finding that it is error to refuse to permit an appellant to rebut evidence submitted by an agency on the record closing date in cases decided without a hearing
How later courts described this case
- finding that it is error to refuse to permit an appellant to rebut evidence submitted by an agency on the record closing date in cases decided without a hearing
Written by the judges who cited it.
The opinion
UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
JENNIFER D. EOFF, DOCKET NUMBER
Appellant, DE-0752-17-0015-I-1
v.
DEPARTMENT OF THE INTERIOR, DATE: January 30, 2023
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Jennifer D. Eoff, Lakewood, Colorado, pro se.
Amy Duin, Esquire, Lakewood, Colorado, for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
Tristan L. Leavitt, Member
Member Limon recused himself and
did not participate in the adjudication of this appeal.
FINAL ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
sustained her removal. Generally, we grant petitions such as this one only in the
following circumstances: the initial decision contains erroneous findings of
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
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 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. 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 init ial decision,
which is now the Board’s final decision. 5 C.F.R. § 1201.113(b). We
FORWARD the appellant’s hostile work environment claim to the Denver Field
Office for adjudication as an individual right of action (IRA) appeal.
BACKGROUND
¶2 The agency removed the appellant from her Research Geolog ist position for
failing to follow an instruction to limit her interaction with her former supervisor.
Initial Appeal File (IAF), Tab 1 at 9, 15-21; Tab 8 at 22. Specifically, the agency
charged the appellant with violating the Associate Director ’s instruction to limit
her interaction with the former supervisor to issues required for her work on the
Reserve Growth Task in the National and Global Assessment (NAGA) project and
reassigning the appellant to another supervisor . IAF, Tab 11 at 9, 29. The
agency specified that the appellant intentionally violated the instruction on
April 28, 2016, when she sent an email to her former supervisor about a letter of
reprimand that she issued to the appellant in September 2014, concerning matters
unrelated to the NAGA project. IAF, Tab 1 at 9-10.
¶3 The agency advised the appellant in the proposal notice that, in
recommending her removal, it considered as an aggravating factor the fact that
3
she had been counseled for inappropriately contacting her former supervisor on at
least six other occasions. Id. at 10. The agency also advised the appellant that it
considered the following prior disciplinary actions as aggravating factors: (1) her
September 2014 letter of reprimand for unprofessional behavior; and (2) her
7-day suspension in 2015 for unprofessional behavior and failure to follow
instructions. Id. The agency further advised the appellant that it considered the
following mitigating factors: (1) her 5 years of Federal service; (2) her superior
performance rating; (3) her medical issues; and (4) any harassment, provocation,
personality conflicts, or other circumstances that could have contributed to her
offense. Id. at 10-12. The deciding official concluded that the removal penalty
was reasonable because the mitigating factors were outweighed by the appellant’s
serious misconduct and she had no rehabilitative potential. Id. at 18-20.
¶4 The appellant filed a timely Board appeal of her removal and raised an
affirmative defense of whistleblower retaliation. 2 IAF, Tab 1 at 3, 5. She alleged
that the agency removed her in retaliation for disclosing to management her
former supervisor’s “misconduct, mismanagement, and abuses of authority.” Id.
at 5. She also referred to “continuing hostile conditions” and a complaint that she
filed with the Office of Special Counsel (OSC). Id. The appellant included with
her appeal a copy of a whistleblowing complaint that she filed with OSC before
her removal and OSC’s letter informing her that OSC had terminated its
investigation of her complaint. Id. at 23-62, 132-33.
¶5 The administrative judge issued an order setting forth the proof
requirements to establish Board jurisdiction over an IRA appeal. IAF, Tab 3.
After holding a teleconference with the parties, however, the administrative
judge issued an order stating that he found it appropriate to treat the appellant ’s
2
The appellant indicated on her appeal form that she was also appealing the denial of a
within-grade increase. IAF, Tab 1 at 3. The administrative judge found that the
appellant withdrew this claim, and the appellant does not dispute this finding on review.
IAF, Tab 5 at 1.
