Beverly Stancil v. Department of the Interior ( 2024 )

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
BEVERLY JACKSON STANCIL, DOCKET NUMBER
Appellant, DC-0752-17-0153-I-1
v.
DEPARTMENT OF THE INTERIOR, DATE: January 30, 2024
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Beverly Jackson Stancil , Cheverly, Maryland, pro se.
Pegah Yazdy Gorman and Jennifer Koduru , Washington, D.C., 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
affirmed the agency’s removal action. 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
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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 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 administrative judge’s analysis of the
whistleblower reprisal claim under 5 U.S.C. § 2302(b)(8) and to consider the
affirmative defense of reprisal for disclosing information to the agency’s Office
of Inspector General (OIG) under 5 U.S.C. § 2302(b)(9)(C), we AFFIRM the
initial decision.
BACKGROUND
Effective November 21, 2016, the agency removed the appellant from her
Program Assistant (Special Assistant) position in the agency’s Office of
Partnerships, Youth and Community Engagement, National Capital Region,
National Park Service, based on a charge of failure to follow her supervisor’s
instructions. Initial Appeal File (IAF), Tab 2 at 2, Tab 8 at 111-18. The agency
based its charge on three specifications alleging that the appellant failed to attend
a meeting scheduled for her return from a 14-day suspension on June 20, 2016, a
standing biweekly update meeting on June 21, 2016, and a webinar meeting on
June 30, 2016, as instructed by her supervisor. IAF, Tab 8 at 112-13. In deciding
to remove the appellant, the agency considered, among other things, her prior
discipline, consisting of the following: a letter of reprimand issued on
November 20, 2015, for four instances of failing to follow her supervisor’s
directions to attend meetings; and a 14-day suspension from June 5–18, 2016, for
3
five instances of failing to follow her supervisor’s instructions to attend meetings.
IAF, Tab 7 at 21-22, 37-42, Tab 8 at 111, 114. The appellant’s supervisor was
the proposing official for the 14-day suspension and removal, and the Regional
Director was the deciding official for the suspension and removal. IAF, Tab 7
at 28, 37, 49, Tab 8 at 111. The appellant appealed her removal to the Board, and
she requested a hearing. IAF, Tab 1. She raised the affirmative defenses of a
violation of her due process rights and reprisal for whistleblowing and for
disclosing information to OIG. IAF, Tab 1 at 5, Tab 14 at 3-7.
After holding a hearing, the administrative judge issued an initial decision
affirming the removal action. IAF, Tab 21, Initial Decision (ID) at 1-2, 15. 2
Specifically, she found that the agency proved all three specifications of its
charge. ID at 2-7. She further found that the appellant failed to prove her
affirmative defenses of a violation of her due process rights or whistleblower
reprisal under 5 U.S.C. § 2302(b)(8). ID at 7-12. In addition, the administrative
judge found that the agency proved nexus and that the agency did not abuse its
discretion in its penalty selection. ID at 12-15.
The appellant has filed a petition for review. Petition for Review (PFR)
File, Tab 1. The agency has filed a response. PFR File, Tab 3.
DISCUSSION OF ARGUMENTS ON REVIEW
The agency proved its charge by preponderant evidence.
Generally, in an adverse action appeal, the agency must prove its charge by
a preponderance of the evidence. 3 5 U.S.C. § 7701(c)(1)(B). To prove a charge
of failure to follow supervisory instructions, an agency must establish that an
employee was given proper instructions and that she failed to follow them,
without regard to whether the failure was intentional or unintentional. Hamilton
2
We assume that the administrative judge was referring to the agency’s removal action
when she found that the agency’s demotion action must be affirmed. ID at 15.
3
A preponderance of the evidence is the degree of relevant evidence that a reasonable
person, considering the record as a whole, would accept as sufficient to find that a
contested fact is more likely to be true than untrue. 5 C.F.R. § 1201.4(q).
4
v. U.S. Postal Service, 71 M.S.P.R. 547, 555-56 (1996). Here, the record contains
strong evidence showing that the appellant was given clear instructions from her
supervisor to attend the meetings and the webinar in question. IAF, Tab 7 at 65,
81-88, 116-22. We find that the appellant’s immediate supervisor acted properly
by directing the appellant to attend the meetings and the webinar concerning her
work plan and assignments. IAF, Tab 7 at 65, 81 -88, 119; Hearing Transcript
(HT) at 11, 19-24 (testimony of the supervisor). The administrative judge found
that the supervisor credibly testified that the purpose of the individual biweekly
update meetings was to provide employees with guidance and to track their
projects, and that she sent the appellant an email scheduling a meeting to discuss
her projects upon her return from serving her suspension. ID at 4, 6; HT at 11,
19-21 (testimony of the supervisor). To the extent the appellant disputes the
administrative judge’s demeanor-based credibility findings, we find that she has
failed to present a sufficiently sound reason to disturb them. PFR File, Tab 1
at 11; see Haebe v. Department of Justice, 288 F.3d 1288, 1301 (Fed. Cir. 2002)
(finding that 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, and that the Board may overturn
such determinations only when it has “sufficiently sound” reasons for doing so) .
