Veronica Bailey v. Department of Transportation

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
VERONICA L. BAILEY, DOCKET NUMBER
Appellant, CH-0752-16-0215-I-1
v.
DEPARTMENT OF DATE: February 28, 2023
TRANSPORTATION,
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL *
Justin Prato, Esquire, San Diego, California, for the appellant.
David Kessler, Esquire, Kansas City, Missouri, 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
dismissed for lack of jurisdiction her appeal of an allegedly involuntary
separation from her position. Generally, we grant petitions such as this one only
in the following circumstances: the initial decision contains erroneous findings
*
A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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).
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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 and AFFIRM the i nitial decision,
which is now the Board’s final decision. 5 C.F.R. § 1201.113(b).
¶2 On October 27, 2015, the agency proposed to remove the appellant from her
Program Analyst position for unsatisfactory performance and placed her on
administrative leave. Initial Appeal File (IAF), Tab 21, Subtab 1, Exhibit 5,
Subtab 4e. On December 15, 2015, the agency asked the appellant to report for
duty to turn in her badge, keys, and other agency property. IAF, Tab 11 at 16.
Meanwhile, the appellant had been searching for another position and, on
December 17, 2015, she informed the agency that she had accepted a position
with another Federal agency. IAF, Tab 21, Subtab 1, Exhibit 9 at 2. The
appellant was separated effective December 26, 2015. Id., Exhibit 1. She was
appointed to her new position effective December 27, 2015. Id., Exhibit 9.
¶3 The appellant filed a Board appeal in which she asserted that her separation
was involuntary because the agency knew or should have known that a
performance-based action against her could not be sustained, both on the merits
and because of procedural deficiencies. IAF, Tab 1 at 10-11. She further alleged
that her separation was involuntary because the agency maintained a hostile work
environment due to race and sex discrimination. Id., at 10-11, 14-15. After a
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hearing, the administrative judge found that the appellant failed to show that her
separation was involuntary. The appellant petitions for review.
¶4 A decision to resign is presumed to be a voluntary act outside the Board’s
jurisdiction, and the appellant bears the burden of showing by preponderant
evidence that her resignation was involuntary and therefore tantamount to a
forced removal. Baldwin v. Department of Veterans Affairs, 111 M.S.P.R. 586,
¶ 15 (2009) (citing Garcia v. Department of Homeland Security, 437 F.3d 1322,
1329-30 (Fed. Cir. 2006) (en banc)). If the appellant can show that she resigned
and transferred to another agency to avoid a threatened removal action, and if she
can show that the agency knew or should have known that the action could not be
substantiated, then her decision to resign may be considered coerced and
therefore involuntary. Harris v. Department of Veterans Affairs, 114 M.S.P.R.
239, ¶ 8 (2010).
¶5 The appellant contends that the agency knew or should have known that its
proposed removal could not be substantiated because the instances of poor
performance that the agency identified made no sense. After considering the
record, including the appellant’s testimony, we conclude that the appellant’s
argument that she did not understand the agency’s position is actually an
argument that she did not agree that the cited events constituted poor
performance. She appears to admit that the events occurred; she simply provides
her excuse for why her errors were not errors or why she was not responsible for
them. The fact that the appellant has a defense—that may or may not be
successful—against the agency’s allegations of poor performance is insufficient
to establish that the agency knew or should have known that its allegations could
not be substantiated. Barthel v. Department of the Army, 38 M.S.P.R. 245, 251
(1988) (explaining that to show that the agency knew or should have known that
its action could not be substantiated, the appellant must do more than merely
rebut the agency’s reasons for the action).
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¶6 An appellant who claims that her resignation was involuntary also may
rebut the presumption of voluntariness in a variety of ways, including by showing
that the resignation was the result of intolerable working conditions. Putnam v.
Department of Homeland Security, 121 M.S.P.R. 532, ¶ 21 (2014). The Board
will find an action involuntary on the basis of intolerable working conditions only
if the appellant proves that the agency engaged in a course of action that made
working conditions so difficult or unpleasant that a reasonable person in the
appellant’s position would have felt compelled to resign. Markon v. Department
of State, 71 M.S.P.R. 574, 577-78 (1996). The appellant contended that the
agency created a hostile working environment based on race and sex
discrimination, which created intolerable working conditions that left her with no
choice but to resign. However, the appellant introduced evidence of a single
incident in which her supervisor shouted at a co -worker “Get your butt in here.”
This exclamation may have been inappropriate, but it is not obviously sex - or
race-based, and the appellant provided no other evidence that might place the
statement in the context of a hostile working environment. Moreover, the
statement was not directed at the appellant; she overheard her supervisor make
the statement to someone else. We agree with the administrative judge that a
reasonable person would not have found working conditions so intolerable that a
single statement of this nature directed at someone else left her with no choice but
to resign.
¶7 On review, the appellant alleges that the administrative judge improperly
denied her request for particular witnesses who would have testified in support of
her claim of discrimination. PFR File, Tab 1 at 3. Absent jurisdiction over the
underlying action, the Board lacks jurisdiction to adjudicate allegations of
discrimination. Garcia, 437 F.3d at 1342-43. However, it is appropriate to
consider the appellant’s allegations to the extent they bear on the question o f
involuntariness. Hosozawa v. Department of Veterans Affairs, 113 M.S.P.R. 110,
¶ 5 (2010). Thus, we have considered the appellant’s assertions in terms of her
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allegation that the agency created intolerable working conditions by fostering a
hostile working environment.
¶8 The administrative judge did not document her reasons for denying the
witnesses in question. IAF, Tab 25 at 4. However, she provided the parties with
two opportunities to submit objections to her witness rulings (contained in the
memorandum of prehearing conference), once in writing, and again at the
beginning of the hearing. Id. at 5. The appellant did not object to those rulings.
Therefore, she has not preserved an objection for review. Miller v. U.S. Postal
Service, 117 M.S.P.R. 557, ¶ 8 (2012) (finding that when a party did not object to
the administrative judge’s witness rulings, it is precluded from doing so on
review).
¶9 In any event, we review an administrative judge’s rulings on witnesses
under an abuse of discretion standard. Lee v. Environmental Protection Agency,
115 M.S.P.R. 533, ¶ 7 (2010). Because the appellant herself provided evidence of
only one incident that was not directed at her, these witnesses could only
corroborate her evidence of that single incident and/or provide evidence about
other incidents that she did not witness. The appellant did not claim that she was
aware of other incidents that she did not witness, and any incidents of which she
was not aware could not have affected her perception that the working
environment was hostile. Therefore, the appellant has not explained why t hese
witnesses would have offered relevant testimony, and she has not shown that the
administrative judge abused her discretion by denying them. Id., ¶ 16 (stating
that the administrative judge did not abuse her discretion in denying witnesses
when it had not been shown that their testimony would be relevant, material, and
nonrepetitious).
¶10 Accordingly, we agree with the administrative judge that the appellant
failed to establish that her resignation was involuntary. We further find that the
administrative judge correctly dismissed the appeal for lack of jurisdiction.
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NOTICE OF APPEAL RIGHTS 1
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 t ime
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:
1
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.
7
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. I f 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
8
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
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
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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. 2 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.
2
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.
10
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.