Opinion

Tabitha Harris v. Department of Homeland Security

Court: Merit Systems Protection Board
Filed: Sep 20, 2024
Status: Unpublished
Cited by: 0 cases
Authority: More cited than 30.6%

The opinion

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

TABITHA HARRIS, 1 DOCKET NUMBER

Appellant, AT-0752-20-0370-I-1

DEPARTMENT OF HOMELAND DATE: September 20, 2024

SECURITY,

Agency.

THIS FINAL ORDER IS NONPRECEDENTIAL 2

Mark J. Berkowitz , Esquire, Fort Lauderdale, Florida, for the appellant.

Aarrin Golson , Miami, Florida, for the agency.

Kaleb M. Kasperson , Centennial, Colorado, for the agency.

BEFORE

Cathy A. Harris, Chairman

Raymond A. Limon, Vice Chairman

Henry J. Kerner, Member

The appellant passed away during the pendency of this appeal. Her mother, Linda

Harris Williams, who is serving as the Personal Representative of her estate, has been

substituted for the appellant in this appeal. See 5 C.F.R. § 1201.35.

A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

FINAL ORDER

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

dismissed for lack of jurisdiction her appeal of her removal pursuant to a Last

Chance Settlement Agreement (LCSA). 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

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 review, the appellant reiterates the arguments she made in her close of

record submission that the agency failed to engage in the interactive process to

determine whether her absence on October 2, 2019, was related to her

“longstanding and on-going chronic disability” and failed to accommodate her

handicap which caused her recurrent absences. Petition for Review (PFR) File,

Tabs 1, 3. 3 Such arguments, however, relate to the merits of the agency’s

On review, the appellant also seeks to submit for the first time an affidavit from her

mother and personal representative concerning the circumstances surrounding the

appellant’s absence on October 2, 2019, as well as attached email correspondence dated

in November 2019 concerning the appellant’s application for the agency’s leave transfer

program. PFR File, Tab 3 at 17-27. We decline to consider this new evidence because

the appellant has not shown that the information contained in the affidavit or emails

dated prior to the close of the record is new or otherwise explained why she could not

have made such arguments or submitted such evidence before the close of the record.

See Grassell v. Department of Transportation , 40 M.S.P.R. 554, 564 (1989) (stating

decision to separate her. By freely signing the waiver of all appeal rights

contained in the LCSA, including her right to appeal to the Board, the appellant

waived her right to appeal any aspect of the underlying agency action, including

her right to assert any affirmative defenses. See Martin v. Department of

Defense, 70 M.S.P.R. 653, 657 (1996). To the extent the appellant is asserting

that she did not violate the LCSA because she was not absent without leave

(AWOL), but rather the agency improperly denied her request for leave without

pay (LWOP), such an argument is unpersuasive and constitutes mere

disagreement with the administrative judge’s well-reasoned finding that the

appellant failed to prove that her absence on October 2, 2019, was due to her

medical condition. See, e.g., 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).

The record reflects that the administrative judge weighed the relevant

evidence and concluded that the agency properly denied the appellant’s request

for LWOP/FMLA and, thus, the appellant’s absence was unauthorized. Initial

Appeal File (IAF), Tab 29, Initial Decision (ID) at 5-12. In particular, the

administrative judge credited the sworn statement of the appellant’s supervisor,

consistent with her contemporaneous calendar notes, that on October 2, 2019, the

following occurred: at approximately 8:20 a.m., the appellant called her and told

her she would be arriving late because she was waiting for her step-father to

arrive so he could be present while contractors were working at her home; at

11:12 a.m., the appellant called again and told her supervisor that her step-father

had not arrived and that the contractors were still working; and, because the

that, 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).

appellant did not have any leave available, the appellant’s supervisor instructed

the appellant to report to work, but the appellant did not. ID at 7, 10-11.

In contrast, the administrative judge found inherently suspect the

appellant’s undated doctor’s note that she was seen on October 2, 2019, and

would be able to return on October 22, 2019, which was presented to the agency

on November 4, 2019, for the first time more than 1 month later, and after the

appellant was informed that she would be marked AWOL. ID at 11.

Additionally, the administrative judge found that such evidence was contrary to

the medical note that the appellant presented upon her return work on

October 4, 2019, which stated that the appellant was seen on October 3, 2019, not

October 2, 2019, and would be absent until further notice. Id. Finally, the

administrative judge found that the appellant never informed the agency prior to

November 4, 2019, that her absence on October 2, 2019, was due to her medical

condition, including during a meeting on October 23, 2019, with the appellant,

her supervisor, and an Assistant Special Agent in Charge, the purpose of which

was to discuss the appellant’s absence on that date. Id.

The appellant has failed to show error, and we discern none, in the

administration judge’s conclusion that it was more likely than not that the

appellant was absent due to the contracting work at her house and not due to her

medical condition as she subsequently claimed. Id. The appellant’s arguments

thus fail to establish any error in the administrative judge’s finding that the

appellant failed to prove by preponderant evidence that she complied with the

LCSA. See Bahrke v. U.S. Postal Service, 98 M.S.P.R. 513, ¶ 14 (2005) (noting

that, in a removal pursuant to a violation of an LCSA, the agency does not bear

the burden of proving that it properly denied the appellant FMLA leave, but

rather, the appellant bears the burden of showing that the Board has jurisdiction

over her appeal because her waiver of appeal rights in an LCSA is

unenforceable); see also Willis v. Department of Defense, 105 M.S.P.R. 466, ¶ 17

(2007) (stating that, to show that a waiver of appeal rights in an LCSA is

unenforceable, the appellant must show one of the following: (1) he complied

with the LCSA; (2) the agency materially breached the LCSA or acted in bad

faith; (3) the appellant did not voluntarily enter into the LCSA; or (4) the LCSA

resulted from fraud or mutual mistake).

NOTICE OF APPEAL RIGHTS 4

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. 5 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