Opinion

Eric Artis v. Tennessee Valley Authority

Court: Merit Systems Protection Board
Filed: Oct 11, 2022
Status: Unpublished
Cited by: 0 cases
Authority: More cited than 22.6%

The opinion

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

ERIC S. ARTIS, DOCKET NUMBER

Appellant, AT-0752-14-0390-I-1

TENNESSEE VALLEY AUTHORITY, DATE: October 11, 2022

Agency.

THIS FINAL ORDER IS NONPRECEDENTIAL 1

James E. Bankston, Florence, Alabama, for the appellant.

Jennifer L. Grace, Esquire, Knoxville, Tennessee, 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

sustained his removal. Generally, we grant petitions such as this one only in the

following circumstances: the initial decision contains erroneous findings of

material fact; the initial decision is based on an erroneous interpretation of statute

A nonprecedential order is one that the Board has determined does not add

significantly to the body of MSPB case law. Parties may cite nonprecedential orders,

but such orders have no precedential value; the Board and administrative judges are not

required to follow or distinguish them in any future decisions. In contrast, a

precedential decision issued as an Opinion and Order has been identified by the Board

as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).

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 initial decision,

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

DISCUSSION OF ARGUMENTS ON REVIEW

¶2 As further detailed in the initial decision, the appellant most recently held

the position of Maintenance Coordinator at a power plant. Initial Appeal File

(IAF), Tab 41, Initial Decision (ID) at 1. Among other things, that position

required that he facilitate maintenance tasks by ensuring that they were

coordinated appropriately and that the employees doing the hands-on work had

the necessary information, instructions, parts, and tools. ID at 2.

¶3 In the fall of 2013, scheduled maintenance required that some transformers

be temporarily grounded. Id. Because that work was done improperly, an

electrical arc explosion occurred on October 2, 2013, injuring an electrician and

causing approximately $100,000 in property damage. ID at 2 -3. An investigatory

team concluded that several human errors contributed to the improper grounding

and resulting explosion. ID at 3. For their respective roles, two electricians

received written warnings, a foreman received a 3-day suspension and demotion,

and the agency proposed the appellant’s removal. Id.

¶4 The proposal to remove the appellant included a narrative charge,

explaining that he had been experiencing performance problems since taking the

Maintenance Coordinator position in January 2012, culminating in his failure to

develop a work package with grounding plan, as instructed, which directly

contributed to the October 2013 explosion. ID at 3-4; IAF, Tab 13 at 28-29.

Following the appellant’s response, the deciding official upheld his removal,

effective December 20, 2013. ID at 4; IAF, Tab 13 at 19 -26.

¶5 The appellant filed the instant appeal, challenging his removal and raising

several affirmative defenses. ID at 4. After holding the requested hearing, the

administrative judge found that the agency met its burden, ID at 5-20, 27-30, and

the appellant did not meet his, ID at 20-27. Therefore, the administrative judge

affirmed the appellant’s removal. ID at 30. The appellant has filed a petition for

review. Petition for Review (PFR) File, Tab 1. The agency has filed a response ,

and the appellant has replied. PFR File, Tabs 3-4.

The administrative judge properly found that the agency met its burden of

proving the charges.

Charge 1 – Failure to Follow Instructions

¶6 The administrative judge construed the narrative in the agency’s proposal to

remove the appellant as consisting of two charges. ID a t 5. She characterized the

first as a charge that the appellant directly contributed to the electrical explosion

incident by failing to follow a direct instruction to help develop a work package.

Id.; IAF, Tab 13 at 28. The administrative judge determin ed that the agency was

required to show that the appellant was given a proper instruction and failed to

follow it. ID at 5; see Archerda v. Department of Defense, 121 M.S.P.R. 314,

¶ 16 (2014) (recognizing that, to prove a charge of failure to follow instructions,

an agency must establish that: (1) the employee was given proper instructions,

and (2) the employee failed to follow the instructions, without regard to whether

the failure was intentional or unintentional). The administrative judge found that

the agency met that burden by proving that the appellant’s direct supervisor

properly instructed him to work with a foreman and systems engineer to develop a

work package with grounding plan, but the appellant failed to follow those

instructions. ID at 5-12.

¶7 On review, without citing any evidence, the appellant asserts that he was

not given proper instructions because he lacked the training to develop a work

package with grounding plan or otherwise perform the work himself to avoid the

electrical explosion. PFR File, Tab 1 at 8-15. He generally shifts the blame for

the explosion to the employees that conducted the improper grounding,

suggesting that he should not be held responsible for their mistakes. Id.

However, the instructions at issue did not require the appellant to perform the

work or develop the plan independently, without the necessary expertise. Instead,

the undisputed instructions were to coordinate with a foreman and systems

engineer to develop the work package and grounding plan. ID at 6; IAF, Tab 35,

Hearing Compact Disc (HCD), Day 1 (testimony of the appellant’s supervisor).

