Opinion

Maya Beaudette v. Department of Homeland Security

Court: Merit Systems Protection Board
Filed: Jul 15, 2022
Status: Unpublished
Cited by: 0 cases
Authority: More cited than 22.6%

The opinion

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

MAYA BEAUDETTE, DOCKET NUMBER

Appellant, SF-315H-17-0634-I-1

DEPARTMENT OF HOMELAND DATE: July 15, 2022

SECURITY,

Agency.

THIS FINAL ORDER IS NONPRECEDENTIAL 1

Maya Beaudette, Las Vegas, Nevada, pro se.

Michael L. Gurnee, Esquire, Centennial, Colorado, 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

dismissed her probationary termination appeal for lack of jurisdiction. The

administrative judge also dismissed the appellant’s Veterans Employment

Opportunities Act of 1998 (VEOA), Uniformed Services Employment and

A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

Reemployment Rights Act of 1994 (USERRA) (codified as amended at 38 U.S.C.

§§ 4301-4335), equal employment opportunity (EEO) reprisal, discrimination,

and other prohibited personnel practice claims for lack of jurisdiction.

¶2 On review, the appellant reargues that she is a career tenured employee with

Board appeal rights and submits argument and evidence challenging the merits of

her termination. Petition for Review (PFR) File, Tab 2 at 11-14, 16-42. She

further claims that the Board has jurisdiction over her VEOA appeal concerning

her nonselection for positions because she exhausted her administrative remedies

with the Department of Labor (DOL), as reflected in four DOL closure letters,

which she submits for the first time on review. PFR File, Tab 1 at 4-5, Tab 4

at 4-11. She also alleges that she is a “whistle blower,” discusses matters related

to her EEO complaint, and alleges that the agency “did not honor [the] union

agreement.” 2 PFR File, Tab 1 at 5, Tab 2 at 4-5, 11.

¶3 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 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

For the first time on review, the appellant also alleges that the agency terminated her

for partisan political reasons. PFR File, Tab 2 at 12; see 5 C.F.R. § 315.806(a)-(b)

(providing for limited Board jurisdiction over such claims). However, her allegation

that her termination was due to her affiliation with a group that is “pro Muslim, Pro

immigrant anti Neo-Nazi” [sic] is insufficient to meet her jurisdictional burden.

PFR File, Tab 2 at 12. To show that the Board has jurisdiction because an agency

terminated an appointee for partisan political reasons, an appellant must provide

supporting facts to show that the allegation is not merely a pro forma pleading. Smirne

v. Department of Army, 115 M.S.P.R. 51, ¶ 8 (2010). The appellant has not alleged any

specific facts concerning her claim and thus has not met her jurisdictional burden.

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. Except as expressly MODIFIED to

address the appellant’s claim of Board jurisdiction over her VEOA and

whistleblower reprisal claims, we AFFIRM the initial decision.

¶4 As to the appellant’s VEOA claim concerning her nonselection for agency

vacancies, it is undisputed that she is a 10-point preference eligible. Initial

Appeal File (IAF), Tab 6 at 15, Tab 7 at 27. The administrative judge dismissed

her claim for lack of jurisdiction because she failed to allege that she exhausted

her administrative remedies with DOL. 3 IAF, Tab 10, Initial Decision (ID) at 8;

see Gingery v. Office of Personnel Management, 119 M.S.P.R. 43, ¶ 13 (2012)

(explaining that, to establish Board jurisdiction over a VEOA appeal, the

appellant must show that he exhausted his remedy with DOL, among other

requirements). We find that the DOL closure letters, which are dated after the

issuance of the initial decision, are new and material evidence under 5 C.F.R.

§ 1201.115(d). By submitting DOL’s letters stating the results of its investigation

into complaints asserting the appellant’s veterans preference rights were violated,

she has satisfied the exhaustion requirement. See Gingery, 119 M.S.P.R. 43,

¶ 15.

¶5 We nevertheless deny corrective action. DOL declined to investigate the

VEOA complaints because they were not filed with DOL within the 60-day filing

deadline. PFR File, Tab 4 at 4-11; see 5 U.S.C. § 3330a(a)(2)(A) (explaining that

a VEOA complaint must be filed within the 60 days following the alleged

violation). The 60-day filing deadline is subject to equitable tolling, which, if

The appellant filed a separate VEOA claim concerning a different nonselection.

Beaudette v. Department of Homeland Security, MSPB Docket No. SF-3330-18-0181-

I-1, Initial Decision at 2 (Apr. 23, 2018). The administrative judge issued an initial

decision in that appeal, granting corrective action. Id. at 1, 10.

applicable, may allow the Board to review the appeal. Gingery, 119 M.S.P.R. 43,

¶ 17. The appellant argued equitable tolling should apply because she relied on

the agency’s determination that she was ineligible for the positions at issue . IAF,

Tab 6 at 10. This argument goes to the merits of the appellant’s VEOA claim and

does not explain why she did not meet the filing deadline. Similarly, the

appellant’s assertion that she was unaware of her right to file a VEOA complaint,

PFR File, Tab 4 at 4, is not a sufficient reason to equitably toll the filing

deadline, Gingery, 119 M.S.P.R. 43, ¶¶ 17-18 (explaining that equitable tolling is

applied sparingly, such as when the appellant has actively pursued his remedies

by filing a defective pleading during the statutory period or been “induced or

tricked” by an agency representative into filing late (quoting Irwin v. Department

of Veterans Affairs, 498 U.S. 89, 96 (1990)). When an appellant files an untimely

DOL complaint and equitable tolling does not apply, the request for corrective

action must be denied for failure to meet the 60-day time limit. Gingery,

119 M.S.P.R. 43, ¶ 16 n.3. We therefore deny the appellant’s request for

corrective action under VEOA based on her failure to meet the time limit for

filing a complaint with DOL.

