Opinion

Elena Salinas v. Department of Homeland Security

Court: Merit Systems Protection Board
Filed: Aug 9, 2024
Status: Unpublished
Cited by: 0 cases
Authority: More cited than 30.5%

The opinion

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

ELENA SALINAS, DOCKET NUMBER

Appellant, DA-0752-20-0048-I-1

DEPARTMENT OF HOMELAND DATE: August 9, 2024

SECURITY,

Agency.

THIS FINAL ORDER IS NONPRECEDENTIAL 1

Adam Casner , Esquire, Cedar Park, Texas, for the appellant.

Jennifer Cook , Houston, Texas, for the agency.

BEFORE

Cathy A. Harris, Chairman

Raymond A. Limon, Vice Chairman

Henry J. Kerner, Member

FINAL ORDER

The appellant has filed a petition for review of the initial decision, which

dismissed her involuntary resignation appeal for lack of jurisdiction. 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

A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

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 and AFFIRM the initial decision, which is now the Board’s final

decision. 5 C.F.R. § 1201.113(b).

On petition for review, the appellant argues that the administrative judge

made erroneous factual findings and that the initial decision failed to follow

established precedential Board decisions. However, most of the petition for

review is comprised of a nearly verbatim copy of the appellant’s closing argument

brief, which the administrative judge considered before issuing the initial

decision. Compare Petition for Review (PFR) File, Tab 1 at 4-16, with Initial

Appeal File (IAF), Tab 46 at 6-15. The Board has held that pleadings that do not

raise specific arguments of error and instead merely incorporate arguments set

forth in a brief submitted below do not meet the criteria for Board review because

they do not explain how or why the administrative judge erred. See Mulroy v.

Office of Personnel Management, 92 M.S.P.R. 404, ¶ 15 (2002), overruled on

other grounds by Clark v. Office of Personnel Management, 120 M.S.P.R. 440,

¶ 12 (2013); Mawson v. Department of the Navy, 48 M.S.P.R. 318, 321 (1991).

The only new arguments the appellant raises on review are that the administrative

judge made “blanket” credibility findings in favor of the agency without

resolving inconsistencies in the testimony from agency officials, and that the

facts in her case are comparable to those in the Board decision Freeborn v.

Department of Justice, 119 M.S.P.R. 290 (2013), in which the Board reversed the

administrative judge’s finding that the appellant’s decision to resign in that case

was not involuntary. PFR File, Tab 1 at 12-15.

Regarding the appellant’s challenge to the administrative judge’s

credibility determinations, we see no reason to disturb those findings on review.

See Clay v. Department of the Army, 123 M.S.P.R. 245, ¶ 9 (2016) (finding no

reason to disturb the administrative judge’s findings when the administrative

judge considered the evidence as a whole, drew appropriate inferences, and made

reasoned conclusions); Crosby v. U.S. Postal Service, 74 M.S.P.R. 98, 106 (1997)

(same). The appellant argues that, although the administrative judge concluded

that the testimony from each agency witness was consistent and “independently

corroborated the essential elements” of the others, he failed to consider the fact

that the testimony from agency officials also corroborated the essential elements

of the appellant’s testimony, and instead concluded that her testimony was not

credible. PFR File, Tab 1 at 12. She also asserts that the administrative judge

failed to address the fact that her former first-line supervisor’s contemporaneous

notes were inconsistent with his own testimony. Id.

With respect to the appellant’s argument that the administrative judge erred

by failing to credit her testimony over contrary testimony by agency officials, the

initial decision reflects that, in crediting the testimony from the agency officials

over the contrary testimony from the appellant, the administrative judge identified

and examined the relevant Hillen factors in resolving credibility issues, including

the straightforward and unhesitant demeanor of the agency witnesses, the

consistency of each agency witness’s testimony with the other testimony and

evidence in the record, and the lack of any bias from the agency witnesses. IAF,

Tab 48, Initial Decision (ID) at 11-14 (citing Hillen v. Department of the Army,

35 M.S.P.R. 453, 458 (1987) (setting forth the factors relevant to resolving

credibility issues) and Borninkhof v. Department of Justice, 5 M.S.P.R. 77, 83-87

(1981) (setting forth the relevant factors for assessing the probative value of

hearsay evidence)). By contrast, the administrative judge noted that the appellant

failed to provide any evidence supporting her assertion that her former first-line

supervisor made a gender-based comment about her arrival, or that he yelled at

her in front of her coworkers during a training session in finding that her version

of events was not credible. ID at 12-13 (citing Hillen, 35 M.S.P.R. at 458).

