Opinion

Roberto Vazquez v. Department of Veterans Affairs

Court: Merit Systems Protection Board
Filed: Jan 31, 2024
Status: Unpublished
Cited by: 0 cases
Authority: More cited than 15.0%

The opinion

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

ROBERTO J. VAZQUEZ, DOCKET NUMBER

Appellant, DA-0752-15-0055-I-2

DEPARTMENT OF VETERANS DATE: January 31, 2024

AFFAIRS,

Agency.

THIS FINAL ORDER IS NONPRECEDENTIAL 1

Roberto J. Vazquez , San Antonio, Texas, pro se.

April Garrett and Jamelda Burton-Domino, Houston, Texas, 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

sustained his removal. 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

A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

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 to

clarify the administrative judge’s analysis of the appellant’s affirmative defenses

of discrimination and retaliation, we AFFIRM the initial decision.

The agency removed the appellant from his position as a Medical Support

Assistant based on the following charges: (1) failure to follow established

procedures; (2) failure to follow instructions; (3) lack of candor; (4) misuse of

Government time; (5) absent without leave (AWOL); (6) offensive language; and

(7) failure to safeguard personally identifiable information. Vazquez v.

Department of Veterans Affairs, MSPB Docket No. DA-0752-15-0055-I-1, Initial

Appeal File (IAF), Tab 10, Subtabs 4d, 4k. The appellant filed a Board appeal

and requested a hearing. IAF, Tab 1. Following a hearing, the administrative

judge issued an initial decision sustaining the removal. Vazquez v. Department of

Veterans Affairs, MSPB Docket No. DA-0752-15-0055-I-2, Appeal File (AF),

Tab 38, Initial Decision (ID). She first found that the second specification of the

lack of candor charge and the AWOL charge involved the same misconduct, that

the AWOL charge was a continuation of the lack of candor specification, and she

merged the two into one AWOL charge. ID at 3-4. She also found that the

agency did not prove the misuse of Government time charge by preponderant

evidence and did not sustain the charge. ID at 12-14. The administrative judge

determined that the agency had proven the remaining charges. ID at 4-22. She

then found that the appellant had not proven his affirmative defenses of laches,

discrimination on the bases of his race and national origin, retaliation for prior

equal employment opportunity (EEO) activity, and due process violations. ID

at 22-29. The administrative judge concluded that a nexus existed between the

sustained misconduct and the efficiency of the service. ID at 30. Finally, despite

her decision not to sustain all of the agency’s charges, she found that the penalty

of removal was reasonable. ID at 30-32. The appellant filed a petition for review

of the initial decision; the agency did not respond. Petition for Review (PFR)

File, Tab 15.

On review, the appellant renews his arguments that he did not receive

adequate training on the procedures and instructions he was charged with failing

to follow, the charge of failure to follow instructions was inaccurate, the charges

should not be sustained on the ground of laches, agency officials discriminated

against him because of his ethnicity and in retaliation for his protected EEO

activity, the agency did not show a nexus between the misconduct and the

penalty, and he was subjected to a disparate penalty. Id. He also reargues the

merits of the charges of failure to follow instructions, AWOL, and offensive

language. Id. at 11-20. We have considered the appellant’s arguments but

conclude that they do not establish error in the administrative judge’s

well-reasoned findings. 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 when

she considered the evidence as a whole, drew appropriate inferences, and made

reasoned conclusions on the issue of credibility); Broughton v. Department of

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

We also find the appellant’s arguments regarding the administrative judge’s

rulings during the proceedings to be without merit. We find no evidence that the

administrative judge exhibited bias against the appellant or failed to advise him

of the relevant hearing procedures. PFR File, Tab 15 at 7-8. 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 evidence “a

deep-seated favoritism or antagonism that would make fair judgment impossible.”

Bieber v. Department of the Army, 287 F.3d 1358, 1362-63 (Fed. Cir. 2002)

(quoting Liteky v. United States, 510 U.S. 540, 555 (1994)). Here, the appellant’s

assertion of bias is contrary to his characterizing the administrative judge’s

conduct as “impartial and fair” immediately after the hearing and is not supported

by the hearing record. AF, Tab 34 at 3, Tab 35, Hearing Compact Disc (HCD).

