Kathy Courtney v. Equal Employment Opportunity Commission ( 2024 )

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
KATHY J. COURTNEY, DOCKET NUMBER
Appellant, DC-3443-19-0773-I-1
v.
EQUAL EMPLOYMENT DATE: May 30, 2024
OPPORTUNITY COMMISSION,
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Kathy J. Courtney , Raleigh, North Carolina, pro se.
Anabia Hasan and Yolanda Bruce , 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
dismissed her appeal with prejudice following her withdrawal of the 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
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
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 and AFFIRM the initial decision,
which is now the Board’s final decision. 2 5 C.F.R. § 1201.113(b).
BACKGROUND
On August 22, 2019, the appellant filed an appeal with the Board
indicating, among other things, that she had filed an equal employment
opportunity (EEO) complaint with the agency on May 29, 2018, but had yet to
receive a response. Initial Appeal File (IAF), Tab 1 at 5. With her appeal, the
appellant provided a copy of a July 23, 2019 notice of proposed removal wherein
the agency proposed to remove her from her position as a GS-12 Equal
Opportunity Investigator on the basis of misconduct for absence without leave
(AWOL). Id. at 7-15. She also provided a copy of an August 16, 2019 complaint
addressed to the agency’s Office of the Inspector General wherein she had
alleged, among other things, that the agency’s proposed removal was in reprisal
for her disclosure that the agency was failing to meet assistive technology
industry standards. Id. at 53-54. The appellant requested a hearing on the matter.
Id. at 2.
2
In her initial decision, the administrative judge stated that the Board had jurisdiction
over this matter pursuant to 5 U.S.C. chapter 75; however, because we find that the
appellant withdrew her appeal, the Board need not make a finding on jurisdiction.
Initial Appeal File, Tab 12, Initial Decision at 1.
3
The administrative judge issued an acknowledgment order explaining that it
appeared that the Board lacked jurisdiction over the matter, and she ordered the
appellant and the agency to file evidence and argument regarding jurisdiction.
IAF, Tab 2 at 2-5. The administrative judge further explained that, if the
appellant lacked the requisite evidence and argument necessary to establish Board
jurisdiction, she could elect to withdraw her appeal; however, any such
withdrawal would be an act of finality that would remove the appeal from the
Board’s jurisdiction. Id. at 5-6. The appellant did not timely respond to this
order. The agency responded, contending that the appellant’s proposed removal
was not an appealable action and, to the extent the appellant sought to file an
individual right of action appeal, she had failed to meet the jurisdictional
requirement that she first exhaust her remedies with the Office of Special Counsel
(OSC). 3 IAF, Tab 6 at 4-5.
Thereafter, the appellant filed a motion to withdraw her Board appeal,
explaining that she wished to instead proceed with a whistleblower complaint.
IAF, Tab 7 at 6-7. In response, the administrative judge issued a notice denying
the appellant’s request to withdraw because the request was not clear and
unequivocal. IAF, Tab 8 at 1-2. The administrative judge again explained that
the withdrawal of an appeal is an act of finality that removes an appeal from the
Board’s jurisdiction, and she advised the appellant that she could refile her
withdrawal request. Id. Thereafter, the appellant thrice filed an additional
motion to withdraw her Board appeal. IAF, Tab 9 at 5, Tab 10 at 5, Tab 11 at 5.
3
The appellant indicated on her initial appeal form that she had filed a whistleblowing
complaint with OSC on August 16, 2019. IAF, Tab 1 at 4. However, the record does
not contain any evidence that she initiated any matter with that independent agency,
which, among other things, investigates complaints of whistleblower reprisal against
Federal employees. IAF, Tab 8 at 2-3; see 5 U.S.C. § 1214. The appellant has
submitted correspondence dated August 16, 2019, which she apparently considers to be
her whistleblower complaint, but that correspondence is addressed to the Equal
Employment Opportunity Commission’s Office of the Inspector General. IAF, Tab 1
at 53-54, Tab 7 at 9-10.
4
On October 1, 2019, the administrative judge issued an initial decision dismissing
the matter with prejudice. IAF, Tab 12, Initial Decision (ID) at 1-2.
The appellant has filed a petition for review, the agency has responded in
opposition, and the appellant has filed a reply to the agency’s response.
Petition for Review (PFR) File, Tabs 1, 3, 6, 8. In her petition and reply, the
appellant alleges the following: (1) a clarification from her ophthalmologist
made her realize that she had misread prior Board filings; (2) she became aware
of two affidavits written by agency employees that evinced an “inclination to
cover the truth”; and (3) had she known that the agency was represented by a
particular agency attorney she would have hired legal counsel. PFR File, Tab 1
at 10-14, Tab 8 at 4-5. The appellant also provides, for the first time, the two
subject affidavits as well as medical records both predating and postdating the
initial decision. PFR File, Tab 3 at 11-29, 31-57, 59-76. With her reply, the
appellant also provides a copy of the agency’s December 2, 2019 notice of final
decision removing her from her position on the basis of misconduct for continued
AWOL. 4 PFR File, Tab 8 at 7-14.
DISCUSSION OF ARGUMENTS ON REVIEW
Generally, the withdrawal of an appeal is an act of finality that has the
effect of removing the appeal from the Board’s jurisdiction. See
Gibson-Michaels v. Federal Deposit Insurance Corporation , 111 M.S.P.R. 607,
¶ 16 (2009). Absent unusual circumstances, such as misinformation or new and
material evidence, the Board will not reinstate an appeal once it has been
withdrawn. Id. However, a relinquishment of one’s right to appeal to the Board
must be by clear, unequivocal, and decisive action. Rose v. U.S. Postal Service,
106 M.S.P.R. 611, ¶ 7 (2007).
4
On February 26, 2020, the Office of the Clerk of the Board referred this filing to the
Washington Regional Office as a potential new appeal. PFR File, Tab 12 at 1.
