“Our opinion in Sayers controls and mandates that review of the penalty must be included in the Board’s review of [an] adverse action.”
How later courts described this case
- “Our opinion in Sayers controls and mandates that review of the penalty must be included in the Board’s review of [an] adverse action.”
Written by the judges who cited it.
The opinion
UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
SANDRA BARROWCLOUGH, DOCKET NUMBER
Appellant, AT-0714-21-0061-I-1
v.
DEPARTMENT OF VETERANS DATE: December 23, 2024
AFFAIRS,
Agency.
THIS ORDER IS NONPRECEDENTIAL 1
Sandra Barrowclough , Seminole, Florida, pro se.
Luis E. Ortiz-Cruz , Esquire, Orlando, Florida, for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
Henry J. Kerner, Member
REMAND ORDER
The appellant has filed a petition for review of the initial decision, which
dismissed her 38 U.S.C. § 714 removal appeal for lack of jurisdiction. For the
reasons discussed below, we GRANT the appellant’s petition for review,
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
VACATE the initial decision, and REMAND the case to the regional office for
further adjudication in accordance with this Remand Order.
BACKGROUND
On July 18, 2019, the agency proposed to remove the appellant from her
position as a GS-5 Nursing Assistant under the authority of the Department of
Veterans Affairs Accountability and Whistleblower Protection Act of 2017 (VA
Accountability Act), Pub. L. No. 115-41, § 202(a), 131 Stat. 862 (codified at
38 U.S.C. § 714) based on the charge of inability to perform the essential
functions of her position. Initial Appeal File (IAF), Tab 1 at 4-6. Thereafter, on
August 9, 2019, the agency provided the appellant with a letter informing her that
“a decision ha[d] been made to remove [her] from employment,” but that the
removal would be held in abeyance for 90 days in order to conduct a search for a
possible reassignment. IAF, Tab 5 at 37. On November 12, 2019, the agency
provided the appellant with another letter informing her that it had been unable to
locate a suitable position for her and that she would be removed effective
November 15, 2019. Id. at 17, 41.
On November 3, 2020, the appellant appealed her removal to the Board;
however, she did not request a hearing on the matter. IAF, Tab 1 at 2. Following
the appellant’s Board appeal, the agency argued that the Board lacked jurisdiction
over the matter because the appellant had made an “irrevocable” election to
challenge her removal with the Equal Employment Opportunity Commission
(EEOC), where the matter was “still pending final resolution.” IAF, Tab 5 at 6-8.
Specifically, the agency indicated that the appellant had appealed the final agency
decision (FAD) regarding her EEO complaint to the EEOC’s Office of Federal
Operations (OFO) on November 2, 2020, one day prior to filing her Board appeal,
but did not provide a copy of the FAD. Id. at 6-7. The administrative judge
issued an order to show cause, instructing the appellant to file evidence and
argument regarding the Board’s jurisdiction over her appeal, and the appellant
3
responded that the Office of Resolution Management, Diversity & Inclusion
(ORMDI) had informed her that a portion of her complaint would be appealable
to the Board, and her union representative had informed her to proceed first to the
EEOC and then to the Board. IAF, Tab 6 at 1-2, Tab 7 at 4. Based on the written
record, the administrative judge then issued an initial decision dismissing the
appeal for lack of jurisdiction, finding that the appellant’s election to proceed “in
the [ORMDI]/OFO forum” divested the Board of jurisdiction over the matter.
IAF, Tab 8, Initial Decision (ID) at 1, 3.
The appellant has filed a petition for review, arguing that she received a
“final decision” that informed her that she had Board appeal rights. Petition for
Review (PFR) File, Tab 4 at 6. The agency has filed a response, and the
appellant has filed a reply, submitting a portion of the appeal rights that were
provided to her by the agency. PFR File, Tab 6, Tab 7 at 4. Thereafter, the Clerk
of the Board issued an order requiring the agency to submit a copy of the FAD
pertaining to the appellant’s EEO complaint. PFR File, Tab 8 at 1-2. The agency
thereafter submitted a copy of its October 9, 2020 FAD, which concluded that the
appellant failed to prove her claims of discrimination, and provided her with her
notice of appeal rights, including appealing her claim of discriminatory removal
to the Board. 2 PFR File, Tab 9 at 4-18.