4
case as a chapter 75 removal appeal, instead of an IRA appeal, because she did
not make an informed election to challenge her removal at OSC. 3 IAF, Tab 5
at 1-2. The administrative judge summarized the appellant’s claims on appeal as
alleging that the agency’s removal action was retaliation for the following
protected disclosures and activity: (1) her April 15, 2015 email to her former
supervisor and other agency officials, purportedly disclosing her former
supervisor’s misconduct, gross mismanagement, and abuse of authority 4; (2) her
October 2014 grievance about a letter of reprimand; and (3) her June 2015
grievance about a suspension. Id. at 3. He also informed the appellant of the
burden of proof for establishing an affirmative defense of retaliation in a
chapter 75 action. Id. at 2-4.
¶6 Additionally, the administrative judge agreed to consider whether the
alleged retaliatory actions mentioned in OSC’s closure letter showed a pattern of
retaliation that culminated in the appellant’s removal. IAF, Tab 5 at 2 n.3. The
administrative judge identified those matters as (a) a letter of reprimand, (b) the
denial of an award, (c) a suspension, and (d) a reassignment. Id. He considered
those matters relevant because, with the possible exception of the award de nial,
the agency mentioned them in the proposal to remove the appellant. Id. The
administrative judge explained that he could not order corrective action for those
matters in the context of this chapter 75 appeal. Id. He also advised the parties
to ensure that any additions, corrections, or objections to his order and summary
be received by October 12, 2016, or they would be deemed waived. IAF, Tab 5
at 1 n.2. Neither party objected or proposed any additions or corrections to the
order and summary before the filing deadline.
3
The administrative judge made this finding — although OSC’s closure letter mentioned
the appellant’s removal — because the appellant stated that she did not inform OSC of
the agency’s removal decision or ask OSC to add it to her claim. IAF, Tab 5 at 2, Tab 7
at 3, 9.
4
IAF, Tab 1 at 5, Tab 7 at 6.
5
¶7 Both parties submitted voluminous documentation on appeal. IAF,
Tabs 7-15, 17-30. After holding a prehearing conference, the administrative
judge issued an order and summary modifying the list of issues that he would
consider. IAF, Tab 31. He summarized the appellant’s affirmative defense as
alleging that she was removed in reprisal for her April 15, 2015 email and her
October 2014 grievance about a letter of reprimand. Id. at 1. He indicated that
the appellant had withdrawn her prior allegation that her removal was in reprisal
for her June 2015 grievance of a suspension. Id. at 1-2. The administrative judge
also reaffirmed that he would consider the appellant’s additional evidence and
argument that her alleged retaliatory removal was the final event in a chai n of
retaliation consisting of her being suspended, reassigned, and denied an award . 5
Id. at 2. The administrative judge advised the parties that any additions,
corrections, or objections to his prehearing conference order and summary must
be received by November 26, 2016, or be deemed waived. Id. at 1 n.1. Neither
party objected or made corrections to the prehearing conference order
and summary.
¶8 After holding a hearing, the administrative judge sustained the charge based
on the stipulated facts and affirmed the agency’s removal action. IAF, Tab 47,
Initial Decision (ID) at 1, 5, 16. In reaching his decision, the administrative
judge found that the Associate Director’s April 27, 2015 instruction to the
appellant was proper and she did not dispute receiving the instruction or her
failure to follow it. ID at 5. The administrative judge also found that the
appellant failed to prove her affirmative defenses of whistleblower reprisal and
retaliation for filing a grievance. ID at 6-13. He found no evidence of retaliation
in the actions that preceded the appellant’s removal, including her reprimand,
5
The administrative judge indicated that the appellant had withdrawn her claim that the
chain of retaliation began with a September 2014 letter of reprimand because it
preceded her protected activity. IAF, Tab 31 at 2.
6
reassignment, and instruction to limit her contact with her former supervisor. 6 ID
at 10. He also found that the agency proved a nexus between the charge and the
efficiency of the service, and the penalty of removal was reasonable. ID at 6, 16.
¶9 The appellant has filed a petition for review arguing that the adm inistrative
judge erred in denying her affirmative defense of whistleblower reprisal and
sustaining the removal penalty. Petition for Review (PFR) File, Tab 1. The
agency has responded in opposition to her petition. PFR File, Tab 3.
DISCUSSION OF ARGUMENTS ON REVIEW 7
¶10 The appellant does not dispute the administrative judge’s finding that the
agency proved the charge as specified. ID at 5. We discern no basis for
disturbing that finding, which is supported by the stipulated facts. IAF, Tab 22
at 8-10, Tab 30 at 13-16; see 5 C.F.R. § 1201.63 (indicating that a stipulation will
satisfy a party’s burden of proving the fact alleged); 5 C.F.R. § 1201.115
(indicating that the Board generally will consider only issues raised in a timely
filed petition or cross petition for review).
