Shirley Muhleisen v. Department of Veterans Affairs

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
SHIRLEY MUHLEISEN, DOCKET NUMBER
Appellant, DE-0353-16-0067-I-1
v.
DEPARTMENT OF VETERANS DATE: March 2, 2023
AFFAIRS,
Agency.
THIS ORDER IS NONPRECEDENTIAL 1
Shirley Muhleisen, Marrero, Louisiana, pro se.
Johnston B. Walker, Jackson, Mississippi, for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
Tristan L. Leavitt, Member 2
REMAND ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
denied her restoration appeal. For the reasons discussed below, we GRANT the
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A nonprecedential order is one that the Board has determined does not add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 nonprecedent ial 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
Member Leavitt’s name is included in decisions on which the three -member Board
completed the voting process prior to his March 1, 2023 departure.
2
appellant’s petition for review. We AFFIRM the administrative judge’s
determination that the appellant failed to prove the merits of her restoration
claim, but REMAND the case to the regional office for adjudication of the
appellant’s discrimination and retaliation claims in accordance with this Remand
Order.
BACKGROUND
¶2 The appellant first filed a claim in Federal district court, alleging that the
agency discriminated against her, subjected her to disparate treatment and a
hostile work environment, retaliated against her, and constructive ly discharged
her. See Muhleisen v. Department of Veterans Affairs, MSPB Docket
No. DE-0353-16-0067-I-1, Initial Appeal File (0067 IAF), Tab 6 at 6.
Ultimately, a Magistrate Judge denied each of those claims. Id. at 6-34. Most
notably, for purposes of the appeal currently before us, the Magistrate Judge
concluded that the appellant’s 1999 resignation was not involuntary. Id. at 29-32.
Among other things, she noted that the appellant had been looking for
employment elsewhere in the years leading up to her resignation, applied for
early retirement months before her resignation, applied for paralegal school to
begin the same month as her resignation, and actually began attending that
program just days after her resignation. Id. at 30. The Chief Judge for the U.S.
District Court for the District of Colorado agreed and granted summary judgment
in favor of the agency. Id. at 36-37. On appeal, the decision was also affirmed
by the U.S. Court of Appeals for the 10th Circuit. Id. at 42-48; see Muhleisen v.
Principi, 73 F. App’x 320 (10th Cir. 2003).
¶3 Next, the appellant filed an individual right of action (IRA) appeal with the
Board, alleging that she was subjected to whistleblower retaliation. Muhleisen v.
Department of Veterans Affairs, MSPB Docket No. DE-1221-13-0345-W-1,
Initial Appeal File (0345 IAF), Tab 1. The administrative judge dismissed that
IRA appeal for lack of jurisdiction. 0345 IAF, Tab 15, Initial Decision.
3
The Board remanded for further adjudication concerning the Board’s jurisdiction
over the appellant’s alleged involuntary resignation. Muhleisen v. Department of
Veterans Affairs, MSPB Docket No. DE-1221-13-0345-W-1, Remand Order,
¶¶ 8-10 (Nov. 10, 2014). The Board directed the administrative judge to
determine on remand if the appellant nonfrivolously alleged that her decision to
resign was involuntary, and thus a personnel action that could be raised in an IRA
appeal. On remand, the agency informed the administrative judge of the
appellant’s prior claims in Federal court and argued th at she should
be collaterally estopped from arguing that her resignation was involuntary.
Muhleisen v. Department of Veterans Affairs, MSPB Docket No. DE-1221-13-
0345-B-1, Remand File (0345 RF), Tab 20. The administrative judge agreed and
dismissed the appellant’s IRA appeal for lack of jurisdiction. 0345 RF, Tab 27,
Remand Initial Decision. The appellant filed a petition for review, but the Board
affirmed the remand initial decision. Muhleisen v. Department of Veterans
Affairs, MSPB Docket No. DE-1221-13-0345-B-1, Final Order (Feb. 28, 2023).
¶4 More recently, the appellant filed the instant appeal, which the
administrative judge construed as an allegation that the agency violated 5 C.F.R.
§ 353.301(d), a regulation requiring that agencies attempt to restore partially
recovered individuals. 0067 IAF, Tab 1, Tab 24 at 6. In concert with the instant
appeal, the following facts, as further detailed in the initial decision, appear
undisputed.
¶5 In 1984, the appellant began working for the agency as a Registered Nurse.
