Opinion

Lisa Scott v. Department of Housing and Urban Development

Court: Merit Systems Protection Board
Filed: Dec 3, 2024
Status: Unpublished
Cited by: 0 cases
Authority: More cited than 33.2%

The opinion

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

LISA SCOTT, DOCKET NUMBER

Appellant, DE-0752-19-0221-I-1

DEPARTMENT OF HOUSING AND DATE: December 3, 2024

URBAN DEVELOPMENT,

Agency.

THIS FINAL ORDER IS NONPRECEDENTIAL 1

Lisa Scott , Thornton, Colorado, pro se.

Colin J. Ratterman , Esquire, and Nicole A. Allard , Esquire, Denver,

Colorado, 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

sustained the appellant’s removal for failure to follow instructions. 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

A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

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).

DISCUSSION OF ARGUMENTS ON REVIEW

The administrative judge properly sustained the charge of failure to follow

instructions.

On petition for review, the appellant argues that the administrative judge

erroneously sustained specifications 1, 2, 5, 6, and 7 of the charge of failure to

follow instructions. Petition for Review (PFR) File, Tab 3 at 4-5. 2 We have

considered the appellant’s arguments but find no reason to disturb the

administrative judge’s explained findings. Regarding specification 1, we find no

reason to disturb the administrative judge’s explained finding that the appellant

was not subjected to a same-day recall from telework, and thus, her legal

arguments about a potential violation of the collective bargaining agreement are

immaterial. Initial Appeal File (IAF), Tab 33, Initial Decision (ID) at 6, 8.

Regarding specification 2, the appellant’s argument about being granted 2 hours

of sick leave to complete her workday does not demonstrate material error in the

The administrative judge did not sustain specification 3, and the appellant is not

raising a cognizable challenge to the administrative judge’s findings sustaining

specification 4. Initial Appeal File, Tab 33, Initial Decision at 11-15; PFR File, Tab 3

at 4.

administrative judge’s finding that she failed to comply with a valid instruction to

report to the office earlier in the day. ID at 9-11. Regarding specification 5, we

agree with the administrative judge’s finding that the appellant did not engage in,

and was not prohibited from engaging in, protected activity opposing harassment

or discrimination, as the appellant did not have a reasonable, good-faith belief

that she was opposing such harassment or discrimination. ID at 15-19, 29.

Regarding specification 6, the appellant briefly reasserts factual arguments

considered by the administrative judge, but we find that the administrative judge

properly found that the agency proved this specification for the reasons explained

in the initial decision. ID at 22-23. Further, the Colorado Department of Labor’s

findings are not binding on the Board, and we find that they do not provide a

basis for disturbing the administrative judge’s findings, which are supported by

the record in this appeal. See Lucas v. Department of Veterans Affairs,

52 M.S.P.R. 267, 270 (1992). The administrative judge did not sustain

specification 7, so the appellant’s arguments regarding that specification are

immaterial to the outcome. ID at 23-24.

To the extent that the appellant argues that the agency’s use of adverse

action procedures under 5 U.S.C. chapter 75 was inappropriate because the

charges were based on performance issues that should have been addressed under

5 U.S.C. chapter 43, we disagree. PFR File, Tab 3 at 5; IAF, Tab 28 at 4. The

agency had the option to proceed under chapter 75 with its charge of failure to

follow instructions. See Lovshin v. Department of the Navy, 767 F.2d 826, 843

(Fed. Cir. 1985). To the extent that the appellant argues that her performance

record proves that the removal penalty was excessive or retaliatory, we disagree.

PFR File, Tab 3 at 5; IAF, Tab 28 at 4. The initial decision shows that her

performance ratings were considered but were outweighed by other factors

supporting the agency’s penalty. ID at 32; IAF, Tab 11 at 6-7. Further, we find

that such evidence is not of sufficient weight to disturb the administrative judge’s

findings on her retaliation claims.

The appellant’s claims of procedural errors, ex parte communication, and

administrative judge bias provide no basis to disturb the initial decision.

The appellant raises various allegations of error in the administrative

judge’s processing of the appeal, including that the administrative judge

“show[ed] great bias,” pressured her to combine her removal appeal with matters

she was pursuing with the Equal Employment Opportunity Commission, changed

dates for the close of the record, and “removed critical documents [she] had

uploaded to support her case.” PFR File, Tab 3 at 4-5. We find no evidence of

any material procedural error, and the appellant’s allegations about the

administrative judge’s case-related rulings fail to establish any bias on the part of

administrative judge.

In making a claim of bias an appellant must overcome a presumption of

honesty and integrity which accompanies administrative adjudicators. See Oliver

v. Department of Transportation, 1 M.S.P.R. 382, 386 (1980). The Board will

not infer bias based on an administrative judge’s case-related rulings.

See Vaughn v. Department of the Treasury, 119 M.S.P.R. 605, ¶ 18 (2013) (citing

Williams v. U.S. Postal Service, 87 M.S.P.R. 313, ¶ 12 (2000)). The appellant

falls well short of demonstrating any bias in this appeal. For instance, she fails to

describe or provide evidence of any improper ex parte communications between

the administrative judge and agency counsel and/or that her substantive rights

were harmed. We find no abuse of discretion in the administrative judge’s

handling of the close of the record, processing of the appeal, or decision to

adjudicate the appellant’s affirmative defenses to the removal action.

See 5 C.F.R. §§ 1201.28, 1201.41 (granting an administrative judge wide

discretion to control initial appeal proceedings, including the discretion to set

and/or reschedule deadlines and suspend the processing of an appeal).

Regarding the appellant’s claim that she tried to submit a rebuttal pleading

that was rejected by the administrative judge, PFR File, Tab 3 at 4-6, we find no

record that the appellant ever filed such a pleading. Although the Board will

permit evidence or argument submitted “in rebuttal to new evidence or argument

submitted by the other party just before the record closed,” 5 C.F.R. § 1201.59(c)

(2), the content of the appellant’s purported July 18, 2019 pleading is not merely

rebuttal to the agency’s close-of-record pleading; rather, it contains evidence and

arguments that the appellant should have affirmatively put forth in the timely

presentation of her case before the close of the record, PFR File, Tab 3 at 6-30.

Thus, we will not further consider this evidence and argument. We have

otherwise considered the appellant’s allegations on review pertaining to her

retaliation claims, PFR File, Tab 3 at 4-5, Tab 7 at 4, but we find that they are not

of sufficient weight to change the outcome.

NOTICE OF APPEAL RIGHTS 3

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.

Since the issuance of the initial decision in this matter, the Board has 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.

(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:

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

following address:

U.S. Court of Appeals

for the Federal Circuit

717 Madison Place, N.W.

Washington, D.C. 20439

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.