Cathea Simelton v. Department of Agriculture ( 2024 )

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
CATHEA M. SIMELTON, DOCKET NUMBER
Appellant, AT-0752-17-0741-I-2
AT-0752-20-0121-I-2
v.
DEPARTMENT OF AGRICULTURE, DATE: July 26, 2024
Agency.
THIS ORDER IS NONPRECEDENTIAL 1
Danielle B. Obiorah , Esquire, Jonesboro, Georgia, for the appellant.
Debra D’Agostino , Esquire, and Louise E. Ryder , Esquire,
Washington, D.C., for the appellant.
Juan Carlos Alarcon , Rory Layne , Esquire, and Domiento Hill , Esquire,
Washington, D.C., for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
Henry J. Kerner, Member
REMAND ORDER
¶1 The agency has filed a petition for review of the initial decision in Simelton
v. Department of Agriculture, MSPB Docket No. AT-0752-17-0741-I-2, which
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
reversed the appellant’s removal pursuant to 5 U.S.C. chapter 75 on due process
grounds. The appellant has filed a petition for review of the initial decision in
Simelton v. Department of Agriculture, MSPB Docket No. AT-0752-20-0121-I-2,
which sustained her subsequent removal under the procedures of 5 U.S.C.
chapter 43. For the reasons discussed below, we JOIN the appeals on our own
motion. 2 We GRANT the agency’s petition for review in the 0741 matter and
VACATE the initial decision. We GRANT the appellant’s petition for review in
the 0121 matter and VACATE the initial decision. We REMAND both appeals to
the regional office for further adjudication in accordance with this Remand Order .
BACKGROUND
¶2 The appellant was formerly employed by the agency as an Equal
Opportunity Specialist until the agency removed her for unacceptable
performance, effective August 11, 2017. Simelton v. Department of Agriculture,
MSPB Docket No. AT-0752-17-0741-I-1, Initial Appeal File (0741 IAF), Tab 8
at 18-26. As authority for its action, the agency’s proposal notice and Standard
Form 50 documenting the removal cited the regulations at 5 C.F.R. part 432. Id.
at 18, 33. The appellant filed a Board appeal challenging her removal and raising
affirmative defenses of discrimination based on race, sex, and disability,
whistleblower retaliation, and harmful procedural error. 0741 IAF, Tab 1 at 6,
Tab 15 at 6. In her prehearing submission, the appellant asserted that the agency
could not meet its burden of proof in support of its action under 5 U.S.C.
chapter 43 because it could not show that the Office of Personnel Management
(OPM) had approved its performance appraisal system. 0741 IAF, Tab 15 at 7.
Noting that this issue was potentially dispositive, the administrative judge
ordered the parties to submit written briefs on the issue. 0741 IAF, Tab 27 at 4.
In response, the agency argued that OPM had properly approved its performance
2
On our own motion, we have joined these appeals pursuant to 5 C.F.R.
§ 1201.36(a)(2), (b). We find that joinder is appropriate because it will expedite the
processing of these appeals and will not adversely affect the interests of the parties.
3
appraisal system but, in the alternative, it requested to proceed with processing
the appeal under 5 U.S.C. chapter 75 if the administrative judge determined that it
could not proceed under chapter 43. 0741 IAF, Tab 28 at 4-5. According to the
parties, during a status conference on or about March 9, 2018, the administrative
judge indicated his preliminary intent to rule against the agency on this issue.
0741 IAF, Tab 33 at 4; Simelton v. Department of Agriculture, MSPB Docket
No. AT-0752-17-0741-I-2, Petition for Review (0741 PFR) File, Tab 1 at 11-12.
Thereafter, the administrative judge dismissed the appeal without prejudice to
allow further consideration of this, and other, issues. 0741 IAF, Tab 34.
