Opinion

Sharon Davis v. Department of Veterans Affairs

Court: Merit Systems Protection Board
Filed: Jun 12, 2024
Status: Unpublished
Cited by: 0 cases
Authority: More cited than 17.3%

The opinion

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

SHARON DAVIS, DOCKET NUMBERS

Appellant, SF-0752-17-0435-I-1

SF-0752-18-0191-I-1

DEPARTMENT OF VETERANS DATE: June 12, 2024

AFFAIRS,

Agency.

THIS FINAL ORDER IS NONPRECEDENTIAL 1

Steve Newman , Esquire, New York, New York, for the appellant.

Thomas L. Davis and Omar Qudrat , Los Angeles, California,

for the agency.

BEFORE

Cathy A. Harris, Chairman

Raymond A. Limon, Vice Chairman

Henry J. Kerner, Member*

*Member Kerner did not participate in the adjudication of this appeal.

FINAL ORDER

The appellant has filed petitions for review in the above-captioned appeals,

which dismissed her first appeal as moot, affirmed her removal in her second

appeal, and found that she failed to prove her affirmative defenses. Generally, we

A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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).

grant petitions such as these only in the following circumstances: the initial

decision contains erroneous findings of material fact; the initial decision is based

on an erroneous interpretation of statute or regulation or the erroneous application

of the law to the facts of the case; the administrative judge’s rulings during either

the course of the appeal or the initial decision were not consistent with required

procedures or involved an abuse of discretion, and the resulting error affected the

outcome of the case; or new and material evidence or legal argument is available

that, despite the petitioner’s due diligence, was not available when the record

closed. Title 5 of the Code of Federal Regulations, section 1201.115 (5 C.F.R.

§ 1201.115). After fully considering the filings in these appeals, we JOIN them

for adjudication on review under 5 C.F.R. § 1201.36. 2 We conclude that the

petitioner has not established any basis under section 1201.115 for granting the

petitions for review. Therefore, we DENY the petitions for review and AFFIRM

the initial decisions, except as expressly MODIFIED to supplement the

administrative judge’s analysis of the appellant’s affirmative defenses of

(1) equal employment opportunity (EEO) retaliation and (2) retaliation for filing a

Board appeal wherein she alleged EEO retaliation. 5 C.F.R. § 1201.113(b).

The appellant provides a number of documents with her first petition for

review. Davis v. Department of Veterans Affairs, MSPB Docket No. SF-0752-17-

0435-I-1, Petition for Review (0435 PFR) File, Tab 1 at 8-23. She asserts that

she did not submit these documents to the administrative judge because neither

she nor her union representative knew how to submit documents. Id. at 4. To the

extent that her union representative failed to submit these documents below, the

appellant is responsible for the errors of her chosen representative. Sofio v.

Internal Revenue Service, 7 M.S.P.R. 667, 670 (1981). We find that these

documents do not warrant disturbing the initial decision because the appellant has

Joinder of two or more appeals filed by the same appellant is appropriate when doing

so would expedite case processing and will not adversely affect the parties’ interests.

Doe v. Pension Benefit Guaranty Corporation, 117 M.S.P.R. 579, ¶ 23 (2012); 5 C.F.R.

§ 1201.36(a)(2), (b). We find that these criteria are satisfied here.

not shown that they were unavailable before the record closed despite her due

diligence or that they are of sufficient weight to warrant a different outcome. See

Cleaton v. Department of Justice, 122 M.S.P.R. 296, ¶ 7 (2015), aff’d, 839 F.3d

1126 (Fed. Cir. 2016); 5 C.F.R. § 1201.115(d).

