The opinion
UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
JEANNIE M. RAMIREZ, DOCKET NUMBER
Appellant, SF-0752-18-0324-I-1
SF-0752-19-0407-I-1
v.
UNITED STATES POSTAL SERVICE,
Agency. DATE: May 5, 2023
THIS ORDER IS NONPRECEDENTIAL 1
Linda A. Albers, Esquire, Laguna Hills, California, for the appellant.
Catherine V. Meek, Esquire, Long Beach, California, for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
REMAND ORDER
¶1 The appellant has filed petitions for review of the initial decisions in these
two appeals, which sustained her demotion and removal. For the reasons
discussed below, we JOIN the two appeals, 2 GRANT the appellant’s petitions for
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
Joinder of two or more appeals filed by the same appellant is appropriate whe n doing
so would expedite case processing and will not adversely affect the parties ’ interests.
2
review, VACATE the initial decisions, and REMAND the appeals to the regional
office for further adjudication in accordance with this Remand Order.
BACKGROUND
¶2 The appellant was formerly employed by the agency as Postmaster of the
Sunset Beach Post Office in Sunset Beach, California. Ramirez v. U.S. Postal
Service, MSPB Docket No. SF-0752-18-0324-I-1, Initial Appeal File (0324 IAF),
Tab 5 at 37. By letter dated June 2, 2016, the agency proposed the appellant’s
removal based on two charges of negligent performance of duties and
unacceptable conduct. Id. at 43-53. The deciding official sustained both charges
but mitigated the penalty to a one-grade demotion and reassigned the appellant to
a position as a Supervisor, Customer Relations at the South Gate Post Offic e,
effective June 10, 2017. Id. at 37-41. The appellant filed a formal complaint of
discrimination alleging that her demotion was motivated by discrimination based
on her race, color, age, sex, and retaliation for her prior equal employment
opportunity (EEO) activity. Id. at 18. After receiving a final agency decision
finding that she was not subjected to discrimination, the appellant filed a Board
appeal challenging her demotion and raised affirmative defenses of discrimination
and reprisal based on her EEO and whistleblowing activities. Id. at 18-34;
0324 IAF, Tab 1.
¶3 Meanwhile, the appellant initially reported to work at the South Gate Post
Office in late June 2017 but thereafter began taking a mixture of annual leave,
sick leave, leave without pay (LWOP), and LWOP in lieu of sick leave (SWOP).
Ramirez v. U.S. Postal Service, MSPB Docket No. SF-0752-19-0407-I-1, Initial
Appeal File (0407 IAF), Tab 19, Hearing Transcript at 41 (testimony of the
appellant); 0407 IAF, Tab 6 at 27-30. By letter dated November 27, 2018, the
agency ordered the appellant to return to work or provide medical documentation
See Doe v. Pension Benefit Guaranty Corporation, 117 M.S.P.R. 579, ¶ 23 (2012);
5 C.F.R. § 1201.36(a), (b). We find that these criteria are satisfied here.
3
showing that she was incapacitated from work. 0407 IAF, Tab 6 at 22-23.
The appellant did not return to work and instead provided medical documentation
from her doctor indicating that she had been treating the appellant for work stress
since December 2017 and that the appellant required the following work
accommodations: “she is able to work in a position similar to her prior job where
she oversaw clerks, but not carriers, and should not be required to perform
duties for which she has no prior training.” Id. at 21. By letter dated
December 11, 2018, the agency issued the appellant a notice of proposed
separation-disability in which it notified her that it was proposing to
administratively separate her in accordance with the Employee and Labor
Relations Manual (ELM) section 365.34 because she had been absent from duty
in excess of 365 days. Id. at 18-20. The appellant did not respond to the
deciding official orally or in writing, and the deciding official issued a
decision dated April 3, 2019, separating the appellant, effective April 5, 2019.
Id. at 14-16. The appellant filed a Board appeal, challenging her removal and
raising affirmative defenses of disability discrimination based on failure to
accommodate, reprisal for her prior EEO activity, whistleblower reprisal,
due process violations, and harmful procedural error. 0407 IAF, Tab 1 at 6, 9-18,
Tab 13 at 4.
¶4 The administrative judge consolidated the appellant’s demotion and removal
appeals for purposes of holding a hearing. 0324 IAF, Tab 18 at 2; 0407 IAF,
Tab 8 at 2. In a July 3, 2019 Order the administrative judge notified the parties
that prehearing submissions would be due by August 22, 2019, a prehearing
conference would be held on August 27, 2019, and the hearing would be held on
September 10-11, 2019. 0324 IAF, Tab 19; 0407 IAF, Tab 10. She further
notified the parties that because more than 45 days would pass with no activity on
the case, she intended to suspend case processing sua sponte on a date after July
10, 2019, absent an objection from the parties. 0324 IAF, Tab 19 at 2; 0407 IAF,
Tab 10 at 3. Thereafter, by order dated July 19, 2019, the administrative judge
4
suspended case processing for 30 days, beginning on July 19, 2019. 0324 IAF,
Tab 20; 0407 IAF, Tab 11. The order notified the parties that case processing
would resume on August 18, 2019, or if the Board was closed for business on that
date, the parties’ obligations would resume on the next business day. 0324 IAF,
Tab 20; 0407 IAF, Tab 11.
