The opinion
UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
JODI E. SILBERMAN, DOCKET NUMBER
Appellant, CH-0752-11-0710-B-1
v.
DEPARTMENT OF LABOR, DATE: August 18, 2014
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Rebecca L. Salawdeh, Esquire, Wauwatosa, Wisconsin, for the appellant.
Angela Faye Donaldson and Rolesia Butler Dancy, Atlanta, Georgia, for
the agency.
BEFORE
Susan Tsui Grundmann, Chairman
Anne M. Wagner, Vice Chairman
Mark A. Robbins, Member
FINAL ORDER
¶1 The appellant has filed a petition for review of the remand initial decision
(RID), which found that the agency proved by clear and convincing evidence that
it would have suspended her absent her whistleblowing activity, determined that
she did not prove her affirmative defense of reprisal for whistleblowing activity,
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
found a nexus between the sustained misconduct and the efficiency of the service,
and upheld the 25-day suspension based on a charge and five specifications of
unprofessional conduct. Generally, we grant petitions such as this one only
when: 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 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. See 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, and based on the following points and authorities, 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 RID, which is now the Board’s final decision. 5 C.F.R. § 1201.113(b).
DISCUSSION OF ARGUMENTS ON REVIEW
¶2 The agency suspended the appellant for 25 days based on a charge and five
specifications of unprofessional conduct; she filed a Board appeal; and the
administrative judge issued an initial decision that sustained the charge and five
specifications, found that the appellant did not prove any of her affirmative
defenses, and affirmed the 25-day suspension. Silberman v. Department of
Labor, MSPB Docket No. CH-0752-11-0710-I-1, Initial Decision (Nov. 17,
2011). After the appellant filed a petition for review, the Board issued a Remand
Order, which affirmed the administrative judge’s analysis of the charge and
affirmative defenses, with the exception of the appellant’s claim of reprisal for
whistleblowing activity. Silberman, MSPB Docket No. CH-0752-11-0710-I-1,
Remand Order (Apr. 19, 2013). With respect to this claim, the Board affirmed
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the administrative judge’s conclusion that the appellant made protected
disclosures and that the disclosures were a contributing factor to the agency’s
action. However, the Board disagreed with the administrative judge’s conclusion
that the agency demonstrated by clear and convincing evidence that it would have
taken the same action even in the absence of the appellant’s whistleblowing
activity. In particular, the Board noted that the administrative judge’s analysis
did not comport with the decision of the U.S. Court of Appeals for the Federal
Circuit in Whitmore v. Department of Labor, 680 F.3d 1353 (Fed. Cir. 2012),
which was issued after the administrative judge issued the initial decision in the
suspension appeal. Accordingly, the Board remanded this issue for further
adjudication, and it vacated the administrative judge’s nexus and penalty
determinations.
¶3 In the RID, the administrative judge evaluated the factors set forth in Carr
v. Social Security Administration, 185 F.3d 1318, 1323 (Fed. Cir. 1999), and
concluded that the agency’s evidence was strong, the record “fails to demonstrate
any motivat[ion] to retaliate by Director [S.] or any of the agency’s man[a]gers or
employees involved in the proposal and/or decisional processes in this case,” and
the agency provided documentation indicating that it disciplined non-
whistleblower employees for related misconduct. Silberman v. Department of
Labor, MSPB Docket No. CH-0752-11-0710-B-1, Remand File, Tab 7, RID at
5-23. Thus, the administrative judge found that the agency met its burden to
prove by clear and convincing evidence that it would have suspended the
appellant in the absence of her whistleblowing activity, and thus, the appellant
did not prove her affirmative defense of reprisal for whistleblowing. The
administrative judge also incorporated her prior nexus and penalty findings and
affirmed the 25-day suspension. RID at 23. The appellant has filed a petition for
4
review and the agency has filed a response. Remand Petition for Review (RPFR)
File, Tabs 3, 5. 2
¶4 The appellant’s petition for review challenges most of the administrative
judge’s findings. For instance, she contends that the administrative judge erred
when she, among other things: (1) determined that the appellant failed to produce
evidence that Director S. made misrepresentations to U.S. Senator Mark Kirk;
(2) discussed the proposing official’s failure to investigate the allegations against
the appellant; (3) failed to find that the deciding official erred when he did not
conduct an independent investigation of the appellant’s whistleblowing
allegations; (4) failed to address the appellant’s assertion and evidence that the
proposal notice was in retaliation for protected EEO activity; and (5) failed to
rule on alleged “new evidence.” She also asserts that the deciding official and the
administrative judge improperly analyzed the relevant factors under Douglas v.
