The opinion
UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
2017 MSPB 4
Docket No. NY-315H-13-0277-I-1
Robin Sabio,
Appellant,
v.
Department of Veterans Affairs,
Agency.
January 6, 2017
Charles Wilson, Esquire, and Tony Fisher, Esquire, Buffalo, New York,
for the appellant.
Jeffrey L. Whiting, Esquire, Buffalo, New York, for the agency.
BEFORE
Susan Tsui Grundmann, Chairman
Mark A. Robbins, Member
OPINION AND ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
denied her affirmative defense of race-based discrimination in connection with
the agency’s rescinded termination action. For the reasons discussed below, we
DENY the petition for review and AFFIRM the initial decision, as MODIFIED by
this Opinion and Order. We take this opportunity to clarify when an
administrative judge must hold a hearing on a discrimination claim raised in
connection with an otherwise appealable action and clarify the administrative
judge’s analysis of the appellant’s race discrimination claim consistent
with Savage v. Department of the Army, 122 M.S.P.R. 612 (2015).
2
BACKGROUND
¶2 Effective June 17, 2012, the appellant began a 2-year term appointment
with the agency as a GS-7 Veterans Claims Examiner (VCE) on the Veterans
Retraining Assistance Program (VRAP) team. Initial Appeal File (IAF), Tab 8
at 9. Her competitive‑service appointment was subject to a 1-year probationary
period. Id. On May 31, 2013, the agency notified her that she would be
terminated from her position during her probationary period due to unsatisfactory
performance. Id. at 11. The agency processed her probationary termination
effective June 14, 2013, at 4:30 p.m. Id. at 11, 21. She appealed her termination
to the Board. IAF, Tab 1. Subsequently, the agency determined that the
appellant had completed her probationary period just before the effective date and
time of her termination. IAF, Tab 18 at 4. Because the agency had improperly
terminated the appellant without providing her the notice and opportunity to
respond that is due a tenured Federal employee, the agency agreed to rescind the
removal notice, return the appellant to her term position, and restore her to the
status quo ante. Id. at 4-5; IAF, Tab 21. The appellant was reinstated to her
position, IAF, Tab 25 at 18, and remained employed for the remainder of the
2-year term, IAF, Tab 38 at 1.
¶3 Although the agency rescinded her termination, the appellant continued
pursuing her discrimination claims with the Board. 1 In a November 8, 2013 order
and notice of hearing and prehearing conference, the administrative judge
scheduled the hearing and prehearing conference and ordered the parties to file
1
When, as here, an appellant has an outstanding claim for compensatory damages based
on discrimination, the agency’s complete rescission of the action appealed does not
afford her all of the relief available before the Board and the appeal is not moot. Hess
v. U.S. Postal Service, 123 M.S.P.R. 183, ¶¶ 8-9, 19-20 (2016); Wrighten v. Office of
Personnel Management, 89 M.S.P.R. 163, ¶ 9 (2001).
3
their prehearing submissions. IAF, Tab 22. In a November 22, 2013 affirmative
defenses order, the administrative judge directed the appellant to clarify her
affirmative defenses, including her hostile work environment and discrimination
claims. IAF, Tab 24. The appellant did not respond to the affirmative defenses
order and did not file her prehearing submission. IAF, Tab 29 at 2. On
November 26, 2013, the agency served discovery on the appellant. IAF, Tab 26
at 8-21. The appellant failed to respond to the agency’s discovery requests within
the 20-day response period, and the agency filed a motion to dismiss the appeal
and/or for sanctions. Id. at 4-6. The appellant did not respond to the agency’s
motion.
¶4 On January 17, 2014, the administrative judge denied the agency’s motion
to dismiss and for sanctions, ordered the appellant to respond to the agency’s
discovery requests within 10 days, and ordered her to show cause within 10 days
why appropriate sanctions should not be imposed for her failure to comply with
the orders regarding her affirmative defenses and prehearing submissions. IAF,
Tab 29. On or about February 1, 2014, the appellant, through counsel, submitted
an untimely response to the January 17, 2014 order, asserting that she had been
overwhelmed with moving, a divorce proceeding, and her son’s health issues.
IAF, Tab 33 at 1-2. She further asserted that she had not had time to work on the
agency’s discovery requests, but that her counsel “eventually responde d” to them.
Id. The appellant did not explain why she failed to respond to the affirmative
defenses order or why she failed to submit her prehearing submissions pursuant to
the order and notice of hearing and prehearing conference. Id. at 1-4.
¶5 On May 18, 2015, the administrative judge issued an order imposing
sanctions against the appellant for failing to comply with his hearing and
prehearing conference order and affirmative defenses order. IAF, Tab 43. The
administrative judge found that the appellant’s response to the show cause order
was nonresponsive to the question of why she had failed to respond to his other
orders and that, even assuming that her personal circumstances caused her failure
4
to comply with the orders, her explanation was unpersuasi ve. Id. at 2.
Accordingly, the administrative judge sanctioned the appellant by: (1) drawing
an inference in favor of the agency that, even assuming a motive to discriminate,
it would have taken the same adverse action against the appellant due to her p oor
performance; and (2) limiting the appellant’s presentation of her case to her own
testimony, if she chose to testify, and to information and evidence already in the
record, including her responses to the agency’s discovery requests. Id. at 3-4.