¶5 After August 18, 2019, the administrative judge did not issue any orders
regarding the resumption of case processing. On August 27, 2019, shortly before
the scheduled prehearing conference, the parties filed a joint motion seeking to
reschedule the deadline for prehearing submissions, the prehearing conference,
and the hearing to allow them to complete discovery. 0407 IAF, Tab 12.
The agency’s attorney also emailed the administrative judge indicating that she
could not participate in the prehearing conference and that the parties had filed a
motion for a continuance. 0324 IAF, Tab 21 at 2; 0407 IAF, Tab 13 at 2. Neither
party appeared for the scheduled prehearing conference on August 27, 2019.
In an August 28, 2019 Order and Summary of Prehearing Conference,
the administrative judge denied the parties’ joint motion to continue and
sanctioned them both for their failure to make appropriate prehearing submissions
or participate in the prehearing conference. 0324 IAF, Tab 21; 0407 IAF, Tab 13.
The sanctions imposed were that the administrative judge conducted the
prehearing conference as if it had occurred as scheduled and stated that, although
no witnesses were requested, she would approve the appellant and the deciding
officials in the interests of justice. 0324 IAF, Tab 21 at 3, 5. The administrative
judge also noted that no prehearing submissions or exhibits had been filed and
apparently limited the parties’ exhibits to those that were already a part of the
record. Id. at 5.
¶6 After holding a hearing, the administrative judge issued separate initial
decisions sustaining the appellant’s demotion and removal and finding that the
appellant failed to prove her affirmative defenses of discrimination, EEO reprisal,
whistleblower reprisal, harmful procedural error, or due process violations .
5
0324 IAF, Tab 30, Initial Decision (0324 ID); 0407 IAF, Tab 21, Initial Decision
(0407 ID).
¶7 The appellant has filed petitions for review in which she challenges the
merits of the administrative judge’s findings as well as asserts that the
administrative judge’s sanctions order constituted an abuse of discretion.
0324 Petition for Review (0324 PFR) File, Tab 1; 0407 Petition for Review (0407
PFR) File, Tab 1. 3 The agency has not responded to the appellant’s petitions.
DISCUSSION OF ARGUMENTS ON REVIEW
The administrative judge’s sanction order constituted an abuse of discretion.
¶8 On review, the appellant asserts that the administrative judge abused her
discretion in imposing sanctions because both parties were confused regarding the
deadlines while the case was suspended. 0324 PFR File, Tab 1 at 9-12; 0407 PFR
File, Tab 1 at 23-25. According to the appellant, she interpreted the
administrative judge’s case suspension order as having the effect of postponing
discovery and trial preparation based on the language in the order that the parties’
obligations would resume on August 18, 2019. 0324 PFR File, Tab 1 at 11; 0407
PFR File, Tab 1 at 24-25. Therefore, the parties did not complete discovery.
0324 PFR File, Tab 1 at 11; 0407 PFR File, Tab 1 at 25. Additionally, the
appellant asserts that she did not believe the prehearing conference call would
take place based on the case suspension and the agency counsel’s email to the
administrative judge indicating her unavailability to participate. 0324 PFR File,
Tab 1 at 11-12; 0407 PFR File, Tab 1 at 25.
¶9 An administrative judge has the authority to sanction a party when
necessary to serve the ends of justice. 5 C.F.R. § 1201.43. In particular,
an administrative judge may sanction a party for failure to comply with an order.
3
With her petitions, the appellant submitted various documents. 0324 PFR File, Tab 1
at 29-44; 0407 PFR File, Tab 1 at 36-58. In light of our decision to remand the appeals
for further adjudication, we have not considered such documents on review. On
remand, the appellant may submit such documents as part of her prehearing submissions
pursuant to the administrative judge’s orders.
6
5 C.F.R. § 1201.43(a). However, sanctions should be imposed only when a party
has failed to exercise due diligence in complying with an order or h as exhibited
negligence or bad faith in its efforts to so comply. Ellshoff v. Department of the
Interior, 78 M.S.P.R. 615, ¶ 4 (1998). Absent an abuse of discretion, the Board
will not reverse an administrative judge’s determination regarding sanctions. See
Leseman v. Department of the Army, 122 M.S.P.R. 139, ¶ 6 (2015). Under all of
the circumstances of this appeal, we agree with the appellant that the sanctions
imposed in the form of limiting the witnesses and exhibits at the hearing
constituted an abuse of discretion.