0067 IAF, Tab 39, Initial Decision (0067 ID) at 4. On more than one occasion,
between 1997 and 1998, she suffered respiratory problems while working in areas
that were under construction, requiring medical attention. Id. Around
March 1999, while the agency was offering early retirements under a Voluntary
Early Retirement Authority (VERA), the appellant elected to retire with a
proposed retirement date in September 1999. Id.4
¶6 In April and May 1999, the appellant’s physician submitted letters
indicating that she should not work in areas that were under construction. 0067
ID at 5. Then, in September 1999, the agency attempted to reassign her to a
different floor within the same building. Id. The appellant withdrew her
previously filed application for early retirement and requested an extended leave
of absence, but the agency denied the request. Id. The agency instructed the
appellant to report to work and she responded by giving her resignation notice,
effective October 1, 1999, and indicating that she would use leave for the days
leading up to that date. 0067 ID at 6. The Office of Personnel Management
approved the appellant’s VERA application. 0067 ID at 5-6.
¶7 At some point, the Department of Labor’s (DOL) Office of Workers’
Compensation Programs (OWCP) accepted two on-the-job injury claims the
appellant submitted. 0067 ID at 6. The appellant has since elected to receive her
OWCP benefits in lieu of her retirement annuity. 0067 ID at 6-7. The first claim
involved the appellant’s respiratory issues and the second reportedly involved
work stress. 0067 ID at 7. Beginning in 2003, DOL worked with the appellant to
facilitate her return to the workforce. 0067 ID at 8. Over the following years,
she applied, but was not selected, for several positions with the agency. 0067 ID
at 8-9.
¶8 In the instant appeal, the appellant alleges that the agency improperly
discriminated against her and denied her restoration. 0067 ID at 9. After asking
the parties to brief the issue, the administrative judge determined that the
appellant’s prior litigation concerning the voluntariness of her retirement did not
preclude this restoration appeal. 0067 IAF, Tab 2 at 3, Tab 6 at 4 -5, Tab 8 at 2,
Tab 24 at 1.
¶9 The administrative judge found that the appellant met her jurisdictional
burden and held her requested hearing. 0067 ID at 1, 10; 0067 IAF, Tab 1 at 1.
He issued an initial decision denying the appellant’s request for restoration.
0067 ID at 1. He found that the appellant was at most entitled to the restoration
5
rights of a partially recovered employee, as evidenced by her continued receipt of
OWCP benefits. Id. at 9 n.5; see 5 C.F.R. § 353.102 (defining a fully recovered
employee as one whose compensation payments have ceased because she is able
to resume all of her duties, while defining a partially recovered employee as one
who has recovered sufficiently for modified duties). He next found that the
appellant’s restoration claim failed because she did not prove by preponderant
evidence that her separation was due to a compensable injury. 0067 ID at 11 -15.
The administrative judge further found that, to the extent the appellant was
alleging that the agency engaged in discrimination by not restoring her, she failed
to present nonfrivolous allegations. 0067 ID at 15-16.
¶10 The appellant has filed a petition for review. Muhleisen v. Department of
Veterans Affairs, MSPB Docket No. DE-0353-16-0067-I-1, Petition for Review
(0067 PFR) File, Tab 4. 3 The agency has filed a response and the appellant has
replied. 0067 PFR File, Tabs 6-7.
3
Below, the administrative judge did not consider several pieces of evidence that the
agency initially submitted but later moved to withdraw after determining that it was not
authorized to disclose those materials. 0067 IAF, Tab 31 at 4 (referencing 0067 IAF,
Tab 21 at 18-67); 0067 ID at 3 n.1 (referencing 0067 IAF, Tab 21 at 18-67). On
review, the appellant appears to agree that this evidence should not have been disclosed
or considered. 0067 PFR File, Tab 4 at 7. Accordingly, we will not consider the
mistakenly submitted evidence either. Because the parties appear to agree that this
evidence was mistakenly submitted and should not have been made part of the record,
0067 IAF, Tab 31 at 4; 0067 PFR File, Tab 1 at 3-10, Tab 4 at 7, it has been sealed,
0067 PFR File, Tab 2 at 1-2. To the extent that the appellant suggests that the Board
should seal the remainder of the record, or take further action as it relates to her
privacy, we find no reason to do so. 0067 IAF, Tab 4 at 7; see Normoyle v. Department
of the Air Force, 65 M.S.P.R. 80, 83 (1994) (recognizing that while a Federal district
court may be able to consider claims of an alleged Privacy Act of 1974 violation, the
Board cannot); see also Doe v. Pension Benefit Guaranty Corporation, 117 M.S.P.R.
