Opinion

Angela Johnson-Patton v. Department of Defense

Court: Merit Systems Protection Board
Filed: Jun 5, 2026
Status: Unpublished
Cited by: 0 cases
Authority: More cited than 40.9%

explaining that the entitlement to interim relief under 5 U.S.C. § 7701(b)(2) does not prevent an agency from imposing additional terms or conditions on the employment, such as a change of station or change in duties

How later courts described this case

explaining that the entitlement to interim relief under 5 U.S.C. § 7701(b)(2) does not prevent an agency from imposing additional terms or conditions on the employment, such as a change of station or change in duties
stating that “proof that the defendant’s explanation is unworthy of credence is simply one form of 25 circumstantial evidence that is probative of intentional discrimination, and it might be quite persuasive”

Written by the judges who cited it.

The opinion

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

ANGELA JEANETTE JOHNSON- DOCKET NUMBER

PATTON, CH-0432-22-0118-I-3

Appellant,

DATE: June 5, 2026

DEPARTMENT OF DEFENSE,

Agency.

THIS FINAL ORDER IS NONPRECEDENTIAL 1

Carla Aikens , Esquire, Detroit, Michigan, for the appellant.

Bruce T. McCarty , Esquire, New Cumberland, Pennsylvania,

for the agency.

BEFORE

Henry J. Kerner, Vice Chairman

James J. Woodruff II, Member

FINAL ORDER

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

reversed the appellant’s removal for unacceptable performance under 5 U.S.C.

chapter 43 and found that the appellant proved her affirmative defense of reprisal

for her prior equal employment opportunity (EEO) activity. Generally, we grant

A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

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 administrative judge’s findings regarding the

appellant’s EEO reprisal affirmative defense, we AFFIRM the initial decision.

BACKGROUND

The appellant served as a GS-9 General Supply Specialist with the agency’s

Defense Logistics Agency. Johnson-Patton v. Department of Defense, MSPB

Docket No. CH-0432-22-0118-I-1, Initial Appeal File (IAF), Tab 18 at 55. On

November 9, 2015, the agency issued the appellant a performance plan that set

forth the three following performance rating tiers: “Fully Successful,”

“Minimally Successful,” and “Unacceptable,” and identified the three critical job

elements of her position. Johnson-Patton v. Department of Defense, MSPB

Docket No. CH-0432-22-0118-I-3, Appeal File (I-3 AF), Tab 17 at 32-34. On

March 1, 2016, the appellant was issued a summary performance rating of

“Minimally Acceptable” 2 for the rating period covering March 2015 through

January 2016. IAF, Tab 18 at 43. On January 25, 2017, the appellant was once

The administrative judge concluded, and the parties do not contest, that the agency

used the terms “Minimally Acceptable” and “Minimally Successful” interchangeably.

I-3 AF, Tab 70, Initial Decision (ID) at 3 n.3.

again issued a summary performance rating of “Minimally Acceptable” by her

first-line supervisor for the rating period from January 2016 through

January 2017. Id. at 45. On January 27, 2017, she contested the rating with her

supervisor and informed her that she intended to file an EEO complaint, and by

letter dated February 27, 2017, the agency’s EEO office accepted the appellant’s

request to amend her existing EEO complaint to include a challenge to her

Minimally Acceptable performance rating. IAF, Tab 1 at 121-25, Tab 18

at 44-46.

On March 13, 2017, the appellant’s first-line supervisor issued the

appellant a memorandum informing her that her performance was Unacceptable in

the first two critical elements of her position and that she would be placed on a

90-day performance improvement plan (PIP) to provide her with the opportunity

to bring her performance up to the Minimally Acceptable performance level.

IAF, Tab 18 at 47-49. The appellant subsequently amended her existing EEO

complaint to include her receipt of the March 13, 2017 PIP notice. IAF, Tab 1

at 126. After extending the PIP by two weeks, I-3 AF, Tab 17 at 36, the

supervisor, by letter dated June 27, 2017, notified the appellant that she had failed

the PIP and proposed her removal from Federal service based on her

Unacceptable performance in the two critical elements, IAF, Tab 25 at 4-6. The

appellant provided a written reply to the removal proposal with supporting

documentation. I-3 AF, Tab 17 at 38-52. The deciding official issued a decision

sustaining the removal, effective August 10, 2017. IAF, Tab 18 at 55; I-3 AF,

Tab 25 at 7-10.

On September 9, 2021, an Equal Employment Opportunity Commission

(EEOC) administrative judge issued a bench decision concluding, among other

things, that the appellant’s January 2017 Minimally Acceptable performance

rating and March 13, 2017 PIP notice were issued in reprisal for the appellant’s

EEO activity. IAF, Tab 32 at 288-89, 366-75, Tab 33 at 13-20. In advance of

that decision, the EEOC administrative judge made a finding that the appellant

had timely challenged her removal for unacceptable performance through the

EEO complaint process within 45 days of the August 10, 2017 removal decision.

IAF, Tab 32 at 696-98. Based on his conclusion that the appellant had timely

raised her August 10, 2017 removal as one of the issues to be decided in her EEO

complaint, the EEOC administrative judge directed the agency to issue a final

agency decision (FAD) on the issue and to provide the appellant with Board

appeal rights. Id. at 695; I-3 AF, Tab 49 at 5. On January 11, 2022, the agency

issued a final order that rejected the EEOC administrative judge’s finding of

discrimination in the September 9, 2021 bench decision. IAF, Tab 33 at 10-12;

Johnson-Patton v. Department of Defense, MSPB Docket No. CH-0432-22-0118-

I-2, Appeal File (I-2 AF), Tab 5 at 7. On February 11, 2022, the appellant

appealed that decision to the EEOC’s Office of Federal Operations (OFO). IAF,

Tab 33 at 4-7. On June 13, 2023, the OFO issued a decision reversing the

agency’s final order and affirming the EEOC administrative judge’s findings. I -2

AF, Tab 5 at 7-24. As relevant here, the OFO concluded that the EEOC

administrative judge had correctly determined that the appellant timely

challenged her performance-based removal through the EEO complaint process,

and so that matter was properly before the agency for separate consideration and

for issuance of a FAD and for mixed-case processing. Id. at 12-14, 19.

