Amatullah Muhammad v. Department of Homeland Security

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

AMATULLAH R. MUHAMMAD, DOCKET NUMBER

Appellant, AT-0752-16-0777-I-1

v.

DEPARTMENT OF HOMELAND DATE: May 31, 2023

SECURITY,

Agency.

THIS FINAL ORDER IS NONPRECEDENTIAL 1

Shaun Yancey, Esquire, Atlanta, Georgia, for the appellant.

Kenneth William, Atlanta, Georgia, for the agency.

BEFORE

Cathy A. Harris, Vice Chairman

Raymond A. Limon, Member

FINAL ORDER

¶1 The appellant has filed a petition for review of the initial decision, which

sustained her removal from the agency for improper conduct and lack of candor

and found that she did not meet her burden of proving the affirmative defense of

race discrimination. Generally, we grant petitions such as this one only in 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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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).

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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 t o 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

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 and AFFIRM the initial decision,

which is now the Board’s final decision. 5 C.F.R. § 1201.113(b).

¶2 The appellant worked for the agency as a GS-11 Immigration Services

Officer. Initial Appeal File (IAF), Tab 1 at 1, Tab 6 at 33. In this position, the

appellant was responsible for granting or denying application s and petitions for

immigration benefits, some decisions which determined whether immigrants were

permitted to legally remain in the country. IAF, Tab 9 at 16.

¶3 Effective July 29, 2016, the agency removed the appellant for three

specifications of improper conduct stemming from an April 17, 2014 lu nchtime

incident at a Quiznos and three specifications of lack of candor relating to the

appellant’s sworn interview with the agency’s Office of Security and Integrity

(OSI) regarding the April 17, 2014 incident. IAF, Tab 6 at 33, 35-39.

¶4 The appellant appealed her removal to the Board and withdrew her hearing

request. IAF, Tab 1, Tab 28 at 4. After thoroughly considering the evidence,

including statements and affidavits from the appellant, the two co -owners of the

Quiznos, the police officer who responded to the incident, a state victim’s

advocate, and a local assistant state’s attorney, along with a recording from the

restaurant’s security camera, the administrative judge sustained all three improper

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conduct specifications and two specifications of the lack of candor charge. IAF,

Tab 40, Initial Decision (ID) at 1-10. The administrative judge found a nexus

between the sustained charges and the efficiency of the service, that the removal

penalty was reasonable, and that the appellant failed to prove her affirmative

defense of race discrimination. 2 ID at 10-15.

¶5 On review, the appellant argues that the evidence was not justly and

impartially considered, that the Quiznos co-owners fabricated their version of

events, and that the administrative judge failed to consider that some of the

statements against her were later recanted. Petition for Review (PFR) File, Tab 1

at 2-3. We agree with the administrative judge’s well -reasoned findings and

discern no reason to disturb them. See Clay v. Department of the Army,

123 M.S.P.R. 245, ¶ 6 (2016) (finding no reason to disturb the administrative

judge’s findings in the initial decision when she considered the evidence, drew

appropriate inferences, and made reasoned conclusions); Broughton v.

Department of Health and Human Services, 33 M.S.P.R. 357, 359 (1987) (same).

¶6 The appellant also argues that the administrative judge relied on hearsay

evidence. PFR File, Tab 1 at 2-3, Tab 6 at 2. It is well settled that hearsay

evidence is admissible in Board proceedings and can be sufficient to sustain a

charge. Vaughn v. U.S. Postal Service, 109 M.S.P.R. 469, ¶ 9 (2008), aff’d,

2

Although the administrative judge categorized the evidence as direct and indirect in

analyzing the appellant’s race discrimination affirmative defense, we find that she did

not disregard any evidence on that basis and that she considered the evidence as a

whole. ID at 12-15; see Gardner v. Department of Veterans Affairs, 123 M.S.P.R. 647,

¶¶ 30-31 (2016) (clarifying how the Board analyzes evidence offered in support of a

Title VII claim), clarified by Pridgen v. Office of Management and Budget , 2022 MSPB

31, ¶¶ 23-24. Therefore, any error in the analysis was harmless. See Panter v.

Department of the Air Force, 22 M.S.P.R. 281, 282 (1984) (explaining that an

adjudicatory error that is not prejudicial to a party’s substantive rights provides no basis

for reversal of an initial decision). Because the appellant has offered no basis for

disturbing the administrative judge’s finding that the appellant did not prove her race

was a motivating factor in the agency’s removal decision, ID at 14 -15, we do not reach

the question of whether discrimination was a “but-for” cause of the removal action. See

Pridgen, 2022 MSPB 31, ¶¶ 22, 48.

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315 F. App’x 305 (Fed. Cir. 2009). In the initial decision, the administrative

judge properly considered the relevant factors for assessing the probative value of

hearsay evidence. ID at 6-7; see Borninkhof v. Department of Justice, 5 M.S.P.R.