¶3 After the appeal was refiled, the agency moved to have the removal action
considered under the procedures and requirements of chapter 75 rather than
chapter 43. Simelton v. Department of Agriculture, MSPB Docket No. AT-0752-
17-0741-I-2, Refiled Appeal File (0741 RAF), Tab 3. The appellant opposed the
agency’s motion, asserting, among other things, that the agency’s proposal and
decision letters failed to state how the removal would “promote the efficiency of
the service,” and thus, that she lacked the opportunity to argue to the agency’s
deciding official regarding the factors set forth in Douglas v. Veterans
Administration, 5 M.S.P.R. 280, 305-06 (1981) (the Douglas factors). 0741 RAF,
Tab 4 at 8-10. The administrative judge granted the agency’s motion and
redocketed the appeal as a chapter 75 appeal. 0741 RAF, Tab 5. The parties
were permitted an opportunity to engage in further discovery as it pertained to the
new issues presented as an adverse action under chapter 75. Id. at 2. After
holding a partial hearing, the administrative judge issued an initial decision
reversing the removal action on due process grounds. 3 0741 RAF, Tab 39, Initial
Decision (0741 ID). In particular, he found that the deciding official’s failure to
consider the Douglas factors amounted to a violation of the appellant’s
3
Having determined that there was a due process violation, the administrative judge
adjourned the hearing after a portion of the deciding official’s testimony, without
hearing the testimony of the agency’s remaining witnesses or the appellant’s witnesses.
0741 RAF, Tab 34-5, Hearing Recording, at 5:30-8:30.
4
constitutional due process rights. 0741 ID at 6-8 (citing Stone v. Federal Deposit
Insurance Corporation, 179 F.3d 1368, 1374-75 (Fed. Cir. 1999)). The agency
filed a petition for review, which the appellant opposed. 0741 PFR File,
Tabs 1, 3.
¶4 While the agency’s petition for review was pending in the 0741 matter, on
May 24, 2019, the agency reissued a new proposal to remove the appellant for
unacceptable performance, pursuant to 5 U.S.C. chapter 43. Simelton v.
Department of Agriculture, MSPB Docket No. AT-0752-20-0121-I-1, Initial
Appeal File (0121 IAF), Tab 13 at 104-20. The new proposal was premised on
the same alleged performance issues that predicated the first removal action. Id.;
0741 IAF, Tab 8 at 33-47. The appellant submitted oral and written responses to
the proposal. E.g., 0741 IAF, Tab 7 at 40-60, 93-100. By letter dated
September 19, 2019, the deciding official sustained the May 2019 proposed
removal, and the agency removed the appellant from Federal service. 0121 IAF,
Tab 25 at 38-46. The appellant filed a Board appeal challenging the second
removal action and raising affirmative defenses of retaliation for engaging in
protected equal employment opportunity (EEO) activity and violations of her due
process rights. 0121 IAF, Tab 1; Simelton v. Department of Agriculture, MSPB
Docket No. AT-0752-20-0121-I-2, Refiled Appeal File (0121 RAF), Tab 13
at 30-33. After a hearing, the administrative judge 4 upheld the appellant’s
removal and denied her affirmative defenses. 0121 RAF, Tab 15, Initial Decision
(0121 ID). The appellant filed a petition for review, and the agency filed a
response. Simelton v. Department of Agriculture, MSPB Docket No. AT-0752-
20-0121-I-2, Petition for Review (0121 PFR) File, Tabs 4, 6.
4
The 0121 appeal was assigned to a different administrative judge than the
0741 appeal.
5
DISCUSSION OF ARGUMENTS ON REVIEW
We reverse the administrative judge’s finding that the agency committed a due
process violation regarding the first removal action and remand the 0741 appeal
for further adjudication.
¶5 In its petition for review in the 0741 matter, the agency disputes what it
characterizes as the administrative judge’s oral ruling that OPM had not approved
its performance appraisal system. 0741 PFR File, Tab 1 at 15-19. Although
unclear, it does not appear that the administrative judge orally ruled that the
agency’s performance system was not approved by OPM but, rather, that he
appears to have notified the parties of his intent to do so. 0741 IAF, Tab 33 at 4;
0741 PFR File, Tab 1 at 11-12. According to the agency, during the status
conference, the administrative judge verbally informed the parties that he
intended to rule against the agency on this issue and, therefore, reverse the
removal of the appellant, but he wanted additional time to consider the
ramifications of the appellant’s affirmative defenses. 0741 PFR File, Tab 1
at 11-12. This is consistent with the initial decision that dismissed the appeal
without prejudice. 0741 IAF, Tab 34 at 3-4. Regardless, the record reflects that
the agency moved to process the appeal pursuant to chapter 75 rather than
chapter 43, the administrative judge granted the agency’s motion, and a partial
hearing was held construing the agency’s action under chapter 75. 0741 RAF,
Tabs 3, 5, 34. The agency did not object to proceeding under chapter 75 and did
not pursue an interlocutory appeal concerning any alleged ruling it believed that
the administrative judge had made on the chapter 43 issue. 5 See 5 C.F.R.
