Roberta L Vinson v. Department of the Navy ( 2024 )

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
ROBERTA L. VINSON, DOCKET NUMBER
Appellant, SF-0752-20-0307-I-1
v.
DEPARTMENT OF THE NAVY, DATE: October 28, 2024
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Roberta L. Vinson , San Diego, California, pro se.
Timothy J. Kuhn , Camp Pendleton, California, for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
Henry J. Kerner, Member
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
dismissed her involuntary demotion appeal for lack of jurisdiction. On petition
for review, the appellant challenges a number of the administrative judge’s
factual findings; argues that he erroneously concluded that she failed to
demonstrate that her working conditions were so intolerable as to compel a
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
reasonable person to accept the demotion and that her acceptance of the demotion
was not the product of duress, coercion, and misleading statements by agency
officials; and reargues that the agency engaged in discrimination and retaliation
against her in connection with her demotion. She also provides a number of
emails and documents for the first time with her petition for review. 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.
For the reasons set forth in the initial decision, we agree with the
administrative judge’s finding that the appellant failed to meet her burden of
making a nonfrivolous allegation 2 of Board jurisdiction over her involuntary
demotion appeal. Initial Appeal File, Tab 20, Initial Decision (ID) at 16-17; see
Carey v. Department of Health & Human Services, 112 M.S.P.R. 106, ¶ 5 (2009)
(explaining that an appellant generally is entitled to a jurisdictional hearing if she
raises a nonfrivolous allegation of Board jurisdiction over the appeal); see also
Bean v. U.S. Postal Service, 120 M.S.P.R. 397, ¶¶ 7-8, 11 (2013) (observing that
an employee may establish Board jurisdiction over a constructive adverse action
such as an involuntary demotion by proving, among other things, that she lacked
2
A nonfrivolous allegation of Board jurisdiction is an allegation of fact that, if proven,
could establish that the Board has jurisdiction over the matter at issue. Ferdon v. U.S.
Postal Service, 60 M.S.P.R. 325, 329 (1994); 5 C.F.R. § 1201.4(s).
3
a meaningful choice in the matter and it was the agency’s wrongful actions that
deprived her of that choice). We discern no basis to disturb the administrative
judge’s finding that the appellant failed to make a nonfrivolous allegation that her
working conditions were so intolerable as to render her acceptance of the
demotion involuntary or that agency personnel subjected her to duress or coercion
or misinformed her in any material way regarding the demotion. ID at 9-17.
Therefore, we DENY the petition for review and AFFIRM the initial decision,
which is now the Board’s final decision. 3 5 C.F.R. § 1201.113(b).
3
We have reviewed the emails and other exhibits the appellant provided with her
petition for review and conclude that none of the exhibits are new or material. Petition
for Review (PFR) File, Tab 1 at 26-78; Tabs 2-4; see Okello v. Office of Personnel
Management, 112 M.S.P.R. 563, ¶ 10 (2009) (noting that under 5 C.F.R. § 1201.115(d),
the Board will not consider evidence submitted for the first time with a petition for
review absent a showing that it is both new and material); Avansino v. U.S. Postal
Service, 3 M.S.P.R. 211, 214 (1980). All of the dated documents predate the close of
record in this case, and the appellant has not explained why she did not provide them
before the record closed below, so they are not “new.” PFR File, Tab 1 at 26-32, 35-62,
78; Tab 2 at 6-11; Tab 3 at 5-8; Tab 4 at 4-5; see Avansino, 3 M.S.P.R. at 214. The
remaining exhibits include an undated and unidentified excerpt from what appears to be
an agency’s reasonable accommodation process guidance, a copy of a Handbook from
the U.S. Forest Service, a screenshot showing the address of a Department of the Navy
facility in Coronado, California, and a photograph of a roll of toilet paper. PFR File,
Tab 1 at 33-34; Tab 2 at 12; Tab 3 at 4. The appellant has not identified the source for
the undated excerpt or explained how it is relevant to voluntariness of her acceptance of
the demotion, nor has she explained how the location of the agency’s Navy facility in
Coronado or the procedures outlined in the U.S. Forest Service Handbook have any
bearing on the voluntariness of her decision to accept the demotion reassignment. The
photograph of the toilet paper roll appears to be related to the appellant’s claim that the
women’s restroom at her former employing agency was poorly maintained. PFR File,
Tab 1 at 16-18; Tab 3 at 4. The administrative judge properly considered this argument
in the context of the appellant’s involuntary demotion claim but determined that her
working conditions were not so intolerable as to compel a reasonable person to feel that
they had no alternative but to accept the reassignment, with which we ultimately agree.
See ID at 14, 16-17. Accordingly, the appellant has not explained how any of the
provided exhibits are material to the jurisdictional matter at issue in this appeal, and we
have not considered them. See Russo v. Veterans Administration, 3 M.S.P.R. 345, 349
(1980).
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NOTICE OF APPEAL RIGHTS 4
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:
4
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.
5
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
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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
7
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. 5 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.
5
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.
8
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.