Veterans Administration, 5 M.S.P.R. 280 (1981).
¶5 Most of the appellant’s arguments on review constitute mere disagreement
with the administrative judge’s findings and credibility determinations and do not
warrant full review of the record by the Board. Weaver v. Department of the
Navy, 2 M.S.P.R. 129, 133-34 (1980). Nevertheless, we have considered all of
the appellant’s assertions on review, but none warrant reversal of the RID.
The administrative judge properly determined that the agency proved by clear and
convincing evidence that it would have suspended the appellant in the absence of
her whistleblowing activity, and thus, the appellant did not prove her affirmative
defense of reprisal for whistleblowing activity.
¶6 In order to determine whether the agency proved by clear and convincing
evidence that it would have suspended the appellant even in the absence of her
whistleblowing activity, the Board will consider the following factors: the
strength of the agency’s evidence in support of its action; the existence and
2
For the purposes of our analysis, we regard the appellant’s October 17, 2013
submission as her petition for review. See RPFR File, Tab 3.
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strength of any motive to retaliate on the part of the agency officials who were
involved in the decision; and any evidence that the agency takes similar actions
against employees who are not whistleblowers but who are otherwise similarly
situated. Carr, 185 F.3d at 1323.
¶7 Regarding the strength of the agency’s evidence, the Board in its Remand
Order sustained the charge of unprofessional conduct, which included several
specifications describing inappropriate emails that the appellant sent to agency
employees, including an email to an agency attorney against whom the appellant
had litigation, in which she compared the attorney’s name to the name of a victim
of a mass shooting. We have also considered the administrative judge’s analysis
of the appellant’s assertion that the proposing and deciding officials failed to
properly investigate the allegations against her before the agency proposed her
removal and effected her suspension and that the deciding official failed to
investigate her whistleblowing allegations. See RID at 5-10. Importantly, the
administrative judge credited the testimony of the proposing and deciding
officials based in part on witness demeanor. See RID at 7, 9. The Board must
give deference to an administrative judge’s credibility determinations when they
are based, explicitly or implicitly, on the observation of the demeanor of
witnesses testifying at a hearing; the Board may overturn such determinations
only when it has “sufficiently sound” reasons for doing so. Haebe v. Department
of Justice, 288 F.3d 1288, 1301 (Fed. Cir. 2002) . The appellant has not
demonstrated such sufficiently sound reasons. For these reasons, we agree that
the agency’s evidence was strong.
¶8 Regarding the existence and strength of retaliatory motive, the RID reflects
the administrative judge’s conscientious consideration of the record evidence.
The administrative judge made additional demeanor-based credibility
determinations regarding the proposing and deciding officials, Director S., and
other agency employees, including employees outside of the appellant’s chain of
command who had “some involvement” in the proposal and decision letters. See
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RID at 11-21; see also Whitmore, 680 F.3d at 1371 (cautioning that “an agency
official’s merely being outside that whistleblower’s chain of command, not
directly involved in alleged retaliatory actions, and not personally named in the
whistleblower’s disclosure is insufficient to remove the possibility of a retaliatory
motive or retaliatory influence on the whistleblower’s treatment”). The appellant
has not made any persuasive arguments to challenge these findings. We also
discern no error with the administrative judge’s conclusion that “there [was]
absolutely no evidence in the record to suggest a concerted effort [by these
agency employees] to retaliate against the appellant” or that any of the agency
employees who had some involvement in the proposal or decision letters were
motivated to retaliate against the appellant based on her whistleblowing activity.
RID at 21.
¶9 On review, the appellant appears to challenge the administrative judge’s
statement in the RID that there was no evidence to suggest a pattern of agency
retaliation or a hostile work environment in response to her whistleblowing
activity. RPFR File, Tab 3 at 26-27; see RID at 23 (discussing evidence that the
agency takes similar actions against non-whistleblowers). The appellant appears
to state that the administrative judge failed to consider, among other evidence, her
2006 “partially meets” performance review, her 2007 arrest at the agency, the fact
that she has been in “continuous litigation” with the agency since that time, and
that agency attorney R.V. sent emails to other employees asking for any
unprofessional emails that the appellant sent to them. RPFR File, Tab 3 at 26-27.
We note that the appellant’s 2006 performance review and her 2007 arrest
predated the disclosures in this matter. Moreover, in the RID, the administrative
judge referenced the appellant’s arrest and ongoing litigation with the agency,
and the administrative judge noted that the appellant’s contention about R.V. was
validated by the record evidence. See RID at 6, 8, 15-16, 20. We are not
persuaded that the remaining evidence cited by the appellant warrants a different
outcome. We also discern no error with the administrative judge’s conclusion
7
that the agency demonstrated that it disciplined other non-whistleblower
employees for similar misconduct. See RID at 22-23.
