Arisa Groenleer v. Department of the Navy

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
ARISA GROENLEER, DOCKET NUMBER
Appellant, SF-0752-16-0028-I-2
v.
DEPARTMENT OF THE NAVY, DATE: May 5, 2023
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Daphne Barbee, Esquire, Honolulu, Hawaii, for the appellant.
Kathryn A. Good, Esquire, Quantico, Virginia, for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
FINAL ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
sustained her removal. 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
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
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. 5 C.F.R. § 1201.113(b).
BACKGROUND
¶2 The following facts, as further detailed in the initial decision, are not
materially disputed. The appellant held an Intelligence Specialist position with
the Naval Criminal Investigative Service from September 2008, until her removal
in May 2015. Groenleer v. Department of the Navy, MSPB Docket No. SF-0752-
16-0028-I-2, Refiled Appeal File (RAF), Tab 67, Initial Decision (ID) at 3. For
fiscal years 2010 and 2011, the agency rated her performance as successful. ID
at 4. During fiscal year 2012, the agency reassigned her to the Hawai i Field
Office and again rated her performance as successful. Id. Around the time of
that performance appraisal, the appellant received a new first -level supervisor.
ID at 5. About 6 months later, in April 2013, this new supervisor issued the
appellant a performance advisory letter (PAL), warning of performance
deficiencies. Id.¶3 For fiscal year 2013, the first year the appellant was evaluated under new
performance standards, the agency rated her performance as minimally
successful. Id. Thereafter, in November 2013, the appellant’s supervisor issued
another PAL, once again identifying performance deficiencies, and warning that
3
she could be placed on a performance improvement period (PIP) if her
performance did not improve. ID at 6.
¶4 In January 2014, the agency placed the appellant on a PIP. Id. In
September 2014, the agency informed the appellant that she failed the PIP. ID
at 7. The agency proposed her removal for unacceptable PIP performance in
December 2014, and then effectuated her removal in May 2015. ID at 7-8.
¶5 The appellant filed the timely Board appeal that is currently before us,
challenging her removal. 2 Groenleer v. Department of the Navy, MSPB Docket
No. SF-0752-16-0028-I-1, Initial Appeal File (IAF), Tab 1. The administrative
judge dismissed the appeal, without prejudice, for refiling at a later date so the
appellant’s attorney could obtain the interim security clearance necessary for
viewing pertinent classified materials and agency classification authorities could
finish their document review. IAF, Tab 44. Ultimately, the administrative judge
developed the record and held the requested hearing before sustaining the
appellant’s removal under chapter 75. 3 ID at 3.
¶6 The administrative judge first provided a lengthy discussion of the evidence
relevant to the pre-PIP period, ID at 12-20, and the PIP period, ID at 20-30.
Next, he found that although it was not required in this chapter 75 removal, the
agency provided the appellant with a reasonable opportunity to improve. ID
at 30-32. For the agency’s lone charge of “unacceptable performance during
2
An administrative judge dismissed a prior Board appeal challenging her removal as
premature because the appellant had a pending equal employment opportunity (EEO)
complaint. See Groenleer v. Department of the Navy, MSPB Docket No. SF-0432-15-
0582-I-1, Initial Appeal File, Tab 11.
3
We note that the administrative judge sealed portions of the record and held portions
of the hearing in a classified setting, to accommodate security and classification
requirements. E.g., IAF, Tab 28 at 4; ID at 2. After completing his initial decision, the
administrative judge had it screened by a security manager for the respondent agency to
ensure it does not contain classified or otherwise sensitive materials. ID at 3 n.2.
Although the portions of the record containing classified and Special Access Program
material are available at a secure location, we did not find reviewing them necessary to
render the instant decision.
