Opinion

Lois Starkey v. Department of Housing and Urban Development

2024 MSPB 6

Court: Merit Systems Protection Board
Filed: Mar 22, 2024
Status: Published
Cited by: 7 cases
Authority: More cited than 74.3%

The opinion

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

2024 MSPB 6

Docket No. DC-315H-18-0258-I-4

Lois A. Starkey,

Appellant,

Department of Housing and Urban

Development,

Agency.

March 22, 2024

John J. Rigby , Esquire, Arlington, Virginia, for the appellant.

Nicole Y. Drew , Washington, D.C., for the agency.

BEFORE

Cathy A. Harris, Chairman

Raymond A. Limon, Vice Chairman

OPINION AND ORDER

¶1 The agency has filed a petition for review of the initial decision, which

reversed the appellant’s probationary termination. For the reasons discussed

below, we DENY the agency’s petition for review and AFFIRM the initial

decision.

BACKGROUND

¶2 The appellant filed the instant appeal, asserting that the agency terminated

her competitive-service probationary appointment for partisan political reasons.

Starkey v. Department of Housing and Urban Development, MSPB Docket

No. DC-315H-18-0258-I-1, Initial Appeal File (IAF), Tab 1 at 6. The

administrative judge held the requested hearing before issuing an initial decision.

Starkey v. Department of Housing and Urban Development, MSPB Docket

No. DC-315H-18-0258-I-3, Appeal File (I-3 AF), Hearing Transcript (HT) 1 ;

Starkey v. Department of Housing and Urban Development, MSPB Docket

No. DC-315H-18-0258-I-4, Appeal File (I-4 AF), Tab 4, Initial Decision (ID).

¶3 The following facts, as further described in that initial decision, are not

materially disputed. In June 2017, the Trump administration named a new

political appointee as General Deputy Assistant Secretary for Housing (GDASH).

HT at 171 (testimony of the GDASH). Prior to this political appointment, some

of the appointee’s professional experience included working for Republicans in

both houses of Congress. Id. at 171-72.

¶4 The next month, in July 2017, the agency hired the appellant as a GS -14

Manufactured Housing Specialist, a career competitive-service position, within

the agency’s Office of Manufacturing Housing Programs (OMHP),

in Washington, D.C. IAF, Tab 11 at 23. The appellant’s prior professional

experience included several positions with the Manufactured Housing Institute,

most recently as the Vice President of Regulatory Affairs, as well as a Legislative

and Policy Associate position with the National Council of State Housing

Agencies. I-3 AF, Tab 7 at 20-24. In addition, the appellant had worked as a

Legislative Assistant for a Democratic Congressional representative, served as a

political appointee for the Carter administration, held an elected position as a

member of her local Democratic committee, and managed the campaign of her

husband, who ran for elected office as a Democrat. E.g., I-3 AF, Tab 7 at 24-25;

We note that the table of contents to the transcript identifies incorrect page numbers

for the testimony of the appellant’s first-level supervisor and altogether omits the

testimony of another witness, the Senior Advisor. Compare HT at 3 (table of contents),

with HT at 225-26 (introducing the appellant’s first-level supervisor and placing her

under oath), 269-70 (introducing the Senior Advisor and placing her under oath).

However, there is no reason to believe that the transcript is otherwise incomplete or

inaccurate.

HT at 10-12 (testimony of the appellant). The appellant’s first-, second-, and

third-level supervisors held career positions with the agency. HT at 108-09

(testimony of the second-level supervisor), 227 (testimony of the first-level

supervisor), 371-72 (testimony of the third-level supervisor). Notably, though,

the second-level supervisor had political ties that included running for office as a

Republican in the 1990s, but more recently running as a Democrat in 2011.

HT at 109 (testimony of the second-level supervisor).

¶5 Just days after the appellant began working for the agency, the head of a

Washington, D.C.-based industry group—the Manufactured Housing Association

for Regulatory Reform (MHARR)—sent a complaint to several agency officials,

including the agency’s White House Liaison, advisors to the President, and the

Chief of Staff to the Secretary of Housing and Urban Development. IAF, Tab 6

at 15-16, 19-20, 29. In this letter, MHARR complained that the agency had

retained the appellant’s second-level supervisor, “an Obama Administration

holdover,” and hired the appellant, “an Obama donor herself,” whom he further

described as having connections to “Obama supporter, Warren Buffet.” Id.

at 15-16. He attached public contribution records to evidence the appellant’s

contributions to “Obama for America” in 2012. Id. at 17. Among other things,

the MHARR complaint described the agency’s actions in this regard as

“amazingly ill-considered, offensive and arguably scandalous,” surmising that

both individuals would “defy and resist” the administration’s policies. Id. at 15.

¶6 In August 2017, the month after the agency hired the appellant, she met

with her first- and second-level supervisors to discuss an ongoing dispute

between the agency and a state partner, the Oregon State Administrative Agency.

IAF, Tab 6 at 11-12; HT at 123 (testimony of the second-level supervisor).

The appellant suggested that it might be helpful to discuss the matter with the

Oregon Manufactured Housing Association to assist in resolving the dispute, and

her second-level supervisor agreed. The second-level supervisor tasked the

appellant with contacting the Oregon Manufactured Housing Association. HT

at 123-24 (testimony of the second-level supervisor). This was not well received

by the agency’s state partners in Oregon.

¶7 In September 2017, the agency’s state partners in Oregon sent a letter to the

Secretary of Housing and Urban Development, threatening to withdraw from their

partnership, in part due to the appellant’s alleged sharing of “sensitive

government-to-government discussions with outside parties.” IAF, Tab 11

at 17-21. When this complaint reached the appellant’s second-level supervisor,

she issued an internal memorandum to the appellant’s third-level supervisor and

the GDASH, defending OMHP’s action and assuring them that the appellant had

not shared any confidential or sensitive information. IAF, Tab 6 at 31-32.

¶8 In October 2017, the head of MHARR sent another complaint to the

agency that was the subject of discussions among the appellant’s first-, second-,

and third-level supervisors. I-3 AF, Tab 9 at 98-99. However, it is not apparent

whether that complaint, like the prior MHARR complaint, involved anyone’s

political affiliation. Id.

