The opinion
UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
JERRY P. DOMINGUEZ, DOCKET NUMBER
Appellant, SF-0752-20-0540-I-1
v.
DEPARTMENT OF THE NAVY, DATE: March 6, 2024
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Ianna Richardson , Esquire and Shaun Southworth , Atlanta, Georgia, for the
appellant.
Tony J. Miller , Esquire, Camp Pendleton, California, 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. On petition for review, the appellant argues that the
administrative judge erred in sustaining three of the charges, reasserts his
affirmative defenses of reprisal for alleged equal employment opportunity (EEO)
activity and whistleblowing, and reasserts that the penalty of removal was not
1
A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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).
reasonable. Petition for Review (PFR) File, Tab 1. 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 to clarify the basis of the appellant’s reprisal claim concerning a
harassment complaint and to provide the appropriate standard in analyzing that
claim, we AFFIRM the initial decision.
We discern no error in the administrative judge’s findings that the agency
proved three of the four charges at issue in this appeal and that the penalty of
removal promotes the efficiency of the service and was reasonable. Initial
Appeal File (IAF), Tab 32, Initial Decision (ID) at 3-18, 24-29. We also discern
no error in her finding that the appellant failed to prove an affirmative defense of
whistleblower reprisal. ID at 22-24. Although we ultimately agree with the
administrative judge’s conclusion that the appellant failed to prove that his
removal was in reprisal for filing a harassment complaint with the EEO office on
October 30, 2019, we clarify here the nature of the appellant’s claim and the
appropriate standard by which to analyze that claim.
Below, the appellant asserted that he was retaliated against for protected
EEO activity—namely, for filing a harassment complaint on October 30, 2019,
with the EEO office. 2 IAF, Tab 19 at 4. To analyze this claim, the administrative
judge relied on the legal standard set forth in Savage v. Department of the Army,
122 M.S.P.R. 612, ¶ 51 (2015), which provides that, when an appellant asserts
discrimination or retaliation under 42 U.S.C. § 2000e-16, he must show that the
prohibited consideration was a motivating factor in the contested personnel
action. ID at 19. The administrative judge later correctly observed, however,
that the appellant’s harassment complaint on which his reprisal claim is based
was explicitly not alleging that he was harassed on the basis of a protected
category covered under the discrimination laws, such as race, sex, religion, age,
or disability. ID at 20; IAF, Tab 21 at 54. Because the appellant’s harassment
complaint was not so based, we modify the initial decision to find that his claim
should be construed as one of general reprisal. See, e.g., Mattison v. Department
of Veterans Affairs, 123 M.S.P.R. 492, ¶ 8 (2016) (applying the Warren standard
to the appellant’s affirmative defense of retaliation for filing appeals arising
under 5 U.S.C. § 2302(b)(9)(A)(ii), in which he did not allege, among other
things, reprisal for equal employment opportunity activity protected under title
VII). To prove a claim of general reprisal, the appellant must show by
preponderant evidence that: (1) he engaged in protected activity; (2) the accused
official knew of the protected activity; (3) the adverse employment action under
review could, under the circumstances, have been retaliation; and (4) there was a
genuine nexus between the retaliation and the adverse employment action.
See Warren v. Department of the Army, 804 F.2d 654, 656-58 (Fed. Cir. 1986);
Mattison, 123 M.S.P.R. 492, ¶ 8; Cloonan v. U.S. Postal Service, 65 M.S.P.R. 1,
4 (1994).
In applying this standard, we rely on the administrative judge’s assessment
of the relevant evidence. In the initial decision, the administrative judge
2
The appellant also asserted that he filed an EEO complaint, IAF, Tab 19 at 4, but as
the administrative judge correctly observed, there is no EEO complaint in the record, ID
at 19, and a representative from the agency’s EEO office submitted a statement that
there is no EEO complaint by the appellant on record, IAF, Tab 9 at 20.
correctly observed that there was no evidence that anybody responsible for the
removal decision referenced the harassment complaint and that there was no
circumstantial evidence supporting an inference of retaliation, “other than the
appellant had talked to the EEO counselor when his removal was proposed and
decided.” ID at 22. The administrative judge considered that the appellant’s
supervisor, who was also the proposing official, may have been aware of the
complaint, but found nothing suspicious in this knowledge, particularly because
the supervisor began documenting for human resources the basis of the
disciplinary action in June or July of 2019—well before the appellant filed the
October 30, 2019 harassment complaint and well before the appellant told his
supervisor that he had gone to an EEO counselor. Id. at 21-22. The
administrative judge also considered that the deciding official was aware of the
harassment complaint but emphasized that he was unaware of the content of the
complaint. ID at 22. She ultimately concluded that the appellant failed to present
any evidence “that the agency took this removal action in retaliation for the
appellant going to an EEO counselor and complaining about the workplace.” Id.
We conclude that the findings in the initial decision are sound and
accurately reflect the record evidence. 3 We further find that, even though the
deciding official and the appellant’s supervisor—also the proposing official—
knew of the harassment complaint, the appellant has failed to show that his
3
We have considered the appellant’s argument on review that when he raised his
concern about harassment with his supervisor, the supervisor responded “in a retaliatory
manner” stating that he “was not going anywhere.” PFR File, Tab 1 at 8. The appellant
asserts that this response “is close to direct evidence of retaliation because it is a
threat.” Id. We disagree. The appellant’s interpretation of his supervisor’s alleged
statement is nothing more than speculation as to the supervisor’s motives. The
statement does not include any threat and, on its face, suggests only that the supervisor
did not intend to leave the agency due to the appellant’s harassment complaint. Thus,
the appellant’s argument on review does not constitute a basis to disturb the ultimate
finding in the initial decision that the appellant failed to establish this affirmative
defense. See Duncan v. Department of the Air Force, 115 M.S.P.R. 275, ¶ 9 (2010)
(finding that an appellant’s speculation did not rise to the level of preponderant
evidence), aff’d, 674 F.3d 1359 (Fed. Cir. 2012).
removal could, under the circumstances, have been retaliation or that there was
any genuine nexus between the retaliation and the removal action.
See Mattison, 123 M.S.P.R. 492, ¶ 8. Accordingly, we agree with the
administrative judge that the appellant failed to establish this affirmative defense.
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
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
4
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.
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
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:
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.
5
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.
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.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.