Moreover, it is undisputed that the appellant failed to follow her supervisor’s
instructions to attend the meetings and the webinar.
In her petition for review, the appellant argues that she did not attend the
meetings in question because of her supervisor’s creating a hostile work
environment, harassing tactics, and escalating rage, and because it was the
agency’s policy to report harassment to the Regional Director, who was the
deciding official in this case. PFR File, Tab 1 at 7-8. We find that these
arguments are unavailing. Employees do not have an unfettered right to disregard
supervisory instructions. Howarth v. U.S. Postal Service, 77 M.S.P.R. 1, 7
(1997). Rather, an employee must first comply with an order and then, if she
5
disagrees with the order, register her complaint or grievance later, except in
certain limited circumstances, such as when obedience would cause her
irreparable harm. Larson v. Department of the Army, 91 M.S.P.R. 511, ¶ 21
(2002). An employee’s subjective and unsupported apprehension of danger does
not justify her refusal to perform her duties. Id. Here, there is no evidence to
suggest that attending the scheduled meetings or webinar would have caused the
appellant irreparable harm. Thus, we find no reason to disturb the administrative
judge’s finding that the agency proved all three specifications of its charge by
preponderant evidence. 4 ID at 7.
The appellant argues that the agency failed to produce pertinent evidence in
this appeal. PFR File, Tab 1 at 2-3, 5, 7, 9-11. Because the appellant did not file
a motion to compel, she is precluded from raising this discovery issue for the first
time on review, and we deny her request for the Board to direct the agency to
produce additional evidence. Id. at 2-3, 5, 10; see Szejner v. Office of Personnel
Management, 99 M.S.P.R. 275, ¶ 5 (2005), aff’d, 167 F. App’x 217 (Fed. Cir.
2006). Although the appellant asserts that the administrative judge failed to
provide discovery instructions, PFR File, Tab 1 at 2, the record reflects
otherwise, IAF, Tab 3 at 3-4. Moreover, we cannot investigate the appellant’s
claims of harassment and a hostile work environment, as she requests on review,
because the Board lacks investigative authority. PFR File, Tab 1 at 4; see
5 U.S.C. § 1204.
4
At the time that the appellant filed this appeal, 5 U.S.C. § 2302(b)(9)(D) made it a
prohibited personnel practice to take an action against an employee for “refusing to
obey an order that would require the individual to violate a law.” Our reviewing court
considered this provision and held that “law” only included statutes, and not rules and
regulations. See Rainey v. Merit Systems Protection Board, 824 F.3d 1359, 1364-65
(Fed. Cir. 2016). However, on June 14, 2017, the President signed the Follow the Rules
Act into law. Pub. L. No. 115-40, 131 Stat. 861 (2017). The Act amends
section 2302(b)(9)(D) to provide whistleblower protection for individuals who refuse to
obey an order that would require the violation of a law, rule, or regulation.
Nevertheless, the Board has determined that this expansion does not apply retroactively
to cases pending at the time the Act was enacted. Fisher v. Department of the Interior,
2023 MSPB 11, ¶ 19.
6
The appellant further alleges that the administrative judge improperly
denied her requested witnesses. PFR File, Tab 1 at 3-4. An administrative judge
has wide discretion under 5 C.F.R. § 1201.41(b)(8), (10), to exclude witnesses
when it has not been shown that their testimony would be relevant, material, and
nonrepetitious. Franco v. U.S. Postal Service, 27 M.S.P.R. 322, 325 (1985).
Here, the administrative judge disallowed the appellant’s requested witnesses in
the Order and Summary of Telephonic Prehearing Conference and informed her
that she may object to the rulings in the summary on the morning of the hearing.
IAF, Tab 18 at 4-6. However, the appellant did not object to the administrative
judge’s rulings on witnesses at the hearing. See Tarpley v. U.S. Postal Service,
37 M.S.P.R. 579, 581 (1988) (finding that an appellant’s failure to timely object
to rulings on witnesses precluded him from doing so on petition for review).