¶9 In a November 2017 performance appraisal by her first- and second-level

supervisors, the agency rated the appellant “outstanding,” the highest possible

rating, and described her as an “invaluable asset.” I-3 AF, Tab 7 at 26-37.

Yet, despite the support from her immediate chain of command, the appellant’s

third-level supervisor terminated the appellant soon thereafter, after consulting

with the GDASH and others. IAF, Tab 1 at 9-10; HT at 188-89 (testimony of the

GDASH), 341-45 (testimony of the third-level supervisor). The reason for the

December 19, 2017 termination, as described in the termination letter, was the

appellant’s alleged release of sensitive information to industry stakeholders in

Oregon, as described in the complaint by the agency’s partners from Oregon State

Government. IAF, Tab 1 at 9, Tab 11 at 17-18. The day before, the GDASH also

detailed the appellant’s second-level supervisor from her GS-15 position as

Administrator of OMHP to a position described as comparable to that of an

administrative assistant. HT at 109, 131 (testimony of the second-level

supervisor), 181 (testimony of the GDASH).

¶10 The appellant filed the instant appeal, arguing that the agency

impermissibly terminated her for partisan political reasons. IAF, Tab 1 at 6. The

administrative judge agreed and reversed the probationary termination, finding

that officials cited the Oregon complaint as a mere pretext to remove the

appellant for known political affiliations. ID at 38-49.

¶11 The agency filed a petition for review. Starkey v. Department of Housing

and Urban Development, MSPB Docket No. DC-315H-18-0258-I-4, Petition for

Review (PFR) File, Tab 1. The appellant filed a response, and the agency replied.

PFR File, Tabs 5, 9. The parties also submitted competing arguments, evidence,

and pleadings regarding interim relief. PFR File, Tab 5 at 4, Tabs 6-7, Tab 9 at 4-

ANALYSIS

The agency failed to comply with its interim relief obligations.

¶12 The Board’s regulations provide that, if an appellant was the prevailing

party in the initial decision, and the initial decision granted the appellant interim

relief under 5 U.S.C. § 7701(b)(2)(A), an agency’s petition for review must be

accompanied by a certification that the agency has complied with the interim

relief order. Thome v. Department of Homeland Security, 122 M.S.P.R. 315, ¶ 15

(2015); 5 C.F.R. § 1201.116(a). The Board’s regulations further contemplate that

if an agency fails to submit the required certification with its petition, the Board

may, in its discretion, dismiss the agency’s petition for review. Guillebeau v.

Department of the Navy, 362 F.3d 1329, 1332-33 (Fed. Cir. 2004) (discussing

how the regulatory provisions required dismissal until May of 1999, when the

Board amended the regulation to establish that dismissal was discretionary);

Thome, 122 M.S.P.R. 315, ¶¶ 15-16; 5 C.F.R. § 1201.116(e).

¶13 A separate provision explains that an appellant may request dismissal of an

agency’s petition for failing to provide the required interim relief, but the Board

will dismiss the appellant’s motion if it is not filed within 25 days of the date of

service of the agency’s petition, unless the appellant shows that the motion is

based on information not readily available before the close of the time limit.

5 C.F.R. § 1201.116(d).

¶14 Here, although the appellant requested dismissal of the agency’s petition for

its failure to provide interim relief, she did not do so within the allotted time, and

we have no reason to conclude that her untimely motion was based upon new

information. See PFR File, Tab 7. Accordingly, we dismiss the appellant’s

motion, pursuant to 5 C.F.R. § 1201.116(d). The question remains, however,

whether the Board should dismiss the agency’s petition on its own accord. See

5 C.F.R. § 1201.116(a), (e); see also Harding v. Department of Veterans Affairs,

451 F. App’x 947, 950 (Fed. Cir. 2011) (stating that “even without a timely

challenge to the agency’s interim relief, the Board remains obligated to ensure

that the agency has complied with the interim relief order”). 2

¶15 In the initial decision, dated October 21, 2019, the administrative judge

ordered the agency to provide interim relief and warned of the consequences for

failing to do so. ID at 51. Nevertheless, the agency did not include certification

regarding interim relief with its November 22, 2019 petition for review, as

required under the Board’s regulations. PFR File, Tab 1; 5 C.F.R. § 1201.116(a).

Instead, the agency waited until after the appellant requested dismissal of its

petition for review before submitting a “Notice of Interim Relief,” nearly

3 months after the issuance of the initial decision and 2 months after the agency

filed its petition for review. PFR File, Tab 6. In that pleading, the agency

indicated that the appellant “will receive the same grade, pay, and employment

benefits as her previous position” and “will return to duty on January 21, 2020.”

The Board may follow a nonprecedential decision of the U.S. Court of Appeals for the

Federal Circuit when, as here, it finds it to be persuasive. Caros v. Department of

Homeland Security, 122 M.S.P.R. 231, ¶ 24 n.11 (2015).

Id. at 4. The agency also attached a Standard Form 52, dated the day before,

retroactively placing the appellant in an interim appointment as of the date of the

initial decision in this appeal. 3 Id. at 7. Simply put, nearly 3 months after the

order to do so, the agency had still not provided the appellant with all of

her interim relief and had only just begun the process of doing so.

Compare ID at 51, with PFR File, Tab 6 at 7. The agency provided no

explanation for its delay. Nevertheless, we find that the appellant will not be

prejudiced by a decision on the merits of the agency’s petition, and considering

the totality of the circumstances, we decline to dismiss the agency’s petition for

failure to provide interim relief.

We clarify the legal standard for an appeal brought under 5 C.F.R. § 315.806(b).

¶16 An individual in the competitive service who, like the appellant, is serving

an initial probationary period and has not completed 1 year of current continuous

service has no statutory right of appeal to the Board. Marynowski v. Department

of the Navy, 118 M.S.P.R. 321, ¶ 4 (2012); IAF, Tab 1 at 4, 9; see 5 U.S.C.