DISCUSSION OF ARGUMENTS ON REVIEW
The Board has jurisdiction over the appellant’s timely filed removal appeal.
Pursuant to 38 U.S.C. § 714(c)(4), an appellant must appeal a removal
action to the Board “not later than 10 business days after the date of” the
agency’s action. There are, however, different procedures and filing deadlines
for mixed cases, i.e., cases involving an action that is appealable to the Board that
the appellant alleges was effected, in whole or in part, because of discrimination.
2
Contrary to the agency’s previous assertions, the FAD indicated that the appellant’s
formal EEO complaint was filed on March 11, 2020, not March 26, 2020. Compare id.
at 4, with IAF, Tab 5 at 6, 15.
4
Miranne v. Department of the Navy, 121 M.S.P.R. 235, ¶ 8 (2014) (defining
mixed cases). An appellant has two options when filing a mixed case: she may
initially file a mixed-case complaint with the agency, followed by an appeal to
the Board, or she may file a mixed-case appeal with the Board and raise her
discrimination claim in connection with her appeal. Id.; 29 C.F.R. § 1614.302(b),
(d). An employee may file either a mixed-case complaint or a mixed-case appeal,
but not both, and whichever is filed first is deemed to be the employee’s election
to proceed in that forum. Miranne, 121 M.S.P.R. 235, ¶ 8; 29 C.F.R.
§ 1614.302(b).
Here, the appellant initially elected to file a mixed-case complaint with the
agency challenging her removal. 3 The Board has held that, when an agency
action is taken pursuant to 38 U.S.C. § 714, and the appellant files a mixed-case
Board appeal after filing a formal discrimination complaint with the agency, the
appeal is governed by the procedures set forth in 5 U.S.C. § 7702 and the Board’s
implementing regulations. Wilson v. Department of Veterans Affairs , 2022 MSPB
7, ¶ 25. Therefore, the appellant was entitled to file a Board appeal within
30 days of the agency’s October 9, 2020 FAD. PFR File, Tab 9 at 15; see
Miranne, 121 M.S.P.R. 235, ¶ 9; 5 C.F.R. § 1201.154(b)(1); 29 C.F.R.
§ 1614.302(d)(1)(ii). The record reflects that she did so. PFR File, Tab 9 at 16;
IAF, Tab 1. The fact that the appellant first appealed the non-mixed portion of
her complaint to the EEOC did not divest the Board of jurisdiction over the
mixed-case portion; indeed, as properly set forth in the FAD, the appellant’s
claims pertaining to her removal were not appealable to the EEOC. PFR File,
Tab 9 at 15; see 29 C.F.R. § 1614.302(d)(3). Accordingly, we find that the
appellant timely filed her 38 U.S.C. § 714 removal appeal over which the Board
has jurisdiction.
3
Although the record is not developed on the issue, the agency has not disputed that the
appellant timely filed her EEO complaint. IAF, Tab 5 at 40.
5
On remand, the administrative judge should provide the parties with an
opportunity to present evidence and argument regarding whether the agency’s
error in sustaining the removal based on substantial evidence harmed the
appellant.
Remand of this appeal is also required for a different reason. The deciding
official here sustained the agency’s action because he found that there was
substantial evidence to support the charge levied against the appellant. IAF,
Tab 5 at 37. After the initial decision in this appeal was issued, the U.S. Court of
Appeals for the Federal Circuit (Federal Circuit) found in Rodriguez v.