Nevertheless, we find that the appellant’s description of the expected testimony
of the disallowed witnesses fails to show that the administrative judge abused her
discretion. IAF, Tab 14 at 8-12. In particular, the appellant has not shown that
the disallowed witnesses would have provided relevant, material, and
nonrepetitious testimony, considering that she had the opportunity to testify and
to question her supervisor and the deciding official during the hearing.
In addition, the appellant contends that the administrative judge did not
allow her to fully answer questions during the status and prehearing conferences
and the hearing. PFR File, Tab 1 at 12. We have reviewed the hearing transcript
and find that the limits placed on the appellant’s testimony were within the
administrative judge’s broad discretion to regulate the course of the hearing under
5 C.F.R. § 1201.41(b)(3), (6). See Miller v. Department of Defense, 85 M.S.P.R.
310, ¶ 8 (2000) (finding that an administrative judge has wide discretion to
control the proceedings, including authority to exclude irrelevant or immaterial
testimony). Further, the appellant has failed to explain how her substantive rights
were harmed by any limits imposed by the administrative judge during the status
or prehearing conferences. See Panter v. Department of the Air Force,
7
22 M.S.P.R. 281, 282 (1984) (finding that an adjudicatory error that is not
prejudicial to a party’s substantive rights provides no basis for reversing an initial
decision).
We modify the initial decision to supplement the administrative judge’s analysis
of the appellant’s affirmative defense of whistleblower reprisal under 5 U.S.C.
§ 2302(b)(8).
The appellant’s allegations of whistleblower reprisal must be analyzed
under the burden-shifting standard set forth in 5 U.S.C. § 1221(e). 5 Alarid v.
Department of the Army, 122 M.S.P.R. 600, ¶ 12 (2015); 5 C.F.R. § 1209.2(e).
Under this standard, the appellant must prove by preponderant evidence that
(1) she made a protected disclosure described under 5 U.S.C. § 2302(b)(8) or
engaged in protected activity described under 5 U.S.C. § 2302(b)(9)(A)(i), (B),
(C), or (D), and (2) the disclosure or protected activity was a contributing factor
in the agency’s decision to take or fail to take a personnel action as defined by
5 U.S.C. § 2302(a). 5 U.S.C. § 1221(e)(1); Alarid, 122 M.S.P.R. 600, ¶¶ 12-13;
5 C.F.R. § 1209.2(e)(1). If the appellant makes such a showing, then the burden
of persuasion shifts to the agency to prove, by clear and convincing evidence, that
it would have taken the same action in the absence of such disclosure or activity.
5 U.S.C. § 1221(e)(2); Alarid, 122 M.S.P.R. 600, ¶ 14; 5 C.F.R. § 1209.2(e)(2).
We begin by considering whether the appellant engaged in protected
whistleblowing by making a disclosure of information protected by 5 U.S.C.
§ 2302(b)(8). A protected disclosure described in section 2302(b)(8) generally
means a disclosure of information that an appellant reasonably believes evidences
(1) any violation of any law, rule, or regulation; (2) gross mismanagement; (3) a
gross waste of funds; (4) an abuse of authority; or (5) a substantial and specific
danger to public health or safety. Shannon v. Department of Veterans Affairs,
5
We have reviewed the relevant legislation enacted during the pendency of this appeal.
To the extent that we cite herein to case law applying versions of law subsequently
amended by the Whistleblower Protection Enhancement Act of 2012 or other
legislation, we find that the statutory amendments do not affect the material holdings
relied upon in this decision and do not affect the outcome of the appeal.
8
121 M.S.P.R. 221, ¶ 22 (2014). An appellant is not required to prove the alleged
misconduct actually occurred. Id., ¶ 28. Rather, an appellant need only prove
that a disinterested observer with knowledge of the essential facts known to and
readily ascertainable by her could reasonably conclude that the disclosed actions
of the Government evidence one of the categories of wrongdoing identified in
5 U.S.C. § 2302(b)(8). Shannon, 121 M.S.P.R. 221, ¶¶ 22, 28.
Here, the administrative judge did not discuss the appellant’s alleged
disclosures that she described in her prehearing submission. IAF, Tab 14 at 3-7;
ID at 7-11. We modify the initial decision as follows to supplement the
administrative judge’s analysis of the whistleblower reprisal claim. The appellant
alleged that she was under abusive supervision for the 11 years preceding her
removal. IAF, Tab 14 at 3. Most of the appellant’s claims of harassment and a
hostile work environment concern her supervisor, who started supervising the
appellant when she was reassigned from a different office in January 2012. IAF,
Tab 14 at 4-7, Tab 15 at 25; HT at 7 (testimony of the supervisor). In her
pleadings before the administrative judge, the appellant claimed retaliation for
reporting harassment and a hostile work environment to the OIG in August 2015
and February 2016, and to agency officials on several occasions. 6 IAF, Tab 1
at 5, Tab 14 at 3-7. In particular, the appellant asserted that she made the
following disclosures: she began reporting harassment and a hostile work
environment in 2006; she requested an independent investigation of her
absent-without-leave status, leave restrictions, and reassignment from the Special
Assistant position to the Program Assistant position; 7 in August 2015, she told the
6
The appellant does not allege that her claims of harassment or a hostile work
environment are based on a protected status under Title VII of the Civil Rights Act of
1964, as amended, or other basis described in 5 U.S.C. § 2302(b)(1).
7
The appellant alleged that she was “illegally demoted” when she was reassigned to a
different office in January 2012 and when her position title was changed from “Special
Assistant” to “Program Assistant.” IAF, Tab 14 at 3. The appellant does not allege,
and the record does not reflect, that these actions resulted in a reduction in grade or pay.
PFR File, Tab 1 at 5-6; IAF, Tab 2 at 2, Tab 14 at 3, Tab 15 at 13, 25. Thus, they do
not constitute independently appealable demotions under chapter 75. The appellant’s
9
deciding official that she had filed an OIG complaint; in September or October
2015, she told her supervisor that they needed to inform the deciding official of a
conflict that they had had during a meeting; she asked her supervisor to schedule
meetings in the presence of the deciding official and told her that they needed to
bring their conflicts to higher-level leadership; on February 12, 2016, during her
oral reply to the proposed 14-day suspension, she disclosed the continued
harassment and hostile work environment, her efforts to comply with agency
policy requiring employees to report harassment to the deciding official, as the
Regional Director, and her insistence to her supervisor that they had to involve
the deciding official in their conflicts; she began forwarding all emails sent from
her supervisor to the deciding official and to other agency officials; in May 2016,
she met with an equal employment opportunity (EEO) official regarding her
complaint of a hostile work environment; in September 2016, she emailed the
deciding official and other agency officials about receiving an envelope from her
supervisor (containing the notice of proposed removal), and she requested an
independent investigation of all actions taken against her since January 1, 2016;
on September 29, 2016, during her oral reply to the proposed removal, she
reiterated her claim of a hostile work environment and asserted that she was being
punished for her disciplinary actions and that she did not receive guidance
regarding her harassment and hostile work environment claims; and she emailed
the deciding official, her supervisor, and other agency officials about scheduling
a meeting with the Director of the National Park Service. IAF, Tab 14 at 3-6.
The appellant did not specify, nor does the record reveal, what she
disclosed to OIG beyond a claim of a hostile work environment or harassment.
However, the record shows that, during an agency investigation, the appellant
alleged that her supervisor took the following actions against her: subjected her
dispute on review regarding her position title does not concern a material fact. PFR
File, Tab 1 at 5-6. Thus, any error by the administrative judge in finding the appellant’s
position title undisputed is not harmful to her substantive rights. ID at 2; see Panter,
22 M.S.P.R. at 282.
10
to a hostile work environment and bullying; screamed and hollered at her;
invaded her personal space; claimed that she made coworkers uncomfortable;
claimed that she made too much noise; accused her of incompetence; demeaned
her professionalism; assigned her piecemealed work; changed her work
assignments; told her that she was the boss; and created double standards. 8 IAF,
Tab 8 at 46-47. The appellant further alleged during the investigation that the
agency changed her position from Special Assistant to Program Assistant, she felt
that she was “mal-assigned,” and she wanted to be reassigned out of her office.
Id. at 47. The agency concluded in its December 2013 investigative report that
only her claims regarding noise complaints, piecemeal work, and her desire for a
reassignment were substantiated. Id. at 48-51. The record further shows that,
after receiving a memorandum in March 2015 from her supervisor requiring
medical documentation for sick leave, the appellant requested an independent
investigation of the memorandum, her Program Assistant position, and her
applications for various vacancies. Id. at 34-42. In an email dated May 26, 2016,
the deciding official informed the appellant that he had asked an EEO official to
evaluate her claim of a hostile workplace. IAF, Tab 7 at 89. After meeting with
the EEO official, the appellant forwarded to him emails sent by her supervisor
concerning scheduled meetings. Id. at 90-105. In an email dated September 8,
2016, the appellant again requested an independent investigation of all actions
taken against her since January 1, 2016. IAF, Tab 8 at 19.
The appellant reasserts on review that she made protected disclosures
regarding harassment and a hostile work environment. PFR File, Tab 1 at 10.
For the following reasons, we agree with the administrative judge’s finding that
the appellant failed to prove that she made a protected disclosure. ID at 10-11.
Based on our review of the record, we find that the appellant has failed to meet
8
The former Regional Director called for this investigation. IAF, Tab 8 at 43. To the
extent the administrative judge erroneously found that the deciding official asked for
this investigation, we find that any such error has not harmed the appellant’s
substantive rights. ID at 10; see Panter, 22 M.S.P.R. at 282.
11
her burden of proving that a disinterested observer could reasonably conclude that
the information she disclosed evinced wrongdoing described in 5 U.S.C.
§ 2302(b)(8). Taken as a whole, the appellant’s alleged disclosures of harassment
and a hostile work environment are fundamentally her own personal complaints
and disagreements about how she was treated by the agency, and they are not
protected whistleblowing. See Lachance v. White, 174 F.3d 1378, 1380-81 (Fed.
Cir. 1999) (observing that an employee’s purely subjective perspective is not
sufficient to prove that a disclosure is protected); see also Carr v. Department of
Defense, 61 M.S.P.R. 172, 180-81 (1994) (finding that the appellant’s letter,
which alleged that the agency had subjected him to “unwarranted stress” and
“unjustifiable harassment,” did not constitute a protected disclosure).
In particular, an abuse of authority occurs when there is an arbitrary or
capricious exercise of power by a Federal official or employee that adversely
affects the rights of any person or results in personal gain or advantage to herself
or to other preferred persons. Herman v. Department of Justice, 115 M.S.P.R.
386, ¶ 11 (2011). Although we acknowledge that harassing or intimidating other
employees may constitute an abuse of authority in certain situations, such as
when a supervisor uses her influence to denigrate other staff members in an
abusive manner and to threaten the careers of staff members with whom she
disagrees, id., we find here that a disinterested observer could not reasonably
conclude that the described events rose to the level of an abuse of authority, see
Mc Corcle v. Department of Agriculture, 98 M.S.P.R. 363, ¶ 24 (2005) (finding
that the appellant’s allegations that agency officials were arbitrary and capricious,
discriminatory, conspiratorial, and manipulative did not constitute nonfrivolous
allegations of an abuse of authority). Further, we find that the appellant has not
proven that a disinterested observer could reasonably believe that the alleged
agency actions constituted gross mismanagement, which is a management action
or inaction that creates a substantial risk of significant adverse impact on the
agency’s ability to accomplish its mission. Embree v. Department of the
12
Treasury, 70 M.S.P.R. 79, 85 (1996) (observing that gross mismanagement does
not include management decisions that are merely debatable or action or inaction
constituting simple negligence or wrongdoing). In addition, we find that the
appellant has not shown that a disinterested observer could reasonably conclude
that the information disclosed evinced any violation of any law, rule, or
regulation, including any agency policy on harassment, a hostile work
environment, or whistleblowing. She has not provided any evidence to support
her claim that there was a policy requiring all harassment accusations to be
reported to the deciding official, as the Regional Director. IAF, Tab 14 at 4, 6.
We modify the initial decision to consider the appellant’s affirmative defense of
reprisal for disclosing information to OIG under 5 U.S.C. § 2302(b)(9)(C).
The administrative judge failed to analyze the appellant’s claim of
retaliation for reporting wrongdoing to OIG as an affirmative defense of reprisal
for engaging in protected activity under 5 U.S.C. § 2302(b)(9)(C). ID at 7-11;
IAF, Tab 1 at 5, Tab 14 at 3. We modify the initial decision, as follows, to
consider such an affirmative defense. An affirmative defense of reprisal for
engaging in protected activity under 5 U.S.C. § 2302(b)(9)(C) must be analyzed
under the burden-shifting standard set forth in 5 U.S.C. § 1221(e). See Alarid,
122 M.S.P.R. 600, ¶¶ 12-15 (applying this standard to an affirmative defense of
reprisal under 5 U.S.C. § 2302(b)(9)(B)); see also Elder v. Department of the Air
Force, 124 M.S.P.R. 12, ¶¶ 15, 39 (2016) (applying this standard to an
affirmative defense of reprisal under 5 U.S.C. § 2302(b)(9)(A)(i)). Under this
standard, an appellant first must prove by preponderant evidence that she engaged
in protected activity that was a contributing factor in the personnel action at
issue. Elder, 124 M.S.P.R. 12, ¶ 39. If she does so, then the burden of
persuasion shifts to the agency to prove by clear and convincing evidence that it
would have taken the same personnel action absent her protected activity. Id.Under the law in effect at the time of the appellant’s removal, an employee
engaged in protected activity under 5 U.S.C. § 2302(b)(9)(C) when she
13
cooperated with or disclosed information to an agency’s OIG or the Office of
Special Counsel (OSC), in accordance with applicable provisions of law . 9 Under
the broadly worded provision of section 2302(b)(9)(C), such disclosures of
information are protected regardless of their content, as long as they are made in
accordance with applicable provisions of law. Fisher v. Department of the
Interior, 2023 MSPB 11, ¶ 8. Here, it is undisputed that the appellant filed an
OIG complaint before she was removed. HT at 26 (testimony of the supervisor),
103-04 (testimony of the deciding official), 167 (testimony of the appellant).
