Opinion

Eileen McCarthy v. Social Security Administration

Court: Merit Systems Protection Board
Filed: Jan 17, 2024
Status: Unpublished
Cited by: 0 cases
Authority: More cited than 14.8%

The opinion

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

EILEEN ERIN MCCARTHY, DOCKET NUMBER

Appellant, PH-1221-16-0137-W-1

SOCIAL SECURITY DATE: January 17, 2024

ADMINISTRATION,

Agency.

THIS FINAL ORDER IS NONPRECEDENTIAL 1

Eileen Erin McCarthy , Marion, Massachusetts, pro se.

Joanna Tate , Esquire, Dallas, Texas, for the agency.

Susan D. Beller , Boston, Massachusetts, for the agency.

BEFORE

Cathy A. Harris, Vice Chairman

Raymond A. Limon, Member

FINAL ORDER

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

denied her request for corrective action in this individual right of action appeal.

Generally, we grant petitions such as this one only in the following

circumstances: the initial decision contains erroneous findings of material fact;

A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

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. Except as expressly MODIFIED concerning the

administrative judge’s basis for finding the appellant’s failure to prove that she

made a protected disclosure related to the agency’s lack of quality assurance

(QA), we AFFIRM the initial decision.

The administrative judge characterized the appellant’s disclosure

concerning QA as alleging that on April 2, 2015, during a meeting with the

Center Director, she informed him that the Boston Disability Processing Unit

(DPU) had not implemented the Quality Review Process within the timeframes

set forth in agency guidelines. Initial Appeal File (IAF), Tab 56, Initial Decision

(ID) at 12. The administrative judge, however, credited testimony of the Center

Director that he did not recall the appellant ever discussing the issue with him.

ID at 19.

On review, the appellant contends that the administrative judge’s

credibility findings are incomplete. Petition for Review (PFR) File, Tab 8 at 22,

27. We agree. 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

normally defers to an administrative judge’s credibility findings when they are

based on demeanor. See Haebe v. Department of Justice, 288 F.3d 1288, 1300-01

(Fed. Cir. 2002). Here, however, the administrative judge’s credibility findings

are cursory and incomplete to the extent they fail to explain why the

administrative judge found the Center Director’s testimony to be more credible

than the appellant’s. Additionally, because the appellant testified by telephone,

the administrative judge did not have an opportunity to observe her demeanor

during her testimony. Thus, we find that the administrative judge’s credibility

findings are not entitled to deference. See, e.g., Redschlag v. Department of the

Army, 89 M.S.P.R. 589, ¶ 13 (2001).

Nonetheless, we have reviewed the record and find that the appellant failed

to prove by preponderant evidence that she made a protected disclosure. 2 The

appellant’s testimony concerning this issue consisted of a bare assertion that she

reported the “lack of [QA] and lack of communication between examiners and

consultants” during an April 2nd meeting with the Center Director. IAF, Tab 54,

Hearing Compact Disc (Hearing Day 3) (testimony of the appellant). She also

testified that, during a performance review, she disclosed to her supervisor her

“concerns related to the lack of [QA].” Id. In her written testimony, which was

incorporated as part of her oral testimony, she indicated that, during the meeting

with the Center Director, she “brought up [her] concerns with the lack of QA.”

IAF, Tab 52 at 5. In other pleadings, she references that she “raised the issue that

Because we do not rely on the administrative judge’s credibility findings, we need not

address the appellant’s argument that the administrative judge improperly found the

Center Director to be credible because his testimony concerning the reasons for her

termination was not credible. PFR File, Tab 8 at 25-27.

making determinations without QA oversight meant that all DPU cases never

received a second look.” IAF, Tab 9 at 5. However, in both her testimony and

pleadings below, she fails to specify any additional details concerning what she

told the Center Director or her supervisor or how or why the lack of QA

amounted to any of the categories of wrongdoing specified in 5 U.S.C.

§ 2302(b)(8). Accordingly, we find that the appellant’s vague and conclusory

claims are insufficient to establish that she made a protected disclosure. See, e.g.,

Webb v. Department of the Interior, 122 M.S.P.R. 248, ¶¶ 9-12 (2015) (finding

that general philosophical or policy disagreements with agency decision or

actions do not constitute protected disclosures unless there is a reasonable belief

that the disclosure evidences one of the categories of wrongdoing set forth in

5 U.S.C. § 2302(b)(8)(A)); Linder v. Department of Justice, 122 M.S.P.R. 14,

¶ 14 (2014) (stating that a disclosure must be specific and detailed, not a vague

allegation of wrongdoing). Accordingly, we affirm the initial decision as

modified herein. 3

NOTICE OF APPEAL RIGHTS 4

The initial decision, as supplemented by this Final Order, constitutes the

Board’s final decision in this matter. 5 C.F.R. § 1201.113. 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

We have reviewed the relevant legislation enacted during the pendency of this appeal

and have concluded that it does not affect the outcome of the appeal.

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.

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).

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. 5 The court of appeals must receive your petition for

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.

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