5
The appellant’s contention regarding her October 23, 2019 ophthalmological
diagnosis is unavailing.
The appellant contends that an October 23, 2019 clarification from her
ophthalmologist that her ocular disease “is typical of that seen in diabetics made
[her] realize that [her] successive readings” of prior Board filings had been
incorrect. PFR File, Tab 1 at 11. She avers that she thought her withdrawal
“would be set aside” until she had either exhausted the whistleblower process or
received a decision on the notice of proposed removal. Id.The appellant’s contention does not warrant reinstating her appeal. Here,
the administrative judge twice explained the preclusive effect of withdrawing a
Board appeal, and the appellant nonetheless explicitly requested to withdraw her
appeal. IAF, Tab 2 at 5-6, Tab 7 at 6-7, Tab 8 at 1-2, Tab 9 at 5, Tab 10 at 5,
Tab 11 at 5; see Conde v. Department of the Army, 86 M.S.P.R. 226, ¶ 5 n.1
(2000) (finding unavailing the appellant’s assertion that he did not understand
that his withdrawal was with prejudice when the administrative judge had
repeatedly informed him as much). To the extent the appellant had difficulty
reading or understanding the administrative judge’s two orders regarding the
preclusive effect of withdrawal, she could have raised this issue with the
administrative judge or sought clarity on the issue; however, she did not. See
Banks v. Department of the Air Force, 4 M.S.P.R. 268, 271 (1980) (explaining
that the Board generally will not consider an argument raised for the first time on
review absent a showing that it is based on new and material evidence not
previously available despite the party’s due diligence). To the extent she
contends that she could not have raised this issue before the administrative judge
because she was unaware of her visual impairment or her reading difficulties until
her October 23, 2019 ophthalmological appointment, we find her contention
unavailing insofar as the corresponding October 23, 2019 medical record that she
provides describes her vision as “stable” and notes “no changes” since her
previous ophthalmological appointment. PFR File, Tab 3 at 11.
6
The appellant’s assertions regarding untruthful affidavits do not warrant
reinstating her appeal.
The appellant alleges that, following the issuance of the initial decision,
she became aware of two untruthful affidavits written by agency employees.
PFR File, Tab 1 at 10, 13-14, Tab 3 at 31-57, 59-76. She avers that, had she been
aware of these affidavits earlier, she “would not have considered withdrawal of
[her] MSPB [a]ppeal for any reason.” PFR File, Tab 1 at 14. We find this
assertion unavailing. The affidavits postdate the initial decision, and thus are
new evidence. The appellant has not shown how these affidavits are material to
either her underlying case or her decision to withdraw her appeal. We note as
well that at the time she withdrew her appeal, the appellant had not yet received
the EEO Report of Investigation, and could have waited until such evidence was
produced before deciding to withdraw. IAF, Tab 1, at 18. In addition, although
the appellant challenges the veracity of the affidavits and questions the motives
of the affiants as related to her claims of disability discrimination and reprisal,
PFR File, Tab 1 at 10, 13-14, she does not allege, nor do the affidavits suggest,
that the agency misled her with regards to the withdrawal of her appeal or
otherwise improperly caused her to withdraw her appeal, see Gibson-Michaels,
111 M.S.P.R. 607, ¶ 16.
The appellant’s assertion regarding the involvement of an agency attorney is
unclear and unavailing.
Lastly, the appellant avers that she did not realize that a particular agency
attorney was involved with her appeal until she received the initial decision and
his name was included in the case caption. PFR File, Tab 1 at 10-11; ID at 1.
She asserts that, had she known of his involvement sooner, she “would have,
without doubt, hired an attorney as well.” PFR File, Tab 1 at 11. We find this
assertion unavailing.
Here, the appellant provides no explanation as to how she was harmed by
the involvement of this particular attorney or why prior knowledge of his
7
involvement would have prompted her to engage legal counsel. To the extent she
argues that the agency was unjustly advantaged because it was represented by a
licensed attorney whereas she was not, we find her contention unavailing. See
Walton v. Tennessee Valley Authority, 48 M.S.P.R. 462, 469 (1991)
(finding unavailing an appellant’s suggestion that he was disadvantaged because
the administrative judge “allowed” the agency to be represented by an attorney
when he was represented by a nonattorney representative). Indeed, an agency
may choose to be represented by an attorney or a nonattorney, at its discretion. 5
Id.NOTICE OF APPEAL RIGHTS 6
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
5
On December 2, 2019, and January 3, 2020, the appellant filed requests for leave to
file additional pleadings. PFR File, Tab 7 at 5-6, Tab 10 at 4-5. In her December 2,
2019 request, the appellant neither describes her proffered additional evidence nor
explains how the evidence is material to the outcome of her appeal. PFR File, Tab 7
at 5-6; see 5 C.F.R. § 1201.114(k). We therefore deny the appellant’s December 2,
2019 request. In her January 3, 2020 request, the appellant indicates that she submitted
the agency’s notice of final decision on her proposed removal to the Board on
December 6, 2019, and she explains that she wishes to file a pleading in response to this
notice. PFR File, Tab 10 at 4. Insofar as neither the agency’s notice of final decision
nor the appellant’s response thereto is material to the outcome of this appeal, we deny
the appellant’s January 3, 2020 request for leave. See 5 C.F.R. § 1201.114(k).
However, as stated, the Office of the Clerk of the Board referred the appellant’s
December 6, 2019 pleading, which was placed in the record as a reply to the agency’s
response, to the Washington Regional Office as a potential new appeal. PFR File,
Tab 12 at 1.
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.
8
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:
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
9
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
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
10
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
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
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.
11
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.
12
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.