Opinion

Sherone Duncan v. Department of the Treasury

Court: Merit Systems Protection Board
Filed: Feb 27, 2024
Status: Unpublished
Cited by: 0 cases
Authority: More cited than 15.4%

The opinion

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

SHERONE L. DUNCAN, DOCKET NUMBER

Appellant, DA-0752-18-0112-I-1

DEPARTMENT OF THE TREASURY, DATE: February 27, 2024

Agency.

THIS FINAL ORDER IS NONPRECEDENTIAL 1

Danielle B. Obiorah , Esquire, Jonesboro, Georgia, for the appellant.

Ariya McGrew , Esquire, and Heather A. Southwell , Esquire, New York,

New York, 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

affirmed her removal. On petition for review, the appellant argues that the

administrative judge erred in finding that the agency proved the charge of

providing false information in matters of official interest and that the penalty was

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

A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

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 to

apply the correct analysis to the appellant’s affirmative defenses of

discrimination and retaliation, we AFFIRM the initial decision.

After the initial decision was issued, the Board clarified the proper analytic

framework for adjudicating race and sex 2 discrimination claims under Title VII

and disparate treatment disability 3 discrimination claims under the Rehabilitation

Act. Pridgen v. Office of Management and Budget , 2022 MSPB 31, ¶¶ 21-25, 40.

Under Pridgen, the appellant bears the initial burden of proving by preponderant

evidence 4 that her race, sex, and/or disability was a motivating factor in her

The appellant also claimed disparate treatment based on pregnancy. Discrimination on

the basis of pregnancy is a type of sex discrimination protected under Title VII.

42 U.S.C. § 2000e(k); see Thome v. Department of Homeland Security , 122 M.S.P.R.

315, ¶ 26 (2015).

A pregnancy-related impairment may qualify as a disability under the Rehabilitation

Act when it imposes work-related restrictions that will be substantially limiting, even

though they are only temporary. Equal Employment Opportunity Commission

Enforcement Guidance on Pregnancy Discrimination and Related Issues, EEOC

No. 915.003, 2015 WL 4162723 at *19 (June 25, 2015).

A preponderance of the evidence is “[t]he degree of relevant evidence that a

reasonable person, considering the record as a whole, would accept as sufficient to find

that a contested fact is more likely to be true than untrue.” 5 C.F.R. § 1201.4(q).

removal. Pridgen, 2022 MSPB 31, ¶¶ 21, 40. Here, the administrative judge

found that the appellant failed to show that her race, sex, or disability were

motivating factors in the agency’s removal action. The appellant does not

challenge these findings on review and we see no reason to disturb them. 5

The appellant also alleged that the agency retaliated against her for

requesting a reasonable accommodation. Claims of retaliation for engaging in

activity protected under the Rehabilitation Act, including requesting reasonable

accommodation for a disability, are subject to a but-for causation standard.

Desjardin v. U.S. Postal Service, 2023 MSPB 6, ¶ 33; see Pridgen, 2022 MSPB

31, ¶¶ 44, 47. As noted in the initial decision, the appellant alleged that the

agency retaliated against her for requesting a reasonable accommodation when it

required her to submit weekly requests for advanced sick leave, began

investigating her, denied her request to transfer to Connecticut in December 2016,

and denied her request to work out of an office closer to her home. ID at 38-39;

IAF, Tab 8 at 14, Tab 24 at 7, 9, Tab 31 at 6. In addition, she testified that her

supervisor called her while she was on leave to ask her to do substantive work

and that he became upset when she input time for her work. ID at 39; HT

at 533-35. Although these experiences and denials may have been unpleasant, the

administrative judge implicitly found that they did not show that the appellant’s

protected activity was a motivating factor in her removal. Because the appellant

failed to satisfy the lower motivating factor standard, she necessarily failed to

meet the higher but-for standard. Desjardin, 2023 MSPB 6, ¶ 33. In any event,

the appellant does not challenge this finding on review, and we see no reason to

revisit it.

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

or conclusions regarding the appellant’s discrimination claims, it is unnecessary for us

to address whether discrimination or retaliation was a but-for cause of the removal

action. See Pridgen, 2022 MSPB 31, ¶¶ 20-25.

NOTICE OF APPEAL RIGHTS 6

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. 7 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: