Opinion

Lionel Washington v. Department of Veterans Affairs

Court: Merit Systems Protection Board
Filed: Feb 15, 2023
Status: Unpublished
Cited by: 0 cases
Authority: More cited than 22.6%

The opinion

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

LIONEL WASHINGTON, DOCKET NUMBER

Appellant, DA-0752-15-0413-I-1

DEPARTMENT OF VETERANS DATE: February 15, 2023

AFFAIRS,

Agency.

THIS FINAL ORDER IS NONPRECEDENTIAL 1

Brenda Richardson, San Antonio, Texas, for the appellant.

Thomas Herpin, Esquire, and Cecilia G. Isenberg, Houston, Texas, for the

agency.

BEFORE

Cathy A. Harris, Vice Chairman

Raymond A. Limon, Member

Tristan L. Leavitt, Member

FINAL ORDER

¶1 The appellant has filed a petition for review of the initial decision, which

affirmed his 20-day suspension for failure to follow instructions and delay in

carrying out an assigned duty. Generally, we grant petitions such as this one only

A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

in the following circumstances: the initial decision contains erroneous findings

of material fact; the initial decision is based on an erroneous 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 aff ected 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. 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 appellant is a Medical Records Technician, GS-0675-05, at the

agency’s South Texas Veterans Health Care System, in San Antonio, Texas.

Initial Appeal File (IAF), Tab 8 at 108, 110. The agency suspended him for

20 days for Failure to Follow Instructions (2 specifications) and Delay in

Carrying Out an Assigned Duty (1 specification). Id. at 108, 110-13. The

appellant filed an equal employment opportunity (EEO) complaint, alleging that

the agency discriminated against him and subjected him to a hostile work

environment based on race, age, and reprisal for prior EEO activity. IAF, Tab 2

at 7-17. On May 7, 2015, the agency issued a final agency decision finding no

discrimination, retaliation, or harassment. Id. This appeal followed. IAF, Tab 2.

¶3 The appellant asserted on appeal that the suspension was discriminatory

based on his race and age, and was imposed in retaliation for prior Board appeals

and EEO complaints. Id. at 2. The administrative judge found that the agency

proved both charges by preponderant evidence. IAF, Tab 33, Initial Decision

(ID) at 2-10. The administrative judge further found that the appellant failed to

show by preponderant evidence that the agency’s action resulted from

discrimination or retaliation. ID at 10-21. The administrative judge also found

that the penalty promoted the efficiency of the service and was reasonable , and

she affirmed the agency’s action. ID at 21-25. The appellant filed a petition for

review. Petition for Review (PFR) File, Tab 1. The agency did not respond.

ANALYSIS

¶4 On review, the appellant reargues the claims he raised before the

administrative judge, taking issue with the findings of fact regarding whether he

committed the charged conduct and whether the agency’s reasons for taking the

action against him were pretextual. His arguments are unpersuasive.

¶5 In particular, the appellant challenges the administrative judge’s findings on

the first specification of the first charge, Failure to Follow Instructions. Id. at

3-6. This specification involves the appellant’s refusal to schedule a fact-finding

meeting that he had been instructed to attend. IAF, Tab 8 at 115. The appellant’s

supervisor offered him a choice of days and times for scheduling such a meeting,

and he did not respond to the supervisor’s email request. Id. The fact-finding

meeting pertained to an insufficiently documented request for leave under the

Family and Medical Leave Act (FMLA). Id. at 126-27. The appellant maintains

that he took the leave to care for family members, that it had been approved, and

that the administrative judge erred by not recognizing those facts. PFR File,

Tab 1 at 3-4.

¶6 The administrative judge, however, properly sustained the specification.

An employee must comply with an agency order, even when he may have

substantial reason to question it, while taking steps to challenge its validity

through whatever channels are appropriate. Pedeleose v Department of Defense,

110 M.S.P.R. 508, ¶ 16 (2009). Management has a fundamental right to expect

that its decisions will be obeyed and its instructions carried out. Id. Here, the

agency instructed the appellant by email on March 3, 2014, to schedule his

attendance at a fact-finding meeting because he had not submitted medical

documentation in support of his request for FMLA leave for December 11, 2013.