4
opportunity to improve performance period,” the administrative judge sustained
the first specification, ID at 32-60, but not the second or third, ID at 60-61. He
then denied each of the appellant’s affirmative defenses. He found no merit to
the claim that her March 2013 grievance was protected under Title VII. ID
at 63-70. The administrative judge also found that while the appellant did engage
in some protected equal employment opportunity (EEO) activity, she failed to
establish that it was a motivating factor in her removal. ID at 70 -75. He further
found that the appellant failed to establish race or sex discrimination, ID at 76 -84,
or any due process violation, ID at 84-87. Finally, the administrative judge found
that the agency established the requisite nexus, ID at 11 -12, and removal was a
reasonable penalty, ID at 87-93.
¶7 The appellant has filed a petition for review. Groenleer v. Department of
the Navy, MSPB Docket No. SF-0752-16-0028-I-2, Petition for Review (PFR)
File, Tab 1. The agency has filed a response, and the appellant has replied. 4 PFR
File, Tabs 5-6. 5
4
In her petition, the appellant included a lengthy statement of facts that is filled with
assertions in support of her position. PFR File, Tab 1 at 5 -15. For example, without
identifying any evidentiary support, the statement of facts asserts that the appellant
began to experience a hostile work environment after her reassignment to the Hawaii
Field Office and a new supervisor. Id. at 5. In her reply brief, the appellant asserts that
we should deem her statement of facts true because the agency did not explicitly refute
it. PFR File, Tab 6 at 4. We disagree. See Hendricks v. Department of the Navy,
69 M.S.P.R. 163, 168 (1995) (recognizing that the statements of a party’s representative
in a pleading do not constitute evidence).
5
The appellant also requested permission to submit another pleading that would address
Santos v. National Aeronautics and Space Administration, 990 F.3d 1355 (Fed. Cir.
2021) and Lee v. Department of Veterans Affairs, 2022 MSPB 11, ¶ 16, because those
decisions were issued after the appellant filed her petition for review but while that
petition was pending before the Board. PFR File, Tab 8. This request is denied.
Santos and Lee do not require a different result because they involved the standards for
a chapter 43 appeal, while this appeal is governed by the standards of chapter 75. E.g.,
RAF, Tab 8 at 8, 50-52, Tab 44 at 8-9, Tab 49 at 11, 15-16; ID at 3, 9 n.7.
5
ANALYSIS
The appellant has failed to establish that the administrative judge committed any
procedural error in adjudicating this appeal.
Deposition
¶8 During the adjudication of this appeal, the agency deposed the appellant
over 2 days in a secure facility. RAF, Tab 57 at 10. In the middle of the first
day, the parties separately emailed the administrative judge about a d ispute.
Agency counsel asked the administrative judge to hold a call with all relevant
parties, because the appellant was refusing to answer some questions and left for
an hour, shortly after the deposition started. Id. Appellant’s counsel disagreed
with that characterization. Id. at 11. Among other things, appellant’s counsel
alleged that she and the appellant had simply attempted to leave for lunch, but
agency counsel “attempted to illegally kidnap” them by blocking their exit. Id.Appellant’s counsel requested a protective order and both parties requested
sanctions against their counterpart. E.g., RAF, Tabs 63-65. The administrative
judge denied the motions, finding that the agency did not engage in any wrongful
conduct and the appellant’s claim of attempted kidnapping was hyperbolic. ID
at 8 n.6.
¶9 On review, the appellant has raised this matter again. PFR File, Tab 1
at 31-33. She argues that the administrative judge abused his discretion in
denying her request for a protective order or sanctions and finding no fault in the
behavior of agency counsel at the deposition. Id. at 32-33. According to
appellant’s counsel her use of the term “kidnapping” was not hyperbolic. Id.
at 33.
¶10 While appellant’s counsel would have us believe that she and the appellant
were nearly kidnapped, the record is not at all supportive. The agency presented
declarations under penalty of perjury from several witnesses, each disputing the
claim. RAF, Tab 63 at 6-11. Those declarations generally describe the parties
disagreeing about lunch scheduling, but the appellant and her representative
6
leaving when they wanted, with the escort necessitated by the deposition
location—a secure facility. Id. Not even the declaration of the appellant
genuinely corroborates the claim of an attempted kidnapping; it instead suggests
the parties had a contentious disagreement about scheduling, which ended when
the appellant and her representative simply walked past agency counsel and out
the door. RAF, Tab 64 at 10-11. The parties appear to agree that, after the lunch
break, they finished out that deposition day and another, with some guidance by
the administrative judge and without further incident. E.g., RAF, Tab 63 at 6-7;
PFR File, Tab 1 at 32.
