Mitzi Baker v. Social Security Administration ( 2024 )

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
MITZI BAKER, DOCKET NUMBER
Appellant, CH-1221-18-0412-W-1
v.
SOCIAL SECURITY DATE: July 17, 2024
ADMINISTRATION,
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Mitzi Baker , Chicago, Illinois, pro se.
Craig Hundley and Kenneth Bullock , Baltimore, Maryland, for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
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
denied her request for corrective action in her individual right of action (IRA)
appeal. Generally, we grant petitions such as this one only in the following
circumstances: the initial decision contains erroneous findings of material fact;
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
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
supplement the analysis of the contributing factor criterion as to the appellant’s
whistleblower reprisal claim, we AFFIRM the initial decision.
BACKGROUND
The essential undisputed facts as set forth in the initial decision are as
follows. The appellant has been employed as a Case Manager in the agency’s
National Hearing Center in Chicago, Illinois, since 2010. Initial Appeal File
(IAF), Tab 104, Initial Decision (ID) at 2. On April 17, 2017, the appellant filed
a separate IRA appeal with the Board alleging whistleblower reprisal. Id. While
the April 17, 2017 IRA appeal was pending before the Board, on October 27,
2017, the appellant’s first-level supervisor issued the appellant her 2017 annual
performance appraisal in which she gave the appellant an overall rating of
successful contribution and an average element score of four out of five. Id.Regarding the particular performance elements, the appellant received a rating of
three for the elements of interpersonal skills and participation and a rating of five
for the elements of demonstrates job knowledge and achieves business results.
Id.3
The appellant filed a Board appeal alleging that her supervisor’s decision to
issue her a rating of three in the participation element constituted reprisal for her
protected activity of filing the prior Board appeal on April 17, 2017. IAF, Tab 1.
After holding a hearing, the administrative judge issued an initial decision,
denying the appellant’s request for corrective action because she failed to prove
by preponderant evidence that her protected activity of filing a Board appeal was
a contributing factor in her supervisor’s decision to issue her a rating of three for
the participation element. ID at 1, 5. In particular, the administrative judge
credited the testimony of the appellant’s first-level supervisor that she was not
aware of the appellant’s prior Board appeal at the time she prepared or issued the
appellant’s 2017 performance appraisal. ID at 6-7. The administrative judge
further found that the appellant’s first-level supervisor did not have constructive
knowledge of the prior Board appeal. ID at 7.
The appellant has filed a petition for review. Petition for Review (PFR)
File, Tab 1. 2 The agency has opposed the appellant’s petition and the appellant
has filed a reply. PFR File, Tabs 3, 6. 3
2
The appellant has filed a motion for leave to file an additional pleading, namely, an
amicus curiae brief filed by the Office of Special Counsel (OSC) in a separate
appellant’s Board case. Once the record closes on review, however, no additional
evidence or argument will be accepted unless it is new and material as defined in
5 C.F.R. § 1201.115(d), and the party submitting it shows that the evidence or argument
was not readily available before the record closed. 5 C.F.R. § 1201.114(k). To
constitute new evidence, the information contained in the documents, not just the
documents themselves, must have been unavailable, despite due diligence, when the
record closed. 5 C.F.R. § 1201.115(d). Evidence is material when it is of sufficient
weight to warrant a different outcome from that of the initial decision. 5 C.F.R.
§ 1201.115(a)(1). We deny the appellant’s motion because she has not shown that the
underlying information contained in OSC’s brief is new, that she exercised due
diligence to obtain this information, or that it warrants a different outcome in this
appeal.
3
To the extent the appellant raises new allegations of errors by the administrative judge
that were not raised in her petition or addressed by the agency in its response, PFR File,
Tab 6 at 4-6, we have not considered such arguments, see 5 C.F.R. § 1201.114(a)(4)
(stating that a reply to a response to a petition for review is limited to the factual and
legal issues raised by another party in the response to the petition for review; it may not
raise new allegations of error).
4
DISCUSSION OF ARGUMENTS ON REVIEW
We agree with the administrative judge that the appellant did not prove that her
protected activity was a contributing factor in her performance appraisal rating,
but modify her analysis.
