The opinion
UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
ABIGAIL L. PADILLA, DOCKET NUMBER
Appellant, DE-0752-15-0483-B-1
v.
DEPARTMENT OF THE TREASURY, DATE: September 15, 2022
Agency.
THIS ORDER IS NONPRECEDENTIAL
Abigail L. Padilla, Denver, Colorado, pro se.
Emily Urban, Esquire, San Francisco, California, for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
Tristan L. Leavitt, Member
REMAND ORDER
¶1 The appellant has filed a petition for review of the remand initial decision,
which dismissed her appeal for lack of jurisdiction . For the reasons discussed
below, we GRANT the appellant’s petition for review and REMAND the case to
A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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).
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the Denver Field Office for further adjudication in accordance with this Remand
Order.
BACKGROUND
¶2 The appellant filed a Board appeal on July 10, 2015, challenging her
removal from Federal service, effective June 26, 2015, and raising several
affirmative defenses, including whistleblower reprisal, disability discrimination,
and retaliation for engaging in protected equal employment opportunity (EEO)
activity. Padilla v. Department of the Treasury, MSPB Docket No. DE-0752-15-
0483-I-1, Initial Appeal File (IAF), Tab 1 at 3, 5. The administrative judge
issued an initial decision dismissing the appeal without prejudice subject to
automatic refiling within 120 days of the date of the initial decision, finding that,
because the appellant previously elected to challenge her removal before the
Office of Special Counsel (OSC), her Board appeal was an individual right of
action (IRA) appeal that she filed prematurely. Padilla v. Department of the
Treasury, MSPB Docket No. DE-0752-15-0483-I-1, Initial Decision (Sept. 2,
2015).
¶3 The appellant petitioned for review of the initial decision, and the Board
granted her petition and vacated the initial decision. Padilla v. Department of the
Treasury, MSPB Docket No. DE-0752-15-0483-I-1, Remand Order (Feb. 8,
2016). The Board found that the record was unclear as to whether the appellant
filed a complaint with OSC regarding her removal prior to filing her Board appeal
and that further adjudication was necessary. Id., ¶¶ 8-11. The Board ordered the
administrative judge to determine in which forum the appellant first challenged
her removal. Id., ¶ 11. If the administrative judge determined that she first filed
at OSC, the Board instructed him to adjudicate her appeal under its procedures
governing IRA appeals. Id. If he determined that she filed her Board appeal first,
the Board instructed him to adjudicate the appellant’s removal under chapter 75
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and to consider any affirmative defenses that she raised in response to the
removal. Id.
¶4 On remand, the administrative judge issued an El ection of Remedies Order,
finding that the appellant challenged her removal with OSC prior to filing her
Board appeal but that she did not make a knowing election of remedies because
the agency failed to provide her with notice of the applicable consequences of her
election. Padilla v. Department of the Treasury, MSPB Docket No. DE-0752-15-
0483-B-1, Remand File (RF), Tab 12 at 2. As a result, he gave the appellant a
choice of either pursuing her appeal with the Board as an IRA appeal that
challenges her removal based on alleged whistleblower retaliation or as a removal
appeal under chapter 75 with an opportunity to assert her affirmative defenses.
Id. The appellant replied, asking the Board to review her appeal as an IRA appeal
but also challenging the merits of the removal by attaching the agency’s table of
penalties and reasserting her claims of disability discrimination and EEO
retaliation. RF, Tab 13 at 4-5, 9-37. Thereafter, the administrative judge issued a
second order, requesting that the appellant choose only one of the options
previously presented. RF, Tab 14. The applied replied, circling the option to
pursue her appeal as an IRA appeal but also continuing to appear to assert her
affirmative defenses of disability discrimination and EEO retaliation. RF, Tabs
15-16.
¶5 Based on the written record, the administrative judge issued a remand initial
decision, finding that the appellant elected to pursue her appeal as an IRA a ppeal
and dismissing the appeal for lack of jurisdiction. RF, Tab 23, Remand Initial
Decision (RID) at 1. Specifically, the administrative judge found that the
appellant failed to make a nonfrivolous allegation that she made a protected
disclosure under 5 U.S.C. § 2302(b)(8). RID at 9-13.
¶6 The appellant, who is pro se, has filed a petition for review in which she
challenges the administrative judge’s findings regarding her protected disclosures
and continues to appear to assert her affirmative defenses of disability
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discrimination and EEO retaliation. Remand Petition for Review (RPFR) File,
Tab 1 at 4-8. The agency has filed an opposition in response to the petition for
review. RPFR File, Tab 3.
DISCUSSION OF ARGUMENTS ON REVIEW
¶7 An employee who claims to have suffered whistleblowing reprisal regarding
an action may elect no more than one of the following remedies: a direct appeal
to the Board; a negotiated grievance procedure pursuant to 5 U.S.C. § 7121; or a
request for corrective action under 5 U.S.C. chapter 12, subchapters II and III,
i.e., an OSC complaint, potentially to be followed by an IRA appeal. 5 U.S.C.
