Opinion

Minchih Chen v. National Credit Union Administration

Court: Merit Systems Protection Board
Filed: Apr 16, 2024
Status: Unpublished
Cited by: 0 cases
Authority: More cited than 15.8%

finding nexus between the appellant’s prolonged AWOL and the efficiency of the service because absence, by its very nature, disrupts the efficiency of the service

How later courts described this case

finding nexus between the appellant’s prolonged AWOL and the efficiency of the service because absence, by its very nature, disrupts the efficiency of the service

Written by the judges who cited it.

The opinion

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

MINCHIH JULIE CHEN, DOCKET NUMBER

Appellant, NY-0752-21-0066-I-1

NATIONAL CREDIT UNION DATE: April 16, 2024

ADMINISTRATION,

Agency.

THIS FINAL ORDER IS NONPRECEDENTIAL 1

Elaine Fitch , Esquire, Washington, D.C., for the appellant.

Alex R. Roberson , Alexandria, Virginia, 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 her removal for excessive absence and absence without leave (AWOL).

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

A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

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 find that the agency

proved its AWOL charge because it properly denied the appellant’s leave without

pay (LWOP) request, correct the analytical framework applied to the appellant’s

Family and Medical Leave Act of 1993 (FMLA) retaliation claim, and clarify the

administrative judge’s findings regarding the appellant’s reasonable

accommodation claim and whistleblower reprisal claim, we AFFIRM the initial

decision.

BACKGROUND

The appellant was employed as a CU-12 Credit Union Examiner with the

agency. Initial Appeal File (IAF), Tab 7 at 21. From September 30 to

December 12, 2019, the appellant was on FMLA-protected LWOP due to

“postpartum related issues,” such as depression, anxiety, and stress. Id. at 59-60,

62, 132-33. After exhausting her FMLA-protected leave, the appellant submitted

medical notes on an almost-monthly basis stating that she needed an extension of

LWOP to the following month to continue treatment for her medical conditions.

Id. at 50-52, 57-59, 81. The agency granted the appellant’s requests, and she was

placed in a long-term LWOP status. Id. at 133-37. However, in a letter dated

July 17, 2020, the appellant’s supervisor requested more information regarding

her ongoing absence, explaining that the agency had granted her 1,248 hours of

LWOP and it could no longer tolerate the appellant’s prolonged absence, and

ordered her to return to work on July 27, 2020, warning her that failure to do so

may result in adverse action, including removal. Id. at 48-49.

The appellant responded to the letter, explaining, among other things, that

she had to strictly isolate because she suffers from chronic obstructive pulmonary

disease (COPD) and was at high risk for COVID-19; that the self-isolation

exacerbated her depression, anxiety, and stress; and that she would probably not

be able to return to work until 2021 due to COVID-19. Id. at 44-45. In response,

the agency granted the appellant LWOP through July 31, 2020, but ordered her to

return to duty on August 3, 2020. Id. at 40. When the appellant did not return to

duty on August 3, 2020, the agency started charging her with AWOL, and then

proposed her removal on October 26, 2020, based on charges of excessive

absence and AWOL. Id. at 28-32, 137-38. After reviewing the evidence,

including a medical note from the appellant stating that she could return to work

in September 2021, the deciding official sustained both charges, removing the

appellant effective February 15, 2021. Id. at 21-27, 33.

The appellant filed a Board appeal, and after holding a hearing, the

administrative judge issued an initial decision affirming the removal. IAF,

Tab 31, Initial Decision (ID). First, the administrative judge found that the

agency proved the merits of both charges, established nexus, and established that

removal was within the bounds of reasonableness. ID at 10-31. Next, with

respect to the appellant’s affirmative defenses, the administrative judge found

that she failed to establish her claim of disability discrimination because she

failed to establish that she was an otherwise qualified individual entitled to

reasonable accommodation, and she failed to establish a prima facie case of

disability discrimination or that her disability was a motivating factor in her

removal. 2 ID at 32-43. With respect to the appellant’s claim of FMLA

The administrative judge also found that, even if the appellant had established a prima

facie case of disability discrimination, the agency articulated a legitimate

nondiscriminatory reason for her removal, and she had failed to establish that this

retaliation, the administrative judge found that the appellant failed to establish

there was a causal connection between her invocation of FMLA-protected leave

and her removal. ID at 43-45. Finally, regarding the appellant’s whistleblower

reprisal claim, the administrative judge found that the appellant failed to establish

that she engaged in a protected activity when she requested reasonable

accommodation, and she failed to establish that she made a protected disclosure

in two emails sent to the deciding official on July 20, 2020, and July 31, 2020.

