Kathy Little v. Corporation for National and Community Service ( 2024 )

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
KATHY L. LITTLE, DOCKET NUMBER
Appellant, DC-0351-17-0747-I-1
v.
CORPORATION FOR NATIONAL DATE: May 29, 2024
AND COMMUNITY SERVICE,
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
E. Neal , Esquire, Annapolis, Maryland, for the appellant.
Diane Bradley , Esquire, Washington, D.C., 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
sustained her separation by reduction in force (RIF). 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
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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 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
and AFFIRM the initial decision, which is now the Board’s final decision.
5 C.F.R. § 1201.113(b).
The appellant held the excepted service position of Program Assistant for
the agency’s AmeriCorps Volunteers in Service to America (VISTA) program, in
Washington, D.C. Initial Appeal File (IAF), Tab 7 at 81. In March 2015, the
agency notified her that the position was being eliminated due to reorganization.
Id. The agency further explained that, pursuant to RIF procedures, she did not
have an assignment right to another position and would be separated. Id.The appellant retired on the date of her scheduled RIF separation. Id.
at 81, 93. She then challenged the RIF in an equal employment opportunity
(EEO) complaint, which was dismissed after the appellant filed the instant Board
appeal, challenging the RIF and raising EEO affirmative defenses. Id.
at 58-59, 76-79. After developing the record in this appeal, the appellant
withdrew her hearing request. IAF, Tab 85. Accordingly, the administrative
judge issued a decision based on the written record. IAF, Tab 130, Initial
Decision (ID).
The administrative judge first found that the Board had jurisdiction over
the RIF action, notwithstanding the appellant’s retirement. ID at 3 n.1. He also
denied several pending motions, including the appellant’s requests for an adverse
inference or other sanction. ID at 4-5.
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Turning to the merits of the appeal, the administrative judge found that the
agency met its burden of proof. ID at 5-27. Most notably, he made the following
findings: (1) the agency invoked a proper basis for the RIF, ID at 7-12; (2) the
agency properly established the competitive area, ID at 12-15; (3) the agency
placed the appellant in the proper competitive level or, in the alternative, any
associated error did not impact the appellant’s substantive rights, ID at 15-22; and
(4) the appellant was not denied priority reemployment or consideration
following her separation, ID at 23-27. The administrative judge further found
that the appellant failed to prove her claims of EEO disparate treatment, ID
at 27-33, harmful procedural error, ID at 33-34, or retaliation for engaging in
activity protected by 5 U.S.C. § 2302(b)(9)(B), ID at 34-35.
The appellant has filed a petition for review. Petition for Review (PFR)
File, Tab 1. The agency has filed a response, and the appellant has replied. PFR
File, Tabs 3-4.
The appellant’s motion to submit an additional pleading is denied.
After the petition for review, response, and reply, the appellant filed a
motion for leave to submit an additional pleading. PFR File, Tab 6. In short, the
appellant’s representative asserts that he uncovered new and material evidence for
the instant appeal while adjudicating the RIF separation of another agency
employee. Id. at 4-5. The agency filed a motion in opposition to the request.
PFR File, Tab 9.
The Board’s regulations provide for only four types of pleadings on review:
a petition for review, a cross petition for review, a response, and a reply to a
response. 5 C.F.R. § 1201.114(a)(1)-(4). The Board will not accept any other
pleading unless the party files a motion and obtains leave from the Clerk of the
Board to make such filing. 5 C.F.R. § 1201.114(a)(5). That motion must
describe the nature and need for the pleading. Id.While the appellant did provide some description of the nature and need for
her additional pleading, we are not persuaded. The appellant presents a lengthy
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list of conclusory assertions regarding the content of evidence she would like to
submit, why it is material, and why it was previously unavailable. PFR File,
Tab 6 at 4-11. Like many contained in her petition for review, these assertions
are presented without identifying any evidentiary support. In fact, the appellant’s
lengthy motion does not contain a single citation to the record.
To illustrate our point with an example, the appellant summarily states that
the new evidence—which reportedly consists of deposition testimony and some
additional documents—was previously unavailable because the agency should
have but failed to disclose a particular employee’s involvement in its RIF actions.
Id. at 6. Yet she has not directed us to anything regarding discovery requests and
responses, or other evidence about who was involved in the appellant’s RIF. The
appellant also asserts that the new evidence she wishes to submit “reveals the
agency built its case on false testimony and declarations.” Id. at 5. Yet she has
not directed us to the alleged false testimony or declarations.