While adjudication of the non-mixed portion of the appellant’s EEO

complaint continued, on December 7, 2021, the agency issued a FAD on the

appellant’s mixed-case complaint challenging her removal, finding that it was not

the product of discrimination or reprisal. IAF, Tab 1 at 104-19. The decision

provided the appellant with notice of her right to file a Board appeal of the

decision on her mixed-case complaint. Id. at 117-19. On December 29, 2021, the

appellant filed the instant Board appeal challenging her removal and requested a

hearing on her appeal. Id. at 1-11. She also raised the following affirmative

defenses: disability discrimination based on failure to accommodate and

disparate treatment theories; race discrimination; sex discrimination; religious

discrimination; and reprisal for prior EEO activity. IAF, Tab 13 at 4-7; I-3 AF,

Tab 55 at 1-2. After twice dismissing the appeal without prejudice pending

resolution of the timeliness issue by the EEOC, IAF, Tabs 37-38; I-2 AF, Tab 7,

the appeal was automatically refiled following the OFO’s denial of the agency’s

request for reconsideration, I-2 AF, Tab 5 at 12-14, 27-33; I-3 AF, Tab 1; see

Betsy W. v. Department of Defense, EEOC Appeal No. 2022001325, 2023 WL

9190463 (Dec. 19, 2023).

After holding the appellant’s requested hearing, I-3 AF, Tabs 67-68, the

administrative judge issued an initial decision reversing the agency’s

performance-based removal action under chapter 43. I-3 AF, Tab 70, Initial

Decision (ID) at 1, 19; Tab 71. First, the administrative judge found that the

agency failed to establish by substantial evidence that the appellant’s

performance was unacceptable prior to her placement on the PIP, and so the

agency failed to meet its burden of proof for the performance-based removal

action. ID at 5-14; see Santos v. National Aeronautics and Space Administration ,

990 F.3d 1355, 1360-61 (Fed. Cir. 2021) (finding, for the first time, that to

support an adverse action under chapter 43, an agency “must justify institution of

a PIP” by showing that the employee’s performance was unacceptable before the

PIP); Lee v. Department of Veterans Affairs, 2022 MSPB 11, ¶ 16 (clarifying that

Santos applies to all cases pending before the Board, regardless of when the

events at issue took place).

Second, the administrative judge found that the appellant established her

affirmative defense of reprisal for her prior EEO activity. ID at 14-19. In

making this determination, the administrative judge credited the findings of the

EEOC administrative judge and the OFO concluding that the appellant’s first-line

supervisor’s March 13, 2017 letter placing the appellant on the PIP was reprisal

for her prior EEO activity. ID at 15-16. Based on this finding, the administrative

judge concluded that the appellant’s removal under chapter 43 also constituted

reprisal for her prior EEO activity. ID at 16. Finally, the administrative judge

determined that the appellant failed to establish her affirmative defenses of

discrimination based on her disability, race, color, sex, and religion. ID at 17-19.

Based on his conclusions that the agency failed to meet its burden of proving that

the appellant’s pre-PIP performance was unacceptable and that the appellant

proved her affirmative defense of reprisal for her prior EEO activity, the

administrative judge reversed the agency removal action. ID at 19.

The agency has filed a petition for review of the initial decision and

certified its compliance with the administrative judge’s interim relief order.

Petition for Review (PFR) File, Tab 1 at 4-27, 29-31. The appellant has filed a

response in opposition to the petition for review, arguing that the agency has not

complied with the administrative judge’s interim relief order, that the petition for

review is untimely by 1 day and should be dismissed, and that the administrative

judge did not err in reversing the removal action. PFR File, Tab 3. The agency

has filed a reply. PFR File, Tab 4.

DISCUSSION OF ARGUMENTS ON REVIEW

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

erred by reversing the removal action. PFR File, Tab 1. Regarding the

administrative judge’s finding that the agency failed to prove that the appellant’s

pre-PIP performance was unacceptable, the agency argues that the administrative

judge made the following errors: (1) he ignored Board caselaw stating that a

supervisor’s testimony about pre-PIP performance, standing alone, is sufficient to

establish unacceptable performance; (2) he overlooked contemporaneous

documentary evidence and testimony showing that the appellant’s pre-PIP

performance was unacceptable; (3) he overlooked evidence demonstrating that the

appellant’s first-line supervisor properly distinguished between performance at

the Unacceptable and Minimally Acceptable levels; and (4) he improperly relied

on immaterial evidence from individuals uninvolved in evaluating the appellant’s

pre-PIP performance in determining that the agency failed to establish that her

pre-PIP performance was unacceptable. Id. at 8-21.

Regarding the administrative judge’s finding that the appellant proved her

affirmative defense of reprisal for her prior EEO activity, the agency argues that

the administrative judge improperly disregarded precedent from the Board and the

U.S. Court of Appeals for the Federal Circuit in considering, sua sponte, whether

the EEOC’s finding that the appellant’s placement on the PIP was reprisal for her

prior EEO activity had preclusive effect in the instant Board appeal. Id. at 21-25.

The agency argues that the administrative judge’s decision to raise the issue sua

sponte constituted harmful error and that, consequently, his finding that the

appellant proved her affirmative defense of reprisal for her prior EEO activity

should be reversed. Id. at 25.

The agency has complied with the administrative judge’s interim relief order.

With its petition for review, the agency has provided a certificate of

compliance as well as a Standard Form (SF) 50 reinstating the appellant to an

interim position as a GS-9 Management and Program Analyst. PFR File, Tab 1

at 29-30. In the certification of compliance, the agency states that the appellant’s

previous position as a GS-9 General Supply Specialist no longer exists so she was

placed into an equivalent position as a GS-9 Management and Program Analyst.

Id. at 29. The certification further states that the agency has determined that the

appellant’s return to the work environment during the pendency of the appeal

would be unduly disruptive but that she would nevertheless continue to receive

the pay, compensation, and all other benefits of her interim position during the

interim relief period. Id.

In reversing the removal action, the administrative judge ordered the

agency to provide interim relief and to certify that it had done so with its petition

for review. ID at 20-21. When an administrative judge orders interim relief

under 5 U.S.C. § 7701(b)(2)(A), an agency, in its petition for review, must certify

that it has complied with the interim relief order either by providing the required

interim relief or showing that it determined that the appellant’s return to, or

presence in, the workplace would be unduly disruptive. Johnson v. Department

of Veterans Affairs, 2023 MSPB 9, ¶ 6; 5 C.F.R. § 1201.116(a). The Board has

held that an interim relief order generally requires that an appellant be returned to

the position from which she was separated, effective as of the date of the initial

decision, unless the agency determines that this action would unduly disrupt the

work environment. Chavies v. Department of the Navy, 104 M.S.P.R. 81, ¶ 4 n.1

(2006); see Shay v. Department of Defense, 67 M.S.P.R. 366, 369 (1995) (finding

that the agency was required to make an undue disruption determination even

though its decision to place the appellant in a position other than her former

position pursuant to an interim relief order was based on the fact that her former

position no longer existed). If the agency determines that the appellant’s return

to the workplace would be unduly disruptive, it must nevertheless provide the

appellant the pay, compensation, and all other benefits during the interim relief

period. 5 U.S.C. § 7701(b)(2)(B); Johnson, 2023 MSPB 9, ¶ 7. The Board’s

review of interim relief is limited to determining whether the agency actually

made an undue disruption determination and whether the employee has received

appropriate pay and benefits—it cannot review the merits of the agency’s undue

disruption determination. Johnson, 2023 MSPB 9, ¶ 7; see King v. Jerome,

42 F.3d 1371, 1375 (Fed. Cir. 1994).

Here, the agency has provided an SF-50 showing that it appointed the

appellant to a position equivalent to her prior position and has averred that it is

working with the Defense Finance and Accounting Service to ensure that the

appellant receives back pay and associated benefits from the date the initial

decision was issued. PFR File, Tab 1 at 29. The appellant has also

acknowledged that she is in the process of providing the information the agency

requested in order to receive back pay and benefits. PFR File, Tab 3 at 4.

Although the appellant asserts that she has not received information regarding the

position to which she will be reassigned, the SF-50 the agency included with its

interim relief certification identifies that information. PFR File, Tab 1 at 30. To

the extent the appellant is challenging the agency’s decision to reassign her to a

different position, her argument is without merit. See Shay, 67 M.S.P.R. at 369;

see also Nadolski v. Merit Systems Protection Board , 105 F.3d 642, 645 (Fed.

Cir. 1997) (explaining that the entitlement to interim relief under 5 U.S.C.

§ 7701(b)(2) does not prevent an agency from imposing additional terms or

conditions on the employment, such as a change of station or change in duties);

Costin v. Department of Health and Human Services , 72 M.S.P.R. 525, 533

(1996) (confirming that an agency may, as part of an undue disruption

determination, detail, assign, and transfer an employee to a different duty

location). Accordingly, we conclude that the agency has complied with the

administrative judge’s interim relief order.

The agency’s petition for review was timely filed.

The appellant also argues that the agency’s petition for review was

untimely by a day and should be rejected. PFR File, Tab 3 at 4. Contrary to the

appellant’s assertion, the agency’s petition for review was timely filed. The

initial decision set forth the deadline for filing a petition for review as

November 11, 2024. ID at 22; see 5 C.F.R. § 1201.114(e) (setting forth a 35-day

deadline for filing a petition for review). Because November 11, 2024, was a

Federal holiday, Veterans Day, the agency’s deadline to file a petition for review

was November 12, 2024. See 5 C.F.R. § 1201.23 (“If the date that ordinarily

would be the last day for filing falls on a Saturday, Sunday, or Federal holiday,

the filing period will include the first workday after that date.”). Accordingly,

the agency’s petition for review, which was electronically filed on November 12,

2024, is timely.

The administrative judge did not err in finding that the appellant proved her

affirmative defense of reprisal for her prior EEO activity.

In analyzing the appellant’s affirmative defenses of discrimination and

reprisal for her protected EEO activity, the administrative judge noted the EEOC

administrative judge’s findings that the appellant had established a prima facie

case of disparate treatment based on her prior EEO activity when she received a

Minimally Acceptable performance rating and was placed on the PIP, and that the

agency did not rebut the appellant’s prima facie case and so the appellant

established that her placement on the PIP was reprisal for her prior EEO activity.

ID at 15-16 (citing IAF, Tab 32 at 371-73). He further observed that those

findings were affirmed by the OFO. ID at 16; I-2 AF, Tab 5 at 7-24, 27-33; see

Betsy W. v. Department of Defense, EEOC Appeal No. 2022001325, 2023 WL

9190463 (Dec. 19, 2023). Based on these findings, the administrative judge

determined that he would credit the EEOC’s determination that the appellant’s

first-line supervisor placed her on the PIP in reprisal for her prior EEO activity,

citing to a Federal Circuit decision concluding that res judicata barred the

appellant from reraising allegations of Title VII discrimination and reprisal

previously adjudicated by the district court, as well as a Board decision finding

that the appellant was collaterally estopped from reraising a religious

discrimination claim previously resolved by the EEOC. ID at 16 (citing Kincade

v. Department of the Treasury, 226 F. App’x 991, 993 (Fed. Cir. 2007) 3 ; Dorsey

v. Department of the Air Force, 78 M.S.P.R. 439, 444 (1998)). Consequently, he

determined that the appellant established that her EEO activity was both a

motivating factor and a “but-for” cause of the agency’s decision to place the

appellant on the PIP on March 13, 2017. ID at 14-16 (citing Pridgen v. Office of

Management and Budget, 2022 MSPB 31, ¶¶ 21-33 (setting forth the legal

standard and analytical framework for claims of discrimination and reprisal under

Title VII)).

Kincade is a nonprecedential decision of the Federal Circuit. The Board may follow a

nonprecedential decision of the Federal Circuit when it finds its reasoning persuasive.

See Morris v. Department of the Navy, 123 M.S.P.R. 662, ¶ 13 n.9 (2016). However,

we are not citing Kincade for its precedential value and are instead citing it to

acknowledge the administrative judge’s findings below.

Next, the administrative judge determined that the agency would not have

removed the appellant under chapter 43 in the absence of her March 13, 2017

placement on the PIP, so he concluded that the appellant established that her

removal was also reprisal for her prior EEO activity. ID at 16. Given the

necessity of the PIP as a precursor for the performance-based removal action, the

administrative judge determined that the appellant also established that her prior

EEO activity was both a motivating factor and a “but-for” cause of the removal

decision. ID at 16; see Pridgen, 2022 MSPB 31, ¶¶ 19-24 (distinguishing

between the “motivating factor” and “but-for” causation standards and setting

forth the ways in which an appellant can establish each standard).