¶6 The same day, the administrative judge also issued an order on the
appellant’s affirmative defenses. IAF, Tab 44. Although the appellant had not
responded to the affirmative defenses order, the administrative judge considered
her responses to the agency’s discovery requests, which had been entered into the
record by the agency. Id. at 2-3; IAF, Tab 32 at 24-32. Based on the information
in her discovery responses, the administrative judge found that the appellant had
failed to make a nonfrivolous allegation that she was subjected to a hostile work
environment that resulted in her unacceptable performance and therefore struck
her hostile work environment affirmative defense. IAF, Tab 44 at 2-3. The
administrative judge found, however, that the appellant’s responses to the
discovery requests sufficiently alleged discrimination based on race and notified
her of her burden of proof to establish that affirmative defense. 2 Id. at 3‑5.
2
The administrative judge notified the appellant of her burden of proof to establish her
affirmative defense of race-based discrimination pursuant to the burden-shifting method
established by McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973). IAF,
Tab 44 at 3-5. After the administrative judge issued this order, the Board issued its
decision in Savage, 122 M.S.P.R. 612, ¶¶ 46, 50, which held that the burden-shifting
framework in McDonnell Douglas has no application to Board proceedings. Although
the appellant was not notified of the correct standard and burden of proof applicable to
her affirmative defense before the hearing, the initial decision set forth the correct
standard under Savage, thereby providing her with notice and an opportunity to meet
this burden on review. IAF, Tab 109, Initial Decision at 5‑9; see Easterling v. U.S.
Postal Service, 110 M.S.P.R. 41, ¶ 11 (2008).
5
¶7 The hearing was held over the course of 4 days on August 18,
September 10, 11, and 24, 2015. IAF, Tab 109, Initial Decision (ID) at 5. After
the first day of the hearing, the appellant submitted an affidavit by a former
coworker, M.L., alleging disparate treatment of African American females on the
VRAP team. 3 IAF, Tab 80. The agency moved to strike M.L.’s affidavit from the
record and for sanctions against the appellant for violating the prior order
limiting her to her own testimony and to information already in the record. IAF,
Tab 83. The agency also provided a copy of M.L.’s resignation letter and an
affidavit executed by M.L. in connection with her own Board appeal, in which
she attested that “[d]iscrimination did not cause [her] to resign.” Id. at 10-12, 14.
During the hearing on September 10, 2015, the administrative judge struck M.L.’s
affidavit from the record pursuant to the sanctions order and denied the agency’s
motion for further sanctions. Hearing Compact Disc (HCD) (Sept. 10, 2015).
¶8 On September 23, 2015, the appellant moved “to admit the affidavit and
documents of [M.L.] submitted in compliance with 5 C.F.R. § 1201.34 for a
permissive [i]ntervenor” and requested that M.L. “or any other of the African
American female non supervisory employees in the VRA P program during [the
appellant’s] employment be granted permission to file a brief as an amicus
curiae.” IAF, Tab 89 at 5. During the last day of the hearing, the administrative
judge denied the appellant’s motion. HCD (Sept. 24, 2015). The appellant noted
her objection for the record. Id. After the hearing, both parties filed closing
statements, IAF, Tabs 94, 100, and the appellant moved to strike the agency’s
documents pertaining to M.L. and the agency’s closing brief, IAF, Tabs 91, 102.
3
The appellant’s counsel represented M.L. in her separate Board appeal. Hearing
Compact Disc (Sept. 10, 2015).
6
¶9 In an initial decision, the administrative judge found that the appellant
failed to show by preponderant evidence 4 that her rescinded termination was
motivated in any part by race discrimination and that she failed to show that the
agency’s reasons in support of its action were a mere pretext for race
discrimination. ID at 25. Accordingly, the administrative judge denied the
appellant’s affirmative defense. Id. The administrative judge did not rule on the
appellant’s motion to strike the documents regarding M.L.’s Board appeal or her
motion to strike the agency’s closing brief.
¶10 The appellant has filed a petition for review of the initial decision and a
supplement to her petition for review challenging all of the administrative judge’s
findings and rulings. Petition for Review (PFR) File, Tabs 1, 3. The agency has
responded in opposition to the appellant’s petition for review, and the appellant
has replied to the agency’s opposition. PFR File, Tabs 4, 6. The appellant also
has filed motions to submit two additional pleadings, and the agency has
responded in opposition. PFR File, Tabs 7-8, 10.
ANALYSIS
The appellant’s motions to submit additional pleadings are denied.
¶11 After submitting her petition for review, a supplemental petition for
review, and a reply to the agency’s response to her petition for review, the
appellant requested leave to file: (1) a motion to strike the agency’s response to
her petition for review on the ground that it does not comply with the Board’s
regulations; and (2) a supplemental pleading to “correct mistakes, address
insufficiency of evidence, as well as answer a few points in the non -compliant
Agency Response that may not have been addressed.” PFR File, Tabs 7-8.
4
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).
7
¶12 The Board’s regulations specify that a response to a petition for review is
limited to 30 pages or 7,500 words, whichever is less, and that pleadings must be
double spaced. 5 C.F.R. § 1201.114(h). Although the agency’s response, which
is single spaced, does not technically comply with the Board’s regulations , it
substantially complies with them because it does not exceed the 7,500-word limit.
PFR File, Tab 4 at 4-14. Thus, we deny the appellant’s request to file a motion to
strike the agency’s response.
¶13 We also deny the appellant’s request for leave to submit a supplemental
pleading to allow her to “correct mistakes, address insufficiency of evidence, as
well as answer a few points in the non-compliant Agency Response that may not
have been addressed” because she has failed to show that this information is new
and material or that it was unavailable before the record closed. PFR File, Tab 8
at 4; see 5 C.F.R. § 1201.114(k). Moreover, the appellant already has been
afforded ample opportunity to present her arguments on review; she has filed a
petition for review, a supplemental petition for review, and a reply to the
agency’s response, and received a 10-day extension to file her supplemental
petition for review. PFR File, Tabs 1-3, 6. We further find unavailing the
appellant’s contention that a supplemental pleading is necessary to address the
agency’s “non-compliant” response because, as discussed above, the agency’s
response substantially complies with the Board’s regulations.