The same is true for each of the appellant’s numerous assertions about her
request to submit an additional pleading. Among other things, she asserts or
insinuates that her new evidence demonstrates that the agency had ulterior
motives in conducting the RIF; that the agency altered pertinent records; that the
agency lied about relevant competitive area; that her duties remained despite the
RIF; that the agency should have, but failed to, give her priority reemployment;
and that the agency still has records previously thought to be destroyed. Id.
at 6-11. We are cognizant of the fact that the appellant could not cite to the
purported new evidence, since it was not yet part of the record. Nevertheless, the
appellant’s motion amounts to little more than an extensive list of bare assertions
of improprieties. As such, we deny her motion for leave to submit additional
arguments and evidence.
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The administrative judge did not abuse his discretion in denying the appellant’s
request for sanctions.
The appellant filed multiple requests for sanctions below. E.g., IAF,
Tabs 43, 45. One of those requests concerned the alleged spoliation of evidence.
In particular, the appellant noted that the agency’s former Director of Personnel
Operations provided deposition testimony indicating that she usually took
handwritten notes in meetings—which presumably included meetings during
which the appellant’s RIF was discussed—but probably threw all her notes away
when she separated from the agency. IAF, Tab 43 at 5 (referencing IAF, Tab 24
at 53-56). The administrative judge denied the appellant’s sanctions requests. ID
at 4-5, 22 n.9.
On review, the appellant argues that the administrative judge erred in
failing to grant her request for sanctions in the form of an adverse inference for
the destroyed handwritten notes. 2 PFR File, Tab 1 at 19-23. We are not
persuaded. See Leseman v. Department of the Army, 122 M.S.P.R. 139, ¶ 6
(2015) (recognizing that the Board will not reverse an administrative judge’s
determination regarding sanctions absent an abuse of discretion).
Both below and on review, the appellant’s arguments in favor of an adverse
inference rely on an assumption that the handwritten notes at issue should have
been maintained as a matter of law, regulation, or agency policy. E.g., IAF,
Tab 43 at 6; PFR File, Tab 1 at 19-21. However, the appellant has not directed us
to anything establishing the same. For example, the appellant refers to the
2
Within her arguments about spoliation and sanctions, the appellant included some
assertions, such as a claim that “[t]he agency, in bad-faith, altered a page by redacting
critical information from the competitive level code book.” PFR File, Tab 1 at 20.
However, it is unclear how this and other similar assertions relate to the surrounding
arguments about the administrative judge’s ruling on spoliation and sanctions. More
importantly, they amount to little more than bare and cursory assertions, unaccompanied
by citations to the record or pertinent law. As such, we will not address them further.
See Weaver v. Department of the Navy, 2 M.S.P.R. 129, 133 (1980) (finding that, before
the Board will undertake a complete review of the record, the petitioning party must
explain why the challenged factual determination is incorrect and identify the specific
evidence in the record that demonstrates the error).
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agency’s document retention handbook, but she does so without identifying where
that exists in the record, if at all. PFR File, Tab 1 at 22. The appellant’s petition
also includes several regulatory citations in support of her document retention
argument, but each appears to contain a typo or some other error, as they do not
correspond with actual regulations. Id. (citing 36 C.F.R. §§ 1222.42, .401;
36 C.F.R. § 1228.104).
Even if we assume that the agency should have but failed to preserve the
Director of Personnel Operations’ handwritten notes, we are not convinced that
the administrative judge abused his discretion in denying the request for
sanctions. Both below and on review, the appellant relies on our reviewing
court’s decision in Kirkendall v. Department of the Army, 573 F.3d 1318 (Fed.
Cir. 2009) to support her argument in favor of an adverse inference. Yet that case
is distinguishable from the circumstances at hand. In Kirkendall, the underlying
claim involved the rejection of a disabled veteran’s application for a vacant
position. Kirkendall, 573 F.3d at 1320. The court found that an adverse
inference was appropriate when the agency had destroyed the applications and
associated materials for other applicants. Id. at 1325-27. Among other things,
the court noted that the destroyed documents were undoubtedly relevant, and their
absence hampered or imperiled the appellant’s ability to compare his treatment to
the treatment of others and show that his rights were violated. Id. at 1326-27.
