Opinion

Batrina Martin v. Department of the Navy

Court: Merit Systems Protection Board
Filed: Jun 13, 2024
Status: Unpublished
Cited by: 0 cases
Authority: More cited than 17.8%

The opinion

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

BATRINA MARTIN, DOCKET NUMBER

Appellant, DC-0752-18-0363-I-1

DEPARTMENT OF THE NAVY, DATE: June 13, 2024

Agency.

THIS FINAL ORDER IS NONPRECEDENTIAL 1

Batrina Martin , Chesapeake, Virginia, pro se.

Kathleen Ann Giacolone , Portsmouth, Virginia, for the agency.

David L. Mannix , Falls Church, Virginia, 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 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

A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

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. Except as expressly MODIFIED to

supplement the administrative judge’s analysis of the agency’s unauthorized

absence charge and the reasonableness of the penalty and to clarify the applicable

burden of proof regarding the appellant’s affirmative defense of status-based

disability discrimination, we AFFIRM the initial decision.

BACKGROUND

The undisputed facts as set forth in the initial decision are as follows. The

appellant was formerly employed as a Health Systems Specialist for the Naval

Medical Center in Portsmouth, Virginia. Initial Appeal File (IAF), Tab 35, Initial

Decision (ID) at 2. On February 8, 2017, the agency proposed her removal based

on four charges of unauthorized absence, failure to maintain a regular work

schedule, failing to complete work assignments in a timely manner, and misuse of

a Government computer. Id. After affording the appellant an opportunity to

respond, the agency issued a decision sustaining the charges and removing her

from service, effective April 6, 2017. Id.

The appellant filed a Board appeal disputing the charges and raising

affirmative defenses of discrimination based on her disability and race, denial of

reasonable accommodation, and retaliation based on her prior equal employment

opportunity (EEO) activity. IAF, Tab 1, Tab 30 at 2-3. After holding the

appellant’s requested hearing, the administrative judge issued an initial decision

sustaining her removal. ID at 1. The administrative judge found that the agency

proved all four of its charges, there was a nexus between the charges and the

efficiency of the service, and the penalty of removal was reasonable. ID at 3-12.

He further found that the appellant failed to prove any of her affirmative

defenses. ID at 13-24.

The appellant has filed a petition for review. Petition for Review (PFR)

File, Tab 1. 2 The agency has opposed the appellant’s petition. PFR File, Tab 4. 3

DISCUSSION OF ARGUMENTS ON REVIEW

As an initial matter, we deny the appellant’s request that the Board grant

her interim relief pending the outcome of her petition for review due to financial

hardship. PFR File, Tab 1 at 3, 6. Under the Board’s regulations, interim relief

is only available to a prevailing party. See 5 C.F.R. § 1201.111(c)(1). Here,

because the administrative judge sustained the appellant’s removal and found that

she failed to prove any of her affirmative defenses, and in light of our decision to

affirm the initial decision, we find that the appellant is not a prevailing party, and

thus, is not entitled to interim relief. See, e.g., Edmond v. Veterans

With her petition, the appellant has submitted two exhibits. PFR File, Tab 1 at 7-16.

Exhibit A is a document from the Office of Personnel Management concerning the

appellant’s application for a deferred retirement annuity. Id. at 9. Exhibit B appears to

be a document that the appellant created concerning mitigating factors in response to

the agency’s charge of unauthorized use of a government computer. Id. at 11-16. We

decline to consider such evidence because the appellant has not shown that it constitutes

new and material evidence that was unavailable, despite her due diligence, prior to the

close of the record below. 5 C.F.R. § 1201.115(d).

The agency has also filed a motion to dismiss the appellant’s petition as untimely

filed. PFR File, Tab 3. However, we find that the appellant timely filed her petition by

mail on November 16, 2018, within 35 days after the issuance of the initial decision on

October 12, 2018. PFR File, Tab 1 at 1; ID at 1; see 5 C.F.R. § 1201.4(l) (stating that

the date of filing by mail is determined by the postmark date); 5 C.F.R. § 1201.114(e)

(stating that a petition for review must be filed within 35 days of the date of issuance of

the initial decision). Accordingly, we deny the agency’s motion.

Administration, 21 M.S.P.R. 633, 638 n.2 (1984) (finding that the appellant was

not a prevailing party when the Board sustained the agency’s removal action).

The administrative judge properly found that the agency proved its charges.

Regarding the agency’s unauthorized absence charge, the appellant asserts

on review that she was absent due to her medical condition and cites to medical

records that do not appear to have been originally submitted to the agency. PFR

File, Tab 1 at 3; IAF, Tab 33.

