Opinion

Renee Coleman v. Department of Transportation

Court: Merit Systems Protection Board
Filed: Nov 3, 2023
Status: Unpublished
Cited by: 0 cases
Authority: More cited than 14.2%

The opinion

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

RENEE COLEMAN, DOCKET NUMBER

Appellant, DC-0752-17-0103-I-2

DEPARTMENT OF DATE: November 3, 2023

TRANSPORTATION,

Agency.

THIS FINAL ORDER IS NONPRECEDENTIAL 1

Renee Coleman , Takoma Park, Maryland, pro se.

Eugenia Jackson , Esquire, Washington, D.C., 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 the agency’s removal action pursuant to 5 U.S.C. chapter 75. On

petition for review, the appellant argues that the administrative judge exhibited

bias and that the agency violated her privacy. The appellant also generally asserts

that her conduct did not warrant removal. Petition for Review (PFR) File, Tab 5

A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

at 1-14, Tab 8 at 1-17. Generally, we grant petitions such as this one only in the

following circumstances: the initial decision contains erroneous findings of

material fact; the initial decision is based on an erroneous interpretation of statute

or regulation or the erroneous application of the law to the facts of the case; the

administrative judge’s rulings during either the course of the appeal or the initial

decision were not consistent with required procedures or involved an abuse of

discretion, and the resulting error affected the outcome of the case; or new and

material evidence or legal argument is available that, despite the petitioner’s due

diligence, was not available when the record closed. Title 5 of the Code of

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 We find the appellant’s allegations of bias to be without merit. The Board

has consistently held that, in making a claim of bias against an administrative

judge, the appellant must overcome the presumption of honesty and integrity that

accompanies all administrative adjudicators. Washington v. Department of the

Interior, 81 M.S.P.R. 101, ¶ 7 (1999) (citing In re King, 1 M.S.P.R. 146, 151

(1979)). This presumption can be overcome only by a substantial showing of

personal bias. Williams v. U.S. Postal Service, 87 M.S.P.R. 313, ¶ 12 (2000). An

administrative judge’s conduct during the course of a Board proceeding warrants

a new adjudication only if the administrative judge’s comments or actions

indicate a deep-seated favoritism or antagonism that would render fair judgment

impossible. Simpkins v. Office of Personnel Management, 113 M.S.P.R. 411,

¶ 5 (2010). The record is devoid of any such bias.

¶3 The appellant also alleges that the agency violated her privacy by relying on

a statement she made to an equal employment opportunity (EEO) specialist

professing a desire to kill her supervisor and by referencing a Federal Protective

Service (FPS) report summarizing her conduct; however, both contentions are

without merit. PFR File, Tab 5 at 4 -5, 11-12. Board proceedings are public in

nature, and there is nothing inherently improper about the agency’s submission

of, or reliance on, an FPS report. See Ortiz v. Department of Justice,

103 M.S.P.R. 621, ¶ 14 (2006) (explaining that the Board is a public body and the

public has a right to be informed of the Board’s decisions); see also

Kirkland-Zuck v. Department of Housing and Urban Development, 90 M.S.P.R.

12, ¶ 6 (2001) (referencing an FPS citation in reasoning that the appellant’s

removal was appropriate), aff’d, 48 F. App’x 749 (Fed. Cir. 2002). To the extent

the appellant alleges that her statement to the EEO specialist was privileged, we

find her contention unavailing. See Berkner v. Department of Commerce,

116 M.S.P.R. 277, ¶¶ 13, 15 (2011). Although the Board has noted that EEO

counseling sessions are a context wherein it may be appropriate to afford

employees more leeway, Daigle v. Department of Veterans Affairs, 84 M.S.P.R.

625, ¶ 6 (1999), we see no reason to disturb the administrative judge’s findings in

light of the serious nature and gravity of the appellant’s statement, which

registered such concern with the appellant’s EEO counselor that she immediately

left her meeting with the appellant to report the incident. See Berkner,

116 M.S.P.R. 277, ¶ 13.

¶4 On review, the appellant also generally alleges that removal constituted an

excessive penalty. 2 PFR File, Tab 8 at 16-17. When the agency’s charges are

sustained, the Board will review an agency-imposed penalty only to determine if

the agency considered all of the relevant factors and exercised discretion within

tolerable limits of reasonableness. Stuhlmacher v. U.S. Postal Service,

89 M.S.P.R. 272, ¶ 20 (2001). Here, the appellant’s general contention that a

Presumably to bolster her assertions as to the impropriety of the penalty imposed, the

appellant provides numerous documents with her petition for review. PFR File, Tab 5

at 15-211, Tab 8 at 18-114. However, the appellant has not shown that these additional

documents were unavailable prior to close of the record. See Avansino v. U.S. Postal

Service, 3 M.S.P.R. 211, 214 (1980); 5 C.F.R. § 1201.115(d).

lesser penalty would have been more appropriate does not warrant disruption of

the administrative judge’s reasoned findings. See id. Thus, the appellant’s

contention in this regard is without merit.

NOTICE OF APPEAL RIGHTS 3

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

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

§ 7703(b)(1)(A).

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.

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

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:

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. 4 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