¶11 On review, the appellant argues that the administrative judge erred in
finding that she failed to prove her affirmative defense of reprisal. PFR File,
Tab 1. She disputes his finding that she made no protected disclosures in her
April 14-15, 2015 emails. Id. at 25-26, 31, 94-97. The appellant submits
additional evidence on review and asks the Board to reconvene the hearing
because the agency did not subpoena one of her approved witnesses to testify at
the hearing. Id. at 15-18. She argues that the administrative judge failed to
address all of her alleged disclosures and retaliatory actions included in the
approximately 1,500 pages of evidence that she submitted on appeal. Id. at 18,
6
The administrative judge further noted that the appellant submitted no evidence or
argument about her claim that the retaliatory nature of her removal was evidenced by
the agency’s denying her an award. ID at 7 n.3.
7
We have reviewed the relevant legislation enacted during the pendency of this appeal
and have concluded that it does not affect the outcome of the appeal.
7
24-27. She contends that the administrative judge failed to address this evidenc e
documenting the agency’s “long-term harassment” and her “two-year history of
conflict with her former management team.” Id. at 18. She also challenges the
administrative judge’s penalty analysis, arguing that he failed to consider her
health condition as a mitigating factor. Id. at 19-20. For the reasons discussed
below, we affirm the administrative judge’s finding that the appellant failed to
prove her affirmative defense of retaliation and the removal penalty
was reasonable.
The appellant failed to prove her affirmative defense of reprisal for
whistleblowing pursuant to 5 U.S.C. § 2302(b)(8).
¶12 On review, the appellant disputes the administrative judge ’s finding that the
disclosures she made in her April 14-15, 2015 emails 8 to her former supervisor
and others agency officials, about her former supervisor’s request for a meeting to
discuss the appellant’s alleged performance and conduct issues, were not
protected under 5 U.S.C. § 2302(b)(8). PFR File, Tab 1 at 31, 68-97; ID at 11,
13. The administrative judge found that the appellant failed to prove by
preponderant evidence that she made a protected disclosure under 5 U.S.C.
§ 2302(b)(8) because she failed to explain in detail what wrongdoing she
purportedly disclosed. ID at 11. The administrative judge also reviewed the
content of the appellant’s April 2015 emails and explained his reasons for finding
that nothing therein demonstrated that she disclosed information protected by
5 U.S.C. § 2302(b)(8). ID at 11-13. For the reasons discussed below, we agree
with the administrative judge’s well-reasoned finding that the appellant failed to
meet her burden of proof on her reprisal claim.
¶13 To prove an affirmative defense of whistleblower reprisal in a chapter 75
appeal, an appellant must prove by preponderant evidence that she made a
protected disclosure under 5 U.S.C. § 2302(b)(8), and that her protected
8
In the initial decision, the administrative judge refers to t he appellant’s April 13-15,
2015 emails, collectively, as the April 15, 2015 email. ID at 11; IAF, Tab 11 at 34-73.
8
disclosure was a contributing factor in the personnel action at issue. See
Shannon v. Department of Veterans Affairs, 121 M.S.P.R. 221, ¶ 21 (2014). A
protected disclosure is a disclosure of information that the appellant reasonably
believes evidences a violation of any law, rule, or regulation, gross
mismanagement, a gross waste of funds, an abuse of authority, or a substantial
and specific danger to public health or safety. 5 U.S.C. § 2302(b)(8); Shannon,
121 M.S.P.R. 221, ¶ 22. The test for whether the appellant had a reasonable
belief that her disclosure evidenced wrongdoing as set forth in 5 U.S.C.
