Opinion

Eugene Johnson v. Department of the Navy

Court: Merit Systems Protection Board
Filed: Apr 15, 2024
Status: Unpublished
Cited by: 0 cases
Authority: More cited than 15.8%

The opinion

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

EUGENE JOHNSON, DOCKET NUMBER

Appellant, PH-0752-19-0206-I-1

DEPARTMENT OF THE NAVY, DATE: April 15, 2024

Agency.

THIS FINAL ORDER IS NONPRECEDENTIAL 1

Clark D. Browne , Clinton, Maryland, for the appellant.

Andrew D. Linenberg , Esquire, and Brian J. Sheppard , Esquire,

Washington, D.C., for the agency.

Darian Pinkston-Clark and Roburt C. Yale , Washington Navy Yard, D.C.,

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

sustained his reduction in grade. On petition for review, the appellant argues that

the agency failed to prove the failure to follow reporting instructions charge and

A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

one of the specifications of the unacceptable performance charge. Petition for

Review (PFR) File, Tab 1 at 3. He also reasserts that the agency improperly

failed to place him on a performance improvement plan, failed to send him to

“Supervisory School,” and reduced his grade in reprisal for his prior equal

employment opportunity (EEO) activity. Id. at 2. 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 provide the appropriate standard for EEO reprisal claims, we

AFFIRM the initial decision.

The administrative judge correctly sustained the failure to follow reporting

instructions charge. Initial Appeal File (IAF), Tab 17, Initial Decision (ID)

at 3-4. In sustaining the unacceptable performance charge, she sustained 13 of

the 16 specifications. ID at 4-12. Although we agree with her decision to sustain

11 of those 13 specifications, it is not clear to us that the record supports her

decision to sustain specifications P and R, which concern the appellant’s failure

to respond to emails from his supervisor regarding his subordinates’ failure to

attend training and to refuel vehicles. ID at 11-12; IAF, Tab 10 at 11. In the

initial decision, the administrative judge considered the emails to which the

agency claims the appellant failed to respond, the proposal notice, and the

appellant’s failure to dispute these specifications. ID at 11-12; IAF, Tab 12 at 30,

32. However, because the specifications allege that the appellant failed to

respond to the emails, the emails themselves cannot prove that the appellant

failed to respond. IAF, Tab 12 at 30, 32. Regardless, proof of one or more, but

not all, of the supporting specifications is sufficient to sustain a charge. Alvarado

v. Department of the Air Force, 103 M.S.P.R. 1, ¶ 16 (2006), aff’d, 626 F. Supp.

2d 1140 (D.N.M. 2009), aff’d, 490 F. App’x 932 (10th Cir. 2012). Accordingly,

because the administrative judge appropriately sustained 11 other specifications,

we agree with her decision to sustain the unacceptable performance charge.

In concluding that the appellant failed to establish his claim of reprisal due

to his filing an EEO complaint based on his race and age, the administrative judge

found that “there was nothing to support finding a genuine nexus between the

alleged retaliation and the demotion action.” ID at 17. On review, the appellant

reasserts this claim. PFR File, Tab 1 at 2. Although we agree with the

administrative judge’s ultimate conclusion that the appellant failed to establish

this affirmative defense, we clarify here the proper standard for EEO reprisal

claims based on race and age.

An appellant may prove an affirmative defense of retaliation for Title VII

activity by showing that his protected activity was at least a motivating factor,

i.e., played any part in the agency’s action. Pridgen v. Office of Management and

Budget, 2022 MSPB 31, ¶¶ 20-22. The appellant may meet this burden by

submitting any combination of direct or indirect evidence, including evidence of

pretext, comparator evidence, and evidence of suspicious timing or other actions

or statements that, taken alone or together, could raise an inference of retaliation.

Id., ¶ 22.

Here, it does not appear that the EEO complaint is included in the record,

and therefore, it is not clear when the appellant filed it. Regarding the deciding

official, the appellant has neither alleged nor proven that he was aware of the

appellant’s EEO complaint. IAF, Tab 9 at 3, Tab 16 at 1; PFR File, Tab 1 at 2.

Further, although the proposing official stated in an affidavit that he was aware of

the EEO complaint, he nonetheless did not state when he became aware of it. 2

IAF, Tab 16 at 30. Additionally, the appellant’s supervisor, who could have had

influence over the proposal action given that many of the specifications of the

unacceptable performance charge concerned the appellant’s performance of duties

under his supervision, stated that he was not aware of the EEO complaint until

after the agency proposed the appellant’s reduction in grade. Id. at 15. Thus, we

find that the appellant has failed to prove that any agency official responsible for

his grade reduction had knowledge of the EEO complaint at issue. Accordingly,

we find that the appellant failed to establish that his EEO complaint was a

motivating factor in his reduction in grade, and we modify the initial decision in

that regard. Because we affirm the administrative judge’s finding that the

appellant failed to show that any prohibited consideration was a motivating factor

in the agency’s action, we need not resolve the issue of whether the appellant

proved that discrimination or retaliation was a “but-for” cause of the agency’s

decisions. See Pridgen, 2022 MSPB 31, ¶¶ 20-22, 29-33.

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

The date of the proposing official’s declaration is January 28, 2019. IAF, Tab 16

at 31. Thus, we cannot conclude that, just because he stated that he was aware of the

EEO complete on that date, he also was aware of the EEO complaint prior to the

issuance of the proposed agency action on September 17, 2018. IAF, Tab 10 at 7.

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.

provide legal advice on which option is most appropriate for your situation and

the rights described below do not represent a statement of how courts will rule

regarding which cases fall within their jurisdiction. If you wish to seek review of

this final decision, you should immediately review the law applicable to your

claims and carefully follow all filing time limits and requirements. Failure to file

within the applicable time limit may result in the dismissal of your case by your

chosen forum.

Please read carefully each of the three main possible choices of review

below to decide which one applies to your particular case. If you have questions

about whether a particular forum is the appropriate one to review your case, you

should contact that forum for more information.

(1) Judicial review in general . As a general rule, an appellant seeking

judicial review of a final Board order must file a petition for review with the U.S.

Court of Appeals for the Federal Circuit, which must be received by the court

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

§ 7703(b)(1)(A).

If you submit a petition for review to the U.S. Court of Appeals for the

Federal Circuit, you must submit your petition to the court at the

following address:

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

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,

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