579, ¶ 23 n.5 (2012) (explaining that case files from Board appeals are not available to
the public by e-Appeal Online or on the Board’s website). The appellant’s motion to
strike and make other changes to the record, submitted on review, is therefore denied.
0067 PFR File, Tab 9. To the extent the appellant seeks to challenge the merits of the
initial decision in this motion and another filed months later, we decline to consider her
arguments. 0067 PFR File, Tabs 9-10; see 5 C.F.R. § 1201.114(a) (discussing the
pleadings allowed in connection with a petition for review and the limitations on
arguments made in a reply to a response to a petition for review); see also Hooker v.
6
DISCUSSION OF ARGUMENTS ON REVIEW
The appellant failed to meet her burden of proving the elements required for her
restoration claim.
¶11 As an initial matter, we note that the appellant attached significant evidence
to her petition for review that she did not submit during the proceedings b elow.
0067 PFR File, Tab 4 at 27-74. On review, we will not consider this evidence,
because the appellant has failed to show that it is new and material. 4
See Avansino v. U.S. Postal Service, 3 M.S.P.R. 211, 214 (1980) (recognizing
that, under 5 C.F.R. § 1201.115(d), the Board will not consider evidence
submitted for the first time on review absent a showing that it was unavailable
before the record was closed despite the party’s due diligence).
¶12 Turning to the substance of the instant appeal, the Federal Employees’
Compensation Act and its implementing regulations provide that Federal
employees who suffer on-the-job compensable injuries enjoy certain rights to be
restored to their previous or comparable positions. 5 U.S.C. § 8151; Tat v.
U.S. Postal Service, 109 M.S.P.R. 562, ¶ 9 (2008); 5 C.F.R. § 353.301.
To prevail on the merits of a restoration appeal as a partially recovered
Department of Veterans Affairs, 120 M.S.P.R. 629, ¶ 4 n.4 (2014) (denying an
appellant’s request to submit additional pleadings on review that did not appear
material to the dispositive issues in the case).
4
A couple of pages of the appellant’s evidence first submitted on review do appear new
in the sense that they are dated after the initial decision . 0067 PFR File, Tab 4
at 31-34, 55. However, it appears that they are merely documents created by the
appellant, as she contacted the agency to “resolve issues post hearing.” Id. at 27.
We discern no basis for concluding that the information in questi on is new and material
to the dispositive issues in this appeal. See 5 C.F.R. § 1201.115(d) (explaining that
“[t]o constitute new evidence, the information contained in the documents, n ot just the
documents themselves, must have been unavailable despite due diligence when the
record closed[]”); see also Russo v. Veterans Administration, 3 M.S.P.R. 345, 349
(1980) (explaining that evidence does not meet the “new and material evidence”
criterion unless it is of sufficient weight to warrant a different outcome).
To the extent that the evidence the appellant attached to her petition for review may be
relevant to the claims of discrimination and reprisal that we are remanding for further
adjudication, the appellant may present them to the administrative judge, if and when
prompted to do so.
7
individual, an appellant must prove by preponderant evidence that: (1) she was
absent from her position due to a compensable injury; (2) she recovered
sufficiently to return to duty on a part-time basis, or to return to work in a
position with less demanding physical requirements than those previously
required of her; (3) the agency denied her request for restoration; and (4) the
agency’s denial was arbitrary and capricious. Kingsley v. U.S. Postal Service,
123 M.S.P.R. 365, ¶¶ 11-12 (2016); 5 C.F.R. § 1201.57(a)(4), (c)(4).
¶13 For the first of the aforementioned elements, although the restoration
regulations speak only in terms of an employee separated “as a result of a
compensable injury,” the Board has interpreted this to mean that the separation
was “substantially related to” a compensable injury. See, e.g., Mobley v.
U.S. Postal Service, 86 M.S.P.R. 161, ¶ 6 (2000); Wright v. U.S. Postal Service,
62 M.S.P.R. 122, 128, aff’d, 42 F.3d 1410 (Fed. Cir. 1994) (Table);
Brown-Cummings v. Department of Health and Human Services, 39 M.S.P.R.
