Opinion

Dayo Stevens v. Department of Veterans Affairs

Court: Merit Systems Protection Board
Filed: Mar 28, 2024
Status: Unpublished
Cited by: 0 cases
Authority: More cited than 15.7%

The opinion

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

DAYO STEVENS, DOCKET NUMBER

Appellant, PH-0714-22-0158-I-1

DEPARTMENT OF VETERANS DATE: March 28, 2024

AFFAIRS,

Agency.

THIS FINAL ORDER IS NONPRECEDENTIAL 1

Dayo Stevens , Georgetown, Delaware, pro se.

Nelda R. Davis , Esquire, Baltimore, Maryland, 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

denied his affirmative defense of national origin discrimination and implicitly

dismissed his removal appeal as moot. 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

A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

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 explicitly DISMISS the removal appeal as moot, we AFFIRM the

initial decision.

The Board may dismiss an appeal as moot if the appealable action is

canceled or rescinded by the agency. Fernandez v. Department of Justice,

105 M.S.P.R. 443, ¶ 5 (2007). For the appeal to be deemed moot, the employee

must have received all of the relief that he could have received if the matter had

been adjudicated and he had prevailed. Id. When an agency cancels an action

after an appellant files a Board appeal and the appellant has a viable outstanding

compensatory damages claim, such as a discrimination claim, the appeal is not

mooted by the cancellation. See Currier v. U.S. Postal Service, 72 M.S.P.R. 191,

195-97 (1996).

On review, the appellant challenges the administrative judge’s findings

regarding his affirmative defense of national origin discrimination, and he asserts

that he is entitled to compensatory damages for the pain and suffering he endured

in connection with the removal. Petition for Review (PFR) File, Tab 1.

Compensatory damages are typically not available in connection with a removal

appeal unless the appellant prevails on an affirmative defense. 2 See Currier,

In any event, the appellant has waived this argument because he did not timely raise it

before the administrative judge. Initial Appeal File (IAF), Tab 21 at 1 n.1, 6 (noting

that, aside from the discrimination claim, the appellant did not dispute that he was

72 M.S.P.R. at 195-96 (explaining that, in the absence of an affirmative defense

such as a discrimination claim, compensatory damages are not available in

connection with an adverse action appeal before the Board). The appellant’s

arguments concerning his national origin discrimination claim are not clear. To

the extent the appellant is asserting that the removal action was discriminatory,

we agree with the administrative judge, for the reasons stated in the initial

decision, that there is no evidence that the agency considered the appellant’s

national origin in connection with proposing or sustaining the removal. Initial

Appeal File (IAF), Tab 28, Initial Decision (ID) at 3-13. The appellant’s

arguments on review provide no basis to disturb this finding. 3 See Crosby v. U.S.

Postal Service, 74 M.S.P.R. 98, 106 (1997); Broughton v. Department of Health

& Human Services, 33 M.S.P.R. 357, 359 (1987). To the extent the appellant is

asserting that he was subjected to harassment, separate and apart from the

removal, the Board lacks jurisdiction over a harassment claim unless it is

connected to an otherwise appealable action. See Lethridge v. U.S. Postal

Service, 99 M.S.P.R. 675, ¶¶ 8-9 (2005) (holding that claims of discrimination

and harassment are within the jurisdiction of the Board only when they are related

to an otherwise appealable personnel action). Based on the foregoing, we deny

returned to the status quo ante); see McCarty v. Department of the Navy , 67 M.S.P.R.

177, 180-81 (1995) (finding that the appellant failed to preserve an objection for review

when he failed to object to the administrative judge’s ruling contained in a prehearing

conference order).

We have not considered the documents filed with the appellant’s petition for review.

PFR File, Tab 1 at 5-13, 19. Under 5 C.F.R. § 1201.115, the Board generally will not

consider evidence submitted for the first time with a petition for review absent a

showing that it was unavailable before the record was closed before the administrative

judge despite the party’s due diligence. Avansino v. U.S. Postal Service, 3 M.S.P.R.

211, 213-14 (1980). Some of the documents were filed before the administrative judge

and are not new, including an excerpt from an agency handbook, which was discussed

by the administrative judge in the initial decision. ID at 10-11 n.4; see Meier v.

Department of the Interior, 3 M.S.P.R. 247, 256 (1980). To the extent any of the

documents in the petition for review are not already in the record, the appellant has not

alleged that they were unavailable before the record closed judge despite his due

diligence. See Avansino, 3 M.S.P.R. at 213-14; 5 C.F.R. § 1201.115.

the petition for review and affirm the initial decision, as modified to explicitly

dismiss the removal appeal as moot.

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

within 60 calendar days of the date of issuance of this decision. 5 U.S.C.

§ 7703(b)(1)(A).

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.

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