¶10 First, we find that the administrative judge should have issued a show cause
order to afford the parties an opportunity to respond prior to imposing sanct ions.
See 5 C.F.R. § 1201.43 (stating that before imposing a sanction, the judge shall
provide appropriate prior warning, allow a response to the actual or proposed
sanction when feasible, and document the reasons for any resulting sanction in
the record). Issuance of a show cause order was particularly appropriate here
given that both parties failed to file prehearing submissions or appear for the
prehearing conference, but filed a joint motion to continue through which they
indicated they had not completed discovery and expressed clear intent to file
prehearing submissions and participate in a prehearing conference and hearing on
later dates.
¶11 Second, given the language in the July 3 and July 19, 2019 orders,
the parties could reasonably have been confused regarding their obligations
during the case suspension period. Although the July 3, 2019 Order set forth a
prehearing and hearing schedule, it also indicated that the administrat ive judge
intended to sua sponte suspend case processing and that “no activity” would
happen for 45 days. 0324 IAF, Tab 19; 0407 IAF, Tab 10. The July 19, 2019
case suspension order did not explicitly state that the prior deadlines were
unaffected and instead confusingly stated that the parties’ obligations would
“resume” on August 18, 2019. 0324 IAF, Tab 20; 0407 IAF, Tab 11. Moreover,
7
neither order addressed whether the parties were to continue to engage in
discovery during the suspension period, and under the circumstances, the parties’
belief that discovery was stayed during the suspension period was not
unreasonable. 4
¶12 The parties could have made a timely attempt to confirm their
understanding of the effect of the July 19, 2019 suspension order, instead of
ignoring the deadline for making prehearing submissions and waiting until a few
hours before the prehearing conference to file a motion for a continuance.
Nonetheless, as noted above, we find compelling the appellant’s assertions
regarding the parties’ confusion about the existing deadlines and obligations
during and immediately after the suspension period. 0324 PFR File, Tab 1 at 11,
24-25. As a result, and considering the parties’ belief that the case suspension
served to delay completion of discovery, we conclude that the parties’ failure to
comply with prehearing deadlines did not evidence a lack of due diligence or rise
to the level of negligence or bad faith .
¶13 Finally, we acknowledge that the appellant’s failure to object to the
administrative judge’s sanction ruling by the deadline provided in the Order and
Summary of Telephonic Prehearing Conference would normally result in waiver
of her right to contest the ruling on petition for review. 0407 IAF, Tab 13 at 7;
see Tarpley v. U.S. Postal Service, 37 M.S.P.R. 579, 581 (1988). However,
4
We emphasize that case suspension orders should clearly explain the effect of the case
suspension on existing deadlines. For example, the order could state that all deadlines
previously set are unaffected by the case suspension or that the deadlines will be reset
upon the end of the suspension period. If discovery is still pending, any case
suspension order should advise the parties whether they should or should not continue
to engage in discovery during the suspension period and the due date for the filing of
any motion to compel. For example, the administrative judge could advise the parties
that the deadline to file motions to compel will be stayed until the end of the suspension
period and any such motions should be filed within a specific number of days after case
processing resumes. Alternatively, the case suspension order could state that the
deadline to file motions to compel is not tolled during the period of suspension, and
such motions must be filed within the time allowed in Board regulations.
8
considering the administrative judge’s failure to issue a show cause order
providing the appellant an opportunity to respond to the proposed sanctions, the
confusion caused by the administrative judge’s July 3 and July 19, 2019 orders,
and the fact that the appellant did state her objection to the sanctions order in her
closing brief, we find that it is appropriate to consider the issue on review. See
5 C.F.R. § 1201.115(e) (providing that the Board reserves the authority to
consider any issue in an appeal before it).
¶14 Under the totality of these circumstances, the administrative judge’s action
amounted to an abuse of discretion, and we remand these appeals to the regional
office. See Hart v. Department of Agriculture, 81 M.S.P.R. 329, ¶ 7 (1999)
(considering all the facts in determining that the appellant’s failure to comply
with the administrative judge’s order was inadvertent). On remand, the assigned
administrative judge shall afford the parties an opportunity to complete discovery
and file prehearing submissions and shall conduct a prehearing conference.
The administrative judge shall also hold a supplemental hearing and issue new
initial decisions. 5 In doing so, the administrative judge will make new findings
regarding the appellant’s affirmative defenses, taking into account the Board’s
recent precedent in Pridgen v. Office of Management and Budget, 2022 MSPB 31,
which was issued after the initial decisions in these matters.
5
Although we join the appeals on petition for review, on remand the administrative
judge may decide whether they should remain joined. See 5 C.F.R. § 1201.36.
9
ORDER
¶15 For the reasons discussed above, we remand these cases to the 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.