Maria de la Cruz MaGowan v. Environmental Protection Agency

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

MARIA DE LA CRUZ MAGOWAN, DOCKET NUMBER

Appellant, DC-1221-11-0737-B-2

v.

ENVIRONMENTAL PROTECTION DATE: May 9, 2016

AGENCY,

Agency.

THIS FINAL ORDER IS NONPRECEDENTIAL *

Maria de la Cruz MaGowan, Bethesda, Maryland, pro se.

David P. Guerrero, 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

denied the appellant’s request for corrective action. 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

*

A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

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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. 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 and AFFIRM the initial decision,

which is now the Board’s final decision. 5 C.F.R. § 1201.113(b).

DISCUSSION OF ARGUMENTS ON REVIEW

¶2 The Board remanded this individual right of action (IRA) appeal to the

regional office for the administrative judge to adjudicate the merits of the

appellant’s claim that the agency converted her approved sick leave for

September 30 and October 1, 2010, to absence without leave (AWOL) in reprisal

for her April 2003 protected disclosure. MaGowan v. Environmental Protection

Agency, 119 M.S.P.R. 9 (2012). On remand, the administrative judge dismissed

the IRA appeal without prejudice in response to the appellant’s request for a

continuance. MaGowan v. Environmental Protection Agency, MSPB Docket No.

DC-1221-11-0737-B-1, Remand Initial Decision (Apr. 24, 2013).

¶3 After the Board denied the appellant’s petition for review of that initial

decision, MaGowan v. Environmental Protection Agency, MSPB Docket No.

DC‑1221-11-0737-B-1, Final Order (Jan. 30, 2014), she moved to refile the IRA

appeal, and the agency responded to clarify the issues, MaGowan v.

Environmental Protection Agency, MSPB Docket No. DC-1221-11-0737-B-2,

Remand File (RF), Tabs 1-2. The administrative judge issued an order in which

he noted the refiling of the IRA appeal and reiterated that, consistent with the

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Board’s Opinion and Order in MaGowan, 119 M.S.P.R. 9, the only personnel

action at issue in the remanded appeal was the agency’s decision to convert the

appellant’s approved sick leave for September 30 and October 1, 2010, to AWOL.

RF, Tab 4. The appellant subsequently waived her right to a hearing and the

administrative judge issued an order setting a date for the close of the record,

pursuant to which the parties filed further evidence and argument. RF, Tabs 5,

7‑10.

¶4 On the written record, the administrative judge found that the appellant

established that she engaged in whistleblowing by making a protected disclosure

in April 2003, to the agency’s Office of Inspector General (OIG). RF, Tab 11,

Remand Initial Decision (RID) at 12-13. Because the appellant’s supervisor first

learned about that disclosure in July 2009, and specifically asked the appellant

about it in May 2010, requesting that she provide her with a copy of the OIG’s

report into her allegations, the administrative judge also found the appellant’s

disclosure was a contributing factor in the agency’s October 2010 decision to

convert her approved sick leave to AWOL via the knowledge/timing test. RID

at 13-15. Nevertheless, the administrative judge denied the appellant’s request

for corrective action because she found that the agency established by clear and

convincing evidence that it would have converted the appellant’s approved sick

leave to AWOL in the absence of her protected whistleblowing activity. RID

at 15-22.

¶5 In her timely filed petition for review, the appellant challenges the

administrative judge’s finding that the agency established by clear and convincing

evidence that it would have converted her approved sick leave to AWOL in the

absence of her protected whistleblowing activity. Petition for Review (PFR) File,