77, 87 (1981). The appellant also argues that the Douglas factors were not

properly weighed, but the administrative judge found that the agency’s “deciding

official properly and thoroughly considered all of the relevant Douglas factors.” 3

ID at 11-12. Nothing on review causes us to stray from this conclusion.

¶7 The appellant further asserts on review that the agency improperly delayed

a year and a half before initiating its investigation into the Quiznos incident, but

the evidence of record does not support such a claim. PFR File, Tab 1 at 4; IAF,

Tab 10 at 8-10. Many of the sworn written and verbal statements that the agency

relied on to support its removal action against the appellant were made in April

through July 2014. IAF, Tab 7 at 41; Tab 8 at 4; Tab 10 at 18 -26, 34, 46, 52, 54.

The agency conducted an investigatory interview of the appellant in June 2015,

after the State of Vermont dismissed the criminal charges. IAF, Ta b 10 at 59,

Tab 11 at 10. The appellant’s argument does not diminish the strength of the

agency’s evidence proving that she engaged in the charged misconduct. Although

we have recognized that a charge may be dismissed if an agency’s delay in

proposing the adverse action is unreasonable and prejudicial to the appellant,

such circumstances do not exist in this appeal. Messersmith v. General Services

Administration, 9 M.S.P.R. 150, 155-56 (1981) (holding that the delay between

the misconduct and the agency issuing the proposal was not a reason to overturn

the action, as the delay was caused by the seriousness of the charges, the

corresponding investigation, involvement of the U.S. Attorney, and the appellant

did not identify any prejudicial harm from the delay).

3

In Douglas v. Veterans Administration, 5 M.S.P.R. 280, 305-06 (1981), the Board

articulated a nonexhaustive list of factors relevant to the penalty determi nation in a

disciplinary action.

5

¶8 In her petition for review, the appellant claims that the local police

department wrongfully arrested her for the Quiznos incident and did not

“Mirandize” her. PFR File, Tab 1 at 3-4. The appellant then argues that the

criminal charges were dropped and her record expunged, along with what appears

to be a claim that she was subjected to double jeopardy through her removal.

PFR File, Tab 1 at 3-5, Tab 6 at 1. The agency did not use any of the statements

that the appellant made to the local police as a basis to remove her. IAF, Tab 9

at 14-16. The agency was aware that the State of Vermont dismissed the criminal

charges against the appellant before issuing the proposed removal. IAF, Tab 10

at 59. As is the case here, when an appellant’s removal from an agency is based

on her conduct, rather than her arrest and subsequent charges, the administrative

action is not impacted by court action. Zimmerman v. Department of Health and

Human Services, 19 M.S.P.R. 454, 456 (1984). Moreover, the constitutional

prohibition against double jeopardy applies to criminal proceedings and is not

applicable here. Lemal v. U.S. Postal Service, 79 M.S.P.R. 241, 243 (1998).

¶9 On review, the appellant claims that she was questioned without

representation in the June 5, 2015 investigatory interview conducted by OSI.

PFR File, Tab 1 at 5. The evidence in the record establishes that days before the

interview took place OSI sent the appellant written notice of her right to have

representation present. IAF, Tab 9 at 5-6, 8. The appellant then signed this

written notice on the day of the interview. IAF, Tab 11 at 6. As such, we see no

merit to the appellant’s argument in this regard.

¶10 The appellant’s allegations on review that her civil rights were violated

when she was arrested and incarcerated are not relevant to the issues before the

Board. PFR File, Tab 1 at 5. As outlined above, the agency did not take action

against the appellant based on her arrest and incarceration. IAF, Tab 9 at 14-16.

¶11 The appellant mentions on review that this “situation stems from my health

conditions.” PFR File, Tab 1 at 5. However, she does not expound on how this is

relevant to any of the conclusions in the initial decision. Lastly, many of the

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appellant’s other contentions on review are mere re-argument of the issues and

findings of fact as determined by the administrative judge. PFR File, Tab 1

at 3-4, Tab 6 at 1-3. This is insufficient to warrant the granting of her petition

for review. See Hsieh v. Defense Nuclear Agency, 51 M.S.P.R. 521, 524-25

(1991) (holding that mere re-argument of the same issues heard and decided by

the administrative judge, with nothing more, does not constitute a basis to grant a

petition for review), aff’d, 979 F.2d 217 (Fed. Cir. 1992) (Table).

¶12 Accordingly, we affirm the initial decision.

NOTICE OF APPEAL RIGHTS 4

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 b elow 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.

4

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.

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(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 partic ular

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

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

Protection Board, 582 U.S. 420 (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 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:

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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

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. 5 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

5

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.

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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.

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.