Holly Quasney v. Department of the Navy ( 2024 )

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
HOLLY QUASNEY, DOCKET NUMBER
Appellant, PH-0752-18-0163-I-1
v.
DEPARTMENT OF THE NAVY, DATE: July 10, 2024
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Tyler Sroufe , Esquire, Dallas, Texas, for the appellant.
Andrew Linenberg , Esquire, Washington, D.C., for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
Henry J. Kerner, Member*
*Member Kerner did not participate in the adjudication of this appeal.
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
affirmed her removal. 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
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
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 agency established nexus between the appellant’s proven misconduct
and the efficiency of the service and to clarify the appellant’s burden for proving
her affirmative defenses of sex and disability discrimination, we AFFIRM the
initial decision.
BACKGROUND
The agency removed the appellant from her GS-12 Supervisory
Management Analyst position based on a charge of lack of candor after she
submitted two pieces of fraudulent medical documentation in support of a request
for extended sick leave. Initial Appeal File (IAF), Tab 11 at 18-36. The
appellant appealed her removal to the Board. IAF, Tab 1. In an initial decision
issued based on the written record because the appellant withdrew her request for
a hearing, id. at 2; IAF, Tab 23 at 4, the administrative judge found that the
agency proved its charge by preponderant evidence, the appellant failed to prove
her affirmative defenses of sex and disparate treatment disability discrimination,
and the penalty of removal was reasonable, IAF, Tab 37, Initial Decision (ID)
at 23-40.
3
The appellant has filed a petition for review of the initial decision. Petition
for Review (PFR) File, Tab 1. The agency has responded in opposition to the
petition for review. 2 PFR File, Tab 9.
DISCUSSION OF ARGUMENTS ON REVIEW
The agency proved its charge of lack of candor by preponderant evidence.
The appellant contends on review that the administrative judge erred in
sustaining the charge. The administrative judge thoroughly considered the
appellant’s various, and sometimes contradictory, explanations behind the
submission of the two documents in question and determined that they were “so
implausible and lacking in credibility as to border on being a lack of candor to the
Board.” ID at 25-31. We find that, contrary to the appellant’s allegations on
review, the administrative judge properly considered the Hillen factors. 3
Furthermore, the administrative judge’s thorough analysis in the initial decision
reflects that he applied the correct legal standard, considered the evidence as a
whole, drew appropriate inferences, and made reasoned conclusions; we discern
no reason to reweigh the evidence or substitute the Board’s own judgment on
credibility issues. See Broughton v. Department of Health and Human Services ,
33 M.S.P.R. 357, 359 (1987). Thus, the administrative judge properly found that
the agency proved its lack of candor charge. See Hoofman v. Department of the
Army, 118 M.S.P.R. 532, ¶¶ 13-15 (2012) (finding that the appellant lacked
candor when he failed to explain the circumstances surrounding his request for
10 days of leave and attempted to conceal his wrongdoing), aff’d, 526 F. App’x
982 (Fed. Cir. 2013).
2
The agency’s response to the petition for review was untimely filed by 6 hours. Upon
consideration of the agency’s explanation of the circumstances surrounding its untimely
filing, PFR File, Tab 11, we find good cause for the minimal delay, see 5 C.F.R.
§ 1201.114(g).
3
See Hillen v. Department of the Army, 35 M.S.P.R. 453, 458 (1987).
4
The agency established nexus.
In addition to proving its charge by preponderant evidence, the agency
must prove that there is a nexus between the appellant’s misconduct and the
efficiency of the service. The administrative judge did not address nexus, but this
error does not warrant reversal of the initial decision. There is a sufficient nexus
between an employee’s misconduct and the efficiency of the service when the
misconduct occurred in part at work. Parker v. U.S. Postal Service, 819 F.2d
1113, 1116 (Fed. Cir. 1987). Also, an employee’s lack of candor strikes at the
heart of the employer-employee relationship and directly impacts the efficiency
of the service. Ludlum v. Department of Justice, 87 M.S.P.R. 56, ¶ 28 (2000),
aff’d, 278 F.3d 1280 (Fed. Cir. 2002). We find that the agency has proven nexus.
The appellant failed to establish her affirmative defenses of sex and disability
discrimination.
On review, the appellant challenges the administrative judge’s assessment
of her affirmative defenses of sex and disability discrimination. 4 PFR File, Tab 4
at 20-24. She asserts that her supervisor, who was the proposing official, made
disparaging comments about female employees and the appellant’s disability. Id.
at 21-22. She also asserts that she was treated differently than male and
non-disabled employees who were only required to produce rudimentary medical
documentation to obtain advanced sick leave and leave donations. Id. at 22-23.
