The opinion
UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
KAREN E. MILES, DOCKET NUMBER
Appellant, SF-0752-21-0232-I-1
v.
DEPARTMENT OF DEFENSE, DATE: August 30, 2023
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Karen E. Miles, APO, AP, pro se.
Douglas Frison, APO, AP, 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 based on three charges of misconduct . For the reasons
discussed below, we GRANT the appellant’s petition for review, VACATE the
initial decision, and REVERSE the appellant’s removal.
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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 The appellant was employed by the Department of Defense Education
Activity (DODEA or agency) as a Teacher at Osan Middle High School in Osan,
Korea, where she taught sixth and eighth grade children. Initial Appeal File
(IAF), Tab 7 at 18, Hearing Recording (HR) (testimony of the appellant).
On February 26, 2020, DODEA in Korea moved from physical class room learning
to distance learning in response to the COVID -19 pandemic. HR (testimony of
the Principal). 2 As a result, staff and students began utilizing various online
educational tools, and teachers were instructed to exercise “maximum flexibility”
with students in light of the COVID-19 restrictions. Id.
¶3 On April 28, 2020, the appellant emailed the parents of I.S. , 3 one of her
sixth grade students, alerting them that I.S. had multiple assignments missing in
Math class, and had an incomplete for the quarter. 4 IAF, Tab 10 at 180-81;
HR (testimony of the appellant). On April 30, 2020, I.S.’s mother sent the
appellant an email which contained links to Google Drive files that I.S.’s mother
claimed contained the missing work. IAF, Tab 10 at 179-80; HR (testimony of
the appellant). Subsequently, on May 14, 2020, the appellant emailed I.S. and her
parents, stating:
Good afternoon [I.S.]
Thank you for immediately contacting me. Please understand that
there is usually only a ten day time frame to change a grade of (I)
2
The individual who was the Principal of the school where the appellant worked during
all times relevant to this appeal is now the agency’s Pacific South District
Superintendent. HR (testimony of the Principal). We will refer to him as the Principal
as that was his role in this case.
3
For clarity purposes, we use the same initials for the student as the administrative
judge used in the initial decision.
4
The record does not contain actual copies of the referenced emails. Instead, the record
only contains a statement from the Principal, in which he appears to have cut and pasted
the relevant emails into his statement, along with his own commentary. IAF, Tab 10
at 155-90. The agency did not explain why it failed to submit actual copies of these
emails, but the appellant has not objected to the authenticity of the recreated emails.
3
[incomplete] that was given to you in Quarter 3 to avoid
documenting the grade of “F” that you have actually earned for Math
for Quarter 3. Please complete those assignments as soon as
possible.
I am always available in all Google Meet Sessions during our class
period to provide instructional support.
IAF, Tab 10 at 149, 158. 5
¶4 Approximately 2 weeks later, I.S.’s father responded to the appellant,
copying the Principal and the Assistant Principal, requesting that I.S.’s grades be
“calculated correctly,” claiming that I.S. had submitted the missing work and that
it was “completely unacceptable and bordering on cruel” for the appellant to tell
I.S. that she had actually earned an F. Id. at 155-56. In that same email, I.S.’s
father included links to the Google Drive, claiming that it contained the missing
assignments, and identifying what he believed to be errors in the appellant’s
grading. Id. at 156-58.
¶5 The Principal asked the appellant about the accusations made by I.S.’s
father, and the appellant explained that she only graded students’ problem set
assignments, quizzes, and assessments, and she confirmed that her gradebook was
accurate. Id. at 159-60. However, after further demands by I.S.’s parents,
the Principal independently reviewed the Google Drive, determined that the
missing assignments had been submitted, and found that the appellant incorrectly
graded I.S. as earning a D or F when she had actually earned an A. 6
HR (testimony of the Principal).
¶6 Effective February 26, 2021, the agency removed the appellant based on
three charges of misconduct. IAF, Tab 10 at 18-21, 143-46. The first charge,
use of poor judgment in dealing with students and parents, was su pported by three
5
Although it appears that there was an email from I.S. to which the appellant was
responding, there is no copy of that email in the record.
6
A student’s third quarter grades were especially significant because, per the agency’s
pandemic grading policy, a student’s third quarter grade carried over to the fourth
quarter. HR (testimony of the Principal).