That coordination is something the appellant acknowledges that he could have

done, and it is consistent with the responsibilities of his Maintenance Coordinator

position. PFR File, Tab 1 at 9; IAF, Tab 23, Subtab K. Had he followed those

instructions, the systems engineer reportedly would have prevented the mistakes

and resulting explosion. ID at 11 n.9; IAF, Tab 35, H CD, Day 2 (testimony of the

systems engineer). Accordingly, the appellant has presented no basis for us to

conclude that his alleged lack of expertise or the culpability of others is of any

consequence to the failure to follow instructions charge underlying his removal.

¶8 The appellant’s petition contains several other broad arguments concerning

his failure to follow instructions. For example, he alleges that the administrative

judge “ignored agency witnesses[’] testimony that was contrary to management’s

representations” and asserts that she “obviously did not factor in [agency]

maintenance protocol that was detailed in testimony and confirmed by exhibits.”

PFR File, Tab 1 at 14. However, these arguments are not supported by specific

references to the record. Without relevant details, such as what testimony,

evidence, and maintenance protocols he is referring to, the appellant has

presented no basis for us to disturb the administrative judge’s well -reasoned

conclusion that the agency met its burden for this charge. See Weaver v.

Department of the Navy, 2 M.S.P.R. 129, 133 (1980) (recognizing that before the

Board will undertake a complete review of the recor d, the petitioning party must

explain why the challenged factual determination is incorrect and identify the

specific evidence in the record that demonstrates the error); 5 C.F.R.

§ 1201.114(b) (requiring that a petition for review “be supported by references to

applicable laws or regulations and by specific references to the record”).

Charge 2 – Poor Performance

¶9 The administrative judge characterized the second charge underlying the

appellant’s removal as one of poor performance, with separate specifications

concerning: (a) the planning and execution of high hazard jobs,

(b) accountability and ownership, and (c) other areas. ID at 5, 15. She found that

the agency failed to prove specifications (b) or (c) but nevertheless proved the

charge based on specification (a) and the appellant’s involvement in the October

2013 electrical explosion. ID at 12-20.

¶10 On review, the appellant first argues that the administrative judge

improperly considered prejudicial testimony and records of previous performance

issues that had been removed from his personnel file following a grievance.

PFR File, Tab 1 at 15-16. We disagree. Although the administrative judge

discussed the appellant’s prior performance issues, including actions that resulted

from settlement of a related grievance, she explicitly noted that the information

was provided only for purposes of background and context. ID at 13-14. Among

other things, that background information explained how, when, and why the

appellant moved into the position he held at the time of the October 2013

explosion. ID at 14.

¶11 The appellant also presents a number of arguments specific to his

performance as it relates to the October 2013 explosion. PFR File, Tab 1

at 15-22. For example, he asserts that any subpar performance concerning the

electrical explosion should have been negated by the fact tha t he was forced to

perform the duties of two positions at that time. Id. at 17. He also suggests that

managers had not enforced agency maintenance guidelines before and were only

doing so now because of the resulting mistake and explosion. Id. at 18. Again,

the appellant has failed to identify any evidence to support these bare assertions.

Therefore, they are unavailing. See Weaver, 2 M.S.P.R. at 133; 5 C.F.R.

§ 1201.114(b). As detailed throughout the administrative judge’s well -reasoned

findings, the appellant’s responsibilities included coordinating the work plan and

temporary grounding of transformers in October 2013; his failure to do so

contributed to grave results, including serious bodily harm to another employee

and extensive damage to agency property, rendering his performance in the

“planning and execution of high hazard jobs” unacceptable. ID at 2 -16, 20.

The appellant failed to meet his burden of proving any affirmative defense.

¶12 Below, the appellant argued that his removal was improper retaliation for :

(1) requesting an adjustment to his work schedule for child care purposes , and

(2) filing a November 2011 grievance with the agency’s Employee Concerns

Office. IAF, Tab 33 at 4-5. The administrative judge found that the first matter

did not constitute any sort of protected activity. ID at 20 -21. She also found that,

although the second matter was protected activity under 5 U.S.C.

§ 2302(b)(9)(A)(ii), the appellant failed to meet his burden of establishing a

genuine nexus between that protected activity, his filing of the November 2011

grievance, and his removal. 2 ID at 21-23; see Warren v. Department of the Army,

804 F.2d 654, 656-58 (Fed. Cir. 1986) (requiring that an appellant show that he

In its response to the appellant’s petition for review, the agency argues that the

prohibited personnel practice the administrative judge found applicable to the

appellant’s allegation of reprisal for a prior grievance is actually inapplicable because

the Tennessee Valley Authority is a Government corporation. PFR File, Tab 3 at 8 n.3

(citing 5 U.S.C. § 2302(a)(2)(C)(i) (defining “agency” for purposes of section 2302));

