The opinion
UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
TIEMOKO COULIBALY, DOCKET NUMBER
Appellant, DC-1221-13-0440-W-1
v.
DEPARTMENT OF STATE, DATE: September 24, 2014
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Tiemoko Coulibaly, Silver Spring, Maryland, pro se.
Jennifer I. Toole, Esquire, Washington, D.C., 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 initial decision, which
dismissed his individual right of action (IRA) appeal for lack of jurisdiction.
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
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
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 initial decision,
which is now the Board’s final decision. 5 C.F.R. § 1201.113(b).
¶2 Effective June 19, 2011, the agency appointed the appellant to the excepted
service position of Training Instructor (French) in the Foreign Service Institute’s
School of Language Study. Initial Appeal File (IAF), Tab 17 at 33-38. The
appointment was temporary—not to exceed 2 years—and was subject to the
successful completion of a 1-year trial period. Id. at 36. The agency terminated
the appellant’s employment effective April 6, 2012, for inappropriate conduct
toward his supervisors and failure to follow leave requesting procedures. Id. at
33-34.
¶3 The appellant filed the instant IRA appeal and requested a hearing. IAF,
Tab 1 at 2. The administrative judge notified the appellant of how to establish
jurisdiction over his appeal and ordered him to file a statement, accompanied by
evidence listing:
(1)your protected disclosure(s) or activity(ies); (2) the date(s) you
made the disclosure(s) or engaged in the activity(ies); (3) the
individual(s) to whom you made any disclosure(s); (4) why your
belief in the truth of any disclosure(s) was reasonable; (5) the
action(s) the agency took or failed to take, or threatened to take or
fail to take, against you because of your disclosure(s) or
activity(ies); (6) why you believe a disclosure or activity was a
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contributing factor to the action(s); and (7) the date of your
complaint to [the Office of Special Counsel (OSC)] and the date that
it notified you it was terminating its investigation of your complaint,
or if you have not received such notice, evidence that 120 days have
passed since you filed your complaint with OSC.
IAF, Tab 8. The appellant subsequently filed 53 submissions, none of which
contained the list that the administrative judge ordered him to submit. IAF, Tabs
9-16, 18, 21-28, 31-34, 36-40, 42-44, 46-51, 53, 56-63, 68-72, 74-77.
¶4 The appeal was assigned to a different administrative judge, who issued an
initial decision dismissing the appeal for lack of jurisdiction. IAF, Tab 54, Tab
78, Initial Decision (ID) at 1, 14. She found that the issues in the appeal were
limited to the ones that the appellant raised before OSC’s Complaints Examining
Unit. ID at 5-6; IAF, Tab 10 at 90-108. She further found that the personnel
actions involved included the appellant’s April 6, 2012 termination, a 2009
nonselection for appointment, and various incidents of “harassment” and
“humiliation.” ID at 6. She found that the disclosures involved were a 2009
complaint to Diplomatic Security regarding workplace violence, and various
subsequent complaints concerning the preferential treatment of the appellant’s
coworker and an alleged sexual relationship between that coworker and the
Division Director. 2 ID at 6. After analyzing the appellant’s submissions, the
administrative judge concluded that he failed to make a nonfrivolous allegation
that he reasonably believed that his disclosures evidenced any sort of wrongdoing
under 5 U.S.C. § 2302(b)(8)(A), and that he failed to make a nonfrivolous
allegation that his disclosures were a contributing factor to the personnel actions
at issue. ID at 8-14.
¶5 Subsequently, the appellant filed, through the Board’s e-Appeal system, a
“Supplement” to a petition for review, consisting of a series of emails between
2
The administrative judge found that the appellant was attempting to claim retaliation
for equal employment opportunity (EEO) activity as well, but that the Board lacks
jurisdiction over such matters in the context of an IRA appeal. ID at 6, 12-13.
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the appellant and various third parties and Merit Systems Protection Board
officials, as well as numerous items of supporting documentation. Petition for
Review (PFR) File, Tab 1. The Clerk of the Board construed this filing as a
petition for review and docketed it as such. PFR File, Tab 2. The agency filed a
response to the petition for review, PFR File, Tab 9, and the appellant filed a
reply to the agency’s response, PFR File, Tab 14.
Procedural Matters on Petition for Review
¶6 Before proceeding to the appellant’s arguments on review, we must address
procedural matters pertaining to some of the pleadings that the appellant has filed
on review.
¶7 Regarding the appellant’s response to the acknowledgment letter, the
appellant stated therein that he did not intend to file a petition for review but
instead intended to seek judicial review of the initial decision once the initial
decision became final. PFR File, Tab 6. The Clerk of the Board notified the
appellant that his petition for review would continue to be processed unless he
affirmatively withdrew it and that such withdrawal would be with prejudice to
refiling. PFR File, Tab 7. The appellant did not withdraw his petition. In the
context of this filing, the appellant made several complaints about the conduct of
the proceedings below. PFR File, Tab 6 at 6-10. Under the Board’s regulations,
such arguments must be reserved for petitions for review, cross-petitions for
review, responses to petitions and cross petitions, and replies to responses.