Generally, to prove a charge of unauthorized absence or absence without

leave (AWOL), an agency must show that the appellant was absent and that her

absence was unauthorized; if the employee requested leave, the agency must show

that the request was properly denied. Wilson v. Small Business Administration,

2024 MSPB 3, ¶ 7. Nonetheless, in certain situations, an appellant may rely upon

medical evidence of illness not previously submitted to the agency as a defense to

an action based on such a charge. See, e.g., Thom v. Department of the Army,

114 M.S.P.R. 169, ¶ 6 (2010); Zeiss v. Veterans Administration, 8 M.S.P.R. 15,

17-18 (1981).

The administrative judge found that the appellant was absent on the dates

charged, the absences were unauthorized, and the agency properly denied the

appellant’s leave requests. ID at 3-5. In finding that the agency proved its

unauthorized absence charge, however, the administrative judge did not reference

or discuss the appellant’s new medical evidence, which reflects that during the

relevant time period she was suffering from several medical conditions that may

have rendered her incapacitated from work. IAF, Tab 33. Nonetheless, we find

that such medical conditions do not warrant reversal of the charge because the

appellant has not explained how any of her medical conditions rendered her

unable to present administratively acceptable evidence to show that she was

incapacitated for duty. See Thom, 114 M.S.P.R. 169, ¶ 6; Zeiss, 8 M.S.P.R.

at 18-19; 5 C.F.R. § 630.405 (authorizing an agency to require submission of

administratively acceptable medical evidence in support of an absence because of

incapacitation due to a physical or mental illness). Further, we note that, in

response to the deciding official’s request for medical documentation, the

appellant simply indicated that she would not release her confidential medical

records. IAF, Tab 11 at 10. Thus, the agency properly considered her absence to

have been unauthorized because she failed to provide administratively acceptable

evidence of her incapacitation during the relevant period. 4

Beyond her assertions that she was medically incapacitated, the appellant

does not specifically challenge the administrative judge’s finding that the agency

proved its charge of failure to maintain a regular work schedule. We discern no

error in the administrative judge’s findings that the agency proved this charge

because the appellant was absent due to illnesses, which constituted compelling

reasons beyond her control, her absences continued beyond a reasonable amount

of time, the agency warned her it may take an adverse action if she did not

become available for duty, and the appellant’s position needed to be filled by an

employee available for duty. ID at 6-7; see, e.g., Fox v. Department of the Army,

120 M.S.P.R. 529, ¶ 31 (2014).

Regarding the charge of failure to timely complete work assignments, the

appellant reiterates her argument that the agency should have provided her with

overtime to complete the meeting minutes and that other employees were

provided excessive overtime. PFR File, Tab 1 at 3. Such an argument, however,

was considered and rejected by the administrative judge, who credited the

testimony of the appellant’s supervisor that the directorate did not grant overtime

Because the appellant had exhausted all of her sick leave, ID at 4, the agency had the

discretion of granting her leave without pay or charging her with an unauthorized

absence, see Riley v. Department of the Army, 53 M.S.P.R. 683, 689 n.4 (1992). The

appellant’s supervisor testified that the appellant was granted leave without pay for the

dates on which she submitted administratively acceptable medical documentation. IAF,

Tab 34, Hearing Compact Disc (HCD) (testimony of the appellant’s first-level

supervisor). To the extent the appellant did not provide acceptable medical

documentation to the agency for the dates at issue in this appeal, we find that the

agency’s denial of leave without pay was not unreasonable. ID at 5; see e.g., Robb v.

Department of Defense, 77 M.S.P.R. 130, 135 (1997).

to anyone and compensatory time was not necessary because the appellant was

granted multiple extensions to compete her work. ID at 23. The appellant’s mere

disagreement with the administrative judge’s finding does not provide a basis for

reversal. See Crosby v. U.S. Postal Service, 74 M.S.P.R. 98, 105-106 (1997)

(stating that the Board will give due deference to the credibility findings of the

administrative judge and will not grant a petition for review based on a party’s

mere disagreement with those findings); Broughton v. Department of Health and

Human Services, 33 M.S.P.R. 357, 359 (1987) (same).

Regarding the charge of unauthorized use of a Government computer, the

administrative judge found that the appellant’s use of her Government computer

to access documents related to her work as a professor at Strayer University and

Liberty University was unauthorized because the agency’s regulations prohibit

using a Government computer for personal financial gain. ID at 9-10. On

review, the appellant argues that she accessed Department of Education websites

before and after her work shifts and on Saturday and Sunday. PFR File, Tab 1

at 4. Such an argument is unpersuasive to the extent the charge was unauthorized

use of a Government computer and the administrative judge found that the

appellant admitted that she used her Government computer as part of her duties as

a professor in violation of agency regulations. ID at 9. The appellant also

reiterates her arguments that she was permitted to use the internet and conduct

research, which she contends was related to her Federal job duties. PFR File,

Tab 2 at 5-6. However, the administrative judge considered but rejected such

arguments as unpersuasive, and we decline to disturb such findings. ID at 9-10.