To obtain corrective action in an IRA appeal, the appellant must meet her
initial burden of establishing by preponderant evidence that her protected activity
was a contributing factor in the personnel actions in dispute. 5 U.S.C. § 1221(e)
(1); Elder v. Department of the Air Force, 124 M.S.P.R. 12, ¶ 39 (2016). An
appellant’s protected activity is a contributing factor if it in any way affects an
agency’s decision to take, or fail to take, a personnel action. Dorney v.
Department of the Army, 117 M.S.P.R. 480, ¶ 14 (2012). One way an appellant
may establish the contributing factor criterion is the knowledge/timing test, under
which she submits evidence showing that the official taking the personnel action
knew of the disclosure or activity and that the personnel action occurred within a
period of time such that a reasonable person could conclude that the disclosure or
activity was a contributing factor in the personnel action. Pridgen v. Office of
Management and Budget, 2022 MSPB 31, ¶ 63. The Board has held that if an
administrative judge determines that an appellant has failed to satisfy the
knowledge/timing test, she shall consider other evidence, such as evidence
pertaining to the strength or weakness of the agency’s reasons for taking the
personnel action, whether the whistleblowing was personally directed at the
officials taking the action, and whether these individuals had a desire or motive to
retaliate against the appellant. Dorney, 117 M.S.P.R. 480, ¶ 15.
On review, the appellant argues that the administrative judge erred in
finding that she failed to prove that her April 17, 2017 Board appeal was a
contributing factor in her first-level supervisor’s decision to issue her a rating of
three for the participation element of her 2017 annual performance review. 4
4
The appellant also argues that the administrative judge’s finding that she failed to
prove contributing factor is “plainly inconsistent” with her prior finding that the
appellant met the knowledge/timing test. PFR File, Tab 1 at 7. Such an argument,
however, fails to recognize the different burdens of proof at the jurisdictional and
5
PFR File, Tab 1 at 4. In particular, the appellant asserts that the administrative
judge erred by only considering the knowledge/timing test and by failing to
consider evidence of retaliatory motive. Id. at 4-7. We agree and modify the
administrative judge’s analysis to address evidence other than the
knowledge/timing test but still find no reason to disturb the administrative
judge’s finding that the appellant failed to establish that her 2017 Board appeal
was a contributing factor in her performance appraisal rating.
With respect to the knowledge/timing test, the administrative judge
credited the testimony of the appellant’s first-level supervisor that she was not
aware of the appellant’s 2017 Board appeal when she prepared or issued the
appellant’s 2017 performance appraisal on October 27, 2017, and that she first
learned of the Board appeal on November 28, 2017. ID at 6-7. The
administrative judge further found that the appellant’s first-level supervisor did
not have constructive knowledge and her decision to issue a rating of three was
not influenced by anyone who had knowledge of the appellant’s 2017 Board
appeal. ID at 7. In so finding, the administrative judge credited the testimony of
the appellant’s second-level supervisor, who testified in connection with the
appellant’s 2017 Board appeal that he did not become aware of the 2017 Board
appeal until December 2017 or January 2018. Id. The administrative judge
further credited the testimony of the appellant’s first- and second-level
supervisors that the appellant’s second-level supervisor had no input in the
appellant’s 2017 performance appraisal and did not discuss it or see it before it
was issued to the appellant. Id.merits stages. Compare Shope v. Department of the Navy, 106 M.S.P.R. 590, ¶ 5 (2007)
(explaining that an appellant is entitled to a jurisdictional hearing in an IRA appeal only
when he sets forth in the written record a nonfrivolous allegation that the elements of
his claim are satisfied), with Benton-Flores v. Department of Defense, 121 M.S.P.R.
428, ¶¶ 4-5 (2014) (stating that, once the appellant establishes jurisdiction over her IRA
appeal, she is entitled to a hearing on the merits of her claim, which she must prove by
preponderant evidence).
6
The appellant disputes the administrative judge’s findings that her
first-level supervisor had no actual or constructive knowledge of her 2017 Board
appeal. For example, she asserts that the entire “management team” was aware of
her protected activities, including her frequent and extensive equal employment
opportunity activities and that her first-level supervisor received several emails
describing issues the appellant was having at work. PFR File, Tab 1 at 5. She
further maintains that it is improbable that management would have completely
insulated her first-level supervisor from the knowledge of her Board appeal.
