Juliette Mosteller v. Department of Veterans Affairs

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

JULIETTE MOSTELLER, DOCKET NUMBER

Appellant, DC-0752-16-0108-I-1

v.

DEPARTMENT OF VETERANS DATE: June 27, 2016

AFFAIRS,

Agency.

THIS FINAL ORDER IS NONPRECEDENTIAL 1

Juliette Mosteller, Glen Burnie, Maryland, pro se.

Richard Johns, 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

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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

BACKGROUND

¶2 The agency suspended the appellant for 14 days, from March 22 to April 4,

2015. Mosteller v. Department of Veterans Affairs, MSPB Docket No. DC-0752-

15-0865-I-1, Appeal File (0865 AF), Tab 10 at 132. However, she was not

returned to duty on her next scheduled work day. Initial Appeal File (IAF), Tab 4

at 15. Instead, on April 6, 2015, the agency advised the appellant that it was

placing her on an “authorized absence.” 0865 AF, Tab 10 at 115. On the same

day, the agency proposed her removal. Id. at 113-14. The agency did not pay the

appellant between March 22 and May 2, 2015. IAF, Tab 4 at 15. The agency

resumed her pay effective May 3, 2015. Id. Effective May 22, 2015, the agency

removed the appellant from her Program Analyst position. 0865 AF, Tab 10

at 20. On June 19, 2015, the agency retroactively paid the appellant for the

period from April 5 to May 2, 2015. IAF, Tab 4 at 15-16.

¶3 The appellant filed a Board appeal of her removal on June 15, 2015.

0865 AF, Tab 1. During the processing of her removal appeal, the appellant

claimed that the agency had suspended her for around 30 days prior to removing

3

her. 0865 AF, Tab 23 at 5, Tab 26, Initial Decision (0865 ID) at 2. The

administrative judge docketed this separate appeal to address the suspension

claim. IAF, Tab 2 at 2. He also docketed a separate individual right of action

(IRA) appeal to address the appellant’s claims of retaliation for whistleblowing

and for protected whistleblower activity raised in a complaint filed with the

Office of Special Counsel. Mosteller v. Department of Veterans Affairs, MSPB

Docket No. DC-1221-16-0107-W-1, Initial Appeal File (0107 AF), Tab 3 at 1-2;

IAF, Tab 5, Initial Decision (ID) at 2 n.1.

¶4 In an acknowledgment order, the administrative judge informed the

appellant of her burden of proving the Board’s jurisdiction over her appeal and he

ordered her to file evidence and argument on the jurisdictional issue. IAF, Tab 2

at 3-4. The appellant responded. IAF, Tab 3.

¶5 Without holding a hearing, the administrative judge dismissed this appeal

for lack of jurisdiction. ID at 1, 5. He found that the Board lacked jurisdiction

over her 14-day suspension. ID at 4-5. He further found that the appellant failed

to refute the agency’s evidence showing that she received retroactive pay for the

period beginning April 5, 2015. ID at 3, 5.

¶6 The appellant has filed a petition for review. Petition for Review (PFR)

File, Tab 1. The agency has filed a response in opposition. PFR File, Tab 3.

DISCUSSION OF ARGUMENTS ON REVIEW

¶7 The Board’s jurisdiction is limited to those matters over which it has been

given jurisdiction by law, rule, or regulation. Maddox v. Merit Systems

Protection Board, 759 F.2d 9, 10 (Fed. Cir. 1985). A suspension for more than

14 days is an appealable action. 5 U.S.C. § 7512(2); Abbott v. U.S. Postal

Service, 121 M.S.P.R. 294, ¶ 6 (2014). A “suspension” is the temporary

placement of an employee in a nonpay, nonduty status. 5 U.S.C. § 7501(2);

Abbott, 121 M.S.P.R. 294, ¶ 6. The appellant has the burden of proving the

4

Board’s jurisdiction by a preponderance of the evidence. 2 5 C.F.R.

§ 1201.56(b)(2)(i)(A). If an appellant makes a nonfrivolous allegation 3 of Board

jurisdiction over an appeal, she is entitled to a hearing on the jurisdictional

question. Garcia v. Department of Homeland Security, 437 F.3d 1322, 1344

(Fed. Cir. 2006) (en banc). The Board’s jurisdiction is determined by the nature

of the agency’s action against an appellant at the time her appeal is filed. Lefavor

v. Department of the Navy, 115 M.S.P.R. 120, ¶ 10 (2010).

