# Elena Salinas v. Department of Homeland Security

> Merit Systems Protection Board · August 9, 2024

URL: https://www.frixlaw.com/law-library/cases/10504850

## Case

- **Court:** Merit Systems Protection Board
- **Decided:** August 9, 2024
- **Precedential status:** Unpublished
- **Opinion:** Opinion
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

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## Opinion text

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD

ELENA SALINAS, DOCKET NUMBER
Appellant, DA-0752-20-0048-I-1

v.

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THIS FINAL ORDER IS NONPRECEDENTIAL 1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

1
A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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).
2

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.
3

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
4

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
5

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
6

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).
2
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.
7

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
8

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
9

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
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

3
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.
10

Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .

FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10504850. Public record. Not legal advice.