Here, the relevance and importance of the Director of Personnel
Operations’ handwritten notes is far less apparent. The deposition testimony the
appellant referred to suggests that the Director of Personnel Operations
oftentimes took a notebook to meetings, in which she took “notes to jog [her]
memory on something that [she] needed to do.” IAF, Tab 24 at 55. In other
words, she may have taken some RIF-related notes, but we are left to speculate as
to whether those notes were of any evidentiary value in this appeal. There is no
indication that the destroyed notes were the only, or even a primary, record of the
appellant’s RIF. Instead, the limited information the appellant has directed us to
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suggests that the destroyed notes consisted of little more than lists of to-dos or
other memory joggers, which is dissimilar to the destroyed evidence at issue in
Kirkendall.
The administrative judge properly sustained the appellant’s RIF.
In a RIF appeal such as this, the agency must establish by preponderant
evidence that it invoked the RIF regulations for an approved reason and
properly implemented the pertinent regulations, including those concerning
the establishment of an appellant’s competitive area and competitive level.
5 C.F.R. §§ 351.201(a)(2), .402, .403; see Abakan v. Department of
Transportation, 98 M.S.P.R. 662, ¶ 6 (2005). The appellant presents a number of
arguments or assertions that touch on these requirements, which we will address
in turn.
The reason for the RIF
Again, the agency’s burden includes proving that it invoked the RIF
regulations for an approved reason. Section 351.201(a)(2) lists the permissible
reasons to include, among other things, a lack of work or reorganization. See
Losure v. Interstate Commerce Commission, 2 M.S.P.R. 195, 199 (1980)
(describing an older iteration of the regulation that similarly included lack of
work and reorganization as permissible reasons for a RIF). The administrative
judge found that the agency proved that it invoked the RIF regulations for those
reasons—lack of work and reorganization. ID at 7-12. He credited a declaration
from the Director of VISTA, which contained an extensive description of the
appellant’s duties in her Program Assistant position, her workload, and an overall
need for reorganization of the VISTA program. ID at 8; IAF, Tab 114 at 7-10.
We note that this is further supported by, inter alia, a contemporaneous
memorandum describing the reorganization. IAF, Tab 53 at 63-64.
The administrative judge found no merit to the appellant’s various rebuttal
arguments. ID at 9-12; see Abakan, 98 M.S.P.R. 662, ¶ 6 (explaining that an
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agency may establish a prima facie case on the bona fides of its decision by
coming forward with evidence showing a RIF was undertaken for one of the
approved reasons, after which the burden of going forward with rebuttal evidence,
but not the burden of persuasion, shifts to the employee). Among other things, he
recognized that the appellant had identified some evidence of the agency posting
and filling vacancies before and after her separation, but that evidence did not
invalidate the agency’s rationale for the RIF because it involved agency-wide
recruitment, not recruitment specific to the appellant’s VISTA unit in
Washington, D.C. ID at 9-10 (referencing IAF, Tab 57 at 64-83, Tab 58 at 61-67,
Tab 87 at 66).
On review, the appellant again refers to the agency hiring other employees
as if that shows the agency’s reason for the RIF was invalid, PFR File, Tab 1
at 16, but she has not presented any basis for us to reach a conclusion different
than the administrative judge. She has not, for example, directed us to any
evidence showing what the agency hired new employees to do, where they were
hired, or why their hiring would rebut the agency’s two-fold rationale for the RIF
—lack of work and reorganization. See Weaver v. Department of the Navy,
2 M.S.P.R. 129, 133 (1980). The appellant separately argues that the
administrative judge “changed the agency’s rationale for the RIF, from lack of
clerical support to automation, even though that was rebutted by [the] appellant’s
first-line supervisor.” PFR File, Tab 1 at 16 (citing IAF, Tab 61 at 72-73, 76-77).
In doing so, she cites some specific deposition testimony of her supervisor, but it
is not apparent to us how that testimony, which generally discusses the evolution
of the appellant’s position over a number of years, bears any relevance to the
question of whether the agency invoked the RIF regulations for an approved
reason. IAF, Tab 61 at 72-73, 76-77. Moreover, despite the appellant’s
assertion, we find no inconsistency between the agency’s rationale, as described
in the VISTA Director’s statement, made under the penalty of perjury, and the
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administrative judge’s discussions of the same. Compare ID at 8, with IAF,
Tab 114 at 7-10.
Competitive area
The pertinent regulations provide that, in conducting a RIF, an agency must
delineate one or more competitive areas in which employees compete for
retention. 5 C.F.R. § 351.402(a). A competitive area must be defined solely in
terms of the agency’s organizational units and geographical location, and the
minimum competitive area is a subdivision of the agency under separate
administration within the local commuting area. 5 C.F.R. § 351.402(b).