The appellant asserts that the agency failed to return her to the status quo

ante after it rescinded her May 9, 2017 removal on September 1, 2017, because it

reproposed her removal 1 week later based on the same charges and

specifications. Davis v. Department of Veterans Affairs, MSPB Docket No. SF-

0752-18-0191-I-1, Petition for Review (0191 PFR) File, Tab 1 at 4-9. We agree

with the administrative judge that the agency, following its rescission of the

earlier removal based on its concerns about a due process violation, could

reinitiate the removal action based on the same charges and specifications in a

constitutionally correct proceeding. Davis v. Department of Veterans Affairs,

MSPB Docket No. SF-0752-18-0191-I-1, Initial Appeal File, Tab 25, Initial

Decision (0191 ID) at 2 n.1 (citing Jenkins v. Environmental Protection Agency,

118 M.S.P.R. 161, ¶ 14 (2012)); see also Tawadrous v. Department of the

Treasury, 477 F. App’x 735, 738-39 (Fed. Cir. 2012). 3 The appellant has never

disputed that the agency cancelled the first removal action and removed all

references to it from her personnel file, returned her to pay status in her position

of record, and provided appropriate back pay and benefits. See Hess v. U.S.

Postal Service, 123 M.S.P.R. 183, ¶ 5 (2016). The agency’s decision to

repropose the appellant’s removal 1 week after rescinding her removal does not

show that it failed to provide status quo ante relief. See Hagan v. Department of

the Army, 99 M.S.P.R. 313, ¶ 8 (2005) (noting that a status quo ante remedy does

not require that the appellant be placed in a better position than he was at the time

of the agency’s action). Thus, we agree with the administrative judge that the

agency completely rescinded the first removal action.

The Board may choose to follow nonprecedential decisions of the U.S. Court of

Appeals for the Federal Circuit if, as here, it finds the reasoning persuasive. See, e.g.,

Erlendson v. Department of Justice, 121 M.S.P.R. 441, ¶ 6 n.2 (2014).

The appellant asserts on review that she proved her EEO retaliation

affirmative defense; however, she provides no substantive argument to refute any

of the administrative judge’s findings. 4 0191 PFR File, Tab 1 at 9-10; see Hsieh

v. Defense Nuclear Agency, 51 M.S.P.R. 521, 524-25 (1991) (holding that mere

reargument of the same issues heard and decided by the administrative judge,

with nothing more, does not constitute a basis for Board review), aff’d, 979 F.2d

217 (Fed. Cir. 1992) (Table). Moreover, we find, contrary to the appellant’s

claim, that the administrative judge did not abuse her discretion by denying three

of the nine witnesses that the appellant planned to call at the August 22, 2017

hearing in her first removal appeal because their proffered testimony regarding

her EEO retaliation defense was irrelevant, cumulative, or not in dispute.

0435 PFR File, Tab 1 at 3; see Parker v. Department of Veterans Affairs ,

122 M.S.P.R. 353, ¶ 21 (2015); 5 C.F.R. § 1201.41(b)(8), (10).

The appellant further asserts that the administrative judge “improperly

abandoned her neutrality” by “answering for” the agency and becoming its

“partisan” when analyzing the appellant’s EEO retaliation defense. 0191 PFR

File, Tab 1 at 10. In making a claim of bias or prejudice against an

administrative judge, a party must overcome the presumption of honesty and

integrity that accompanies administrative adjudicators. Oliver v. Department of

Transportation, 1 M.S.P.R. 382, 386 (1980). An administrative judge’s conduct

Claims of retaliation for opposing discrimination in violation of Title VII, as here, are

analyzed under the same framework used for Title VII discrimination claims, which

requires an appellant to show by preponderant evidence that a prohibited consideration

was a motivating factor in the agency’s decision. Pridgen v. Office of Management and

Budget, 2022 MSPB 31, ¶¶ 20-22, 30. To the extent the administrative judge did not

find in the initial decisions that the appellant failed to prove by preponderant evidence

that her EEO activity was a motivating factor in the agency’s decision to remove her,

we supplement the administrative judge’s analyses to make such a finding. Davis v.

