Constance Linzy v. Department of Housing and Urban Development ( 2024 )

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
CONSTANCE M. LINZY, DOCKET NUMBER
Appellant, DC-0432-17-0798-I-1
v.
DEPARTMENT OF HOUSING AND DATE: February 7, 2024
URBAN DEVELOPMENT,
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Charles T. Tucker, Jr. , Esquire, Hyattsville, Maryland, for the appellant.
Elan Adounvo and Nicole Y. Drew , 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
sustained the agency’s 5 U.S.C. chapter 43 performance-based removal action.
On petition for review, the appellant argues that the administrative judge
erroneously relied on hearsay evidence, unfairly disallowed certain witness
testimony, discredited some of her factual arguments, and exhibited bias.
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
Generally, we grant petitions such as this one only in the following
circumstances: the initial decision contains erroneous findings of material fact;
the initial decision is based on an erroneous interpretation of statute or regulation
or the erroneous application of the law to the facts of the case; the administrative
judge’s rulings during either the course of the appeal or the initial decision
were not consistent with required procedures or involved an abuse of discretion,
and the resulting error affected the outcome of the case; or new and material
evidence or legal argument is available that, despite the petitioner’s due
diligence, was not available when the record closed. Title 5 of the Code of
Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). After fully
considering the filings in this appeal, we conclude that the petitioner has not
established any basis under section 1201.115 for granting the petition for review.
Therefore, we DENY the petition for review. Except as expressly MODIFIED
regarding the appellant’s affirmative defense of retaliation for protected equal
employment opportunity (EEO) activity, we AFFIRM the initial decision.
The Board has consistently followed the well-settled principle that hearsay
evidence is admissible in administrative proceedings. Jackson v. Department of
the Army, 10 M.S.P.R. 90, 93 (1982) (citing Borninkhof v. Department of Justice,
5 M.S.P.R. 77 (1981)). In appeals before the Board, the trier of fact is
responsible for weighing the probative value of hearsay evidence under the
circumstances of each case. Borninkhof, 5 M.S.P.R. at 84. The trier of fact also
has broad discretion to regulate the course of the hearing and to exclude evidence
and witnesses that have not been shown to be relevant, material, and
nonrepetitious. Thomas v. U.S. Postal Service, 116 M.S.P.R. 453, ¶ 4 (2011);
5 C.F.R. § 1201.41(b)(8), (10).
We find that the administrative judge did not abuse his discretion in
disallowing some of the appellant’s proffered witnesses on account of relevance.
Initial Appeal File (IAF), Tab 31 at 3-4; see 5 C.F.R. § 1201.41(b)(8), (10).
We also find that the administrative judge properly weighed the witness
3
testimony and considered the totality of the evidence in the record, including the
appellant’s factual arguments. IAF, Tab 34, Initial Decision (ID) at 6-14.
We therefore find no reason to disrupt his findings. See Kramer v. Veterans
Administration, 23 M.S.P.R. 271, 274 (1984) (finding that mere conclusory
allegations of factual error are not sufficient to trigger a complete review of the
record), aff’d, 776 F.2d 1061 (Fed. Cir. 1985) (Table).
We also find the appellant’s allegations of bias to be without merit. The
Board has consistently held that, in making a claim of bias against an
administrative judge, the appellant must overcome the presumption of honesty
and integrity that accompanies all administrative adjudicators. Washington v.
Department of the Interior, 81 M.S.P.R. 101, 103-04 (1999) (citing In re King,
1 M.S.P.R. 146, 151 (1979)). This presumption can be overcome only by a
substantial showing of personal bias. Williams v. U.S. Postal Service,
87 M.S.P.R. 313, ¶ 12 (2000). An administrative judge’s conduct during the
course of a Board proceeding warrants a new adjudication only if the
administrative judge’s comments or actions indicate a deep-seated favoritism or
antagonism that would render fair judgment impossible. Simpkins v. Office of
Personnel Management, 113 M.S.P.R. 411, ¶ 5 (2010). The record is devoid of
any such evidence of bias.
While the petition for review in this case was pending, the U.S. Court of
Appeals for the Federal Circuit issued Santos v. National Aeronautics and Space
Administration, 990 F.3d 1355, 1363 (Fed. Cir. 2021), in which it held that part
of an agency’s burden in a chapter 43 appeal is to prove by substantial evidence
that the appellant’s performance was unsatisfactory in the period leading up to
her opportunity to demonstrate acceptable performance. In other words, the
agency is required to justify its decision to invoke chapter 43 performance
improvement procedures in the first instance. Id. at 1362. The Federal Circuit
overruled Board precedent to the contrary. See id. at 1360. Santos applies to all
cases pending before the Board, regardless of when the events at issue took place.
4
Lee v. Department of Veterans Affairs, 2022 MSPB 11, ¶ 16. We have considered
the effect of Santos on the instant appeal, and we find that it does not require a
different result or any further proceedings. The administrative judge in this case
actually adjudicated the issue and correctly found that the agency provided
substantial evidence to show that the appellant’s performance had been
unsatisfactory for several months prior to the opportunity to improve plan. ID
at 5, 16-17.
Regarding the appellant’s claim of retaliation for EEO activity, the
administrative judge adjudicated that as an alleged violation of 42 U.S.C.
§ 2000e-16 and found that the appellant failed to prove that retaliation was a
motivating factor in her removal. ID at 21-23. However, the protected activity at
issue—requesting a reasonable accommodation—is protected under the
Rehabilitation Act, and not under Title VII. Therefore, the administrative judge
should have applied a “but-for” causation standard rather than a motivating factor
standard. 2 Pridgen v. Office of Management and Budget, 2022 MSPB 31,
¶¶ 43-47. Nevertheless, we see no basis to disturb the administrative judge’s
findings of fact, and because the appellant did not prove that retaliation was a
motivating factor in her removal, she necessarily did not prove that it was a
“but-for” cause. Therefore, we affirm the administrative judge’s finding, as
modified, to find that the appellant did not prove that her protected EEO activity
was a “but-for” cause of her removal.
2
At the time that the administrative judge issued his initial decision, the Board’s case
law stated that claims of retaliation under the Rehabilitation Act were subject to the
same motivating factor causation standard as claims of retaliation under Title VII.
Southerland v. Department of Defense, 119 M.S.P.R. 566, ¶ 20 (2013), overruled by
Pridgen v. Office of Management and Budget, 2022 MSPB 31, ¶ 47.
5
NOTICE OF APPEAL RIGHTS 3
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:
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.
6
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
7
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
8
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
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.
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.
9
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.