§ 2302(b)(8)(A) is an objective one. Shannon, 121 M.S.P.R. 221, ¶ 22. A
reasonable belief exists if a disinterested observer with knowledge of the essential
facts known to and readily ascertainable by the appellant could reasonably
conclude that the actions evidenced one of the categories of wrongdoing listed in
5 U.S.C. § 2302(b)(8)(A). Id.
¶14 On review, the appellant provides a chart describing her alleged disc losures
in her April 14-15, 2015 emails. PFR File, Tab 1 at 94-97. She explains that she
disclosed the following information: (1) her confusion about her former
supervisor’s request for a meeting to discuss her performance and conduct, which
she describes as unfair and an unexpected assault; (2) her decision to contest the
performance and conduct issues identified by her former supervisor; and (3) her
reasons for disregarding her former supervisor’s instruction to limit the recipients
of their email exchange about her performance issues. Id. The appellant
contends that this information constituted protected disclosures of harassment and
a hostile work environment because her former supervisor’s request for a meeting
to discuss the appellant’s performance issues violated an ethical dut y to treat
employees with respect and provide a supportive work environment. Id. at 94,
97. She argues that she made protected disclosures of mismanagement,
supervisory misconduct, and abuses of authority, when she contested her former
supervisor’s purportedly false description of her performance and conduct issues.
Id. at 25-26, 94-96. She also asserts that she made a protected disclosure that her
9
former supervisor was confused about her dual “supervisory and project
management responsibilities,” in emails explaining why she disregarded the
instruction to limit the recipients of her performance related emails. Id. at 96.
¶15 To meet her burden of proof, the appellant’s disclosures of wrongdoing
must be specific and detailed. See Linder v. Department of Justice, 122 M.S.P.R.
14, ¶ 14 (2014). Having considered the appellant’s argument and reviewed the
contents of her emails, we discern no reason to disturb the administrative judge’s
well-reasoned finding that the appellant’s vague allegations of wrongdoing in her
April 2015 emails do not meet this standard. ID at 11-13; 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 references, and made reasoned conclusions); Broughton v.
Department of Health & Human Services, 33 M.S.P.R. 357, 359 (1987) (same).
The appellant’s emails contesting the description of her performance and conduct
issues and expressing disagreement with her former supervisor’s management
decisions did not convey specific and detailed information that a disinterested
observer with knowledge of the essential facts known to and readily ascertainable
by the appellant could reasonably conclude evidenced a protected disclosure of
any wrongdoing listed in 5 U.S.C. § 2302(b)(8)(A). See Francis v. Department of
the Air Force, 120 M.S.P.R. 138, ¶ 12 (2013) (finding that the appellant’s
nonspecific and poorly explained disclosure, expressing mere disagreement over
job-related issues, was insufficient to constitute a protected disclosure of any
wrongdoing in 5 U.S.C. § 2302(b)(8)(A)); see also Czarkowski v. Department of
the Navy, 87 M.S.P.R. 107, ¶ 12 (2000) (finding that a disclosure questioning
management decisions that are merely debatable or just simple negligence or
wrongdoing, with no element of blatancy, is not protected as a disclosure of
gross mismanagement).
10
The appellant failed to prove her affirmative defense of reprisal for exercising her
grievance right under 5 U.S.C. § 2302(b)(9)(A)(ii).
¶16 On review, the appellant argues that her removal was “definitely”
retaliation for her October 2014 grievance about her September 2014 letter of
reprimand but identifies nothing in the record to suggest that the agency had a
strong motive to retaliate for this protected activity. 9 PFR File, Tab 1 at 28. She
further argues that the administrative judge placed too much emphasis on her
2014 grievance, to the detriment of her other alleged activities and disclosures, in
finding that she failed to prove retaliation. Id. For the reasons discussed below,
we agree with the administrative judge’s finding that the appellant failed to meet
her burden of proving reprisal for this protected activity.
¶17 Because the appellant did not seek to remedy whistleblowing reprisal in her
October 2014 grievance, the administrative judge properly found that her claim of
retaliation for exercising her grievance rights is covered under 5 U.S.C.
§ 2302(b)(9)(A)(ii). ID at 8; IAF, Tab 32 at 59-62; IAF, Tab 14 at 78-140; see
Mattison v. Department of Veterans Affairs, 123 M.S.P.R. 492, ¶ 8 (2016). To
establish an affirmative defense of retaliation for activity protected under 5 U.S.C.
§ 2302(b)(9)(A)(ii), the appellant is required to show that: (1) she engaged i n
protected activity; (2) the accused officials knew of the activity; (3) the adverse
action under review could have been retaliation under the circumstances; and
(4) there was a genuine nexus between the alleged retaliation and the adverse
action. See Pridgen v. Office of Management & Budget, 2022 MSPB 31, ¶ 32;
Warren v. Department of the Army, 804 F.2d 654, 656-58 (Fed. Cir. 1986) 10; IAF,
9
The appellant also contends, for the first time on review, that the offi cial who decided
her October 2014 grievance violated departmental directives requiring him to consider
all relevant factors to ensure “equitable and effective resolution of [the] conflict.” PFR
File, Tab 1 at 25. We have not considered this argument because the appellant has not
shown that it is based on new and material evidence not previously available despite her
due diligence. See 5 C.F.R. § 1201.115(d).