§ 7511(a)(1)(A). However, under certain limited circumstances, there may be a

regulatory right of appeal under 5 C.F.R. § 315.806. As relevant here, such an

individual “may appeal . . . a termination not required by statute which he or she

alleges was based on partisan political reasons or marital status.” 5 C.F.R.

§ 315.806. To establish Board jurisdiction under that provision, the appellant

must prove by preponderant evidence that her termination was, in fact, based on

partisan political reasons or marital status. 4 Marynowski, 118 M.S.P.R. 321, ¶ 5.

The agency indicated that it would not return the appellant to her previous office with

OMHP because it had determined that her presence there would be unduly disruptive.

PFR File, Tab 6 at 4, 7 (citing 5 U.S.C. § 7701(b)(2)(A)(II)). We will not review that

determination. Cook v. Department of the Army, 105 M.S.P.R. 178, ¶ 7 (2007) (stating

that the Board does not have the authority to review the merits of the agency’s

determination that his return would be unduly disruptive).

An appellant has the right to a hearing on the jurisdictional issue only if she first

makes a nonfrivolous allegation of jurisdiction, i.e., allegations of fact that, if proven,

would establish that her termination was based on partisan political reasons or marital

status. Green-Brown v. Department of Defense, 118 M.S.P.R. 327, ¶ 5 (2012). An

¶17 In adjudicating appeals under this provision, the Board and the U.S. Court

of Appeals for the Federal Circuit have found that an appropriate analytical

framework can be adapted from Title VII Federal sector discrimination law.

Stokes v. Federal Aviation Administration, 761 F.2d 682, 686-87 (Fed. Cir. 1985);

McClintock v. Veterans Administration, 6 M.S.P.R. 475, 478 (1981). We reaffirm

that approach, while noting one important difference between Title VII and the

regulatory appeal right at issue here, i.e., the difference between motivating

factor and but-for causation.

¶18 Under Title VII, Federal personnel actions “shall be made free from any

discrimination based on race, color, religion, sex, or national origin.” 42 U.S.C.

§ 2000e-16(a). The Board has interpreted this language as setting forth a

motivating factor standard of causation. Pridgen v. Office of Management and

Budget, 2022 MSPB 31, ¶¶ 20-21; see also Babb v. Wilke, 589 U.S. 399, 406-07

(2020) (interpreting “shall be made free from” to mean motivating factor

causation in the context of the Federal sector provision of the Age Discrimination

in Employment Act). To prove motivating factor causation, the appellant need

only show that the prohibited consideration played any part in the way the

decision was made, even if the agency would ultimately have made the same

decision in the absence of the discriminatory motive. Wilson v. Small Business

Administration, 2024 MSPB 3, ¶ 11; Pridgen, 2022 MSPB 31, ¶ 21. In contrast

to Title VII, under 5 C.F.R. § 315.806(b), the appellant must prove that her

termination was “based on” partisan political reasons or marital status. We hold

that, under this regulation, the appellant is required to prove that the prohibited

consideration was a but-for cause of her termination. In Gross v. FBL Financial

Services, Inc., 557 U.S. 167, 176-77 (2009), the Supreme Court found that

29 U.S.C. § 623(a)(1), which prohibits discrimination “because of age” in private

sector employment, should be read as requiring that the plaintiff prove but-for

appellant who establishes Board jurisdiction under 5 C.F.R. § 315.806(b) thereby

prevails on the merits.

causation. The Court further found that the statutory phrases “based on” and

“because of” have the same meaning in this regard. Id. (citing Safeco Ins. Co. of

America v. Burr, 551 U.S. 47, 63-64 & n.14 (2007)). But-for causation is a

higher standard than motivating factor and requires proof that the prohibited

consideration was necessary to the outcome of the agency’s decision. Bostock v.

Clayton County, 140 S. Ct. 1731, 1740 (2020); Wilson, 2024 MSPB 3, ¶ 15;

Pridgen, 2022 MSPB 31, ¶¶ 21-22 & n.4.

¶19 Notwithstanding these differences between Title VII and 5 C.F.R.

§ 315.806(b), Title VII analytical frameworks remain applicable to the extent that

they may be used to prove but-for causation. As far as section 315.806(b) is

concerned, the appellant may proceed in at least two ways. First, in cases

involving at least some circumstantial evidence, an appellant may use the

burden-shifting framework set forth in McDonnell Douglas Corp. v. Green,

411 U.S. 792, 802-04 (1973). Wilson, 2024 MSPB 3, ¶¶ 16-17 (explaining how

McDonnell Douglas may be used to prove but-for causation in a Title VII claim).

Second, the appellant may prove but-for causation under a mixed-motive

framework. See id., ¶ 18. The appellant may also choose to proceed under both

theories simultaneously. See id., ¶ 19.

¶20 In this case, the appellant proceeded under the McDonnell Douglas

framework. See I-4 AF, Tab 3. To prove but-for causation under McDonnell

Douglas, the appellant must first establish a prima facie case of discrimination.

Wilson, 2024 MSPB 3, ¶ 16. To establish a prima facie case, an appellant must

generally show that (1) she is a member of a protected class, (2) she suffered an

adverse employment action, and (3) the unfavorable action gives rise to an

inference of discrimination. Id.; see Furnco Construction Corp. v. Waters, 438

U.S. 567, 575-77 (1978). If the appellant makes out a prima facie case, then the

burden shifts to the agency to provide a nondiscriminatory explanation for the

action. Wilson, 2024 MSPB 4, ¶ 17. If the agency fails to give a

nondiscriminatory explanation or the appellant proves that the agency’s

explanation was pretext, then the appellant has proven that discrimination was a

but-for cause of the action. Id.

The appellant met her burden of proof.

¶21 Broadly speaking, the administrative judge found that the appellant’s

termination was unusual, not justified, and notably comparable to the

reassignment of the other individual targeted by MHARR’s partisan political

complaints—the appellant’s second-level supervisor. ID at 41-49. He also found

that the GDASH was responsible for both actions, and he did not credit the

GDASH’s testimony that she knew of the second-level supervisor’s political

affiliation but not the appellant’s. ID at 38-41. Under these circumstances, as

further discussed in the initial decision, the administrative judge concluded that

the appellant’s termination was based on partisan political reasons and that the

Oregon incident was merely used as a pretext for doing so. ID at 49. For the

following reasons, we agree.

The decision to terminate the appellant’s appointment was unusual

and unjustified.

¶22 The stated reason for the appellant’s termination was her alleged sharing of

sensitive information with the Oregon Manufactured Housing Association, as

described in the Oregon complaint. IAF, Tab 1 at 9-10, Tab 11 at 17. Yet the

appellant’s second-level supervisor, who was both an attorney and the

Administrator of OMHP, responded by issuing a contemporaneous intra-agency

memorandum to explain otherwise. IAF, Tab 6 at 31-32; HT at 106-09

(testimony of the second-level supervisor). That memorandum was directed to

the appellant’s third-level supervisor and the GDASH. IAF, Tab 6 at 31-32.

¶23 During the hearing, the appellant’s second-level supervisor further

discussed the appellant’s handling of the ongoing dispute between the agency and

its Oregon partner. Among other things, she described how the appellant had not

shared confidential or sensitive information, and in fact had acted in accordance

with advance instructions from her chain of command and existing OMHP policy,

which was set by the second-level supervisor herself. HT at 125-29, 133, 138-52

(testimony of the second-level supervisor). The second -level supervisor also

explained that a prior Deputy Administrator of OMHP had used the same policy

and that OMHP had recently handled a comparable situation with another state

partner, Michigan, in a similar manner. Id. at 124, 132, 138, 150-52, 161.

¶24 The appellant’s first-level supervisor, who was Deputy Administrator of

OMHP during the relevant period and was also serving as Acting Administrator

of OMHP by the time of hearing, provided additional support for the appellant’s

actions. HT at 246, 248-53 (testimony of the first-level supervisor). She testified

that the second-level supervisor was responsible for establishing the policy, she

agreed with the policy at the time, and the appellant carried out the policy in good

faith, notwithstanding the negative reaction from their state partner in Oregon.

Id. This individual indicated that upon taking over as Acting Administrator, she

ran OMHP somewhat differently than the outgoing Administrator to “cover”

herself and avoid repercussions stemming from the politics surrounding OMHP

work. Id. at 247-49, 262-64.

¶25 The appellant provided a written statement and testimony similar to that of

her first- and second-level supervisors. IAF, Tab 6 at 11-12; HT at 28-30

(testimony of the appellant). She indicated that her second-level supervisor, as

Administrator of OMHP, had broad authority and exercised that authority in a

manner comparable to years past, when different officials were in control of

OMHP and the appellant was on the receiving end of those policies in the private

sector. HT at 34-37 (testimony of the appellant).

¶26 Neither of the appellant’s immediate supervisors was involved in the

appellant’s termination. The first-level supervisor testified that she first learned

of the appellant’s termination after it had already occurred and that no one ever

explained to her the reason for the termination or who made the decision. HT

at 232-33, 238-39, 251, 261 (testimony of the first-level supervisor).

The first-level supervisor described those circumstances as unusual, indicating

that she had never experienced a similar situation and she was not aware of

anything similar involving other agency employees and their supervisors.

Id. at 233, 261-62. The appellant’s second-level supervisor testified that she, too,

was not consulted on the appellant’s termination and was shocked to learn about

it, after the fact. HT at 129-30, 133-34, 155-56 (testimony of the second-level

supervisor).

¶27 The administrative judge found the appellant and her first- and second-level

supervisors to be credible witnesses. ID at 15 n.23, 19 n.29, 22 n.36. To resolve

credibility issues, an administrative judge must identify the factual questions in

dispute, summarize the evidence on each disputed question, state which version

he believes, and explain in detail why he found the chosen version more credible,

considering such factors as: (1) the witness’s opportunity and capacity to observe

the event or act in question; (2) the witness’s character; (3) any prior inconsistent

statement by the witness; (4) the witness’s bias, or lack of bias; (5) the

contradiction of the witness’s version of events by other evidence or its

consistency with other evidence; (6) the inherent improbability of the witness’s

version of events; and (7) the witness’s demeanor. Hillen v. Department of the

Army, 35 M.S.P.R. 453, 458 (1987). The Board must defer to an administrative

judge’s credibility determinations when they are based, explicitly or implicitly,

on observing the demeanor of witnesses testifying at a hearing; the Board may

overturn such determinations only when it has “sufficiently sound” reasons for

doing so. Haebe v. Department of Justice, 288 F.3d 1288, 1301 (Fed. Cir. 2002).

In fact, the Board must give “special deference” to an administrative judge’s

demeanor-based credibility determinations, “[e]ven if demeanor is not explicitly

discussed.” Purifoy v. Department of Veterans Affairs, 838 F.3d 1367, 1373

(Fed. Cir. 2016).

¶28 In this matter, the administrative judge properly considered the Hillen

factors and made demeanor-based credibility determinations. Concerning the

appellant, he noted that her version of events was internally consistent and

corroborated in material part with the other credible evidence of record.

Moreover, he observed that the appellant appeared sincere and responsive when

testifying. ID at 15 n.23. The administrative judge determined that the first-level

supervisor was an “extremely credible witness” who had no apparent motive to lie

or fabricate her testimony. He found that her testimony was “straightforward,

sincere, unrehearsed, and consistent with the credible record evidence.” ID at 22

n.36. Additionally, the administrative judge concluded that the second-level

supervisor’s testimony was corroborated by other record evidence and that she

testified in a believable and straightforward manner without a sign of improper

bias. ID at 19 n.29. There are no “sufficiently sound” reasons for overturning

the administrative judge’s demeanor-based credibility determinations in this case.

Therefore, we defer to them. See Purifoy, 838 F.3d at 1373; Haebe, 288 F.3d

at 1301.

¶29 In contrast to the appellant’s first- and second-level supervisors—the ones

who were not consulted but had OMHP expertise, a detailed understanding of

what occurred, the authority to direct the appellant’s actions, and a firm

belief that the appellant was an outstanding employee who had acted

appropriately—agency officials involved in the appellant’s termination, including

the appellant’s third-level supervisor, the Senior Advisor to the GDASH, the

GDASH, and the Acting Associate General Counsel, lacked or ignored the

relevant facts and expertise.

¶30 The appellant’s third-level supervisor, who signed the appellant’s

termination letter, indicated that she lacked expertise in OMHP matters and was

unsure whether the appellant’s information sharing was appropriate.

HT at 335-36, 338, 352 (appellant’s third-level supervisor). The third-level

supervisor also testified that she failed to realize that the second-level supervisor

had instructed the appellant to engage in the information sharing and, in

hindsight, she acknowledged the appellant should not have been blamed.

Id. at 350-51, 375. She did, however, recall that the appellant’s second-level

supervisor defended the appellant’s actions as consistent with existing OMHP

policy. Id. at 350. Once again, the second-level supervisor’s defense is

reflected in her memorandum to the third-level supervisor and the GDASH.

IAF, Tab 6 at 31-32. According to her meeting notes and hearing testimony, the

third-level supervisor discussed the second-level supervisor’s defense of the

appellant when summoned to a meeting with the GDASH and the Senior Advisor

to consider terminating the appellant. HT at 335-36 (testimony of the third-level

supervisor); I-3 AF, Tab 12 at 4. However, she described the GDASH and the

Senior Advisor as insisting that the appellant’s actions were incorrect and

contrary to law. HT at 335-36 (testimony of the third-level supervisor); I-3 AF,

Tab 12 at 4.

¶31 The Senior Advisor to the GDASH, who testified that she first raised the

idea of terminating the appellant in the aforementioned meeting, indicated that

she had many years of experience within the agency but no experience working

with OMHP. HT at 274, 276, 279, 284-85 (testimony of the Senior Advisor).

Nevertheless, she concluded that the appellant should be terminated based on the

Oregon complaint alone, without additional investigation or information,

including whether the appellant had simply followed existing policy and

instructions from her chain of command. Id. at 275-76, 279-82, 291-92

(testimony of the Senior Advisor). The Senior Advisor disputed the third-level

supervisor’s meeting notes and testimony, asserting that the third-level supervisor

did not disclose that the appellant’s chain of command approved of the

appellant’s conduct. Compare id. at 290-91, 298-302, with HT at 335-36

(testimony of the third-level supervisor); IAF, Tab 6 at 31-32; I-3 AF, Tab 12

at 4. She instead described the third-level supervisor as a passive participant in

the meeting who essentially agreed to carry out the termination without

explanation or objection. HT at 302, 304-06 (testimony of the Senior Advisor).

Nonetheless, the Senior Advisor suggested that the circumstances of the

termination were somewhat unusual because a first- or second-level supervisor

would ordinarily be involved, but she indicated that it was not required.

HT at 312-14, 323 (testimony of the Senior Advisor).

¶32 The GDASH indicated that she was not an expert in the field and she had a

limited understanding of OMHP policy. HT at 212-15 (testimony of the

GDASH). She also acknowledged that the appellant’s second-level supervisor

had broad discretion to set OMHP policy. Id. at 222. However, the GDASH

could not recall the second-level supervisor’s memorandum defending the

appellant’s actions, which was addressed to the GDASH and assured her that the

appellant had acted appropriately. Id. at 179-80; IAF, Tab 6 at 31-32.

Similarly, the GDASH could not recall pertinent details of the termination

meeting with the appellant’s third-level supervisor and the Senior Advisor,

including whether there was a discussion about the second-level supervisor’s

defense of the appellant. Compare HT at 179-80, 195-97 (testimony of the

GDASH), with IAF, Tab 6 at 31-32; I-3 AF, Tab 12 at 4. The GDASH did,

however, recall coming to the conclusion that the appellant’s actions were

grounds for dismissal. HT at 185-91, 195-99 (testimony of the GDASH).

The GDASH indicated that she came to this conclusion after reviewing the

Oregon complaint and consulting with others, such as the appellant’s third-level

supervisor, her Senior Advisor, and the Acting Associate General Counsel.

Id. at 186-87, 214-15.

¶33 The Acting Associate General Counsel attended a meeting (different than

the one discussed above) with the Senior Advisor and the appellant’s third-level

supervisor to discuss the Oregon complaint. I-3 AF, Tab 12 at 4; HT at 324

(testimony of the Senior Advisor). During the hearing, this Acting Associate

General Counsel testified that, although her office was the program counsel for

OMHP, OMHP did not regularly seek their counsel during the relevant time

period. HT at 394-95, 406-09 (testimony of the Acting Associate General

Counsel). As a result, OMHP tended to take actions that she was late to learn

about, and she found many of those actions concerning. Id. at 405-09.

She testified that when the Oregon complaint was brought to her attention, she

was again surprised and concerned. Id. at 396-401. However, to the extent that

her concern involved the appellant, it largely centered on what the appellant

might have shared during a conference call referenced in the Oregon complaint.

Id. at 401-05, 438-39. She described this unknown as warranting follow-up to

determine whether the appellant’s information sharing was “exceedingly bad”

versus something that creates “an appearance of impropriety” and “does not

appear to be consistent with what [the agency] should be releasing.” Id. at 439.

Yet, the Acting Associate General Counsel did not know whether any follow-up

actually occurred. Id. at 427-28, 439-40. She also acknowledged that she did not

know whether the appellant’s information sharing was consistent with existing

OMHP policy or her supervisor’s instructions. Id. at 413, 427-30, 435-36,

438-39.

¶34 Approximately 1 week after the meetings discussed above, without

any further investigation or inquiry, the agency terminated the appellant’s

appointment. Compare I-3 AF, Tab 12 at 4-5 (emails indicating that the

termination meetings occurred on December 11, 2017), with IAF, Tab 1 at 9-10

(December 19, 2017 termination notice), and HT at 291-93 (testimony of the

Senior Advisor). Although the GDASH, the Senior Advisor, and the Acting

Associate General Counsel all testified that they did not realize the appellant’s

second-level supervisor had authorized the appellant’s information sharing, they

nevertheless indicated that the appellant’s termination remained warranted

because the appellant should have known not to follow those instructions. HT

at 209 (testimony of the GDASH), 281-82, 293-94 (testimony of the Senior

Advisor), 414-17 (testimony of the Associate General Counsel). The

administrative judge disagreed, finding no persuasive support for that conclusion.

ID at 44 n.68.

¶35 Unlike his determination that the appellant, her first-level supervisor, and

her second-level supervisor were credible witnesses, the administrative judge

expressed varying degrees of reservation concerning the credibility of those

involved in the appellant’s termination. He found the Acting Associate General

Counsel’s testimony to be largely credible, though hyperbolic at times. ID at 35

n.58, 38 n.63. He found the appellant’s third-level supervisor to be somewhat

credible but concluded that she colored her testimony to try to justify the

appellant’s termination and her involvement in the same. ID at 34 n.56.

The administrative judge found that the Senior Advisor and the GDASH were not

credible. ID at 26 n.43, 29-30 n.47. He determined that the Senior Advisor’s

memory was foggy regarding a number of relevant facts and that the justifications

she offered based on her own experience to support her conclusion that the

appellant had engaged in misconduct were “somewhat misleading and unsound.”

ID at 29-30 n.47. He also made demeanor-based credibility findings regarding

the GDASH. ID at 26 n.43. In reaching these conclusions, the administrative

judge appropriately considered the Hillen factors and relied on his observations of

the witnesses’ demeanor. Accordingly, we defer to his credibility findings. See

Purifoy, 838 F.3d at 1373; Haebe, 288 F.3d at 1301; Hillen, 35 M.S.P.R. at 458.

¶36 On review, the agency argues that the appellant’s termination was warranted

and that the administrative judge erred by concluding otherwise. PFR File, Tab 1

at 6-7, 14-15. The agency notes that the appellant’s first-level supervisor 5

indicated that Oregon’s threat to withdraw from its partnership with the agency

was unusual. Id. at 6 (citing HT at 244, 255-56 (testimony of the first-level

supervisor)). However, the testimony that the agency references merely describes

Oregon’s threat to withdraw from its partnership with the agency as unusual;

it does not suggest that the appellant acted unusually or inappropriately.

¶37 The agency also recounts how the Acting Associate General Counsel

testified that the sharing of information described in the Oregon complaint was

In making this argument, the agency described this individual as the appellant’s

second-level supervisor. PFR File, Tab 1 at 6. However, upon further review, it

appears that the agency intended to refer to the appellant’s first-level supervisor, not her

second-level supervisor, given the testimony referenced.

both unusual and something the agency should not do. 6 PFR File, Tab 1

at 6-7, 14-15 (citing HT at 395-96, 398, 429 (testimony of the Acting Associate

General Counsel)). But again, this same official also indicated that she was not

aware of any specific prohibition against the appellant’s information sharing and

she did not know whether OMHP policy permitted the same; she instead

expressed her opinion that OMHP policies and the appellant’s chain of command

should not have authorized the appellant’s information sharing. HT at 428-30,

435-38 (testimony of the Acting Associate General Counsel). In other words, the

Acting Associate General Counsel expressed disagreement with the policies and

decisions of the OMHP Administrator, another attorney who had acted within her

designated authority. Moreover, as previously mentioned, the Acting Associate

General Counsel was most concerned with what the appellant may have shared

during a conversation referenced in the Oregon complaint, yet the agency failed

to conduct any substantive follow-up about the same. Id. at 439.

¶38 The agency next argues that the appellant’s sharing of information

regarding Oregon was not comparable to how OMHP handled the situation with

Michigan because only Oregon responded by threatening to withdraw from

their partnership. PFR File, Tab 1 at 7 (citing HT at 151-52 (testimony of the

second-level supervisor), 257 (testimony of the first-level supervisor)).

However, we are not persuaded that the different reactions from these two state

partners are particularly relevant. What is most relevant is evidence that OMHP

handled these state partners similarly.

¶39 In sum, the evidence of record supports a finding that the appellant acted in

accordance with past practices by OMHP, existing OMHP policy, and the

instructions of her second-level supervisor, the Administrator of OMHP.

Nevertheless, roughly 3 months after the Oregon complaint, officials who lacked

or ignored those facts convened to abruptly terminate the appellant’s

The agency’s petition for review states that this individual found the appellant’s

information sharing “very usual,” but it is apparent that the agency intended to state that

she found the information sharing unusual. PFR File, Tab 1 at 6.

appointment, without any investigation and without consulting the appellant’s

first- or second-level supervisors.

The GDASH was responsible for the appellant’s termination.

¶40 As the administrative judge discussed, there is some conflicting evidence

regarding the degree to which the GDASH—the only political appointee involved

in this matter—was responsible for the appellant’s termination. 7

ID at 24-25, 31-33 & n.51, 56. Again, the appellant’s second-level supervisor

responded to the Oregon complaint by issuing an internal memorandum to the

appellant’s third-level supervisor and the GDASH, defending the appellant’s

actions and assuring them that the appellant had not shared any confidential or

sensitive information. IAF, Tab 6 at 31-32. The third-level supervisor

testified that she believed this explanation. HT at 332-33, 335 (testimony of the

third-level supervisor). However, she was reportedly convinced otherwise by

the GDASH, her Senior Advisor, and the Acting Associate General Counsel.

E.g., I-3 AF, Tab 12 at 4; HT at 276-79 (testimony of the Senior Advisor), 335-39

(testimony of third-level supervisor), 412-15 (testimony of the Acting Associate

General Counsel). The third-level supervisor initially indicated that she made the

termination decision herself but later testified that she was instructed to terminate

the appellant’s appointment during a meeting with the GDASH, the Senior

Advisor, and an Employee Labor Relations Specialist. HT at 343-44, 389-91

(testimony of the third-level supervisor).

¶41 The Senior Advisor characterized the third-level supervisor as a passive

participant when summoned to the meeting to discuss the appellant’s termination.