Moreover, the administrative judge sufficiently advised the appellant of the

relevant elements and burdens of proof to establish his affirmative defenses, and

of general hearing procedures prior to and during the hearing. AF, Tab 13,

Tab 23, HCD.

In addition, the appellant fails to support his argument that the

administrative judge erred in excluding as cumulative or irrelevant the testimony

of one of his witnesses, and we discern no reason to disturb this ruling. PFR File,

Tab 15 at 33; AF, Tab 13 at 6 n.5. Finally, the administrative judge’s finding that

the appellant completed the annual agency privacy and information security

training on November 13, 2014, contains a typographical error, as the record

reflects that the appellant completed the training on November 13, 2013, thus we

find no merit in the appellant’s argument that the agency did not prove that he

completed the training. PFR File, Tab 15 at 21; IAF, Tab 10, Subtab 4ee; AF,

HCD (testimony of the privacy officer).

On review, the appellant also argues that the administrative judge erred in

finding that the proposing and deciding officials were not aware of his EEO

complaint in concluding that retaliation for his protected EEO activity was not a

motivating factor in his removal. 2 PFR File, Tab 15 at 24-25; ID at 28-29. The

In addition to notifying the appellant of the elements and burdens of proof to show

discrimination on the bases of race and national origin, and retaliation for protected

EEO activity, the administrative judge issued an additional order notifying the appellant

of the elements and burdens of proof to show discrimination of the bases of disability

and religion. AF, Tabs 13, 23. The administrative judge did not address any claims of

discrimination on the bases of disability or religion in the initial decision, and the

record does not reflect that the appellant asserted discrimination on these bases.

proposing and deciding officials each testified that they did not recall whether

they knew of the appellant’s EEO complaint at the time of his removal. AF, HCD

(testimony of the proposing official and the deciding official). However, the

record evidence reflects that each official may have been aware of the EEO

complaint prior to the appellant’s removal. The record contains an October 14,

2014 Equal Employment Opportunity Commission (EEOC) order granting the

agency’s motion for summary judgment, in which the EEOC administrative judge

presiding over the matter found that it was not in dispute that the proposing

official was “not aware of [the appellant’s] national origin or his prior EEO

activity until this claim was presented.” IAF, Tab 10, Subtab 3b at 10. The

agency’s motion for summary judgment, the appellant’s opposition to the motion,

and the agency’s reply were filed in July and August 2013, suggesting that the

proposing official became aware of the complaint prior to the September 2014

proposed removal. Id. at 8, Subtab 4k at 1. Additionally, the appellant raised the

EEO complaint in his reply to the proposed removal, thus the deciding official

generally was aware of his EEO complaint at the time of his removal. Id.,

Subtab 4f at 9.

Even if the proposing and deciding officials were aware of the appellant’s

protected EEO activity at the time of his removal, the administrative judge cited

additional evidence in support of her finding that the appellant did not show that

retaliation for his EEO activity was a motivating factor in his removal; moreover,

she went on to find that the agency showed that it would have removed the

appellant absent any retaliatory motive, and we discern no reason to disturb these

findings. ID at 28-29. Accordingly, the appellant has not shown that any

erroneous finding affected the outcome of this matter.

In assessing the appellant’s evidence that discrimination on the bases of

race or national origin and retaliation for protected EEO activity were a

motivating factor in his removal, the administrative judge applied the evidentiary

standards set forth in Savage v. Department of the Army, 122 M.S.P.R. 612,

¶¶ 42-43, 51 (2015), overruled in part by Pridgen v. Office of Management and

Budget, 2022 MSPB 31, ¶¶ 23-25. ID at 23-29. In Savage, the Board stated that,

when an appellant asserts an affirmative defense of discrimination or reprisal, the

Board first will inquire whether the appellant has shown by preponderant

evidence that the prohibited consideration was a motivating factor in the

contested personnel action. Savage, 122 M.S.P.R. 612, ¶ 51. The Board further

stated that, in making his initial showing, an appellant may rely on direct

evidence or any of the three types of circumstantial evidence described in Troupe

v. May Department Stores Co., 20 F.3d 734 (7th Cir. 1994), i.e., pretext,

comparator or “convincing mosaic,” either alone or in combination. Savage,

122 M.S.P.R. 612, ¶ 51.

The Board has since clarified that Savage does not require administrative

judges to separate “direct” from “indirect” evidence and to proceed as if such

evidence were subject to different legal standards, or to require appellants to

demonstrate a “convincing mosaic” of discrimination or reprisal. Gardner v.