On review, the agency argues that the administrative judge improperly

disregarded precedent from the Board and the Federal Circuit in adjudicating this

claim. PFR File, Tab 1 at 21-25. Specifically, the agency argues that in deferring

to the EEOC administrative judge’s finding that the appellant’s placement on the

PIP was reprisal for her prior EEO activity, the Board administrative judge raised

the issue of the potential preclusive effect of the EEOC administrative judge’s

finding sua sponte, even though the appellant had not raised an affirmative

defense alleging that collateral estoppel or res judicata barred relitigation of the

EEO reprisal issue in her appeal. Id. at 22-25. The agency argues that the

administrative judge confirmed that the appellant had not raised an affirmative

defense of collateral estoppel during the hearing and that his ruling on the

agency’s motion to compel also indicated that the appellant had not preserved the

issue. Id. at 22, 24 (citing I-3 AF, Tab 67, Hearing Transcript (HT -1) at 12; I-3

AF, Tab 53 at 13). Consequently, the agency argues that the administrative

judge’s decision to raise the issue was contrary to existing Board and Federal

Circuit precedent and therefore constituted reversible error. PFR File, Tab 1

at 25.

The administrative judge properly applied preclusive effect to the

EEOC administrative judge’s prior finding that the appellant’s

March 13, 2017 placement on the PIP was reprisal for her prior

EEO activity.

The appellant preserved her argument that the administrative judge

should defer to the EEOC administrative judge’s prior finding that

her placement on the PIP was reprisal for her prior EEO activity.

Challenging the agency’s argument that she failed to preserve her claim

that the administrative judge should give preclusive effect to the EEOC

administrative judge’s prior finding of EEO reprisal, the appellant asserts that she

attached the transcripts from the EEOC proceeding as exhibits, her counsel

argued in favor of the preclusive effect of the prior decision during the hearing,

and she argued in her prehearing submission that the EEOC administrative

judge’s finding should be given preclusive effect. PFR File, Tab 3 at 6-7; I-3 AF,

Tab 19 at 14-15; IAF, Tab 32. She also notes that in her closing brief, she

specifically requested that the administrative judge incorporate the findings from

the EEOC administrative judge, including his finding that the appellant’s

placement on the PIP was reprisal for her prior EEO activity. PFR File, Tab 3

at 7; I-3 AF, Tab 66 at 4, 13.

In its reply, the agency argues that the fact that the appellant included the

transcript from the prior EEOC proceeding with her exhibits and referenced the

findings of the EEOC administrative judge in her prehearing submissions did not

evidence that she was attempting to argue for the preclusive effect of those

findings. PFR File, Tab 4 at 14-15. The agency further notes that the terms

“collateral estoppel” and “res judicata” do not appear anywhere in her pleadings,

also evidencing that the appellant failed to properly raise the potential affirmative

defense. Id. at 15-16.

We agree with the appellant that the record establishes that she properly

preserved her argument that the EEOC administrative judge’s findings should be

given preclusive effect in her Board appeal, and that the administrative judge

acknowledged this argument and properly considered it. As the appellant

correctly notes, in the section of her prehearing submission addressing the

parties’ agreed-upon material facts, the appellant noted that there were no

agreed-upon facts but observed that there were some determinations that had

already been made by the EEOC administrative judge, including that the appellant

had been subjected to retaliation based on her prior EEO activity. I-3 AF, Tab 19

at 15. Additionally, in her response to the administrative judge’s affirmative

defense order, the appellant identified that “many of these issues,” to include her

claim of retaliation for her prior EEO activity, “were already adjudicated” by the

EEOC administrative judge. IAF, Tab 13 at 4-6.

Further, during the hearing, the administrative judge repeatedly referred

back to and acknowledged this argument from the appellant’s prehearing

submission and indicated that he intended to agree with the appellant that the

EEOC administrative judge’s finding of reprisal for the appellant’s prior EEO

activity should be given preclusive effect. HT-1 at 13 (overruling the appellant’s

objection to any questioning of a witness concerning the contents of the PIP,

stating “in terms of what I -- I know that I’m going to be deferring to from the

last case [before the EEOC administrative judge], there’s three items that you

articulated that I anticipate doing so. Before -- it was in your prehearing

submissions before the list of proposed witnesses”), 14 (finding, as follows, in

response to the appellant’s argument in favor of giving preclusive effect beyond

the three issues mentioned in the appellant’s prehearing submission: “Okay. I’m

not sure you can take it up at this point, because I did invite you to articulate the

things that should have res judicata and collateral estoppel, and it’s -- it’s kind of

difficult to go through a hearing if -- if I keep hearing what the judge said beyond

the three things that I’m sure he said”); I-3 AF, Tab 68, Hearing Transcript

(HT-2) at 110-11 (acknowledging, in response to the appellant’s objection to a

line of questioning that concerned issues addressed in the EEOC appeal “[t]here

are at least three findings that I am going to be deferring to from EEOC that were

stated in Appellant’s pre-hearing submissions and that I will not be repeating

here”), 112 (responding to the agency’s follow-up question about whether the

administrative judge also intended to defer to the credibility findings of the

EEOC administrative judge, stating “If you will recall, during our pre-hearing

conference I did state that if -- if Appellant had any findings of [the EEOC

administrative judge] that they wanted me to defer to, that they could make a --

that Appellant can make a submission on this. I don’t have that to decide. But

that does not open the door to just any question about anything that happened in

that EEO case”). As the appellant correctly notes, she subsequently argued that

the administrative judge should adopt the EEOC administrative judge’s finding

that the appellant’s placement on the PIP was reprisal for her prior EEO activity,

and the administrative judge made such a finding in the initial decision. I-3 AF,

Tab 66 at 4-6, 13; ID at 15-16.

Regarding the language the agency quoted from the administrative judge’s

ruling on the agency’s motion to compel, in the order, the administrative judge

noted that he would not simply assume that the appellant was raising a claim of

discrimination in her Board appeal on the same bases as those she had alleged in

her prior case before the EEOC, noting that the bases she identified in her

prehearing submission differed from those that she identified in her response to

the administrative judge’s affirmative defenses order. PFR File, Tab 1 at 24; I-3

AF, Tab 53 at 13. As a result, the administrative judge ordered the appellant to

“clarify the precise EEO profiles” she was alleging that served as the bases for

her discrimination and reprisal claims, including the bases for her prior EEO

activity. I-3 AF, Tab 53 at 13. In doing so, however, the administrative judge

did not limit the appellant’s ability to argue in favor of the preclusive effect of

the prior decision, and in fact provided the appellant with the opportunity to

“clearly identify the prior EEO activity” that served as the basis for her EEO

reprisal claim if she planned to make such an argument. Id. Following this

ruling, as previously discussed, the administrative judge stated his intention to

adopt the prior findings by the EEOC administrative judge, and the appellant

reiterated her argument in favor of such a finding in her closing argument brief,

lending further credence to the fact that the parties clearly understood the nature

of the appellant’s request that the Board administrative judge give preclusive

effect to the EEOC administrative judge’s findings on this issue. I-3 AF, Tab 66

at 4, 13; HT-1 at 12-14; HT-2 at 110-12.

Finally, regarding the language from the administrative judge stating that

he “didn’t see an articulation of the [rulings of the EEOC] that Appellant would

believe have collateral estoppel effect” that the agency quotes from the hearing,

the administrative judge was responding to an objection about whether weekly

PIP reports were included in the record in the EEOC appeal, and in the rest of

that quotation, the administrative judge justified allowing the reports by

observing that the appeal before him was an appeal under chapter 43 as

distinguished from the non-chapter 43 matters at issue in the prior EEOC action.

PFR File, Tab 1 at 22; HT-1 at 10-12. In his subsequent ruling overruling the

appellant’s objection, the administrative judge once again referred to the “three

items [the appellant] articulated” from the EEOC appeal that he anticipated he

would be deferring to, which included the potential preclusive effect of the EEOC

administrative judge’s finding of reprisal for the appellant’s prior EEO activity.

HT-1 at 12-13. Thus, when placed in the proper context, this also supports the

appellant’s argument that she had properly raised the EEO reprisal issue during

the course of the proceedings and the administrative judge had considered it.

Accordingly, we agree that the appellant properly raised the potential preclusive

effect of the prior EEOC decision on the appellant’s EEO reprisal claim below

and that the administrative judge properly addressed it.

Alternatively, the administrative judge did not err by granting

preclusive effect to the EEOC administrative judge’s prior decision,

sua sponte.

The agency cites several cases in support of its argument that the

administrative judge erred by raising an affirmative defense of collateral estoppel

or res judicata sua sponte. PFR File, Tab 1 at 23-24. One of the cases cited,

Ahuruonye v. Department of the Interior, MSPB Docket No. DC-0432-15-0649-

I-2, Final Order, ¶ 9 (Dec. 7, 2016), is nonprecedential and of no precedential

value, and another, Rusin v. Department of the Treasury, 92 M.S.P.R. 298, 314

(2002), is the separate opinion of Member Slavet, and therefore is of limited

precedential value. PFR File, Tab 1 at 23 nn.77-78; see 5 C.F.R.

§ 1201.117(c)(2) (noting that absent limited circumstances not applicable here,

the Board’s nonprecedential orders are not binding on the Board or its

administrative judges and that such orders have no precedential value). Another

of the decisions, Sabersky v. Department of Justice, 61 F. App’x 676 (Fed. Cir.

2003), is an unpublished decision of the Federal Circuit, and therefore is also not

binding precedent. See Weed v. Social Security Administration, 110 M.S.P.R.

468, ¶ 11 (2009) (acknowledging that the nonprecedential decisions of the

Federal Circuit are not binding precedent); Omites v. U.S. Postal Service,

87 M.S.P.R. 223, ¶ 13 (2000) (concluding that the Federal Circuit’s unpublished

opinions have no precedential value to the Board).

With respect to the other cases the agency cites on review, even assuming

that the agency is correct that collateral estoppel is an affirmative defense that

must be timely raised and that the appellant failed to do so here, for the following

reasons, we still conclude that the administrative judge properly raised the issue

sua sponte. PFR File, Tab 1 at 23-24 & nn.77-79 (citing Arizona v. California,

530 U.S. 392, 412-13 (2000); Stearn v. Department of the Navy, 280 F.3d 1376,

1380-81 (Fed. Cir. 2002); Killeen v. Office of Personnel Management,

106 M.S.P.R. 666, ¶ 9 (2007), vacated and remanded on other grounds, 558 F.3d

1318 (Fed. Cir. 2009)). First, we must distinguish between the different

preclusion doctrines. Collateral estoppel, or issue preclusion, is appropriate

when: (1) the issue is identical to that involved in the prior action; (2) the issue

was actually litigated in the prior action; (3) the determination of the issue in the

prior action was necessary to the resulting judgment; and (4) the party against

whom issue preclusion is sought had a full and fair opportunity to litigate the

issue in the prior action, either as a party to the earlier action or as one whose

interests were otherwise fully represented in that action. Hau v. Department of

Homeland Security, 123 M.S.P.R. 620, ¶ 13 (2016), aff’d sub nom. Bryant v.

Merit Systems Protection Board, 878 F.3d 1320 (Fed. Cir. 2017). Under the

doctrine of res judicata, by contrast, a valid final judgment on the merits of an

action bars a second action involving the same parties based on the same cause of

action. Zgonc v. Department of Defense, 103 M.S.P.R. 666, ¶ 7 (2006), aff’d,

230 F. App’x 967 (Fed. Cir. 2007). Res judicata, or claim preclusion, prevents

relitigating claims that were, or could have been, raised in the prior action, and it

applies when the following criteria are met: (1) the prior decision was rendered

by a forum with competent jurisdiction; (2) the prior decision was a final decision

on the merits; and (3) the same cause of action and the same parties were

involved in both cases. Id.

Although the administrative judge cited to decisions identifying both

preclusion doctrines, we conclude that collateral estoppel is the proper basis for

preclusion in the instant case. At issue in the prior EEOC appeal was the

question of whether the appellant’s March 13, 2017 placement on the PIP was

reprisal for her prior EEO activity. IAF, Tab 32 at 307-08; I-2 AF, Tab 5 at 8-9.

The instant Board appeal concerns the appellant’s removal under chapter 43, and

as a part of deciding the removal action, one of the issues to be resolved—

whether the appellant’s March 13, 2017 placement on the PIP was reprisal for her

prior EEO activity—is identical to that decided in the EEOC appeal; the issue was

actually litigated in the EEOC appeal; the determination of that issue was

necessary to the resulting judgement in that case; and the party against whom

preclusion is sought (the agency) had a full and fair opportunity to litigate the

issue in the prior action, having been fully represented by competent legal

counsel. IAF, Tab 1 at 7; ID at 2; see Hau, 123 M.S.P.R. 620, ¶ 13.