The administrative judge properly found that the appellant failed to prove her

affirmative defense of disability discrimination. 5

In finding that the appellant failed to prove her affirmative defense of

status-based disability discrimination, the administrative judge found that the

The appellant does not challenge the administrative judge’s specific findings that she

failed to prove her affirmative defenses of discrimination based on race or retaliation.

appellant was an individual with a disability and properly analyzed whether the

appellant’s disability was a motivating factor in her removal. ID at 14-15; see

Pridgen v. Office of Management and Budget, 2022 MSPB 31, ¶ 40. On review,

the appellant generally asserts that the agency was prohibited from discriminating

against a qualified individual with a disability and its actions were in violation of

the Americans with Disabilities Act, PFR File, Tab 1 at 1-2, but she has not

identified any specific errors in the administrative judge’s finding that she failed

to prove that her disabilities were a motivating factor in the agency’s decision to

remove her.

To prove a failure to accommodate disability discrimination claim, the

appellant must prove that she is a disabled person, that the action appealed was

based on her disability and, to the extent possible, she must articulate a

reasonable accommodation under which she believes she could perform the

essential duties of her position or of a vacant funded position to which she could

be reassigned. Sanders v. Social Security Administration, 114 M.S.P.R. 487, ¶ 16

(2010). We agree with the administrative judge that the appellant failed to

articulate a reasonable accommodation under which she could have performed her

job duties or show that the agency’s removal action was based on her disability.

The record does not reflect that the appellant submitted sufficient medical

documentation in support of her request for reasonable accommodation as

instructed by the agency, or explained how her requested accommodations would

have allowed her to perform her job duties. IAF, Tab 5 at 45, Tab 26 at 34-40.

Moreover, the administrative judge found that, despite receiving information

concerning how to request a reasonable accommodation in 2015 and

February 2016, the appellant did not request a reasonable accommodation until

November 23, 2016, which was after most of the charged misconduct occurred.

ID at 18-19. Thus, he found that it was not improper for the agency to discipline

her for her misconduct. Id. We discern no error in the administrative judge’s

analysis. See U.S. Equal Employment Opportunity Commission, Enforcement

Guidance on Reasonable Accommodation and Undue Hardship Under the

Americans with Disabilities Act, Notice No. 915.002, Question 36 (Oct. 17, 2002)

(stating that, “[s]ince reasonable accommodation is always prospective, an

employer is not required to excuse past misconduct even if it is the result of the

individual’s disability”).

The administrative judge properly found that the penalty of removal

was reasonable.

When, as here, all of the agency’s charges are sustained, the Board will

review the agency-imposed penalty only to determine if the agency considered all

of the relevant factors and exercised management discretion within the tolerable

limits of reasonableness. Pinegar v. Federal Election Commission, 105 M.S.P.R.

677, ¶ 53 (2007); see Douglas v. Veterans Administration, 5 M.S.P.R. 280,

305-06 (1981) (articulating a nonexhaustive list of 12 factors that are relevant in

assessing the appropriate penalty for an act of misconduct). In making this

determination, the Board must give due deference to the agency’s primary

discretion in maintaining employee discipline and efficiency, recognizing that the

Board’s function is not to displace management’s responsibility, but to ensure

that managerial judgment has been properly exercised. Pinegar, 105 M.S.P.R.

677, ¶ 53. The Board will modify or mitigate an agency-imposed penalty only

when it finds that the agency failed to weigh the relevant factors or that the

penalty clearly exceeds the bounds of reasonableness. Id.

As the administrative judge noted, the deciding official testified that any

one of the charges could have been sufficient for removal. ID at 11. Having

considered the relevant Douglas factors, including the appellant’s medical

conditions as a mitigating factor, we conclude that removal is a reasonable

penalty under the circumstances. See Foreman v. U.S. Postal Service,

89 M.S.P.R. 328, ¶ 17 (2001) (finding that removal was a reasonable penalty

based on a sustained charge of being AWOL for 16 days when the appellant had

three prior disciplinary actions based on similar offenses and was repeatedly

warned to provide adequate documentation to substantiate his absences); Maddux

v. Department of the Air Force, 68 M.S.P.R. 644, 645-46 (1995) (holding that

removal is a reasonable penalty for approximately 2 weeks of AWOL, despite the

fact that there were mitigating factors, including the employee’s length of service

and his personal problems); see also Gartner v. Department of the Army ,

104 M.S.P.R. 463, ¶¶ 9-15 (2007) (finding that removal was reasonable for a

sustained charge of excessive absence when the appellant was absent for

333.5 hours during a 6-month period); Cresson v. Department of the Air Force ,

33 M.S.P.R. 178, 184-85 (1987) (finding that removal was a reasonable penalty

for excessive absences, notwithstanding the appellant’s 35 years of service and

the absence of a prior disciplinary record).

Accordingly, we affirm the initial decision as modified.

NOTICE OF APPEAL RIGHTS 6

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

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.

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.

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. 7 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).

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.

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