HT at 302, 304-06 (testimony of the Senior Advisor). She also indicated that she,

herself, first raised the idea of termination. Id. at 276, 279. The GDASH denied

directing the third-level supervisor to terminate the appellant’s appointment but

Unlike the GDASH, who was a Republican political appointee, the political

affiliations or preferences of others involved in the appellant’s termination are not

apparent based on the record.

acknowledged that she consented to the action, was accountable for it, and was

happy to take responsibility for it. HT at 188-91 (testimony of the GDASH).

¶42 After reviewing these accounts, the administrative judge concluded that the

GDASH, in consultation with the Senior Advisor and an Employee Labor

Relations Specialist, was the agency official who made the termination decision

and directed the third-level supervisor to carry it out. ID at 38. He noted that

others were involved, but the GDASH was the only official with the authority to

direct the third-level supervisor to act. ID at 38 n.64. As mentioned above, he

also found that the third-level supervisor colored her testimony in an attempt to

justify the GDASH’s directive, notwithstanding her own concerns about the

legitimacy and abnormality of the termination. ID at 33 n.56.

¶43 On review, the agency does not dispute the GDASH’s responsibility over

the termination, and we discern no reason to disturb the administrative judge’s

conclusion on the point. The GDASH called a meeting with her subordinate—the

third-level supervisor—for the purpose of recommending that she effectuate the

appellant’s probationary termination. The third-level supervisor abruptly did so,

just days later, in the unusual manner described above.

The administrative judge correctly found that the GDASH’s

testimony denying that she knew of the appellant’s political

affiliation was not credible.

¶44 It is undisputed that the appellant has extensive personal and professional

ties to the Democratic Party, which were included in her resume

and discussed during an office-wide introduction on her first day of work. I -3

AF, Tab 7 at 24-25; HT at 10-15 (testimony of the appellant), 111-12 (testimony

of the second-level supervisor). It is also undisputed that, after her appointment,

the head of an industry group, MHARR, sent at least one written complaint to the

agency about the political leanings of the appellant. IAF, Tab 6 at 15-17; I-3 AF,

Tab 9 at 98-99; HT at 112-13, 240-43 (testimony of the second-level supervisor).

¶45 The appellant’s first-level supervisor testified that she knew the appellant

previously held a political appointment. I-3 AF, Tab 7 at 24-25; HT at 228

(testimony of the first-level supervisor). Her second-level supervisor testified

that the appellant gave a full history of her background, including her political

affiliation with the Democratic Party, during an office-wide meet-and-greet event

on the appellant’s first day of work at the agency. HT at 111-12 (testimony of the

second-level supervisor).

¶46 In contrast, the officials involved in the termination all denied knowing of

the appellant’s political affiliation and indicated that they could not recall seeing

anything that would have revealed her political affiliation. HT at 210-12

(testimony of the GDASH), 284 (testimony of the Senior Advisor),

372 (testimony of the third-level supervisor), 423 (testimony of the Acting

Associate General Counsel). Despite some indication that the third-level

supervisor may have been involved in the office-wide introduction where the

appellant discussed her background, the third-level supervisor said she did not

recall the meeting. HT at 111-12 (testimony of the second-level supervisor),

228-30 (testimony of the first-level supervisor), 328 (testimony of the third-level

supervisor). She also could not recall any MHARR complaint targeting the

appellant but acknowledged seeing complaint letters from MHARR, including

some “attacking” the appellant’s second-level supervisor. HT at 328-30

(testimony of the third-level supervisor).

¶47 Like the third-level supervisor, the Acting Associate General Counsel

acknowledged seeing MHARR complaints targeting the appellant’s second-level

supervisor but could not recall whether any targeted the appellant. HT at 423-26

(testimony of the Acting Associate General Counsel). Generally, she testified

that the MHARR complaints against the second-level supervisor were well known

and that she “would be shocked” if the GDASH was not aware of them. Id.

at 426-27. The Senior Advisor could not recall whether she had seen any letters

from MHARR. HT at 287 (testimony of the Senior Advisor).

¶48 The GDASH testified that she was familiar with MHARR sending many

letters to the agency, and she also acknowledged having meetings with the head

of MHARR. 8 HT at 176-78, 202-03, 218-19 (testimony of the GDASH). Yet, she

indicated that she could not recall any specific MHARR complaint about the

appellant, provided no details about her meetings with the head of MHARR, and

denied knowing anything about the appellant’s political affiliation. Id. at 211-12,

218-19, 221-22. The administrative judge did not find this testimony credible,

instead concluding that the GDASH knew of the appellant’s political affiliation

during the relevant period. ID at 26 n.43, 40-41. Specifically, he found that her

testimony that she did not recall any facts concerning her interactions with the

head of MHARR or the substance of his numerous letters to “stretch the bounds

of credulity.” ID at 41. He reached this conclusion based upon numerous factors,

including the GDASH’s demeanor and the inherent improbability of her

testimony because MHARR’s complaints were so well known, frequent, and

likely to be raised during the meetings between the GDASH and the head of

MHARR. ID at 26 n.43, 40-41.

¶49 On review, the agency argues that the administrative judge erred in finding

that the GDASH was aware of the appellant’s political affiliation. PFR File,

Tab 1 at 11-14. The agency asserts that there is no evidence to prove that the

GDASH reviewed the appellant’s resume, that she was present during the

meet-and-greet event in which the appellant discussed her background, or that she

reviewed any specific MHARR letter complaining about the appellant’s

politics. Id.

¶50 We are not persuaded by the agency’s arguments. There is ample evidence

that the head of MHARR was quite focused on the politics of the appellant and

her second-level supervisor—so much so that he regularly lodged complaints

about them that were well known and widely distributed. HT at 18-19 (testimony

It is unclear whether any other officials were present at the meetings between the

GDASH and the head of MHARR. The GDASH’s Senior Advisor testified that she

could not recall any such meetings. HT at 287 (testimony of the Senior Advisor).

of the appellant), 156-58 (testimony of the second-level supervisor), 240-43

(testimony of the first-level supervisor), 329-31 (testimony of the third -level

supervisor), 449-51 (testimony of the Acting Associate General Counsel). The

agency has not articulated a sufficiently sound reason for overturning the

administrative judge’s determination that it is improbable that the GDASH was

unaware of the appellant’s political affiliation, either from her review of

MHARR’s correspondence or from her direct meetings with the head of MHARR.