¶11 In her petition, appellant’s counsel also suggests that the aforementioned
email from agency counsel to the administrative judge was an improper ex parte
communication. E.g., PFR File, Tab 1 at 31-32; RAF, Tab 57 at 10-11. But we
find nothing improper about the email, which involved scheduling a call for all
parties to settle a deposition dispute, not the merits of this appeal. See 5 C.F.R.
§ 1201.101 (recognizing that not all ex parte communications a re prohibited; only
those that involve the merits of the case or otherwise violate rules requiring
written submissions are prohibited). Under these circumstances, we find the
appellant’s arguments surrounding her deposition meritless. See Pumphrey v.
Department of Defense, 122 M.S.P.R. 186, ¶ 14 (2015) (discussing the limited
circumstances in which an administrative judge is authorized to issue a protective
order); Leseman v. Department of the Army, 122 M.S.P.R. 139, ¶ 6 (2015)
(recognizing that the Board will not reverse an administrative judge’s
determination regarding sanctions absent an abuse of discretion).
Denied witnesses
¶12 The appellant next argues that the administrative judge improperly denied
several witnesses she requested. PFR File, Tab 1 at 27-28. The record shows that
he denied two witnesses because their work with the appellant was too remote in
7
time and four others because he did not find that their proffered testimony would
be helpful. RAF, Tab 50 at 5.
¶13 On review, the appellant reasserts that these witnesses, if permitted to
testify, would have established that she was a good worker. PFR File, Tab 1
at 27. However, the record already contained written statements from these
witnesses about her past performance. IAF, Tab 8 at 81, 85-86, 90, 95-96.
Moreover, the appellant appears to concede that these individuals did not work
with her throughout the relevant period—when she was working under the PIP.
PFR File, Tab 1 at 27. Therefore, we are not persuaded that the administrative
judge abused his discretion in disallowing those witnesses. An administrative
judge has broad discretion to control the course of the hearing, including wide
discretion to exclude witnesses when it has not been shown that their testimony
would be relevant, material, and nonrepetitious. Franco v. U.S. Postal Service,
27 M.S.P.R. 322, 325 (1985).
The administrative judge properly sustained the agency’s charge.
¶14 The agency proposed and effectuated the appellant’s removal based on a
single charge of “unacceptable performance during opportunity to improve
performance period,” with three underlying specifications. RAF, Tab 49 at 4-10;
IAF, Tab 8 at 33-53. In short, each specification concerned a specific
performance objective—production, intelligence cycle feedback, and ad hoc.
RAF, Tab 49 at 6-8. The administrative judge found that the agency proved
specification 1 (production). ID at 33-60. He did not sustain specifications 2
(intelligence cycle feedback) or 3 (ad hoc), because he found that the PIP
imposed a higher level of performance than was required by her corresponding
performance objectives. ID at 60-61.
¶15 Though further detailed in the proposal and decision letters, the production
specification that remains described how the agency assigned the appellant
55 tasks during her PIP, but she failed to satisfactorily complete 80% of them,
which was required to be minimally successful. RAF, Tab 49 at 5-7; IAF, Tab 8
8
at 36. According to the agency, the appellant satisfactorily completed only 20 of
the 55 tasks, or 37% of them. RAF, Tab 49 at 6-7; IAF, Tab 8 at 36.