10
Historically, the Board has been bound by the precedent of the U.S. Court of Appeals
for the Federal Circuit on these types of whistleblower issues. However, pursuant to
11
Tab 5 at 4. The administrative judge found that the appellant failed to meet her
burden of proving this reprisal claim because she failed to prove a nexus between
her protected grievance activity and her removal, and we agree. ID at 8-10.
¶18 As explained in the initial decision, the administrative judge found that the
appellant’s removal could have been retaliatory because the accused officials
knew about the protected grievance activity. 11 ID at 9 & n.4. Upon weighing the
evidence, however, the administrative judge concluded that the agency’s nominal
motive to retaliate for the appellant’s grievance activity in October 2014 did not
outweigh the agency’s legitimate reason to remove her in August 2016 for her
demonstrated unwillingness to follow instructions. ID at 10. In reaching his
decision, the administrative judge found highly credible the proposing and
deciding officials’ testimony explicitly denying retaliation and providing
compelling nonretaliatory reasons for removing the appellant. Id. The
administrative judge found that the officials involved in the removal action had
little motive to retaliate against the appellant for her having grieved a letter of
reprimand that did not involve them and occurred 1½ years before her removal.
Id. The administrative judge also found no evidence of retaliation in the actions
that preceded the removal action, including the appellant ’s reprimand,
reassignment, and instruction limiting her interaction her former supervisor. Id.
We have considered the appellant’s arguments on review challenging the
administrative judge’s weighing of evidence, and we conclude that the
the All Circuit Review Act, Pub. L. No. 115-195, 132 Stat. 1510, appellants may file
petitions for judicial review of Board decisions on whistleblower reprisal claims with
any circuit court of appeals of competent jurisdiction. See 5 U.S.C. § 7703(b)(1)(B).
Therefore, we must consider these issues with the view that the appellant may seek
review of such claims before any appropriate court of appeal.
11
The administrative judge found that the following accused officials knew about the
appellant’s October 2014 grievance: (1) the proposing and deciding officials in her
removal action; (2) her former supervisor; and (3) the Associate Director who took
three actions against the appellant on April 27, 2015, when he (i) proposed her
suspension, (ii) reassigned her to a new supervisor, and (iii) issued the instruction to
limit her interaction with her former supervisor. ID at 9.
12
administrative judge’s demeanor-based credibility findings deserve deference
from the Board. See Purifoy v. Department of Veterans Affairs, 838 F.3d 1367,
1372-73 (Fed. Cir. 2016).
The appellant’s remaining arguments present no basis for disturbing the
initial decision.
¶19 Next, the appellant argues that the administrative judge failed to consider
all of her disclosures and protected activity that contributed to her removal. PFR
File, Tab 1 at 5, 18, 24. For example, she contends that the administrative judge
also should have considered the following evidence: (1) her disclosures in
2014-2015 expressing her concerns about her former supervisor; (2) her 2015
grievance activity; (3) her requests for reconsideration of her 2014 performance
ratings and 2015 suspension; and (4) her disclosures to OSC, the Board, the
Office of Inspector General, and equal employment opportunity personnel. Id.
at 24-26. For the reasons discussed below, we find that the appellant’s argument
provides no basis for disturbing the initial decision.
¶20 After holding a prehearing conference, the administrative judge issued an
order summarizing the appellant’s affirmative defense as alleging that she was
removed in retaliation for her April 15, 2015 email disclosures and her
October 2014 grievance about her September 2014 letter of reprimand. IAF,
Tab 31 at 1-2. He indicated that the appellant had withdrawn her prior allegation
that her removal was in reprisal for a June 2015 grievance that she filed about a
suspension. Id. The administrative judge also agreed to consider the appellant’s
evidence and argument that her removal was the final event in a chain of
retaliation, which included an award denial, a suspension, and a reassignment. Id.
at 2; IAF, Tab 5 at 2 n.3. The administrative judge warned the appellant that any
additions, corrections, or objections to his order and summary must be received
by November 26, 2016, or be deemed waived. IAF, Tab 31 at 1 n.1. The
appellant’s failure to object and make timely additions or corrections to the
13
administrative judge’s order on appeal precludes her from doing so on review. 12
See Miller v. U.S. Postal Service, 117 M.S.P.R. 557, ¶ 7 (2012).
