Opinion

Holly Quasney v. Department of the Navy

Court: Merit Systems Protection Board
Filed: Jul 10, 2024
Status: Unpublished
Cited by: 0 cases
Authority: More cited than 30.3%

The opinion

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

HOLLY QUASNEY, DOCKET NUMBER

Appellant, PH-0752-18-0163-I-1

DEPARTMENT OF THE NAVY, DATE: July 10, 2024

Agency.

THIS FINAL ORDER IS NONPRECEDENTIAL 1

Tyler Sroufe , Esquire, Dallas, Texas, for the appellant.

Andrew Linenberg , Esquire, Washington, D.C., 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

affirmed 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

A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

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

find that the agency established nexus between the appellant’s proven misconduct

and the efficiency of the service and to clarify the appellant’s burden for proving

her affirmative defenses of sex and disability discrimination, we AFFIRM the

initial decision.

BACKGROUND

The agency removed the appellant from her GS-12 Supervisory

Management Analyst position based on a charge of lack of candor after she

submitted two pieces of fraudulent medical documentation in support of a request

for extended sick leave. Initial Appeal File (IAF), Tab 11 at 18-36. The

appellant appealed her removal to the Board. IAF, Tab 1. In an initial decision

issued based on the written record because the appellant withdrew her request for

a hearing, id. at 2; IAF, Tab 23 at 4, the administrative judge found that the

agency proved its charge by preponderant evidence, the appellant failed to prove

her affirmative defenses of sex and disparate treatment disability discrimination,

and the penalty of removal was reasonable, IAF, Tab 37, Initial Decision (ID)

at 23-40.

The appellant has filed a petition for review of the initial decision. Petition

for Review (PFR) File, Tab 1. The agency has responded in opposition to the

petition for review. 2 PFR File, Tab 9.

DISCUSSION OF ARGUMENTS ON REVIEW

The agency proved its charge of lack of candor by preponderant evidence.

The appellant contends on review that the administrative judge erred in

sustaining the charge. The administrative judge thoroughly considered the

appellant’s various, and sometimes contradictory, explanations behind the

submission of the two documents in question and determined that they were “so

implausible and lacking in credibility as to border on being a lack of candor to the

Board.” ID at 25-31. We find that, contrary to the appellant’s allegations on

review, the administrative judge properly considered the Hillen factors. 3

Furthermore, the administrative judge’s thorough analysis in the initial decision

reflects that he applied the correct legal standard, considered the evidence as a

whole, drew appropriate inferences, and made reasoned conclusions; we discern

no reason to reweigh the evidence or substitute the Board’s own judgment on

credibility issues. See Broughton v. Department of Health and Human Services ,

33 M.S.P.R. 357, 359 (1987). Thus, the administrative judge properly found that

the agency proved its lack of candor charge. See Hoofman v. Department of the

Army, 118 M.S.P.R. 532, ¶¶ 13-15 (2012) (finding that the appellant lacked

candor when he failed to explain the circumstances surrounding his request for

10 days of leave and attempted to conceal his wrongdoing), aff’d, 526 F. App’x

982 (Fed. Cir. 2013).

The agency’s response to the petition for review was untimely filed by 6 hours. Upon

consideration of the agency’s explanation of the circumstances surrounding its untimely

filing, PFR File, Tab 11, we find good cause for the minimal delay, see 5 C.F.R.

§ 1201.114(g).

See Hillen v. Department of the Army, 35 M.S.P.R. 453, 458 (1987).

The agency established nexus.

In addition to proving its charge by preponderant evidence, the agency

must prove that there is a nexus between the appellant’s misconduct and the

efficiency of the service. The administrative judge did not address nexus, but this

error does not warrant reversal of the initial decision. There is a sufficient nexus

between an employee’s misconduct and the efficiency of the service when the

misconduct occurred in part at work. Parker v. U.S. Postal Service, 819 F.2d

1113, 1116 (Fed. Cir. 1987). Also, an employee’s lack of candor strikes at the

heart of the employer-employee relationship and directly impacts the efficiency

of the service. Ludlum v. Department of Justice, 87 M.S.P.R. 56, ¶ 28 (2000),

aff’d, 278 F.3d 1280 (Fed. Cir. 2002). We find that the agency has proven nexus.

The appellant failed to establish her affirmative defenses of sex and disability

discrimination.

