Opinion

Michelle Pierson v. Department of Veterans Affairs

Court: Merit Systems Protection Board
Filed: Aug 28, 2024
Status: Unpublished
Cited by: 0 cases
Authority: More cited than 30.5%

finding that the Board must defer to an administrative judge’s demeanor-based credibility determinations, “[e]ven if demeanor is not explicitly discussed”

How later courts described this case

finding that the Board must defer to an administrative judge’s demeanor-based credibility determinations, “[e]ven if demeanor is not explicitly discussed”

Written by the judges who cited it.

The opinion

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

MICHELLE M. PIERSON, DOCKET NUMBER

Appellant, CH-0752-22-0321-I-1

DEPARTMENT OF VETERANS DATE: August 28, 2024

AFFAIRS,

Agency.

THIS FINAL ORDER IS NONPRECEDENTIAL 1

Michelle M. Pierson , Saint Clair, Michigan, pro se.

Lauren Russo Ciucci , Esquire, Detroit, Michigan, 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 the agency’s chapter 75 demotion action. 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

A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

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).

The appellant’s arguments regarding a witness are unavailing.

The appellant asserts that the administrative judge erroneously disallowed

the testimony of one of her proffered witnesses, C.M. Petition for Review (PFR)

File, Tab 1 at 3, 9; Initial Appeal File (IAF), Tab 27 at 5. To this end, she avers

that she learned for the first time during the hearing that C.M. had determined her

“rate of pay.” PFR File, Tab 1 at 3, 9. We interpret the appellant’s assertions as

an argument that C.M.’s testimony would have supported her claim that, in

demoting her from a GS-6 Police Officer to a GS-5 Security Assistant, the agency

should have placed her at a higher step level. 2 IAF, Tab 8 at 18, Tab 37, Initial

Decision (ID) at 19.

The administrative judge has broad discretion to regulate the course of the

hearing and to exclude evidence and witnesses that have not been shown to be

relevant, material, and nonrepetitious. Thomas v. U.S. Postal Service,

To the extent the appellant also contends that the agency failed to provide her with

pay-related documents prior to the hearing, her contention is unavailing because she did

not file a motion to compel before the administrative judge. PFR File, Tab 1 at 9; see

Szejner v. Office of Personnel Management , 99 M.S.P.R. 275, ¶ 5 (2005) (stating that, if

an appellant fails to file a motion to compel before the administrative judge, the

appellant is precluded from raising discovery issues for the first time on review), aff’d,

167 F. App’x 217 (Fed. Cir. 2006); 5 C.F.R. § 1201.73(c).

116 M.S.P.R. 453, ¶ 4 (2011); 5 C.F.R. § 1201.41(b)(8), (10). To obtain reversal

of an initial decision on the ground that the administrative judge abused his

discretion in excluding evidence, the appellant must show on review that relevant

evidence, which could have affected the outcome, was disallowed. Sanders v.

Social Security Administration, 114 M.S.P.R. 487, ¶ 10 (2010).

Here, the record reflects that the administrative judge did not approve C.M.

as a witness because he found C.M.’s proffered testimony irrelevant and

duplicative. IAF, Tab 27 at 5. The appellant did not object to this ruling. See

Tarpley v. U.S. Postal Service, 37 M.S.P.R. 579, 581 (1988) (explaining that the

appellant’s failure to timely object to rulings on witnesses precludes her from

doing so on petition for review). In any event, the appellant does not explain how

C.M.’s testimony could have affected the outcome of her appeal; indeed, she does

not explain how his testimony could have demonstrated error with the

administrative judge’s conclusion that she failed to show that the agency was

required to place her at a higher step upon her demotion. 3 ID at 19-20. Thus, a

different outcome is not warranted.

The appellant failed to show that the agency committed harmful procedural error.

The appellant challenges the administrative judge’s conclusion that she

failed to prove that the agency committed harmful procedural error in demoting

her for failing to successfully complete a training course for agency police

officers. PFR File, Tab 1; IAF, Tab 8 at 18, 20-23, 29-33. To this end, she

asserts that the agency (1) wrongfully denied her a meaningful opportunity to

improve and (2) should have provided her with an alternative firearm hand grip.