§§ 1201.91-1201.93. Thus, we find that, at this stage of the appeal, the agency
cannot now challenge the administrative judge’s order granting its motion to
process the appeal as a chapter 75 removal appeal. Cf. McCarthy v. International
5
The agency asserts on review that the administrative judge’s purported oral ruling
prevented it from filing an interlocutory appeal. 0741 PFR File, Tab 1 at 15. However,
there is no evidence that the agency requested a written ruling or otherwise objected to
the administrative judge’s purported oral ruling.
6
Boundary and Water Commission, 116 M.S.P.R. 594, ¶ 25 (2011) (finding that
the appellant’s failure to timely object to rulings during the hearing precluded his
doing so on petition for review), aff’d, 497 F. App’x 4 (Fed. Cir. 2012); Tarpley
v. U.S. Postal Service, 37 M.S.P.R. 579, 581 (1988) (finding that the appellant’s
failure to timely object to the administrative judge’s rulings on witnesses
precluded his doing so on petition for review).
¶6 We find, however, that the administrative judge erred in finding that the
agency’s failure to consider the Douglas factors amounted to a due process
violation. According to the initial decision, the deciding official testified that, at
the time she made her decision to remove the appellant, she did not consider any
mitigating factors under Douglas. 0741 ID at 7-8. The administrative judge
found that this constituted a “clear-cut due process violation” under Stone. Id.Thus, the administrative judge found that the appellant was not afforded a
meaningful opportunity to invoke the deciding official’s discretion concerning the
penalty prior to her removal. Id. For the reasons set forth below, we disagree.
¶7 In Cleveland Board of Education v. Loudermill, 470 U.S. 532, 546 (1985),
the Supreme Court held that the government’s failure to provide a tenured public
employee with an opportunity to present a response, either in person or in writing,
to an action that deprives him of his property right in his employment constitutes
an abridgement of his constitutional right to due process of law. The Court
explained that the minimum due process requirements are notice of the charges
against the employee, an explanation of the employer’s evidence, and an
opportunity for the employee to present his side of the story and explain why a
proposed action should not be taken. Loudermill, 470 U.S. at 546. The Court
further explained that the opportunity to respond to a proposed adverse action is
valuable in rendering an accurate decision because an adverse action will often
involve factual disputes, and consideration of the employee’s response may
clarify such disputes. Id. at 543; see Stone, 179 F.3d at 1376. Further, “[e]ven
where the facts are clear, the appropriateness or necessity of the [penalty] may
7
not be,” and in such cases, the employee must receive a “meaningful opportunity
to invoke the discretion of the decisionmaker.” Loudermill, 470 U.S. at 543; see
Stone, 179 F.3d at 1376; see also Buelna v. Department of Homeland Security,
121 M.S.P.R. 262, ¶ 28 (2014) (holding that an appellant’s due process rights
under Loudermill include the right to invoke the discretion of a deciding official
with authority to select from available alternative penalties). Thus, “the
employee’s response is essential not only to the issue of whether the allegations
are true, but also with regard to whether the level of penalty to be imposed is
appropriate.” Stone, 179 F.3d at 1376.
¶8 We disagree with the administrative judge’s finding that the appellant’s
constitutional due process right to invoke the discretion of a deciding official
under Loudermill requires an agency to expressly consider the Douglas factors.
