# Michelle Pierson v. Department of Veterans Affairs

> Merit Systems Protection Board · August 28, 2024

URL: https://www.frixlaw.com/law-library/cases/10563783

## Case

- **Court:** Merit Systems Protection Board
- **Decided:** August 28, 2024
- **Precedential status:** Unpublished
- **Opinion:** Opinion
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10563783

## How later opinions describe it (automated extraction)

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

## Opinion text

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD

MICHELLE M. PIERSON, DOCKET NUMBER
Appellant, CH-0752-22-0321-I-1

v.

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THIS FINAL ORDER IS NONPRECEDENTIAL 1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
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

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,
2
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).
3

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

3
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.
4

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
5

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
6

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
7

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.

4
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.
8

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:

5
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.
9

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
10

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
11

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
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.

6
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.
12

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/10563783. Public record. Not legal advice.