¶10 Regarding her assertion that the administrative judge failed to address the
appellant’s evidence regarding the agency’s “stonewalling” to Senator Kirk and
Director S.’s “complicity in the stonewalling,” RPFR File, Tab 3 at 28, the RID
reflects the administrative judge’s consideration of the agency’s communications
with Senator Kirk, see, e.g., RID at 5, 11-12, 15-16, and we do not share the
appellant’s view that the agency engaged in “stonewalling.” We also agree with
the administrative judge that the evidence does not reflect that the agency made
misrepresentations to Senator Kirk. See RID at 12.
¶11 In sum, we have considered the appellant’s arguments on review, but we
find that she has not set forth a basis to disturb the administrative judge’s
findings and credibility determinations. See Crosby v. U.S. Postal
Service, 74 M.S.P.R. 98, 105-06 (1997) (finding no reason to disturb the
administrative judge’s findings where the administrative judge considered the
evidence as a whole, drew appropriate inferences, and made reasoned
conclusions); Broughton v. Department of Health & Human Services, 33 M.S.P.R.
357, 359 (1987). We therefore discern no error with the administrative judge’s
conclusion that the agency proved by clear and convincing evidence that the
agency would have suspended the appellant even in the absence of her
whistleblowing activity, and thus, that the appellant did not prove this affirmative
defense.
The administrative judge properly affirmed the 25-day suspension. 3
¶12 The Board will review an agency-imposed penalty only to determine if the
agency considered all the relevant factors and exercised management discretion
within tolerable limits of reasonableness. Douglas, 5 M.S.P.R. at 306. On
3
The appellant does not appear to specifically challenge the administrative judge’s
nexus determination on review, and we discern no error with the administrative judge’s
analysis in this regard.
8
review, the appellant asserts that the deciding official did not consider as a
positive factor her length of service, prior performance awards, dedication to her
job, reliable work attendance, and the fact that she and the agency have been
“involved in continuous litigation since 2006.” RPFR File, Tab 3 at 30-33. The
decision letter indicates that the deciding official considered her length of service
and her prior performance. See MSPB Docket No. CH-0752-11-0710-I-1, Initial
Appeal File (IAF), Tab 14, Subtab 4B. Moreover, the deciding official testified
that he considered the appellant’s assertion that job-related tension or stress was a
mitigating factor, but he concluded that “what was going on did not rise to the
level of mitigation.” IAF, Hearing Transcript at 196-97. It does not appear that
the deciding official specifically considered the appellant’s dedication to her job
and reliable work attendance, but we are not persuaded that such an omission is
fatal to the penalty analysis.
¶13 The administrative judge found that the agency’s decision to suspend the
appellant for 25-days based on the sustained misconduct did not clearly exceed
the limits of reasonableness. In particular, the administrative judge noted the
appellant’s lack of remorse, and she stated that the agency understandably had
concerns about the appellant’s ability to conduct herself in a professional manner.
On review, the appellant states that the Board has determined that remorse after
an agency initiates discipline generally warrants little, if any, weight, and she
cites Singletary v. Department of the Air Force, 94 M.S.P.R. 553, ¶ 15 (2003), as
support for this proposition. RPFR File, Tab 3 at 33. There is no indication that
the administrative judge gave the appellant’s lack of remorse undue weight. We
view the administrative judge’s single reference to the appellant’s lack of remorse
in this context as support for her conclusion that the charge was serious and
merited a 25-day suspension. Based on our review of the record, including the
serious nature of the allegations, the frequency of the misconduct, the appellant’s
prior disciplinary history, her length of service, and all relevant mitigating and
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aggravating factors, we agree with the administrative judge’s decision to uphold
the 25-day suspension.
Other issues
¶14 We need not address the appellant’s assertion on review that the
administrative judge failed to address her argument that the deciding official and
Director S. did not investigate her allegation that the proposal was retaliation for
equal employment opportunity (EEO) activity. See RPFR File, Tab 3 at 16-22.
Importantly, the Board in its Remand Order already affirmed the administrative
judge’s analysis of the appellant’s other affirmative defenses, including her claim
of retaliation for EEO activity.
¶15 The appellant also alleges on review that several incidents that occurred on
June 26, 2012, and thereafter, show a “retaliatory motive” on the agency’s part.
