Tannie Jackson v. Department of the Army ( 2024 )

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
TANNIE S. JACKSON, DOCKET NUMBER
Appellant, AT-1221-18-0334-W-1
v.
DEPARTMENT OF THE ARMY, DATE: May 28, 2024
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Tannie S. Jackson , Columbia, South Carolina, pro se.
Eric J. Teegarden , Fort McCoy, Wisconsin, 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
denied her request for corrective action in connection with 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; 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
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
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 in support of his finding that the
agency met its burden of proof, we AFFIRM the initial decision.
BACKGROUND
The appellant filed a whistleblowing complaint with the Office of Special
Counsel (OSC) regarding what she described as the toxic leadership of her
immediate supervisor, the Director of the Department of Human Resources
(DHR), and the Chief of the 81st Readiness Division, about which she had filed a
complaint with the agency’s Office of Inspector General (OIG). Initial Appeal
File (IAF), Tab 1 at 11, Tab 15 at 9. She alleged to OSC that, because of her OIG
complaint, the agency had directed her lateral reassignment from her current
supervisory position to a nonsupervisory position. IAF, Tab 1 at 14-16.
After OSC notified the appellant that it had ended its inquiry into her allegations,
id. at 20, she filed a Board appeal, IAF, Tab 1. Following the hearing she
requested, the administrative judge issued an initial decision in which he denied
the appellant’s request for corrective action. IAF, Tab 28, Initial Decision (ID)
at 1, 19. The administrative judge found that the appellant proved that she
engaged in protected activity under 5 U.S.C. § 2302(b)(9)(C) when she filed her
OIG complaint, and that, based on knowledge and timing, she also proved that
that activity was a contributing factor in the agency’s decision to reassign her.
3
ID at 8-9. The administrative judge found, however, that the agency proved by
clear and convincing evidence that it would have reassigned the appellant, even
absent her protected activity. ID at 13-19.
On review, the appellant challenges the administrative judge’s finding that
the agency met its burden of proof. 2 Petition for Review (PFR) File, Tab 4
at 5-12. The agency has responded to the appellant’s petition. PFR File, Tab 9.
ANALYSIS
In finding that the agency proved by clear and convincing evidence that it
would have reassigned the appellant even absent her protected activity, the
administrative judge acknowledged that the Board applies the factors set forth by
our reviewing court in Carr v. Social Security Administration, 185 F.3d 1318(Fed. Cir. 1999). Phillips v. Department of Transportation, 113 M.S.P.R. 73,
¶ 11 (2010); ID at 7. Those factors are: (1) the strength of the agency’s evidence
in support of its action; (2) the existence and strength of any motive to retaliate
on the part of agency officials who were involved in the decision; and (3) any
evidence that the agency takes similar actions against employees who are not
whistleblowers but who are otherwise similarly situated. Carr, 185 F.3d at 1323.
Regarding Carr factor (1), the strength of the agency’s evidence in support
of the appellant’s reassignment, the administrative judge found that the agency’s
evidence was supported by the independent findings of the individual assigned to
conduct the OIG investigation. ID at 11; IAF, Tab 6 at 38-47. The administrative
judge quoted substantially from the investigating officer’s report, including her
finding that a number of the witnesses she interviewed stated that the appellant
did not always treat subordinates with dignity and respect, as evidenced by
accounts of meetings and one-on-one interactions with her as well as email
traffic, and that this behavior negatively impacted the climate of the command;
2
We have not considered the two supplements the appellant filed after she filed her
petition, Petition for Review File, Tabs 5-6, because they are untimely with no good
cause shown, see 5 C.F.R. § 1201.114(g).
4
that she failed to ensure the well-being of her subordinates, and that, at times, she
could be perceived as overbearing and authoritarian; that she sometimes
admonished personnel in a harsh manner, evidencing a lack of supervisory skills;
that her behavior created fear, intimidation, and avoidance among staff; and that
her frequent criticism of her supervisor and the Division Chief caused a negative
climate within the Division. ID at 13-15; IAF, Tab 6 at 40-42.
The administrative judge considered the testimony of the investigating officer,
Hearing Compact Disc (HCD) (testimony of the investigating officer), which was
in accord, finding it to be succinct, forthright, and completely credible. ID at 16.