627, 630 (1989). 5 Here, the administrative judge found that the appellant failed
to prove that her 1999 separation was substantially related to compensable
injuries. 6 0067 ID at 12. In doing so, he largely relied on various
contemporaneous evidence, as well as some of the testimonial admissions. 0067
ID at 12-15. This evidence included the appellant’s testimony that she began
5
However, as the administrative judge pointed out in the initial decision, 0067 ID at 11,
a U.S. Court of Appeals for the Federal Circuit decision suggests that the Board should
apply a more stringent standard, in which the appellant’s compensable injury must be
the “sole cause” of the absence from his or her position for purposes of a partial
restoration case. Walley v. Department of Veterans Affairs, 279 F.3d 1010, 1017 n.6,
1018, 1020 (Fed. Cir. 2002). Because the appellant has failed to meet the less stringent
“substantially related to” standard, we need not further address Walley here.
6
Many of the arguments presented on review do not pertain to this dispositive issue or
the appellant’s restoration appeal, generally. For example, she appears to dispute the
findings from her prior appeals and reassert that her resignation was “involuntary .”
E.g., 0067 PFR File, Tab 4 at 2, 4, 10-12. She also presents extensive allegations of
agency impropriety, resulting in various losses, including the loss of her home, her
credit, and her pets. E.g., id. at 4-6. We will only address those arguments that
implicate the whether the appellant’s compensable injuries caused her separation.
8
pursuing other educational and career opportunities in April 1999, around the
time of her application for early retirement and approximately 6 months before
her separation. 0067 ID at 5; 0067 IAF, Tab 6 at 21, Tab 35, Hearing Recording
(testimony of appellant). In addition, August 1999 emails from the appellant
discuss her prior approval and plan for early retirement, effective
September 1999. 0067 IAF, Tab 21 at 13-14. Those emails suggest the appellant
was second-guessing the effective date of her early retirement, primarily because
she wanted to ensure that she received credit for all accrued leave. Id.
Those emails also contain a passing reference to a “kink” involving “a workman’s
comp issue, which has not been resolved,” but do not suggest t hat the appellant
was planning to separate as a result of her compensable injuries. Id.
¶14 In mid-September 1999, the appellant submitted a memorandum titled
“leave of absence,” indicating that she was withdrawing her application for
retirement at the end of the month and requesting the use of all available paid
leave “due to ambiguity regarding [her] job function and supervision and to
search for a professional position, for the duration of [her OWCP] issues.”
Id. at 11. The next day, the appellant submitted her resignation letter. Id. at 12.
That letter suggests that the appellant was dissatisfied with a requirement that she
leave her current post and begin working on a different floor of the same
building. Id. It includes a reference to “respiratory problems, some severe,” but
it does not clearly tie the two together or otherwise show that the appellant’s
compensable injuries were the cause of her separation. Id.
¶15 Although the appellant provided additional testimony about the reason for
her separation, attributing it to her compensable injuries and working conditions,
the administrative judge found that testimony not credible. 0067 ID at 2-3,
12-13. In making his credibility findings, the administrative judge considered the
16 years between the appellant’s resignation and her testimony about that
resignation, that contemporaneous records did not support her testimony, and that
documentary evidence altogether disproved some of her specific claims.
9
Id.; see Elder v. Department of the Air Force, 124 M.S.P.R. 12, ¶ 24 (2016)
(finding it appropriate to assign greater weight to statements that were completed
closer in time to the events in question); Hillen v. Department of the Army,
35 M.S.P.R. 453, 458 (1987) (identifying factors relevant to credibility
determinations, including the contradiction of a witness’s version of events by
other evidence).
¶16 On review, the appellant reasserts that the agency failed to process
numerous OWCP claims that she completed during the months leading up to her
resignation and continuously assigned her to work in construction zones, contrary
to her medical limitations. E.g., 0067 PFR File, Tab 4 at 7-9, 11, 13, 16-17.
However, she has failed to identify any supportive documentation. Therefore, it
appears that the appellant is relying solely on her testimony about these matters,
which the administrative judge generally found not credible. Although we have
considered the appellant’s arguments, we find no basis for disturbing the
administrative judge’s well-reasoned credibility findings. See Haebe v.
Department of Justice, 288 F.3d 1288, 1301 (Fed. Cir. 2002) (recognizing that the
Board must defer to an administrative judge’s credibility determinations when
they are based, explicitly or implicitly, on observing the demeanor of witnesses
testifying at a hearing; the Board may overturn such determinations only when it
has “sufficiently sound” reasons for doing so).