Department of Veterans Affairs, MSPB Docket No. SF-0752-17-0435-I-1, Initial Appeal

File, Tab 20, Initial Decision at 7-9; 0191 ID at 16-17. We also find that the appellant

failed to prove by preponderant evidence that her first Board appeal, wherein she raised

a claim of EEO retaliation, was a motivating factor in the agency’s decision to reinitiate

the removal action. 0191 ID at 16; see Pridgen, 2022 MSPB 31, ¶ 32.

during the course of a Board proceeding warrants a new adjudication only if the

administrative judge’s comments or actions evidence “a deep-seated favoritism or

antagonism that would make fair judgment impossible.” Bieber v. Department of

the Army, 287 F.3d 1358, 1362-63 (Fed. Cir. 2002) (quoting Liteky v. United

States, 510 U.S. 540, 555 (1994)). The appellant’s bare allegation that the

administrative judge became the agency’s “partisan” does not meet this rigorous

standard. The mere fact that the administrative judge rules against a party does

not establish bias. Thompson v. Department of the Army, 122 M.S.P.R. 372, ¶ 29

(2015) (citing Schoenrogge v. Department of Justice, 76 M.S.P.R. 216, 220

(1997)). To the extent that the appellant also asserts bias because the

administrative judge presided over her first removal appeal and found no EEO

retaliation, we find her claims insufficient to establish bias. See Nickerson v.

U.S. Postal Service, 49 M.S.P.R. 451, 461 (1991).

We have considered the appellant’s remaining arguments on review but

find that they do not provide any basis to disturb the initial decisions. 0435 PFR

File, Tab 1 at 3-6; 0191 PFR File, Tab 1 at 4-10. Therefore, we deny the

petitions for review and affirm the initial decisions in these joined appeals.

NOTICE OF APPEAL RIGHTS 5

The initial decision, as supplemented by this Final Order, constitutes the

Board’s final decision in this matter. 5 C.F.R. § 1201.113. You may obtain

review of this final decision. 5 U.S.C. § 7703(a)(1). By statute, the nature of

your claims determines the time limit for seeking such review and the 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

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.

regarding which cases fall within their jurisdiction. If you wish to seek review of

this final decision, you should immediately review the law applicable to your

claims and carefully follow all filing time limits and requirements. Failure to file

within the applicable time limit may result in the dismissal of your case by your

chosen forum.

Please read carefully each of the three main possible choices of review

below to decide which one applies to your particular case. If you have questions

about whether a particular forum is the appropriate one to review your case, you

should contact that forum for more information.

(1) Judicial review in general . As a general rule, an appellant seeking

judicial review of a final Board order must file a petition for review with the U.S.

Court of Appeals for the Federal Circuit, which must be received by the court

within 60 calendar days of the date of issuance of this decision. 5 U.S.C.

§ 7703(b)(1)(A).

If you submit a petition for review to the U.S. Court of Appeals for the

Federal Circuit, you must submit your petition to the court at the following

address:

U.S. Court of Appeals

for the Federal Circuit

717 Madison Place, N.W.

Washington, D.C. 20439

Additional information about the U.S. Court of Appeals for the Federal

Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular

relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is

contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.

If you are interested in securing pro bono representation for an appeal to

the U.S. Court of Appeals for the Federal Circuit, you may visit our website at

http://www.mspb.gov/probono for information regarding pro bono representation

for Merit Systems Protection Board appellants before the Federal Circuit. The

Board neither endorses the services provided by any attorney nor warrants that

any attorney will accept representation in a given case.

(2) Judicial or EEOC review of cases involving a claim of

discrimination . This option applies to you only if you have claimed that you

were affected by an action that is appealable to the Board and that such action

was based, in whole or in part, on unlawful discrimination. If so, you may obtain

judicial review of this decision—including a disposition of your discrimination

claims —by filing a civil action with an appropriate U.S. district court ( not the

U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you

receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems

Protection Board, 582 U.S. 420 (2017). If you have a representative in this case,

and your representative receives this decision before you do, then you must file

with the district court no later than 30 calendar days after your representative

receives this decision. If the action involves a claim of discrimination based on

race, color, religion, sex, national origin, or a disabling condition, you may be

entitled to representation by a court-appointed lawyer and to waiver of any

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

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. 6 The court of appeals must receive your

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.

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: