Jewel Graye v. Department of the Treasury

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
JEWEL A. GRAYE, DOCKET NUMBER
Appellant, DC-0752-15-0591-I-1
v.
DEPARTMENT OF THE TREASURY, DATE: October 21, 2022
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Jewel A. Graye, Washington, D.C., pro se.
Byron D. Smalley, Esquire, and Craig A. Corliss, Esquire, Washington,
D.C., for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
Tristan L. Leavitt, Member
FINAL ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
sustained her 15-day suspension. 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
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
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 by this Final Order to clarify the analysis of the appellant’s evidence
of reprisal for filing complaints of discrimination, we AFFIRM the initial
decision.
BACKGROUND
¶2 The appellant is employed by the agency as a GS-14 Information
Technology Specialist. Initial Appeal File (IAF), Tab 5 at 10. Effective
March 16, 2015, she was suspended for 15 days based on two charges:
insubordination and failure to conscientiously perform assigned duties. Id. On
appeal, the administrative judge sustained the charges, found that the appellant
failed to prove her claim of reprisal for filing complaints of discrimination, and
affirmed the suspension. IAF, Tab 32, Initial Decision (ID) at 11 -22.
¶3 The appellant has filed a petition for review of the initial decision, the
agency has filed a response, and the appellant has filed a reply to the agency’s
response. Petition for Review (PFR) File, Tabs 3, 5-6.
DISCUSSION OF ARGUMENTS ON REVIEW
The appellant has failed to provide a basis for reversing the administrative
judge’s findings of fact.
¶4 On review, the appellant argues that the administrative judge erred when
she found that the appellant was notified of her need to attend an October 2014
3
MicroPact meeting shortly prior to its start. PFR File, Tab 3 at 8. The appellant
contends that, because her supervisor sent her the email notification from Texas
at 10:37 a.m. local time (Central), she did not receive it in Maryland until
11:37 a.m. local time (Eastern), since the two locations are in different time
zones. Id. at 8-9. Assuming arguendo that the appellant is correct, the
administrative judge also found that the appellant was notified of her need to
attend MicroPact meetings in March 2014. ID at 12-13. Accordingly, the
appellant’s argument provides us with no reason to disturb the admin istrative
judge’s finding that she inexcusably missed the October 2014 MicroPact meeting.
Id.¶5 The appellant also argues that the administrative judge erred when she
found that the appellant absented herself without approval from a November 4,
2014 MicroPact meeting. PFR File, Tab 3 at 9-10. The appellant contends that
her supervisor gave her approval to leave for 1 hour to go vote. Id. at 9-10.
Assuming arguendo that the appellant is correct, the administrative judge also
found that the appellant did not explain why she could not have voted at some
other time during the day such that she would not miss the meeting. ID at 14.
Accordingly, the appellant’s argument provides us with no reason to disturb the
administrative judge’s finding that she inexcusably missed the November 2014
MicroPact meeting. Id.¶6 Furthermore, the appellant bases her arguments regarding her absence from
the MicroPact meetings noted above on evidence not submitted into the record
before it closed. PFR File, Tab 3 at 5-6, 8-10, 32-33. The Board generally will
only consider new and material evidence upon a showing that, despite the
petitioner’s due diligence, the evidence was not available when the record closed.
5 C.F.R. § 1201.115(d). The appellant contends that her “system access was
terminated during her suspension” and that, after she regained access, “she
experienced intermittent software issues rendering her unable to locate and
retrieve certain emails and files until after the record had closed.” PFR File,
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Tab 3 at 5. Because there is no indication that the appellant could not have
retrieved the documents using the Board’s discovery procedures, we find that she
has failed to show that the evidence previously was unavailable despite her due
diligence. See Ellis v. U.S. Postal Service, 121 M.S.P.R. 570, ¶ 6 (2014).
Accordingly, we need not consider the evidence on review.
¶7 The appellant similarly asks the Board to reverse the administrative judge’s
finding that the appellant’s assertion that she could not have used certain
databases to complete an assignment was unpersuasive. PFR File, Tab 3 at 10-11.
Notably, in her reply to the proposal notice and in her prehearing submission, she
stated that she used one of the databases to complete the assignment. IAF, Tab 5
at 21, Tab 24 at 8. Regardless of the contradictory nature of the appel lant’s
positions, however, it is apparent that she never raised this argument below. 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. Holton v. Department
of the Navy, 123 M.S.P.R. 688, ¶ 18 (2016), aff’d, 884 F.3d 1142 (Fed. Cir.
2018). Because the appellant made no such showing regarding this argument, we
will not consider it for the first time on review.
The appellant failed to demonstrate that the administrative judge incorrectly
applied the law to the facts of her case.
¶8 The appellant argues that the administrative judge erred in finding that she
failed to prove her claim of retaliation for filing equal employment opportunity
(EEO) complaints of discrimination because, as the administrative judge noted,
her second-level supervisor, who was also the proposing official, stated “that the
appellant could file as many EEO complaints as she wanted, b ut that it would
only hurt her.” PFR File, Tab 3 at 13; ID at 17. In the decision letter, t he
deciding official intimated that the proposing official’s intent was to
communicate to the appellant that, regardless of how many complaints she filed,
she still was required to follow her supervisors’ directions and conscientiously
5
perform her duties, or else further adverse actions would be taken against her.