ID at 45-49.

The appellant filed a petition for review arguing, among other things, that

the agency’s charges should not have been sustained 3 and that the agency failed to

reasonably accommodate her and retaliated against her for whistleblowing.

Petition for Review (PFR) File, Tab 9 at 18-27, 29-36. The agency filed a

response in opposition to the appellant’s petition for review, and the appellant

replied to the response. 4 PFR File, Tabs 13-14.

reason was mere pretext for discrimination. ID at 43.

Although the appellant’s subheading in her petition for review appears to challenge

the administrative judge’s finding of nexus, the contents of the argument challenged the

merits of the agency’s charges. PFR File, Tab 9 at 24-27. Nevertheless, to the extent

that the appellant challenges the administrative judge’s finding of nexus, it is well

established that attendance-related misconduct impacts the efficiency of the service, and

thus, the agency established nexus. See Davis v. Veterans Administration, 792 F.2d

1111, 1113 (Fed. Cir. 1986) (finding nexus between the appellant’s prolonged AWOL

and the efficiency of the service because absence, by its very nature, disrupts the

efficiency of the service).

To the extent that the appellant argues that her rights were prejudiced because the

Office of the Clerk of the Board denied her request to expand the page limit of her

petition for review, we discern no reason that the appellant could not present her

arguments in the limits provided in 5 C.F.R. § 1201.114(h). PFR File, Tab 9 at 9 n.1.

Additionally, we acknowledge that the Board granted the appellant’s motion on review

to correct the hearing transcript, and the agency failed to respond to the Board’s order

granting the motion. PFR File, Tabs 15-16. However, because the corrections

identified by the appellant were minor and typographical in nature and they do not

change the substance of the transcript, we do not address this issue further. PFR File,

Tab 15.

ANALYSIS

Although the administrative judge properly affirmed the agency’s removal

action, there are several points in the initial decision that require modification or

clarification. First, while we find that the administrative judge properly sustained

the excessive absence charge, we modify the initial decision to find that the

agency proved the AWOL charge because it established that it reasonably denied

the appellant’s LWOP request and charged her with AWOL. Next, we modify the

administrative judge’s analysis of the appellant’s FMLA retaliation claim

because, after the initial decision was issued, the Board issued Marcell v.

Department of Veterans Affairs, 2022 MSPB 33, ¶¶ 7-8, overruling Doe v. U.S.

Postal Service, 95 M.S.P.R. 493, ¶ 11 (2004), upon which the administrative

judge relied. ID at 44. We also clarify the basis for the administrative judge’s

findings with respect to the appellant’s failure to reasonably accommodate claim

and her whistleblower reprisal claim. In sum, because we find that the agency’s

charges were properly sustained, the appellant failed to establish her affirmative

defenses, and she has failed to establish her claim of abuse of discretion raised on

review, we affirm the agency’s removal action. 5

The agency proved its charge of excessive absence.

The administrative judge sustained the excessive absence charge, finding

that the appellant’s absence was due to a compelling reason beyond her control

and continued for an unreasonable period of time, the agency warned her of

The appellant also challenges the administrative judge’s finding that removal was

within the bounds of reasonableness. PFR File, Tab 9 at 27-29; ID at 31. The Board

has long recognized that a prolonged absence with no foreseeable end constitutes just

cause for removal. New v. Department of Veterans Affairs , 82 M.S.P.R. 609, ¶ 9 (1999)

(finding removal appropriate when the appellant had been absent for over two years

during a 3 1/2-year period); McKenzie v. U.S. Postal Service, 1 M.S.P.R. 496, 497

(1980) (finding removal appropriate when the employee failed to return to duty after 2

years of absence); see White v. Department of Housing and Urban Development , 95

M.S.P.R. 299, ¶ 83 (2003) (finding removal appropriate when the employee was AWOL

for nearly 6 months). As further discussed below, we find that there was no foreseeable

end to the appellant’s absence, and we agree with the administrative judge that removal

was a reasonable penalty. ID at 31.

potential adverse action if she did not become available for duty, and the agency

needed the appellant’s position to be filled with an employee who was available

on a regular full-time or part-time basis. ID at 18-19. On review, the appellant

argues that the agency did not establish that it needed her position filled because

it had been able to reassign her work to other examiners without difficulty. PFR

File, Tab 9 at 26-27.