The nature of the Board’s review of the reasonableness of an agency-imposed
penalty derives from the Civil Service Reform Act of 1978 and is not a matter of
constitutional right. See Ryan v. Department of Homeland Security, 793 F.3d
1368, 1372 (Fed. Cir. 2015) (noting that, in Douglas, the Board addressed the
question of whether its statutory authority includes authority to modify or reduce
a penalty imposed on an employee by an agency’s adverse action). Further, as
the Board noted in Douglas, the factors are nonexhasutive, and not all of the
factors will be pertinent in every case. Douglas, 5 M.S.P.R. at 305-06; see also
Farrell v. Department of the Interior, 314 F.3d 584, 594 (Fed. Cir. 2002) (noting
that the U.S. Court of Appeals for the Federal Circuit does not require the Board
to consider every one of the 12 Douglas factors); Nagel v. Department of Health
and Human Services, 707 F.2d 1384, 1386 (Fed. Cir. 1983) (noting that the Board
“never intended that each [Douglas] factor be applied mechanically” and that
“neither statute nor regulation requires an agency to demonstrate that it
considered all mitigating factors”); Chavez v. Small Business Administration,
121 M.S.P.R. 168, ¶ 9 (2014) (stating that a deciding official does not have to
consider each of the Douglas factors in making his penalty determination).
8
¶9 Moreover, the Board has not reversed agency actions on due process
grounds when an agency fails to properly consider the Douglas factors. Rather,
the Board has held that, when an agency fails to properly consider the Douglas
factors, the Board need not defer to the agency’s penalty determination. See, e.g.,
Wiley v. U.S. Postal Service, 102 M.S.P.R. 535, ¶ 15 (2006), aff’d, 218 F. App’x
1001 (Fed. Cir. 2007); Omites v. U.S. Postal Service, 87 M.S.P.R. 223, ¶¶ 10-11
(2000); Wynne v. Department of Veterans Affairs, 75 M.S.P.R. 127, 135 (1997);
Harper v. Department of the Air Force, 61 M.S.P.R. 446, 448 (1994); see also
McClaskey v. Department of Energy, 720 F.2d 583, 588 (9th Cir. 1983) (rejecting
the petitioner’s argument that the agency failed to weigh the Douglas factors and
holding that the relevant inquiry is whether the Board applied the Douglas
factors, whether or not the agency applied those criteria), aff’d, 720 F.2d 583 (9th
Cir. 1983). 6 Under such circumstances, the Board has the authority to mitigate an
agency’s penalty. See Lachance v. Devall, 178 F.3d 1246, 1251, 1260 (Fed. Cir.
1999) (setting forth the Board’s authority to mitigate an agency’s penalty after
consideration of the relevant Douglas factors if it finds the agency’s penalty too
severe); Douglas, 5 M.S.P.R. at 306 (stating that, only if the Board finds that the
agency failed to weigh the relevant factors, or that the agency’s judgment clearly
exceeded the limits of reasonableness, is it appropriate for the Board then to
specify how the agency’s decision should be corrected to bring the penalty within
the parameters of reasonableness).
¶10 Here, the record reflects that the appellant was afforded advance written
notice of her removal based on her alleged performance deficiencies and the
agency’s reasons for her removal. 0741 RAF, Tab 8 at 10-24. She was also
afforded a meaningful opportunity to respond orally and in writing, which
included a meaningful opportunity to invoke the discretion of the deciding
6
The decisions of circuit courts, other than the Federal Circuit, are generally not
binding on the Board, but the Board may follow such decisions if it is persuaded by the
court’s reasoning, as we are here. See Bowman v. Small Business Administration,
122 M.S.P.R. 217, ¶ 13 n.8 (2015).
9
official with the authority to select from available alternative penalties. 7
0741 RAF, Tab 7 at 32, Tab 8 at 4-9; see Loudermill, 470 U.S. at 543; Buelna,
121 M.S.P.R. 262, ¶ 28. In her written response, the appellant, who was
represented by counsel, disputed the merits of the agency’s charge and challenged
the reasonableness of the penalty, noting that she had no prior performance issues
and had received numerous awards, accolades, and letters of recognition.
0741 RAF, Tab 8 at 8-9. Under these circumstances, we find that the appellant
was afforded the minimum predecisional due process required regarding her
removal, and we reverse the administrative judge’s finding to the contrary. See
Loudermill, 470 U.S. at 545-46 (finding that the predecisional opportunity for an
employee to respond “need not definitively resolve the propriety of the [action]”
but rather “should be an initial check against mistaken decisions—essentially, a
determination of whether there are reasonable grounds to believe that the charges
against the employee are true and support the proposed action”). Because we find
that the agency did not violate the appellant’s due process rights by failing to
consider the Douglas factors, we remand the 0741 appeal for further adjudication,
as further explained below.