¶16 The administrative judge conducted an extensive evaluation of the tasks on
which the agency relied. ID at 33-60. He found that the agency failed to meet its
burden for nine of them, ID at 33-34, but proved that the appellant failed to
satisfactorily complete the remaining tasks, ID at 34-60. Accordingly, the
administrative judge concluded that the satisfactory completion rate established
by the record was 29 of 55 tasks, or approximately 53%, which was better than
alleged but well below the 80% rate required under the PIP to be minimally
successful. ID at 34; IAF, Tab 8 at 290-95.
¶17 On review, the appellant primarily challenges the production specification
on the basis of the applicable standards. PFR File, Tab 1 at 16 -21. According to
the appellant, the agency did not provide objective standards, and she was unsure
what the agency wanted from her work products. Id. at 16-17. We are not
persuaded by this contention.
¶18 In its January 2014 PIP letter, the agency explained the production
requirement at issue by detailing what was necessary for an acceptable rating,
what constituted performance deficiencies, and the improvement that was
required of the appellant. IAF, Tab 8 at 276-77. The agency then sent the
appellant to a 3-week refresher training course. Id. at 286, 309. Immediately
after her return, the appellant’s chain of command met with her to provide
detailed instructions, assignments, and another explanation of what constituted
acceptable performance. Id. at 290-92. In the days that followed, the agency
amended the PIP to clarify what was necessary for the appellant to perform
acceptably and provided a complete “to do” list. Id. at 290-306. Among other
things, the amended PIP clarified that at least 80% of her work products must be
satisfactory, i.e., having no major errors and requiring minimal edits. Id.
at 292-93. The agency also provided relevant definitions. For example, it
defined a work product as requiring minimal edits “if it contains 1) three or less
9
grammatical errors per page; and usually contains 2) most logical headers and
context; 3) clear sentence structure throughout the product, and 4) graphics that
support the text or are explained.” Id. at 293. Over the subsequent months,
throughout the remainder of the PIP, the appellant’s first - and second-level
supervisors repeatedly held meetings to provide the appellant feedback and
guidance. IAF, Tab 8 at 41 n.4. These facts, among others, demonstrate that
there is no merit to the appellant’s allegation that her performance standard was
impermissibly subjective or left her unsure what the agency wanted. Cf. Melnick
v. Department of Housing and Urban Development, 42 M.S.P.R. 93, 98-99 (1989)
(recognizing, in a chapter 43 appeal, that performance standards may be more or
less objective depending upon the job measured; the fact that performance
standards may call for a certain amount of subjective judgment from an
appellant’s supervisor does not necessarily invalidate them), aff’d, 899 F.2d 1228(Fed. Cir. 1990).
¶19 Concerning her performance, the appellant also asserts that the agency did
not present data about the work products of coworkers, PFR File, Tab 1 at 18 -19,
but she has failed to identify any requirement that the agency do so and we are
aware of none. 6 To the extent that the appellant may be implying that such data
6
The appellant also asserts that the administrative judge erred in denying her motion to
compel discovery of her coworker’s work products from 2014 -2015. PFR File, Tab 1
at 26; IAF, Tab 10 at 14, Tab 11 at 4-5. However, after reviewing the pleadings she
referenced, we are unable to locate any argument about that discovery request in her
motion to compel or the administrative judge’s ruling. Compare IAF, Tab 10 at 4-8,
42-48, with IAF, Tab 28 at 1-2. The motion did include her exhaustive discovery
request, IAF, Tab 10 at 10-33, and that request did seek a coworker’s work products, id.
at 14. Yet the crux of her motion to compel involved the appellant’s own work
products and the agency’s redactions of them. Id. at 6-8, 42-48. There appears to be no
argument about discovery of her coworker’s work products. Moreover, even if the
motion to compel did encompass the request for her coworker’s work products from
2014-2015, we find no basis for concluding that the agency erred by refusing the
request because, inter alia, the materials were classified and the request was overly
broad, nor do we find any abuse of discretion on the part of the administrative judge.
See Vaughn v. Department of the Treasury, 119 M.S.P.R. 605, ¶ 15 (2013) (recognizing
an administrative judge’s broad discretion in ruling on discovery matters); 5 C.F.R.