The administrative judge also considered the testimony of the Chief of Staff who
directed the appellant’s reassignment to the effect that there were two other bases
for his taking the action against her besides the results of the investigation, that
is, a 2015 “climate study” that revealed problems in the manner in which she
managed her subordinates, and a letter of admonishment he issued her for her
hiring practices. HCD (testimony of the Chief of Staff); ID at 17.
The administrative judge determined that the Chief of Staff’s testimony was
credible and persuasive. ID at 18. The administrative judge concluded that the
agency presented strong evidence in support of its action. ID at 13.
On review, the appellant argues that the investigating officer was not
independent because she reported to the Chief of Staff. PFR File, Tab 4 at 5.
As noted, the administrative judge found the investigating officer’s testimony to
be credible. ID at 16; see Hillen v. Department of the Army, 35 M.S.P.R. 453,
458 (1987). It is well established that the Board must give due deference to an
administrative judge’s credibility findings when, as here, they are based explicitly
or implicitly on the observed demeanor of witnesses at a Board hearing, and that
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). The appellant’s claim that negative implications necessarily arise
because the investigating officer reported to the Chief of Staff is speculative and
5
does not provide a sufficiently sound reason not to defer to the administrative
judge’s credibility findings.
The appellant also challenges on review certain features of the
investigation. For example, she argues that the individual interviewed whose
statement was identified as Statement D and who allegedly complained about the
appellant, IAF, Tab 6 at 40-42, did not mention her by name, PFR File, Tab 4
at 10, and, in fact, the appellant appears to be correct as to this individual,
IAF, Tab 18 at 75-82. The appellant also alleges that others who were
interviewed during the investigation and who allegedly complained about her,
Statements G, I, O, and P, did not have daily contact with her.
She acknowledges, however, that they expressed negative opinions about her.
PFR File, Tab 4 at 10-12. And, the appellant questions the investigator’s reliance
on the statements made by the appellant’s immediate supervisor and the Division
Chief, PFR File, Tab 4 at 12, because those individuals were the subject of the
investigation.
On review, the appellant maintains that the climate survey “was nothing
more than a venue for a disgruntled employee to complain,” and found no issues
with her performance. PFR File, Tab 4 at 16. She testified during the hearing,
however, that she was told that some of her subordinates believed that she
displayed favoritism toward certain employees. 3 HCD (testimony of the
appellant). The appellant has not provided a genuine challenge to the testimony
of the Chief of Staff regarding this survey, testimony which, as we have noted,
the administrative judge found credible and persuasive. ID at 18.
The admonishment the Chief of Staff issued to the appellant on
June 18, 2015, IAF, Tab 20 at 109, was for conducting a prohibited personnel
practice in violation of 5 U.S.C. § 2302(b)(12) (taking a personnel action in
violation of any law, rule, or regulation implementing or directly concerning the
3
The administrative judge found that no documentary evidence of this survey was cited
by the parties, and that he could not locate it in the record. ID at 17. Nor can we.
6
merit system principles of 5 U.S.C. § 2301). Specifically, according to the
admonishment, the appellant, in communications with a staffer, gave the
appearance that she had been “preselected” for a particular position. Id.On review, the appellant states only that the admonishment was to appease her
supervisor who wanted the appellant suspended for trying to correct an erroneous
transaction. PFR File, Tab 4 at 15. She does not, however, directly address the
basis for the admonishment.
In any event, to the extent the appellant challenges the agency’s assessment
of how she performed as a supervisor, the relevant inquiry in an IRA appeal is not
whether the appellant committed any actual misconduct, but whether the agency
had strong evidence to support its personnel action. See Yunus v. Department of
Veterans Affairs, 84 M.S.P.R. 78, ¶ 12 (1999), aff’d, 242 F.3d 1367 (Fed. Cir.
2001). An agency may direct an employee’s reassignment, without a reduction in
grade or pay, in a manner consistent with its rules and regulations and any
applicable collective bargaining agreement, as long as the reassignment is based
on legitimate management reasons. Shenwick v. Department of State,
92 M.S.P.R. 289, ¶ 11 (2002). The Chief of Staff’s testimony reflects that his
decision was influenced by the results of the investigation, the climate survey,
and the letter of admonishment he issued to the appellant. HCD (testimony of the
Chief of Staff). Having reviewed all the evidence of record, we find that the
appellant has not shown error in the administrative judge’s finding that the
agency presented strong evidence in support of its legitimate business reasons for
the appellant’s reassignment.