¶21 The appellant also appears to argue that she was denied the opportunity to
prepare her case on appeal. She argues that the agency’s failure to provide the
administrative judge with “mandatory” documents adversely affected the outcome
of her appeal. 13 PFR File, Tab 1 at 15. She alleges that the agency’s delayed
response to her discovery request effectively prevented her from submitting “all
critical evidence” before the record closed on appeal, and she submits additional
documents on review. Id. at 16, 30-99. She also asks the Board to reconvene the
hearing so that the agency can subpoena a crucial witness approved to testify on
her behalf. Id. at 17-18. She contends that she was unable to reach the witness,
who was not an agency employee when the hearing occurred, and that the agency
was obligated to subpoena her. Id. For the reasons discussed below, we find that
the appellant was not denied the opportunity to prepare her case on appeal.
¶22 Although the appellant asserts that she was not instructed on how to deal
with these matters, we note that the administrative judge issued orders informing
her of the Board’s discovery and subpoena procedures under 5 C.F.R.
§§ 1201.71-1201.85. Id. at 16; IAF, Tab 2 at 3-4, Tab 6 at 2-3. In the event one
12
The appellant also argues on review that the deciding official in her October 2014
grievance about her September 2014 letter of reprimand, violated an agency directive
requiring him to consider all relevant factors in disciplinary actions because he failed to
investigate her concerns about her supervisor. She contends that the administrative
judge should have considered this issue in her removal appeal. PFR File, Tab 1 at 25.
We disagree because the appellant does not explain how the alleged procedural defect
in the agency’s grievance investigation proves that there is a nexus between her
protected grievance activity and her removal. See Warren, 804 F.2d at 656-58.
13
The appellant asserts that the agency should have made the “mandatory files”
available to the administrative judge because they “be came part of the official record”
when she submitted them to the deciding officials in her removal action, the grievance
of her suspension, and her request for reconsideration. PFR File, Tab 1 at 15. On
review, the agency contends that it provided the appellant with all responsive discovery
by November 23, 2016, before the record closed on December 6, 2016. PFR File, Tab 3
at 9-10.
14
party refuses to voluntarily make available pertinent documents or witnesses in a
Board proceeding, the Board’s rules provide, after the other party files a motion
to compel, for issuing orders to compel that documents or other discovery be
produced, and for issuing subpoenas. Kinsey v. U.S. Postal Service, 12 M.S.P.R.
503, 505-06 (1982); see 5 C.F.R. § 1201.73-75, .81-85. The appellant does not
contend that she filed a motion to compel the documents that she sought from the
agency, and she has not shown that the evidence and argument that she submits
on review is new and material evidence, which was not available despite her due
diligence before the record closed on appeal. 14 See 5 C.F.R. § 1201.115(d).
¶23 Moreover, contrary to the appellant’s argument on review, the agency
was not obligated to provide for her witness’s appearance because the witness
was not an agency employee when the hearing occurred. PFR File, Tab 1 at 17.
The agency was obligated only to provide for the appearance of agency
employees who were approved witnesses. IAF, Tab 6 at 2-3; see 5 C.F.R.
§ 1201.33(a). The administrative judge offered to assist the appellant in
arranging for the appearance of any approved witnesses not employed by the
agency by ordering the agency to make such witnesses available or by issuing a
subpoena, but the appellant did not request his assistance. IAF, Tab 6 at 2-3.
Because the appellant failed to take advantage of the procedures available to her
prior to the close of the record, she cannot now claim injury. Perry v. U.S. Postal
Service, 46 M.S.P.R. 425, 431 (1990), aff’d, 937 F.2d 623 (Fed. Cir.
1991) (Table).
14
On review, the appellant submits emails from 2013-2016, all of which predate the
close of the record on appeal. PFR File, Tab 1 at 32-93. The appellant provides a chart
with commentary about some of those emails and her alleged protected disclosures
therein. Id. at 94-98. The appellant also asserts that she was unable to upload certain
evidence before the filing deadline because the file was too large but contends that
evidence was “already part of the official record,” which the administrative judge
should have considered. Id. at 15. But the appellant has not shown that the evidence
and argument she submits on review is new and material evidence that was not
available, despite her due diligence, before the record closed on appeal. See 5 C.F.R.