Accordingly, all of the elements for the application of collateral estoppel have

been met here, and we modify the initial decision to clarify that as the basis for

applying preclusive effect based on the prior decision of the EEOC administrative

judge. ID at 16.

Additionally, the agency identifies the framework, set forth in Arizona,

530 U.S. at 412-13, that limits sua sponte consideration of res judicata. PFR File,

Tab 1 at 23-24. Even assuming that the framework applies with equal force to the

consideration of collateral estoppel, we conclude, despite the agency’s argument

to the contrary, that the “special circumstances” identified in that case have been

met here. Id. As the agency notes, in Arizona, the Supreme Court set forth the

general proposition that tribunals should not ordinarily base their decisions on res

judicata if the parties have not raised that issue, but the court nevertheless

observed that a sua sponte finding of res judicata “might be appropriate in special

circumstances.” Arizona, 530 U.S. at 412. Elaborating on those “special

circumstances,” the court explained that “if a court is on notice that it has

previously decided the issue presented, the court may dismiss the action sua

sponte, even though the defense has not been raised,” and noted that “[w]here no

judicial resources have been spent on the resolution of a question, trial courts

must be cautious about raising a preclusion bar sua sponte . . . .” Id. at 412-13.

Evaluating this language from the Supreme Court, the Federal Circuit in Stearn,

280 F.3d at 1379-81, determined that the Board had erred when the administrative

judge found, sua sponte, that any challenge to the validity of a regulatory

provision was precluded by res judicata since the challenging party had not raised

the issue in the prior appeal despite the availability of such argument. Important

to the Federal Circuit’s determination was the fact that the Board had not actually

ruled on this issue (the validity of the regulatory provision) in the previous

litigation, and so the “special circumstances” set forth in Arizona were not

applicable. Id. at 1381. Similarly, in Sabersky, 61 F. App’x at 677-79, 4 the court

rejected the Board’s finding that special circumstances justified the Board’s

decision to, sua sponte, reopen an appeal on its own motion and dismiss the

appeal as barred by res judicata, reasoning that the appellant in that case had the

opportunity to raise a whistleblower retaliation claim in the first appeal

challenging his removal but had failed to do so. As with Stearn, the court in

Sabersky emphasized the fact that the precise claim at issue in the second appeal

—whether the appellant met his jurisdictional burden regarding his argument that

his removal was retaliation for his whistleblowing disclosure—had not been

decided in the first appeal. Id. at 678-79.

Unlike in Stearn and Sabersky, in the instant case, the exact issue for which

the appellant sought and received preclusive effect—whether her March 13, 2017

placement on the PIP was reprisal for her prior EEO activity—was identical to the

issue decided by the EEOC administrative judge, and the Board administrative

judge had specific notice of that fact, having twice dismissed the Board appeal

without prejudice to permit adjudication of the EEOC appeal, and having been

alerted to the resolution of that prior appeal by the parties in the interim period. 5

IAF, Tab 32 at 366-75, Tab 33 at 4-7, Tabs 37-38; I-2 AF, Tabs 4-5, 7; see

Arizona, 530 U.S. at 412. Additionally, because the EEOC fully adjudicated a

resolution of this question, including by holding a hearing before an EEOC

administrative judge and by issuing decisions by the EEOC administrative judge

As previously noted, we cite to this unpublished decision of the Federal Circuit merely

to address the agency’s argument on review and not to ascribe any precedential value to

the court’s findings.

We also note that in both Stearn and Sabersky, the Federal Circuit reversed the

Board’s decision to raise the preclusion issue sua sponte at the Board level, despite the

administrative judge’s and the parties’ failure to do so below, whereas here, the

administrative judge, and not the Board, raised the issue sua sponte.

and the OFO, significant “judicial resources have been spent on the resolution of

[the] question,” thereby meeting the “special circumstances” criteria set forth by

the court in Arizona and justifying the administrative judge raising the preclusion

doctrine sua sponte. Arizona, 530 U.S. at 412-13. Accordingly, the

administrative judge’s finding is in accord with Board, Federal Circuit, and

Supreme Court precedent, and we conclude, in the alternative, that the

administrative judge did not err by giving preclusive effect, sua sponte, to the

EEOC administrative judge’s prior finding that the appellant’s placement on the

PIP was reprisal for her prior EEO activity.

We modify the administrative judge’s findings to clarify the

appropriate standard for an EEO reprisal claim, but we still agree

with the administrative judge that the appellant met her burden of

proving this affirmative defense.

Finally, we take this opportunity to clarify the administrative judge’s

finding that the appellant met her burden of proving her affirmative defense of

reprisal for her prior EEO activity. ID at 15-16. In the initial decision, the

administrative judge did not clarify the basis for the appellant’s prior EEO

activity that supported her EEO reprisal claim, and instead only generally

determined that the appellant proved that her placement on the PIP (and,

consequently, her removal) were “reprisal for her EEO activity.” ID at 16. In his

ruling on the agency’s motion to compel, the administrative judge informed the

appellant that if she was alleging discrimination or retaliation based on her prior

EEO activity, she needed to clearly identify the basis for the prior EEO activity.

IAF, Tab 53 at 13. The appellant’s corrected prehearing submission once again

identified her prior EEO complaint as alleging discrimination on the basis of

“reprisal,” without clarifying the nature of the EEO activity in her prior complaint

that later served as the basis for her EEO reprisal claim in her subsequent

mixed-case complaint. I-3 AF, Tab 54 at 4.

The remainder of the record also does not provide clear insight into the

basis underlying the appellant’s prior EEO activity. In discussing the appellant’s

claim of EEO reprisal in the OFO decision, the EEOC identified a specific agency

case number but did not identify the basis for this prior EEO activity, and a copy

of that prior EEO complaint is not contained in the record. I-2 AF, Tab 5 at 7

(noting that the appellant “filed an EEO complaint alleging that she was

discriminated on the bases of . . . reprisal for prior EEO activity, i.e., Agency

Case No. DLAB 14-0011. . . .”). The transcript from the proceedings before the

EEOC administrative judge also does not provide clarity concerning the basis of

the appellant’s prior EEO activity. IAF, Tab 32. The appellant discussed several

EEO complaints she filed during the relevant period, but in discussing the

complaint underlying her EEO reprisal claim (Agency Case No. DLAB 14-0011),

she identified that she filed that complaint against her former first-line supervisor

on or around September 2013, and that a hearing was held on the complaint in

January 2016. Id. at 558-59. However, there was no further elaboration on the

claims contained in this prior complaint.