Department of Veterans Affairs, 123 M.S.P.R. 647, ¶ 29 (2016) (quoting Ortiz v.

Werner Enterprises, Inc., 834 F.3d 760, 764 (7th Cir. 2016)), clarified by Pridgen

v. Office of Management and Budget, 2022 MSPB 31, ¶¶ 23-24. Instead, as the

Board stated in Savage, the dispositive inquiry is whether the appellant has shown

by preponderant evidence that the prohibited consideration was a motivating

factor in the contested personnel action. Gardner, 123 M.S.P.R. 647, ¶ 30; see

Savage, 122 M.S.P.R. at 613, ¶ 51. Here, the administrative judge discussed the

distinction between direct and circumstantial evidence, but there is no indication

that she disregarded any evidence because it was not direct or circumstantial, and

we conclude that she properly considered the evidence as a whole in finding that

the appellant failed to prove by preponderant evidence that discrimination or

retaliation was a motivating factor in the removal action. 3 ID at 23-29. As such,

Because we discern no error with the administrative judge’s motivating factor analysis

or conclusion regarding this claim, we do not reach the question of whether

discrimination or retaliation was a “but-for” cause of the removal action. See

we discern no basis upon which to disturb the administrative judge’s findings

denying the appellant’s affirmative defenses.

On review, the appellant also alleges that the agency officials involved in

his removal committed prohibited personnel practices; however, the alleged

prohibited personnel practices are not related to his removal and do not establish

a basis for review. PFR File, Tab 15 at 22-31. The appellant further renews his

arguments that agency officials retaliated against him for filing complaints with a

member of Congress and a complaint with the agency’s Inspector General. Id.

at 7, 23-26, 30-31. He also argues that the deciding official ignored complaints

he made to her about alleged threats the proposing official made to him and about

an alleged criminal assault by a supervisor in the polytrauma unit of the hospital.

Id. at 7, 23-26. Although the appellant’s arguments could be construed as raising

an affirmative defense of retaliation for whistleblowing, the appellant’s

substantive arguments regarding these complaints are those that he raised in

connection with his affirmative defense of discrimination; namely, that agency

officials ignored his complaints or treated him more harshly than other employees

because of his Mexican-American heritage. The administrative judge identified

the appellant’s affirmative defenses as discrimination on the bases of race and

national origin and retaliation for protected EEO activity. AF, Tab 13 at 1-2, ID

at 22. The appellant did not object to the administrative judge’s characterization

of his affirmative defenses in her summary of the prehearing conference or at the

outset of the hearing. AF, Tab 13, HCD (statement of the appellant).

Consequently, the administrative judge discussed the incidents that the appellant

complained of in the context of his claim of discrimination and found that they

did not evidence discrimination. ID at 24-28. On review, the appellant reargues

the merits of his complaints and does not contest the administrative judge’s

analysis of the complaints in the context of his affirmative defense of

discrimination. We discern no reason to disturb the administrative judge’s

Pridgen v. Office of Management and Budget, 2022 MSPB 31, ¶¶ 20-22, 29-33.

findings in this regard. See Brown v. Department of the Army , 96 M.S.P.R. 232,

¶ 6 (2004) (finding that a party cannot object on review to an administrative

judge’s characterization of a charge when the party did not object to the

characterization set forth in the prehearing conference summary despite being

afforded the opportunity to do so); Langford v. Department of the Treasury,

73 M.S.P.R. 129, 138 (1997) (finding that a party may not wait until after

adjudication is complete to object for the first time to an administrative judge’s

hearing-related rulings).

The appellant has filed numerous supplemental exhibits to his petition for

review, the majority of which are contained in the record below. PFR File,

Tabs 15-17. To the extent the remaining supplemental exhibits are not in the

record, the appellant has not shown that they were unavailable, despite his due

diligence, before the record closed, and we decline to consider them. See

Avansino v. U.S. Postal Service, 3 M.S.P.R. 211, 214 (1980) (providing that

under 5 C.F.R. § 1201.115, the Board will not consider evidence submitted for

the first time on review absent a showing that it was unavailable before the record

was closed despite the party’s due diligence). Accordingly, we affirm the initial

decision as modified herein.

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

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.

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).

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