She claims that the agency’s actions were mere pretext for discrimination because
the agency began investigating her medical documentation after it became aware
4
In discussing her affirmative defenses, the appellant states that an agency decision will
not be sustained if she shows harmful procedural error in the application of the agency’s
procedures, but she offers no evidence or argument for such a claim. PFR File, Tab 4
at 20. Moreover, the appellant did not preserve this issue below. IAF, Tab 24 at 3.
The Board will generally not consider an argument raised for the first time in a petition
for review absent a showing that it is based on new and material evidence not
previously available despite the party’s due diligence. Banks v. Department of the Air
Force, 4 M.S.P.R. 268, 271 (1980). The appellant has not made this showing, and we
do not consider this claim on review.
5
that she was planning to pursue an equal employment opportunity (EEO)
complaint. Id. at 23-24.
To prove an affirmative defense of discrimination or retaliation under
42 U.S.C. § 2000e-16, or discrimination on the basis of disability under the
Rehabilitation Act, an appellant must prove that discrimination or retaliation was
at least a motivating factor in the agency’s action. Pridgen v. Office of
Management and Budget, 2022 MSPB 31, ¶¶ 21-25, 40. An appellant may prove
discrimination by various methods, and no one method is the exclusive path to a
finding of liability. Id., ¶ 23. Those methods may include: (1) direct evidence; 5
(2) circumstantial evidence, which may include (a) evidence of “suspicious
timing, ambiguous statements oral or written, behavior toward or comments
directed at other employees in the protected group, and other bits and pieces from
which an inference of discriminatory intent might be drawn,” also known as a
“convincing mosaic”; (b) comparator evidence, consisting of “evidence, whether
or not rigorously statistical, that employees similarly situated to the plaintiff
other than in the characteristic . . . on which an employer is forbidden to base a
difference in treatment received systematically better treatment”; (c) evidence
that the agency’s stated reason for its action is “unworthy of belief, a mere
pretext for discrimination” (i.e., the burden-shifting standard under McDonnell
Douglas Corp. v. Green, 411 U.S. 792, 802-04 (1973)); and (3) some combination
of direct and indirect evidence. Id., ¶ 24.
The administrative judge found that the appellant did not present direct or
circumstantial evidence that she was subjected to disparate treatment based on her
sex and disability; thus, she failed to prove that her sex or disability was a
motivating factor in the agency’s decision to remove her. ID at 35-40.
In so finding, the administrative judge stated that the appellant did not identify
any comparator employees who were not removed for engaging in the same or
5
Direct evidence may be any statement by an employer that reflects directly the alleged
discriminatory attitude and bears directly on the contested employment discrimination.
Doe v. Pension Benefit Guaranty Corporation, 117 M.S.P.R. 579, ¶ 40 (2012).
6
similar misconduct, and the evidence that she provided to create an inference of
discriminatory intent on the part of her supervisor was too speculative or was
contradicted by the record. ID at 35-36. The administrative judge noted that the
appellant raised allegations that male and non-disabled employees received
preferential treatment for sick leave usage, but he found speculative her belief
about the nature of the potential comparators’ conditions, and she failed to
identify any male or non-disabled employees who used rudimentary
documentation to obtain advanced sick leave and/or leave donations during her
last year of employment. ID at 36-37. He further observed that, by her own
admission, the appellant’s supervisor was lenient with respect to the medical
documentation that she needed to provide for sick leave usage until
December 2016, when the agency began imposing more stringent requirements on
its employees in response to a complaint, and that he continued to approve her
requests for sick leave despite her refusal to comply with his instructions to
provide the requested documentation for several months afterwards. ID at 37-39.
We discern no error with the administrative judge’s analysis of her claims or his
finding that the appellant failed to prove her affirmative defenses of sex and
disability discrimination.
The penalty of removal was reasonable.
Finally, the appellant argues on review that the penalty of removal is
excessive. PFR File, Tab 4 at 13-20. Because the agency’s single charge is
sustained, the Board will review the agency-imposed penalty only to determine if
the agency considered all the relevant factors and exercised management
discretion within the tolerable limits of reasonableness. See Ellis v. Department
of Defense, 114 M.S.P.R. 407, ¶ 11 (2010); see also Douglas v. Veterans
Administration, 5 M.S.P.R. 280, 305-06 (1981) (articulating a nonexhaustive list
of 12 factors that are relevant in assessing the appropriate penalty for an act of
misconduct).
