The opinion
UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
DIANE TRYVONNE BAILEY, DOCKET NUMBER
Appellant, DC-0752-16-0463-I-1
v.
UNITED STATES POSTAL SERVICE, DATE: May 25, 2022
Agency.
THIS ORDER IS NONPRECEDENTIAL 1
Casanova Hambrick, Clarkton, North Carolina, for the appellant.
Brandon L. Truman, Charlotte, North Carolina, for the agency.
BEFORE
Raymond A. Limon, Vice Chair
Tristan L. Leavitt, Member
REMAND ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
sustained her removal. For the reasons discussed below, we GRANT the
appellant’s petition for review, VACATE the initial decision, and REMAND the
case to the Board’s Washington Regional Office for further adjudication in
accordance with this Remand Order.
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
BACKGROUND
¶2 On December 8, 2015, the agency proposed the appellant’s removal from
her position as an EAS-17 Customer Service Supervisor for unacceptable conduct
in a notice of proposed removal signed by both an issuing and a concurring
official. Initial Appeal File (IAF), Tab 5 at 20, 25, Tab 13, Initial Decision (ID)
at 1-2. The narrative of the charge explained that on September 14, 2015, the
appellant manipulated the clock rings (time cards) for 10 of her subordinates to
incorrectly reflect that they had returned to the office at or before 1800 hours,
despite being instructed by her supervisor earlier that day not to make such
changes. IAF, Tab 5 at 20-21. The deciding official sustained the charge, found
the penalty of removal to be appropriate, and notified the appellant that she would
be removed from her position effective March 21, 2016. ID at 1-2, IAF, Tab 5
at 15-17.
¶3 The appellant then filed this removal appeal. IAF, Tabs 1, 11. She alleged
that she, an “African American woman,” was treated different ly than three
“Caucasian men” who also had made “unjustified and/or undocumented changes”
to clock rings. IAF, Tab 11 at 4. She identified the issuing official and two other
supervisors as her alleged comparators and provided time and attendance reports
to support her contentions. Id. at 4, 8-12. She also alleged that she had filed one
equal employment opportunity (EEO) complaint against the issuing official and
two EEO complaints against the concurring official, and that their investigation
into her misconduct was biased and improper as a result. Id. at 4. She further
asserted that she was harassed and unfairly subjected to “aggressive discipline,”
and that her duties were changed in reprisal for filing EEO complaints. Id.
Finally, she alleged that the agency violated her due process rights and
section 651.65 of the agency’s Employee and Labor Relations Manual (ELM) by
failing to consider her written reply and denying her an interview with the
deciding official before issuing the removal decision. Id. at 4-5. She contended
that she sent by “certified” mail her “appeal[] [of] the Notice of Proposed
3
Removal directly to the deciding official,” and she submitted a tracking receipt,
which she argued showed that her reply had arrived at the agency, but had not yet
been picked up. Id. at 4, 13.
¶4 The administrative judge initially scheduled the appellant’s requested
hearing but later cancelled it after the appellant failed to file her prehearing
submissions or appear for the prehearing conference in accordance with the
hearing order. ID at 2; IAF, Tab 1 at 2, Tab 6, Tab 8 at 1. The administrative
judge stated that she would reschedule the hearing if the appellant showed good
cause for her noncompliance. IAF, Tab 8 at 1.
¶5 In her response to the show cause order, the appellant offered the following
explanations: (1) she was focused on responding to the agency’s discovery
requests and preparing for the hearing and had inadvertently overlooked the
prehearing conference; (2) she “experienced technical difficulties” that delayed
her ability to download and view the filings from the Board’s e -Appeal Online
Repository; and (3) she was “overwhelmed . . . physically, mentally and
emotionally . . . from this entire process.” IAF, Tab 9 at 4. She also stated that
her representative had not received electronic notifications of the filings, even
though she had designated him as an e-filer. Id. She claimed that an individual
she spoke with at the Washington Regional Office told her that the Board had
changed her representative’s filing status to “US Postal Mail.” Id.
¶6 The administrative judge found that the appellant had received the hearing
order, even if her representative had not, and that the appellant’s claimed medical
and physical conditions were insufficient reasons for her noncompliance. IAF,
Tab 10 at 1. Thus, the administrative judge declined to reschedule the hearing,
decided to issue the initial decision based on the written record, and afforded the
parties time to file additional argument and evidence before closing the record.
Id. at 1-2. However, the administrative judge’s close-of-record order did not
summarize the issues on appeal or explain the burdens and elements of proof
required to prove the relevant claims before issuing the initial decision.
4
¶7 Following the close of record, the administrative judge issued an initial
decision affirming the appellant’s removal and denying her EEO affirmative
defenses for failure to present a prima facie case. ID. She did not address the
appellant’s due process or harmful error claims.
¶8 The appellant has filed a petition for review, challenging the administrative
judge’s findings on her EEO affirmative defenses and reasserting her due process
and harmful error claims. Petition for Review (PFR) File, Tab 1 at 4-7, Tab 4
at 4-5. The agency has filed a response, to which the appellant has replied. PFR
File, Tabs 3-4. The agency also filed a motion for leave to respond to the new
arguments and evidence contained in the appellant’s reply. PFR File, Tab 5. The
appellant has opposed the motion. PFR File, Tab 7.