4
specifications. Id. at 143-44. The first specification referenced the May 14, 2020
email as discussed above. Id. at 143. The second specification referenced a chat
message the appellant sent to a student while playing an instructional video
during class, telling a student “[i]t is not the wrong video. You would be aware
of that if you actually reviewed it.” Id. The third specification referenced
an email the appellant sent to I.S. and her parents, in which she instructed the
parents to stop sending I.S.’s practice work, and told them that I.S.’s sister should
teach her. Id. at 143-44. In support of the agency’s second charge, negligent
performance of duty, the agency alleged that between April and June 2020,
the appellant failed to properly receive and grade the work of I.S., which required
others to grade I.S.’s work and correct her error. Id. at 144. Finally, in the third
charge, the agency charged the appellant with inattention to duty, alleging that
she failed to appear for a scheduled meeting with a District Instructional Systems
Specialist (ISS), and did not notify him that she would not be attending the
meeting. Id.
¶7 The appellant filed a Board appeal challenging her removal, IAF, Tab 1,
and after holding a hearing, the administrative judge issued an initial decision
affirming the removal, IAF, Tab 33, Initial Decision (ID). First, he found that the
agency proved the first and second specifications of the first charge, but it did not
prove the third specification. ID at 12, 14-15. He did, however, find that the
agency proved its second and third charges in full. ID at 21, 29. Then, he denied
the appellant’s claim of equal employment opportunity (EEO) retaliation, finding
that she failed to show by preponderant evidence that her EEO activity was a
motivating factor in her removal. ID at 34-35. Similarly, the administrative
judge denied the appellant’s claim that the agency violated her due process rights,
finding that she received notice of the charges, an opportunity to respond, and had
failed to establish that the deciding official considered ex parte communications
or otherwise acted improperly. ID at 36-37. Thus, after finding that the agency
5
established nexus and removal was within the bounds of reasonableness,
the administrative judge affirmed the appellant’s removal. ID at 37-41.
¶8 The appellant has filed a petition for review, challenging, among other
things, the administrative judge’s findings sustaining the agency’s charges, and
arguing that the agency retaliated against her because of her EEO activity 7 and
violated her due process rights by considering past discipline without notifying
her. 8 Petition for Review (PFR) File, Tab 3. The agency did not respond to the
appellant’s petition for review. 9
DISCUSSION OF ARGUMENTS ON REVIEW
¶9 Generally, in an adverse action appeal, an agency must prove its charge by a
preponderance of the evidence, establish a nexus between the action and the
efficiency of the service, and establish that the penalty it imposed is within the
tolerable bounds of reasonableness. Hall v. Department of Defense, 117 M.S.P.R.
7
Although her allegations are vague and unclear, to the extent that the appellant argues
that the agency retaliated against her by mishandling her permanent chan ge of station
orders, PFR File, Tab 3 at 32-34, the issue before the Board in this appeal is her
removal, and because the actions complained of occurred after her removal, we do not
address it further.
8
To the extent that the appellant argues that the administrative judge abused his
discretion by not allowing her “to use sworn depositions as evidence in support of her
verbal testimony,” the record does not support her argument. PFR File, Tab 3 at 10.
The only deposition the appellant references is the deposition of the Assistant Principal,
who testified at the hearing, and there is no evidence that the admin istrative judge
prevented the appellant’s representative from using the deposition for impeachment
purposes. Id. at 10-11; HR (testimony of the Assistant Principal). Accordingly, the
appellant has failed to show that the administrative judge abused his d iscretion.
9
The appellant attaches multiple pages of exhibits to her petition for review, including
copies of awards she received, email communications, student progress reports,
agendas, agency memoranda, agency policies, and recorded meetings with the Principal
regarding a previous suspension and a progress report. PFR File, Tab 3 at 16, 36-103,
Tab 4. The appellant has not provided any explanation as to why these documents were
not submitted prior to the close of record, only stating that this “dire ct evidence” was
not submitted by the agency or her representative. Id. at 11. Having reviewed the
documents, we find nothing relevant to the issues at hand, and thus, because the
evidence is neither new nor material, we do not address it further.
6
687, ¶ 6 (2012). An agency must prove all of the elements of the substantive
offense it charged against the appellant and a failure to do so will cause the Board
to not sustain the charge. King v. Nazelrod, 43 F.3d 663, 666 (Fed. Cir. 1994).