Tab 1. She argues that the agency’s only evidence in support of its action, the

assumption that she must have lied about being sick on September 30 and

October 1, 2010, because the agency initially had turned down her annual leave

request covering those same days, is not enough to constitute clear and

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convincing proof. Id. at 2. The appellant claims that the episode is part of a long

history of her supervisor abusing her and argues that prior to the sick leave at

issue in this matter, her supervisor wrongfully denied her annual leave on the

basis that it was a particularly busy period in the office, contending instead that

there is no particularly busy period in her workload as she has reporting duties

throughout the entire year and had arranged for someone to back her up on the

days at issue. Id. at 3, 5-7. She argues that she submitted several doctors’ notes

in support of her claim that she was sick for weeks beginning in August 2010, and

that she saw her internal medicine doctor on September 29, 2010, at which time

he referred her to an ear, nose, and throat specialist because he did not know what

was wrong with her. Id. at 4-5. The appellant also argues that the agency failed

to show that other employees who are not whistleblowers are asked to provide

medical evidence every time they are sick and that the agency converts their

approved sick leave to AWOL when they fail to submit such documentation. Id.

at 8. She cites several episodes of agency employees who were involved in very

serious misconduct but did not have any of their time converted to AWOL as a

result. Id. at 8-10.

¶6 With her petition for review, the appellant includes evidence regarding

whether she actually grieved the agency’s failure to noncompetitively promote

her to the GS-15 level. Id. at 21-22. She contends that she submitted these

documents below and that they are a part of the record but that the administrative

judge denied having seen them. Id. at 10, 21-22. She also asserts that the

administrative judge denied her request for certain witnesses at the hearing, and

she reiterates her arguments as to why she was not AWOL and should not have

had to produce medical documentation for her absences on September 30 and

October 1, 2010. Id. at 11-12. The agency responds in opposition to the

appellant’s petition for review. PFR File, Tab 3.

¶7 After establishing the Board’s jurisdiction in an IRA appeal, the appellant

then must establish a prima facie case of whistleblower retaliation by proving by

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preponderant evidence that she made a protected disclosure that was a

contributing factor in a personnel action against her. 5 U.S.C. § 1221(e)(1);

Mattil v. Department of State, 118 M.S.P.R. 662, ¶ 11 (2012). If the appellant

makes out a prima facie case, then the agency is given an opportunity to prove, by

clear and convincing evidence, that it would have taken the same personnel action

in the absence of the protected disclosure. 5 U.S.C. § 1221(e)(1)-(2); Chambers

v. Department of the Interior, 116 M.S.P.R. 17, ¶ 12 (2011). The administrative

judge found that the appellant proved by preponderant evidence that her

April 2003 disclosure to OIG was a contributing factor in the agency’s decision to

convert her approved sick leave to AWOL. RID at 12-15. The agency does not

challenge those findings on review, and we see no reason to disturb them. Thus,

the issue on review is whether the agency proved by clear and convincing

evidence that it would have taken the same action in the absence of the

appellant’s disclosure.

¶8 In determining if an agency has shown by clear and convincing evidence

that it would have taken the same personnel action in the absence of

whistleblowing, the Board will consider the following factors: the strength of the

agency’s evidence in support of its action; the existence and 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 v. Social Security Administration, 185 F.3d 1318, 1323 (Fed. Cir. 1999).

For the following reasons, we agree with the administrative judge that the agency

proved by clear and convincing evidence that it would have converted the

appellant’s approved sick leave to AWOL in the absence of her protected activity.

¶9 The record reflects that, during a September 28, 2010 meeting called to

discuss the agency’s denial of the appellant’s request for annual leave for

September 30 and October 1, 2010, the appellant stated something to the effect

that she did not feel well and she therefore might be sick on those days. RF,

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Tab 9 at 16-17. Under those circumstances, it was not unreasonable for the

agency to find it necessary to require medical evidence to support the appellant’s

sick leave request for those dates or for it to charge her with AWOL when she did

not present one. See 5 C.F.R. § 630.405(a). Moreover, we agree with the

administrative judge that none of the appellant’s arguments about the details of

her leave request render the agency’s request for medical evidence unreasonable

or unnecessary under these circumstances. RID at 16-20. Thus, we find that the

agency’s evidence supporting its action in this matter is strong.