DISCUSSION OF ARGUMENTS ON REVIEW
The administrative judge abused her discretion by cancelling the hearing.
¶9 An administrative judge has the authority to sanction a party when
necessary to serve the ends of justice, which includes the right to sanction a party
for failure to comply with an order. Heckman v. Department of the Interior,
106 M.S.P.R. 210, ¶ 8 (2007); 5 C.F.R. § 1201.43(a). An appellant’s right to a
hearing, however, should not be denied as a sanction absent extraordinary
circumstances. Heckman, 106 M.S.P.R. 210, ¶ 8; see 5 U.S.C. § 7701(a)(1)
(providing an appellant a right to a hearing in matters “appealable to the Board
under any law, rule, or regulation”); 5 C.F.R. § 1201.43(e) (explaining that a
hearing may be cancelled for contumacious conduct or conduct prejudicial to the
administration of justice). An appellant’s single failure to comply with an
administrative judge’s order is not sufficient to show a lack of due diligence,
negligence, or bad faith in her noncompliance with the order so as to justify the
drastic sanction of cancelling the appellant’s requested hearing. Caracciolo v.
Office of Personnel Management, 82 M.S.P.R. 532, ¶¶ 6-7 (1999).
5
¶10 We disagree with the administrative judge that the appellant did not
demonstrate good cause for her failure to submit prehearing submissions and
appear at the prehearing conference. IAF, Tab 6 at 2-3, 4, Tab 10. The record
reflects that, as asserted by the appellant below, the regional office mailed all
pleadings to the appellant’s representative, despite her status as an e-filer. IAF,
Tab 1 at 3, Tab 3 at 18, Tab 6 at 5. It was not until after the order requiring
prehearing submissions and scheduling the prehearing conference was issued that
this error was corrected at the appellant’s request. IAF, Tab 9 at 4, Tab 10 at 3.
When, as here, the order to which the appellant failed to respond was not
electronically served on her representative, as elected, then all doubts about
whether the appellant was prejudiced by the regional office’s failure to follow the
Board’s regulations should be resolved in her favor. Gordon v. Department of the
Air Force, 104 M.S.P.R. 358, ¶ 5 (2006) (finding that an administrative judge
abused his discretion by dismissing an appeal for failure to comply with orders
that were not served on the appellant’s representative via his chosen method ,
which was electronic service), clarified on other grounds by Williams v. U.S.
Postal Service, 116 M.S.P.R. 377, ¶ 8 (2011); 5 C.F.R. § 1201.14(j)(1) (providing
that when the Board issues documents, email messages will be sent to e -filers that
notify them of the issuance).
¶11 Further, this is not a case where the appellant displayed a pattern of
noncompliance prejudicial to the administration of justice. Cf. Heckman,
106 M.S.P.R. 210, ¶¶ 6, 9 (finding that the administrative judge did not abuse her
discretion by cancelling the appellant’s requested hearing in light of his repeated
failure to respond to multiple orders over a 2-month period). Although the
appellant was notified that failure to appear at the hearing may result in its
cancellation, she was not apprised that she could be sanctioned for failing to file
her prehearing submission or appearing for the prehearing conference. IAF,
Tab 6 at 2. Moreover, she indicated that she was participating in discovery at the
time and actively pursuing her appeal. IAF, Tab 9 at 4. She responded promptly
6
to the administrative judge’s hearing cancellation and show cause order, was
apologetic in explaining her noncompliance, and complied with all prior and
subsequent orders. PFR File, Tab 1; IAF, Tab 9 at 4, Tab 11. Therefore, we find
that the record does not show that she exhibited a lack of due diligence sufficient
to justify the severe sanction imposed here. See Ellshoff v. Department of the
Interior, 78 M.S.P.R. 615, ¶¶ 3-6 (1998) (finding that the appellant’s failure to
timely comply with a single Board order did not constitute a lack of due
diligence, negligence, or bad faith justifying an order that she could not present
witnesses or additional evidence at the hearing, despite the fact that her excuses
were that she needed to concentrate on her job, was unsure whether to retain her
attorney, and was embarrassed that she had forgotten the name of her therapist ).
Nor has the agency claimed that it was prejudiced by the appellant’s conduct.
¶12 Accordingly, we find that the appellant’s actions in this appeal do not rise
to the level of “extraordinary circumstances” sufficient to cancel the requested
hearing, and that the administrative judge abused her discretion by doing so.
On remand, the administrative judge should fully adjudicate the appellant’s
affirmative defenses.