Id. at 5-6. Finally, she asserts that it is implausible that her first-level supervisor
would not have become aware of her Board appeal from agency attorneys who she
contends would had to have contacted her supervisor for information supporting
their case. Id. at 7.
The administrative judge, however, considered and rejected the appellant’s
version of events as improbable, noting that the fact that the appellant’s
supervisor was aware of various issues the appellant was having through emails
and comments from the appellant did not suggest that she was aware the appellant
had filed a Board appeal. ID at 5-6. Thus, she credited the testimony of the
appellant’s supervisors that neither was aware of the appellant’s Board appeal at
the time the appellant’s performance appraisal was issued on October 27, 2017.
ID at 7. The Board must defer to an administrative judge’s credibility
determinations when they are based, explicitly or implicitly, on observing the
demeanor of witnesses testifying at a hearing; the Board may overturn such
determinations only when it has “sufficiently sound” reasons for doing so.
Haebe v. Department of Justice, 288 F.3d 1288, 1301 (Fed. Cir. 2002). Here, the
administrative judge’s credibility determinations were based on her observation
and assessment of the agency officials’ demeanor during the hearing. See Purifoy
v. Department of Veterans Affairs, 838 F.3d 1367, 1372-73 (Fed. Cir. 2016)
(stating that, even if demeanor is not explicitly discussed by an administrative
judge, assessing a witness’s credibility involves consideration of various factors,
7
including a witness’s demeanor). Although the appellant disagrees with the
credibility determinations, we find that her challenges are not sufficiently sound
to overturn them.
Next, we consider evidence other than knowledge/timing evidence. It is
undisputed that the appellant’s first-level supervisor, who issued the appellant’s
2017 performance appraisal, was not personally implicated in the appellant’s
2017 Board appeal. Hearing Transcript (HT) at 92-93 (testimony of the
appellant’s first-level supervisor); PFR File, Tab 1 at 5-6. Also, as explained
above, the administrative judge found, based on her assessment of the witnesses’
credibility, that the appellant failed to show that anyone with knowledge of her
2017 Board appeal influenced her first-level supervisor. ID at 6-7; see Baker v.
Social Security Administration, 2022 MSPB 27, ¶ 30 (explaining that an
administrative judge’s demeanor-based credibility findings are virtually
unreviewable on review). As to any desire or motive to retaliate against the
appellant, her first-level supervisor denied during her sworn testimony that the
appellant’s 2017 Board appeal had any effect on her 2017 performance appraisal
ratings. HT at 92-93 (testimony of the appellant’s first-level supervisor). The
appellant did not solicit any testimony, nor is there any evidence of record,
concerning her first-level supervisor’s attitude toward her 2017 Board appeal that
might otherwise refute this testimony. Therefore, we accept her supervisor’s
testimony as proof of her lack of retaliatory motive. See Woodall v. Federal
Energy Regulatory Commission, 30 M.S.P.R. 271, 273 (finding that a declaration
subscribed under penalty of perjury proves the facts it asserts).
We also find that the appellant’s first-level supervisor’s explanation for
determining the appellant’s performance rating is strong. The appellant’s
first-level supervisor testified that the participation element rating she issued was
justified because, among other reasons, many of the duties the appellant
highlighted in her self-assessment were duties she was assigned to perform, and
any unassigned work she did was not performed on a “sustained, consistent basis
8
throughout the appraisal year” to merit a higher rating. HT at 108 (testimony of
the appellant’s first-level supervisor).
Specifically, Case Managers who received ratings of five in the
participation element worked with a judge who processed the “more technical”
Puerto Rico fraud cases, which involved “daily processing” and work on a
“sustained, consistent basis,” which was not otherwise part of the normal
workload of a Case Manager. HT at 120-21, 124-25, 128, 133 (testimony of the
appellant’s first-level supervisor). The appellant’s first-level supervisor testified
that the appellant was not assigned to work with this judge and only did the
“initial work up” on those cases, which the appellant has not presented evidence
to refute. HT at 108 (testimony of the appellant’s first-level supervisor).