As a general rule, an agency may not take an adverse action based on an

employee’s use of approved leave. Combs v. Social Security Administration,

91 M.S.P.R. 148, ¶ 12 (2002). However, an exception may exist when the

following criteria are met: (1) the employee was absent for compelling reasons

beyond her control so that agency approval or disapproval of leave was

immaterial because she could not be on the job; (2) the absences continued

beyond a reasonable time, and the agency warned the employee that an adverse

action could be taken unless she became available for duty on a regular full -time

or part-time basis; and (3) the agency showed that the position needed to be filled

by an employee available for duty on a regular, full-time or part-time basis. Id.,

¶ 13; Cook v. Department of the Army, 18 M.S.P.R. 610, 611-12 (1984). This

exception is applicable only under usual circumstances, i.e., when the employee

is unable to return to duty because of the continuing effects of illness or injury.

Combs, 91 M.S.P.R. 148, ¶ 12; Cook, 18 M.S.P.R. at 612.

Here, the appellant does not dispute that she was absent from work due to

her medical conditions, either in an LWOP status or AWOL status, from

December 13, 2019, until her removal effective February 15, 2021. 6 IAF, Tab 7

at 133-39. Accordingly, the agency has satisfied the first factor. As for the

second factor, the record establishes that the agency sent the appellant a letter

dated July 17, 2020, after granting her 7 months of LWOP, warning her that her

Because an employee may not be disciplined for use of FMLA-protected leave, the

agency properly refrained from including the appellant’s period of FMLA-protected

LWOP in its excessive absence charge. McCauley v. Department of the Interior,

116 M.S.P.R. 484, ¶ 11 (2011).

prolonged absence had become excessive and if she did not return to work, she

could face adverse action, up to and including removal. IAF, Tab 7 at 48-49.

Accordingly, we find that the agency also met the second factor by preponderant

evidence.

We find that the agency established the third factor. The agency presented

a significant amount of evidence with respect to the toll the appellant’s absence

took on the agency’s operations, with each of the agency’s witnesses confirming

that it needed the appellant’s position to be filled by someone who was available

for duty and could perform the essential functions of the job. Hearing Transcript

(HT) dated May 24, 2021 at 40-42 (testimony of the deciding official), 136-37

(testimony of the appellant’s supervisor); HT dated June 1, 2020 at 160

(testimony of the proposing official). The deciding official and the appellant’s

supervisor explained that the agency was short-staffed, and the reassignment of

the appellant’s work caused a significant drain on the agency’s resources,

creating a “domino effect” within the office. HT dated May 24, 2021 at 17-18,

36-42, 85-93, 101-02 (testimony of the deciding official).

Accordingly, we find that the agency proved its excessive absence charge

because it established that the appellant was absent for compelling reasons

beyond her control, her absence had continued beyond a reasonable time, the

agency warned her that failure to report for duty could result in adverse action,

and the agency needed her position to be filled by an employee available for

regular full-time or part-time duty. Thus, we find that the administrative judge

correctly sustained the excessive absence charge. ID at 19.

We modify the initial decision to find that the agency proved its charge of AWOL

because it reasonably denied the appellant’s requested LWOP.

In the initial decision, the administrative judge found that the agency

proved its charge of AWOL because the appellant was absent on the days alleged,

she was not authorized to be absent, and she did not provide administratively

acceptably evidence to support her absence. ID at 25. However, the pertinent

issue here is whether the agency proved that it properly denied the appellant’s

request for LWOP and charged her with AWOL. When disciplinary action results

because LWOP is denied, and the employee is placed on AWOL, the Board will

review the circumstances to determine if the denial was reasonable. Joyner v.

Department of the Navy, 57 M.S.P.R. 154, 159 (1993). When, as here, there is a

medical excuse, the Board will examine the record as a whole to determine

whether the agency’s denial of LWOP was reasonable under the circumstances.

Id. The Board has found that an agency may properly deny LWOP to an

employee who is incapacitated for duty and has exhausted all of her leave and

there is no foreseeable end in sight to her absence and the employee’s absence is

a burden to the agency. Id.

Regarding whether there was a foreseeable end to the appellant’s absences,

the return date provided by the appellant, i.e., September 2021, was almost 1 year

after she submitted the letter and too remote to be considered foreseeable. IAF,

Tab 7 at 26-27, 33. Furthermore, before providing the September 2021 return

date, the appellant had submitted medical notes on a monthly basis requesting

extensions of leave for approximately 1 year. IAF, Tab 7 at 50-52, 57-60, 80-81.