Further, the deciding official testified that the appellant had told him throughout
the process of effecting her 14-day suspension and removal that she would be
filing an OIG complaint. HT at 103-04, 110. Therefore, we find that the
appellant has proven a prima facie case of reprisal for engaging in protected
activity under 5 U.S.C. § 2302(b)(9)(C). See Alarid, 122 M.S.P.R. 600, ¶ 13
(explaining that, under the knowledge/timing test, an appellant can prove that her
protected activity was a contributing factor in the challenged action by showing
that the deciding official knew of the protected activity and took the personnel
action within a period of time such that a reasonable person could conclude that
the protected activity was a contributing factor in the action).
Next, the burden shifts to the agency to prove by clear and convincing
evidence 10 that it would have removed the appellant in the absence of her
protected activity of filing an OIG complaint. In determining whether the agency
has met this burden, the Board generally will consider the following factors:
(1) the strength of the agency’s evidence in support of its action; (2) the existence
9
Section 1097(c)(1) of the National Defense Authorization Act for Fiscal Year 2018,
Pub. L. No. 115-91, 131 Stat. 1283 (2017) amended 5 U.S.C. § 2302(b)(9)(C) to further
protect disclosures “to any other component responsible for internal investigation or
review.” This additional provision appears immaterial to this appeal. In any event, this
amendment does not apply retroactively and, thus, does not apply to this appeal.
Edwards v. Department of Labor, 2022 M.S.P.R. 9, ¶¶ 29-33.
10
Clear and convincing evidence is that measure or degree of proof that produces in the
mind of the trier of fact a firm belief as to the allegations sought to be established; it is
a higher standard than preponderance of the evidence. 5 C.F.R. § 1209.4(e).
14
and strength of any motive to retaliate on the part of the agency officials involved
in the decision; and (3) any evidence that the agency takes similar actions against
employees who did not engage in such protected activity, but who are otherwise
similarly situated. Id., ¶ 14 (citing Carr v. Social Security Administration,
185 F.3d 1318, 1323 (Fed. Cir. 1999)). The Board does not view these factors as
discrete elements, each of which the agency must prove by clear and convincing
evidence; rather, the Board weighs these factors together to determine whether
the evidence is clear and convincing as a whole. Id. The Board must consider all
pertinent record evidence in making this determination, and it must not exclude or
ignore countervailing evidence by only looking at the evidence that supports the
agency’s position. Id.Regarding the first Carr factor, we find that the strength of the agency’s
evidence in support of its removal action is strong. For the reasons discussed
above, the administrative judge correctly found that the agency proved all three
specifications of its charge. Although we have sustained the agency’s charge
based on the preponderance of the evidence standard, we find that the agency’s
evidence is also sufficient to meet the higher clear and convincing evidence
standard. Moreover, the record shows that the appellant continued to engage in
the same type of misconduct despite the agency’s use of progressive discipline to
alert her that this type of misconduct would not be tolerated. IAF, Tab 8
at 111-14.
Regarding the second Carr factor, we find that the deciding official had a
substantial motive to retaliate. Because the appellant’s supervisor testified that
she was not aware that the appellant had filed an OIG complaint until a week
before the hearing in this appeal, we find that she did not have a motive to
retaliate. HT at 26, 37, 47-48 (testimony of the supervisor). T he deciding
official testified that the appellant told him that she would be filing an OIG
complaint, but that this information did not impact his decision to remove her.