Lastly, it is undisputed that the appellant received the exact same ratings in
her 2016 performance appraisal as she did in the appraisal at issue here. HT
at 94-95 (testimony of the appellant’s first-level supervisor); IAF, Tab 82 at 4-6.
That appraisal was issued in October 2016 by a different supervisor, and prior to
the appellant filing her 2017 Board appeal in April 2017, which tends to show
that the 2017 appraisal was consistent with the appellant’s performance
assessments before her protected activity. IAF, Tab 82 at 6. It is also undisputed
that, out of the eight employees under the supervision of the appellant’s
first-level supervisor in 2017, the appellant’s overall rating ranked in the middle,
receiving a higher overall rating than four employees and the same ratings as one,
which also tends to show that her supervisor did not harbor retaliatory motive
towards her. IAF, Tab 82 at 23-42, Tab 83 at 4-9. Thus, we agree with the
administrative judge’s conclusion that the appellant has not shown by
preponderant evidence that her 2017 Board appeal was a contributing factor in her
2017 performance appraisal.
The appellant’s remaining arguments do not provide a basis for reversal.
On review, the appellant asserts that the administrative judge abused her
discretion by failing to transfer the appeal to the Washington Regional Office.
9
PFR File, Tab 1 at 7-8. She maintains that this was the proper venue because,
although she physically works in Chicago, Illinois, agency management is based
out of Falls Church, Virginia. Id. at 8. She also cites, without explanation,
alleged prior abuse of discretion by a different administrative judge in her
2017 Board appeal as a reason for transferring the current appeal. Id. at 7-8.
Under 5 C.F.R. § 1201.4(d), the location of the appellant’s duty station when the
action was taken determines which Board regional office has jurisdiction. Thus,
to the extent the appellant’s duty station was and is in Chicago, Illinois, the
Central Regional Office had jurisdiction over the appeal. See 5 C.F.R. pt. 1201,
app. II. Although the record reflects that the appellant filed motions for recusal
of the administrative judge in this appeal, such motions were based on the
administrative judge’s alleged verbal admonishment of the appellant during status
conferences and general claims of alleged bias, not any claim of bias related to
the administrative judge in the appellant’s prior Board appeal. IAF, Tabs 28, 41.
Regardless, we discern no basis for recusal of the administrative judge in this
appeal based on any alleged bias by a different administrative judge in the
appellant’s prior Board appeal or based on the allegations set forth in the
appellant’s motions concerning the administrative judge in this appeal. Nothing
in the record suggests that the impartiality of the administrative judge in this
appeal might reasonably be questioned. See, e.g., Allphin v. United States,
758 F.3d 1336, 1343-44 (Fed. Cir. 2014) (finding that recusal is required when a
reasonable person knowing all the facts would question the judge’s impartiality);
Department of Health & Human Services v. Jarboe , 2023 MSPB 22, ¶ 12
(explaining that in determining whether an administrative judge should be
disqualified on grounds other than bias, the Board assesses whether his
impartiality might reasonably be questioned) (citations omitted) .
Finally, the appellant reiterates her argument that the hearing recording was
altered to exclude an exchange that she had with the administrative judge. PFR
File, Tab 1 at 8. However, the administrative judge considered such an argument
10
but found that the portion alleged to have been missing from the record was an
admonishment the administrative judge made off the record in an effort not to
embarrass the appellant, who was proceeding pro se. ID at 9-10. We find that
the administrative judge did not abuse her discretion. See, e.g., Tisdell v.
Department of the Air Force, 94 M.S.P.R. 44, ¶ 13 (2003) (noting that an
administrative judge has wide discretion to regulate the course of the hearing);
5 C.F.R. § 1201.41(b)(6).
Accordingly, we affirm the initial decision. 5
NOTICE OF APPEAL RIGHTS 6
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
5
We have reviewed the relevant legislation enacted during the pendency of this appeal
and have concluded that it does not affect the outcome of the appeal.
6
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.
11
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
12
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
13
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. 7 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
7
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.
14
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.