The Board has found that, when an appellant has repeatedly submitted medical

documentation indicating that she could return to work in the future, but did not

return to work when the stated date arrived, such a pattern supports a finding that

there is no foreseeable end to the absence. See Johnson v. U.S. Postal Service,

120 M.S.P.R. 87, ¶ 6 (2013). Thus, the agency, for almost 1 year, had a

reasonable expectation that the appellant would return at the end of each of these

extensions, but she never did. Accordingly, it is understandable that the agency

would not rely upon the appellant’s promise that she would, in fact, return to

work in September 2021. Finally, we note that the appellant’s return to work date

was based on the state of COVID-19, as her medical provider stated that it was

not safe for her to return to work immediately “[g]iven that [COVID-19 was] only

getting worse” and that she “had not previously given a [return to work] date due

to the unknown nature of the virus.” 7 Id. at 26-27, 33. The medical provider’s

estimation of the state of a global pandemic in 1 year was, at best, speculation,

and further calls into question the reliability of the predicted September 2021

return date.

Accordingly, given the circumstances, we do not find that there was a

foreseeable end to the appellant’s absence. Furthermore, we find that the agency

put forth a significant amount of evidence establishing that the appellant’s

absence was a burden, as it had to reassign her work which was a drain on the

agency’s resources, and the agency was unable to fill her position with someone

who could perform the work because she occupied the billet. HT dated May 24,

2021 at 33, 36-42, 63-64, 89-92, 101-102 (testimony of the deciding official),

133-37 (testimony of the appellant’s supervisor), HT dated June 1, 2021

at 154-55, 158, 160 (testimony of the proposing official) . Thus, we modify the

initial decision to find that the agency proved its AWOL charge because it

established that it properly denied the appellant’s request for LWOP and charged

her with AWOL.

The appellant did not establish that her removal was on the basis of her

FMLA - protected leave requests.

In accordance with findings in Doe, 95 M.S.P.R. 493, ¶ 11, the

administrative judge analyzed the appellant’s claim of FMLA retaliation as

protected activity under 5 U.S.C. § 2302(b)(9)(A)(ii), finding that she did not

establish a causal connection between her invocation of FMLA and her removal.

ID at 44-45. However, after the initial decision was issued, the Board overruled

Doe in Marcell, 2022 MSPB 33, ¶¶ 7-8, finding that FMLA leave requests were

not protected activities under 5 U.S.C. § 2302(b)(9), but may be protected under

The medical provider’s recommendation that the appellant could not return to work at

that time was due both to the appellant’s pulmonary disease, i.e., COPD, which put her

at high-risk for COVID-19, and the exacerbation of her mental health conditions as a

result of having to strictly self-isolate due to COVID-19. IAF, Tab 7 at 26-27, 33,

44-45.

5 U.S.C. § 2302(b)(10), which makes it a prohibited personnel practice for an

agency 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.”

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

FMLA retaliation claim under 5 U.S.C. § 2302(b)(10), 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. As noted by the administrative judge, the

appellant was asked to justify her leave after being on long-term LWOP, well

after she exhausted her FMLA-protected leave, and there is no evidence that her

period of FMLA-protected leave was part of the charges or was considered by the

deciding official. ID at 44-45. 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.

The appellant did not establish her claim of disability discrimination because she

is not an otherwise qualified individual with a disability.

On review, the appellant challenges the administrative judge’s finding that

she did not establish that the agency failed to provide her a reasonable

accommodation. PFR File, Tab 9 at 18-24. Although we agree with the

administrative judge’s finding that the appellant failed to prove that she was an

otherwise qualified individual with a disability, ID at 37, we provide additional

clarification. Specifically, an agency is required to make reasonable

accommodations to the known physical and mental limitations of an otherwise

qualified individual with a disability unless the agency can show that the

accommodation would cause an undue hardship on its business operations. Miller

v. Department of the Army, 121 M.S.P.R. 189, ¶ 13 (2014); 29 C.F.R. § 1630.9(a).

Accordingly, we find that her requested accommodation of almost 1 year of

LWOP was not reasonable because it constituted an undue hardship on the

agency. Here, the agency presented evidence that the appellant’s absence created

significant hardship on the agency. For instance, the appellant’s supervisor

testified that, as a higher-grade Credit Union Examiner, the appellant was tasked

with completing the larger, more complex examinations, including those that

required her expertise as a subject matter expert in electronic payment systems.

