Opinion

Mitzi Baker v. Social Security Administration

Court: Merit Systems Protection Board
Filed: Jul 17, 2024
Status: Unpublished
Cited by: 0 cases
Authority: More cited than 30.3%

stating that, even if demeanor is not explicitly discussed by an administrative judge, assessing a witness’s credibility involves consideration of various factors, 7 including a witness’s demeanor

How later courts described this case

stating that, even if demeanor is not explicitly discussed by an administrative judge, assessing a witness’s credibility involves consideration of various factors, 7 including a witness’s demeanor
finding that recusal is required when a reasonable person knowing all the facts would question the judge’s impartiality

Written by the judges who cited it.

The opinion

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

MITZI BAKER, DOCKET NUMBER

Appellant, CH-1221-18-0412-W-1

SOCIAL SECURITY DATE: July 17, 2024

ADMINISTRATION,

Agency.

THIS FINAL ORDER IS NONPRECEDENTIAL 1

Mitzi Baker , Chicago, Illinois, pro se.

Craig Hundley and Kenneth Bullock , Baltimore, Maryland, for the agency.

BEFORE

Cathy A. Harris, Vice Chairman

Raymond A. Limon, Member

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

denied her request for corrective action in her individual right of action (IRA)

appeal. Generally, we grant petitions such as this one only in the following

circumstances: the initial decision contains erroneous findings of material fact;

A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

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 analysis of the contributing factor criterion as to the appellant’s

whistleblower reprisal claim, we AFFIRM the initial decision.

BACKGROUND

The essential undisputed facts as set forth in the initial decision are as

follows. The appellant has been employed as a Case Manager in the agency’s

National Hearing Center in Chicago, Illinois, since 2010. Initial Appeal File

(IAF), Tab 104, Initial Decision (ID) at 2. On April 17, 2017, the appellant filed

a separate IRA appeal with the Board alleging whistleblower reprisal. Id. While

the April 17, 2017 IRA appeal was pending before the Board, on October 27,

2017, the appellant’s first-level supervisor issued the appellant her 2017 annual

performance appraisal in which she gave the appellant an overall rating of

successful contribution and an average element score of four out of five. Id.

Regarding the particular performance elements, the appellant received a rating of

three for the elements of interpersonal skills and participation and a rating of five

for the elements of demonstrates job knowledge and achieves business results.

Id.

The appellant filed a Board appeal alleging that her supervisor’s decision to

issue her a rating of three in the participation element constituted reprisal for her

protected activity of filing the prior Board appeal on April 17, 2017. IAF, Tab 1.

After holding a hearing, the administrative judge issued an initial decision,

denying the appellant’s request for corrective action because she failed to prove

by preponderant evidence that her protected activity of filing a Board appeal was

a contributing factor in her supervisor’s decision to issue her a rating of three for

the participation element. ID at 1, 5. In particular, the administrative judge

credited the testimony of the appellant’s first-level supervisor that she was not

aware of the appellant’s prior Board appeal at the time she prepared or issued the

appellant’s 2017 performance appraisal. ID at 6-7. The administrative judge

further found that the appellant’s first-level supervisor did not have constructive

knowledge of the prior Board appeal. ID at 7.

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

File, Tab 1. 2 The agency has opposed the appellant’s petition and the appellant

has filed a reply. PFR File, Tabs 3, 6. 3

The appellant has filed a motion for leave to file an additional pleading, namely, an

amicus curiae brief filed by the Office of Special Counsel (OSC) in a separate

appellant’s Board case. Once the record closes on review, however, no additional

evidence or argument will be accepted unless it is new and material as defined in

5 C.F.R. § 1201.115(d), and the party submitting it shows that the evidence or argument

was not readily available before the record closed. 5 C.F.R. § 1201.114(k). To

constitute new evidence, the information contained in the documents, not just the

documents themselves, must have been unavailable, despite due diligence, when the

record closed. 5 C.F.R. § 1201.115(d). Evidence is material when it is of sufficient

weight to warrant a different outcome from that of the initial decision. 5 C.F.R.

§ 1201.115(a)(1). We deny the appellant’s motion because she has not shown that the

underlying information contained in OSC’s brief is new, that she exercised due

diligence to obtain this information, or that it warrants a different outcome in this

appeal.

