.
    Furthermore, even if the knowledge portion of the knowledge/timing test
    had been satisfied, the timing portion was not.       As the administrative judge
    correctly noted, the appellant’s disclosures predated the proposed removal by 3 or
    more years.    ID at 12-13.   This gap in time is too great to satisfy the timing
    portion of the knowledge/timing test.    See Salinas v. Department of the Army,
    
    94 M.S.P.R. 54
    , ¶ 10 (2003) (holding that a gap of more than 2 years between the
    appellant’s disclosure and the challenged personnel action was too great to satisfy
    the timing portion of the knowledge/timing test). On review, the appellant argues
    that, under the statute, a disclosure will be considered protected regardless of the
    amount of time that has elapsed since the disclosure. PFR File, Tab 10 at 25.
    Although this is true, see 
    5 U.S.C. § 2302
    (f)(1)(G), the question is not whether
    the appellant’s disclosures were protected, but whether they were a contributing
    factor in the appellant’s removal. For the reasons explained above, we find that
    the appellant has not established contributing factor under the knowledge/timing
    test.
    If an appellant has failed to satisfy the knowledge/timing test, the Board
    will consider other evidence of contributing factor, such as evidence pertaining to
    the strength or weakness of the agency’s reasons for taking the personnel action,
    13
    whether the whistleblowing was personally directed at the proposing or deciding
    officials, and whether these individuals had a desire or motive to retaliate against
    the appellant. Dorney v. Department of the Army, 
    117 M.S.P.R. 480
    , ¶ 15 (2012).
    Here, the evidence shows that, in light of the appellant’s lengthy absence with no
    foreseeable end, the agency had strong reasons in support of its removal action.
    In addition, the disclosures in 2004 and 2005 were not directed at either the
    proposing or deciding officials. The evidence further shows that the deciding
    official did not know the appellant, HT at 14 (testimony of the deciding official),
    and the proposing official was far removed from her organizationally.               The
    appellant has not alleged that either had a motive or desire to retaliate against her.
    We therefore agree with the administrative judge that the appellant failed to prove
    that her disclosures were a contributing factor in her removal. 6
    The appellant also argues on review that the eight grievances she filed or
    attempted to file were also protected disclosures under the Whistleblower
    Protection Enhancements Act of 2012 (WPEA). 7              PFR File, Tab 10 at 26.
    According to her, these disclosures generally described wrongdoing by the
    agency, including interfering in the way she performed her job duties, unfairly
    criticizing her work in performance evaluations, and denying her telework.
    I-6 AF, Tab 27 at 16-19.       Although the administrative judge noted that the
    appellant filed grievances in 2005 and 2006, and also filed suit against the
    agency, ID at 5, the administrative judge did not specifically consider these
    6
    Because we have found that the appellant failed to prove that her disclosures were a
    contributing factor in her removal, we do not reach the issue of whether the agency
    proved by clear and convincing evidence that it would have removed her absent her
    disclosures. See Clarke v. Department of Veterans Affairs, 
    121 M.S.P.R. 154
    , ¶ 19 n.10
    (2014), aff’d per curiam, 
    623 F. App’x 1016
     (Fed. Cir. 2015).
    7
    According to the appellant, she “attempted to file” certain of these grievances, but
    either the union steward would not sign the paperwork or the agency refused to hear the
    matter. The appellant did not enter any of the grievances into the record, insisting that
    doing so would violate the court’s protective order, IAF, Tab 8 at 7, and the
    administrative judge did not disagree. The appellant did, however, describe each of the
    grievances. I-6 AF, Tab 27 at 16-19.
    14
    filings in the discussion of the appellant’s whistleblower retaliation claim. The
    agency argues that any such consideration is precluded under the WPEA because
    the appellant filed her grievances in 2005 and 2006 and was removed in January
    2009, nearly 4 years before the December 12, 2012 effective date of the
    legislation enacting the WPEA. 8 PFR File, Tab 15 at 10. Even if the WPEA does
    not apply, however, the appellant’s claim of retaliation for her having filed
    grievances remains viable because, prior to the enactment of the WPEA, 
    5 U.S.C. § 2302
    (b)(9) made it a prohibited personnel practice to retaliate against an
    employee or applicant for employment “because of the exercise of any appeal,
    complaint, or grievance right granted by any law, rule, or regulation.” Wheeler v.
    Department of Veterans Affairs, 
    88 M.S.P.R. 236
    , ¶ 9 (2001).
    For an appellant to establish such a claim of retaliation, she must show
    that:   (1) she engaged in the activity; (2) the accused official knew of such
    activity; (3) the adverse action under review could, under the circumstances, have
    been retaliation; and (4) there was a genuine nexus between the alleged retaliation
    and the adverse employment action. Warren v. Department of the Army, 
    804 F.2d 654
    , 656-58 (Fed. Cir. 1986). When, as here, the record is complete, the Board
    will not inquire as to whether the action under review “could have been”
    retaliatory, but will proceed to the ultimate question, which is whether, upon
    weighing the evidence presented by both parties, the appellant has met her overall
    burden of proving by preponderant evidence that the action under appeal was
    retaliatory. See Simien v. U.S. Postal Service, 
    99 M.S.P.R. 237
    , ¶ 28 (2005).
    8
    Citing the Board’s decision in Day v. Department of Homeland Security, 
    119 M.S.P.R. 589
     (2013), the appellant argues that the WPEA was retroactive. PFR File, Tab 10
    at 29. In Day, the Board found an exception to the broadly applicable presumption that
    statutes are not retroactive, explaining that certain provisions of the WPEA were
    retroactive because they specifically sought to clarify then-existing interpretations of
    the statutory scheme and not create new rights and liabilities. Landgraf v. USI Film
    Products, 
    511 U.S. 244
    , 265-66 (1994); Day, 
    119 M.S.P.R. 589
    , ¶¶ 10-26. The
    statutory provisions identified in Day are not at issue in this appeal. Furthermore, the
    appellant has not identified another basis for finding the WPEA applicable to an appeal
    in which the protected disclosures, the personnel action, and even the filing of the
    appeal all pre-dated the passage of the statute.
    15
    The administrative judge found that the manager who was the subject of the
    appellant’s disclosures retired more than 1 year before the appellant’s removal
    was recommended and that, while her supervisor who was also named knew that
    the appellant had filed grievances, he testified that he did not know what was
    stated in them and did not know, when he recommended her removal, that she had
    filed suit against the agency.     ID at 12-13; HT at 7, 92 (testimony of the
    appellant’s supervisor). In addition, as noted, the deciding official testified that
    he had no knowledge of the appellant’s disclosures, including her grievances,
    apart from what she said in her response to the notice of proposed removal. HT
    at 27-29 (testimony of the deciding official).
    To establish a genuine nexus between the protected activity and the adverse
    action, the appellant must prove that the action was taken because of the
    protected activity. Williams v. Social Security Administration , 
    101 M.S.P.R. 587
    ,
    ¶ 12 (2006). This requires the Board to weigh the intensity of the motivation to
    retaliate against the gravity of the misconduct, 
    id.,
     considering the gravity of the
    misconduct as it appeared to the deciding official at the time he took the adverse
    action, Otterstedt v. U.S. Postal Service, 
    96 M.S.P.R. 688
    , ¶ 23 (2004).        The
    deciding official testified that he considered the appropriate factors in
    determining to uphold the appellant’s proposed removal, notably, that she had
    taken excessive leave with no prospect of returning, no lesser penalty seemed
    feasible, the position needed to be filled, and the appellant’s allegation of
    retaliation had no impact on his decision. HT at 31-32 (testimony of the deciding
    official). Although we find that the appellant engaged in protected activity by
    filing grievances, there was little or no motivation to retaliate against her on the
    part of the deciding official, given his lack of knowledge, and that the agency had
    legitimate reasons for effecting the non-disciplinary removal. We therefore find
    that the appellant failed to show that the agency retaliated against her for filing
    grievances.
    16
    The agency has established that there is a nexus between the sustained charge and
    the efficiency of the service and that removal is a reasonable penalty. 9
    Disciplinary action is warranted based on a sustained charge of excessive
    absence. The Board has held that a prolonged absence with no foreseeable end
    can provide just cause for removal because it constitutes a burden that no
    employer can efficiently endure and it therefore establishes a nexus to the
    efficiency of the service. Campbell v. U.S. Postal Service, 
    94 M.S.P.R. 646
    , ¶ 17
    (2003).
    Regarding the penalty, when, as here, the agency’s charge is sustained, the
    Board will review the agency-imposed penalty to determine if the agency
    considered all of the relevant factors and exercised management discretion within
    the tolerable limits of reasonableness. Singletary v. Department of the Air Force,
    