IAF, Tab 8 at 115, 125-26. The appellant responded on March 5, 2014, without

answering the agency’s specific request regarding his availability for the meeting,

and instead asked to meet with Human Resources. Id. at 124. He also stated that

he intended to speak with his union about receiving outside representation , and he

resubmitted his FMLA application. Id. at 125-26. In the 2 weeks that followed,

the appellant failed to set a date for a fact-finding meeting, despite his immediate

supervisor’s March 24, 2014 email asking him whether he was refusing to

participate in the fact finding. Id. at 124. As of that date, the appellant still had

not indicated whether he would attend the meeting. Id. Although he asserted that

he needed time to secure representation, he did not comply with the instructions

in his supervisor’s email by setting a date and time for the meeting, even if he

considered such a meeting to be unnecessary or the request to be a form of

harassment. See id. at 124-25; PFR File, Tab 1 at 6. He has not provided any

credible evidence that complying with his immediate supervisor’s instructions

would have caused irreparable harm or placed him in a dangerous situation. See

Pedeleose, 110 M.S.P.R. 508, ¶ 17. Indeed, attending such a meeting may have

assisted the appellant in obtaining the proper documentation for the December 11,

2013 absence.

¶7 The second specification of Failure to Follow Instructions arose from the

appellant’s failure on January 29, 2014, to correct the agency’s weekly Physical

Medicine and Rehabilitation Report. IAF, Tab 8 at 115. The appellant had been

responsible for preparing this report for a number of years, and his responsibility

included correcting the report before its release each week. Id. at 115, 130;

Hearing Compact Disc (HCD) (testimony of the appellant’s immediate

supervisor). The appellant’s immediate supervisor copied the Acting Assistant

Chief, an employee who had on occasion served as the appellant’s acting

supervisor (acting supervisor), on an email the immediate supervisor sent to the

appellant regarding corrections the appellant needed to complete for the report.

IAF, Tab 8 at 130; HCD (testimony of the appellant’s immediate and acting

supervisors). The acting supervisor testified that she received the email as a

courtesy copy because the immediate supervisor had sent it in response to an

email message from the appellant, which the acting supervisor also had received.

HCD (testimony of the acting supervisor). The appellant asserts that his acting

supervisor was jointly responsible for making the corrections. PFR File, Tab 1 at

7-10. The appellant postulates that the agency coached his acting supervisor to

deny her responsibility for the report when she testified at his hearing. Id. at 8.

¶8 The appellant, however, presented no proof of his allegation s regarding his

acting supervisor, who testified that it was the appellant’s sole responsibility to

prepare the reports. The administrative judge strongly relied on the unrebutted

testimony from the appellant’s immediate and acting supervisors, both of whom

she found to be credible pursuant to her analysis under the Hillen factors. ID

at 7-8; see Hillen v. Department of the Army, 35 M.S.P.R. 453, 458 (1987)

(listing factors that an administrative judge may consider when assessing a

witness’s credibility). The administrative judge’s Hillen analysis addressed

demeanor evidence. ID at 7. 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; the Board may

overturn such determinations only when it has “sufficiently sound” reasons for

doing so. Haebe v. Department of Justice, 288 F.3d 1288, 1301 (Fed. Cir. 2002).

Sufficiently sound reasons for overturning an administrative judge’s demeanor-

based credibility determinations include findings that are incomplete, inconsistent

with the weight of the evidence, and do not reflect the record as a whole.

Faucher v. Department of the Air Force, 96 M.S.P.R. 203, ¶ 8 (2004). The

appellant has not offered any such reasons for overturning the credibility findings

here.

¶9 The appellant further asserts that the agency waited 4 to 5 months after the

incident to bring the charge, and that the charge itself was inconsistent with his

good job performance. PFR File, Tab 1 at 10-11. Even if the appellant’s

misconduct generally was inconsistent with his performance history, the agency

proved that it occurred. ID at 3-8. Although a charge may be dismissed if an

agency’s delay in proposing the adverse action is unreasonable and the delay

prejudiced the employee’s ability to defend against the charge, Messersmith v.

General Services Administration, 9 M.S.P.R. 150, 155 (1981), the appellant has

not alleged such prejudice. In any event, we find that the delay in bringing the

charge does not appear to be unreasonable on its face or to have prejudiced the

appellant’s ability to mount a defense.

¶10 The appellant’s remaining objections on review pertain to the administrative

judge’s findings on the issues of discrimination, including a hostile work

environment and retaliation for prior EEO activity. ID at 10-21. The appellant

argues that the adverse action in this appeal is intended to sully his reputation and

diminish his chances for promotion. PFR File, Tab 1 at 2-3, 18-19. He contends

that his circumstances are emblematic of a larger problem: The majority of

agency supervisors are Caucasian males, and persons of color are

underrepresented in management. 2 Id. at 15-16. The appellant cites as an

example of this problem the fact that the agency had not yet “boarded” him for

The appellant included with his petition for review pages from a document entitled

Commission on Care Final Report, dated June 30, 2016, to support his contention that

Caucasian men are overrepresented in agency management. PFR File, Tab 1 at 21-27.

The Board generally will not consider an argument raised for the first time in a petition

for review absent a showing that it is based on new and material evidence not

previously available despite the party’s due diligence. Banks v. Department of the Air

Force, 4 M.S.P.R. 268, 271 (1980). Although the Final Report was issued on the same

day as the initial decision and would be considered new evidence, it does not meet the

Board’s standard for materiality, in that it is not of sufficient weight to warrant an

outcome different from that of the initial decision. See Russo v. Veterans

Administration, 3 M.S.P.R. 345, 349 (1980). The report pertains to the entire veterans’

health care system, and not just the conditions at the appellant’s facility. It also does

not address the specific allegations in the appellant’s appeal.

promotion. 3 Id. at 12-13, 16-17. He similarly argues that the administrative

judge failed to allow him to present evidence of his credentials , which show that

his job qualifications exceeded those of his supervisors. Id. at 17. Regarding his

discrimination claim related to the suspension at issue in this appeal, the

appellant asserts that both his immediate and acting supervisors refused to

acknowledge that he is African-American, 4 and that the suspension is part of a

pattern of “covert racism.” PFR File, Tab 1 at 12-13. Regarding his claim of

retaliation for EEO activity, the appellant asserts that the agency’s actions against

him, including the request to schedule a fact-finding meeting and the suspension

itself, closely followed his prior EEO activity and occurred 4 to 5 months after

the events underlying those actions. Id. at 4-5, 10-11. He further asserts that the

agency officials’ possible reference to his EEO activity during a discussion of a

personnel action evidences their retaliatory animus. Id. at 16.

¶11 The appellant bore the burden of proof on the issues of discrimination and

retaliation, and he chose not to testify. ID at 12; 5 C.F.R. § 1201.56(b)(2)(C).

On review, he explained his fear that, if he testified, it might “elicit very

emotional responses that he could not control.” PFR File, Tab 1 at 18. The

appellant, however, could have offered a statement under oath regarding his

claims, and such a statement would have had evidentiary value. Truitt v.

Department of the Navy, 45 M.S.P.R. 344, 347 (1990) (explaining that sworn

statements that are not rebutted are competent evidence of the matters asserted

Here, the appellant is referencing the agency’s failure to promote him since he was

converted from a competitive-service Title 5 employee to a Title 38 employee in 2008.

IAF, Tab 13 at 2-3.

The appellant’s immediate supervisor testified that he is Hispanic and that he is

unaware of the appellant’s race. He stated that the appellant never informed him of his

race, and that he is unaware of the appellant’s age. HCD (testimony of the appellant’s

immediate supervisor).

therein). Instead, his representative set forth his allegations in the pleadings. 5

IAF, Tab 13. The statements of a party’s representative in a pleading, however,

do not constitute evidence. Hendricks v. Department of the Navy, 69 M.S.P.R.

163, 168 (1995).

¶12 In making her findings, the administrative judge relied upon the testimony

of various agency witnesses, including the appellant’s supervisor, the proposing

official, and the deciding official. ID at 12-15, 17-21. Based in part on demeanor

evidence, she found that these officials testified credibly that their actions were

not motivated by discrimination or retaliation. ID at 14, 20-21. The Board will

defer to such credibility determinations unless it has “sufficiently sound” reasons

for overturning them. Haebe, 288 F.3d at 1301 . The administrative judge also

considered various other factors in assessing witness credibility, including

witness bias, or lack thereof, and the consistency of the witnesses with one

another and with other record evidence. ID at 14-15, 19-21; see Hillen,

35 M.S.P.R. at 458. The appellant has not identified any reason to overturn these

findings other than the mere fact that he disagrees with them. See Faucher,

96 M.S.P.R. 203, ¶ 8.

¶13 The administrative judge considered the evidence the appellant presented in

support of his allegations of discrimination and retaliation. ID at 13-14, 18-19.

Even after taking such evidence at face value, she found that he had offered little

information other than unsupported allegations to show that his race or age was a

motivating factor in the suspension. ID at 14-15; see Pridgen v. Office of

Management and Budget, 2022 MSPB 31, ¶¶ 20-22. She likewise found that the

appellant offered no direct evidence of retaliatory motive in his suspension, ID

at 19, and the circumstantial evidence he offered was not probative of retaliation,

ID at 19-20. She therefore found that the appellant did not show that the

Although the appellant’s representative signed the response to the administrative

judge’s order on affirmative defenses under penalty of perjury, the appellant himself

made no declaration or affidavit in support of the pleading. IAF, Tab 13 at 56.

proposing and deciding officials had any motive to retaliate against him for his

prior EEO activity or his Board appeals. ID at 20-21. We agree with these

findings.