To the extent the appellant raises new allegations of errors by the administrative judge

that were not raised in her petition or addressed by the agency in its response, PFR File,

Tab 6 at 4-6, we have not considered such arguments, see 5 C.F.R. § 1201.114(a)(4)

(stating that a reply to a response to a petition for review is limited to the factual and

legal issues raised by another party in the response to the petition for review; it may not

raise new allegations of error).

DISCUSSION OF ARGUMENTS ON REVIEW

We agree with the administrative judge that the appellant did not prove that her

protected activity was a contributing factor in her performance appraisal rating,

but modify her analysis.

To obtain corrective action in an IRA appeal, the appellant must meet her

initial burden of establishing by preponderant evidence that her protected activity

was a contributing factor in the personnel actions in dispute. 5 U.S.C. § 1221(e)

(1); Elder v. Department of the Air Force, 124 M.S.P.R. 12, ¶ 39 (2016). An

appellant’s protected activity is a contributing factor if it in any way affects an

agency’s decision to take, or fail to take, a personnel action. Dorney v.

Department of the Army, 117 M.S.P.R. 480, ¶ 14 (2012). One way an appellant

may establish the contributing factor criterion is the knowledge/timing test, under

which she submits evidence showing that the official taking the personnel action

knew of the disclosure or activity and that the personnel action occurred within a

period of time such that a reasonable person could conclude that the disclosure or

activity was a contributing factor in the personnel action. Pridgen v. Office of

Management and Budget, 2022 MSPB 31, ¶ 63. The Board has held that if an

administrative judge determines that an appellant has failed to satisfy the

knowledge/timing test, she shall consider other evidence, such as evidence

pertaining to the strength or weakness of the agency’s reasons for taking the

personnel action, whether the whistleblowing was personally directed at the

officials taking the action, and whether these individuals had a desire or motive to

retaliate against the appellant. Dorney, 117 M.S.P.R. 480, ¶ 15.

On review, the appellant argues that the administrative judge erred in

finding that she failed to prove that her April 17, 2017 Board appeal was a

contributing factor in her first-level supervisor’s decision to issue her a rating of

three for the participation element of her 2017 annual performance review. 4

The appellant also argues that the administrative judge’s finding that she failed to

prove contributing factor is “plainly inconsistent” with her prior finding that the

appellant met the knowledge/timing test. PFR File, Tab 1 at 7. Such an argument,

however, fails to recognize the different burdens of proof at the jurisdictional and

PFR File, Tab 1 at 4. In particular, the appellant asserts that the administrative

judge erred by only considering the knowledge/timing test and by failing to

consider evidence of retaliatory motive. Id. at 4-7. We agree and modify the

administrative judge’s analysis to address evidence other than the

knowledge/timing test but still find no reason to disturb the administrative

judge’s finding that the appellant failed to establish that her 2017 Board appeal

was a contributing factor in her performance appraisal rating.

With respect to the knowledge/timing test, the administrative judge

credited the testimony of the appellant’s first-level supervisor that she was not

aware of the appellant’s 2017 Board appeal when she prepared or issued the

appellant’s 2017 performance appraisal on October 27, 2017, and that she first

learned of the Board appeal on November 28, 2017. ID at 6-7. The

administrative judge further found that the appellant’s first-level supervisor did

not have constructive knowledge and her decision to issue a rating of three was

not influenced by anyone who had knowledge of the appellant’s 2017 Board

appeal. ID at 7. In so finding, the administrative judge credited the testimony of

the appellant’s second-level supervisor, who testified in connection with the

appellant’s 2017 Board appeal that he did not become aware of the 2017 Board

appeal until December 2017 or January 2018. Id. The administrative judge

further credited the testimony of the appellant’s first- and second-level

supervisors that the appellant’s second-level supervisor had no input in the

appellant’s 2017 performance appraisal and did not discuss it or see it before it

was issued to the appellant. Id.

merits stages. Compare Shope v. Department of the Navy, 106 M.S.P.R. 590, ¶ 5 (2007)

(explaining that an appellant is entitled to a jurisdictional hearing in an IRA appeal only

when he sets forth in the written record a nonfrivolous allegation that the elements of

his claim are satisfied), with Benton-Flores v. Department of Defense, 121 M.S.P.R.