10
was necessary to establish that the agency’s standards were reasonable, we
disagree. The appellant’s bare assertion that the agency should have provided
more evidence about her peers does not provide a basis for disturbing the
administrative judge’s findings about the reasona bleness of her performance
standards. ID at 35; see also Graham v. Department of the Air Force,
46 M.S.P.R. 227, 235 (1990) (recognizing that, in a chapter 75 removal for
unacceptable performance such as this, an agency must prove that the
performance standards at issue are reasonable and provide for an accurate
measurement of the employee’s performance).
¶20 The appellant next argues that her chain of command prevented her from
contacting others for assistance during the PIP. PFR File, Tab 1 at 20. Yet,
based on various pieces of evidence, including the appellant’s own admissions,
the administrative judge found that the agency offered the appell ant two mentors,
neither of which the appellant utilized. ID at 26, 29, 31. More importantly, as
mentioned above, the appellant’s first- and second-level supervisors provided
regular feedback discussions during the PIP, including more than 30 instances
that are documented in her removal letter, along with regular written feedback
and examples. ID at 23-24, 31; IAF, Tab 8 at 41. According to the appellant,
these first- and second-level supervisors were hostile throughout the PIP,
preventing a meaningful opportunity to improve. PFR File, Tab 1 at 20-21.
However, based on witness testimony and documentary evidence, the
administrative judge did not find her allegations credible. ID at 31 -32. We will
not disturb his well-reasoned findings about these matters. 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 the observation of the demeanor of
witnesses testifying at a hearing; the Board may overturn such determinations
§ 1201.72 (explaining discovery in a Board proceeding, its scope, methods, and
limitations).
11
only when it has “sufficiently sound” reasons for doing so); see also Purifoy v.
Department of Veterans Affairs, 838 F.3d 1367, 1373 (Fed. Cir. 2016)
(recognizing the deference afforded to an administrative judge’s demeanor-based
credibility determinations, “[e]ven if demeanor is not explicitly discussed”).
The administrative judge properly denied the appellant’s affirmative defenses.
Due process
¶21 The administrative judge considered the appellant’s twofold allegation that
the agency denied her due process. ID at 84-87. While the appellant generally
alleged bias on the part of the deciding official, the administrative judge found no
evidence of the same. ID at 85. And while the appellant alleged that she lacked a
meaningful opportunity to respond to the proposed removal because the agency
heavily redacted and guarded her underlying work products, which were
classified, the administrative judge disagreed because the agency made
unredacted versions available. ID at 85-87.
¶22 On review, the appellant reasserts a due process violation in several
regards. PFR File, Tab 1 at 23-27. First, the appellant presents several
arguments that are unavailing because they rely on an oversimplificat ion of
pertinent facts. For example, while the appellant argues that she was denied due
process because her proposed removal included only redacted work products, id.
at 23, there is ample evidence that the agency offered her the opportunity to
review unredacted versions during the response period and the appellant simply
chose not to do so. Instead, the appellant continually asserted that she was being
denied due process because of the redactions, while simultaneously refusing the
agency’s offer to view the documents without redactions. Compare IAF, Tab 8
at 66-68 (the appellant’s December 2014 response to the proposed removal,
referring to the ambiguity caused by redactions in the supportive materials), with
id. at 101-16 (February 24, 2015 transcript of the appellant’s oral response,
wherein agency counsel indicated that the appellant could review the unredacted
12
versions), 176-77 (February 23, 2015 email from agency counsel to the
appellant’s counsel, indicating that the appellant could review the unred acted
versions).