¶14 Accordingly, we find that the appellant has offered no reason to disturb the

administrative judge’s findings, and we thus affirm the initial decision. 6

NOTICE OF APPEAL RIGHTS 7

You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By

statute, the nature of your claims determines the time limit for seeking such

review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).

Although we offer the following summary of available appeal rights, the Merit

Systems Protection Board does not provide legal advice on which option is most

appropriate for your situation and the rights described below do not represent a

statement of how courts will rule regarding which cases fall within their

jurisdiction. If you wish to seek review of this final decision, you should

immediately review the law applicable to your claims and carefully follow all

filing time limits and requirements. Failure to file within the applicable time

limit may result in the dismissal of your case by your chosen forum.

Please read carefully each of the three main possible choices of review

below to decide which one applies to your particular case. If you have questions

about whether a particular forum is the appropriate one to review your case, you

should contact that forum for more information.

The appellant also references an additional 14-day suspension imposed by the agency

based on different charges, which is still pending at the Equal Employment Opportunity

Commission (EEOC) Office of Federal Operations. PFR File, Tab 1 at 18. That

suspension is not before the Board in the instant appeal. IAF, Tab 21 at 1-2. We also

find no error in the administrative judge’s denial of the appellant’s request to

consolidate his Board appeal with his three pending EEOC cases, which include the

14-day suspension. ID at 2 n.6.

Since the issuance of the initial decision in this matter, the Board may have updated

the notice of review rights included in final decisions. As indicated in the notice, the

Board cannot advise which option is most appropriate in any matter.

(1) Judicial review in general. As a general rule, an appellant seeking

judicial review of a final Board order must file a petition for review with the U.S.

Court of Appeals for the Federal Circuit, which must be received by the court

within 60 calendar days of the date of issuance of this decision. 5 U.S.C.

§ 7703(b)(1)(A).

If you submit a petition for review to the U.S. Court of Appeals for the

Federal Circuit, you must submit your petition to the court at the

following address:

U.S. Court of Appeals

for the Federal Circuit

717 Madison Place, N.W.

Washington, D.C. 20439

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, 10, 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

Board neither endorses the services provided by any attorney nor warrants that

any attorney will accept representation in a given case.

(2) Judicial or EEOC review of cases involving a claim of

discrimination. This option applies to you only if you have claimed that you

were affected by an action that is appealable to the Board and that such action

was based, in whole or in part, on unlawful discrimination. If so , you may obtain

judicial review of this decision—including a disposition of your discrimination

claims—by filing a civil action with an appropriate U.S. district court ( not the

U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you

receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems

Protection Board, 582 U.S. ____ , 137 S. Ct. 1975 (2017). If you have a

representative in this case, and your representative receives this decision before

you do, then you must file with the district court no later than 30 calendar days

after your representative receives this decision. 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.

Contact information for U.S. district courts can be found at their respective

websites, which can be accessed through the link below:

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

Alternatively, you may request review by the Equal Employment

Opportunity Commission (EEOC) of your discrimination claims only, excluding

all other issues. 5 U.S.C. § 7702(b)(1). You must file any such request with the

EEOC’s Office of Federal Operations within 30 calendar days after you receive

this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,

and your representative receives this decision before you do, then you must file

with the EEOC no later than 30 calendar days after your representative receives

this decision.

If you submit a request for review to the EEOC 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 a request for review to the EEOC 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, N.E.

Suite 5SW12G

Washington, D.C. 20507

(3) Judicial review pursuant to the Whistleblower Protection

Enhancement Act of 2012. This option applies to you only if you have raised

claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or

other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).

If so, and your judicial petition for review “raises no challenge to the Board’s

disposition of allegations of a prohibited personnel practice described in section

2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),

(B), (C), or (D),” then you may file a petition for judicial review either with the

U.S. Court of Appeals for the Federal Circuit or any court of appeals of

competent jurisdiction. 8 The court of appeals must receive your petition for

review within 60 days of the date of issuance of this decision. 5 U.S.C.

§ 7703(b)(1)(B).

If you submit a petition for judicial review to the U.S. Court of Appeals for

the Federal Circuit, you must submit your petition to the court at the

following address:

U.S. Court of Appeals

for the Federal Circuit

717 Madison Place, N.W.

Washington, D.C. 20439

The original statutory provision that provided for judicial review of certain

whistleblower claims by any court of appeals of competent jurisdiction expired on

December 27, 2017. The All Circuit Review Act, signed into law by the President on

July 7, 2018, permanently allows appellants to file petitions for judicial review of

MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals

for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.

The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195,

132 Stat. 1510.