¶17 Although similarly unsupported by references to documentary evidence, the
appellant’s petition for review contains several allegations that lend further
support to the administrative judge’s conclusion that she failed to prove that her
resignation was substantially related to her compensable injuries. The appellant
acknowledges applying for paralegal school that began in April 1999, not
attending at that time due to financial constraints, but attending soon after her
October 1999 resignation. 0067 PFR File, Tab 4 at 11. She also acknowledges
applying for “fiscal service” jobs in July 1999, months before her resignation, and
asserting that she “had never had a job commensurate with the management level
10
grade [she] had worked hard to get or the [education she] had attained.” Id. at 12.
Moreover, the appellant generally describes the assignment she received just
before her resignation as unsatisfactory, both because she was needed at her old
assignment and because there was insufficient work at the new assignm ent.
Id. at 14-16. These allegations suggest the appellant planned to resign or retire
from her nursing position with the agency for reasons other than her compensable
injuries.
¶18 The appellant argues that OWCP already determined that she was absent
from her position due to a compensable injury and the administrative judge lacked
the authority to conclude otherwise. Id. at 21 (referencing 0067 IAF, Tab 10
at 12). However, in doing so, the appellant is mischaracterizing the content and
relevance of the letter she references. That OWCP letter does evidence that the
appellant suffered a compensable injury. 0067 IAF, Tab 10 at 12; see Frye v.
U.S. Postal Service, 102 M.S.P.R. 695, ¶ 9 (2006) (recognizing that a
compensable injury is defined as one that is accepted by OWCP as job -related and
for which medical monetary benefits are payable from the Employees’
Compensation Fund). The OWCP letter does not, however, include any
conclusion, much less a binding conclusion, that the appellant separated as a
result of a compensable injury. 0067 IAF, Tab 10 at 12; see Minor v. Merit
Systems Protection Board, 819 F.2d 280, 283 (Fed. Cir. 1987) (explaining that “a
decision of OWCP . . . ‘does not bind’ the [Board] acting within its own separate
statutory sphere of deciding the propriety of restoration”).
¶19 Finally, the appellant asserts that the administrative judge disallowed a key
witness she requested. 0067 PFR File, Tab 4 at 24. When requesting this witness
(an agency official), the appellant indicated that he would be asked to testify
about a statement he made during settlement discussions. 0067 IAF, Tab 20 at 2.
His statement essentially suggested it was unlikely that the agency would
reemploy the appellant. Id. Although the appellant’s petition does not contain
any substantive argument as to why the witness should have been allowed, we
11
considered the administrative judge’s ruling and find no abuse of discretion.
See Ryan v. Department of the Air Force, 117 M.S.P.R. 362, ¶ 5 (2012)
(recognizing that the Board will not reverse an administrative judge’s rulings on
discovery matters and the exclusion of witnesses, absent an abuse of discretion).
The offered testimony is not relevant to the dispositive issue that is before us,
whether the appellant’s separation was substantially related to her on -the-job
injuries.
¶20 In sum, it was the appellant’s burden to prove all the elements of her
restoration claim. Supra ¶ 12. Although we have considered her various
arguments on review, we find no basis for disturbing the administrative judge’s
conclusion that she failed to prove at least one —that she was absent due to a
compensable injury. 7
On remand, the administrative judge must provide notice and an opportunity to
prove any live discrimination or reprisal claim connected to this restoration
appeal.
¶21 Throughout her pleadings below, the appellant has also referenced
discrimination, 0067 IAF, Tab 1 at 3-4, Tab 9 at 2-5, 8, Tab 17 at 2-5, Tab 23
at 3-6, 9, 14, 17, and, to a lesser extent, reprisal, 0067 IAF, Tab 9 at 3, Tab 17
at 3, Tab 23 at 4. Notably, though, it is difficult to discern the extent to which
the appellant was raising cognizable discrimination and reprisal claims in
connection with this restoration appeal, as opposed to her merely describing
7
As discussed further, below, we are remanding the appellant’s discrimination and
retaliation claims. To the extent the administrative judge suggested that such claims are
alternate ways to show that a denial of restoration was arbitrary and capricious, this
observation was incorrect. 0067 ID at 15-16. After the initial decision was issued, we
clarified that the fact that an agency was motivated by discrimination or reprisal is
immaterial to the determination of whether it arbitrarily and capriciously denied
restoration. Cronin v. U.S. Postal Service, 2022 MSPB 13, ¶ 21. In any event, the
administrative judge’s observation is dicta here. He found, and we agree, that the
appellant failed to prove her separation was substantially related to her compe nsable
injury. 0067 ID at 12.