PFR File, Tab 1 at 5, 21-22, 27-28. We find these assertions unpersuasive.

Pursuant to 5 U.S.C. § 7701(c)(2)(A), the Board will not sustain an

agency’s decision if the appellant “shows harmful error in the application of the

agency’s procedures in arriving at such decision.” A procedural error is harmful

The appellant’s remaining arguments regarding her step level and rate of pay do not

provide a basis to disturb the initial decision. PFR File, Tab 1 at 3-4, 9 -18; ID at 19-20.

when the record shows that an error by the agency was likely to have caused the

agency to reach a conclusion different from the one it would have reached in the

absence or cure of the error. Pumphrey v. Department of Defense, 122 M.S.P.R.

186, ¶ 10 (2015); 5 C.F.R. § 1201.4(r).

The appellant contends that the agency failed to provide her with an

opportunity to improve, thereby violating her due process rights. PFR File, Tab 1

at 5, 21-22. To this end, she avers that the agency’s charge related to a

performance deficiency, i.e., her failure to achieve a passing score on the firearms

qualification portion of the agency’s police training course, and not misconduct;

thus, the agency was required to place her on a performance improvement plan

(PIP) prior to demoting her. Id. We disagree. In essence, the appellant conflates

an action taken under chapter 75, such as her demotion, with a performance-based

action taken under chapter 43. IAF, Tab 8 at 18, 20; compare Hall v. Department

of Defense, 117 M.S.P.R. 687, ¶ 6 (2012) (setting forth the elements of a

chapter 75 adverse action appeal, including proof of the agency’s charges, nexus,

and reasonableness of the penalty), with Lee v. Department of Veterans Affairs ,

2022 MSPB 11, ¶ 15 (setting forth the elements of a chapter 43 action, including

warning an employee of the inadequacies in her performance during an appraisal

period and giving her an adequate opportunity to demonstrate acceptable

performance). Thus, the appellant has not identified any agency error.

The appellant more specifically argues that the agency committed harmful

error because “Section 10” of the applicable collective bargaining agreement

(CBA) required the agency to place her on a PIP prior to her demotion. PFR File,

Tab 1 at 22; IAF, Tab 23 at 289. We find this argument unavailing. The CBA

provision that the appellant references pertains to an employee who fails to meet

the standards of a critical element of her position. IAF, Tab 23 at 289. Here, the

agency did not allege that the appellant failed to meet the standards of a critical

element of her position; rather, it charged her with failure to complete a requisite

training course, which the administrative judge treated as akin to “failure to

maintain a condition of employment.” IAF, Tab 8 at 29, Tab 10 at 2; ID at 6 &

n.3. Thus, a different outcome is not warranted.

The appellant contends that the agency committed harmful error because it

failed to provide her with an alternative firearm hand grip, i.e., an E2 grip, which

she asserts is available for the service pistol used by the agency’s police force.

PFR File, Tab 1 at 27. She asserts that this hand grip likely would have improved

her shooting scores and enabled her to complete the training course. Id. at 28.

This assertion, however, does not provide a basis to disturb the administrative

judge’s conclusion that the appellant did not adduce any evidence of an agency

rule or policy that would have required the agency to provide her with an

alternative hand grip. ID at 16. Moreover, the appellant’s assertion that an

alternative grip would have improved her shooting scores is speculative; indeed,

as set forth in the initial decision, the appellant acknowledged that she has never

fired a round with the E2 grip. Id.; see Pumphrey, 122 M.S.P.R. 186, ¶ 11

(finding that speculation was insufficient for the appellant to meet his burden of

establishing harm). Accordingly, we find the appellant’s claims of harmful

procedural error unavailing.

The appellant failed to prove her claim of sex discrimination.

The appellant reasserts her claim that the agency engaged in disparate

treatment sex discrimination. PFR File, Tab 1 at 5, 19-20, 24-27. To this end,

she argues the following: (1) she identified a valid male comparator who was

treated more favorably than she was; (2) the agency provided her male

counterparts with more training opportunities; and (3) the agency videotaped her

firearms qualification attempt. Id. We find these assertions unpersuasive.