¶8 Here, the agency did not pay the appellant between March 22 and May 2,

2015. IAF, Tab 4 at 15. As the administrative judge properly found, the

appellant’s 14-day suspension, from March 22 to April 4, 2015, is not an

appealable action. ID at 3 n.2; 0865 AF, Tab 10 at 132; see Lefavor,

115 M.S.P.R. 120, ¶ 5 (2010) (stating that a suspension of 14 days or less is not

an appealable action). The administrative judge also found that the appellant

failed to refute the agency’s evidence proving that she received retroactive pay. 4

ID at 5. We agree and find that she was paid retroactively on June 19, 2015, for

the period from April 5 to May 2, 2015. 5 IAF, Tab 4 at 15-16. Although the

appellant was effectively suspended for longer than 14 days because the agency

did not pay her after placing her on “authorized absence” on April 6, 2015, she

2

A preponderance of the evidence is the degree of relevant evidence that a reasonable

person, considering the record as a whole, would accept as sufficient to find that a

contested fact is more likely to be true than untrue. 5 C.F.R. § 1201.4(q).

3

A nonfrivolous allegation is an assertion that, if proven, could establish the matter at

issue. 5 C.F.R. § 1201.4(s).

4

Although the administrative judge mistakenly stated that the agency retroactively paid

the appellant for 10 work days, or 80 hours, the record shows that the agency

retroactively paid her for 20 work days, or 160 hours. ID at 3, 5; IAF, Tab 4 at 15-16.

However, such error does not affect the appellant’s substantive rights, and thus, it does

not provide a reason to disturb the initial decision. See Panter v. Department of the Air

Force, 22 M.S.P.R. 281, 282 (1984) (stating that an adjudicatory error that is not

prejudicial to a party’s substantive rights provides no basis for reversal of an initial

decision).

5

The record also shows that the appellant did not receive pay during her 14-day

suspension from March 22 to April 4, 2015. IAF, Tab 4 at 15; 0865 AF, Tab 10 at 132.

5

did not raise her suspension claim until after she received retroactive pay. 6

Further, because the record supports a finding that the two consecutive

suspensions arose out of separate events and circumstances, they cannot be

combined into one suspension. 7 See Jennings v. Merit Systems Protection Board,

59 F.3d 159, 160-61 (Fed. Cir. 1995) (prohibiting the combination of two

consecutive suspensions for purposes of determining jurisdiction because they

arose out of separate events and circumstances). For these reasons, we find that

the appellant has failed to make a nonfrivolous allegation of jurisdiction over a

suspension for more than 14 days.

¶9 In her petition for review, the appellant seems to acknowledge that she was

paid retroactively, but alleges that the agency’s error in not paying her in the first

instance was both discriminatory and retaliatory. PFR File, Tab 1 at 59-60. She

also raises additional claims of discrimination and prohibited personnel practices

on review. Id. at 57-61. However, the Board does not have jurisdiction over

discrimination claims absent an otherwise appealable action. Pridgen v. Office of

Management and Budget, 117 M.S.P.R. 665, ¶7 (2012); see 5 U.S.C.

§ 7702(a)(1). Further, prohibited personnel practices under 5 U.S.C. § 2302(b)

are not an independent source of Board jurisdiction. Wren v. Department of the

Army, 2 M.S.P.R. 1, 2 (1980), aff’d, 681 F.2d 867 (D.C. Cir. 1982). Additionally,

her claims of retaliation for whistleblowing and for protected whistleblower

activity are being addressed in her separately docketed IRA appeal. PFR File,

Tab 1 at 57-60; 0107 AF, Tab 3 at 1-2.

6

During the course of the appellant’s removal appeal filed on June 15, 2015, she raised

a suspension claim for the first time on October 28, 2015, in a prehearing submission.

0865 AF, Tab 1, Tab 23 at 5. She received retroactive pay on June 19, 2015. IAF,

Tab 4 at 15.

7

The appellant’s first suspension was based on the charges of failure to follow

directions and inappropriate communication, while her placement on “authorized

absence” was unexplained and coincided with her proposed removal for alleged lack of

candor. 0865 AF, Tab 10 at 113-15, 132-33.

6

¶10 The appellant claims that the agency refused to cooperate in the discovery

process below. PFR File, Tab 1 at 59. However, because she did not file a

motion to compel, she is precluded from raising this discovery issue for the first

time on review. 8 See Szejner v. Office of Personnel Management, 99 M.S.P.R.

275, ¶ 5 (2005), aff’d, 167 F. App’x 217 (Fed. Cir. 2006).

¶11 Next, the appellant alleges that the administrative judge abused his

discretion by dismissing her appeal for her having untimely filed her response to

the acknowledgment order. PFR File, Tab 1 at 58. We disagree. Although the

administrative judge noted that the appellant’s response was untimely filed, he

still considered it and he did not base his dismissal of her appeal on her untimely

response. ID at 5 n.3. Rather, he dismissed her appeal for lack of jurisdiction.

ID at 1, 5.