7
The administrative judge properly found that the deciding official
“thoroughly and carefully” considered the relevant Douglas factors in making his
decision to remove the appellant. ID at 32-33. The record reflects that the
deciding official gave specific attention to the seriousness of the appellant’s
misconduct, the supervisory position that she held, and management’s loss of
trust and confidence in her ability to perform her assigned duties following her
misconduct. IAF, Tab 11 at 21-23. He also considered the relevant mitigating
factors, such as the appellant’s 25 ½ years of satisfactory Government service,
consistently acceptable performance ratings, and the fact that her medical issues
caused her stress and anxiety. Id. at 22.
The appellant alleges on review that the deciding official gave insufficient
weight to her potential for rehabilitation. PFR File, Tab 4 at 17-18. The deciding
official noted, however, that the appellant’s attempts to rationalize or minimize
her misconduct, coupled with her history of resistance to submitting medical
documentation, cast doubt on her potential for rehabilitation. IAF, Tab 11
at 21-22. The appellant’s failure to recognize that her actions were improper and
to take responsibility for her proven misconduct weighs against a finding of
rehabilitative potential. See Render v. Department of Veterans Affairs,
90 M.S.P.R. 441, 447 (2001). In addition, the appellant only expressed remorse
for her actions after her misconduct was discovered, which further diminishes its
value. See Saiz v. Department of the Navy, 122 M.S.P.R. 521, ¶ 13 (2015).
The appellant further asserts that her efforts to seek treatment for her
medical conditions indicate a potential for rehabilitation. PFR File, Tab 4
at 17-18 (citing Vitanza v. U.S. Postal Service, 89 M.S.P.R. 319 (2001)). The
Board has held that evidence that an employee’s medical condition or mental
impairment played a part in the charged conduct is ordinarily entitled to
considerable weight as a mitigating factor. Malloy v. U.S. Postal Service,
578 F.3d 1351, 1357 (Fed. Cir. 2009); Roseman v. Department of the Treasury,
76 M.S.P.R. 334, 345 (1997). We have considered the evidence surrounding the
8
appellant’s conditions, but we find that it does not outweigh other relevant
factors, such as the nature and seriousness of the misconduct. Importantly, the
appellant does not explain or provide any evidence as to how her medical
conditions, IAF, Tab 29 at 30, 50, played a role in the misconduct. Moreover, the
appellant does not indicate how her efforts to seek treatment support finding a
potential for rehabilitation. See, e.g., Mingledough v. Department of Veterans
Affairs, 88 M.S.P.R. 452, ¶ 12 (2001) (noting that a medical condition was not a
significant mitigating factor in the absence of evidence that the impairment can
be remedied or controlled, i.e., when the potential for rehabilitation was poor).
Finally, this matter is distinguishable from Vitanza, 89 M.S.P.R. 319, ¶ 6, because
there, the deciding official did not consider the appellant’s medical conditions as
mitigating factors; here, the deciding official considered the appellant’s “anxiety
and stress” resulting from her medical issues as a mitigating factor in his
decision. IAF, Tab 11 at 21-22.
We have considered the appellant’s remaining penalty arguments on
review, but none warrant a different outcome. 6 We agree with the administrative
judge that the deciding official properly considered the relevant Douglas factors
and that the penalty of removal does not exceed the tolerable limits of
reasonableness for the sustained charge of lack of candor. See Jackson v.
Department of the Army, 99 M.S.P.R. 604, ¶¶ 2, 6, 8 (2005) (finding that removal
of supervisory police officers was a reasonable penalty for conspiracy and lack of
candor despite “significant” mitigating factors because, among other things, lack
of candor is a serious offense that strikes at the heart of the employer -employee
relationship); see also Gebhardt v. Department of the Air Force, 99 M.S.P.R. 49,
¶ 21 (2005) (stating that an agency is entitled to hold a supervisory employee to a
higher standard of conduct than a non-supervisory employee because she occupies
6
The appellant’s suggestion on review that a lack of candor charge is insufficient by
itself to warrant removal is without merit. PFR File, Tab 4 at 10-11. The
appropriateness of a penalty in any particular case depends on an analysis of the
Douglas factors, not on the label the agency affixes to its charge.
9
a position of trust and responsibility), aff’d, 180 F. App’x 951 (Fed. Cir. 2006).
Accordingly, the administrative judge properly affirmed the agency’s action.
NOTICE OF APPEAL RIGHTS 7
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).
7
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.
10
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
11
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
12
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. 8 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
8
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.
13
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.