428, ¶¶ 4-5 (2014) (stating that, once the appellant establishes jurisdiction over her IRA

appeal, she is entitled to a hearing on the merits of her claim, which she must prove by

preponderant evidence).

The appellant disputes the administrative judge’s findings that her

first-level supervisor had no actual or constructive knowledge of her 2017 Board

appeal. For example, she asserts that the entire “management team” was aware of

her protected activities, including her frequent and extensive equal employment

opportunity activities and that her first-level supervisor received several emails

describing issues the appellant was having at work. PFR File, Tab 1 at 5. She

further maintains that it is improbable that management would have completely

insulated her first-level supervisor from the knowledge of her Board appeal.

Id. at 5-6. Finally, she asserts that it is implausible that her first-level supervisor

would not have become aware of her Board appeal from agency attorneys who she

contends would had to have contacted her supervisor for information supporting

their case. Id. at 7.

The administrative judge, however, considered and rejected the appellant’s

version of events as improbable, noting that the fact that the appellant’s

supervisor was aware of various issues the appellant was having through emails

and comments from the appellant did not suggest that she was aware the appellant

had filed a Board appeal. ID at 5-6. Thus, she credited the testimony of the

appellant’s supervisors that neither was aware of the appellant’s Board appeal at

the time the appellant’s performance appraisal was issued on October 27, 2017.

ID at 7. The Board must defer to an administrative judge’s credibility

determinations when they are based, explicitly or implicitly, on observing the

demeanor of witnesses testifying at a hearing; the Board may overturn such

determinations only when it has “sufficiently sound” reasons for doing so.

Haebe v. Department of Justice, 288 F.3d 1288, 1301 (Fed. Cir. 2002). Here, the

administrative judge’s credibility determinations were based on her observation

and assessment of the agency officials’ demeanor during the hearing. See Purifoy

v. Department of Veterans Affairs, 838 F.3d 1367, 1372-73 (Fed. Cir. 2016)

(stating that, even if demeanor is not explicitly discussed by an administrative

judge, assessing a witness’s credibility involves consideration of various factors,

including a witness’s demeanor). Although the appellant disagrees with the

credibility determinations, we find that her challenges are not sufficiently sound

to overturn them.

Next, we consider evidence other than knowledge/timing evidence. It is

undisputed that the appellant’s first-level supervisor, who issued the appellant’s

2017 performance appraisal, was not personally implicated in the appellant’s

2017 Board appeal. Hearing Transcript (HT) at 92-93 (testimony of the

appellant’s first-level supervisor); PFR File, Tab 1 at 5-6. Also, as explained

above, the administrative judge found, based on her assessment of the witnesses’

credibility, that the appellant failed to show that anyone with knowledge of her

2017 Board appeal influenced her first-level supervisor. ID at 6-7; see Baker v.

Social Security Administration, 2022 MSPB 27, ¶ 30 (explaining that an

administrative judge’s demeanor-based credibility findings are virtually

unreviewable on review). As to any desire or motive to retaliate against the

appellant, her first-level supervisor denied during her sworn testimony that the

appellant’s 2017 Board appeal had any effect on her 2017 performance appraisal

ratings. HT at 92-93 (testimony of the appellant’s first-level supervisor). The

appellant did not solicit any testimony, nor is there any evidence of record,

concerning her first-level supervisor’s attitude toward her 2017 Board appeal that

might otherwise refute this testimony. Therefore, we accept her supervisor’s

testimony as proof of her lack of retaliatory motive. See Woodall v. Federal

Energy Regulatory Commission, 30 M.S.P.R. 271, 273 (finding that a declaration

subscribed under penalty of perjury proves the facts it asserts).

We also find that the appellant’s first-level supervisor’s explanation for

determining the appellant’s performance rating is strong. The appellant’s

first-level supervisor testified that the participation element rating she issued was

justified because, among other reasons, many of the duties the appellant

highlighted in her self-assessment were duties she was assigned to perform, and

any unassigned work she did was not performed on a “sustained, consistent basis

throughout the appraisal year” to merit a higher rating. HT at 108 (testimony of

the appellant’s first-level supervisor).