    94 M.S.P.R. 553
    , ¶ 9 (2003), aff’d, 
    104 F. App’x 155
     (Fed. Cir. 2004). In making
    this determination, the Board must give due weight to the agency’s primary
    discretion in maintaining employee discipline and efficiency.             Douglas v.
    Veterans Administration, 
    5 M.S.P.R. 280
    , 306 (1981).
    In his decision letter, the deciding official stated that he considered that the
    appellant’s prolonged absence for which there was no foreseeable end detracted
    from the efficiency of the agency’s examination program, and that her position
    needed to be filled; that her supervisors had lost confidence in her dependability
    and reliability in the performance of her duties; that the removal decision was
    consistent with actions taken by the agency against other similarly situated
    employees; that the appellant was on clear notice that her excessive absences had
    caused an undue hardship on the operation of the field office; and that there was
    little potential for her rehabilitation. I-4 AF, Tab 43 at 45-48. The deciding
    official also considered that the appellant had no prior disciplinary record; that
    she had more than 10 years of Federal service and more than 7 years of service
    with the agency, during which time she progressed from Grade 7 to Grade 12; and
    9
    These are issues that the administrative judge did not address. However, we find that
    the record is sufficiently developed for the Board to address them on review.
    17
    that her annual performance ratings for the last 3 years were “Meets
    Expectations.” 
    Id. at 46
    . Notwithstanding, the deciding official stated that there
    was no other appropriate action than removal. 
    Id. at 48
    . His hearing testimony
    was in accord. HT at 24, 31 (testimony of the deciding official).
    Based on the deciding official’s consideration of the appropriate Douglas
    factors, both aggravating and mitigating, we find that the agency’s determination
    does not exceed the bounds of reasonableness and that its removal penalty must
    be accorded deference. See Beard v. General Services Administration, 
    801 F.2d 1318
    , 1322 (Fed. Cir. 1986).
    NOTICE OF APPEAL RIGHTS 10
    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
    10
    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.
    18
    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:
    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
    19
    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
    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
    20
    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
    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. 11 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
    11
    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.
    21
    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.
    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.
    

Document Info

Docket Number: NY-0752-12-0130-I-6

Filed Date: 4/29/2024

Precedential Status: Non-Precedential

Modified Date: 4/30/2024