The opinion
UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
MICHAEL CORDARO, DOCKET NUMBER
Appellant, NY-0432-18-0217-I-1
v.
DEPARTMENT OF DEFENSE, DATE: August 25, 2022
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Michael Cordaro, Rochester, New York, pro se.
Temple L. Wilson, Fort Belvoir, Virginia, 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 removal for unacceptable performance pursuant to 5 U.S.C.
chapter 43 and denied his affirmative defense of sex discrimination. Generally,
we grant petitions such as this one only in the following circumstances: the
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
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 ad ministrative 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 evide nce 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. We DENY the petition for
review on the grounds of res judicata and AFFIRM the initial decision, which is
now the Board’s final decision. 5 C.F.R. § 1201.113(b).
BACKGROUND
¶2 Pursuant to 5 U.S.C. chapter 43, the agency removed the appellant for
unacceptable performance in three critical elements of his position as an auditor
with the Defense Contract Audit Agency. Initial Appeal File (IAF), Tab 5
at 16-19, Tab 16 at 6. On September 20, 2018, the appellant timely filed a
mixed-case appeal. IAF, Tab 1. After holding a hearing, the administrative judge
issued an initial decision on May 21, 2019, which affirmed the performance-based
removal action and denied the appellant’s affirmative defense of sex
discrimination. IAF, Tab 74, Initial Decision. On June 23, 2019, the appellant
filed a petition for review, challenging the administrative judge’s findings about
the elements of the removal action and his discrimination claim. Petition for
Review (PFR) File, Tab 3.
¶3 Subsequently, on June 28, 2019, the appellant appealed the initial decision
to the U.S. Court of Appeals for the Federal Circuit. PFR File, Tab 9 at 11-12.
The appellant filed an exact copy of his petition for review in his appeal to the
3
Federal Circuit. PFR File, Tab 3 at 4-31, Tab 9 at 13-40. The Federal Circuit
issued an order to show cause, noting that the appellant had a pending petition for
review before the Board, and therefore it might not yet have jurisdiction over the
case in the absence of a final order or decision of the Board. PFR File, Tab 9
at 58-59. The Federal Circuit noted that, if the appellant wished to proceed
before the court rather than the Board, he could file a motion with the Board to
withdraw his petition for review. Id. at 59. Although the Federal Circuit ordered
the parties to show cause why the case should not be dismissed as premature, the
appellant did not respond. Id. at 59, 62. He also did not file a motion to
withdraw his petition for review with the Board.
¶4 On August 16, 2019, the Federal Circuit issued a decision finding that,
pursuant to Perry v. Merit Systems Protection Board, 582 U.S. ____ , 137 S. Ct.
1975, 1985 (2017), it lacked jurisdiction over the appellant’s mixed-case appeal
involving a sex discrimination claim. Id. at 62-63. The Federal Circuit
transferred the case to the U.S. District Court for the Western District of
New York (Western District of New York), stating that it lacked jurisdiction over
the mixed-case appeal of a personnel action and discrimination claim, which must
be pursued in Federal district court. Id. at 63. The Federal Circuit noted that,
although the agency had argued that the court sho uld dismiss the appeal as
premature, the district court may have jurisdiction despite the pending petition for
review before the Board under 5 U.S.C. § 7702(e)(1)(B), which permits an
employee to file a civil action if there has been no judicially reviewable action
more than 120 days after filing his Board appeal involving a discrimination claim.
Id. at 62-63.
¶5 The case was docketed by the Western District of New York. Id. at 135-41.
On September 9, 2021, the district court granted the agency’s motion for
summary judgment. Id. at 95, 120. The judge found that there was no basis for
disturbing the Board’s determination, in this case the initial decision, affirming
the chapter 43 removal pursuant to 5 U.S.C. § 7703(c). Id. at 116-17. The judge
4
found that the agency was entitled to summary judgment on the claim of sex
discrimination because the appellant did not meet his initial burden of
establishing a prima facie case of discrimination. Id. at 109-16. The judge
agreed with the agency that the appellant could not establish that the agency
removed him from his employment under circumstances giving rise to an
inference of discriminatory intent. Id. at 111. On October 6, 2021, the appellant
filed an appeal of the district court’s decision with the U.S. Court of Appeals for
the Second Circuit, arguing that the district court had failed to address his
disability discrimination claim. Id. at 122, 124.
¶6 On March 11, 2022, the agency filed a motion to dismiss the petition for
review with prejudice. PFR File, Tab 9 at 4-7. The agency argued that the
appellant had availed himself of the statutory right to seek review in Federal
district court when more than 120 days had elapsed since the filing of his Board
appeal without a final decision. Id. at 6. The agency asserted that the appellant’s
petition for review was barred under the doctrine of collateral estoppel and should
be dismissed in the interest of judicial efficiency and economy . Id. at 7.
¶7 The appellant filed a response and motion for sanctions, arguing that his
petition for review remained pending before the Board. PFR File, Tab 10 at 4-5.
He challenged the agency’s characterization of his affirmative defense as only sex
discrimination and argued that, as of the issuance of the initial decision, his
“claims of hostile work environment and disability discrimination had not even
been investigated, let alone reviewed and decided upon” by the Board. Id. at 6.
He also submitted extensive documentation concerning a separate equal
employment opportunity (EEO) complaint. Id. at 9-124. We further address the
agency’s motion below and deny the appellant’s motion in light of our finding
that the petition for review is barred by res judicata.
5
DISCUSSION OF ARGUMENTS ON REVIEW
The petition for review is barred by res judicata.