On review, the appellant challenges the administrative judge’s assessment

of her affirmative defenses of sex and disability discrimination. 4 PFR File, Tab 4

at 20-24. She asserts that her supervisor, who was the proposing official, made

disparaging comments about female employees and the appellant’s disability. Id.

at 21-22. She also asserts that she was treated differently than male and

non-disabled employees who were only required to produce rudimentary medical

documentation to obtain advanced sick leave and leave donations. Id. at 22-23.

She claims that the agency’s actions were mere pretext for discrimination because

the agency began investigating her medical documentation after it became aware

In discussing her affirmative defenses, the appellant states that an agency decision will

not be sustained if she shows harmful procedural error in the application of the agency’s

procedures, but she offers no evidence or argument for such a claim. PFR File, Tab 4

at 20. Moreover, the appellant did not preserve this issue below. IAF, Tab 24 at 3.

The Board will generally not consider an argument raised for the first time in a petition

for review absent a showing that it is based on new and material evidence not

previously available despite the party’s due diligence. Banks v. Department of the Air

Force, 4 M.S.P.R. 268, 271 (1980). The appellant has not made this showing, and we

do not consider this claim on review.

that she was planning to pursue an equal employment opportunity (EEO)

complaint. Id. at 23-24.

To prove an affirmative defense of discrimination or retaliation under

42 U.S.C. § 2000e-16, or discrimination on the basis of disability under the

Rehabilitation Act, an appellant must prove that discrimination or retaliation was

at least a motivating factor in the agency’s action. Pridgen v. Office of

Management and Budget, 2022 MSPB 31, ¶¶ 21-25, 40. An appellant may prove

discrimination by various methods, and no one method is the exclusive path to a

finding of liability. Id., ¶ 23. Those methods may include: (1) direct evidence; 5

(2) circumstantial evidence, which may include (a) evidence of “suspicious

timing, ambiguous statements oral or written, behavior toward or comments

directed at other employees in the protected group, and other bits and pieces from

which an inference of discriminatory intent might be drawn,” also known as a

“convincing mosaic”; (b) comparator evidence, consisting of “evidence, whether

or not rigorously statistical, that employees similarly situated to the plaintiff

other than in the characteristic . . . on which an employer is forbidden to base a

difference in treatment received systematically better treatment”; (c) evidence

that the agency’s stated reason for its action is “unworthy of belief, a mere

pretext for discrimination” (i.e., the burden-shifting standard under McDonnell

Douglas Corp. v. Green, 411 U.S. 792, 802-04 (1973)); and (3) some combination

of direct and indirect evidence. Id., ¶ 24.

The administrative judge found that the appellant did not present direct or

circumstantial evidence that she was subjected to disparate treatment based on her

sex and disability; thus, she failed to prove that her sex or disability was a

motivating factor in the agency’s decision to remove her. ID at 35-40.

In so finding, the administrative judge stated that the appellant did not identify

any comparator employees who were not removed for engaging in the same or

Direct evidence may be any statement by an employer that reflects directly the alleged

discriminatory attitude and bears directly on the contested employment discrimination.

Doe v. Pension Benefit Guaranty Corporation, 117 M.S.P.R. 579, ¶ 40 (2012).

similar misconduct, and the evidence that she provided to create an inference of

discriminatory intent on the part of her supervisor was too speculative or was

contradicted by the record. ID at 35-36. The administrative judge noted that the

appellant raised allegations that male and non-disabled employees received

preferential treatment for sick leave usage, but he found speculative her belief

about the nature of the potential comparators’ conditions, and she failed to

identify any male or non-disabled employees who used rudimentary

documentation to obtain advanced sick leave and/or leave donations during her

last year of employment. ID at 36-37. He further observed that, by her own

admission, the appellant’s supervisor was lenient with respect to the medical

documentation that she needed to provide for sick leave usage until

December 2016, when the agency began imposing more stringent requirements on

its employees in response to a complaint, and that he continued to approve her

requests for sick leave despite her refusal to comply with his instructions to

provide the requested documentation for several months afterwards. ID at 37-39.

We discern no error with the administrative judge’s analysis of her claims or his

finding that the appellant failed to prove her affirmative defenses of sex and

disability discrimination.

The penalty of removal was reasonable.

Finally, the appellant argues on review that the penalty of removal is

excessive. PFR File, Tab 4 at 13-20. Because the agency’s single charge is

sustained, the Board will review the agency-imposed penalty only to determine if

the agency considered all the relevant factors and exercised management

discretion within the tolerable limits of reasonableness. See Ellis v. Department

of Defense, 114 M.S.P.R. 407, ¶ 11 (2010); see also 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).