The appellant challenges the administrative judge’s conclusion that she

failed to identify a valid male comparator. PFR File, Tab 1 at 19-20, 24. To this

end, she reasserts that agency employee M.B., who similarly failed his firearms

qualification but was thereafter provided additional training and ultimately

qualified, was a valid comparator. Id.; ID at 11-12. As set forth in the initial

decision, to be considered a proper comparator for purposes of a claim of

sex-based discrimination, the identified comparator must have reported to the

same supervisor, been subjected to the same standards governing discipline, and

engaged in conduct similar to the appellant’s without differentiating or mitigating

circumstances. ID at 11 (citing Pridgen v. Office of Management and Budget,

2022 MSPB 31, ¶ 27); see Ly v. Department of the Treasury, 118 M.S.P.R. 481,

¶ 10 (2012) (explaining that, for an employee to be deemed similarly situated for

purposes of an affirmative defense of discrimination based on disparate treatment,

all relevant aspects of the appellant’s employment situation must be “nearly

identical” to that of the comparator employee). Applying this standard, the

administrative judge concluded that M.B. was not a valid comparator because he

had a different supervisor, his failed qualification attempt occurred 8 years prior

to the appellant’s attempt, and, unlike the appellant, M.B. had not received any

firearms training prior to his qualification attempts. ID at 11-12. On review, the

appellant asserts that although she and M.B. may not have had the same

immediate supervisor, they shared a higher-level supervisor. PFR File, Tab 1

at 4, 20. We find this assertion unpersuasive. Indeed, even if the appellant and

M.B. had shared an immediate supervisor, a different outcome would not be

warranted because of other differentiating circumstances, e.g., the

pre-qualification training provided to the appellant. ID at 12. Accordingly, the

appellant’s assertions do not provide a basis to disturb the administrative judge’s

conclusion that she failed to identify a valid comparator for purposes of her claim

of sex discrimination.

The appellant asserts that the agency failed to provide her with the same

training opportunities that her male counterparts received. PFR File, Tab 1 at 5,

25. To the extent she argues that agency decisions regarding training, to include

the training provided to M.B., are indicative of a discriminatory motive or

otherwise support her claim of sex discrimination, her vague assertion does not

provide a basis to disturb the initial decision. See Tines v. Department of the Air

Force, 56 M.S.P.R. 90, 92 (1992) (explaining that a petition for review must

contain sufficient specificity to enable the Board to ascertain whether there is a

serious evidentiary challenge and concluding that the appellant’s petition

contained neither evidence nor argument demonstrating error by the

administrative judge). To the extent she instead challenges the administrative

judge’s conclusion that she failed to prove that the agency committed harmful

error as related to training, ID at 16-17, we find her challenge, which amounts to

mere disagreement with the administrative judge’s conclusions, unavailing, see

Crosby v. U.S. Postal Service, 74 M.S.P.R. 98, 105-06 (1997) (finding no reason

to disturb the administrative judge’s findings when she considered the evidence

as a whole, drew appropriate inferences, and made reasoned conclusions);

Broughton v. Department of Health and Human Services , 33 M.S.P.R. 357, 359

(1987) (same).

Finally, the appellant argues that the agency videotaped her firearms

qualification attempt but did not videotape the qualification attempts of any male

officers. PFR File, Tab 1 at 5-6. The appellant, however, does not provide a

basis to disturb the administrative judge’s demeanor-based conclusion that the

agency employee who elected to videotape her qualification attempt did so to

ensure that her attempt met applicable standards, i.e., that the videotaping was not

indicative of a discriminatory motive on part of any agency official. ID at 13; see

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

2016) (finding that the Board must defer to an administrative judge’s

demeanor-based credibility determinations, “[e]ven if demeanor is not explicitly

discussed”). Thus, a different outcome is not warranted. 4

Accordingly, we affirm the initial decision.

We have considered all of the appellant’s remaining arguments, including her

assertions that the agency videotaped her qualification attempt without her consent and

that agency employees scored her attempt in front of a male coworker; however, we find

that none compel a different outcome. PFR File, Tab 1 at 6.

NOTICE OF APPEAL RIGHTS 5

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).

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:

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.

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. 6 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