The appellant’s motions to strike documents from the record below and to strike
the agency’s closing brief are denied.
¶14 As stated above, the administrative judge did not rule on the appellant’s
motion to strike the agency’s submission of M.L.’s resignation letter and her
affidavit regarding her resignation or the appellant’s motion to strike the agency’s
closing brief. We have considered them here and, for the reasons discussed
below, deny the appellant’s motions. Because we deny the appellant’s motions,
the administrative judge’s failure to rule on them below did not prejudice the
8
appellant’s substantive rights. See Panter v. Department of the Air Force,
22 M.S.P.R. 281, 282 (1984).
¶15 In response to the appellant’s submission of M.L.’s affidavit below, the
agency filed a copy of M.L.’s resignation letter and an affidavit executed by M.L.
in connection with her own Board appeal. IAF, Tab 83. The appellant moved to
strike these documents and for sanctions because “the inclusion of this
information in [the instant case] does not allow [M.L.] to possess a clean official
record,” as agreed to in her settlement agreement. IAF, Tab 91 at 5. The agency
opposed the appellant’s motion. 5 IAF, Tab 106. We deny the appellant’s motion
to strike M.L.’s resignation letter and affidavit because the appellant’s
contentions regarding the terms of a settlement agreement in another appeal , even
if true, provide no basis for striking the agency’s submission in this appeal.
¶16 The appellant also moved to strike the agency’s closing brief, arguing that
the agency should not be permitted to submit a “Post Closing Brief as a Substitute
for a Closing Argument or Statement” and because she “feels that the brief . . .
does not summarize the case, the law or what occurred in the hearing.” IAF,
Tab 102 at 4. The administrative judge allowed the parties to submit closing
arguments after the hearing, and the agency timely filed its closing submission,
titled “Post Hearing Brief,” which set forth the procedural history of this appeal,
the undisputed facts, and the agency’s legal arguments. HCD (Sept. 24, 2015);
IAF, Tab 94. We find no merit to the appellant’s assertion that the agency’s
5
The appellant appears to object to the agency’s October 9, 2015 opposition to her
motion to strike and for sanctions because it was submitted after the close of the record
on October 7, 2015. IAF, Tab 107 at 4. However, the Board will accept a submission
after the close of the record if “[i]t is in rebuttal to new evidence or argument submitted
by the other party just before the record closed.” 5 C.F.R. § 1201.59(c)(2). Generally,
unless the administrative judge provides otherwise, “any objection to a written motion
must be filed within 10 days from the date of service of the motion.” 5 C.F.R.
§ 1201.55(b). Thus, because the appellant’s motion to strike was filed only 5 days
before the close of the record, the agency’s rebuttal, filed 7 days later, is permissible.
9
closing submission somehow exceeds the scope of the closing arguments
approved by the administrative judge or that it should be stricken because the
appellant disagrees with its contents. Accordingly, we deny the appellant’s
motion to strike the agency’s closing brief.
The administrative judge properly denied the appellant’s motion to admit M.L.’s
affidavit and to allow permissive intervenors in this appeal.
¶17 As stated above, the appellant submitted a motion to admit M.L.’s affidavit
regarding disparate treatment in the VRAP and other documents as a “permissive
[i]ntervenor” and requested permission for M.L. and other “African American
female non supervisory employees in the VRAP program during [the appellant’s]
employment” to file amicus briefs. IAF, Tab 89 at 5. The administrative judge
denied the appellant’s motion. HCD (Sept. 24, 2015). On review, the appellant
moves that the Board reverse the administrative judge’s ruling and admit M.L.’s
affidavit and “documents of an African American employee submitted in
compliance with 5 C.F.R. § 1201.34 for a permissive intervener [sic].” PFR File,
Tab 3 at 25.
¶18 We find no basis to disturb the administrative judge’s decision to strike
M.L.’s affidavit, which the appellant did not submit until after the first day of the
hearing. IAF, Tab 80. Pursuant to the sanctions order, the appellant was limited
in the presentation of her case to her own testimony and to information already in
the record. IAF, Tab 43. The appellant has not challenged the sanctions order,
and we discern no basis to find that the administrative judge abused his discretion
in imposing the sanctions after the appellant’s repeated failures to comply with
his orders regarding her affirmative defenses and prehearing submissions . See
Smets v. Department of the Navy, 117 M.S.P.R. 164, ¶ 11 (2011) (stating that
imposing sanctions is a matter within the administrative judge’s sound discretion
and that, absent a showing that such discretion has been abused, the sanctions
decision will not be found to constitute reversible error) , aff’d, 498 F. App’x 1
(Fed. Cir. 2012).
10
¶19 We also find no merit to the appellant’s contention that M.L.’s affidavit
should be admitted in the instant appeal because M.L. is or should be a
permissive intervenor. PFR File, Tab 3 at 25. “‘Permissive’ intervenors are
those parties who may be permitted to participate if the proceeding will affect
them directly and if intervention is otherwise appropriate under law.” 5 C.F.R.
§ 1201.34(a). Permission to intervene will be granted “where the requester will
be affected directly by the outcome of the proceeding.” 5 C.F.R. § 1201.34(c)(2).
Here, M.L. has not requested to intervene in the instant matter and, even if she
did, she could not show that she would be “directly affected” by the outcome of
this appeal. 5 C.F.R. § 1201.34(c)(2). As such, the administrative judge properly
denied the appellant’s request to permit M.L. to intervene in this appeal.