¶23 The appellant has separately alluded to the fact that her counsel was not
permitted to review the unredacted documents. PFR File, Tab 1 at 24 -25. Again,
the record shows that the agency offered to help her apply for an interim security
clearance so she would have the necessary authorization, but the appellant’s
counsel chose not to do so. Compare IAF, Tab 8 at 170-73 (March 6, 2015
message from the appellant’s counsel, again arguing that the appellant is
disadvantaged because of the redactions), with id. at 189 (March 6, 2015 response
from the agency’s counsel, offering to help the appellant’s counsel obtain an
interim clearance), and id. at 205 (March 13, 2015 message from the appellant’s
counsel characterizing the need for an interim clearance as onerous), with id.
at 210-12 (March 18, 2015 response from the agency’s counsel explaining the
need for a clearance), 222-24 (March 30, 2015 message from the appellant’s
counsel, once more arguing that she was disadvantaged because of the redacted
documents). She only applied for her interim security clearance in connection
with this appeal many months later. IAF, Tab 38 at 4.
¶24 Next, without identifying any specific work product, the appellant has
alluded to the fact that the agency was not able to produce unredacted versions of
some documents during adjudication of this appeal, for security reasons, despite
the parties’ clearances. PFR File, Tab 1 at 25. 7 However, the administrative
7
Within this due process portion of her petition, the appellant appears to dispute the
administrative judge’s finding of unsatisfactory performance for a single work product.
PFR File, Tab 1 at 25 (citing ID at 42). But the argument misstates the administrative
judge’s findings. The appellant suggests that the administrative judge held her
accountable for not including a document with her work product that, in actu ality, could
not be included due to its classification level. PFR File, Tab 1 at 25. In fact, the
administrative judge held her accountable for the fact that the appellant’s work product
erroneously stated that the document was attached to her work produ ct when it was not.
ID at 42-43.
13
judge acknowledged the same and, as a result, assumed that the appellant
completed those tasks satisfactorily. ID at 33-34.
¶25 The appellant’s other due process arguments similarly relate to the
redaction of her work products. She appears to argue that it was a due process
violation or other error for the administrative judge to rely on the unredacted
versions of her work products, rather than the redacted work products the
deciding official considered. PFR File, Tab 1 at 22, 24. This argument is
unavailing because an adverse action appeal from an agency is a de novo
proceeding before the Board whereby the Board will consider relevant evidence
even if it was not before the agency at the time of its adverse action. Street v.
Department of the Army, 23 M.S.P.R. 335, 340-41 (1984). In other words, the
administrative judge properly considered evidence from both pa rties that the
deciding official lacked, such as the appellant’s hearing testimony and her
unredacted work products.
¶26 The appellant separately argues that it was a due process violation for the
deciding official to rely on the redacted work products. PFR F ile, Tab 1 at 21-24;
IAF, Tab 8 at 33-36. However, the appellant has acknowledged that her proposed
removal included those redacted work products. PFR File, Tab 1 at 23. Thus, the
deciding official did not consider information that was not made available to the
appellant. Moreover, due process requires that an employee being deprived of her
property interest be given a meaningful opportunity to respond. Gajdos v.
Department of the Army, 121 M.S.P.R. 361, ¶ 18 (2014). The appellant has failed
to present any persuasive argument that the deciding official’s consideration of
redacted work products, along with her chain of command’s reports of why they
were unsatisfactory, precluded a meaningful response. If she had chosen to do so,
the appellant could have reviewed the unredacted work products to formulate
arguments about why her work was satisfactory, contrary to the charge and he r
chain of command’s evaluations.
14
Reprisal for grievance activity
¶27 Although the appellant claimed that a March 2013 grievance she filed was
protected activity under Title VII’s opposition clause and the agency’s subsequent
actions constituted improper reprisal, the administrative judge found otherwise.
ID at 63-70. He concluded that the grievance was not activity protected under the
opposition clause of Title VII because the grievance involved general complaints
about her manager; it did not oppose discrimination. Id. (referencing Daniels v.
School District of Philadelphia, 776 F.3d 181, 193-95 (3d Cir. 2015) (recognizing
that a complaint about a manager, without relating the complaint to
discrimination based on a protected category, is not covered by Title VII’s
opposition clause)).