Here, we do not find that the agency proved its charges against the appellant ,
and thus, her removal cannot be sustained.
¶10 As set forth below, we first address the agency’s second charge, negligent
performance of duty, and find that the agency did not prove that the appellant
failed to properly receive and grade I.S.’s work, and thus, it did not prove its
charge. Next, because we find that there is insufficient evidence establishing that
the appellant erred in grading I.S.’s work, we also find that the agency failed to
prove that the May 14, 2020 email constituted use of poor judgment, i.e., the first
specification of the first charge. Then, because we find that the agency failed to
prove that the appellant’s comment regarding the video, i.e., the second
specification of the first charge, constituted use of poor judgment, we find that
the agency failed to prove its first charge in its entirety. After that, we find that
the agency failed to prove its third charge of inattention to duty, as we do not find
that a single missed meeting with a peer, sought and arranged solely by the
appellant, constitutes actionable misconduct. We then turn to the appellant’s
affirmative defenses, finding that the administrative judge correctly found that the
appellant failed to establish her claim of EEO retaliation or a due process
violation. Because we find that the agency failed to prove any of its charges, we
order that the appellant’s removal be reversed.
There are sufficiently sound reasons to set aside the administrative judge’s
credibility determinations and find that the agency failed to prove its second
charge, negligent performance of duty.
¶11 The administrative judge, crediting the Principal’s testimony over the
appellant’s testimony, found that the appellant failed to properly receive and
grade the work of I.S., requiring the Principal to intervene and grade I.S.’s work.
ID at 19-21. He also found that the agency proved that the appellant was required
7
to accommodate I.S.’s attempts to submit schoolwork and to properly grade I.S.’s
work, and that she failed to exercise the degree of care required under the
particular circumstances, which a person of ordinary prudence in the same
situation with equal experience would not omit. ID at 21. Accordingly,
he sustained the agency’s second charge of negligent performance of duty. Id.
¶12 An initial decision must identify all material issues of fact and law,
summarize the evidence, resolve issues of credibility, and include the
administrative judge’s conclusions of law and his legal reasoning, as well as the
authorities on which that reasoning rests. Spithaler v. Office of Personnel
Management, 1 M.S.P.R. 587, 589 (1980). To resolve credibility issues,
an administrative judge must identify the factual questions in dispute, summarize
the evidence on each disputed question, state which version he believes,
and explain in detail why he found the chosen version more credible, considering
such factors as: (1) the witness’s opportunity and capacity to observe the event
or act in question; (2) the witness’s character; (3) any prior inconsistent statement
by the witness; (4) a witness’s bias, or lack of bias; (5) the contradiction of the
witness’s version of events by other evidence or its consistency with other
evidence; (6) the inherent improbability of the witness’s version of events;
and (7) the witness’s demeanor. Hillen v. Department of the Army, 35 M.S.P.R.
453, 458 (1987). The Board must defer to an administrative judge’s findings
regarding credibility when, as here, they are based, either explicitly or implicitly,
on observing the demeanor of witnesses testifying at a hearing , and the Board
may overturn such determinations only when it has “sufficiently sound” reasons
for doing so. Haebe v. Department of Justice, 288 F.3d 1288, 1301 (Fed. Cir.
2002). Specifically, the Board has found that it does not owe deference to
an administrative judge’s credibility determinations when his findings are
incomplete, inconsistent with the weight of the evidence, and do not reflect the
record as a whole. Thomas v. Department of the Army, 2022 MSPB 35, ¶ 8.
8
¶13 After an extensive review of the record, we find that there are sufficiently
sound reasons to overturn the administrative judge’s credibility determinations.
First, the administrative judge’s findings are incomplete, because there is critical
evidence missing in the record, namely, what documents the Principal viewed
when he reviewed the Google Drive files purportedly containing I.S.’s missing
assignments, and the assignments that were incorrectly graded. Copies of these
documents are absent from the record, and while the Principal testified that there
were documents in the Google Drive files that he reviewed, he did not describe
the contents of the documents, detail how the grading was incorrect, or even
clarify which version of the Google Drive files he viewed. HR (testimony of the
Principal). This final point is especially significant because I.S.’s parents sent
the Google Drive files four separate times—on April 30, 2020, to the appellant,
on May 26, 2020, to the appellant and the Principal, and on June 8 and June 9,
2020, to the Principal—and thus, there are four sets of Google Drive links that the
Principal could have viewed. IAF, Tab 10 at 155-58, 161-63, 173-75, 180-81.