HT dated May 24, 2021 at 133-34 (testimony of the appellant’s supervisor) . The

deciding official, who was also the Regional Director, explained that

reassignment of an Examiner’s work was often difficult because examinations of

banks were scheduled well in advance, and moving work around created a

“domino” effect in the office. Id. at 36-37, 101-02 (testimony of the deciding

official). Furthermore, as the appellant was occupying a full-time equivalent, the

agency could not hire another employee to fill her position and thus perform her

duties. Id. at 90 (testimony of the deciding official). Accordingly, we find that

the agency established that the appellant’s requested 1 year of LWOP would be an

undue hardship on the agency. 8

Furthermore, we agree with the administrative judge that the appellant has

not offered any evidence that there was a reasonable accommodation available

that would have allowed her to perform the essential functions of her position. ID

at 37. Thus, even assuming that the agency failed to engage in the interactive

process, as alleged by the appellant, PFR File, Tab 9 at 20, this would not

constitute a violation of the Rehabilitation Act because there was no reasonable

accommodation available that would have allowed her to perform the essential

functions of her job, Sanchez v. Department of Energy, 117 M.S.P.R. 155, ¶ 18

(2011) (finding that a failure to engage in the interactive process is not a per se

violation of the Rehabilitation Act, unless that failure results in a failure to

provide reasonable accommodation). Indeed, it appears that the appellant was

unable to work at all during this time because she did not request telework, even

While we only address the appellant’s request for approximately 1 year of LWOP, the

agency had already provided the appellant with 1,320 hours of LWOP, not including the

FMLA-protected leave, and thus, had granted her requested accommodation for over

7 months, even though it was under no obligation to do so. IAF, Tab 7 at 30, 132-37.

though, at the time of the hearing, agency employees were still working in a

remote status, which they had been in since March 16, 2020. HT dated May 24,

2021 at 31-32 (testimony of the deciding official).

A qualified individual with a disability is one who can “perform the

essential functions of the . . . position that such individual holds or desires,” with

or without reasonable accommodation. 9 42 U.S.C. § 12111(8). Accordingly, we

clarify the initial decision to state that the appellant is not a qualified individual

with a disability because the only accommodation that would accommodate her

disability, i.e., 1 year of LWOP, created an undue hardship for the agency, and

thus, was not reasonable under the circumstances. ID at 37.

The appellant failed to establish that her removal was in reprisal for

whistleblowing activities.

The administrative judge denied the appellant’s claim of whistleblower

reprisal, finding that the appellant did not engage in a protected activity when she

requested reasonable accommodation, and that she did not make a protected

disclosure in her emails to the deciding official dated July 20, 2020, and July 31,

2020. ID at 46-49. On review, the appellant challenges the administrative

judge’s findings as they relate to her request for reasonable accommodation and

her July 31, 2020 email. PFR File, Tab 9 at 30-33. Although we agree with the

administrative judge’s conclusions, we believe it necessary to clarify the reasons

supporting these findings.

First, the administrative judge found that the appellant’s request for

reasonable accommodation was not a protected activity under 5 U.S.C.

§ 2302(b)(9), in part, because it was not a complaint “remedying a violation of

The Board adjudicates claims of disability discrimination raised in connection with an

otherwise appealable action under the substantive standards of section 501 of the

Rehabilitation Act. Pridgen v. Office of Management and Budget, 2022 MSPB 31, ¶ 35.

The standards under the Americans with Disabilities Act, as amended by the American

with Disabilities Act Amendments Act, have been incorporated by reference into the

Rehabilitation Act and the Board applies them to determine whether there has been a

Rehabilitation Act violation. Id.; see 29 U.S.C. § 791(f).

[section] 2302(b)(8).” ID at 46. However, equal employment opportunity (EEO)

matters are not within the purview of the whistleblower protection statutes.

Edwards v. Department of Labor, 2022 MSPB 9, ¶¶ 10-23 (reviewing case law

and legislative history in finding that EEO-related matters are not within the

purview of whistleblower protection statutes), aff’d, No. 2022-1967, 2023 WL

4398002 (Fed. Cir. July 7, 2023). Accordingly, the appellant’s request for

reasonable accommodation is not a protected activity under 5 U.S.C.

§ 2302(b)(9).

Regarding the July 31, 2020 email, we find that the appellant did not make

a protected disclosure under 5 U.S.C. § 2302(b)(8)(A). A protected disclosure is

one that an appellant reasonably believes evidences a violation of any law, rule,

or regulation; gross mismanagement; a gross waste of funds; an abuse of

authority; or a substantial and specific danger to public health or safety. 5 U.S.C.

