The opinion
UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
BLANCA MENDOZA-SHEARD, DOCKET NUMBER
Appellant, DA-0752-14-0533-I-1
v.
DEPARTMENT OF VETERANS DATE: August 25, 2015
AFFAIRS,
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Blanca Mendoza-Sheard, San Antonio, Texas, pro se.
Thomas Herpin, Esquire, Houston, Texas, for the agency.
BEFORE
Susan Tsui Grundmann, Chairman
Mark A. Robbins, Member
FINAL ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
dismissed her appeal of a 30-day suspension as moot. 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
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
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. We agree with the administrative judge’s
conclusion that the appeal is moot. We MODIFY the initial decision’s analysis of
the merits of the appellant’s discrimination claim under the Uniformed Services
Employment and Reemployment Rights Act of 1994 (USERRA) because that
claim is also moot. Except as expressly MODIFIED by this Final Order, we
AFFIRM the initial decision.
¶2 Effective June 24, 2014, the agency suspended the appellant for 30 days
from her GS-05 Secretary position based on the following two charges:
(1) absent without leave; and (2) failure to follow proper leave requesting
procedures. Initial Appeal File (IAF), Tab 1 at 17-20. The appellant appealed
her suspension to the Board and requested a hearing. Id. at 1-7. She disputed
both charges and asserted multiple affirmative defenses. See id. at 6; IAF, Tab 5,
Tab 13 at 5-6. She also requested compensatory damages. 2 IAF, Tab 1 at 6.
2
Our regulations provide that a compensatory damages request must state the amount of
damages sought and the reasons why the appellant believes she is entitled to an award
under the applicable statutory standard. 5 C.F.R. § 1201.204(b). The appellant’s
request did not comply with this requirement. We find it appropriate to waive the
appellant’s failure to comply, however, because the record indicates that she was never
apprised of it. See 5 C.F.R. § 1201.12; see also Calhoon v. Department of the Treasury,
90 M.S.P.R. 375, ¶ 14 n.7 (2001).
3
During the prehearing conference, the agency informed the administrative judge
that it had rescinded the 30-day suspension. See IAF, Tab 15 at 1. In an order
and summary of the telephonic prehearing conference, the administrative judge
informed the appellant that, although an agency’s rescission of the appealed
action could divest the Board of jurisdiction and render the appeal moot, the
Board retains jurisdiction over a discrimination claim where there is a viable
claim for further relief, such as compensatory damages. Id. at 2. She then stated
that the only issues in dispute were whether the suspension: was the result of
disability discrimination; was the result of discrimination under USERRA; and
was the result of sex discrimination or in violation of the Pregnancy
Discrimination Act. Id. at 3. Finally, she apprised the appellant of the burdens of
proof for those issues. Id. at 3-11. In an order and summary of the conference
call, she provided further clarification of the issues. IAF, Tab 25 at 3-4.
¶3 After holding a hearing, the administrative judge issued an initial decision
dismissing the appeal as moot. IAF, Tab 40, Initial Decision (ID) at 1, 25-26.
She also found that the appellant failed to prove her affirmative defenses of
discrimination based on sex, disability, and prior military status. 3 ID at 7-25.
¶4 The appellant has filed a petition for review of the initial decision. Petition
for Review (PFR) File, Tab 1. The agency has not responded.
¶5 The administrative judge correctly rejected the appellant’s affirmative
defenses and dismissed the appeal as moot. The administrative judge determined,
and the appellant does not dispute, that the agency rescinded the 30-day
suspension and that she has received all of the back pay to which she is entitled.
See ID at 6 n.4. For an appeal to be deemed moot, however, the employee must
have received all of the relief that she could have received if the matter had been
adjudicated and she had prevailed. Antonio v. Department of the Air Force,
107 M.S.P.R. 626, ¶ 9 (2008). As the administrative judge correctly recognized,
3
The appellant’s claim of pregnancy discrimination is a form of sex discrimination.
See Thome v. Department of Homeland Security, 122 M.S.P.R. 315, ¶ 26 (2015).
4
when an appellant has an outstanding discrimination claim and has raised what
appears to be a further claim for compensatory damages before the Board, the
agency’s complete rescission of the adverse action appealed does not afford her
all the relief that she could have received if the matter had been adjudicated and
she had prevailed. ID at 6; see Antonio, 107 M.S.P.R. 626, ¶ 13. Because the
appellant could have been entitled to compensatory damages based on her sex and
disability discrimination claims, the administrative judge properly considered
these claims below. 5 C.F.R. §§ 1201.201(d), 1201.202(c); see Schultz v. U.S.
Postal Service, 70 M.S.P.R. 633, 639 (1996). The administrative judge correctly
determined that the appellant failed to establish these affirmative defenses. ID
at 7-23. Therefore, they do not preclude dismissal of the appeal as moot. ID
at 25.
¶6 However, we modify the analysis in the initial decision of the appellant’s
claim of discrimination based on her prior military status. USERRA does not
authorize an award of damages against a Federal agency. See 38 U.S.C.
§ 4324(c); Isabella v. Department of State, 106 M.S.P.R. 333, ¶ 47 n.14 (2007)
aff’d on req. for recons., 109 M.S.P.R. 453 (2008); 5 C.F.R. § 1208.15. An
appellant who has prevailed in a USERRA claim is entitled to “an order requiring
the agency . . . to comply with” the violated USERRA provisions and “to
compensat[ion] . . . for any loss of wages or benefits suffered by such person by
reason of such lack of compliance.” 38 U.S.C. § 4324(c)(2); Murphy v.
Department of Justice, 107 M.S.P.R. 154, ¶ 8 (2007). The appellant has received
all the relief she could have received if she had prevailed on her USERRA claim.
Thus, the appellant’s USERRA claim is moot and the administrative judge should
not have considered it.
¶7 The appellant’s petition for review simply requests review of the initial
decision. PFR File, Tab 1 at 5. Her one-sentence request fails to meet the
Board’s criteria for granting a petition for review. See 5 C.F.R. § 1201.115.
Specifically, the appellant has not provided any new and material evidence or
5
legal argument, or shown any legal error in the administrative judge’s analysis
that affects the outcome of the case. See 5 C.F.R. § 1201.115(b), (d). Further,
the Board must defer 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) . We find that the appellant has
not provided a sufficiently sound reason on review to overturn the administrative
judge’s credibility determinations. See ID at 10-19, 23. For these reasons, we
find that the administrative judge correctly dismissed the appeal as moot.
NOTICE TO THE APPELLANT REGARDING
YOUR FURTHER REVIEW RIGHTS
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 have the right to
request further review of this final decision.
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
6
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
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.
FOR THE BOARD: ______________________________
William D. Spencer
Clerk of the Board
Washington, D.C.