Regarding her claim that the testimony by agency witnesses corroborated

the essential elements of her allegations, as the agency correctly notes on review,

both the appellant and the identified agency witnesses testified that the appellant

and her supervisor did, in fact, have a conversation during the defensive tactics

training session, which the administrative judge credited, but the agency

witnesses all denied the appellant’s claim that her supervisor yelled at her or

humiliated her, and the administrative judge credited the consistent testimony by

agency witnesses on this point. PFR File, Tab 1 at 12, Tab 3 at 16; ID at 13

(citing Hillen, 35 M.S.P.R. at 458). Regarding the purported discrepancy

between her first-line supervisor’s contemporaneous notes and his later

testimony, as the agency correctly notes, the appellant does not identify which

portion of the supervisor’s contemporaneous notes she believes are inconsistent

with his provided testimony, so it is impossible to discern what her specific

objection is on review. PFR File, Tab 1 at 12, Tab 3 at 16; IAF, Tab 18 at 4-10.

Nevertheless, we have reviewed the supervisor’s notes, as well as the

administrative judge’s findings in the initial decision, and see no reason to disturb

those findings. Although the appellant denied making several of the statements

attributed to her by her first-line supervisor during her jurisdictional hearing

testimony, the administrative judge correctly made specific and detailed

credibility findings in crediting the supervisor’s version of events over the

appellant’s, and the appellant has not offered any new argument on review

challenging those findings.

Finally, with respect to the appellant’s argument that the facts in her case

are comparable to those in Freeborn, and that the agency misled her or failed to

provide her with adequate and complete information from which to make an

informed decision regarding whether to resign from her position, there is no merit

to this argument. PFR File, Tab 1 at 13-15. The source of the appellant’s

assertion that the agency failed to provide her with necessary information

regarding her resignation decision appears to stem from testimony by the acting

Port Director during the hearing stating that she had planned to serve the

appellant with a letter of intent to remove her weapon. Id. at 14; IAF, Tab 44,

Hearing Compact Disc (testimony of the acting Port Director). The appellant

appears to imply that the Port Director’s intention to issue the letter and the

agency’s failure to inform the appellant of that intention represented a failure on

the agency’s part to provide her with information necessary to make an informed

decision concerning her resignation, rendering her resignation decision

involuntary. PFR File, Tab 1 at 13-15.

As an initial matter, as the agency correctly notes, the acting Port Director

never actually served the letter of intent on the appellant, so she would not have

been aware of the fact that the agency may have been preparing such a letter at

the time she made her initial decision to resign from her position, and therefore it

could not have had any influence on her decision to resign. PFR File, Tab 3

at 17. Further, as the agency correctly observes, the facts of Freeborn are readily

distinguishable. Id. at 16-18. The appellant in Freeborn was required to accept a

10-day suspension for misconduct or resign immediately, and the supervisor who

gave him this ultimatum provided him with incomplete or inaccurate information

in doing so, failing to inform him that the 10-day suspension would be paid.

Freeborn, 119 M.S.P.R. 290, ¶ 8. In reversing the administrative judge’s

decision dismissing the appeal for lack of jurisdiction, the Board relied heavily on

the fact that the supervisor was aware of Mr. Freeborn’s erroneous belief and did

nothing to correct it, and the fact that Mr. Freeborn testified clearly and

unequivocally that he would not have resigned if not for this mistaken belief. Id.,

¶¶ 14-15. Here, by contrast, the agency did not convey any incorrect or

misleading information to the appellant or force her to choose between potential

disciplinary action or resignation; instead, it was the appellant who volunteered

her decision to resign on her own volition. For the foregoing reasons, we find no

error in the administrative judge’s reasoning and see no reason to disturb the

findings in the initial decision.

NOTICE OF APPEAL RIGHTS 2

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. 3 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