§ 7121(g); Savage v. Department of the Army, 122 M.S.P.R. 612, ¶ 17 (2015),
clarified by Gardner v. Department of Veterans Affairs, 123 M.S.P.R. 647,
¶¶ 30-31 (2016). Ordinarily, an individual who first requests corrective action
from OSC will be deemed to have made a binding election to proceed in that
forum. 5 U.S.C. § 7121(g)(4)(C); Savage, 122 M.S.P.R. 612, ¶ 17. In such a
case, the jurisdictional requirements for an IRA appeal apply, even if the
contested personnel action would have been directly appealable to the Board.
Savage, 122 M.S.P.R. 612, ¶ 17. However, the Board also has held that an
election under 5 U.S.C. § 7121(g) is binding only if made knowingly and
voluntarily. Id., ¶ 18.
¶8 Here, the administrative judge found that the appellant did not make a
knowing election because the agency failed to provide her with notice of the
consequences of her election. RF, Tab 12 at 2, 9; IAF, Tab 22 at 37-39. As a
result, he provided the appellant with the opportunity to elect either an IRA
appeal challenging her removal based on alleged whistleblower reprisal or an
adverse action appeal challenging her removal under chapter 75 and raising
affirmative defenses. RF, Tab 12 at 8. As to a potential IRA appeal, he found
that the appellant exhausted her administrative remedies with OSC; that is, that
OSC had investigated her allegations, found no basis for determining that a
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violation of her rights under the whistleblower laws occurred , and provided her
with Board appeal rights. Id. at 9; RF, Tab 6 at 6-10. As to a potential removal
appeal under chapter 75, he found that the appellant timely filed the appeal and
that the Board had jurisdiction over it. RF, Tab 12 at 9.
¶9 Because the administrative judge found that the Board ha d jurisdiction over
her appeal under chapter 75, the choice that he presented to the appellant was
essentially a choice between adjudicating—or withdrawing—her affirmative
defenses other than whistleblower reprisal. When an appellant raises affirmative
defenses, the administrative judge must apprise her of the applicable burdens of
proving those defenses and must address those defenses in any close of record
order or prehearing conference summary and order. Erkins v. U.S. Postal Service,
108 M.S.P.R. 367, ¶ 8 (2008). When an appellant makes an election to pursue an
appeal as an IRA appeal, as opposed to an otherwise appealable action, base d on
the mistaken belief that he could still pursue his nonwhistleblowing affirmative
defenses in an IRA appeal, the Board has found that the election was not knowing
and informed and, therefore, not binding. Agoranos v. Department of Justice,
119 M.S.P.R. 498, ¶ 18 (2013) (finding that the appellant’s election to pursue his
claims as an IRA appeal was not a valid, informed election when the record did
not show that he received notice that his election would result in the waiver or
loss of any of his claims for relief from his removal appeal).
¶10 Here, the administrative judge did not explicitly advise the appellant that
she would be withdrawing her affirmative defenses if she chose to pursue her
appeal as an IRA appeal, or give her an opportunity to object. Moreover, the
appellant’s continued assertions throughout the appeal pertaining to her
affirmative defenses other than whistleblower reprisal evidence a
misunderstanding that, by choosing to pursue her appeal as an IRA appeal, the
Board would no longer consider those claims. IAF, Tabs 1, 13, 15, 28; RF,
Tabs 13, 15-16; RPFR File, Tab 1 at 4-7; see Zendejas v. Department of
Homeland Security, 107 M.S.P.R. 348, ¶ 6 (2007) (explaining that a withdrawal
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based on a misunderstanding constitutes an exception to the general finality rule).
Therefore, we find that, although the appellant circled the option for pursuing her
appeal as an IRA appeal, the record evidence indicates that she wanted the merits
of her removal and all of her affirmative defenses adjudicated by the Board and
that she misunderstood that she was waiving these claims . Under these
circumstances, we find a remand is necessary to adjudicate the merits of her
removal and any affirmative defenses she raised in response to the removal . See,
e.g., Freeborn v. Department of Justice, 119 M.S.P.R. 290, ¶ 18 (2013)
(instructing an administrative judge on remand to adjudicate a previously
withdrawn whistleblower reprisal claim if the administrative judge determined
that the appellant made a binding election to proceed with that claim before the
Board and that his decision to withdraw that claim was base d on a material
misunderstanding that he could pursue the claim at a later date) .
ORDER
¶11 For the reasons discussed above, we remand this case to the Denver Field
Office for further adjudication in accordance with this Remand Order.
FOR THE BOARD: /s/ for
Jennifer Everling
Acting Clerk of the Board
Washington, D.C.