¶10 Concerning the motive of the appellant’s supervisor to retaliate against her

for her April 2003 protected disclosure, the administrative judge found no

persuasive evidence of retaliatory motive, noting that the supervisor had approved

hundreds of hours of leave for the appellant between July 2009 and

September 2010, including sick leave, without requiring her to submit medical

evidence in support. RID at 20-21. Additionally, the appellant’s supervisor did

not serve in that role until January 2009, long after the appellant’s disclosure, and

she was not complicit in any of the misconduct alleged in the appellant’s

protected disclosure. RID at 21. Moreover, the strong evidence noted above

supporting the specific action in this matter clearly outweighs any motive based

on the negative effect of the appellant’s general criticism of agency management

on those not directly involved in her protected disclosure. See, e.g, Whitmore v.

Department of Labor, 680 F.3d 1353, 1370-71 (Fed. Cir. 2012).

¶11 On the third Carr factor, there is no evidence that similarly situated

nonwhistleblowing employees have been required to submit doctors’ notes for

similar absences. RID at 21-22. Where, as here, there is no evidence on the third

Carr factor, it is not considered a significant factor, and the analysis instead turns

on the other two factors. See, e.g, Whitmore, 680 F.3d at 1374. Again,

considering the strong evidence in support of the agency’s straightforward action

in this matter, especially bearing in mind the context of the appellant’s

announcement that she might call in sick on the day she was denied annual leave,

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and the lack of any significant evidence showing a motive to retaliate on the part

of the appellant’s supervisor, we agree with the administrative judge that the

agency showed by clear and convincing evidence that it would have taken the

same action in the absence of the appellant’s protected disclosure. Thus, we

agree with the administrative judge’s decision to deny the appellant’s request for

corrective action in this appeal.

¶12 As for the appellant’s nonpromotion claim, the administrative judge found

in the first initial decision that because the appellant had elected to use the

negotiated grievance procedure, the Board lacked jurisdiction over that action.

MaGowan v. Environmental Protection Agency, MSPB Docket No. DC-1221-11-

0737-W-1, Initial Decision (Oct. 4, 2011). Because the appellant failed to

challenge that finding in her subsequent petition for review of that initial

decision, she may not pursue that claim here. MaGowan, 119 M.S.P.R. 9, ¶ 4;

see, e.g., Dow v. Office of Personnel Management, 95 M.S.P.R. 355, ¶ 10 (2003)

(explaining that, under the law of the case doctrine, a tribunal will not reconsider

issues that have already been decided in the course of an appeal). Regarding the

appellant’s claim that the agency denied her the chance to call certain witnesses,

the record reflects that she waived her right to a hearing in this matter. RF,

Tab 5. She indicates in her petition for review that this claim concerns her

request for a hearing in 2013 in this IRA appeal. PFR File, Tab 1 at 11.

However, the record reflects that the administrative judge dismissed the appeal

without prejudice in April 2013, before the scheduled hearing, in response to the

appellant’s request for a continuance. MaGowan v. Environmental Protection

Agency, MSPB Docket No. DC-1221-11-0737-B-1, Initial Decision (Apr. 24,

2013). Because the appellant filed a petition for review of that decision, the

appeal was not refiled until January 2014, and, as noted above, the appellant then

waived her right to a hearing. RF, Tabs 1, 5. Moreover, the record reflects that

the appellant failed to raise her arguments regarding witnesses prior to waiving

her right to a hearing. The appellant’s failure to timely object to rulings on

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witnesses precludes her doing so on petition for review. See Tarpley v. U.S.

Postal Service, 37 M.S.P.R. 579, 581 (1988).

¶13 Accordingly, we affirm the initial decision.

NOTICE TO THE APPELLANT REGARDING

YOUR FURTHER REVIEW RIGHTS

You have the right to request review of this final decision by the U.S.

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 U.S. 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 review of the

Board’s decision in the U.S. 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 U.S. Code, section 7703 (5 U.S.C. § 7703) (as rev. eff. Dec. 27,

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2012). You may read this law as well as other sections of the U.S. Code, at our

website, http://www.mspb.gov/appeals/uscode.htm. 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, and 11. Additional information about other

courts of appeals can be found at their respective websites, which can be accessed

through the link below:

http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx.

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

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.