The appellant is not entitled to a hearing on her facially deficient hostile work
environment affirmative defense.
¶20 In her initial appeal, the appellant appeared to raise a hostile work
environment affirmative defense, alleging that she witnessed “inappropriate
touching” and heard “joking, laughing, giggling and intimate conversations” on a
number of occasions between a married Senior VCE and another married Senior
VCE, who referred to herself as an “Office Wife.” IAF, Tab 1 at 5. According to
the appellant, “[w]itnessing this unexpected, inappropr iate and at times offensive
behavior . . . made it extremely difficult to work and carry out assignments, since
this was a distraction many times throughout the day, every day.” Id.
¶21 In the order directing the appellant to clarify her affirmative defenses, the
administrative judge noted that the appellant had not alleged that she had been
personally harassed on the basis of her sex, but rather that she was subjected to a
hostile work environment when she observed inappropriate behavior of a sexual
nature between a Senior VCE and at least one other female employee. IAF,
Tab 24 at 7. The administrative judge stated that it was “unclear whether the
appellant’s claim is cognizable under the law” and ordered her to make a
nonfrivolous allegation of a hostile work environment based on sex
11
discrimination by showing that the alleged conduct directed at others had the
purpose or effect of unreasonably interfering with her work performance or of
creating an intimidating, hostile, or offensive working environment. Id. at 7-8.
As noted above, however, the appellant did not respond to the affirmative
defenses order, and the administrative judge ultimately struck her hostile work
environment affirmative defense. IAF, Tab 44 at 2-3.
¶22 Over a month later, the appellant notified the administrative judge that she
objected to the ruling, arguing that an “ongoing display and environment of
viewing sexual escapades in the workplace” created a hostile work environment
that affected her performance. IAF, Tab 51 at 3. She stated that the Senior VCEs
“carried on a sexual liaison on site and in full view of the people that were being
trained” and that “changes [in one’s performance] can and do occur when a party
(Appellant) witnesses that there is a reward to be obtained by an individual who
has an inappropriate sexual relationship; especially if these observations occur
during training.” Id. In subsequent pleadings, the appellant reiterated her
contentions that witnessing “a pervasive atmosphere of sexual escapades and
relationships occurring” created a hostile work environment that affected her
performance. IAF, Tab 53 at 4‑5, Tab 55 at 10, 13.
¶23 The administrative judge considered the appellant’s objectio n to his ruling
to strike her hostile work environment affirmative defense as a request for
reconsideration of the ruling, which he denied during a status conference. IAF,
Tabs 54, 68. The appellant noted her objection for the record. IAF, Tab 68. On
review, the appellant contends, without supporting argument, that the
administrative judge erred in striking her affirmative defense of a hostile work
environment based on sex prior to the hearing. PFR File, Tab 3 at 25, Tab 6 at 7.
¶24 Sections 7701(a)(1) and 7702(a)(1) of title 5 provide that an appellant is
entitled to a hearing in any appeal brought before the Board under any law, rule,
or regulation, and that she is entitled to have the Board decide the merits of any
claim of statutorily prohibited discrimination raised in such an appeal. 5 U.S.C.
12
§§ 7701(a)(1), 7702(a)(1). Interpreting these provisions and the legislative
history of the Civil Service Reform Act of 1978, the U.S. Court of Appeals for
the Federal Circuit held that the Board lacks the authority to grant summary
judgment and that an appellant’s right to a hearing is not contingent on her
showing that there are no genuine and material issues of fact in dispute. Crispin
v. Department of Commerce, 732 F.2d 919, 922 (Fed. Cir. 1984) (quoting H.R.
Rep. No. 95‑1717, at 137 (1978) (Conf. Rep.), reprinted in 1978 U.S.C.C.A.N.
2860, 2871). However, the issue of when an administrative judge must hold a
hearing on a discrimination claim raised in connection with an otherwise
appealable action has a complex history before the Board. We take this
opportunity to clarify this issue.
¶25 In Crawford v. U.S. Postal Service, 70 M.S.P.R. 416, 423-24 (1996), the
Board held that an administrative judge may strike a discrimination claim before
a hearing if the appellant fails to raise nonfrivolous factual allegations that, if
proven, could establish a prima facie case of discrimination. In Currier v. U.S.
Postal Service, 79 M.S.P.R. 177, 180-82 (1998), the Board overruled Crawford
and found instead that, when an appellant who claims discrimination has
requested a hearing, the administrative judge may not find against the appellant
on the discrimination claim without holding such a hearing. In Browder v.
Department of the Navy, 81 M.S.P.R. 71, ¶ 6 (1999), aff’d, 250 F.3d 763 (Fed.
Cir. 2000) (Table), the Board clarified its holding in Currier, explaining that, if
an appellant makes a claim of prohibited discrimination in connection with an
otherwise appealable action, the appellant must be afforded the opportunity for a
hearing and a decision on the merits of the claim. Browder further held,
however, that striking a claim because an appellant did not allege facts that, if
proven, would establish a prima facie case of discrimination was not harmful
error because the appellant had failed to allege a cognizable claim of statutorily
prohibited discrimination. Id., ¶¶ 7-8. Subsequently, in Redd v. U.S. Postal
Service, 101 M.S.P.R. 182, ¶¶ 5, 13 (2006) (citing Browder, 81 M.S.P.R. 71,
13
¶¶ 6-8), the Board overruled Currier, holding that an appellant does not have an
unconditional right to a hearing on a discrimination claim and that, when an
appellant’s allegations in support of a discrimination claim are deficient as a
matter of law, the claim may be disposed of without a hearing . Redd also
declined to follow Crispin insofar as it held that the Board may not render
summary judgment in adjudicating discrimination claims because it concluded
that the Federal Circuit has no authority to review Board findings on the
substance of discrimination law, and thus, no authority to review the Board’s
procedures for adjudicating such claims. Id., ¶ 12. Recently, in Savage, the
Board overruled Redd to the extent it declined to follow Crispin and reaffirmed
Crispin’s holding that the Board’s procedures do not provide for summary
judgment. Savage, 122 M.S.P.R. 612, ¶ 46 & n.10 (citing Crispin, 732 F.2d
at 922).
¶26 Although Savage overruled Redd to the extent that it erroneously assumed
that the Board’s procedures for deciding discrimination claims we re a matter of
substantive discrimination law, it did not overrule Redd’s holding that, when an
appellant’s allegations in support of a discrimination claim are deficient as a
matter of law, the discrimination claim may be disposed of without a hearing.
See Savage, 122 M.S.P.R. 612, ¶ 46 n.10; Redd, 101 M.S.P.R. 182, ¶ 13. This
distinction is made less clear, however, because Redd improperly conflates a
post-discovery grant of summary judgment with a pre-discovery dismissal for
failure to state a claim. Redd, 101 M.S.P.R. 182, ¶ 13. Specifically, in
discussing when a deficient claim may be dismissed without a hearing, Redd
states:
The Board has held that, notwithstanding Currier, when an
appellant’s allegations in support of a discrimination claim are
deficient as a matter of law, the claim may be disposed of without a
hearing. [Browder, 81 M.S.P.R. 71, ¶¶ 6-8]. We now hold that when
the appellant’s factual allegations in support of a discrimination
claim, taken as true, could not support an inference that the agency’s
action was a pretext for discrimination, the [administrative judge] is
14
not required to permit the appellant to attempt to prove his
allegations at an evidentiary hearing. In other words, when there is
no genuine dispute of material fact regarding discrimination, an
evidentiary hearing on discrimination need not be conducted.
Id. The first two sentences in the foregoing paragraph concern dismissal for
failure to state a claim, whereas the last sentence incorrectly equates dismissal for
failure to state a claim to a grant of summary judgment. This is problematic
because a dismissal without a hearing when the appellant’s factual allegations in
support of a discrimination claim, taken as true, could not support an inference
that the agency’s action was discriminatory is not the same thing as a
post-discovery judgment without a hearing on the basis that there is no genuine
dispute of material fact and the nonmoving party is entitled to judgment as a
matter of law.
¶27 The Federal Rules of Civil Procedure, which are not controlling but may be
used as a general guide in proceedings before the Board, Social Security
Administration v. Long, 113 M.S.P.R. 190, ¶ 10 (2010), aff’d, 635 F.3d 526 (Fed.
Cir. 2011), underscore the difference between summary judgment and dismissal
for failure to state claim upon which relief may be granted. See Fed. R.
Civ. P. 12(b)(6); Fed. R. Civ. P. 56(a). “Dismissal for failure to state a claim
under Rule 12(b)(6) is proper only when a [party] can prove no set of facts in
support of [his] claim which would entitle him to relief.” Leider v. United States,
301 F.3d 1290, 1295 (Fed. Cir. 2002) (internal quotations omitted). In
considering a motion to dismiss for failure to state a claim under Rule 12(b)(6),
the court must assume that all well-pled factual allegations are true and draw all
reasonable inferences in favor of the nonmoving party. Leider, 301 F.3d at 1295.
On the other hand, the court will grant summary judgment pursuant to Rule 56(a)
when “there is no genuine dispute as to any material fact and the movant is
entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a); see Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 247‑48 (1986). A factual dispute is “genuine”
when there is sufficient evidence supporting the contention of the party seeking
15
an evidentiary hearing for the trier of fact to resolve the dispute in that party’s
favor. Anderson, 477 U.S. at 248-49.
¶28 Thus, contrary to the statement in Redd, an administrative judge may not
dispose of a discrimination claim without a hearing when there is no genuine
dispute of material fact regarding discrimination because to do so would be an
improper grant of summary judgment. See Redd, 101 M.S.P.R. 182, ¶ 13.
However, Redd is correct that an administrative judge is not required to hold a
hearing on a discrimination claim raised in connection with an otherwise
appealable action when the appellant’s factual allegations in support of a
discrimination claim, taken as true, could not support an inferenc e that the
agency’s action was discriminatory. Id. The current state of Board law on this
issue is most accurately summarized in Browder, which was cited in Redd and
which held that, when an appellant’s allegations in support of a discrimination
claim are deficient as a matter of law, the claim may be disposed of without a
hearing. 6 Redd, 101 M.S.P.R. 182, ¶ 13; Browder, 81 M.S.P.R. 71, ¶¶ 6‑8.
¶29 As recently articulated in Hess v. U.S. Postal Service, 123 M.S.P.R. 183,
¶¶ 9-10 (2016), if an appellant states a cognizable claim of statutorily prohibited
discrimination in connection with an otherwise appealable action, the Board must
decide those discrimination claims only after the record is complete, in
accordance with its appellate procedures as defined in title 5. On the other hand,
if an appellant fails to allege a cognizable claim of discrimination in connection
with the otherwise appealable action, the claim may be disposed of without a
6
We disagree with Browder, however, to the extent that it held that it was not harmful
error for the administrative judge to strike a facially deficient discrimination claim
without holding a hearing because the administrative judge’s action under such
circumstances was not error at all. Browder, 81 M.S.P.R. 71, ¶¶ 7‑8.
16
hearing. 7 Browder, 81 M.S.P.R. 71, ¶¶ 7‑8. A cognizable claim of
discrimination in this context is analogous to a claim that would survive a motion
to dismiss for failure to state a claim.
