# Lisa Scott v. Department of Housing and Urban Development

> Merit Systems Protection Board · December 3, 2024

URL: https://www.frixlaw.com/law-library/cases/10754248

## Case

- **Court:** Merit Systems Protection Board
- **Decided:** December 3, 2024
- **Precedential status:** Unpublished
- **Opinion:** Opinion
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD

LISA SCOTT, DOCKET NUMBER
Appellant, DE-0752-19-0221-I-1

v.

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THIS FINAL ORDER IS NONPRECEDENTIAL 1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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

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
2
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.
3

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.
4

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
5

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.

3
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.
6

(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
7

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:
8

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

4
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.
9

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.
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.

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10754248. Public record. Not legal advice.