The opinion
UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
JEAN FRANCIS, DOCKET NUMBER
Appellant, DC-0752-14-0763-I-1
v.
DEPARTMENT OF LABOR, DATE: March 24, 2016
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Kellee B. Kruse, Esquire, and R. Scott Oswald, Esquire, Washington, D.C.,
for the appellant.
Beth Heleman, Esquire, and David Edeli, Esquire, Washington, D.C., 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
sustained her removal. 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
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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 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. 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, 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. 5 C.F.R. § 1201.113(b). Except as expressly MODIFIED by this
Final Order to incorporate the standards set out in Savage v. Department of the
Army, 122 M.S.P.R. 612 (2015), for affirmative defenses of equal employment
opportunity (EEO) reprisal and discrimination, we AFFIRM the initial decision.
¶2 The agency removed the appellant from the GS-15 position of Lead Budget
Analyst based on two charges: (1) excessive use of Government equipment for
personal, unofficial purposes; 2 and (2) improper use of official work hours for
personal, unofficial purposes. Initial Appeal File (IAF), Tab 4 at 16, Tab 5 at
113. The agency specified that, from March through December 2013, on multiple
occasions during 15 pay periods, the appellant created, worked on, or otherwise
accessed files on the American Public University System (APUS) website using
her Government-owned computer during Government work time with the purpose
of preparing to teach and then teaching several online APUS courses for pay. Id.
¶3 The appellant appealed the agency’s action, denying the misconduct and
alleging that it constituted discrimination on the bases of race, religion, and
national origin, and retaliation for filing an EEO complaint. IAF, Tabs 1, 16.
Based on the record, including the testimony at the hearing, the administrative
2
The notice states that there are 18 specifications. Initial Appeal File (IAF), Tab 5 at
113. However, there are actually 15 specifications. The proposing official explained
that this error resulted from a lack of editing. See Hearing Transcript at 218.
3
judge found that the agency proved the charged misconduct by preponderant
evidence. IAF, Tab 36, Initial Decision (ID).
¶4 The administrative judge found that the agency submitted a report of
website tracking of the appellant’s computer use, compiled by the agency’s
information technology department, proving that, between March and July 2013,
over 90 hours of her time was spent on APUS websites. ID at 5. He also found
that the agency proved that on the appellant’s computer was an offer of
employment as an Adjunct Faculty member with APUS dated April 17, 2013, and
that the vast majority of documents saved on the appellant’s computer through
December 2013 were nonwork related, but rather were classwork assignments,
grading of assignments, students’ names, and similar information, showing that
the appellant engaged in a for-profit business of teaching classes and correcting
student assignments. ID at 5-6. Thus, the administrative judge found that the
agency proved charge 1.
¶5 The administrative judge also found that the agency proved that the
appellant’s time on the APUS website and creating the documents related to
teaching courses for APUS was not limited to lunch time or nonwork hours, but
included anytime from morning, mid-morning to mid-afternoon when the
appellant should have been working on official business. ID at 6. Thus, he found
that the agency proved charge 2. The administrative judge further found that the
appellant’s testimony that she accessed the APUS website to advance her official
duties was not credible. ID at 9.
¶6 The administrative judge also found that the appellant failed to prove her
affirmative defenses. ID at 13-20. He found that the appellant failed to identify
any similarly situated employees who were not in her protected class who were
treated better than she was. ID at 13. He found that she failed to identify any
other employee regardless of his or her protected class who had been allowed to
use Government equipment for outside employment or commercial activities, or
to engage in for-profit activity during their official duty time without discipline.
4
ID at 14-15. The administrative judge found, moreover, that the appellant failed
to show that the agency’s action was taken in retaliation for protected EEO
activity. ID at 15-20. He found that the appellant’s supervisor had been involved
in settling the appellant’s earlier-filed EEO complaint in the fall of 2012. ID at
19. However, the administrative judge found that the appellant’s supervisor
testified credibly that he did not initiate the assessment of the appellant’s use of
her computer, and the computer-use investigation was done by employees who
did not know the appellant or know of her EEO complaint. ID at 19-20. Thus,
the administrative judge found that the appellant failed to show that the
investigation into her computer use was based on any impermissible
considerations or motives. Id.
¶7 Finally, the administrative judge found that the penalty of removal was
within the bounds of reasonableness for the sustained misconduct. ID at 20-22.
He found that the agency properly considered the Douglas factors, including that
the appellant had no prior discipline and 24 years of service. However, he found
that these factors were outweighed by the following: that the appellant had
received the annual training on ethics and computer security that included
specific notice that there is no for-profit use of Government computers; her
misconduct was repeated over a number of months and was not an inadvertent
mistake; and the appellant demonstrated an inability or unwillingness to
recognize that she had done anything wrong. ID at 21-22.