Indeed, the appellant stated in a sworn statement that the Google Drive files sent
to her on April 30, 2020, contained examples, exercises, and classwork that I.S.
had copied from class lessons that were not part of the graded assignments, but
that I.S.’s father later sent “a modified version of that drive .” 10 Id. at 192.
Despite the fact that it is the agency’s burden of proof, the agency never
introduced any evidence regarding the specific contents of the Google Drive files
reviewed by the Principal, nor did it rebut the appellant’s claim that the initial
version was later modified.
10
The appellant stated that I.S.’s father sent the modified version on May 14, 2020,
IAF, Tab 10 at 192, however, there is no record of I.S.’s father sending a Google Drive
file on May 14, 2020. He did, however, send a Google Drive file on May 26, 2020, two
weeks after the appellant sent her May 14, 2020 email. Id. at 155-58. Thus, it appears
that the appellant merely switched the dates of her own email with the date the father’s
email.
9
¶14 In order to determine that the appellant had, in fact, failed to properly
receive and grade I.S.’s work, the administrative judge needed to know the work
the appellant reviewed and graded, as well as the work the Principal reviewed and
graded. The agency failed to present any evidence on this issue, and thus, it is
impossible to determine whether the appellant did, in fact, err in her grading.
Accordingly, because there is critical evidence missing from the record, we find
that the administrative judge’s finding that the appellant failed to properly receive
and grade I.S.’s work is incomplete. ID at 20-21.
¶15 Furthermore, the administrative judge’s findings are inconsistent with the
weight of the evidence and do not reflect the record as a whole. First, the record
reflects that poor performance in the classroom was not out of character for I.S.
The appellant testified that I.S. was largely absent from the virtual classroom,
and that she, along with other teachers, had been struggling to get I.S. to log on to
classes and complete her work. HR (testimony of the appellant). The appellant’s
testimony is consistent with her contemporaneous notes documenting I.S. as
“[c]ompletely [o]ff the [g]rid (no communication nor turned in assignments),”
as well as three graded third quarter Math quizzes and/or assignments showing
that I.S. was marked absent. Id. at 89-91, 94. In fact, the record shows that I.S.
missed assignments in Math in the fourth quarter, a fact that was confirmed by
the Principal, as well as missing assignments in Language Arts, a class also
taught by the appellant. Id. at 71, 74-74, 170-71. I.S. had several missing
assignments in other classes as well, including Band and Yearbook, and her first
semester grades include an F in Yearbook, a D in Band, and a C- in Integrated
Science II. Id. at 95-97. Finally, there is no evidence that errors in grading were
a typical issue for the appellant, and indeed, the agency did not review or object
10
to any other grade, including the A the appellant gave to I.S.’s step-sister, who
was also in the sixth grade Math class. 11 HR (testimony of the appellant).
¶16 In conclusion, we find that the administrative judge’s findings are
incomplete, inconsistent with the weight of the evidence, and do not reflect the
record as a whole, and thus, we need not to defer to them, and based on our
review of the record, we overturn his credibility determinations. See Faucher v.
Department of the Air Force, 96 M.S.P.R. 203, ¶¶ 12-18 (2004) (finding that
there were sufficiently sound reasons to overturn an administrative judge’s
credibility determination when his findings were incomplete, inconsistent with
the weight of the evidence, and did not reflect the record as a whole). Further,
regardless of whether the Principal was a credible witness as to the Google Drive
files that he actually reviewed, we find that there is insufficient evidence to show
that the appellant incorrectly graded I.S., and thus, we find that the agency failed
to prove the appellant was negligent in her performance of duty. Accordingly, we
reverse the administrative judge’s finding sustaining the second charge. ID at 21.
The agency failed to prove the first specification of its first charge of use of poor
judgment in dealing with students and parents.
¶17 The agency’s first specification of its first charge, use of poor judgment in
dealing with student and parents, is centered on the appellant’s May 14, 2020
email to I.S. and her parents, stating, in part, that I.S. had missing assignments
and had actually earned an F. IAF, Tab 10 at 143. The administrative judge
sustained the specification, finding that the agency proved that the appellant told
I.S. that she had actually earned an F, when it was the appellant who erred in
grading, and thus, her communication was inappropriate. ID at 12.