¶8 Under 5 U.S.C. § 7702(e)(1)(B), an employee may file a civil action in
Federal court if there is no final order more than 120 days after the filing of a
mixed-case appeal with the Board involving an allegation of prohibited
discrimination. In its order transferring the appellant’s case to the Western
District of New York, the Federal Circuit noted that, despite the fact that the
appellant had a pending petition for review before the Board, the district court
may have jurisdiction over the matter pursuant to this statutory provision. PFR
File, Tab 9 at 63. The Board has held that an appellant may exercise his right to
file a civil action under 5 U.S.C. § 7702(e)(1)(B) and simultaneously pursue a
mixed-case appeal before the Board and a U.S. district court. Hooker v.
Department of Veterans Affairs, 122 M.S.P.R. 551, ¶ 6 (2015).
¶9 Here, the appellant challenged the May 21, 2019 initial decision affirming
his performance-based removal and denying his affirmative defense of
discrimination both in a petition for review with the Board and a civil action. He
filed his Board appeal challenging his removal on September 20, 2018. IAF,
Tab 1. More than 120 days later, and 5 days after he filed his petition for review,
he appealed the initial decision to the Federal Circuit on June 28, 2019, which
transferred the matter to the Western District of New York. PFR File, Tab 3,
Tab 9 at 11-12. Therefore, we find that the appellant exercised his right under
5 U.S.C. § 7702(e)(1)(B) to file a civil action in U.S. district court and that the
Western District of New York had jurisdiction to consider both the
performance-based removal and discrimination claim. See Hooker, 122 M.S.P.R.
551, ¶ 9.
¶10 The agency argues that the appellant’s petition for review is barred by
collateral estoppel because the district court granted summary judgment in favor
of the agency on both the removal action and discrimination affirmative defense .
PFR File, Tab 9 at 5, 7. Collateral estoppel, or issue preclusion, is appropriate
6
under the following circumstances: (1) the issue is identical to that involved in
the prior action; (2) the issue was actually litigated in the prior action; (3) the
determination on the issue in the prior action was necessary to the resulting
judgment; and (4) the party against whom issue preclusion is sought had a full
and fair opportunity to litigate the issue in the prior action, either as a party to the
earlier action or as one whose interests were otherwise fully represented in that
action. McNeil v. Department of Defense, 100 M.S.P.R. 146, ¶ 15 (2005). For
the following reasons, we find that the elements for applying res judicata are
present in this appeal.
¶11 Under the doctrine of res judicata, a valid, final judgment on the merits of
an action bars a second action involving the same parties based on the same cause
of action. Encarnado v. Office of Personnel Management, 116 M.S.P.R. 301,
¶ 10 (2011); Peartree v. U.S. Postal Service, 66 M.S.P.R. 332, 337 (1995).
Res judicata precludes parties from relitigating issues that were, or could have
been, raised in the prior action and is applicable if: (1) the prior action was
rendered by a forum with competent jurisdiction; (2) the prior judgment was a
final judgment on the merits; and (3) the same cause of action and the same
parties were involved in both cases. Encarnado, 116 M.S.P.R. 301, ¶ 10;
Peartree, 66 M.S.P.R. at 337. Here, the appellant raised the same issues,
concerning his performance-based removal under chapter 43 and affirmative
defense of sex discrimination, in his petition for review before the Board and his
judicial filing. PFR File, Tab 3 at 4-31, Tab 9 at 13-40. In fact, the appellant
filed an exact copy of his petition for review in his appeal to the Federal Circuit.
PFR File, Tab 3 at 4-31, Tab 9 at 13-40.
¶12 The present appeal, on petition for review, satisfies all three elements of the
doctrine of res judicata. The U.S. district court was a forum with competent
jurisdiction under 5 U.S.C. § 7702(e)(1)(B) since more than 120 days had passed
since the appellant’s filing of his initial appeal with the Board and a final
decision had not been issued. See Hooker, 122 M.S.P.R. 551, ¶ 10. The district
7
court’s order granting the agency’s motion for summary judgment on both the
performance-based removal and discrimination claim was a final decision on the
merits. IAF, Tab 9 at 95-118; see New v. Department of Veterans Affairs,
99 M.S.P.R. 404, ¶ 31 (2005) (finding that the Board was precluded by the
doctrine of res judicata from revisiting the appellant’s discrimination and
retaliation claims for which a U.S. district court had granted summary judgment
on behalf of the agency). Finally, the same cause of action and the same parties
were involved in both the civil action and Board appeal. See Frias v. U.S. Postal
Service, 63 M.S.P.R. 276, 280, aff’d, 43 F.3d 1486 (Fed. Cir. 1994) (Table)
(stating that, for the purposes of res judicata, a cause of action is the set of facts
that gives an appellant the right to seek relief from an agency).
¶13 The appellant asserts that his petition for review “rema ins valid and open.”
PFR File, Tab 10 at 5. However, because the Board finds that the appellant’s
claim challenging his performance-based removal and his sex discrimination
claim are barred by res judicata, we do not address any of his specific arguments
on review regarding the purported erroneous findings or omissions made by the
administrative judge in the initial decision. PFR File, Tab 3 at 4-28. The
appellant’s election to file a civil action under 5 U.S.C. § 7702(e)(1)(B) and the
district court’s issuance of a final decision on the merits precludes the Board from
considering his petition for review. See Hooker, 122 M.S.P.R. 551, ¶ 12.
Finally, the additional discrimination claims to which he refers on review,
arguing that they had not been investigated in the EEO process “as of the issuance
of the initial decision,” are outside the scope of the present appeal and seem to
concern a separate EEO complaint for which both the appellant and the agency
submitted documentation into the record. PFR File, Tab 9 at 68-93, 168-75,
188-90, Tab 10 at 5, 9-124.
8
NOTICE OF APPEAL RIGHTS 2
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.
(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:
2
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.
9
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
10
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
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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. 3 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 we bsite 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.
3
The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent j urisdiction 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.
12
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.