ID at 21-22 (citing 5 U.S.C. § 2302(b)(9)(A)(ii)). Because the appellant has not

reasserted this reprisal claim on review, we need not address the agency’s argument.

engaged in protected activity, the accused official knew of t he activity, the

adverse action under review could have been retaliation under the circumstances,

and there was a genuine nexus between the alleged retaliation and the adverse

action), superseded in part by statute as stated in Alarid v. Department of the

Army, 122 M.S.P.R. 600, ¶ 15 (2015); Mattison v. Department of Veterans

Affairs, 123 M.S.P.R. 492, ¶ 8 (2016) (explaining that the Warren standard no

longer applies in many other contexts but does still apply for purposes of an

affirmative defense of retaliation under 5 U.S.C. § 2302(b)(9)(A)(ii) that does not

involve equal employment opportunity activity protected under Title VII).

¶13 The appellant also asserted a race and sex discrimination affirmative

defense below. IAF, Tab 1 at 6. The administrative judge found that although

there was some evidence of prior management being unduly harsh in earlier years,

the appellant failed to prove that race or sex discrimination was a motivating

factor in his removal. ID at 24-27; see Pridgen v. Office of Management

& Budget, 2022 MSPB 31, ¶¶ 20-22 (setting forth the standards for an affirmative

defense of race or sex discrimination, including the requirement that an appellant

prove that the prohibited consideration was either a motivating factor, a but -for

causation, or both, in the challenged personnel action). 3

¶14 On review, mixed with his arguments concerning the agency’s proof of its

charges, the appellant uses the word “retaliation” in one instance, but does so

without implicating either of the retaliation claims he previously raised.

PFR File, Tab 1 at 5. Instead, the appellant refers to “retaliation” while

Because we affirm the administrative judge’s finding that the appellant failed to meet

his initial burden to prove that race or sex was a motivating factor in the agency’s

actions, we need not resolve the issue of whether the appellant or the agency has the

burden to prove that discrimination or retaliation was a “but-for” cause of the agency’s

decisions. See Babb v. Wilkie, 589 U.S. ____, 140 S. Ct. 1168, 1173-74, 1176-78

(2020) (holding that, in claims of discrimination in Federal employment arising under

the Age Discrimination in Employment Act, an employer engages in illegal

discrimination “if age discrimination plays any part in the way a decision is m ade,” but

that an employee must prove the discrimination was a but -for cause of the agency’s

action to obtain full relief).

appearing to reassert his race discrimination claim. Id. The appellant alleges,

generally, that African American managers were subject to disparate treatment at

the agency. Id. at 5-6. According to the appellant, this was particularly so in

years past, under prior management. Id. at 16, 22-23. The appellant also

suggests that his most recent supervisors were racist and prejudic ed, “as

demonstrated by the volatile language” they used to describe him. Id. at 13,

17-18.

¶15 The administrative judge fully addressed the aforementioned allegations.

ID at 24-27. Among other things, she recognized that the proposing official

allegedly had referred to the appellant as arrogant and worthless but found that,

even if true, the references had no racial connotation . ID at 24, 26. She also

considered prior management’s alleged harsh treatment of subordinates but found

that to have little bearing on whether current management had a discr iminatory

motive in removing the appellant. ID at 25. The administrative judge concluded

that, although the appellant presented broad allegations of discrimination, he

failed to support his discrimination affirmative defense with detailed or specific

evidence. ID at 26-27. We find no basis for reaching a different conclusion.

Although the appellant generally has referred to the agency’s actions as

discriminatory, he has done so without identifying specific support for the claim.

See supra ¶ 14. Therefore, we agree with the administrative judge’s

well-reasoned conclusion that the appellant failed to meet his burden of proving

that race or sex was a motivating factor in his removal. See Pridgen,

2022 MSPB 31, ¶¶ 20-25.

The appellant has presented no other basis for disturbing the initial decision.

¶16 On review, the appellant challenges the administrative judge’s delay

between the hearing and her issuance of the initial decision. PFR File, Tab 1

at 6-7. It is clear, however, that the administrative judge at all times had access

to the complete record, including the hearing compact disc. We find, therefore,

that the appellant has not shown that the delay constituted an adjudicatory error

that prejudiced his substantive rights. See Panter v. Department of the Air Force,

22 M.S.P.R. 281, 282 (1984). We also recognize that the appellant’s

representative has repeatedly expressed his personal views about several aspects

of the appellant’s employment and removal, citing his past experience as an

agency electrical operator, system dispatcher, and electrician. PFR File, Tab 1

at 22. However, these assertions are unavailing. The statements of a party’s

representative in a pleading do not constitute evidence. Marcantel v. Department

of Energy, 121 M.S.P.R. 330, ¶ 6 n.1 (2014).

NOTICE OF APPEAL RIGHTS 4

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 b elow 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.

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 m atter.

(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 tha t 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. 5 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.