Additionally, a copy of the appellant’s formal complaint (which became the

mixed-case complaint at issue in the instant Board appeal) identifies as one of her

claims an allegation of reprisal for prior EEO activity and again lists complaint

number DLAB 14-0011 as the prior EEO complaint. IAF, Tab 35 at 16, 21-22.

The narrative section of the formal complaint states that the appellant filed the

complaint against her former first-line supervisor and that agency management

officials generally were aware of her complaint but also does not provide

elaboration on the details of the prior complaint. Id. at 17, 22. Finally, the

agency FAD on the removal decision also references the appellant’s prior EEO

activity. IAF, Tab 1 at 105-17. The FAD notes the appellant’s claim that her

removal was, among other things, reprisal for her prior EEO activity in EEO case

number DLAB-14-0011. Id. at 105. The FAD further notes that the appellant

filed her prior EEO complaint on November 26, 2013, and that several

supervisory agency officials were aware of her prior EEO activity. Id. at 113-14

& n.24. However, it too does not identify the nature of this prior complaint.

As previously noted, relying on the Board’s decision in Pridgen, the

administrative judge determined that the appellant established that her EEO

activity was a motivating factor in the agency’s decision to place the appellant on

the PIP on March 13, 2017. ID at 14-16 (citing Pridgen, 2022 MSPB 31,

¶¶ 21-29, 32-33). He further concluded that the agency would not have removed

the appellant under chapter 43 in the absence of the PIP, and consequently, the

appellant proved that her prior EEO activity was also a “but-for” cause of the

removal action. ID at 15-16 (citing Pridgen, 2022 MSPB 31, ¶¶ 21-29, 32-33).

In Pridgen, the Board set forth the different standards applicable to an

affirmative defense of discrimination or reprisal. Pridgen, 2022 MSPB 31,

¶¶ 30-33. The Board clarified that claims of retaliation for opposing

discrimination in violation of Title VII are analyzed under the same framework

used for Title VII discrimination claims—that is, if prohibited discrimination or

retaliation played “any part” in the contested action (i.e., it was a “motivating

factor” in the challenged action), then the appellant is entitled to

“forward-looking” relief, but to obtain the full measure of relief available under

the antidiscrimination statutes, including status quo ante relief, the appellant must

show that discrimination or retaliation was a “but-for” cause of the adverse

action. Id., ¶¶ 21-22, 30.

However, although the “motivating factor” standard is applicable to claims

alleging retaliation for EEO activity pertaining to discrimination under Title VII,

EEO activity alleging disability discrimination is protected by the Americans with

Disabilities Act (ADA), as amended by the Americans with Disabilities Act

Amendments Act of 2008 (ADAAA) (as incorporated by reference into the

Rehabilitation Act), and, therefore, is subject to a different legal standard. See

id., ¶¶ 35, 37, 40 (recognizing that complaining of disability discrimination is an

activity protected by the ADAAA and explaining that the motivating factor

standard is therefore inapplicable to claims of retaliation related thereto).

Instead, the Board recognized in Pridgen that for an ADAAA retaliation claim,

the appellant must prove “but-for” causation in the first instance. Id., ¶ 43-47.

Thus, the nature of the appellant’s prior EEO activity is relevant for determining

the correct applicable standard of proof to apply to her EEO reprisal affirmative

defense.

Despite our inability to determine the exact nature of the appellant’s prior

EEO complaint that serves as the basis for her EEO reprisal claim, we

nevertheless agree with the administrative judge that the appellant established her

EEO reprisal affirmative defense based on the EEOC administrative judge’s prior

findings on this issue. As the Board administrative judge observed, the EEOC

administrative judge found that the appellant established a “prima facie case of

disparate treatment based on [her] prior EEO activity, when she was . . . placed

on [a] performance improvement plan.” ID at 15-16 (citing IAF, Tab 32 at 371).

The Board administrative judge further noted the EEOC administrative judge’s

determination that the agency failed to articulate a legitimate reason for its action

and so it failed to rebut the appellant’s prima facie case. ID at 16 (citing IAF,

Tab 32 at 373).

Exploring those findings more closely, in concluding that the appellant

proved her EEO reprisal claim, the EEOC administrative judge determined that

the appellant proved, by preponderant evidence, that she engaged in the prior

EEO activity; that agency officials knew of her prior activity; that she was

subsequently subjected to adverse employment actions (including her placement

on the PIP); and that a causal connection existed between her protected EEO

activity and the adverse employment actions. IAF, Tab 32 at 371. Having

determined that the appellant established her prima facie case of reprisal for her

prior EEO activity by preponderant evidence, the EEOC administrative judge

concluded that the burden shifted to the agency to articulate a “legitimate,

nondiscriminatory reason for its conduct,” but that based on the totality of the

circumstances, the agency’s stated reasons for placing the appellant on the PIP

were “unworthy of credence.” Id. at 372. In making this finding, the EEOC

administrative judge observed that the agency had presented “no credible

evidence showing similarly situated employees” whose work was scrutinized to

the same degree as the appellant’s. Id. at 373; see Pridgen, 2022 MSPB 31, ¶ 24

(identifying “comparator evidence” as one of the methods by which an appellant

may prove an affirmative defense of discrimination under Title VII). In

summarizing his findings, the EEOC administrative judge concluded that “based

on the totality of the evidence presented,” the appellant had shown “that she was

subjected to . . . retaliation based on her prior EEO activity,” and “[t]herefore, a

finding of retaliatory discrimination is hereby entered.” Id. at 374-75.