12
litigation history or other perceived improprieties unrelated to the restoration
matter before us.
¶22 To illustrate, in her initial pleading, the appellant alleged a number of facts
which “suggest[] discrimination in addition to violating restoration rights.”
0067 IAF, Tab 1 at 3. But a subsequent pleading repeatedly invokes
“discrimination,” while appearing to do so for the sole purpose of describing a
history unrelated to any restoration claim. 0067 IAF, Tab 9 at 2-5, 8. Then, in a
later pleading, the appellant alleges that the “[a]gency simply refused to rehire”
her, “stating affirmatively and with discriminatory animus . . . that
‘reemployment is not an option.’” 0067 IAF, Tab 17 at 3. The appellant’s
petition for review contains more of the same. E.g., 0067 PFR File, Tab 4 at 5-6,
10, 18.
¶23 The administrative judge did not adjudicate the merits of the appellant’s
discrimination or reprisal claims. 0067 ID at 15-16. In light of subsequent
development in our case law, we remand these claims.
¶24 While this case was pending on review, we issued a decision clarifying that
the Board is required to adjudicate discrimination and reprisal claims raised in
connection with a restoration appeal over which, as here, it has jurisdiction.
Desjardin v. U.S. Postal Service, 2023 MSPB 6, ¶¶ 20-21. However, the pro se
appellant in this appeal has yet to be provided with proper notice of how to prove
discrimination or reprisal in connection with this restoration appeal. E.g., 0067
IAF, Tabs 2-4, 18, 24. In addition, it is evident that she did not abandon such
claims because, among other things, she repeatedly referenced them both below
and on review. See supra ¶ 21. Accordingly, we find that the appellant, who was
and remains pro se, has not waived the claims, and remand is required. See
Thurman v. U.S. Postal Service, 2022 MSPB 21, ¶¶ 17-18 (providing a
nonexhaustive list of factors the Board will examine in determining whether an
appellant waived or abandoned a previously identified affirmative defense , thus
obviating the need to remand the appeal); see also Burgess v. Merit Systems
13
Protection Board, 758 F.2d 641, 643-44 (Fed. Cir. 1985) (stating that an
appellant must receive explicit information on what is required to establish an
appealable jurisdictional issue).
¶25 On remand, the administrative judge should give the appellant proper
notice, as well as an opportunity to clarify what, if any, discrimination and
reprisal claims she intended to present in connection with her restoration claim.
Compare Melnick v. Department of Housing and Urban Development,
42 M.S.P.R. 93, 97 (1989) (recognizing that pro se pleadings are to be liberally
construed), aff’d, 899 F.2d 1228 (Fed. Cir. 1990) (Table), with Williams v. U.S.
Postal Service, 116 M.S.P.R. 377, ¶ 11 (2011) (explaining that a lack of
representation does not excuse an appellant from complying with Board orders).
The administrative judge must determine in the first instance whether the
appellant has raised any discrimination and reprisal claims connected to this
restoration appeal as to which she can and is seeking additional damages or
corrective action, such that those claims are not moot. See, e.g., Jenkins v.
Environmental Protection Agency, 118 M.S.P.R. 161, ¶¶ 13-14 (2012) (remanding
a removal appeal for adjudication of a whistleblower retaliation affirmative
defense that could result in additional relief, notwithstanding the Board’s reversal
of the removal for other reasons); Antonio v. Department of the Air Force,
107 M.S.P.R. 626, ¶¶ 1, 6, 13-15 (2008) (remanding a removal appeal,
notwithstanding the agency’s rescission of the removal, for adjudication of a
national origin discrimination claim that could result in additional relief, but not
an age discrimination claim that could not result in additional relief).
Depending on the nature of her clarified allegations, the administrative judge
must also determine whether the appellant is entitled to a supplemental hearing.
See Sabio v. Department of Veterans Affairs, 124 M.S.P.R. 161, ¶ 28 (2017)
(explaining the limited circumstances in which when an administrative judge may
dispose of a discrimination affirmative defense without a hearing).
14
ORDER
¶26 For the reasons discussed above, we REMAND this case to the regional
office for further adjudication in accordance with this Remand Order. 8
FOR THE BOARD: /s/ for
Jennifer Everling
Acting Clerk of the Board
Washington, D.C.
8
In the remand initial decision, the administrative judge sh ould incorporate his prior
findings that we have affirmed, along with our other findings herein. The remand
initial decision will include appeal rights for all claims.