¶8 In her petition for review, the appellant asserts that the administrative judge
made a number of errors that disallowed her to prove her affirmative defenses.
However, as explained below, we find that the administrative judge properly
determined that the appellant failed to prove her affirmative defenses of
discrimination and retaliation for engaging in EEO activity. 3
3
The administrative judge referenced the burden-shifting analysis of McDonnell
Douglas Corp. v. Green, 411 U.S. 792, 802–04 (1973), in analyzing the appellant’s
discrimination claim. ID at 16. After this initial decision was issued, the Board issued
5
¶9 The appellant asserts that the administrative judge abused his discretion by
disallowing discovery regarding her affirmative defenses. When the appellant
initially filed her appeal, she was represented by counsel. IAF, Tab 1. In that
appeal, she alleged the affirmative defense of retaliation for filing an EEO
complaint. After appeal proceedings had been ongoing for 6 months, counsel
withdrew, and the appellant designated new counsel. IAF, Tabs 13-14. New
counsel moved for leave to file an amended appeal with additional affirmative
defenses, and for leave to begin discovery. IAF, Tab 16. The administrative
judge granted the appellant’s motion to add additional affirmative defenses;
however, he denied her motion to begin discovery because the time to initiate
discovery had long passed. IAF, Tab 19.
¶10 Under 5 C.F.R. § 1201.41(b)(4), an administrative judge has broad
discretion in ruling on discovery matters and, absent a showing of abuse of
discretion, the Board will not find reversible error in such rulings. See, e.g.,
Savage v. Department of the Army, 122 M.S.P.R. 612, ¶ 46 (2015), in which it
determined that that framework has no application to our proceedings. Rather, the
Board in Savage reaffirmed that it will adhere to the test set forth in Mt. Healthy City
School District Board of Education v. Doyle, 429 U.S. 274, 287 (1977), in cases
involving discrimination or retaliation allegations under 42 U.S.C. § 2000e–16.
Savage, 122 M.S.P.R. 612, ¶ 50. Specifically, where an appellant asserts such an
affirmative defense, the Board first will inquire whether the appellant has shown by
preponderant evidence that the prohibited consideration was a motivating factor in the
contested personnel action. In making her initial showing, an appellant may rely on
direct evidence or any of the three types of circumstantial evidence described in Troupe
v. May Department Stores Company, 20 F.3d 734, 736–37 (7th Cir. 1994) (holding that
evidence of suspicious timing, ambiguous oral or written statements, behavior toward or
comments directed at other employees in the protected group, and other bits and pieces
from which an inference of discriminatory intent might be drawn, comparator evidence,
and evidence that the agency’s stated reason for its action is a pretext for
discrimination). If the appellant meets that burden, the Board then will inquire whether
the agency has shown by preponderant evidence that the action was not based on the
prohibited personnel practice, i.e, that it still would have taken the contested action in
the absence of the discriminatory motive, and, if the Board finds that the agency has
made that showing, its violation of 42 U.S.C. § 2000e–16 will not require reversal of
the action. Savage, 122 M.S.P.R. 612, ¶ 51. Application of Savage to the facts of this
case similarly results in a finding that the appellant failed to establish her claims of
discrimination.
6
Tinsley v. Office of Personnel Management, 34 M.S.P.R. 70, 73-74 (1987). The
appellant was represented by counsel at the point in proceedings when discovery
should have been initiated. In the acknowledgment order, the administrative
judge informed the appellant that discovery must be initiated within 30 days of
the date that she filed her appeal, IAF, Tab 2, but no timely discovery was
initiated. The appellant’s first request to initiate discovery was made by new
counsel more than 6 months after she filed her appeal, and thus, was untimely.
IAF, Tabs 1, 16. A delay caused by an appellant’s obtaining new legal counsel is
not good cause for an untimely filing of discovery. See Murray v. Department of
the Army, 48 M.S.P.R. 338, 340, aff’d, 951 F.2d 1267 (Fed. Cir. 1991) (Table).
¶11 Moreover, we find the fact that the appellant amended her appeal to include
additional affirmative defenses does not provide good cause for filing the
untimely request to initiate discovery. The appellant was aware of the additional
affirmative defenses raised by her new counsel prior to filing her appeal. In her
written response to the notice of proposed removal, the appellant contended that
the agency’s action was based on “documented historical and recent
discrimination against her on the basis of religion, race, national origin, sex, and
retaliation.” IAF, Tab 4 at 34. The appellant could have raised all of these
affirmative defenses in her original appeal, and could have timely initiated
discovery regarding them. She did not show that the information that she sought
through her delayed discovery request could not have been timely discovered.