In Wilson v. Small Business Administration, 2024 MSPB 3, ¶¶ 15-17, the

Board clarified the Board’s findings in Pridgen by acknowledging that there are

multiple methods for proving an affirmative defense of discrimination or

retaliation, and that an appellant may use any relevant evidence to support her

claim, including under the burden-shifting framework from McDonnell Douglas

Corp. v. Green, 411 U.S. 792, 802-04 (1973) that was utilized by the EEOC

administrative judge here. See Pridgen, 2022 MSPB 31, ¶¶ 20-24, 42. The

EEOC administrative judge’s analysis tracks that of the McDonnell-Douglas

framework the Board validated in Pridgen and Wilson for establishing “but-for”

causation, including by finding that (1) the appellant established her prima facie

case of retaliation, IAF, Tab 32 at 370-72; see Wilson, 2024 MSPB 3, ¶ 16 (citing

Fox v. Department of the Army, 120 M.S.P.R. 529, ¶ 35 (2014)), and (2) the

agency failed to meet its burden of articulating a legitimate, nondiscriminatory

explanation for the action, IAF, Tab 32 at 372-73; see Wilson, 2024 MSPB 3, ¶ 17

(citing Ford v. Mabus, 629 F.3d 198, 201 (D.C. Cir. 2010)). In making the latter

finding, the EEOC administrative judge identified that the agency’s explanation

for its actions (including its placement of the appellant on the PIP) were

“unworthy of credence.” IAF, Tab 32 at 370, 372 (quoting Reeves v. Sanderson

Plumbing Products, Inc., 530 U.S. 133, 134 (2000) (stating that “proof that the

defendant’s explanation is unworthy of credence is simply one form of

circumstantial evidence that is probative of intentional discrimination, and it

might be quite persuasive”)); see Wilson, 2024 MSPB 3, ¶ 12 (describing the

burden-shifting standard under McDonnell-Douglas as including “evidence that

the agency’s stated reason for its action is ‘unworthy of belief, a mere pretext for

discrimination’”).

In sum, we agree with the administrative judge that the appellant proved

that reprisal for her prior EEO activity was a “but-for” cause of the agency’s

March 13, 2017 decision to place her on the PIP, based on the EEOC

administrative judge’s findings of the same. ID at 16. Further, we also agree

with the administrative judge that the agency would not have removed the

appellant under chapter 43 in the absence of the PIP, and so she also proved that

reprisal for her prior EEO activity was a “but-for” cause of her removal. Finally,

we modify the initial decision only to clarify that, because the appellant has

established that reprisal for her prior EEO activity was a but-for cause of the

agency’s removal action, she proved this affirmative defense irrespective of

whether her prior EEO activity involved claims of discrimination under Title VII,

claims of disability discrimination arising under the ADAAA, or some

combination of both.

Because the appellant proved her claim of reprisal for her prior EEO

activity, the removal action must be reversed. Because we agree with the

administrative judge’s finding that the agency action must be reversed based on

the fact that the appellant proved this affirmative defense, we need not address

his alternative finding that the agency failed to meet its burden of proving the

performance-based removal action under chapter 43. 5 C.F.R. § 1201.56(b)-(c);

see Hall v. Department of Transportation, 119 M.S.P.R. 180, ¶ 8 (2013) (noting

that an adverse action is sustainable only if the appellant cannot establish his

affirmative defenses), overruled on other grounds by Thurman v. U.S. Postal

Service, 2022 MSPB 21, ¶ 17 n.6.

ORDER

We ORDER the agency to cancel the appellant’s removal and to restore the

appellant effective August 10, 2017. See Kerr v. National Endowment for the

Arts, 726 F.2d 730 (Fed. Cir. 1984). The agency must complete this action no

later than 20 days after the date of this decision.

We also ORDER the agency to pay the appellant the correct amount of

back pay, interest on back pay, and other benefits under the Back Pay Act and/or

Postal Service regulations, as appropriate, no later than 60 calendar days after the

date of this decision. We ORDER the appellant to cooperate in good faith in the

agency’s efforts to calculate the amount of back pay, interest, and benefits due,

and to provide all necessary information the agency requests to help it carry out

the Board’s Order. If there is a dispute about the amount of back pay, interest

due, and/or other benefits, we ORDER the agency to pay the appellant the

undisputed amount no later than 60 calendar days after the date of this decision.

We further ORDER the agency to tell the appellant promptly in writing

when it believes it has fully carried out the Board’s Order and of the actions it has

taken to carry out the Board’s Order. The appellant, if not notified, should ask

the agency about its progress. See 5 C.F.R. § 1201.181(b).

No later than 30 days after the agency tells the appellant that it has fully

carried out the Board’s Order, the appellant may file a petition for enforcement

with the office that issued the initial decision on this appeal if the appellant

believes that the agency did not fully carry out the Board’s Order. The petition

should contain specific reasons why the appellant believes that the agency has not

fully carried out the Board’s Order, and should include the dates and results of

any communications with the agency. 5 C.F.R. § 1201.182(a).

For agencies whose payroll is administered by either the National Finance

Center of the Department of Agriculture (NFC) or the Defense Finance and

Accounting Service (DFAS), two lists of the information and documentation

necessary to process payments and adjustments resulting from a Board decision

are attached. The agency is ORDERED to timely provide DFAS or NFC with all

documentation necessary to process payments and adjustments resulting from the

Board’s decision in accordance with the attached lists so that payment can be

made within the 60-day period set forth above.

NOTICE TO THE APPELLANT REGARDING

YOUR RIGHT TO REQUEST

ATTORNEY FEES AND COSTS

You may be entitled to be paid by the agency for your reasonable attorney

fees and costs. To be paid, you must meet the requirements set forth at Title 5 of

the United States Code (5 U.S.C.), sections 7701(g), 1221(g), or 1214(g). The

regulations may be found at 5 C.F.R. §§ 1201.201, 1201.202, and 1201.203. If

you believe you meet these requirements, you must file a motion for attorney fees

and costs WITHIN 60 CALENDAR DAYS OF THE DATE OF THIS DECISION.

You must file your motion for attorney fees and costs with the office that issued

the initial decision on your appeal.

NOTICE TO THE APPELLANT

REGARDING YOUR RIGHT TO REQUEST

COMPENSATORY DAMAGES

You may be entitled to be paid by the agency for your compensatory

damages, including pecuniary losses, future pecuniary losses, and nonpecuniary

losses, such as emotional pain, suffering, inconvenience, mental anguish, and loss

of enjoyment of life. To be paid, you must meet the requirements set out at

42 U.S.C. § 1981a. The regulations may be found at 5 C.F.R.

§§ 1201.201, 1201.202, and 1201.204. If you believe you meet these

requirements, you must file a motion for compensatory damages

WITHIN 60 CALENDAR DAYS OF THE DATE OF THIS DECISION. You

must file your motion with the office that issued the initial decision on your

appeal.

NOTICE OF APPEAL RIGHTS 6

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. 7 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