§ 1201.115(d).
15
¶24 The appellant also argues that the administrative judge should have granted
her an extension of time to file her closing brief because she did not receive
notice between December 4 and 13, 2016, to “indicate that the audio recordings
from the Hearing (December 5-6, 2016) were available”; she further asserts that
she learned of the availability of the recordings on December 19, 2016, six days
after she filed her brief. PFR File, Tab 1 at 16-17. The appellant further
contends that the Board’s failure to make the record of the hearing available
sooner, and her lack of funds to purchase the written transcript, barred her from
access to important evidence before she filed her closing brief. Id. at 17. The
appellant also argues that she had no opportunity, before the record closed on
appeal, to rebut false information that the agency included in its closing brief.
PFR File, Tab 1 at 6.
¶25 We are not persuaded by the appellant’s arguments. First, the Board’s
regulations provide notice to the parties that “[c]opies of recordings or existing
transcripts will be provided upon request to parties free of charge.” 5 C.F.R.
§ 1201.53. The appellant does not assert that she requested from the regional
office a copy of the hearing recording prior to submitting her closing brief.
Second, the record does not show that the appellant requested an extension of
time to file her closing argument or for the record to remain open to rebut
argument submitted by the agency just before the record closed, as permitted by
5 C.F.R. § 1201.59(c). 15 The administrative judge considered the appellant’s
15
As noted above, the appellant asserts that she received no emails from the Board
regarding the availability of the audio recordings in the e -Appeal Repository between
December 4 and December 13, 2016, and she states that the format of the audio
recordings is not “universally accessible across different computer operating systems.”
PFR File, Tab 1 at 16-17. While the Board currently makes hearing audio files
available to the parties through the e-Appeal Repository in many instances (following
receipt of the audio files from the court reporter), 5 C.F.R. § 1201.53(c) requires that
parties make a written request for such recordings, and in turn a copy of the recording is
provided to the party free of charge. Similarly, to the extent the appellant argues in her
petition that she could not afford to purchase a printed copy of the hearing transcript,
the Board’s regulation provides parties with free copies of hearing recordings or
16
closing brief in reaching his decision. ID at 7 n.3. We therefore find that the
administrative judge afforded the appellant an opportunity to rebut the agency’s
closing argument. 16
¶26 Regardless, we have considered the appellant’s lengthy rebuttal to the
agency’s closing argument, in which she rejects the agency’s characterization of
her attitude toward management, defends her character and value to the agency,
reasserts her belief that her performance was underrated, and explain s that her
emails on April 14-15, 2015, were intended “to emphasize, among other things,
the unfairness and hostility” that she experienced from her former supervisor and
the project chief. PFR File, Tab 1 at 6-14. We find that the appellant’s response
to the agency’s closing argument does not demonstrate error in the
initial decision.
The administrative judge properly found that the agency proved a nexus between
the misconduct and the efficiency of the service, and that the removal penalty
was reasonable.
¶27 The administrative judge found that the agency established a nexus b etween
its decision to discipline the appellant for the sustained charge of failure to follow
instructions and the efficiency of the service. ID at 6. Neither party challenges
this finding on review, and we discern no reason to disturb it.
existing transcripts upon written request. 5 C.F.R. § 1201.53(c) (emphasis added). In
this case, the audio recording is the official record of the hearing as no transcript exists.
See IAF.
16
Moreover, while the appellant alleges that the agency made false statements about her
performance and conduct in its closing argument, she does not contend that the agency
introduced any new evidence in its final submission. Cf. Schucker v. Federal Deposit
Insurance Corporation, 401 F.3d 1347, 1355-58 (Fed. Cir. 2005) (finding that it is error
to refuse to permit an appellant to rebut evidence submitted by an agency on the record
closing date in cases decided without a hearing); Miller v. U.S. Postal Service,
110 M.S.P.R. 550, ¶¶ 8-9 (2009) (finding it appropriate to consider new evidence
submitted on review by the appellant to rebut the agency’s evidentiary submission,
concerning an unforeseen dispositive issue, filed at the close of the record in a case
decided without a hearing).
17
¶28 The administrative judge also found that the penalty of removal was
reasonable. ID at 13-16. In reaching his decision, the administrative judge found
that the deciding official properly considered the relevant factors in Douglas v.