5 C.F.R. § 1201.114(a). We have therefore not considered these arguments in
deciding whether the petition for review meets the criteria of 5 C.F.R.
§ 1201.115.
¶8 Regarding the appellant’s motion for leave to submit additional evidence,
he requests that he be allowed to submit additional documentation to show that he
has suffered harm in the wake of the proceedings below. PFR File, Tab 17; see
5 C.F.R. § 1201.114(a)(5). We DENY the appellant’s motion because this
evidence is immaterial to the dispositive issue of Board jurisdiction. See 5 C.F.R.
5
§ 1201.115(k). This submission also contains argument regarding the
jurisdictional issue and the proceedings below. PFR File, Tab 17 at 5-9. For the
reasons explained above in connection with the appellant’s response to the
acknowledgment order, we have not considered these arguments in deciding
whether the petition for review meets the criteria of 5 C.F.R. § 1201.115. 3 Supra,
¶ 9.
Arguments on Petition for Review
¶9 The appellant requests that his petition for review be forwarded to the Merit
Systems Protection Board officials handling his Federal Tort Claims Act
complaint as well as Merit Systems Protection Board “executives.” PFR File,
Tab 1 at 8, 12, 20. We decline to grant the appellant this requested relief. See
5 U.S.C. § 1204 (listing the powers and functions of the Board in connection with
an appeal claiming reprisal for whistleblowing); 5 C.F.R. § 1201.117(a)
(indicating the scope of the Board’s authority on petition for review).
¶10 The appellant argues at length that the adjudication below was deficient and
that the administrative judges were biased against him and retaliated against him.
PFR File, Tab 1 at 5-9, 12, 14-16, 19-21, Tab 14 at 5-8, 17. In making a claim of
bias or prejudice against an administrative judge, a party must overcome the
presumption of honesty and integrity that accompanies administrative
adjudicators. Oliver v. Department of Transportation, 1 M.S.P.R. 382, 386
(1980). An administrative judge’s conduct during the course of a Board
proceeding warrants a new adjudication only if the administrative judge’s
comments or actions evidence “a deep-seated favoritism or antagonism that would
make fair judgment impossible.” Bieber v. Department of the Army, 287 F.3d
1358, 1362-63 (Fed. Cir. 2002) (quoting Liteky v. United States, 510 U.S. 540,
555, (1994)). The appellant has not identified any comments or actions by the
3
For the same reasons, we have not considered the appellant’s motions for extensions
of time in determining whether to grant the petition for review. PFR File, Tabs 10, 12.
6
administrative judges involved in this appeal that would rebut that presumption of
honesty and integrity. We find that the length of time that the adjudication took
was not the product of any malfeasance but was rather due to the administrative
judges’ careful consideration of the parties’ multiple motions and the appellant’s
numerous lengthy submissions, as well as the regional office’s inundation with a
large number of furlough appeals at the same time—a matter entirely outside the
administrative judges’ control. Nor do we find that the administrative judge ever
indicated that she failed to review the record before issuing her initial decision.
The administrative judge explained that it was not her obligation to pore through
the record and make the appellant’s case for him, ID at 9, 10, but our review of
the initial decision shows that she nevertheless went to great lengths to make
sense of this voluminous and disjointed record before issuing her decision, ID at
4-14. Furthermore, the administrative judge’s failure to mention all of the
evidence of record in her initial decision does not mean that she did not consider
it. Marques v. Department of Health & Human Services, 22 M.S.P.R. 129, 132
(1984), aff’d, 776 F.2d 1062 (Fed. Cir. 1985) (Table). Finally, the fact that an
administrative judge rules against an appellant does not mean that she is biased.
Coufal v. Department of Justice, 98 M.S.P.R. 31, ¶ 11 (2004).
¶11 The appellant also disputes the administrative judges’ rulings on his several
stay requests. PFR File, Tab 1 at 9-10, 12, 18, 21-22, Tab 14 at 5-8. Under
5 C.F.R. § 1209.11, a stay will remain in effect for the time period set forth in the
stay order, or until the Board issues a final decision on the appeal of the
underlying personnel action that was stayed, or until the Board vacates or
modifies the stay, whichever occurs first. Therefore, even if the appellant’s stay
requests had been granted, this final decision would mark the end of the stay’s
effect. The issue is moot because there is no further relief that the Board could
provide the appellant with regard to his stay requests. See Milner v. U.S. Postal
Service, 118 M.S.P.R. 600, ¶ 4 (2012) (an issue is moot when there is no effective
relief that the Board can provide).
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¶12 The appellant argues that he was denied the opportunity to conduct
discovery in his appeal. PFR File, Tab 1 at 12, 15-16, 19-20. We disagree. The
acknowledgment order set forth the time limits for conducting discovery and the
procedures for doing so. IAF, Tab 2 at 6-7. The administrative judges in no way
prevented the appellant from conducting discovery. To the extent that the
appellant was dissatisfied with the agency’s responses to his discovery requests,
it was incumbent upon him to file a motion to compel under 5 C.F.R.
§ 1201.73(c). His failure to do so precludes him from raising the issue on review.
Szejner v. Office of Personnel Management, 99 M.S.P.R. 275, ¶ 5 (2005), aff’d,
167 F. App’x 217 (Fed. Cir. 2006).
¶13 The appellant argues that, according to the Internal Revenue Service (IRS),
he was an employee—not a contractor—when he began working for the agency
several years before his June 19, 2011 appointment. PFR File, Tab 1 at 17, Tab
14 at 8-13. He argues that the IRS has exclusive authority to determine who is an
“employee” and who is a “contractor,” that his previous service satisfied the
1-year trial period for his most recent appointment, and that he was removed
without due process. PFR File, Tab 1 at 17. As an initial matter, we disagree
with the appellant that IRS determinations govern appointments in the civil
service. Although the IRS may have authority to determine contractor versus
employee status for federal taxation purposes, civil service appointment and
tenure is governed not by tax law but by civil service law, as administered by the
Office of Personnel Management. See generally 5 U.S.C. Part III. In any event,
we find that the appellant’s employment status is immaterial to the jurisdictional
issue. As the appellant points out on review, one need not be an “employee”
within the meaning of 5 U.S.C. chapter 75 in order to file an IRA appeal. PFR
File, Tab 1 at 17. Rather, coverage extends to applicants for employment and
anyone who meets the broader definition of “employee” in 5 U.S.C. § 2105. Ang
v. Department of State, 103 M.S.P.R. 324, ¶¶ 10-11 (2006). It is undisputed that
the appellant meets this definition. The issue of whether the appellant was an
8
“employee” under 5 U.S.C. § 7511(a)(1) would be relevant only if this were an
adverse action appeal, which it is not. When the appellant filed his complaint
with OSC, he made a binding election to proceed through that forum rather than
appealing directly to the Board under 5 U.S.C. § 7513(d). 4 See 5 U.S.C.
§ 7121(g); Edwards v. Department of the Air Force, 120 M.S.P.R. 307, ¶ 12
(2013).
¶14 The appellant argues that he has established a nexus between his EEO
complaint and his termination. PFR File, Tab 1 at 6-7, 12-13, 15. However,
filling an EEO complaint is protected under 5 U.S.C. § 2302(b)(9)(A)(ii)—not
5 U.S.C. §§ 2302(b)(8) or 2302(b)(9)(A)(i), (B), (C) or (D). See 5 U.S.C.
§ 1221(a); Spruill v. Merit Systems Protection Board, 978 F.2d 679, 690-92 (Fed.
Cir. 1992). The Board lacks jurisdiction over reprisal for a disclosure made in
the context of an EEO complaint unless the employee sought to remedy an
alleged violation of section 2302(b)(8) within the EEO process. See Mudd v.
Department of Veterans Affairs, 120 M.S.P.R. 365, ¶ 6 (2013) (discussing
coverage under the Whistleblower Protection Enhancement Act of 2012 for
allegations raised in the context of an appeal, complaint, or grievance). Because
the appellant did not show or allege that he was seeking to remedy such a
violation in his EEO complaint, the administrative judge appropriately found that
the appellant’s EEO complaint was not a protected disclosure. ID at 13.
¶15 With regard to his 2009 complaint to Diplomatic Security regarding
workplace violence, the appellant argues that his immediate supervisor, a
Language Training Supervisor, became aware of this complaint once she became
his supervisor in 2011. PFR File, Tab 1 at 17; IAF, Tab 10 at 121-24. He cites
the Language Training Supervisor’s EEO affidavit in support of this allegation
4
Unlike the appellants in Edwards v. Department of the Air Force, 120 M.S.P.R. 307
(2013), Francis v. Department of the Air Force, 120 M.S.P.R. 138 (2013), and
Agoranos v. Department of Justice, 119 M.S.P.R. 498 (2013), the appellant in this case
has not attempted to file any direct appeal of his termination that might cast doubt on
whether his election to proceed through OSC was binding.