11
Although the Principal asserted that he believed the appellant targeted I.S. by giving
her an F or D, the evidence does not support this claim. While the Principal testified
that all of the appellant’s Math students received As or Bs except for I.S., the grades in
the appellant’s Math class actually ranged from the low 70s to high 90s. IAF, Tab 10
at 201; HR (testimony of the Principal). Also, I.S. received an average grade in the
appellant’s Language Arts class, further undermining the Principal’s spec ulation.
Accordingly, we discern no evidence of any targeting by the appellant.
11
¶18 The appellant does not dispute that she sent the May 14, 2020 email, and
the record contains a copy of the email establishing that she made the statements.
IAF, Tab 10 at 149, 158. However, we do not find that the email evidences poor
judgment. The appellant’s email was not disrespectful or aggressive in tone—it
was merely informing a student, and her parents, t hat there was missing work, and
that she currently had an incomplete but had actually earned an F. Id. In fact,
the wording used by the appellant was consistent with the agency’s instructions to
teachers regarding the language to use when discussing grades, i.e., earning a
grade versus giving a grade. HR (testimony of the appellant, testimony of the
Principal).
¶19 Nevertheless, the agency argued that the email was inappropriate because it
was the appellant who had inaccurately graded I.S.’s work, and thus, I.S. did not
actually earn an F. IAF, Tab 10 at 143; HR (testimony of the Principal).
However, as we explained in detail above, the agency failed to establish that the
appellant incorrectly graded I.S.’s work. Accordingly, we do not find that the
appellant’s email evidenced use of poor judgment and we reverse the
administrative judge’s finding sustaining the first specification. 12 ID at 12.
The agency failed to prove the second specification of its first charge of use of
poor judgment in dealing with students and parents.
¶20 The appellant does not dispute the factual content of the second
specification, i.e., that she responded to a student, who told her she was playing
the wrong video, in a chat message by stating, “[i]t is the correct video.
12
During the hearing, the Principal testified extensively regarding other complaints
received from parents regarding the appellant’s tone. HR (testimony of the Principal).
The Board will not sustain an agency action on the basis of charges that could have
been brought, but were not. Stuhlmacher v. U.S. Postal Service, 89 M.S.P.R. 272, ¶ 14
(2001). Further, the Board adjudicates an agency’s charge as it is described in the
agency’s proposal and decision notices. Id.; Rackers v. Department of Justice,
79 M.S.P.R. 262, 276 (1998), aff’d, 194 F.3d 1336 (Fed. Cir. 1999) (Table). Thus,
because these other complaints are not included in the proposal notice, they are not
relevant to the issues at hand. IAF, Tab 10 at 143-46.
12
You would be aware of that if you actually reviewed it.” IAF, Tab 10 at 143,
151; HR (testimony of the appellant). The agency alleged that the appellant’s
comment was inappropriate behavior for a teacher because it singled out a child
in an open forum in front of her peers, and placed the child in an embarrassing
position. HR (testimony of the Principal, testimony of the deciding official).
The administrative judge agreed, sustaining the second specification, finding that
the appellant posted a “negative sounding message to the entire class” that
exhibited poor judgment. ID at 13-14.
¶21 While we acknowledge, as the appellant does, that she did not use model
language here, we do not find this single, isolated comment to be sufficiently
egregious or offensive as to constitute poor judgment. HR (testimony of the
appellant). Neither the student, nor her parents, reported or complained about the
comment, 13 and there is no statement from the student or her parents claiming that
she was embarrassed or humiliated by the fairly harmless comment. At most,
the statement is slightly harsh, but it does not rise to the level of poor judgment as
charged by the agency. IAF, Tab 10 at 143. Accordingly, because the agency
failed to prove the two specifications constituting the first charge, 14 we reverse
13
The comment was reported by the parent of another child in the class. IAF, Tab 10
at 153.
14
The administrative judge did not sustain the third specification, which alleged that
the appellant told I.S.’s parents to stop sending I.S.’s practice work and to have I.S.’s
sister, who was also in the appellant’s sixth grade Math class, teach I.S. ID at 14-15.
Specifically, the administrative judge found that the specification could not be
sustained because the agency had failed to put forth sufficien t evidence to substantiate
the allegation, because the agency never received a copy of the email in wh ich these
statements were allegedly made. Id. The agency has not challenged the administrative
judge’s finding on review, and we discern no basis to disturb his findings. Crosby v.