See Purifoy, 838 F.3d at 1373; Haebe, 288 F.3d at 1301.

The circumstances of the second-level supervisor’s reassignment are

relevant to this appeal.

¶51 The record shows that, the day before the appellant’s probationary

termination, the GDASH reassigned the appellant’s second-level supervisor to an

administrative position. The agency argued below that the second-level

supervisor’s reassignment is not relevant to the instant appeal. I-2 AF, Tab 2

at 26-27. However, we agree with the administrative judge that it is both relevant

and material. ID at 47 n.73. Evidence of similarly situated individuals whom the

employer treated similarly is commonly known as “me too” evidence, and its

relevance and admissibility “depends on many factors, including how closely

related the evidence is to the plaintiff’s circumstances and theory of the case.”

Sprint/United Management Co. v. Mendelsohn , 552 U.S. 379, 388 (2008); see

Didinger v. Allsteel, Inc., 853 F.3d 414, 424 (8th Cir. 2017).

¶52 In this case, both the appellant and her second-level supervisor were targets

of MHARR’s partisan political complaints, the official who decided to reassign

the second-level supervisor was the same official who decided to terminate the

appellant’s appointment, these personnel actions were taken almost

simultaneously, neither personnel action was subject to the kind of deliberation

that might normally be expected, and, as with the termination, the agency’s

justification for the reassignment was weak at best. ID at 25-26 & n.43, 47-48;

HT at 109, 131, 156 (testimony of the second-level supervisor), 181-84

(testimony of the GDASH), 316, 323 (testimony of the Senior Advisor), 387-88

(testimony of the third-level supervisor). Furthermore, the evidence closely

correlates with and supports the appellant’s theory of the case, i.e., the GDASH

acquiesced to pressure from MHARR to get rid of certain OMHP officials,

including the appellant, based on their political affiliation. On petition for

review, the agency argues that, for various reasons, the second-level supervisor’s

reassignment does not suggest partisan political discrimination against the

appellant. PFR File, Tab 1 at 8-10. We have considered the agency’s arguments,

but the agency has not identified any facts or circumstances that would alter our

assessment of the reassignment and how it relates to the appellant’s case or our

overall conclusion that the appellant’s termination was based on partisan political

reasons.

¶53 To conclude, the agency has presented no basis for disturbing the

administrative judge’s findings of fact. We therefore affirm the initial decision.

The evidence supports the conclusion that the appellant’s termination was not

justified, an innocent mistake, or otherwise excusable. Instead, the record before

us indicates that, more likely than not, the termination was impermissibly based

on partisan political reasons. The appellant proved, by preponderant evidence,

that partisan political reasons were a but-for cause of her probationary

termination. Accordingly, the probationary termination is reversed.

ORDER

¶54 We ORDER the agency to cancel the probationary termination and to

retroactively restore the appellant effective December 19, 2017. See Kerr v.

National Endowment for the Arts, 726 F.2d 730 (Fed. Cir. 1984). The agency

must complete this action no later than 20 days after the date of this decision.

¶55 We also ORDER the agency to pay the appellant the correct amount of back

pay, interest on back pay, and other benefits under the Office of Personnel

Management’s regulations, no later than 60 calendar days after the date of this

decision. We ORDER the appellant to cooperate in good faith in the agency’s

efforts to calculate the amount of back pay, interest, and benefits due, and to

provide all necessary information the agency requests to help it carry out the

Board’s Order. If there is a dispute about the amount of back pay, interest due,

and/or other benefits, we ORDER the agency to pay the appellant the undisputed

amount no later than 60 calendar days after the date of this decision.

¶56 We further ORDER the agency to tell the appellant promptly in writing

when it believes it has fully carried out the Board’s Order and of the actions it has

taken to carry out the Board’s Order. The appellant, if not notified, should ask

the agency about its progress. See 5 C.F.R. § 1201.181(b).

¶57 No later than 30 days after the agency tells the appellant that it has fully

carried out the Board’s Order, the appellant may file a petition for enforcement

with the office that issued the initial decision in this appeal if the appellant

believes that the agency did not fully carry out the Board’s Order. The petition

should contain specific reasons why the appellant believes that the agency has not

fully carried out the Board’s Order, and should include the dates and results of

any communications with the agency. 5 C.F.R. § 1201.182(a).

¶58 For agencies whose payroll is administered by either the National Finance

Center of the Department of Agriculture (NFC) or the Defense Finance and

Accounting Service (DFAS), two lists of the information and documentation

necessary to process payments and adjustments resulting from a Board decision

are attached. The agency is ORDERED to timely provide DFAS or NFC with all

documentation necessary to process payments and adjustments resulting from the

Board’s decision in accordance with the attached lists so that payment can be

made within the 60-day period set forth above.

¶59 This is the final decision of the Merit Systems Protection Board in this

appeal. Title 5 of the Code of Federal Regulations, section 1201.113 (5 C.F.R.

§ 1201.113).

NOTICE TO THE APPELLANT

REGARDING YOUR RIGHT TO REQUEST

ATTORNEY FEES AND COSTS

You may be entitled to be paid by the agency for your reasonable attorney

fees and costs. To be paid, you must meet the requirements set out at Title 5 of

the United States Code (U.S.C.), sections 7701(g), 1221(g), or 1214(g). The

regulations may be found at 5 C.F.R. §§ 1201.201, 1202.202, and 1201.203. If

you believe you meet these requirements, you must file a motion for attorney fees

and costs WITHIN 60 CALENDAR DAYS OF THE DATE OF THIS DECISION.

You must file your motion for attorney fees and costs with the office that issued

the initial decision on your appeal.

NOTICE OF APPEAL RIGHTS 9

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

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.

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. 10 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

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.