HT at 103-04 (testimony of the deciding official). Although the record does not
15
reveal exactly what the appellant disclosed to OIG, she testified that she filed an
OIG complaint in August 2015, and she alleges that she reported wrongdoing to
OIG in February 2016. IAF, Tab 1 at 5, Tab 14 at 3; HT at 167 (testimony of the
appellant). Thus, we can assume that she raised the same or similar claims of
harassment and a hostile work environment that she raised before the agency in
her March 2015 request for an independent investigation and in her February
2016 oral reply to the proposed 14-day suspension. IAF, Tab 7 at 37, Tab 8
at 34-42; HT at 88-89, 110-13, 118-19 (testimony of the deciding official). We
find that the deciding official had a motive to retaliate because the appellant’s
claims suggest that he was aware and tolerant of her supervisor’s alleged
harassment and creation of a hostile work environment. Thus, the appellant’s
OIG complaint reflected on the deciding official’s capacity as a manager with
supervisory authority over her and her supervisor, which is sufficient to establish
a substantial retaliatory motive. 11 Chavez v. Department of Veterans Affairs,
120 M.S.P.R. 285, ¶ 33 (2013) (finding a retaliatory motive when the appellant’s
disclosures reflected on the agency officials’ capacity as managers and
employees).
Regarding the third Carr factor, our reviewing court has held that “the
absence of any evidence relating to Carr factor three can effectively remove that
factor from the analysis.” Whitmore v. Department of Labor, 680 F.3d 1353,
1374 (2012). Here, the agency did not produce any evidence relevant to this
factor. Thus, the third Carr factor cannot weigh in favor of the agency. Smith v.
General Services Administration, 930 F.3d 1359, 1367 (Fed. Cir. 2019); Siler v.
Environmental Protection Agency, 908 F.3d 1291, 1299 (Fed. Cir. 2018).
Nevertheless, we find that the deciding official’s substantial motive to retaliate
and the absence of any evidence concerning Carr factor three are outweighed by
the strength of the agency’s evidence in support of its removal action, especially
11
The deciding official testified that he was the appellant’s third-level supervisor. HT
at 88 (testimony of the deciding official).
16
the appellant’s history of engaging in the same misconduct. We find that the
deciding official’s principal motivation for removing the appellant was her
unwillingness to change her behavior despite receiving progressive discipline. In
particular, the deciding official testified that he had hoped the use of progressive
discipline would change the appellant’s behavior and cause her to recognize that
she needed to follow her supervisor’s directions to attend meetings. HT at 96
(testimony of the deciding official). He further testified that he thought that the
appellant’s continued failure to follow her supervisor’s instructions was flagrant
and that he felt there was no other choice but to remove her. HT at 96-97
(testimony of the deciding official). Therefore, we find that the agency has
proven by clear and convincing evidence that it would have taken the same action
in the absence of the appellant’s protected activity. See Carr, 185 F.3d at 1326(noting that the whistleblower protection statutes are not meant to protect
employees from their own misconduct).
The appellant has failed to prove her affirmative defense of a violation of her due
process rights.
The appellant reasserts her affirmative defense of a violation of her due
process rights. PFR File, Tab 1 at 7-9, 11-12. She claims that, when the agency
decided and implemented her immediate removal, she did not receive prior notice
of a final decision and she was not allowed to appeal the final decision (within
the agency) or to have union representation. Id. at 8; IAF, Tab 14 at 7. The
record shows that the agency provided the appellant with minimum due process
consisting of notice of her proposed removal and an opportunity to respond in
person and in writing to the proposed removal before the deciding official. IAF,
Tab 7 at 49-54, Tab 8 at 111-12; see Cleveland Board of Education v. Loudermill,
470 U.S. 532, 546 (1985). Although the appellant claims that she did not receive
the notice of the proposed removal because she immediately returned a sealed
envelope containing the notice to her supervisor, we find that the agency’s
diligent and intelligent efforts of attempting to meet with her for the purpose of
17
providing notice and leaving a copy of the notice on her desk in a sealed envelope
constitutes constitutionally sufficient notice. 12 PFR File, Tab 1 at 6; IAF, Tab 7
at 76-77, Tab 8 at 19; HT at 158-62 (testimony of the appellant); see Pangarova
v. Department of the Army, 42 M.S.P.R. 319, 324-26 (1989) (finding constructive
delivery of the agency’s notice proposing a security clearance revocation when
the appellant refused to accept the proposal notice without a union representative
present and she was told what was in the letter and the date of her deadline for
responding); see also Givens v. U.S. Postal Service, 49 M.S.P.R. 374, 378 (1991)
(finding that an agency must make diligent and intelligent efforts—such as might
reasonably be adopted by one desirous of actually informing the employee—to
provide such minimum due process prior to the effective date of its action) .
Further, the appellant testified and admits on review that she and her union
representative met with the deciding official regarding the proposed removal and
that she provided him with written documentation. PFR File Tab 1 at 6; HT
at 163-65 (testimony of the appellant). Therefore, we discern no reason to disturb
the administrative judge’s finding that the appellant failed to prove her
affirmative defense of a violation of her due process rights. ID at 12.