IAF, Tab 5 at 14-15. The proposing official averred in an affidavit that she did
not take any action against the appellant for any discriminatory or retaliatory
reason. IAF, Tab 30 at 167. The administrative judge concluded that, in the
absence of virtually any other evidence indicating that the appellant was
retaliated against, the proposing official’s somewhat ambiguous statement was
insufficient to prove that retaliation was a factor in the agency’s decision to
suspend her. ID at 17-18.
¶9 The administrative judge’s decision was issued before the Board issued its
decision in Gardner v. Department of Veterans Affairs, 123 M.S.P.R. 647 (2016),
which clarified that, in analyzing claims of discrimination or retaliation under
42 U.S.C. § 2000e-16, administrative judges need not separate “direct” from
“indirect” evidence and apply different legal standards to each, nor must they
require appellants to demonstrate a “convincing mosaic” to prove their claims.
Gardner, 123 M.S.P.R. 647, ¶ 30, clarified by Pridgen v. Office of Management
& Budget, 2022 MSPB 31, ¶¶ 23-24. Instead, administrative judges should
consider the evidence as a whole to determine whether an appellant has shown by
preponderant evidence 2 that the prohibited consideration was a motivating factor
in the contested personnel action. Id., ¶¶ 30-31. Here, although the
administrative judge discussed the distinction between direct and indirect
evidence, she did not apply different legal standards to each or require the
appellant to demonstrate a convincing mosaic to prove her claim. ID at 17 -18.
¶10 The decision letter provided the appellant with notice of the agency’s
position as to the proposing official’s statement. IAF, Tab 5 at 14-15. Had the
appellant wanted to, she could have questioned the proposing official under oath
2
The Board’s regulations define preponderant evidence as the degree of relevant
evidence that a reasonable person, considering the record as a whole, would accept as
sufficient to find that a contested fact is more likely to be true than untrue. 5 C.F.R.
§ 1201.4(q).
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in a deposition or at a hearing before the administrative judge. 5 C.F.R.
§ 1201.33(a). Instead, the appellant merely expressed her own belief about the
proposing official’s intent. IAF, Tab 31 at 9. Considering the record as a whole,
we agree that the appellant failed to prove by preponderant evidence that her
protected activities motivated the agency’s decision to suspend her. 3 See
Gardner, 123 M.S.P.R. 647, ¶¶ 31-32.
The appellant failed to provide any basis for disturbing the administrative judge’s
conclusion that the penalty imposed was reasonable.
¶11 The appellant argues that her 15-day suspension was unreasonable because
the proposing official suffered no penalty for threatening to cause her harm for
filing EEO complaints. PFR File, Tab 3 at 14-15. Because the appellant failed to
raise this argument below, we will not consider it on rev iew. See Holton,
123 M.S.P.R. 688, ¶ 18.
¶12 The appellant also objects to the administrative judge’s citation to a letter
of reprimand she had received, on the basis that, as of the filing of her petition for
review, it was going to be expunged within a month. PFR File, Tab 3 at 15 -16.
Agencies may rely on past discipline in effecting an action for later misconduct
so long as the agency’s ability to cite to the past action has not expired before the
appellant engaged in the later misconduct. Spearman v. U.S. Postal Service,
44 M.S.P.R. 135, 140 (1990). Accordingly, the appellant’s allegation provides no
basis for disturbing the initial decision, given that, by her own admission, her
prior discipline had not yet expired. The appellant has not demonstrated any
other basis for disturbing the administrative judge’s finding that the imposed
penalty was reasonable, and we therefore decline to do so.
3
Because the appellant here failed to prove her initial burden that a prohibited factor
played any part in the agency’s decision, we do not reach the question of whether
retaliation was a but-for cause of that decision. Pridgen, 2022 MSPB 31, ¶¶ 20-25, 30.
7
The appellant failed to establish that the administrative judge improperly
pressured her into withdrawing her request for a hearing.
¶13 The appellant alleges that she “felt pressured” by the administrative judge
to withdraw her request for a hearing. PFR File, Tab 3 at 4. She later clarified
her allegation by stating that the administrative judge told the parties during a
prehearing conference that she did not understand why the appellant was
requesting a hearing. PFR File, Tab 6 at 7. The appellant alleges that the
administrative judge’s comment made it seem like the hearing was pointless
because the outcome was predetermined. Id. First, we note that, because the
appellant failed to raise any such objection below, we need not consider her
allegation on review. See Rivoire v. U.S. Postal Service, 103 M.S.P.R. 643, ¶ 11
(2006), aff’d, 244 F. App’x 351 (Fed. Cir. 2007). Second, we note that unsworn
allegations generally are insufficient to rebut the presumption of the
administrative judge’s honesty and integrity. See Gensburg v. Department of
Veterans Affairs, 85 M.S.P.R. 198, ¶ 7 (2000). Finally, we find that the
appellant’s allegations, even if true, do not demonstrate any improper actions by
the administrative judge.
¶14 For the reasons set forth above, we deny the appellant’s petition for review
and affirm the initial decision sustaining her suspension.
NOTICE OF APPEAL RIGHTS 4
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 a ppropriate
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
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.
8
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:
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.caf c.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
9
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. ____ , 137 S. Ct. 1975 (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, o r 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,
10
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 co mmercial 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. 5 The court of appeals must receive your petition for
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.
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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.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510.
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: /s/ for
Jennifer Everling
Acting Clerk of the Board
Washington, D.C.