RPFR File, Tab 1 at 27-28. We note that these incidents allegedly occurred well
after the initial decision in the suspension appeal was issued on November 17,
2011. Moreover, the appellant appears to have raised this evidence in her
subsequent petition for review submissions in the suspension appeal because the
Board noted in its Remand Order that such issues were not relevant to the issues
to be decided in that matter. See Remand Order at 3, n.3. We need not consider
such evidence on review in this remand appeal. 4
NOTICE TO THE APPELLANT REGARDING
YOUR FURTHER REVIEW RIGHTS
You have the right to request further review of this final decision. There
are several options for further review set forth in the paragraphs below. You may
choose only one of these options, and once you elect to pursue one of the avenues
4
On review, the appellant includes a redacted copy of the Findings of the Midwest
Region Investigation. See RPFR File, Tab 3, Exhibit 1. Evidence that is already a part
of the record is not new. Meier v. Department of the Interior, 3 M.S.P.R. 247, 256
(1980). Thus, we need not consider this evidence on review.
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of review set forth below, you may be precluded from pursuing any other avenue
of review.
Discrimination Claims: Administrative Review
You may request review of this final decision on your discrimination claims
by the Equal Employment Opportunity Commission (EEOC). See Title 5 of the
United States Code, section 7702(b)(1) (5 U.S.C. § 7702(b)(1)). If you submit
your request 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 your request 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, NE
Suite 5SW12G
Washington, D.C. 20507
You should send your request to EEOC no later than 30 calendar days after
your receipt of this order. If you have a representative in this case, and your
representative receives this order before you do, then you must file with EEOC no
later than 30 calendar days after receipt by your representative. If you choose to
file, be very careful to file on time.
Discrimination and Other Claims: Judicial Action
If you do not request EEOC to review this final decision on your
discrimination claims, you may file a civil action against the agency on both your
discrimination claims and your other claims in an appropriate United States
district court. See 5 U.S.C. § 7703(b)(2). You must file your civil action with
the district court no later than 30 calendar days after your receipt of this order. If
you have a representative in this case, and your representative receives this order
11
before you do, then you must file with the district court no later than 30 calendar
days after receipt by your representative. If you choose to file, be very careful to
file on time. 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.
Other Claims: Judicial Review
If you do not want to request review of this final decision concerning your
discrimination claims, but you do want to request review of the Board's decision
without regard to your discrimination claims, you may request review of this final
decision on the other issues in your appeal by the United States Court of Appeals
for the Federal Circuit.
The court must receive your request for review no later than 60 calendar
days after the date of this order. See 5 U.S.C. § 7703(b)(1)(A) (as rev. eff. Dec.
27, 2012). If you choose to file, be very careful to file on time. The court has
held that normally it does not have the authority to waive this statutory deadline
and that filings that do not comply with the deadline must be dismissed. See
Pinat v. Office of Personnel Management, 931 F.2d 1544 (Fed. Cir. 1991).
If you want to request review of the Board’s decision concerning your
claims of prohibited personnel practices described in 5 U.S.C. § 2302(b)(8),
(b)(9)(A)(i), (b)(9)(B), (b)(9)(C), or (b)(9)(D), but you do not want to challenge
the Board’s disposition of any other claims of prohibited personnel practices, you
may request review of this final decision by the United States Court of Appeals
for the Federal Circuit or by any court of appeals of competent jurisdiction. The
court of appeals must receive your petition for review within 60 days after the
date of this order. See 5 U.S.C. § 7703(b)(1)(B) (as rev. eff. Dec. 27, 2012). If
you choose to file, be very careful to file on time.
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If you need further information about your right to appeal this decision to
court, you should refer to the federal law that gives you this right. It is found in
Title 5 of the United States Code, section 7703 (5 U.S.C. § 7703) (as rev. eff.
Dec. 27, 2012). You may read this law as well as other sections of the United
States Code, at our website, http://www.mspb.gov/appeals/uscode/htm.
Additional information about the United States 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, and 11.
Additional information about other courts of appeals can be found at their
respective websites, which can be accessed
through http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx.
If you are interested in securing pro bono representation for an appeal to
the United States Court of Appeals for the Federal Circuit, you may visit our
website at http://www.mspb.gov/probono for a list of attorneys who have
expressed interest in providing pro bono representation for Merit Systems
Protection Board appellants before the Federal Circuit. The Merit Systems
Protection Board neither endorses the services provided by any attorney nor
warrants that any attorney will accept representation in a given case.
FOR THE BOARD: ______________________________
William D. Spencer
Clerk of the Board
Washington, D.C.