The 0121 appeal is remanded for further adjudication.
¶11 At the time the initial decision was issued in the AT-0752-20-0121-I-2
appeal, the Board’s case law stated that, in a performance-based appeal under
5 U.S.C. chapter 43, an agency must establish by substantial evidence the
following: (1) OPM approved its performance appraisal system and any
7
Although the appellant and the deciding official may have been considering chapter 43
rather than chapter 75 procedures at the time, the appellant still had reason and
opportunity to invoke the deciding official’s discretion in this regard, and she did so.
0741 RAF, Tab 8 at 9. Under chapter 43 procedures, an agency deciding official has
the discretion to choose to address unacceptable performance in different ways. See
5 U.S.C. § 4303(a). Nothing in the record suggests that the deciding official could not
have chosen to impose a demotion in lieu of removal, or to take no action at all. See id.To the contrary, the proposal and decision notices contain statements indicating that the
agency had concerns about the appellant’s retention in any agency position given her
discourteous and unprofessional behavior. 0741 RAF, Tab 7 at 37, Tab 8 at 22.
10
significant changes thereto; (2) the agency communicated to the appellant the
performance standards and critical elements of her position; (3) the appellant’s
performance standards are valid; (4) the agency warned the appellant of the
inadequacies of her performance during the appraisal period and gave her a
reasonable opportunity to demonstrate acceptable performance; and (5) the
appellant’s performance remained unacceptable in one or more of the critical
elements for which she was provided an opportunity to demonstrate acceptable
performance. Lee v. Environmental Protection Agency, 115 M.S.P.R. 533, ¶ 5
(2010). 8 The administrative judge addressed each of these elements in turn and
found that the agency carried its burden on all of them. 0121 ID at 11-17. He
also found that the appellant did not prove her affirmative defenses. 0121 ID
at 17-25. We have considered the appellant’s arguments on review but find no
basis to disturb the administrative judge’s findings. 9
¶12 However, we must nonetheless remand the 0121 appeal because, after the
issuance of the 0121 initial decision, the Federal Circuit issued its decision in
8
In his initial decision, the administrative judge set forth the standard as found in
Kadlec v. Department of the Army, 49 M.S.P.R. 534, 539 (1991). 0121 ID at 4-5. This
formulation omits the fifth element, i.e., that the agency must show by substantial
evidence that the employee’s performance remained unacceptable. Nevertheless, the
administrative judge explicitly addressed this element in his initial decision. 0121 ID
at 14-17.
9
In evaluating the appellant’s EEO retaliation defense, the administrative judge applied
the evidentiary standards set forth in Savage v. Department of the Army, 122 M.S.P.R.
612, ¶¶ 41-43, 51 (2015). 0121 ID at 18-21. He explained that, under Savage, the
burden-shifting framework of McDonnell Douglas Corporation v. Green, 411 U.S. 792,
802-04 (1973), did not apply to Board proceedings, and the ultimate question was
whether the appellant had met her burden of proving by preponderant evidence that
retaliation was a motivating factor in the action being appealed. 0121 ID at 18. In
Pridgen v. Office of Management and Budget, 2022 MSPB 31, ¶ 25, the Board overruled
the aspect of Savage stating that the McDonnell Douglas burden-shifting framework
does not apply to Board proceedings. Under Pridgen, however, it remains true that an
employee must show that retaliation was at least a motivating factor in the employment
decision to obtain any relief. Pridgen, 2022 MSPB 31, ¶¶ 30-33. We find no reason to
disturb the administrative judge’s finding that the appellant did not prove that EEO
retaliation was at least a motivating factor in the agency’s decision to remove her.
0121 ID at 18-21.
11
Santos v. National Aeronautics and Space Administration , 990 F.3d 1355 (Fed.
