Opinion

Stephanie Russell v. Department of the Air Force

Court: Merit Systems Protection Board
Filed: Apr 19, 2024
Status: Unpublished
Cited by: 0 cases
Authority: More cited than 15.8%

explaining that the Board may overturn an administrative judge’s demeanor-based credibility determinations only when it has “sufficiently sound” reasons for doing so

How later courts described this case

explaining that the Board may overturn an administrative judge’s demeanor-based credibility determinations only when it has “sufficiently sound” reasons for doing so

Written by the judges who cited it.

The opinion

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

STEPHANIE RUSSELL, DOCKET NUMBER

Appellant, AT-0752-21-0524-I-1

DEPARTMENT OF THE AIR FORCE, DATE: April 19, 2024

Agency.

THIS FINAL ORDER IS NONPRECEDENTIAL 1

Shaun Southworth , Esquire, and Jesse L. Kelly, II , Esquire, Atlanta,

Georgia, for the appellant.

William V. Cochrane, Jr. , and Holly Buchanan , Eglin Air Force Base,

Florida, 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. 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

A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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 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 and AFFIRM the initial decision,

which is now the Board’s final decision. 5 C.F.R. § 1201.113(b).

BACKGROUND

The appellant, who was a GS-13 Logistics Management Specialist, was

approved for 60 days of Weather and Safety Leave (WSL) effective March 23,

2020, due to identifying as high-risk for COVID-19. Initial Appeal File (IAF),

Tab 28 at 10. Shortly thereafter, the agency updated its WSL policy, requiring

that, in order for supervisors to approve WSL, individuals must provide a

self-certification form and substantiating documentation from a medical provider

confirming that the individual met the Centers for Disease Control and Prevention

high-risk criteria for COVID-19. IAF, Tab 17 at 17-19. Despite multiple

instructions, reminders, and extensions, the appellant failed to provide her

supervisor with the required WSL documentation. Id. at 21-31; Hearing

Recording (HR) (testimony of the appellant’s supervisor). Furthermore, the

appellant, who had been sporadically responding to her supervisor’s

communications, stopped responding entirely in August 2020. IAF, Tab 17

at 21-28; HR (testimony of the appellant’s supervisor).

Therefore, the appellant’s supervisor sent a letter dated October 9, 2020, to

the appellant’s address on file, which was a P.O. Box, advising the appellant that

she must either submit her WSL documentation by October 19, 2020, or return to

duty on October 20, 2020. IAF, Tab 17 at 23, 29-31; HR (testimony of the

appellant’s supervisor). The letter also advised the appellant that if she did not

submit her WSL documentation, her WSL would be converted to another leave

status, and if she did not return to duty as instructed, she would be charged with

absence without leave (AWOL). IAF, Tab 17 at 30. After receiving confirmation

that the letter was delivered to the appellant’s P.O. Box on October 13, 2020, the

appellant’s supervisor called the appellant and left a voicemail, advising her that

a document had been delivered containing an October 19, 2020 deadline. Id.

at 25; HR (testimony of the appellant’s supervisor).

The appellant did not submit the WSL documentation, nor did she return to

duty; therefore, the agency started carrying her in an AWOL status on

October 20, 2020. HR (testimony of the appellant’s supervisor). The appellant’s

supervisor called the appellant to let her know she was being carried in an AWOL

status, and when the appellant returned her call on October 21, 2020, the

appellant claimed to have never received the October 9, 2020 letter because she

did not use her P.O. Box. IAF, Tab 17 at 29; HR (testimony of the appellant’s

supervisor, testimony of the appellant). The appellant’s supervisor also advised

her that she would be AWOL until she either returned to work or provided the

WSL documentation. IAF, Tab 17 at 25-26, 29; HR (testimony of the appellant’s

supervisor).

Approximately 2 weeks later, the appellant finally obtained the WSL

documentation, but did not send it to her supervisor, choosing instead to send it to

a staff attorney at the Office of Special Counsel (OSC) assigned to her pending

OSC complaint. 2 IAF, Tab 17 at 27; HR (testimony of the appellant’s supervisor,

testimony of the appellant). Despite multiple requests, the appellant refused to

send her supervisor a copy of the documents, even though her supervisor

OSC provided a copy of the WSL documents to the agency’s legal office at Eglin.