Veterans Administration, 5 M.S.P.R. 280, 305-06 (1981). ID at 15-16. On
review, the appellant argues that the administrative judge failed to consider her
health condition as a mitigating factor. PFR File, Tab 1 at 20. However, the
administrative judge’s failure to mention all of the evidence of record does not
mean that he did not consider it in reaching his decision. 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). Moreover, the record reflects that the deciding official
considered the appellant’s health condition in his Douglas penalty analysis, IAF,
Tab 1 at 12, and the administrative judge found the deciding official’s
consideration of the Douglas factors “thorough.” ID at 15; see Higgins v.
Department of Veterans Affairs, 955 F.3d 1347, 1354-56 (Fed. Cir. 2020)
(acknowledging that although the Board’s analysis of the appellant’s medical
condition was “cursory,” it was still properly considered against the other
relevant Douglas factors when determining the reasonableness of the penalty).
Thus, we discern no error in the administrative judge’s decision finding that the
removal penalty was reasonable for the appellant’s proven and repeated failure to
follow the agency’s instruction. ID at 16; see Lentine v. Department of the
Treasury, 94 M.S.P.R. 676, ¶¶ 2, 12, 15 (2003) (finding that removal was a
reasonable penalty for an employee who intentionally and re peated emailed
another employee despite explicit instructions to stop). Based on the foregoing,
we affirm the initial decision sustaining her removal.
We forward the appellant’s claim alleging a hostile work environment to the
regional office for adjudication as an IRA appeal.
¶29 The appellant also argues on review that the administrative judge should
have considered her claim that she was subjected to a hostile work environment in
reprisal for whistleblowing. PFR File, Tab 1 at 16, 18, 31; see IAF, Tab 1 at 5.
18
In support of her argument, she refers to about 1,500 p ages of evidence that she
submitted on appeal, purportedly documenting her “long-term harassment” and
the agency’s “discriminatory treatment of employees.” PFR File, Tab 1 at 5, 18,
24. She also argues that her misconduct “was provoked” by the “long -term
hostile [work environment].” Id. at 31. Although the administrative judge
did not adjudicate her hostile work environment claim in this chapter 75 removal
appeal, we find no reversible error.
¶30 As explained above, the appellant’s failure to object to omitting her hostile
work environment claim from the administrative judge’s orders summarizing the
issues under consideration in this removal appeal precludes her from doing so
now. IAF, Tabs 5, 31; see Miller, 117 M.S.P.R. 557, ¶ 7. Moreover, to the extent
that the appellant seeks corrective action for the alleged retaliatory hostile work
environment that preceded her removal, the Board cannot order corrective action
for this matter in her chapter 75 appeal. IAF, Tab 5 at 1 n.3. Regardless, the pro
se appellant may not have understood her right to file a separate IRA appeal with
the Board based on her hostile work environment claim. Because the record
reflects that she has exhausted her hostile work environment claim before OSC,
we forward this claim to the Board’s Denver Field Office for adjudication as an
IRA appeal. 17 IAF, Tab 1 at 23, 31, 132; see Skarada v. Department of Veterans
Affairs, 2022 MSPB 17, ¶ 16 (recognizing that allegations of a hostile work
17
The appellant also asserts, for the first time on review, that the agency engaged in
“numerous instances of character defamation (slander and libel),” which should have
been considered as part of the ongoing retaliation and harassment. PFR File, Tab 1
at 21-23. She contends that she found evidence of the alleged defamat ion in the
discovery that she received from the agency, and she had no time to address it on
appeal. Id. at 21-22. We decline to consider her additional argument on review
because she has failed to demonstrate that it is based on new and material evidence that
previously was unavailable despite her due diligence. Banks v. Department of the
Air Force, 4 M.S.P.R. 268, 271 (1980). To the extent that the appellant argues that the
alleged defamation and libel is evidence of a hostile work environment, she may
reassert this argument in her IRA appeal.
19
environment may constitute a personnel action under the whistleblower
protection statutes).
NOTICE OF APPEAL RIGHTS 18
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 withi n 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.
(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).
18
Since the issuance of the initial decision in this matter, the Board may have u pdated
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.
20
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
21
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 oth er 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
22
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. 19 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
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 w ebsite at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
19
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.
23
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx.
FOR THE BOARD: /s/ for
Jennifer Everling
Acting Clerk of the Board
Washington, D.C.