Catherine Avila v. Department of Agriculture ( 2024 )

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
CATHERINE A. AVILA, DOCKET NUMBER
Appellant, SF-0752-17-0488-I-1
v.
DEPARTMENT OF AGRICULTURE, DATE: May 16, 2024
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Brook L. Beesley , Alameda, California, for the appellant.
Marcus Alonzo Mitchell, Albuquerque, New Mexico, for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
affirmed her removal. On petition for review, she argues that the administrative
judge abused his discretion in denying her motions to compel discovery and
postpone the hearing, contends that he erred in finding that the agency proved
that she engaged in conduct unbecoming a Federal employee, and reasserts two
affirmative defenses not addressed in the initial decision. Petition for Review
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
(PFR) File, Tab 3 at 1-7. Generally, we grant petitions such as this one only in
the following circumstances: the initial decision contains erroneous findings of
material fact; the initial decision is based on an erroneous interpretation of statute
or regulation or the erroneous application of the law to the facts of the case; the
administrative judge’s rulings during either the course of the appeal or the initial
decision were not consistent with required procedures or involved an abuse of
discretion, and the resulting error affected the outcome of the case; or new and
material evidence or legal argument is available that, despite the petitioner’s due
diligence, was not available when the record closed. Title 5 of the Code of
Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). After fully
considering the filings in this appeal, we conclude that the petitioner has not
established any basis under section 1201.115 for granting the petition for review.
Therefore, we DENY the petition for review. Except as expressly MODIFIED to
correct a factual error in the administrative judge’s consideration of the
appellant’s sex discrimination affirmative defense and address the appellant’s
claim that the agency violated the Consolidated Appropriations Act of 2016
(CAA) 2 in removing her, we AFFIRM the initial decision.
The appellant argues that she was denied the opportunity to submit
evidence and testimony contesting two prior disciplinary actions, which are not
the subject of this appeal, but would allow her to establish her sex discrimination
affirmative defense. PFR File, Tab 3 at 2, 6-7. An administrative judge has wide
discretion to control the proceedings, including the authority to exclude evidence
and witnesses that he believes would be irrelevant, immaterial, or unduly
repetitious. Parker v. Department of Veterans Affairs, 122 M.S.P.R. 353, ¶ 21
(2015); 5 C.F.R. § 1201.41(b)(8), (10). Here, the Board may conduct only a
limited review of the appellant’s prior discipline because those actions were in
writing, the appellant had an opportunity to challenge them, and they are a matter
2
The appellant cites to several versions of the CAA. PFR File, Tab 3 at 6. The CAA
cited here is relevant to Government expenditures during the time periods relevant to
this appeal. Pub. L. No. 114-113, § 542, 129 Stat. 2242, 2242, 2332-33 (2015).
3
of record. Initial Appeal File (IAF), Tab 31, Initial Decision (ID) at 16-17; see
Bolling v. Department of the Air Force, 9 M.S.P.R. 335, 338-40 (1981) (setting
forth the three-part criteria for conducting a limited review of a prior disciplinary
action that the agency relied upon in taking the disciplinary action at issue). This
review is limited to the record on the prior discipline, and no new evidence or
argument, other than the appellant’s reasons for the challenge, is admissible.
Bolling, 9 M.S.P.R. at 340. Given the limited nature of the Board’s review of her
prior disciplinary actions, the administrative judge appropriately denied the
appellant’s request to present a witness and letter, which she believes would
support her assertion that the prior discipline was unwarranted and
discriminatory. PFR File, Tab 3 at 2, 6-7; ID at 16-17. Accordingly, the
appellant has not shown that the administrative judge abused his discretion in
denying that evidence.
The administrative judge denied the appellant’s equal employment
opportunity affirmative defenses, including her claim of sex discrimination. ID
at 14-21. Neither party has raised any additional challenges to those findings on
review. Nonetheless, we take this opportunity to correct the administrative
judge’s factual findings concerning the appellant’s sex discrimination affirmative
defense, still affirming his determination that the agency did not engage in such
discrimination.