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and argues that it shows that the complaint was a contributing factor to his
termination. PFR File, Tab 1 at 17; IAF, Tab 11 at 135-59. For the following
reasons, we disagree. First, we have reviewed the Language Training
Supervisor’s 25-page EEO affidavit, and, contrary to the appellant’s assertion, we
find no clear indication that she was aware of his complaint to Diplomatic
Security. The Language Training Supervisor acknowledged that she was aware of
a complaint that the appellant made to his former supervisor in 2009, IAF, Tab 11
at 136, but there is no reason to infer that this complaint was the same one that
the appellant made to Diplomatic Security. Second, the appellant has not
explained what influence, if any, the Language Training Instructor had over the
termination decision. 5 Cf. Marchese v. Department of the Navy, 65 M.S.P.R. 104,
108-09 (1994) (an appellant may establish the contributing factor element by
showing that an individual with actual knowledge of the disclosure influenced the
official accused of taking the retaliatory action).
¶16 The appellant also argues that his complaint to Diplomatic Security was a
contributing factor to his 2009 nonselection for appointment. PFR File, Tab 14 at
14-15. He alleges that the Division Director was angry about the complaint but
that she denied knowledge of why the agency failed to select him for appointment
a few months later. Id. at 15-16. We find that this allegation, even if true, would
not establish that the complaint to Diplomatic Security was a contributing factor
to the appellant’s nonselection. The appellant has not explained what role, if any,
the Division Director played in the nonselection decision. He implies that the
Division Director’s statement about her non-involvement in the selection process
was untrue, but he has not explained why he believes that it was untrue. Id. We
agree with the agency that the appellant’s gesture toward the EEO counselor’s
5
The record contains a negative performance appraisal that the Language Training
Supervisor completed for the appellant, but it postdates the termination decision. IAF,
Tab 17 at 26-32. Furthermore, the Language Training Supervisor’s EEO affidavit
indicates that she played no role in the termination decision. IAF, Tab 11 at 152-54.
10
106-page report of investigation does not serve to cure the deficiency. PFR File,
Tab 9 at 15, Tab 14 at 25; IAF, Tab 5 at 76-181; see Tines v. Department of the
Air Force, 56 M.S.P.R. 90, 92 (1992) (a petition for review must contain
sufficient specificity to enable the Board to ascertain whether there is a serious
evidentiary challenge justifying a complete review of the record); 5 C.F.R.
§ 1201.115(a) (a petition for review must be supported by specific references to
the record).
¶17 The appellant argues that the Division Director was involved in his
termination and that he made a nonfrivolous allegation that his complaints about
her sexual relationship with a coworker were a contributing factor to the
termination. PFR File, Tab 1 at 6-7, 11, 18-19, Tab 14 at 11, 17. As an initial
matter, we agree with the appellant that he has made a nonfrivolous allegation
that the Division Director influenced the termination decision. According to the
Human Resources Specialist’s EEO affidavit, the Division Director recommended
the termination. PFR File, Tab 1 at 6, 11, Tab 14 at 11; IAF, Tab 13 at 50. The
appellant also takes issue with the administrative judge’s characterization of his
allegations as being based on “gossip.” PFR File, Tab 1 at 7, 18; ID at 11. While
there may be more than gossip to substantiate the appellant’s allegations, the
appellant still has provided no basis to disturb the administrative judge’s finding
that the Division Director was unaware of any such disclosure prior to the
termination. ID at 11. The appellant cites to a “Memorandum of Conversation”
between the Division Director and the Associate Dean. PFR File, Tab 1 at 6, 11,
18, 146-47, Tab 14 at 17. He argues that this document shows that there was a
connection between the Division Director and his termination. PFR File, Tab 1 at
6. For the reasons explained above, we agree with the appellant that he made a
nonfrivolous allegation that the Division Director influenced the termination
decision. However, the Memorandum of Conversation does not show that the
Division Director was aware of any disclosure of an allegedly inappropriate
relationship prior to the appellant’s termination. PFR File, Tab 1 at 146-47. It
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merely shows that the appellant brought this matter to the Associate Dean’s
attention after the termination occurred, that the Associate Dean questioned the
Division Director about the matter, and that the Division Director denied any
involvement in an inappropriate relationship. Id. Finally, to the extent that the
appellant may have engaged in communications about this alleged relationship
after he was terminated, he has not made a nonfrivolous allegation of contributing
factor. PFR File, Tab 1 at 11, 18-19; see Kukoyi v. Department of Veterans
Affairs, 111 M.S.P.R. 404, ¶ 13 (2009) (disclosures made after the agency has
taken the personnel actions at issue cannot have been contributing factors in those
personnel actions and do not meet the nonfrivolous allegation requirement).
NOTICE TO THE APPELLANT REGARDING
YOUR FURTHER REVIEW RIGHTS
You have the right to request review of this final decision 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 under 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 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. You may choose to request
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review of the Board’s decision in the United States Court of Appeals for the
Federal Circuit or any other court of appeals of competent jurisdiction, but not
both. Once you choose to seek review in one court of appeals, you may be
precluded from seeking review in any other court.
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
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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.