The administrative judge properly found that the deciding official

“thoroughly and carefully” considered the relevant Douglas factors in making his

decision to remove the appellant. ID at 32-33. The record reflects that the

deciding official gave specific attention to the seriousness of the appellant’s

misconduct, the supervisory position that she held, and management’s loss of

trust and confidence in her ability to perform her assigned duties following her

misconduct. IAF, Tab 11 at 21-23. He also considered the relevant mitigating

factors, such as the appellant’s 25 ½ years of satisfactory Government service,

consistently acceptable performance ratings, and the fact that her medical issues

caused her stress and anxiety. Id. at 22.

The appellant alleges on review that the deciding official gave insufficient

weight to her potential for rehabilitation. PFR File, Tab 4 at 17-18. The deciding

official noted, however, that the appellant’s attempts to rationalize or minimize

her misconduct, coupled with her history of resistance to submitting medical

documentation, cast doubt on her potential for rehabilitation. IAF, Tab 11

at 21-22. The appellant’s failure to recognize that her actions were improper and

to take responsibility for her proven misconduct weighs against a finding of

rehabilitative potential. See Render v. Department of Veterans Affairs,

90 M.S.P.R. 441, 447 (2001). In addition, the appellant only expressed remorse

for her actions after her misconduct was discovered, which further diminishes its

value. See Saiz v. Department of the Navy, 122 M.S.P.R. 521, ¶ 13 (2015).

The appellant further asserts that her efforts to seek treatment for her

medical conditions indicate a potential for rehabilitation. PFR File, Tab 4

at 17-18 (citing Vitanza v. U.S. Postal Service, 89 M.S.P.R. 319 (2001)). The

Board has held that evidence that an employee’s medical condition or mental

impairment played a part in the charged conduct is ordinarily entitled to

considerable weight as a mitigating factor. Malloy v. U.S. Postal Service,

578 F.3d 1351, 1357 (Fed. Cir. 2009); Roseman v. Department of the Treasury,

76 M.S.P.R. 334, 345 (1997). We have considered the evidence surrounding the

appellant’s conditions, but we find that it does not outweigh other relevant

factors, such as the nature and seriousness of the misconduct. Importantly, the

appellant does not explain or provide any evidence as to how her medical

conditions, IAF, Tab 29 at 30, 50, played a role in the misconduct. Moreover, the

appellant does not indicate how her efforts to seek treatment support finding a

potential for rehabilitation. See, e.g., Mingledough v. Department of Veterans

Affairs, 88 M.S.P.R. 452, ¶ 12 (2001) (noting that a medical condition was not a

significant mitigating factor in the absence of evidence that the impairment can

be remedied or controlled, i.e., when the potential for rehabilitation was poor).

Finally, this matter is distinguishable from Vitanza, 89 M.S.P.R. 319, ¶ 6, because

there, the deciding official did not consider the appellant’s medical conditions as

mitigating factors; here, the deciding official considered the appellant’s “anxiety

and stress” resulting from her medical issues as a mitigating factor in his

decision. IAF, Tab 11 at 21-22.

We have considered the appellant’s remaining penalty arguments on

review, but none warrant a different outcome. 6 We agree with the administrative

judge that the deciding official properly considered the relevant Douglas factors

and that the penalty of removal does not exceed the tolerable limits of

reasonableness for the sustained charge of lack of candor. See Jackson v.

Department of the Army, 99 M.S.P.R. 604, ¶¶ 2, 6, 8 (2005) (finding that removal

of supervisory police officers was a reasonable penalty for conspiracy and lack of

candor despite “significant” mitigating factors because, among other things, lack

of candor is a serious offense that strikes at the heart of the employer -employee

relationship); see also Gebhardt v. Department of the Air Force, 99 M.S.P.R. 49,

¶ 21 (2005) (stating that an agency is entitled to hold a supervisory employee to a

higher standard of conduct than a non-supervisory employee because she occupies

The appellant’s suggestion on review that a lack of candor charge is insufficient by

itself to warrant removal is without merit. PFR File, Tab 4 at 10-11. The

appropriateness of a penalty in any particular case depends on an analysis of the

Douglas factors, not on the label the agency affixes to its charge.

a position of trust and responsibility), aff’d, 180 F. App’x 951 (Fed. Cir. 2006).

Accordingly, the administrative judge properly affirmed the agency’s action.

NOTICE OF APPEAL RIGHTS 7

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.

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).

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.

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. 8 The court of appeals must receive your petition for

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

§ 7703(b)(1)(B).

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

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