¶28 On review, the appellant has raised her March 2013 grievance once more,
but her arguments are not persuasive. The appellant suggests that while she may
not have used “magic words,” such as “discrimination,” she did complain about
being singled out and that should suffice. PFR File, Tab 1 at 28-29; RAF, Tab 44
at 99-100. We disagree. While there are no magic words, Title VII’s opposition
clause only protects an employee’s opposition to discrimination. 42 U.S.C.
§ 2000e-3(a) (making it “an unlawful employment practice for an employer to
discriminate against any . . . employee[] . . . because he has opposed any practice
made . . . unlawful . . . by this subchapter”); see Crawford v. Metropolitan
Government of Nashville and Davidson County, 555 U.S. 271, 276-78 (2009)
(discussing the term “oppose,” in the opposition clause of 42 U.S.C.
§ 2000e-3(a), and explaining that opposition includes taking “a stand against an
employer’s discriminatory practices”). The appellant has failed to present any
substantive basis for us to conclude that her general complaint about “the
management and communication methods” of her supervisor, with no appa rent
relation to discrimination, falls within those protections. RAF, Tab 44 at 99 -100.
15
Reprisal for an EEO complaint
¶29 The appellant’s next reprisal claim concerned an EEO complaint, which was
protected activity, but the parties disagreed about its timi ng in relation to the
agency’s actions. While the appellant asserted that she initiated her EEO
complaint before her first- and second-level supervisors concluded that she failed
the PIP, the administrative judge found that her complaint actually occurred days
after they issued her PIP failure letter. ID at 70-72; RAF, Tab 46 at 111. He
further found that the appellant’s EEO complaint was not a motivating factor in
the actions that followed, including her removal. ID at 73 -75. Alternatively, the
administrative judge found that, even if it were a motivating factor, the agency
would have removed the appellant even in the absence of her EEO activity. ID
at 75.
¶30 On review, the appellant reasserts that she initiated her EEO complaint
before the PIP failure letter, not after. PFR File, Tab 1 at 29. However, her bare
assertion on this point does not warrant disturbing the administrative judge’s
well-reasoned findings to the contrary, which were based upon documentary
evidence and credibility determinations. ID at 70-72; see Crosby v. U.S. Postal
Service, 74 M.S.P.R. 98, 106 (1997) (finding no reason to disturb the
administrative judge’s findings when she considered the evidence as a whole,
drew appropriate inferences, and made reasoned conclusions); see also Purifoy,
838 F.3d at 1373; Haebe, 288 F.3d at 1301.
¶31 The appellant’s petition goes on to acknowledge, as the administrative
judge did, that her EEO complaint did precede the removal action at issue in this
appeal. PFR File, Tab 1 at 29-30. Yet she fails to present any substantive and
persuasive argument that the EEO complaint was a motivating factor in her
removal. See Pridgen v. Office of Management and Budget, 2022 MSPB 31,
¶¶ 30-31. According to the appellant, the administrative judge erroneously
concluded that her first- and second-level supervisors played no role in her
16
removal when, in fact, the deciding official relied on their conclusions about her
performance during the PIP. PFR File, Tab 1 at 30. But that misconstrues the
administrative judge’s findings. The administrative judge found that while the
appellant’s first- and second-level supervisors evaluated the appellant’s PIP
performance as unacceptable, that evaluation occurred before her EEO complaint
and any possible motive to retaliate from those supervisors, and they were not
otherwise involved in her subsequent removal. ID at 70-75. The appellant’s
argument on review does not establish otherwise, nor does it present any other
basis for disturbing the administrative judge’s findings regarding her EEO
reprisal claim.
Discrimination
¶32 The final affirmative defense the administrative judge considered was one
of discrimination in the form of disparate treatment. Among other things, he
considered allegations concerning the appellant and a comparator employee’s
access to certain classified systems, desk locations, and freedom to collaborate,
along with the agency’s decision to promote that employee. Ultimately, although
the appellant argued that she was subjected to disparate treatment on the basis of
race and gender, the administrative judge found that she failed to meet her burden
of proof. ID at 76-84.