U.S. Postal Service, 74 M.S.P.R. 98, 106 (1997) (stating that the Board will not disturb
an administrative judge’s findings when she considered the evidence as a whole, drew
appropriate inferences, and made reasoned conclusions on issues of credibility);
Broughton v. Department of Health and Human Services, 33 M.S.P.R. 357, 359 (1987)
(same).
13
the administrative judge’s finding sustaining the charge of use of poor judgment
in dealing with student and parents. ID at 15.
The agency failed to prove its third charge of inattention to duty.
¶22 The agency charged the appellant with inattention to duty based on a single
specification, alleging that she failed to attend a scheduled meeting with the ISS.
IAF, Tab 10 at 144. The administrative judge sustained the charge, crediting the
testimony of the ISS, finding that the ISS and the appellant had a scheduled
meeting, which the appellant did not attend, nor did she notify the ISS that
she would not be attending. ID at 26-28. He also found that the appellant had a
duty to appear for scheduled meetings, during duty hours, and that her failure to
attend this meeting constituted inattention to duty. ID at 28 -29.
¶23 The facts underlying the charge are that, while off-duty, the appellant ran
into the ISS and approached him about receiving additional training regarding a
teaching program. HR (testimony of the appellant, testimony of the ISS). It was
during this encounter that the ISS believed a meeting had been scheduled,
although the appellant contests this, asserting that they did not agree to meet at a
specific date or time. HR (testimony of the appellant, testimony of the ISS).
Nevertheless, the appellant did not meet with ISS on the date liste d in the
agency’s specification. 15 HR (testimony of the appellant, testimony of the ISS);
IAF, Tab 10 at 144.
¶24 However, even assuming a meeting was scheduled, we do not find that such
conduct is actionable. An agency may take an adverse action against
an employee “only for such cause as will promote the efficiency of the service.”
5 U.S.C. § 7513(a). “Cause” under section 7513(a) generally connotes some
specific act or omission on the part of the employee that warrants discipline,
and an agency charge that does not set forth actionable conduct cannot be
sustained. Gonzalez v. Department of Homeland Security, 114 M.S.P.R. 318, ¶ 10
15
The ISS rescheduled the meeting without objection. IAF, Tab 10 at 214, 216.
14
(2010). The crux of the agency’s charge is that the appellant failed to appear for
a meeting with the ISS, a peer, that she scheduled for her own edification. There
is no evidence that her supervisors arranged for her to attend the meeting,
expected her to attend the meeting, or even that she was required to seek
additional training. There is also no evidence that the ISS was a supervisor or
manager, and thus, while missing a scheduled meeting is perhaps rude, there is no
evidence that the appellant was under any obligation to attend this meeting .
Therefore, accepting the allegations are true, while the appellant’s behavior may
be characterized as inconsiderate, we fail to see how her failure to attend one
meeting with a peer constitutes actionable misconduct. Accordingly, the agency’s
third charge cannot be sustained.
The appellant failed to prove her affirmative defense of EEO retaliation.
The appellant, both below and on review, argued that her removal was in
retaliation for her protected EEO activity, which included filing her own EEO
complaint, submitting a declaration in support of a former coworker’s EEO
complaint, and requesting reasonable accommodation. 16 IAF, Tab 26 at 5-6;
PFR File, Tab 3 at 7, 19, 25-26, 31-34. The administrative judge found that the
appellant had “offered little evidence or argument” to support her claim, and thus,
she failed to show that her EEO activity was a motivating factor in her removal.
ID at 34-35. Given that the appellant testified her removal was the result of
retaliation because there was no other explanation, we agree that the appellant has
offered nothing more than conclusory statements in support of her claim .
HR (testimony of the appellant). Accordingly, we discern no basis to disturb the
16
After the initial decision was issued, the Board issued Pridgen v. Office of
Management and Budget, 2022 MSPB 31, ¶¶ 44-47, which clarified that requests for
reasonable accommodation and opposing disability discrimination are act ivities
protected under the Americans with Disabilities Act, and thus, a “but-for” standard is
applicable. However, because we agree with the administrative judge that the appellant
failed to prove motivating factor, ID at 34-35, she necessarily failed to prove “but-for”
causation,” and thus, the administrative judge did not commit prejudicial error.
