Opinion

Constance Linzy v. Department of Housing and Urban Development

Court: Merit Systems Protection Board
Filed: Feb 7, 2024
Status: Unpublished
Cited by: 0 cases
Authority: More cited than 15.0%

The opinion

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

CONSTANCE M. LINZY, DOCKET NUMBER

Appellant, DC-0432-17-0798-I-1

DEPARTMENT OF HOUSING AND DATE: February 7, 2024

URBAN DEVELOPMENT,

Agency.

THIS FINAL ORDER IS NONPRECEDENTIAL 1

Charles T. Tucker, Jr. , Esquire, Hyattsville, Maryland, for the appellant.

Elan Adounvo and Nicole Y. Drew , Washington, D.C., 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 the agency’s 5 U.S.C. chapter 43 performance-based removal action.

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

erroneously relied on hearsay evidence, unfairly disallowed certain witness

testimony, discredited some of her factual arguments, and exhibited bias.

A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

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. Except as expressly MODIFIED

regarding the appellant’s affirmative defense of retaliation for protected equal

employment opportunity (EEO) activity, we AFFIRM the initial decision.

The Board has consistently followed the well-settled principle that hearsay

evidence is admissible in administrative proceedings. Jackson v. Department of

the Army, 10 M.S.P.R. 90, 93 (1982) (citing Borninkhof v. Department of Justice,

5 M.S.P.R. 77 (1981)). In appeals before the Board, the trier of fact is

responsible for weighing the probative value of hearsay evidence under the

circumstances of each case. Borninkhof, 5 M.S.P.R. at 84. The trier of fact also

has broad discretion to regulate the course of the hearing and to exclude evidence

and witnesses that have not been shown to be relevant, material, and

nonrepetitious. Thomas v. U.S. Postal Service, 116 M.S.P.R. 453, ¶ 4 (2011);

5 C.F.R. § 1201.41(b)(8), (10).

We find that the administrative judge did not abuse his discretion in

disallowing some of the appellant’s proffered witnesses on account of relevance.

Initial Appeal File (IAF), Tab 31 at 3-4; see 5 C.F.R. § 1201.41(b)(8), (10).

We also find that the administrative judge properly weighed the witness

testimony and considered the totality of the evidence in the record, including the

appellant’s factual arguments. IAF, Tab 34, Initial Decision (ID) at 6-14.

We therefore find no reason to disrupt his findings. See Kramer v. Veterans

Administration, 23 M.S.P.R. 271, 274 (1984) (finding that mere conclusory

allegations of factual error are not sufficient to trigger a complete review of the

record), aff’d, 776 F.2d 1061 (Fed. Cir. 1985) (Table).

We also 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, 103-04 (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 evidence of bias.

While the petition for review in this case was pending, the U.S. Court of

Appeals for the Federal Circuit issued Santos v. National Aeronautics and Space

Administration, 990 F.3d 1355, 1363 (Fed. Cir. 2021), in which it held that part

of an agency’s burden in a chapter 43 appeal is to prove by substantial evidence

that the appellant’s performance was unsatisfactory in the period leading up to

her opportunity to demonstrate acceptable performance. In other words, the

agency is required to justify its decision to invoke chapter 43 performance

improvement procedures in the first instance. Id. at 1362. The Federal Circuit

overruled Board precedent to the contrary. See id. at 1360. Santos applies to all

cases pending before the Board, regardless of when the events at issue took place.

Lee v. Department of Veterans Affairs, 2022 MSPB 11, ¶ 16. We have considered

the effect of Santos on the instant appeal, and we find that it does not require a

different result or any further proceedings. The administrative judge in this case

actually adjudicated the issue and correctly found that the agency provided

substantial evidence to show that the appellant’s performance had been

unsatisfactory for several months prior to the opportunity to improve plan. ID

at 5, 16-17.

Regarding the appellant’s claim of retaliation for EEO activity, the

administrative judge adjudicated that as an alleged violation of 42 U.S.C.

§ 2000e-16 and found that the appellant failed to prove that retaliation was a

motivating factor in her removal. ID at 21-23. However, the protected activity at

issue—requesting a reasonable accommodation—is protected under the

Rehabilitation Act, and not under Title VII. Therefore, the administrative judge

should have applied a “but-for” causation standard rather than a motivating factor

standard. 2 Pridgen v. Office of Management and Budget, 2022 MSPB 31,

¶¶ 43-47. Nevertheless, we see no basis to disturb the administrative judge’s

findings of fact, and because the appellant did not prove that retaliation was a

motivating factor in her removal, she necessarily did not prove that it was a

“but-for” cause. Therefore, we affirm the administrative judge’s finding, as

modified, to find that the appellant did not prove that her protected EEO activity

was a “but-for” cause of her removal.

At the time that the administrative judge issued his initial decision, the Board’s case

law stated that claims of retaliation under the Rehabilitation Act were subject to the

same motivating factor causation standard as claims of retaliation under Title VII.

Southerland v. Department of Defense, 119 M.S.P.R. 566, ¶ 20 (2013), overruled by

Pridgen v. Office of Management and Budget, 2022 MSPB 31, ¶ 47.

NOTICE OF APPEAL RIGHTS 3

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

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:

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.

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