See Murray, 48 M.S.P.R. at 340. The appellant, therefore, failed to show that the
administrative judge’s ruling regarding discovery constituted an abuse of
discretion.
¶12 The appellant also contends that the administrative judge abused his
discretion when he summarily denied her witness request for her previous
supervisor during a detail to the Department of Justice (DOJ) from 2012 to 2013.
IAF, Tab 24 at 14. The appellant indicated that her supervisor would testify
about her performance and accomplishments while at DOJ, and the reasons why
7
the appellant requested the detail. Id. The administrative judge did not approve
this request, finding that this testimony was not relevant to the approved issues of
whether the appellant engaged in the charged misconduct and whether the
agency’s action was the result of discrimination or retaliation for protected EEO
activity. IAF, Tab 33.
¶13 An administrative judge has wide discretion under 5 C.F.R. § 1201.41(b)(8)
and (10) to exclude witnesses where it has not been shown that their testimony
would be relevant, material, and nonrepetitious. Franco v. U.S. Postal
Service, 27 M.S.P.R. 322, 325 (1985). Based on our review of the record, we
discern no abuse of discretion in the administrative judge’s exclusion of the
requested witness. The requested witness supervised the appellant on a detail that
occurred prior to the occurrence of the charged misconduct, and the proffered
substance of his testimony concerned her performance on detail, which was not an
issue before the Board, or concerned issues such as the reason for the detail that
were within the appellant’s knowledge and to which she could have testified. The
appellant failed to show that this individual could provide relevant or material
testimony about the agency’s charges and specifications, or her affirmative
defenses.
¶14 The appellant further contends that the administrative judge erroneously
disallowed her attempts to introduce evidence of comparator employees who the
appellant alleges engaged in similar misconduct but were not removed. To
prevail on her discrimination claims based on evidence that comparators were
treated less harshly, “all relevant aspects of the appellant’s employment situation
must be ‘nearly identical’ to that of the comparator employee.” Ly v. Department
of the Treasury, 118 M.S.P.R. 481, ¶ 10 (2012). To be considered “similarly
situated,” a comparator “must have reported to the same supervisor, been
subjected to the same standards governing discipline, and engaged in conduct
similar to the appellant’s without differentiating or mitigating circumstances.”
8
Id. The appellant bears the burden of proving discrimination. 5 U.S.C.
§ 7701(c)(2)(B).
¶15 As previously stated, an administrative judge has wide discretion to control
the proceedings, including the authority to exclude testimony she believes would
be irrelevant, immaterial, or unduly repetitious, including when an appellant is
attempting to introduce evidence of comparators through the testimony of hearing
witnesses. See Guerrero v. Department of Veterans Affairs, 105 M.S.P.R. 617,
¶ 20 (2007); Miller v. Department of Defense, 85 M.S.P.R. 310, ¶ 8 (2000). The
Board has said that, to “obtain reversal of an initial decision on the ground that
the administrative judge abused his discretion in excluding evidence, the
petitioning party must show on review that relevant evidence, which could have
affected the outcome, was disallowed.” Jezouit v. Office of Personnel
Management, 97 M.S.P.R. 48, ¶ 12 (2004), aff’d, 121 F. App’x 865 (Fed. Cir.
2005).
¶16 The appellant asserts that the administrative judge disallowed her to
cross-examine the official who conducted the assessment of her computer use
about comparators. The appellant’s counsel attempted to cross-examine this
witness about whether his office had been asked to conduct inquiries into similar
misuse of computer equipment. Hearing Transcript (HT) at 83. The
administrative judge ruled that it was not helpful to know about investigations
that were conducted. HT at 87. Consistent with Ly, 118 M.S.P.R. 481, ¶ 10, he
stated that he needed to know about whether the officials who took action against
the appellant knew about investigations of misuse similar to the appellant’s, what
they did, and whether there is a distinction between those other circumstances and
that of the appellant. HT at 83. Thus, he stated that he would wait to determine
whether further cross-examination of the official who conducted the assessment
was necessary until after he heard the testimony of the proposing and deciding
officials, and he asked the agency representative to keep the witness available to
return and rebut testimony, if needed. HT at 88. The administrative judge found
9
that it was unnecessary to recall this witness after the proposing and deciding
officials had testified. The appellant has not shown that further
cross-examination of the witness who conducted the assessment, or further
testimony by her would have led to evidence of any other employee with the same
supervisor who engaged in similar misconduct. We find that the administrative
judge did not abuse his discretion in limiting the appellant’s cross-examination of
the witness who conducted the assessment of the appellant’s computer use as to
his knowledge about comparators.