Moreover, we are not persuaded by the appellant’s argument that she did
not receive due process because the agency did not produce an OIG report and
because the agency minimized the importance of the OIG investigation. PFR
File, Tab 1 at 9. As explained above, the appellant had the opportunity to
conduct discovery below and she is precluded from raising a discovery issue for
the first time on review. See Szejner, 99 M.S.P.R. 275, ¶ 5. Further, to the extent
the appellant is disputing the deciding official’s testimony that OIG did not issue
a report and chose not to investigate her complaint, the administrative judge did
12
The appellant challenges on review the administrative judge’s finding that it is
undisputed that the agency issued a notice of proposed removal to her. PFR File, Tab 1
at 6; ID at 2. Even assuming that the administrative judge mischaracterized that fact as
undisputed, we find that the appellant’s substantive rights have not been harmed
because we find that the agency met its notice obligations. See Panter, 22 M.S.P.R.
at 282.
18
not abuse her discretion by sustaining an objection to such testimony because it
was speculative. PFR File, Tab 1 at 9; HT at 132 (testimony of the deciding
official).
The agency proved nexus and the reasonableness of the penalty.
The appellant does not dispute, and we find no reason to disturb, the
administrative judge’s finding that the agency established the requisite nexus. ID
at 13; see Archerda v. Department of Defense, 121 M.S.P.R. 314, ¶ 24 (2014)
(finding that the agency proved nexus because the charge of failure to follow
instructions directly related to the efficiency of the appellant’s service).
When, as in the instant appeal, all of the agency’s charges have been
sustained, the Board will review an agency-imposed penalty only to determine if
the agency considered all the relevant Douglas factors 13 and exercised
management discretion within the tolerable limits of reasonableness. Ellis v.
Department of Defense, 114 M.S.P.R. 407, ¶ 11 (2010). The Board will modify
or mitigate an agency-imposed penalty only if it finds that the agency failed to
weigh the relevant factors or the penalty clearly exceeds the bounds of
reasonableness. Id. The appellant does not dispute, and we discern no basis to
disturb, the administrative judge’s findings that the agency properly considered
the relevant factors and that the penalty of removal is within the agency’s
discretion. ID at 13-15; HT at 96-102 (testimony of the deciding official); IAF,
Tab 8 at 113-16.
The appellant argues on review that the agency improperly “stacked”
disciplinary actions against her while the OIG investigation was ongoing. PFR
File, Tab 1 at 7. It is unclear what the appellant is arguing. To the extent she is
arguing that the agency improperly considered her prior disciplinary actions in
deciding to impose her removal, we find that the agency properly relied on such
13
In Douglas v. Veterans Administration, 5 M.S.P.R. 280, 305-06 (1981), the Board
articulated a nonexhaustive list of 12 factors that are relevant in assessing the
appropriateness of an agency-imposed penalty for an employee’s misconduct.
19
actions in effecting her removal. See Bolling v. Department of the Air Force,
9 M.S.P.R. 335, 339-40 (1981) (establishing the criteria for the Board’s review of
an appellant’s past discipline on which an agency has relied in determining a
penalty). We note that the Board held in Ibarra v. Department of the Air Force,
11 M.S.P.R. 110, 113 (1982), that an agency, by continuing to issue the same
order at various intervals, cannot thereby increase the severity of the penalty in a
case when the agency may reasonably anticipate that the order will not be obeyed.
However, we find that the instant appeal is distinguishable from Ibarra because
the agency here imposed progressive discipline for the appellant’s continued
failure to follow her supervisor’s instructions. Id. (agreeing with the appellant’s
contention that the agency failed to impose progressive discipline).
The appellant’s additional argument of adjudicatory bias does not provide a basis
for review.
Finally, the appellant asserts that the administrative judge’s judgment was
biased because it was based on the testimony of her supervisor and the deciding
official. PFR File, Tab 1 at 11. The Board will not infer bias based on an
administrative judge’s case-related rulings. Vaughn v. Department of the
Treasury, 119 M.S.P.R. 605, ¶ 18 (2013). We find that the appellant’s broad
allegation of bias is insufficient to rebut the presumption of the administrative
judge’s honesty and integrity. See Oliver v. Department of Transportation,
1 M.S.P.R. 382, 386 (1980) (observing that, in making a claim of bias or
prejudice against an administrative judge, a party must overcome the presumption
of honesty and integrity that accompanies administrative adjudicators).
Accordingly, we affirm the agency’s removal action.
20
NOTICE OF APPEAL RIGHTS 14
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).
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:
14
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.
21
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
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
22
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
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
23
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. 15 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
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
15
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.
24
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.