¶30 Here, as discussed above, the administrative judge found that the appellant
failed to raise a nonfrivolous claim that she was subjected to a hostile work
environment based on sex that resulted in her unacceptable performance and,
therefore, struck that portion of her affirmative defense prior to the hearing. IAF,
Tab 44 at 2-3. In so finding, the administrative judge reasoned that the appellant
failed to explain why she believed that alleged inappropriate sexual conduct on
the part of others in the workplace caused her unacceptable performance and
resulting removal and failed to provide the date, time, and location of each
incident. Id. Additionally, the administrative judge noted that “[s]ome of the
incidents reported were clearly based upon rumor or conversati ons overheard.”
Id. at 2. To the extent that the administrative judge struck the appellant’s hostile
work environment affirmative defense for failure to establish a genuine issue of
material fact in dispute by providing insufficient detail, he improperly rendered
summary judgment on this issue. See Anderson, 477 U.S. at 247‑49.
Nonetheless, we find that he properly struck the appellant’s hostile work
environment affirmative defense because, taking her allegations as true and
7
Although an administrative judge need not hold a hearing on a discrimination claim
raised in connection with an otherwise appealable action when the appellant fails to
state a cognizable claim of discrimination, the Board’s admonition in Redd that
administrative judges should be extremely cautious in resolving discrimination claims
without hearings still applies when determining whether to strike such an affirmative
defense for failure to state a claim. See Redd, 101 M.S.P.R. 182, ¶ 14. Thus, in cases
in which administrative judges will be holding an evidentiary hearing, it generally will
be preferable to allow the appellant to present whatever evidence she has on
discrimination, as this approach promotes development of a complete record, should
either party seek review. Id.
17
drawing all reasonable inferences in her favor, she cannot prevail on her hostile
work environment claim as a matter of law. See Leider, 301 F.3d at 1295.
¶31 Title VII prohibits employers from “discriminat[ing] against any individual
with respect to his compensation, terms, conditions, or privileges of employment,
because of such individual’s race, color, religion, sex, or national origin.”
42 U.S.C. § 2000e‑2(a)(1). Title VII is violated “[w]hen the workplace is
permeated with ‘discriminatory intimidation, ridicule, and insult ’ . . . that is
‘sufficiently severe or pervasive to alter the conditions of the victim’s
employment and create an abusive working environment.’” Harris v. Forklift
Systems, Inc., 510 U.S. 17, 21 (1993) (quoting Meritor Savings Bank v. Vinson,
477 U.S. 57, 65, 67 (1986)). Title VII does not impose a general workplace
civility code and does not prohibit all workplace harassment, but only that which
involves statutorily proscribed forms of discrimination. Oncale v. Sundowner
Offshore Services, Inc., 523 U.S. 75, 80 (1998).
¶32 Accepting as true all of the appellant’s factual allegations about the
“inappropriate sexual relationship” between two coworkers, she has failed to state
a cognizable claim of a hostile work environment based on her sex. Her
allegations that she and others located in proximity to her cubicle—without
regard to their sex—were generally exposed to distracting office flirtation is not
the type of situation covered by title VII. See id. As such, the appellant’s hostile
work environment affirmative defense is facially deficient and, rather than
eliciting relevant, admissible evidence on a disputed fact, a hearing on this claim
would have been an empty ritual. Accordingly, we find no error in the
administrative judge’s decision to strike this claim without a hearing.
The appellant failed to prove her race-based discrimination affirmative defense.
¶33 The appellant argued below that she and other African American VCEs
were treated less favorably than Caucasian VCEs regarding seating assignments,
distributing work assignments, assisting with work assignments, and applying
performance standards. IAF, Tabs 1, 100; HCDs (Aug. 18, 2015) (Sept. 10‑11,
18
2015). During redirect examination at the hearing, the appellant also alleged, for
the first time, that one Senior VCE used racially discriminatory nicknames when
speaking with other Senior VCEs regarding African American VCE trainees.
HCDs (Sept. 10-11, 2015). Based on the evidence and hearing testimony,
however, the administrative judge concluded that the agency did not discriminate
against the appellant in terms of seating assignments, distributing or assisting
with work assignments, or applying performance standards. ID at 1 0-23. In
addition, the administrative judge found that the Senior VCE in question did not
make the alleged discriminatory statements attributed to him by the appellant. ID
at 23-25. The appellant challenges these findings on review. PFR File, Tabs 3,
6.
¶34 Several months before the administrative judge issued the initial decision
in the instant appeal, the Board issued its decision in Savage, which clarified the
evidentiary standards and burdens of proof under which the Board analyzes
discrimination and retaliation claims. Savage, 122 M.S.P.R. 612, ¶¶ 42-43, 51.
Although the administrative judge referenced Savage in his discussion of the
applicable law, ID at 5-7, he applied, in part, the McDonnell Douglas
burden-shifting analytical framework, ID at 7-8, 25. 8 As noted above, in Savage,
the Board held that the McDonnell Douglas framework has no application to
8
To establish a claim of prohibited employment discrimination under the
burden-shifting method of McDonnell Douglas, the employee first must establish a
prima facie case of racial discrimination; the burden then shifts to the agency to
articulate a legitimate nondiscriminatory reason for its action; and, finally, the
employee must show that the agency’s stated reason is merely a pretext for prohibited
discrimination. McDonnell Douglas, 411 U.S. at 802-04. Although the administrative
judge did not expressly refer to the burden-shifting method, he drew an inference in
favor of the agency that it had articulated a legitimate nondiscriminatory reason for its
action, tasked the appellant with showing that the a gency’s stated reason was mere
pretext for discrimination, and concluded that the appellant failed to show that “the
agency’s articulated legitimate nondiscriminatory reasons in support of its action were a
mere pretext for race discrimination.” ID at 7-8, 25.