¶6 Regarding the appellant’s whistleblower reprisal claim, PFR File Tab 1 at 5;

IAF, Tab 6 at 8, 17, she has not raised it in connection with an othe rwise

appealable action because the Board lacks jurisdiction over her probationary

termination for the reasons explained by the administrative judge in the initial

decision, which we have affirmed above. ID at 3-6. Thus, for the Board to

review that claim, the appellant must satisfy the jurisdictional requirements of an

individual right of action (IRA) appeal. See Neice v. Department of Homeland

Security, 105 M.S.P.R. 211, ¶¶ 13-14 (2007) (finding that, although the Board

lacked jurisdiction over the appellant’s resignation as an otherwise appealable

action, the Board would consider any whistleblower reprisal claims that satisfied

the jurisdictional requirements of an IRA appeal). To establish Board jurisdiction

over an IRA appeal, the appellant must have exhausted her administrative

remedies before the Office of Special Counsel and make nonfrivolous allegations

of the following: (1) she made a protected disclosure described under 5 U.S.C.

§ 2302(b)(8) or engaged in protected activity as specified in 5 U.S.C.

§ 2302(b)(9)(A)(i), (B), (C), or (D); and (2) the disclosure or protected activity

was a contributing factor in the agency’s decision to take or fail to take a

personnel action as defined by 5 U.S.C. § 2302(a). 5 U.S.C. §§ 1214(a)(3),

1221(a); Salerno v. Department of the Interior, 123 M.S.P.R. 230, ¶ 5 (2016).

The appellant has not made that necessary showing.

¶7 However, the administrative judge did not notify the appellant of the

jurisdictional requirements for an IRA appeal in any of his orders or the initial

decision; the agency’s response did not cure that def ect. The appellant must

receive explicit information on what is required to establish Board jurisdiction

before dismissing a claim for lack of jurisdiction. 4 See Burgess v. Merit Systems

Protection Board, 758 F.2d 641, 643-44 (Fed. Cir. 1985). Accordingly, we

FORWARD the appellant’s whistleblowing allegation to the Board’s Western

Regional Office for docketing as an IRA appeal and further adjudication in

accordance with this Order.

¶8 The appellant has filed a union grievance over her termination ;

however, she asserted that the agency refused to arbitrate her claim. IAF, Tab 7

at 5, 13; PFR File, Tab 2 at 5. The filing of that grievance may affect her right to

pursue her whistleblower reprisal claim in another forum. See Savage v.

Department of the Army, 122 M.S.P.R. 612, ¶¶ 17-18 (2015) (explaining that, if

Even if the appellant establishes Board jurisdiction over her whistleblower reprisal

claims, under these circumstances, it would not provide a basis for reviewing her EEO

reprisal claims or allegations that the agency violated the applicable collective

bargaining agreement. See Benton-Flores v. Department of Defense, 121 M.S.P.R. 428,

¶ 6 n.1 (2014) (finding that the Board does not have jurisdiction over the appellant’s

claims of harmful procedural error and EEO retaliation in the context of an IRA

appeal); Wren v. Department of the Army, 2 M.S.P.R. 1, 2 (1980) (holding that

prohibited personnel practices under 5 U.S.C. § 2302(b) are not an independent source

of Board jurisdiction), aff’d, 681 F.2d 867, 871-73 (D.C. Cir. 1982).

made knowingly and voluntarily, an appellant’s election first to file, as applicable

here, either a grievance or an OSC complaint, potentially followed by an IRA

appeal, is a binding election of that remedy), clarified on other grounds by

Gardner v. Department of Veterans Affairs, 123 M.S.P.R. 647, ¶¶ 30-31 (2016).

Accordingly, upon docketing of the IRA appeal, the administrative judge should

address this election of remedies issue.

NOTICE OF APPEAL RIGHTS 5

The initial decision, as supplemented by this Final Order, constitutes the

Board’s final decision in this matter. 5 C.F.R. § 1201.113. 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 ru le

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 matter.

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

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

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

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

§ 7703(b)(1)(A).

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

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

following address:

U.S. Court of Appeals

for the Federal Circuit

717 Madison Place, N.W.

Washington, D.C. 20439

Additional information about the U.S. Court of Appeals for the Federal

Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular

relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is

contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.

If you are interested in securing pro bono representation for an appeal to

the U.S. Court of Appeals for the Federal Circuit, you may visit our website at

http://www.mspb.gov/probono for information regarding pro bono representation

for Merit Systems Protection Board appellants before the Federal Circuit. The

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

any attorney will accept representation in a given case.

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

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

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

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

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

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

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

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

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

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

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

after your representative receives this decision. If the action involves a clai m 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 s ection

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. 6 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.