To prove her discrimination or retaliation claims under Title VII and the
Age Discrimination in Employment Act, an appellant must show that the
prohibited consideration was a motivating factor in how the agency made its
decision. Pridgen v. Office of Management and Budget, 2022 MSPB 31,
¶¶ 20-22, 30 (addressing this standard in the context of claims of age and sex
discrimination and of retaliation for opposing Title VII discrimination); see
Gomez-Perez v. Potter, 553 U.S. 474, 491 (2008) (finding that 29 U.S.C. § 633a
prohibits not just age-based discrimination, but retaliation for complaints of
age-based discrimination as well). One way an appellant may establish a
4
discrimination or retaliation claim is through comparator evidence, or evidence
relating to the treatment of similarly situated employees. Pridgen, 2022 MSPB
31, ¶ 27. To be similarly situated, comparators must have reported to the same
supervisor, been subjected to the same standards governing discipline, and
engaged in conduct similar to the appellant’s without differentiating or mitigating
circumstances. Id.In finding that the appellant did not prove her sex discrimination
affirmative defense, the administrative judge determined that, unlike the
appellant, none of the three males she alleged were similarly situated were
charged with offenses related to the cultivation and distribution of marijuana. ID
at 16-17. This finding is incorrect, in part. The deciding official, who was
involved in all four of the disciplinary actions, testified that two of the three male
employees were charged with conduct unbecoming related to cultivating
marijuana at their homes. Hearing Transcript (HT) at 126-28, 133-34, 157
(testimony of the deciding official); IAF, Tab 4 at 27-28. Even so, the
circumstances of the appellant’s situation were materially different. The record
reflects that none of the identified male employees were charged with selling or
being associated with the sale of marijuana from their homes or had any prior
discipline, whereas the appellant was charged with having marijuana cultivated
at, processed at, and distributed from her home and had two prior instances of
discipline. IAF, Tab 4 at 21, 26-27, 51; HT at 126-28, 133-34, 157 (testimony of
the deciding official). The administrative judge credited the deciding official’s
testimony that she decided not to offer the appellant a last chance settlement
agreement in lieu of removal, as she had offered the identified male employees,
because of the appellant’s prior discipline. ID at 17. After reviewing the record,
we agree with the administrative judge that the appellant did not prove that her
sex was a motivating factor in the agency’s decision to remove her. ID at 16-17.
We therefore find that the administrative judge’s factual error was harmless.
Panter v. Department of the Air Force, 22 M.S.P.R. 281, 282 (1984) (finding that
5
an adjudicatory error that is not prejudicial to a party’s substantive rights
provides no basis for reversal of an initial decision).
As argued below, the appellant reasserts her claim that the agency violated
section 542 of the CAA by expending resources that interfered with her husband’s
possession and use of medicinal-marijuana, which was legal under California
state law. 3 PFR File, Tab 3 at 3-5; IAF, Tab 18 at 3, 5-6. Essentially, the
appellant alleged that the agency’s action was not in accordance with the law,
thus requiring reversal. See 5 U.S.C. § 7701(c)(2)(C). The appellant bears the
burden of proving her affirmative defenses by preponderant evidence. 5 C.F.R.
§ 1201.56(b)(2)(i)(C). Under section 542, the Department of Justice was
prohibited from using funds during the Fiscal Year ending September 30, 2016,
and appropriated under the CAA that interfered with California’s, and other
identified states’, implementation of medicinal marijuana laws. There is no
indication from the plain language of the identified statutory provision that the
agency, which is separate from the Department of Justice, was prohibited from
conducting an independent investigation into the marijuana growing operations
occurring on the appellant’s property. See Miller v. Department of
Transportation, 86 M.S.P.R. 293, ¶ 7 (2000) (explaining that “[t]he starting point
3
Although the appellant did not object to the administrative judge’s failure to identify
the appellant’s CAA violation claim as an issue on appeal, we find that she did not
waive or abandon it because she raised substantive arguments as to this claim in her
prehearing submission, presented evidence on this issue at the hearing, and continues to
meaningfully argue the issue on review. IAF, Tab 18 at 5-6, Tab 22 at 1-2; HT
at 92-92, 105 (testimony of a Forest Service Special Agent on cross examination); see
Thurman v. U.S. Postal Service, 2022 MSPB 21, ¶¶ 17-18 (setting forth a nonexhaustive
list of factors for determining whether an appellant waived or abandoned a previously
identified affirmative defense, such as the thoroughness and clarity with which the
appellant raised his affirmative defense, the degree to which the appellant continued to
pursue his affirmative defense in the proceedings below after initially raising it, and
whether the appellant objected to a summary of the issues to be decided that failed to
include the potential affirmative defense when specifically afforded an opportunity to
object and the consequences of his failure were made clear). Although the
administrative judge did not address this affirmative defense in the initial decision, the
appellant’s submissions below show that she nevertheless understood her burden of
showing that the agency violated the CAA. IAF, Tab 18 at 5-6.
6
in every case involving construction of a statute is the language itself”) (quoting
Landreth Timber Company v. Landreth, 471 U.S. 681, 685 (1985) (citation
omitted)). Although the appellant argues that the CAA prohibition applies to
Federal law enforcement operations generally, and thus the agency, there is no
basis for reaching such a conclusion. PFR File, Tab 3 at 4-5; see Joseph v.
