Eileen McCarthy v. Social Security Administration ( 2024 )

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
EILEEN ERIN MCCARTHY, DOCKET NUMBER
Appellant, PH-1221-16-0137-W-1
v.
SOCIAL SECURITY DATE: January 17, 2024
ADMINISTRATION,
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Eileen Erin McCarthy , Marion, Massachusetts, pro se.
Joanna Tate , Esquire, Dallas, Texas, for the agency.
Susan D. Beller , Boston, Massachusetts, for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
denied her request for corrective action in this individual right of action 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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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 concerning the
administrative judge’s basis for finding the appellant’s failure to prove that she
made a protected disclosure related to the agency’s lack of quality assurance
(QA), we AFFIRM the initial decision.
The administrative judge characterized the appellant’s disclosure
concerning QA as alleging that on April 2, 2015, during a meeting with the
Center Director, she informed him that the Boston Disability Processing Unit
(DPU) had not implemented the Quality Review Process within the timeframes
set forth in agency guidelines. Initial Appeal File (IAF), Tab 56, Initial Decision
(ID) at 12. The administrative judge, however, credited testimony of the Center
Director that he did not recall the appellant ever discussing the issue with him.
ID at 19.
On review, the appellant contends that the administrative judge’s
credibility findings are incomplete. Petition for Review (PFR) File, Tab 8 at 22,
27. We agree. To resolve credibility issues, an administrative judge must
identify the factual questions in dispute, summarize the evidence on each disputed
question, state which version he believes, and explain in detail why he found the
chosen version more credible, considering such factors as: (1) the witness’s
opportunity and capacity to observe the event or act in question; (2) the witness’s
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character; (3) any prior inconsistent statement by the witness; (4) a witness’s
bias, or lack of bias; (5) the contradiction of the witness’s version of events by
other evidence or its consistency with other evidence; (6) the inherent
improbability of the witness’s version of events; and (7) the witness’s demeanor.
Hillen v. Department of the Army, 35 M.S.P.R. 453, 458 (1987). The Board
normally defers to an administrative judge’s credibility findings when they are
based on demeanor. See Haebe v. Department of Justice, 288 F.3d 1288, 1300-01
(Fed. Cir. 2002). Here, however, the administrative judge’s credibility findings
are cursory and incomplete to the extent they fail to explain why the
administrative judge found the Center Director’s testimony to be more credible
than the appellant’s. Additionally, because the appellant testified by telephone,
the administrative judge did not have an opportunity to observe her demeanor
during her testimony. Thus, we find that the administrative judge’s credibility
findings are not entitled to deference. See, e.g., Redschlag v. Department of the
Army, 89 M.S.P.R. 589, ¶ 13 (2001).
Nonetheless, we have reviewed the record and find that the appellant failed
to prove by preponderant evidence that she made a protected disclosure. 2 The
appellant’s testimony concerning this issue consisted of a bare assertion that she
reported the “lack of [QA] and lack of communication between examiners and
consultants” during an April 2nd meeting with the Center Director. IAF, Tab 54,
Hearing Compact Disc (Hearing Day 3) (testimony of the appellant). She also
testified that, during a performance review, she disclosed to her supervisor her
“concerns related to the lack of [QA].” Id. In her written testimony, which was
incorporated as part of her oral testimony, she indicated that, during the meeting
with the Center Director, she “brought up [her] concerns with the lack of QA.”
IAF, Tab 52 at 5. In other pleadings, she references that she “raised the issue that
2
Because we do not rely on the administrative judge’s credibility findings, we need not
address the appellant’s argument that the administrative judge improperly found the
Center Director to be credible because his testimony concerning the reasons for her
termination was not credible. PFR File, Tab 8 at 25-27.
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making determinations without QA oversight meant that all DPU cases never
received a second look.” IAF, Tab 9 at 5. However, in both her testimony and
pleadings below, she fails to specify any additional details concerning what she
told the Center Director or her supervisor or how or why the lack of QA
amounted to any of the categories of wrongdoing specified in 5 U.S.C.
§ 2302(b)(8). Accordingly, we find that the appellant’s vague and conclusory
claims are insufficient to establish that she made a protected disclosure. See, e.g.,
Webb v. Department of the Interior, 122 M.S.P.R. 248, ¶¶ 9-12 (2015) (finding
that general philosophical or policy disagreements with agency decision or
actions do not constitute protected disclosures unless there is a reasonable belief
that the disclosure evidences one of the categories of wrongdoing set forth in
5 U.S.C. § 2302(b)(8)(A)); Linder v. Department of Justice, 122 M.S.P.R. 14,
¶ 14 (2014) (stating that a disclosure must be specific and detailed, not a vague
allegation of wrongdoing). Accordingly, we affirm the initial decision as
modified herein. 3
NOTICE OF APPEAL RIGHTS 4
The initial decision, as supplemented by this Final Order, constitutes the
Board’s final decision in this matter. 5 C.F.R. § 1201.113. You may obtain
review of this final decision. 5 U.S.C. § 7703(a)(1). By statute, the nature of
your claims determines the time limit for seeking such review and the appropriate
forum with which to file. 5 U.S.C. § 7703(b). Although we offer the following
summary of available appeal rights, the Merit Systems Protection Board does not
provide legal advice on which option is most appropriate for your situation and
the rights described below do not represent a statement of how courts will rule
regarding which cases fall within their jurisdiction. If you wish to seek review of
3
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.
4
Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.
5
this final decision, you should immediately review the law applicable to your
claims and carefully follow all filing time limits and requirements. Failure to file
within the applicable time limit may result in the dismissal of your case by your
chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
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
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Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision—including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board, 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court-appointed lawyer and to waiver of any
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
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with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in
section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)
(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either
with the U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction. 5 The court of appeals must receive your petition for
5
The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510.
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review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
9
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Jennifer Everling
Acting Clerk of the Board
Washington, D.C.