15
administrative judge’s findings. Crosby v. U.S. Postal Service, 74 M.S.P.R. 98,
106 (1997) (explaining that Board will not disturb an administrative judge’s
findings when she considered the evidence as a whole, drew appropriate
inferences, and made reasoned conclusions on issues of credibility); Broughton v.
Department of Health and Human Services, 33 M.S.P.R. 357, 359 (1987) (same).
The appellant failed to prove that the agency violated her due process rights.
¶25 On review, the appellant challenges the administrative judge’s finding that
the agency did not violate her due process rights, claiming that the agency
considered “duplicitous disciplinary and counseling matters that predated the
notice of proposed removal” and did not notify her that these matters were being
considered. PFR File, Tab 3 at 8, 15. The appellant has not identified any
specific disciplinary or counseling matters she alleges were improperly
considered, and the agency expressly notified her in the proposal notice that it
was considering her disciplinary record, including a letter of reprimand and a
7-day suspension. IAF, Tab 10 at 144. Thus, there is no evidence in the record
supporting the appellant’s claim that the agency violated he r due process rights,
and we discern no basis to disturb the administrative judge findings. Crosby,
74 M.S.P.R. at 106; Broughton, 33 M.S.P.R. at 359.
ORDER
¶26 We ORDER the agency to cancel the removal action and to restore the
appellant to her TP-1701-CM Teacher (Mixed Middle) position effective
February 26, 2021. See Kerr v. National Endowment for the Arts, 726 F.2d 730
(Fed. Cir. 1984). The agency must complete this action no later than 20 days
after the date of this decision.
¶27 We also ORDER the agency to pay the appellant the correct amount of back
pay, interest on back pay, and other benefits under the Office of Personnel
Management’s regulations, no later than 60 calendar days after the date of this
decision. We ORDER the appellant to cooperate in good faith in the agency’s
16
efforts to calculate the amount of back pay, interest, and benefits due, and to
provide all necessary information the agency requests to help it carry out the
Board’s Order. If there is a dispute about the amount of back pay, interest due,
and/or other benefits, we ORDER the agency to pay the appellant the undisputed
amount no later than 60 calendar days after the date of this decision.
¶28 We further ORDER the agency to tell the appellant promptly in writing
when it believes it has fully carried out the Board’s Order and of the actions it has
taken to carry out the Board’s Order. The appellant, if not notified, should ask
the agency about its progress. See 5 C.F.R. § 1201.181(b).
¶29 No later than 30 days after the agency tells the appellant that it has fully
carried out the Board’s Order, the appellant may file a petition for enforcement
with the office that issued the initial decision on this appeal if the appellant
believes that the agency did not fully carry out the Board’s Order. The petition
should contain specific reasons why the appellant believes that the agency ha s not
fully carried out the Board’s Order, and should include the dates and results of
any communications with the agency. 5 C.F.R. § 1201.182(a).
¶30 For agencies whose payroll is administered by either the National Finance
Center of the Department of Agriculture (NFC) or the Defense Finance and
Accounting Service (DFAS), two lists of the information and documentation
necessary to process payments and adjustments resulting from a Board deci sion
are attached. The agency is ORDERED to timely provide DFAS or NFC with all
documentation necessary to process payments and adjustments resulting from the
Board’s decision in accordance with the attached lists so that payment can be
made within the 60-day period set forth above.
NOTICE TO THE APPELLANT REGARDING
YOUR RIGHT TO REQUEST
ATTORNEY FEES AND COSTS
You may be entitled to be paid by the agency for your reasonable attorney fees
and costs. To be paid, you must meet the requirements set forth at Title 5 of the
17
United States Code (5 U.S.C.), sections 7701(g), 1221(g), or 1214(g). The
regulations may be found at 5 C.F.R. §§ 1201.201, 1201.202, and 1201.203. If
you believe you meet these requirements, you must file a motion for attorney fees
and costs WITHIN 60 CALENDAR DAYS OF THE DATE OF THIS DECISION.
You must file your motion for attorney fees and costs with the office that issued
the initial decision on your appeal.
NOTICE OF APPEAL RIGHTS 17
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
17
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.
18
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. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
19
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 deliver y 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
20
(3) Judicial review pursuant to the Whistleblower Protectio n
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. 18 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.
18
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.
21
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.