Devine, 19 M.S.P.R. 66, 68 (1984) (explaining that, under the doctrine of unius
est exclusio alterius, when exceptions to a general rule are specifically
enumerated, it is not ordinarily permissible to read additional exceptions into the
rule). Accordingly, the appellant’s affirmative defense that the agency’s action is
not in accordance with the law is not a basis for reversing her removal. 4
Finally, after the record closed on review, the appellant filed a motion
seeking leave to submit a new pleading. PFR File, Tabs 4, 10. Specifically, she
argues that President Biden changed the law by granting a pardon for the Federal
crime of possession of marijuana. PFR File, Tab 10 at 4-5. New evidence or
legal argument that was previously unavailable despite a party’s due diligence
warrants review if it is of sufficient weight to merit an outcome different from
that of the initial decision. See Russo v. Veterans Administration, 3 M.S.P.R.
345, 349 (1980) (holding that, to constitute “new and material” evidence for
purposes of granting a petition for review, the new evidence must be of sufficient
weight to warrant a different outcome from that ordered by the presiding official);
5 C.F.R. § 1201.115(d) (providing that the Board may grant review based on new
4
On review the appellant argues that the constitutionality of the agency’s action should
be “examine[d]” to determine whether it violated the appellant’s freedom of association
with her husband, a lawful marijuana user. PFR File, Tab 3 at 3. The administrative
judge did not address this affirmative defense in the initial decision, and we decline to
consider it because we find that the appellant has waived or abandoned this claim. The
appellant, who was represented at all times of the appeal, committed one sentence of her
prehearing submission to this affirmative defense; offered no evidence in support of her
freedom of association assertions; did not object to the prehearing order’s failure to
identify this affirmative defense as an issue on appeal, despite having an opportunity to
do so; and did not elaborate on this argument on review. IAF, Tab 18 at 3, Tab 22
at 1-2, Tab 24; PFR File, 3 at 3; see Thurman, 2022 MSPB 21, ¶¶ 17-18. Accordingly,
we decline to address this argument.
7
and material evidence or legal argument that was not available when the record
closed below). According to the appellant this proclamation means that her
removal is now “legally erroneous.” PFR File, Tab 10 at 5-6. We are not
persuaded.
The agency charged the appellant with conduct unbecoming a Federal
employee. IAF, Tab 4 at 51. Intent is not an element of a conduct unbecoming
charge. Cross v. Department of the Army, 89 M.S.P.R. 62, ¶ 9 (2001). Nor is an
agency required to prove that an appellant violated a law that was not part of its
charge. See Canada v. Department of Homeland Security, 113 M.S.P.R. 509, ¶ 9
(2010) (determining that an administrative judge erred to the extent that she
considered whether an agency that charged employees with conduct unbecoming
proved that the employees violated a policy that was not part of the charge).
On October 6, 2022, President Biden issued a proclamation pardoning
individuals lawfully present in the United States, including citizens, whether
convicted or not, of “the offense of simple possession of marijuana in violation of
the Controlled Substances Act.” Proclamation No. 10,467, 87 Fed. Reg. 61441(Oct. 6, 2022). In support of its charge, the agency alleged that the appellant
admitted that marijuana was grown, processed, packaged, and sold at her
property. IAF, Tab 4 at 51. It did not allege that the appellant violated the
Controlled Substances Act. IAF, Tab 4 at 51. In fact, the agency did not allege
that the appellant broke any laws whatsoever. Id. at 21-23, 51-53. Therefore, the
agency was not required to prove that the appellant committed the crime of
possession of marijuana. 5 Instead, it was required to prove that the appellant’s
conduct was unsuitable or detracted from her reputation. Miles v. Department of
5
Even if the President’s proclamation was material to the agency’s charge, it still would
not impact the outcome here. The President pardoned “only the offense of simple
possession of marijuana . . . , and not any other offenses related to marijuana.” 87 Fed.
Reg. at 61441. It is also a crime to “manufacture, distribute, or dispense” marijuana.
21 U.S.C. § 841(a)(1); see Bruhn v. Department of Agriculture, 124 M.S.P.R. 1, ¶ 15
(2016) (recognizing that it is illegal to manufacture or possess marijuana under the
Controlled Substances Act).
8
the Army, 55 M.S.P.R. 633, 637 (1992). That requirement was satisfied here.
Accordingly, the appellant’s new argument does not change the outcome of this
appeal, and we deny her motion for leave to make an additional submission.
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
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).
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.
9
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
10
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
11
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
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
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.
12
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.