19
Board proceedings. Savage, 122 M.S.P.R. 612, ¶ 46. Although we agree with the
administrative judge’s conclusion that the appellant failed to establish her
discrimination affirmative defense, we modify the portion of the initial decision
that applies the burden-shifting framework and supplement the administrative
judge’s analysis consistent with Savage.
¶35 In Savage, we stated that, when an appellant asserts an affirmative defense
of discrimination or retaliation under 42 U.S.C. § 2000e-16, 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. Savage, 122 M.S.P.R. 612, ¶ 51. Such a showing is sufficient to establish
that the agency violated 42 U.S.C. § 2000e-16, thereby committing a prohibited
personnel practice under 5 U.S.C. § 2302(b)(1). Naval Station Norfolk-Hearing 2
v. Department of the Navy, 123 M.S.P.R. 144, ¶ 28 (2016); Savage, 122 M.S.P.R.
612, ¶ 51. If the appellant meets this initial 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 or retaliatory motive. Naval
Station Norfolk Hearing 2, 123 M.S.P.R. 144, ¶ 28; Savage, 122 M.S.P.R. 612,
¶ 51. 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. Naval Station
Norfolk-Hearing 2, 123 M.S.P.R. 144, ¶ 28; Savage, 122 M.S.P.R. 612, ¶ 51.
¶36 In determining whether the appellant has met her initial burden to show a
motivating factor, the Board must consider all of the evidence together as a whole
without sorting evidence into different piles, labeled “direct” or “indirect” that
are evaluated differently. Gardner v. Department of Veterans Affairs,
123 M.S.P.R. 647, ¶ 29 (2016) (citing Ortiz v. Werner Enterprises, Inc., 834 F.3d
760 (7th Cir. 2016)). Therefore, we must first determine whether, on the basis of
all of the evidence, the appellant has shown by preponderant evidence that her
termination was motivated by discriminatory animus. Id.
20
¶37 As noted above, the administrative judge found that th e appellant failed to
show that the agency discriminated against her in terms of seating assignments,
distributing work assignments, assisting with work assignments, or applying
performance standards. ID at 10-23. In so finding, the administrative judge
credited the hearing testimony of the appellant’s supervisor (supervisor) who
testified that seating and work were assigned in a nondiscriminatory manner, and
the three Senior VCEs, who all consistently testified that they assisted the
appellant when she came to them for assistance and that they never refused to
help her. ID at 10-15. On review, the appellant argues that the administrative
judge erred in crediting the hearing testimonies of the agency’s witnesses and
ignored evidence. PFR File, Tab 3 at 8-13, 16-18, Tab 6 at 8-16.
¶38 The Board must defer to an administrative judge’s credibility
determinations when they are based, explicitly or implicitly, on observing the
demeanor of witnesses testifying at a hearing, and 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). Here, the
administrative judge explained that he observed each witness who testified at the
hearing and, based on the Hillen factors, 9 found that the agency witnesses
generally were more credible than the appellant because they testified in a
straightforward manner, were consistent with each other and the written record,
and their version of events was inherently more likely than the appellant’s
version of events. ID at 8-9. On the other hand, he found that the appellant’s
version of events often changed depending on who was asking her questions, was
9
In Hillen, the Board held that, to resolve credibility issues, the administrative judge
must identify the factual questions in dispute, summarize the evidence on each disputed
question, state which version he believes, and explain in detail why h e found the chosen
version more credible. Hillen v. Department of the Army, 35 M.S.P.R. 453, 458 (1987).
Hillen further articulated a list of seven factors that the adminis trative judge must
consider in making credibility determinations. Id.
21
not consistent with the written record, and was inherently unlikely. ID at 9. The
administrative judge also noted that the appellant’s allegations were often based
only on surmise or conjecture and were not corroborated by other witnesses. Id.
¶39 The appellant argues on review that her supervisor repeatedly contradicted
himself, his testimony “does not pass the common sense or credibility test,” and
his “reason and rationale seemed to be fabricated to hide an improper motive.”
PFR File, Tab 3 at 8-9. For example, the appellant argues that, although the
supervisor first testified that he generally assigned seating on the basis of the
employee’s hire date, he later “contradict[ed] himself to state that the employees
were hired at different times, dates and years by the Agency.” 10 Id. at 8. As
another example, the appellant asserts that the supervisor testified that “he knew
nothing of the VCEs when he assigned their seats other than their names and
dates they were hired,” but that he later contradicted himself by testifying that
“he knew personal information about some employees since they had been
working at the Agency, but also he knew marital status and other information.”
Id. at 9. The appellant also argues that the supervisor testified that he was the
only one who distributed work, but that he later “admitted there was a
disproportionate amount of claims being distributed and that every employee was
not receiving equal amounts . . . the system was broken for a time and a number
of claims were distributed.” 11 Id. at 13. We have considered these examples of
10
As explained in the initial decision, the supervisor testified that the seating
assignments generally were based on hire date, but that there were some exceptions. ID
at 11; HCD (Sept. 11, 2015). Specifically, he testified that: three Senior VCEs on the
VRAP team were assigned seats first and had the opportunity to request a location
based on seniority; a VCE who had been working in another division had the
opportunity to request a seat when she was selected for the VRAP team position; and
two married employees were seated near each other. ID at 11; HCD (Sept. 11, 2015).
