Opinion

Nadia E Figueroa v. Department of the Army

Court: Merit Systems Protection Board
Filed: Nov 12, 2024
Status: Unpublished
Cited by: 0 cases
Authority: More cited than 32.9%

The opinion

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

NADIA E. FIGUEROA, DOCKET NUMBER

Appellant, SF-0752-20-0024-I-1

DEPARTMENT OF THE ARMY, DATE: November 12, 2024

Agency.

THIS FINAL ORDER IS NONPRECEDENTIAL 1

Alexis N. Tsotakos , Esquire, Keith Taubenblatt , Esquire, and

Kevin L. Owen , Esquire, Silver Spring, Maryland, for the appellant.

Michael E. Nyre , Fort Irwin, California, 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

reversed her removal on due process grounds, asserting that the administrative

judge erred by not addressing the merits of the agency’s adverse action and by

finding that she failed to prove discrimination and reprisal for equal employment

A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

opportunity (EEO) activity. 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. Except as expressly MODIFIED to

clarify the proper legal standard for the appellant’s claim of reprisal for EEO

activity, we AFFIRM the initial decision.

DISCUSSION OF ARGUMENTS ON REVIEW

On review, the appellant argues that the administrative judge was required

to address the merits of the adverse action. Petition for Review (PFR) File, Tab 1

at 7-8. As the administrative judge noted, when, as here, a procedural due

process violation has occurred because of ex parte communications, “the merits of

the adverse action are wholly disregarded.” Initial Appeal File (IAF), Tab 47,

Initial Decision (ID) at 13; see Giannantonio v. U.S. Postal Service, 111 M.S.P.R.

99, ¶ 5 (2009). Thus, the administrative judge properly did not address the merits

of the adverse action.

The appellant also argues that the administrative judge erred in finding that

her failure to accommodate claim was barred by collateral estoppel because an

appeal is pending with the Equal Employment Opportunity Commission

(EEOC)’s Office of Federal Operations. PFR File, Tab 1 at 5-6. As the

administrative judge noted, the pendency of an appeal has no effect on the finality

or binding effect of a trial court’s holding. 2 IAF, Tab 34 at 4; see Rice v.

Department of Treasury, 998 F.2d 997, 999 (Fed. Cir. 1993). We agree that the

EEOC initial decision is a final judgment to which issue preclusion would apply,

except to the extent that the appellant has presented new evidence in this appeal

that was not addressed by the EEOC administrative judge’s ruling. ID at 19. The

appellant has not presented such evidence on review.

The appellant does not challenge the administrative judge’s finding that she

did not prove her discrimination-based affirmative defenses. Regarding her claim

of disability-based EEO reprisal, the administrative judge concluded that she

failed to meet her burden of proving reprisal was a motivating factor in the

agency’s decision. ID at 25. We agree with the overall conclusion reached by

the administrative judge, but we modify the initial decision to clarify the proper

legal standard for the appellant’s claim.

To establish an affirmative defense of retaliation under 42 U.S.C.

§ 2000e-16, i.e., Title VII discrimination and retaliation claims involving race,

color, religion, sex, or national origin, an appellant must prove by preponderant

evidence that her membership in a protected class was at least a motivating factor

in the contested personnel action. Pridgen v. Office of Management and Budget ,

2022 MSPB 31, ¶¶ 20-22. However, a more stringent standard applies in the

context of retaliation claims arising under the Rehabilitation Act, such that the

appellant must prove that her prior EEO activity was a but-for cause of the

retaliation. Id., ¶¶ 46-47. Nevertheless, because the appellant did not prove that

retaliation was a motivating factor in her removal, she necessarily failed to prove

but-for causation. Desjardin v. U.S. Postal Service, 2023 MSPB 6, ¶ 33.

We take notice that the EEOC’s Office of Federal Operations has since issued

decisions in the appellant’s appeals, affirming the findings of no discrimination. Rosita

R. v. Department of the Army, EEOC Appeal No. 2020000637, 2021 WL 1925705

(April 28, 2021); Phoebe O. v. Department of the Army, EEOC Appeal

No. 2020000674, 2021 WL 1424808 (April 5, 2021).

NOTICE OF APPEAL RIGHTS 3

The initial decision, as supplemented by this Final Order, constitutes the

Board’s final decision in this matter. 5 C.F.R. § 1201.113. 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. 4 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