Cir. 2021). In Santos, the court held for the first time that, in addition to the
elements of a chapter 43 case just described, an agency must also show that the
initiation of the performance improvement plan (PIP) was justified by the
appellant’s unacceptable performance before the PIP. 990 F.3d at 1360-63. Prior
to Santos, it was well established that an agency need not prove unacceptable
performance prior to a PIP, see Lee v. Department of Veterans Affairs,
2022 MSPB 11, ¶ 13, and thus, the administrative judge did not make a
determination on this issue. However, the Federal Circuit’s decision in Santos
applies to all pending cases, including this one, regardless of when the events
took place. Id., ¶¶ 15-16. Thus, remand is necessary for the administrative judge
to address the additional requirement set forth in Santos.
¶13 We recognize that the viability of the 0121 appeal is dependent upon the
outcome of the 0741 appeal. If the 0741 appeal is affirmed, the 0121 appeal is
moot. See Jackson v. U.S. Postal Service, 79 M.S.P.R. 144, 146-47 (1998)
(dismissing as moot the appeal of a second removal action after the earlier action
was sustained). If the 0741 appeal is reversed, the viability of the 0121 appeal
depends on the reasons for the reversal. An agency may not discipline an
employee twice for the same conduct. See, e.g., Frederick v. Department of
Homeland Security, 122 M.S.P.R. 401, ¶¶ 6-10 (2015); Gartner v. Department of
the Army, 104 M.S.P.R. 463, ¶¶ 5-6 (2007); Westbrook v. Department of the Air
Force, 77 M.S.P.R. 149, 155 (1997). On the other hand, an agency may bring a
second action on the same charges when the previous action was reversed solely
on procedural grounds. See, e.g., Steele v. General Services Administration,
6 M.S.P.R. 368, 372 (1981); see also Special Counsel v. Smith, 116 M.S.P.R. 520,
¶ 9 (2011); Strope v. U.S. Postal Service, 76 M.S.P.R. 539, 542 (1997).
Instructions on remand
¶14 On remand, the appeals should be assigned to a single administrative judge
for a supplemental hearing and further processing. The appeals should remain
12
joined until the record on remand is closed, at which point the administrative
judge may determine whether, in his or her discretion, the appeals should remain
joined for purposes of issuing a decision.
¶15 It appears that the hearing in the 0741 appeal was adjourned prior to the
conclusion of the agency’s case in chief. Accordingly, the administrative judge
shall conduct a supplemental hearing to allow both parties to put on evidence as
to the chapter 75 appeal. As explained in the 0741 initial decision, the appellant
agreed to waive her affirmative defenses at the hearing after the administrative
judge announced his intent to reverse the agency’s action on due process grounds,
but she reserved the right to reinstate such affirmative defenses if the initial
decision was reversed. 0741 ID at 8 n.6. Under these circumstances, we instruct
the administrative judge to afford the appellant an opportunity at the
supplemental hearing to establish her affirmative defenses, should she wish to
reinstate them. The administrative judge shall then issue a remand initial
decision.
¶16 The administrative judge need only address the merits of the 0121 appeal if
it is appropriate to do so following resolution of the 0741 appeal. If the
administrative judge addresses the merits of the 0121 appeal, the parties must be
permitted an opportunity, at the supplemental hearing, to address the new element
under Santos, and the remand initial decision must include such analysis. Lee,
2022 MSPB 11, ¶ 17. If the agency makes the additional showing required under
Santos on remand, the administrative judge may reincorporate in the remand
initial decision the prior findings concerning the other elements of the agency’s
case and on the appellant’s EEO retaliation affirmative defense, as clarified
herein. See id. However, regardless of whether the agency meets its burden, if
the argument or evidence on remand regarding the appellant’s pre-PIP
performance affects the appellant’s affirmative defenses, the administrative judge
should address such argument or evidence in the remand initial decision. See
Spithaler v. Office of Personnel Management, 1 M.S.P.R. 587, 589 (1980)
13
(explaining that an initial decision must identify all material issues of fact and
law, summarize the evidence, resolve issues of credibility, and include the
administrative judge’s conclusions of law and his legal reasoning, as well as the
authorities on which that reasoning rests).
ORDER
¶17 For the reasons discussed above, we remand this case to the regional office
for further adjudication in accordance with this Remand Order.
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.