Regarding Carr factor (2), the existence and strength of any motive to
retaliate on the part of the agency officials involved in the decision, the
administrative judge stated that he perceived no retaliatory motive on the part of
the agency officials involved. ID at 19. He considered the Chief of Staff’s
testimony that, although it was recommended that the command take disciplinary
action against the appellant up to removal, he elected only to reassign her because
7
he viewed her as an intelligent and valued employee who greatly contributed to
the organization, but that, based on the results of the investigation, the climate
survey, and the admonishment, he concluded that she was not well-suited for a
supervisory position. The administrative judge also considered the Chief of
Staff’s testimony that he consulted with the Commanding General and the Staff
Judge Advocate’s Office before directing the appellant’s reassignment.
HCD (testimony of the Chief of Staff); IAF, Tab 6 at 35-36.
On review, the appellant essentially counters the administrative judge’s
assessment of a lack of retaliatory motive, claiming that the OIG complaint
reflected poorly on the Chief of Staff as the “senior official in the building on a
day to day basis” because he allowed “the situation” to escalate. PFR File, Tab 4
at 18. Although the Chief of Staff was not implicated in the IG complaint,
IAF, Tab 5 at 38, it is reasonable that the appellant’s comments that were
generally critical of her supervisor and the Division Chief would reflect poorly on
upper management, see Chavez v. Department of Veterans Affairs, 120 M.S.P.R.
285, ¶ 33 (2013). Therefore, while we acknowledge the administrative judge’s
finding that the Chief of Staff testified credibly regarding his view of the
appellant’s contributions to the organization, we find that he had at least a slight
motive to retaliate against her for filing the OIG complaint.
Finally, the administrative judge made no findings as to Carr factor (3),
any evidence that the agency takes similar actions against employees who are not
whistleblowers but who are otherwise similarly situated. However, the only other
individuals called out during the investigation for bad work-related deeds, but
who were not whistleblowers, were not similarly situated to the appellant because
she engaged in other misconduct. For example, the investigator recommended that
the appellant’s supervisor be issued an Official Written Reprimand for failure to
address improper treatment of staff or other inappropriate conduct within DHR
and allowing nepotism to influence an award submission for the husband of the
Division Chief, and that the Division Chief be suspended from duty for
8
committing a prohibited personnel practice. IAF, Tab 6 at 46. Instead, the Chief
of Staff issued Memoranda of Concern to both the appellant’s supervisor and the
Division Chief for their failure to foster a healthy command climate within the
directorate. IAF, Tab 19 at 56, 58. While the appellant’s directed reassignment
was harsher than the Memoranda of Concern that were issued to her supervisor
and the Division Chief, unlike those individuals, the appellant’s reassignment was
also based on other factors, specifically, the climate survey that revealed
problems with her management of her subordinates and her prior admonishment.
HCD (testimony of the Chief of Staff). For that reason, those two individuals are
not similarly situated to the appellant. 4 Therefore, Carr factor (3) is insignificant.
Runstrom v. Department of Veterans Affairs, 123 M.S.P.R. 169, ¶ 18 (2016)
(finding that, due to the lack of evidence that there were any employees similarly
situated to the appellant, the third Carr factor was not significant for the analysis
of that case).
Weighing the three Carr factors together, and notwithstanding the slight
motive to retaliate on the part of the Chief of Staff, we find, based on the strength
of the agency’s evidence in support of the appellant’s reassignment and the
insignificance of Carr factor (3), that the agency demonstrated by clear and
convincing evidence that it would have reassigned the appellant absent her
protected activity. We therefore find that the administrative judge properly
denied the appellant’s request for corrective action. 5
4
On review, the appellant refers to a WG-10 Heavy Mobile Equipment Mechanic
Inspector who she claims received a reduced suspension for discourtesy. PFR File,
Tab 4 at 18. The limited information the appellant has provided regarding this
individual suggests that he also is not similarly situated to her.
5
Because we agree with the administrative judge’s ultimate disposition, we have made
no findings on the timeliness of the appellant’s petition for review.
9
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).
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:
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.
10
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
11
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
12
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
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
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.
13
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.