¶33 On review, the appellant has reasserted discrimination. PFR File, Tab 1
at 28-31. However, her arguments largely consist of conclusory allegations
without persuasive argument and evidence that would warrant disturbing the
initial decision. For example, the appellant asserts that the administrative judge
improperly described her second-level supervisor as married to someone with
Asian heritage, when that individual is actually of Polynesian heritage. PFR File,
Tab 1 at 28; ID at 77. But even if true, which we have not determined because
the appellant failed to identify any evidence about the same, the distinction
appears inconsequential. The administrative judge cited this individual’s heritage
17
while making the more general finding that the Hawaii Field Office included a
wide variety of people who were or had a close family member who was
“one-half minority,” like the appellant. ID at 82. Concerning the promotion of
the comparator at issue, a Caucasian male, the appellant asserts that the agency
selected him for a promotion over a third-party Japanese American even though
he had no experience. PFR File, Tab 1 at 30. However, the appellant failed to
identify any evidence to support that claim, nor has she identified anything to
dispute the agency’s explanation for the selection.
¶34 The appellant also attempts to discount testimony f rom certain officials
about the absence of discrimination, arguing that they were not present to witness
her first-level supervisor’s disparate treatment. PFR File, Tab 1 at 30.
Additionally, she argues that the administrative judge erred in finding that several
officials involved in the appellant’s PIP and subsequent removal were unaware of
the fact that she is one-half Japanese because her race is apparent. Id. at 28; ID
at 77-78, 83. While we have considered each of the appellant’s arguments or
assertions pertaining to discrimination, we find no basis for disturbing the
administrative judge’s thorough and well-reasoned findings, which are largely
based upon credibility determinations. 8 ID at 76-84; see Purifoy, 838 F.3d
at 1373; Haebe, 288 F.3d at 1301.
The administrative judge properly found the penalty of removal to be reasonable.
¶35 The administrative judge determined that removal was a reasonable penalty.
ID at 87-93. On review, the appellant summarily asserts that the removal shou ld
be mitigated because the agency proved only one of the three specifications
underlying its charge. PFR File, Tab 1 at 15-16. However, it is well settled that
8
Because we affirm the administrative judge’s finding that the appellant failed to show
that any prohibited consideration was a motivating factor in the agency’s action, we
need not resolve the issue of whether the appellant proved that discrimination or
retaliation was a “but-for” cause of the agency’s decisions. See Pridgen, 2022 MSPB
31, ¶¶ 20-22, 29-33.
18
proof of one specification is sufficient to sustain a charge. Payne v. U.S. Postal
Service, 72 M.S.P.R. 646, 650 (1996). When an agency’s charges are sustained,
but some of the underlying specifications are not, its penalty determination is
entitled to deference and must be reviewed only to determine whether it is within
the parameters of reasonableness. Id.¶36 While the appellant argues that we should reconsider the penalty, she has
failed to present any substantive basis for doing so. PFR File, Tab 1 at 15 -16.
She has not, for example, identified any mitigating factor that the agency should
have, but failed to consider. Accordingly, we agree with the administrative
judge’s thorough discussion of the relevant factors and the deciding official’s
consideration of the same. ID at 87-93. The deciding official recognized that the
appellant’s performance deficiencies were very serious because they weakened
the agency’s ability to meet mission requirements and respond to threats both
foreign and domestic, they persisted despite extensive training and guidance, and
they resulted in supervisors losing confidence in the appellant. ID at 88-89. He
acknowledged mitigating factors, such as the appellant’s lengthy career and prior
successful performance, but determined that they did not warrant a lesser penalty.
ID at 90. We find no basis for reaching a different conclu sion, despite the
agency’s failure to prove some of its specifications.
NOTICE OF APPEAL RIGHTS 9
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, t he Merit
Systems Protection Board does not provide legal advice on which option is most
9
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.
19
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 revie w 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 partic ular
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
20
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
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
21
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. 10 The court of appeals must receive your
10
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.
22
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 Feder al
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.
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.