Specifically, Case Managers who received ratings of five in the

participation element worked with a judge who processed the “more technical”

Puerto Rico fraud cases, which involved “daily processing” and work on a

“sustained, consistent basis,” which was not otherwise part of the normal

workload of a Case Manager. HT at 120-21, 124-25, 128, 133 (testimony of the

appellant’s first-level supervisor). The appellant’s first-level supervisor testified

that the appellant was not assigned to work with this judge and only did the

“initial work up” on those cases, which the appellant has not presented evidence

to refute. HT at 108 (testimony of the appellant’s first-level supervisor).

Lastly, it is undisputed that the appellant received the exact same ratings in

her 2016 performance appraisal as she did in the appraisal at issue here. HT

at 94-95 (testimony of the appellant’s first-level supervisor); IAF, Tab 82 at 4-6.

That appraisal was issued in October 2016 by a different supervisor, and prior to

the appellant filing her 2017 Board appeal in April 2017, which tends to show

that the 2017 appraisal was consistent with the appellant’s performance

assessments before her protected activity. IAF, Tab 82 at 6. It is also undisputed

that, out of the eight employees under the supervision of the appellant’s

first-level supervisor in 2017, the appellant’s overall rating ranked in the middle,

receiving a higher overall rating than four employees and the same ratings as one,

which also tends to show that her supervisor did not harbor retaliatory motive

towards her. IAF, Tab 82 at 23-42, Tab 83 at 4-9. Thus, we agree with the

administrative judge’s conclusion that the appellant has not shown by

preponderant evidence that her 2017 Board appeal was a contributing factor in her

2017 performance appraisal.

The appellant’s remaining arguments do not provide a basis for reversal.

On review, the appellant asserts that the administrative judge abused her

discretion by failing to transfer the appeal to the Washington Regional Office.

PFR File, Tab 1 at 7-8. She maintains that this was the proper venue because,

although she physically works in Chicago, Illinois, agency management is based

out of Falls Church, Virginia. Id. at 8. She also cites, without explanation,

alleged prior abuse of discretion by a different administrative judge in her

2017 Board appeal as a reason for transferring the current appeal. Id. at 7-8.

Under 5 C.F.R. § 1201.4(d), the location of the appellant’s duty station when the

action was taken determines which Board regional office has jurisdiction. Thus,

to the extent the appellant’s duty station was and is in Chicago, Illinois, the

Central Regional Office had jurisdiction over the appeal. See 5 C.F.R. pt. 1201,

app. II. Although the record reflects that the appellant filed motions for recusal

of the administrative judge in this appeal, such motions were based on the

administrative judge’s alleged verbal admonishment of the appellant during status

conferences and general claims of alleged bias, not any claim of bias related to

the administrative judge in the appellant’s prior Board appeal. IAF, Tabs 28, 41.

Regardless, we discern no basis for recusal of the administrative judge in this

appeal based on any alleged bias by a different administrative judge in the

appellant’s prior Board appeal or based on the allegations set forth in the

appellant’s motions concerning the administrative judge in this appeal. Nothing

in the record suggests that the impartiality of the administrative judge in this

appeal might reasonably be questioned. See, e.g., Allphin v. United States,

758 F.3d 1336, 1343-44 (Fed. Cir. 2014) (finding that recusal is required when a

reasonable person knowing all the facts would question the judge’s impartiality);

Department of Health & Human Services v. Jarboe , 2023 MSPB 22, ¶ 12

(explaining that in determining whether an administrative judge should be

disqualified on grounds other than bias, the Board assesses whether his

impartiality might reasonably be questioned) (citations omitted) .

Finally, the appellant reiterates her argument that the hearing recording was

altered to exclude an exchange that she had with the administrative judge. PFR

File, Tab 1 at 8. However, the administrative judge considered such an argument

but found that the portion alleged to have been missing from the record was an

admonishment the administrative judge made off the record in an effort not to

embarrass the appellant, who was proceeding pro se. ID at 9-10. We find that

the administrative judge did not abuse her discretion. See, e.g., Tisdell v.

Department of the Air Force, 94 M.S.P.R. 44, ¶ 13 (2003) (noting that an

administrative judge has wide discretion to regulate the course of the hearing);

5 C.F.R. § 1201.41(b)(6).

Accordingly, we affirm the initial decision. 5

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.

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

We have reviewed the relevant legislation enacted during the pendency of this appeal

and have concluded that it does not affect the outcome of the appeal.

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.

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).

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

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.