DEFENSE FINANCE AND ACCOUNTING SERVICE
Civilian Pay Operations
DFAS BACK PAY CHECKLIST
The following documentation is required by DFAS Civilian Pay to compute and pay back pay
pursuant to 5 CFR § 550.805. Human resources/local payroll offices should use the following
checklist to ensure a request for payment of back pay is complete. Missing documentation may
substantially delay the processing of a back pay award. More information may be found at:
https://wss.apan.org/public/DFASPayroll/Back%20Pay%20Process/Forms/AllItems.aspx.
NOTE: Attorneys’ fees or other non-wage payments (such as damages) are paid by
vendor pay, not DFAS Civilian Pay.
☐ 1) Submit a “SETTLEMENT INQUIRY - Submission” Remedy Ticket. Please identify the
specific dates of the back pay period within the ticket comments.
Attach the following documentation to the Remedy Ticket, or provide a statement in the ticket
comments as to why the documentation is not applicable:
☐ 2) Settlement agreement, administrative determination, arbitrator award, or order.
☐ 3) Signed and completed “Employee Statement Relative to Back Pay”.
☐ 4) All required SF50s (new, corrected, or canceled). ***Do not process online SF50s
until notified to do so by DFAS Civilian Pay.***
☐ 5) Certified timecards/corrected timecards. ***Do not process online timecards until
notified to do so by DFAS Civilian Pay.***
☐ 6) All relevant benefit election forms (e.g. TSP, FEHB, etc.).
☐ 7) Outside earnings documentation. Include record of all amounts earned by the employee
in a job undertaken during the back pay period to replace federal employment.
Documentation includes W-2 or 1099 statements, payroll documents/records, etc. Also,
include record of any unemployment earning statements, workers’ compensation,
CSRS/FERS retirement annuity payments, refunds of CSRS/FERS employee premiums,
or severance pay received by the employee upon separation.
Lump Sum Leave Payment Debts: When a separation is later reversed, there is no authority
under 5 U.S.C. § 5551 for the reinstated employee to keep the lump sum annual leave payment
they may have received. The payroll office must collect the debt from the back pay award. The
annual leave will be restored to the employee. Annual leave that exceeds the annual leave
ceiling will be restored to a separate leave account pursuant to 5 CFR § 550.805(g).
NATIONAL FINANCE CENTER CHECKLIST FOR BACK PAY CASES
Below is the information/documentation required by National Finance Center to process
payments/adjustments agreed on in Back Pay Cases (settlements, restorations) or as ordered by
the Merit Systems Protection Board, EEOC, and courts.
1. Initiate and submit AD-343 (Payroll/Action Request) with clear and concise information
describing what to do in accordance with decision.
2. The following information must be included on AD-343 for Restoration:
a. Employee name and social security number.
b. Detailed explanation of request.
c. Valid agency accounting.
d. Authorized signature (Table 63).
e. If interest is to be included.
f. Check mailing address.
g. Indicate if case is prior to conversion. Computations must be attached.
h. Indicate the amount of Severance and Lump Sum Annual Leave Payment to be
collected (if applicable).
Attachments to AD-343
1. Provide pay entitlement to include Overtime, Night Differential, Shift Premium, Sunday
Premium, etc. with number of hours and dates for each entitlement (if applicable).
2. Copies of SF-50s (Personnel Actions) or list of salary adjustments/changes and amounts.
3. Outside earnings documentation statement from agency.
4. If employee received retirement annuity or unemployment, provide amount and address to
return monies.
5. Provide forms for FEGLI, FEHBA, or TSP deductions. (if applicable)
6. If employee was unable to work during any or part of the period involved, certification of the
type of leave to be charged and number of hours.
7. If employee retires at end of Restoration Period, provide hours of Lump Sum Annual Leave
to be paid.
NOTE: If prior to conversion, agency must attach Computation Worksheet by Pay Period and
required data in 1-7 above.
The following information must be included on AD-343 for Settlement Cases: (Lump Sum
Payment, Correction to Promotion, Wage Grade Increase, FLSA, etc.)
a. Must provide same data as in 2, a-g above.
b. Prior to conversion computation must be provided.
c. Lump Sum amount of Settlement, and if taxable or non-taxable.
If you have any questions or require clarification on the above, please contact NFC’s
Payroll/Personnel Operations at 504-255-4630.