§ 2302(b)(8)(A); see Salerno v. Department of the Interior, 123 M.S.P.R. 230, ¶ 6

(2016). The test to determine whether a whistleblower has a reasonable belief in

the disclosure is an objective one: whether a disinterested observer with

knowledge of the essential facts known to and readily ascertainable by the

employee could reasonably conclude that the actions of the agency evidenced one

of the categories of wrongdoing specified in 5 U.S.C. § 2302(b)(8)(A). Salerno,

123 M.S.P.R. 230, ¶ 6.

On review, the appellant claims that her July 31, 2020 email disclosed that

she “was being punished [for] disclos[ing] evidence of an abuse of authority” and

“taking protected leave.” PFR File, Tab 9 at 30. The crux of the appellant’s

complaint in the email was that the agency was not allowing her to “practice [the

agency’s] work/life balance motto by taking time off needed to heal” because it

was refusing to extend her LWOP again, after having already granted her LWOP

for over 7 months. IAF, Tab 7 at 36-38. The appellant has not explained how

this denial of LWOP constituted an abuse of authority, nor has she identified any

law, rule, or regulation the agency allegedly violated by denying her LWOP

request. 10 Furthermore, we find that a disinterested observer, with knowledge of

the essential facts, would not reasonably conclude that the agency’s refusal to

grant an employee LWOP for an extended period of time, after already having

granted the employee LWOP for many months, could constitute any wrongdoing,

let alone the type of wrongdoing set forth in 5 U.S.C. § 2302(b)(8)(A).

Accordingly, we find that the appellant did not make a protected disclosure.

The appellant failed to establish that the administrative judge abused her

discretion.

On review, the appellant has asserted that the administrative judge abused

her discretion by denying three witnesses she requested, and by limiting her

questioning during the hearing. PFR File, Tab 9 at 37-38. The appellant has

failed to establish that the administrative judge abused her discretion in either

instance.

An administrative judge has wide discretion under the Board’s regulations

to exclude witnesses when it has not been shown that their testimony would be

relevant, material, and nonrepetitious. Franco v. U.S. Postal Service,

27 M.S.P.R. 322, 325 (1985); see 5 C.F.R. § 1201.41(b)(8), (10). The appellant

argues that the administrative judge should not have denied the three named

witnesses because they had relevant knowledge as to the agency’s workload and

the appellant’s workload. PFR File, Tab 9 at 37. Per the administrative judge’s

prehearing order, she denied all three witnesses at issue on the grounds of

relevance, explaining that two witnesses retired several years prior to the

appellant’s removal, and the other witness was a co-worker with a different

supervisor who was not a staffing specialist nor had any staffing responsibilities.

IAF, Tab 22 at 3-4. Thus, it appears on its face that these witnesses were not

To the extent that the appellant asserts that the agency violated a law, rule, or

regulation because her leave was protected, PFR File, Tab 9 at 30, the appellant had

been on LWOP since December 13, 2019, and had exhausted her FMLA-protected leave

on December 12, 2019, IAF, Tab 7 at 133-37, and thus, there is no evidence that her

leave was protected by law, rule, or regulation.

relevant, and absent a conclusory assertion that they have relevant knowledge, the

appellant has presented no evidence to demonstrate that the administrative judge

abused her discretion by denying these witnesses. PFR File, Tab 9 at 37.

Regarding the appellant’s claim that the administrative judge improperly

limited her questioning during the hearing, it is well established that an

administrative judge has wide discretion to control the proceedings of an appeal,

and that discretion will not be questioned absent a showing of abuse of discretion.

Sanders v. Social Security Administration, 114 M.S.P.R. 487, ¶ 10 (2010);

5 C.F.R. § 1201.41. Here, the appellant has not only failed to show that the

administrative judge’s rulings were in error, but she has also failed to explain

how the disallowed questions impacted her case. Indeed, the appellant only

makes the conclusory assertion that her disallowed questions were “central” and

“relevant” to her case, but she fails to explain how the administrative judge’s

actions impacted the outcome of her case. PFR File, Tab 9 at 37-38.

Accordingly, the appellant has failed to establish that the administrative judge

abused her discretion in the manner in which she controlled the hearing.

NOTICE OF APPEAL RIGHTS 11

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

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.

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. 12 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,

132 Stat. 1510.

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