¶13 The administrative judge did not inform the appellant of her burden on her
affirmative defenses of race and sex discrimination or EEO reprisal in any of her
orders or the initial decision. ID; IAF, Tabs 3, 6, 8, 10. While the agency’s
closing argument included discussion of the appellant’s burden, it relied on the
incorrect standard, the burden-shifting analytical framework set forth in
McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-04 (1973). IAF, Tab 12
at 4-10. The McDonnell Douglas framework has no application to Board
proceedings. Savage v. Department of the Army, 122 M.S.P.R. 612, ¶ 46 (2015),
clarified by Gardner v. Department of Veterans Affairs, 123 M.S.P.R. 647, ¶ 30
(2016). Rather, the Board relies on the standards set forth in Savage, and its
7
progeny. 2 See id., ¶ 51 (explaining the burdens of proof applied by the Board to
title VII claims); Gardner, 123 M.S.P.R. 647, ¶ 30 (clarifying how to analyze
relevant evidence in connection with such cl aims). Further, in denying the
appellant’s affirmative defenses, the administrative judge did not consider the
appellant’s arguments and evidence. ID at 4; IAF, Tab 11 at 5, 8-12.
¶14 Additionally, the administrative judge did not address the appellant’s claims
that the agency violated her due process rights and ELM § 651.65 by failing to
consider her written reply and denying her an interview with the deciding official
2
The Age Discrimination in Employment Act states that “personnel actions . . . shall be
made free from any discrimination based on age.” 29 U.S.C. § 633a(a). Similarly, title
VII requires that such actions “shall be made free from any discrimination based on
race, color, religion, sex, or national origin.” 42 U.S.C. § 2000e-16(a). In Savage,
122 M.S.P.R. 612, ¶¶ 48-50, the Board adopted the analytical framework of Mt. Healthy
City School District Board of Education v. Doyle, 429 U.S. 274 (1977), for analyzing
claims arising under title VII. The Board in Savage held that it first inquires whether
the appellant has shown by preponderant evidence that the prohibited consideration was
a motivating factor in the contested personnel action. Savage, 122 M.S.P.R. 612, ¶ 51.
Such a showing is sufficient to establish that the agency violated title VII. Id. If the
appellant meets her burden, the Board then inquires whether the agency has shown by
preponderant evidence that it still would have taken the contested action in the absence
of the discriminatory or retaliatory motive. Id. If the agency makes that showing, its
title VII violation will not require reversal of the action. Id.
After Savage was decided, the Supreme Court interpreted the language in 29 U.S.C.
§ 633a(a) in Babb v. Wilkie, 589 U.S. ___, 140 S. Ct. 1168 (2020). The Court held that
to obtain “injunctive or other forward-looking relief,” the plaintiff must show that age
discrimination “play[ed] any part in the way a decision [was] made.” Babb, 140 S. Ct.
at 1173-74, 1177-78. However, a plaintiff “must show that age discrimination was a
but-for cause of the employment outcome” to obtain “reinstatement, backpay, . . . or
other forms of relief related to the end result of an employment decision.” Id.
at 1177-78. Thus, under both Savage and Babb, some relief is available if the
prohibited consideration was a motivating factor in the challenged personnel a ction, but
full relief is available only if the prohibited consideration was a but -for cause of the
action. Although Savage and Babb appear to diverge on the question of which party has
the burden to prove or disprove but-for causation, we need not decide at this time
whether the analytical framework applied in Savage must be revised in light of Babb.
Because the appellant has not yet proven her initial burden that a prohibited factor
played any part in the agency’s decision, we do not reach the question of whether race
and sex discrimination or EEO reprisal was a but-for cause of that decision.
8
before issuing the final removal decision. PFR File, Tab 1 at 7; ID; IAF, Tab 11
at 4-5; see 5 U.S.C. §§ 7513(b)(2) (discussing an employee’s right to respond to a
proposed adverse action), 7701(c)(2)(A) (providing that an agency’s action will
be reversed if it resulted from harmful procedural error); Cleveland Board of
Education v. Loudermill, 470 U.S. 532, 546 (1985) (observing that an agency’s
failure to provide a tenured public employee with an opportunity to present a
response, either in person or in writing, to an appealable agency action that
deprives him of his property right in his employment constitutes an abridgement
of his constitutional right to minimum due process of law, i.e., prior notice and an
opportunity to respond). The appellant’s assertions made below in her closing
argument clearly indicated her intent to raise due process violation and harmful
error claims.
¶15 Therefore, the appellant was entitled to be apprised of the applicable
burdens of proving her affirmative defenses and harmful error and due process
claims, as well as the kind of evidence required to meet those burdens, and to
have those defenses addressed in a close-of-record order or prehearing conference
summary and order. Hulett v. Department of the Navy, 120 M.S.P.R. 54, ¶ 10
(2013). Additionally, as discussed above, she was improperly denied her
requested hearing. For these reasons, we remand this appeal for further
adjudication, including notice to the appellant of her burden to prove her
affirmative defenses, an opportunity for both parties to submit additional
evidence, and the appellant’s requested hearing. See id., ¶¶ 10-11 (remanding an
appeal for the administrative judge to provide notice of the appellant’s burdens
and elements of proof as to his affirmative defenses and adjudicate those
defenses). Because the parties will have an opportunity to further develop the
record on remand, we find it unnecessary to rule on the agency’s motion for leave
to respond to the appellant’s reply to the response to the petition for review. PFR
File, Tab 5 at 4-5.
9
ORDER
¶16 For the reasons discussed above, we vacate the initial decision and remand
this case to the Washington Regional 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.