The agency identified the competitive area for its RIF as the VISTA office
in Washington, D.C. E.g., IAF, Tab 7 at 81. To the extent that the appellant
argued that the competitive area should have or did also include the VISTA office
in Austin, Texas, where a vacant position was eliminated around the same time as
the appellant’s separation by RIF, the administrative judge was not persuaded. ID
at 13-14. He further found that there was no evidence that the appellant would
have been retained, even if the competitive area had included the VISTA Austin
office. ID at 14-15. Finally, the administrative judge found that, even if the
agency violated 5 C.F.R. § 351.402(c), which requires that a description of the
competitive area be submitted to the Office of Personnel Management (OPM) for
approval if the competitive level will be in effect less than 90 days prior to the
effective date of a RIF, the error did not affect the appellant’s substantive
entitlements. ID at 15; see Foster v. Tennessee Valley Authority, 87 M.S.P.R. 48,
¶¶ 10, 13 (2000) (stating that the Board will not reverse a RIF action if an agency
fails to comply with the RIF regulations but the error had no adverse effect on the
employee’s substantive entitlements).
On review, the appellant reasserts that the competitive area for her RIF did
include VISTA Austin, despite her RIF notice and other evidence reflecting
otherwise. PFR File, Tab 1 at 10-11. She does so, in part, by alleging that the
aforementioned reorganization memorandum listed the competitive area as
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including VISTA Austin. However, that is a mischaracterization of the evidence.
While the memorandum the appellant cites does discuss reorganization of both
offices, the memorandum is silent regarding the designated competitive area for
the RIF. IAF, Tab 53 at 63-65. The other evidence the appellant referred us to,
which indicates that some positions outside of VISTA DC were eliminated around
the same time as the appellant’s, is similarly silent regarding the competitive area
for the appellant’s RIF. IAF, Tab 58 at 72, Tab 61 at 198-99. Further, while the
appellant presents a bare assertion that she would have been retained over VISTA
Austin employees if that office were included in the competitive area, PFR File,
Tab 1 at 10-11, she has identified no evidence to show that the administrative
judge erred in concluding otherwise, see Weaver, 2 M.S.P.R. at 133.
Elsewhere in her petition, the appellant asserts that there is “substantial
evidence showing the agency defined the competitive area on the basis of where
[the] appellant’s work was performed, which is prohibited.” PFR File, Tab 1
at 16-17. Setting aside whether the appellant is accurately characterizing
the limitations on an agency’s establishment of a competitive area, she has
again failed to identify what evidence supports her claim. See Weaver,
2 M.S.P.R. at 133. The lone record citation the appellant provided appears to be
a typo, because it refers to a discussion of reemployment rights, not the
applicable competitive area. PFR File, Tab 1 at 17 (citing IAF, Tab 60 at 20).
In what appears to be her final argument pertaining to the competitive area
of her RIF, the appellant reasserts that the agency failed to comply with
5 C.F.R. § 351.402(c), the provision requiring OPM approval if a competitive
level is established less than 90 days before a RIF. PFR File, Tab 1 at 23-24.
However, she failed to present any argument about the administrative judge’s
findings concerning the same, i.e., that any such error on the part of the agency
did not affect the appellant’s substantive entitlements. ID at 15. Therefore, we
will not address the matter further.
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Competitive level
The agency bears the burden of proving that the appellant’s competitive
level was properly drawn. McKenna v. Department of the Navy,
105 M.S.P.R. 373, ¶ 10 (2007). To meet its burden, the agency must establish
distinguishing features between positions in separate competitive levels that are
sufficient as a matter of law to find that the positions are not “similar enough in
duties, qualifications requirements, pay schedules, and working conditions so that
an agency may reassign the incumbent of one position to any of the other
positions in the level without undue interruption.” Id. (quoting 5 C.F.R.
§ 351.403(a)(1)). “Without undue interruption” means without any loss to
productivity beyond that normally expected in the orientation of any new, but
fully qualified employee. Id., ¶ 10 & n.2; see 5 C.F.R. § 351.203. Absent
evidence of patent unfairness or bad faith, the Board may properly defer to an
agency’s determination of the requirements an individual must satisfy to qualify
for a particular position. Hayes v. Department of Health and Human Services,
829 F.2d 1092, 1100 (Fed. Cir. 1987).
The agency assigned the appellant to competitive level 0005. IAF, Tab 7
at 81. According to the agency and its documentation of the VISTA Washington
D.C. office, there were no employees for the appellant to compete with for
retention; she was the only Program Assistant, the only employee in her grade
and classification series, and the only employee in her competitive level. Id.
at 11, 96-118, 122.