¶17 Next, the appellant argues that the administrative judge erred in not
allowing her to testify about her observation of the proposing official’s alleged
misuse of his Government computer to follow the college basketball tournament
known as “March Madness.” The administrative judge disallowed the appellant’s
testimony stating that she had had the opportunity to cross-examine the proposing
official on this point and failed to do so. HT at 373. He also stated that her
observations did not show a comparator. HT at 374. We agree. There are
significant differentiating circumstances between the appellant’s misconduct and
the alleged conduct of her supervisor. See Ly, 118 M.S.P.R. 481 ¶ 10. There is
no suggestion that the appellant’s supervisor’s following the basketball
tournament was a for-profit business conducted over many months as was the
appellant’s misconduct. Thus, the appellant failed to show that the administrative
judge disallowed her from giving any relevant testimony, and she has not shown
that the administrative judge abused his discretion to limiting her testimony about
alleged comparator employees.
¶18 The appellant also asserts that the administrative judge abused his
discretion in disallowing her from examining witnesses to show that her
supervisor initiated the computer assessment in retaliation for her EEO activity.
It appears that the appellant was trying to establish that the assessment was
initiated because of her alleged poor performance and that her performance was
not poor, thus allowing the inference that the assessment was initiated in
10
retaliation for her protected activity. PFR File, Tab 3 at 17. Contrary to the
appellant’s assertion, the administrative judge allowed the appellant to
cross-examine her supervisor extensively about her performance and why she was
rated minimally satisfactory. HT at 185-222.
¶19 The appellant received a minimally satisfactory performance appraisal in
2013. Her supervisor explained that the work that the appellant had done on a
training program that he had assigned her was helpful, but that it was not what he
had requested. HT at 189, 193. He told the appellant in June 2013 that she had
not provided him with the training program that he had requested and because she
had not provided what he requested by the end of the appraisal year, he rated her
minimally satisfactory. HT at 194, 196. The supervisor noted that,
notwithstanding that the appellant failed to provide the training program that he
requested, she continued to appear to be busy at her computer. HT at 215. He
also observed that she was disengaged from what the office was doing, and so in
October 2013, he explored the possibility of having her transferred to a different
activity where she might “refresh her outlook and her view.” HT at 134-36. The
official with whom he discussed the possibility of a transfer suggested that the
agency determine what caused the appellant to be busy at the computer. HT at
136. 4
¶20 Based on the record, the administrative judge properly found that the
appellant’s supervisor notified the appellant as early as June 2013 that the
training program she developed was inadequate because it did not reflect what she
had been assigned to complete. Thus, his observations of the
less-than-satisfactory performance predated the initiation of the computer
4
Coincidentally, the result of the computer assessment was given to the appellant’s
supervisor in December 2013, HT at 216, and he completed the appellant’s minimally
satisfactory appraisal in December 2013, IAF, Tab 4 at 127. However, as noted, the
appellant had been made aware that she was not performing up to expectations long
before the appraisal, and the computer assessment had been initiated months before her
supervisor was made aware of its results.
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assessment, and the appellant failed to show that her alleged poor performance
was a ruse to initiate the assessment. Further, the administrative judge credited
the appellant’s supervisor that he did not initiate the idea of the computer
assessment. Another agency official did. See Haebe v. Department of
Justice, 288 F.3d 1288, 1301 (Fed. Cir. 2002) (holding that 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) . The appellant has failed to show
by preponderant evidence that a prohibited consideration was a motivating factor
in the contested personnel action. See Savage, 122 M.S.P.R. 612, ¶ 46.
¶21 As noted, the appellant’s petition for review alleges that the administrative
judge erred in adjudicating her affirmative defenses of discrimination and
retaliation for protected activity. However, to the extent that she is arguing that
the administrative judge erred in determining that the agency proved the charged
misconduct, we discern no reason to disturb the administrative judge’s
well-reasoned findings that the agency proved the charged misconduct. We find
that the administrative judge considered the evidence as a whole, drew
appropriate inferences, and made reasoned conclusions. See Broughton v.
Department of Health & Human Services, 33 M.S.P.R. 357, 359 (1987); see also
Crosby v. U.S. Postal Service, 74 M.S.P.R. 98, 106 (1997). Based on the
foregoing, we sustain the appellant’s removal.
NOTICE TO THE APPELLANT REGARDING
YOUR FURTHER REVIEW RIGHTS
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
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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
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
13
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.