Opinion

Rebekah Sherrill v. United States Postal Service

Court: Merit Systems Protection Board
Filed: Mar 19, 2024
Status: Unpublished
Cited by: 0 cases
Authority: More cited than 15.6%

The opinion

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

REBEKAH SHERRILL, DOCKET NUMBER

Appellant, DA-0752-22-0271-I-1

UNITED STATES POSTAL SERVICE, DATE: March 19, 2024

Agency.

THIS FINAL ORDER IS NONPRECEDENTIAL 1

Michael Johnson , Edmond, Oklahoma, for the appellant.

Theresa M. Gegen , Esquire, St. Louis, Missouri, for the agency.

BEFORE

Cathy A. Harris, Chairman

Raymond A. Limon, Vice Chairman

FINAL ORDER

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

affirmed the agency’s removal action based on the sustained charges of

unacceptable conduct and failure to follow instructions. On petition for review,

the appellant reargues her case and the facts underlying the charges; reargues

facts related to her affirmative defenses; conducts her own penalty analysis and

raises claims of harmful error and disparate penalties; and submits additional

A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

evidence. 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. 2 Except as expressly MODIFIED to

correct the analytical framework applied to the appellant’s Family and Medical

Leave Act of 1993 (FMLA) retaliation claim, we AFFIRM the initial decision.

In the administrative judge’s discussion of the appellant’s claim that the

agency removed her in retaliation for taking FMLA-protected leave, the

administrative judge stated that such retaliation is a prohibited personnel practice

under 5 U.S.C. § 2302(b) and cited Doe v. U.S. Postal Service, 95 M.S.P.R. 493,

¶ 11 (2004), which analyzed a claim of FMLA retaliation as protected activity

The appellant’s petition for review contains over 60 pages of documents that, for the

most part, predate the close of the record before the administrative judge or are already

part of the record. Petition for Review (PFR) File, Tab 1 at 29-64. We find that these

documents are not a basis for granting the petition for review. The Board generally will

not consider evidence submitted for the first time with the petition for review absent a

showing that it was unavailable before the record was closed despite the party’s due

diligence. Avansino v. U.S. Postal Service, 3 M.S.P.R. 211, 214 (1980); 5 C.F.R.

§ 1201.115(d). The appellant has not alleged that any of the newly submitted

documents were unavailable to her before the record closed. To the extent that some of

the documents are already in the record, they are not “new” evidence for purposes of

5 C.F.R. § 1201.115. See Meier v. Department of the Interior , 3 M.S.P.R. 247, 256

(1980). In any event, none of the documents contain information of sufficient weight to

warrant an outcome different from that of the initial decision. See Russo v. Veterans

Administration, 3 M.S.P.R. 345, 349 (1980); 5 C.F.R. § 1201.115(a)(1).

under 5 U.S.C. § 2302(b)(9), for the proposition that, to establish such a claim,

the appellant must show that: (a) she engaged in protected activity; (b) she was

subsequently treated adversely; (c) the deciding official had actual or constructive

knowledge of the protected activity; and (d) there is a causal connection between

the protected activity and the personnel action. Initial Appeal File (IAF), Tab 23,

Initial Decision (ID) at 12. The administrative judge found the first three criteria

satisfied but found that the appellant failed to establish a causal connection

between her protected FMLA activity and her removal because, among other

things, she failed to show that her supervisor was motivated by retaliatory animus

related to her FMLA activity, the removal closely followed her misconduct, and

the appellant acknowledged the alleged misconduct for the sustained charges. ID

at 12-13. The administrative judge therefore found that the appellant failed to

establish this affirmative defense. ID at 12-13.

However, after the initial decision was issued, the Board expressly

overruled Doe in Marcell v. Department of Veterans Affairs, 2022 MSPB 33,

¶¶ 7-8. In Marcell, the Board found that FMLA leave requests are not protected

activities under 5 U.S.C. § 2302(b)(9), but could form the basis for another

affirmative defense, such as a violation of 5 U.S.C. § 2302(b)(10), which makes it

a prohibited personnel practice to “discriminate for or against any employee or

applicant for employment on the basis of conduct which does not adversely affect

the performance of the employee or applicant or the performance of others.”

Marcell, 2022 MSPB 33, ¶¶ 7-8.

Accordingly, we modify the initial decision to analyze the appellant’s

FMLA retaliation claim under 5 U.S.C. § 2302(b)(10). However, under such an

analysis we also find that the appellant did not establish that she was removed

because of, or “on the basis of,” her use of FMLA-protected leave. We agree

with the administrative judge’s observations on this issue noted above and in the

initial decision, and we find that there is no evidence that the fact that the

appellant took FMLA leave was part of the charges or was considered by the

deciding official. See ID at 12-13; IAF, Tab 6 at 28-46. Although some of the

appellant’s misconduct at issue here occurred while she was out on FMLA leave,

which she stresses on petition for review, the simple fact of this alone does not

establish that she was removed because of her FMLA leave. See Petition for

Review (PFR) File, Tab 1 at 7. We also find that the appellant’s numerous other

allegations on review of a causal connection between her FMLA leave and her

removal are unavailing, as such assertions were either not raised below or are

conclusory, unsupported by the record, or not relevant to the dispositive issue

here. See PFR File, Tab 1 at 7-8, 23-25; Banks v. Department of the Air Force,

4 M.S.P.R. 268, 271 (1980) (holding that the Board will not consider an argument

raised for the first time in a petition for review absent a showing that it is based

on new and material evidence not previously available despite the party’s due

diligence). Accordingly, we find that the appellant failed to establish that the

agency violated 5 U.S.C. § 2302(b)(10) by removing her on the basis of her

FMLA leave.

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

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.

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. 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).

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 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