Both below and on review, the appellant has argued that she should have
been placed in competitive level 0013, not 0005, where she would have competed
with, and been retained over, one other individual—a temporary appointee in a
Program Support Assistant position. E.g., PFR File, Tab 1 at 6-10. The
administrative judge found that the record presented a muddled picture
concerning the appellant’s competitive level, or at least its coding. ID at 16.
Among other things, he recognized and considered conflicting documentation
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about the coding number identified as the appellant’s competitive level, i.e., 0005
or 0013. ID at 16-18. Nevertheless, the administrative judge found that the
appellant’s Program Assistant position was not mutually interchangeable with the
Program Support Assistant position. ID at 18-21. Among other things, he noted
that the former included a broad scope of duties and required a broad set of
abilities. ID at 19-20. To illustrate, one of the many duties of the appellant’s
Program Assistant position was to “[a]ssist[] in the development, management,
and implementation of grant programs and initiatives in conjunction with
[agency] priorities.” IAF, Tab 50 at 45. An associated job requirement was
“[k]nowledge of grants management including program and proposal
development; program implementation and management.” Id. at 46. Another job
requirement was “basic working knowledge of the procurement fundamentals
related to a large government or non-profit environment.” Id. In contrast, all of
the duties and job requirements for the Program Support Assistant position
generally involved event planning and coordinating. IAF, Tab 53 at 44-45.
Therefore, regardless of coding numbers, the administrative judge concluded that
the agency properly determined that the Program Assistant and Program Support
Assistant did not belong in the same competitive level. ID at 21.
The appellant’s arguments on review do not persuade us otherwise.
Throughout her petition, the appellant reiterates that the temporary Program
Support Assistant would have been separated before or instead of her if their two
positions had been in the same competitive level. PFR File, Tab 1 at 7-10, 15-16.
She also directs us to inconsistencies in the record regarding the coding for her
position, like those specifically discussed by the administrative judge. Id.
at 6-10. However, the appellant has failed to present any substantive argument
about the underlying question—whether her Program Assistant position was
mutually interchangeable with the Program Support Assistant position or any
other position in VISTA Washington D.C., such that they belonged in the same
competitive level. Instead, the appellant summarily asserts that the
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administrative judge abused his discretion in finding that her Program Assistant
position and that of the Program Support Assistant were not interchangeable. Id.
at 10. We will not address this bare assertion any further. See Weaver,
2 M.S.P.R. at 133.
Uniform and consistent application of the RIF provisions
Separate from her arguments about the reason for the RIF, the competitive
area, and the competitive level, the appellant argues that the RIF was improper
because it was not carried out in the same way as other agency RIFs. PFR File,
Tab 1 at 14-15 (referencing 5 C.F.R. § 351.201(c)). Specifically, the appellant
alleges that other RIFs were both proposed and approved, while the RIF that led
to her separation was merely proposed, without ever being formally approved. Id.As an initial matter, it is not apparent to us that the appellant preserved this
argument by raising it below. See Banks v. Department of the Air Force,
4 M.S.P.R. 268, 271 (1980) (stating that the Board generally will not consider an
argument raised for the first time in a petition for review absent a showing that it
is based on new and material evidence not previously available despite the party’s
due diligence). The issue is not identified below in her written submission
identifying the issues for adjudication, the administrative judge’s close of record
order, or the initial decision. IAF, Tab 86 at 1-2, Tab 87 at 15; ID at 7.
Moreover, even if the appellant both preserved the argument and accurately
identified a difference among the agency’s RIFs, her reliance on 5 C.F.R.
§ 351.201 is misplaced. The regulation provides that an “agency is responsible
for assuring that the [RIF] provisions . . . are uniformly and consistently applied
in any one reduction in force.” 5 C.F.R. § 351.201(c) (emphasis added). It is
silent as to inconsistencies between separate RIFs.
The administrative judge made proper findings regarding priority consideration
and reemployment.
In addition to disputing the merits of her separation by RIF, the appellant
presented an alternative argument. She asserted that, if her RIF separation was
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proper, the agency should have but failed to give her priority consideration and
reemployment. E.g., IAF, Tab 87 at 80-82. The administrative judge disagreed
for several reasons. ID at 23-26. Among other things, he found that, while
agency policy did provide for priority consideration in certain circumstances, the
appellant failed to complete the associated paperwork and failed to apply for any
position, both of which were required under the agency’s policies. ID at 24-25;
IAF, Tab 6 at 41, Tab 7 at 91.
On review, the appellant summarily asserts that she did complete the
appropriate paperwork. PFR File, Tab 1 at 11. Yet she has failed to identify
where we might find that paperwork in the record. And the reemployment
priority list registration form we have located is incomplete, just as the
administrative judge found. ID at 25; IAF, Tab 7 at 91. The appellant provided
some basic biographical information, but she failed to otherwise complete the
form by identifying the positions for which she wished to be considered. IAF,
Tab 7 at 91.
The appellant also suggests that it was not her responsibility to search for
and apply to vacant positions. Instead, she argues that the agency should have
notified her of any positions that became available during the 1-year
reemployment period, and deposition testimony proves as much. PFR File, Tab 1
at 11-12. According to the appellant, the agency stated it was obligated to notify
her of vacant positions. Id. at 12. We disagree. In deposition testimony she has
referred us to, the Chief Human Capital Officer explained that, if the appellant
had completed the appropriate paperwork and was qualified for a position that
became available, “[he] would assume that they would have notified her.” IAF,
Tab 60 at 77, 116. He then noted, though, that he did not know whether the
agency was obligated to do so. Id. at 116. And the written policies we located in
the record contain no such obligation. IAF, Tab 6 at 41, Tab 7 at 40. As a result,
we discern no basis for disagreeing with the administrative judge’s conclusion;
the appellant was not improperly denied priority consideration and reemployment.
15
We are not persuaded by the appellant’s arguments or the ambiguous deposition
testimony to which she has referred.
The appellant’s remaining arguments are unavailing.
The appellant has presented a number of other arguments, but we are not
persuaded by any of them. To illustrate, she asserts that the administrative judge
erred in denying her affirmative defense of age and race discrimination. PFR
File, Tab 1 at 12-13. However, in doing so, the appellant has simply claimed that
she presented evidence relevant to her discrimination claims, without providing
relevant citations to the record and without identifying any specific error by the
administrative judge. Id.; see Weaver, 2 M.S.P.R. at 133. Other arguments, such
as one that her separation by RIF was motivated by agency bias and disdain for
her, personally, fail for the same reason. PFR File, Tab 1 at 24-28.
We separately note the appellant’s assertion that she offered proof of prior
inconsistent and conflicting statements of agency officials, but the administrative
judge ignored the same. Id. at 17-19. In making this argument, the appellant did
not specifically identify any inconsistent or conflicting statements that the
administrative judge should have further considered. Instead, she refers us to a
portion of her closing argument from below, wherein the appellant presented
extensive allegations of inconsistencies and improprieties. Id. at 17 (citing IAF,
Tab 87 at 46-62, Tab 122 at 5-6). For example, the first of those arguments from
below is that the agency provided conflicting statements about whether a
particular agency official was her second or third level supervisor. IAF, Tab 87
at 47-48. The next is an insinuation that, based in part on his pay history, this
same official was biased and unqualified. Id. at 48. While the aforementioned
arguments are of little or no apparent relevance to the issues at hand, some others
are unavailing because they amount to bare assertions, unsupported by citations to
evidence. Id. at 48-49. More importantly, in the absence of more specific
arguments and citations to the record in her petition for review, we will not pore
over the appellant’s extensive closing argument from below to compare it with
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the initial decision in search of errors. See 5 C.F.R. § 1201.114(b) (a petition for
review states a party’s objections to the initial decision, including all of the
party’s legal and factual arguments, and must be supported by references to
applicable laws or regulations and by specific references to the record); see also
Marques v. Department of Health and Human Services, 22 M.S.P.R. 129, 132
(1984) (stating that the administrative judge’s failure to mention all of the
evidence of record does not mean that he did not consider it in reaching his
decision), aff’d, 776 F.2d 1062 (Fed. Cir. 1985) (Table).
In conclusion, the appellant’s petition for review presents no basis for
reaching a conclusion different than that of the administrative judge, sustaining
the appellant’s separation.
NOTICE OF APPEAL RIGHTS 3
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
3
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.
17
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
18
judicial review of this decision—including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board, 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court-appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
19
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in
section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)
(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either
with the U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction. 4 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
4
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.
20
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.