¶12 The appellant also argues that the administrative judge abused his discretion

by separating her claims of a suspension and whistleblower reprisal from her

removal appeal. PFR File, Tab 1 at 61-62; see, e.g., McCarthy v. International

Boundary and Water Commission, 116 M.S.P.R. 594, ¶¶ 11-13 (2011) (finding

that the administrative judge abused his discretion by failing to join the

appellant’s related IRA appeals), aff’d, 497 F. App’x 4 (Fed. Cir. 2012);

Stein ‑ Verbit v. Department of Commerce, 72 M.S.P.R. 332, 339 (1996) (finding

that the administrative judge abused her discretion by bifurcating the charges of

the agency’s removal action). The decision to bifurcate a Board appeal is a

matter committed to the sound discretion of an administrative judge.

Stein ‑ Verbit, 72 M.S.P.R. at 339. Because the administrative judge separated the

appellant’s suspension claim to resolve whether the Board had jurisdiction over

it, we find that he did not abuse his discretion. 0865 ID at 2; see Stein-Verbit,

8

The appellant’s submission of a motion to compel from her separate removal appeal

does not show that she filed a motion to compel in this appeal. PFR File, Tab 1

at 49-52.

7

72 M.S.P.R. at 340 (stating that bifurcation is an appropriate and efficient means

of adjudicating issues of timeliness and jurisdiction).

¶13 The appellant further alleges that the administrative judge’s dismissal of her

appeal prevented her from obtaining compensatory damages under the Civil

Rights Act of 1991 (CRA). PFR File, Tab 1 at 59, 61; see Hocker v. Department

of Transportation, 63 M.S.P.R. 497, 505 (1994) (holding that an appellant who

prevails in an appeal before the Board based on a finding of discrimination may

recover compensatory damages from an agency pursuant to the CRA), aff’d per

curiam, 64 F.3d 676 (Fed. Cir. 1995) (Table). Here, because the appellant did not

prevail in her Board appeal based on a finding of discrimination, she may not

claim compensatory damages. See Hocker, 63 M.S.P.R. at 505. She also argues

that the Board must afford her an opportunity to raise a claim for consequential

damages before dismissing her IRA appeal. PFR File, Tab 1 at 61; see

Lachenmyer v. Federal Election Commission, 92 M.S.P.R. 80, ¶ 10 (2002)

(finding that the administrative judge should afford the appellant a specific

opportunity to raise a claim for consequential damages before dismissing his IRA

appeal as moot); see also Santos v. Department of Energy, 99 M.S.P.R. 475, ¶ 7

(2005) (finding that an administrative judge erred in dismissing an IRA appeal as

moot before providing the appellant with an opportunity to request attorney’s

fees). However, the appellant may address claims, including her possible

entitlement to consequential damages, that are related to her IRA appeal in that

separately docketed action.

¶14 Finally, the appellant argues that the administrative judge was biased

because he did not find jurisdiction over her suspension claim. PFR File, Tab 1

at 57, 60. The Board will not infer bias based on an administrative judge’s

case‑related rulings. Vaughn v. Department of the Treasury, 119 M.S.P.R. 605,

¶ 18 (2013). We find that the appellant’s broad allegation of bias is insufficient

to rebut the presumption of the administrative judge’s honesty and integrity. See

Oliver v. Department of Transportation, 1 M.S.P.R. 382, 386 (1980) (observing

8

that, 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).

¶15 Accordingly, we find that the administrative judge properly dismissed the

appellant’s suspension appeal for lack of jurisdiction. 9

NOTICE TO THE APPELLANT REGARDING

YOUR FURTHER REVIEW RIGHTS 10

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

Court of Appeals for the Federal Circuit. You must submit your request to the

court at the following address:

United States Court of Appeals

for the Federal Circuit

717 Madison Place, N.W.

Washington, DC 20439

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

9

In light of our disposition, we express no opinion as to whether this appeal was timely

filed.

10

The appellant argues that her appeal is a mixed-case appeal because she has raised

claims of discrimination. PFR File, Tab 1 at 62. A mixed-case appeal is an appeal filed

directly to the Board that alleges that an appealable agency action was effected, in

whole or in part, because of discrimination on the basis of race, color, religion, sex,

national origin, disability, age, genetic information, or reprisal. Caros v. Department of

Homeland Security, 122 M.S.P.R. 231, ¶ 20 (2015). In Kloeckner v. Solis, 133 S. Ct.

596 (2012), the U.S. Supreme Court held that an employee who receives a final Board

decision in a mixed case may seek review in Federal district court, not the U.S. Court of

Appeals for the Federal Circuit, regardless of whether the Board addresses the

substance of the discrimination claim. Here, however, because the appellant has failed

to make a nonfrivolous allegation of Board jurisdiction, her appeal is not considered a

mixed-case appeal, and we need not provide notice of mixed-case appeal rights. See,

e.g., Evans v. Department of Veterans Affairs, 119 M.S.P.R. 257, ¶¶ 9-10 (2013)

(finding that the Board need not provide notice of mixed-case appeal rights because the

appellant was not affected by an appealable agency action).

9

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 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 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.

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: ______________________________

Jennifer Everling

Acting Clerk of the Board

Washington, D.C.