Department of Veterans Affairs, 8 F.4th 1290, 1296-1301 (Fed. Cir. 2021), that
the agency had erred by applying the substantial evidence standard to its internal
review of a disciplinary action under 38 U.S.C. § 714. The Federal Circuit found
that substantial evidence is the standard of review to be applied by the Board, not
the agency, and that the agency’s deciding official must apply the preponderance
of evidence standard in determining whether the appellant’s performance or
misconduct warrants the action at issue. Id. at 1298-1301; see Bryant v.
Department of Veterans Affairs, 26 F.4th 1344, 1347 (Fed. Cir. 2022) (agreeing
with the appellant’s contention that the agency’s decision was legally flawed
when the deciding official found the charge proved merely by substantial
evidence rather than preponderant evidence, as required by Rodriguez).
The Federal Circuit’s decision in Rodriguez applies to all pending cases,
regardless of when the events took place. Semenov v. Department of Veterans
Affairs, 2023 MSPB 16, ¶ 22. The administrative judge and the parties here did
not have the benefit of Rodriguez prior to the close of record. We therefore
instruct the administrative judge to consider, on remand, whether the agency’s
application of the substantial evidence standard was harmful error. See id., ¶ 23
(finding it appropriate to apply the harmful error standard from 5 U.S.C.
§ 7701(c)(2) to actions taken under 38 U.S.C. § 714).
6
On remand, the administrative judge should review the reasonableness of the
penalty imposed by the agency.
In Connor v. Department of Veterans Affairs, 8 F.4th 1319, 1325-26 (Fed.
Cir. 2021), which was also issued subsequent to the initial decision, the Federal
Circuit determined that the Board must consider and apply the factors set forth in
Douglas v. Veterans Administration, 5 M.S.P.R. 280, 305-06 (1981), in its review
of an agency’s penalty selection under an action taken pursuant to 38 U.S.C.
§ 714. However, the Douglas factors are not relevant to the penalty analysis
when, as here, it is a removal for inability to perform due to the nondisciplinary
nature of the action. Brown v. Department of the Interior, 121 M.S.P.R. 205, ¶ 18
(2014), overruled on other grounds by Haas v. Department of Homeland Security ,
2022 MSPB 36. Nevertheless, the Federal Circuit has been clear that the Board
must review the agency’s penalty and determine whether it is within the bounds
of reasonableness. See Harrington v. Department of Veterans Affairs, 981 F.3d
1356, 1358 (Fed. Cir. 2020) (“Our opinion in Sayers controls and mandates that
review of the penalty must be included in the Board’s review of [an] adverse
action.”); Sayers v. Department of Veterans Affairs, 954 F.3d 1370, 1375 (Fed.
Cir. 2020).
The Board has held that new precedential Federal Circuit decisions apply to
all pending cases, regardless of when the events at issue took place. See Lee v.
Department of Veterans Affairs, 2022 MSPB 11, ¶ 16. Therefore, on remand, the
administrative judge shall still consider the reasonableness of the agency’s chosen
penalty, and, if he finds that “the chosen penalty is unreasonable, the Board must
remand to the [agency] for a redetermination of the penalty.” Connor, 8 F.4th
at 1326-27.
ORDER
For the reasons discussed above, we remand this case to the regional office
for further adjudication in accordance with this Remand Order. As outlined
above, the administrative judge shall adjudicate the merits of the appeal. The
7
administrative judge shall also address whether the agency’s error in applying the
substantial evidence burden of proof to its action was harmful. If the
administrative judge determines that the agency’s error in applying the incorrect
burden of proof was not harmful, then he shall determine whether the agency
proved by substantial evidence that the penalty was reasonable. 4 The
administrative judge should also adjudicate the appellant’s claims of
discrimination or retaliation in line with the framework set forth in Pridgen v.
Office of Management and Budget, 2022 MSPB 31.
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.
4
If the administrative judge finds that the agency committed harmful error such that the
disciplinary action is not sustained, he need not address the penalty issue.