11
As explained in the initial decision, the supervisor testified that, prior to March 2013,
claims examiners could pull cases from the original claims queue as necessary but, as
the volume of claims decreased, there was a concern that some VCEs were taking a
disproportionate share of the cases. ID at 13; HCD (Sept. 11, 2015). He further
22
alleged contradictory statements, as well as others cited by the appellant on
review, but find that, even when the supervisor later clarified his initial
statements, his subsequent statements are not necessarily contradictory and do not
constitute “sufficiently sound” reasons for overturning the administrative judge’s
credibility determination. See Haebe, 288 F.3d at 1301.
¶40 The appellant also argues that the administrative judge ignored a seating
chart, which shows that she and other African American employees were racially
segregated from Caucasian employees, and failed to consider the “fact that almost
everyone who was sitting in the segregated section which was referred to as ‘the
hood' was transferred, fired or did not complete their term.” PFR File, Tab 3
at 8-11, Tab 6 at 8-12. However, the administrative judge’s failure to mention in
the initial decision the seating chart and some of the appellant’s allegations
regarding the seating arrangement does not mean he did not consider them and is
not a basis to overturn his well-reasoned findings. See Gardner, 123 M.S.P.R.
647, ¶ 25 (citing 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)). The
administrative judge considered the record as a whole and —based on the
supervisor’s credible testimony, the credible testimony of two agency witnesses
that the appellant’s cubicle location was seen as desirable by some employees,
and the fact that no one, including the appellant, complained to a manager that
they felt the seating arrangement was discriminatory—concluded that the agency
assigned seating in a nondiscriminatory manner. ID at 10-12. Furthermore, the
administrative judge expressly considered the appellant’s argument that “almost
everyone” seated near her was unsuccessful in the VRAP, but found that this
contention was “simply not true.” ID at 18.
testified that, to address this concern, he changed the process of assigning cases in
March 2013 so that he or, in his absence, the division supervisor reviewed new original
claims each day and assigned them in an equal manner. ID at 13; HCD (Sept. 11,
2015).
23
¶41 Regarding the administrative judge’s finding that the agency applied the
performance standards in a nondiscriminatory manner, the appellant argues that
the administrative judge “totally ignored” the fact that “there was no formal set of
standards” and that her performance was evaluated in an “arbitrary and
capricious” manner. PFR File, Tab 3 at 13, Tab 6 at 15. The record reflects,
however, that the appellant signed the monthly Individual Performance Reports,
which set forth her productivity and accuracy requirements and her performance
for the previous month. IAF, Tab 64 at 153-61. The administrative judge
thoroughly discussed the appellant’s performance standards and concluded that
she consistently failed to meet them. ID at 18-23. The administrative judge
further found no evidence to suggest that the agency discriminated against the
appellant in applying the VCE performance standards to her work performance.
ID at 23. The appellant’s arguments on review provide no basis to disturb these
findings.
¶42 The appellant also argues that the administrative judge erred in finding that
the Senior VCEs did not provide assistance in a discriminatory manner because,
among other reasons, he failed to mention that one of the Senior VCEs testified
that he believed he was a supervisor. PFR File, Tab 3 at 17-18. Her arguments,
however, provide no basis to disturb the administrative judge’s credibility
determinations or his conclusion that the Senior VCEs provided assistance in a
nondiscriminatory manner. ID at 16‑18.
¶43 Lastly, as noted above, the administrative judge found that the Senior VCE
alleged by the appellant to have used discriminatory nicknames in conversations
with other Senior VCEs in the workplace did not do so. ID at 23-25. In so
finding, the administrative judge relied on the hearing testimonies of the accused
Senior VCE and two other Senior VCEs, who all “emphatically and
unequivocally” denied that they had made such comments or heard any coworkers
make such comments. ID at 24. The administrative judge also relied on their
testimonies that no one ever complained to them about hearing such comments in
24
the workplace and, if they had heard such comments, they would have reported it
to a manager. Id. Given the arrangement of the cubicles and their proximity to
one another, the administrative judge concluded that, if the Senior VCE had made
the racially discriminatory comments attributed to him by the appellant, other
employees would have heard and complained about the comments. Id. However,
the undisputed testimony was that no one made or filed such complaints with
management. Id. The administrative judge also appeared to find probative the
fact that the appellant failed to raise this allegation—which goes “directly to the
heart of her allegation of race discrimination”—at any time during the proceeding
until redirect examination. Id.; HCD (Sept. 10-11, 2015). The appellant
generally challenges these findings on review and argues that “[t]he
administrative judge ignored a pattern of discrimination and did not test the
credibility of witnesses with conflicting statements.” PFR File, Tab 3 at 18-24,
Tab 6 at 16-18. The appellant’s arguments, however, constitute mere
disagreement with the administrative judge’s findings and provide no basis to
overturn his credibility determinations or his conclusion that the Senior VCE in
question did not make the discriminatory comments attributed to him.
¶44 In sum, we agree with the administrative judge’s finding that the appellant
failed to show by preponderant evidence that racial discrimination was a
motivating factor in the agency’s action. The appellant’s arguments on review
constitute mere disagreement with the administrative judge’s well -reasoned
findings and provide no basis to disturb the initial decision. See Crosby v. U.S.
Postal Service, 74 M.S.P.R. 98, 105-06 (1997) (finding no reason to disturb the
administrative judge’s findings when she considered the evidence as a whole,
drew appropriate inferences, and made reasoned conclusions on issues of
credibility).
25
ORDER
¶45 This is the final decision of the Merit Systems Protection Board in this
appeal. Title 5 of the Code of Federal Regulations, section 1201.113(c) ( 5 C.F.R.
§ 1201.113(c)).
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
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 i s:
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.
26
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 rec eives 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:
______________________________
Jennifer Everling
Acting Clerk of the Board
Washington, D.C.