IAF, Tab 17 at 27.

informed her that she would continue to be carried in an AWOL status until she

(the supervisor) received a copy of the WSL documents. IAF, Tab 17 at 27-28;

HR (testimony of the appellant’s supervisor). Eventually, on or around

November 30, 2020, the appellant’s supervisor received the appellant’s WSL

documents from the agency’s legal office, and the appellant was placed again on

WSL, even though she never complied with her supervisor’s instructions to

provide the WSL documentation directly to the supervisor. HR (testimony of the

appellant’s supervisor).

Based on these events, the appellant was removed based on two charges.

IAF, Tab 17 at 4-5, Tab 18 at 15-17. The first charge, failure to follow

instructions, was supported by three specifications. IAF, Tab 17 at 4. The first

specification was based on the appellant’s refusal to submit the WSL

documentation to her supervisor. Id. The second specification was based on the

appellant’s failure to provide her supervisor with valid contact information where

she could be reached. Id. Finally, the third specification addressed the

appellant’s failure to report to duty on October 20, 2020. Id. The second charge,

AWOL, was supported by a single specification, alleging that the appellant was

AWOL from October 20 until November 30, 2020. Id. at 4-5.

After holding a hearing, the administrative judge sustained the removal,

finding that the agency proved its two charges, 3 established nexus, and

established that the penalty of removal was reasonable. IAF, Tab 34, Initial

Decision (ID) at 16-24. He also denied the appellant’s affirmative defenses,

including her whistleblower reprisal claim. ID at 24-30. On review, the

appellant challenges, among other things, the administrative judge’s findings on

the merits of the sustained charges and specifications, the reasonableness of the

The administrative judge did not sustain the third specification of the failure to follow

instructions charge, and found that agency improperly carried the appellant in an

AWOL status on October 20 and October 21, 2020, because the agency failed to prove

that the appellant actually received the return to duty instruction before October 21,

2021. ID at 19-20. Neither party disputes these findings and they do not impact the

outcome of this case. Therefore, we need not address them.

penalty, and the denial of her whistleblower reprisal claim. Petition for Review

(PFR) File, Tab 1.

DISCUSSION OF ARGUMENTS ON REVIEW

Overall, we find that the administrative judge’s findings are well-reasoned,

thorough, and supported by the record, and we find no basis to disturb them.

Crosby v. U.S. Postal Service, 74 M.S.P.R. 98, 106 (1997) (explaining that Board

will not disturb an administrative judge’s findings when she considered the

evidence as a whole, drew appropriate inferences, and made reasoned conclusions

on issues of credibility); Broughton v. Department of Health & Human Services,

33 M.S.P.R. 357, 359 (1987) (same). However, we do take this opportunity to

clarify the administrative judge’s findings as they relate to the appellant’s

affirmative defense of whistleblower reprisal. ID at 25-30.

To prevail on her whistleblower reprisal affirmative defense, an appellant

must prove by preponderant evidence that she made a protected disclosure

described under 5 U.S.C. § 2302(b)(8) or engaged in protected activity described

under 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D), and the disclosure or

protected activity was a contributing factor in the agency’s decision to take or fail

to take a personnel action as defined by 5 U.S.C. § 2302(a)(2)(A). Covington v.

Department of the Interior, 2023 MSPB 5, ¶ 15. If the appellant proves that her

protected disclosure or activity was a contributing factor in a personnel action

taken against her, the agency is then given the opportunity to prove, by clear and

convincing evidence, that it would have taken the same personnel action in the

absence of the protected disclosure. Id., ¶ 45; see 5 U.S.C. § 1221(e). In

determining whether an agency has met its burden, the Board will consider all

relevant factors, including the following: (1) the strength of agency’s evidence in

support of its action; (2) the existence and strength of any motive to retaliate on

the part of the agency officials who were involved in the decision; and (3) any

evidence that the agency takes similar actions against employees who do not

engage in such protected activity, but who are otherwise similarly situated. Carr

v. Social Security Administration, 185 F.3d 1318, 1323 (Fed. Cir. 1999); see

Duggan v. Department of Defense, 883 F.3d 842, 846 (9th Cir. 2018); Covington,

2023 MSPB 5, ¶ 45.

On review, the appellant argues that her removal was taken in retaliation

for making protected disclosures, including disclosing alleged violations of law,

rule, or regulations, as well as engaging in protected activity by filing an OSC

complaint. PFR File, Tab 1 at 17-21. As an initial matter, the administrative

judge correctly found that, although the appellant failed to establish that her

protected disclosures were a contributing factor in her removal, 4 she did establish

that her OSC complaint was a protected activity that was a contributing factor in

the removal. ID at 25-30. Furthermore, while we agree with the administrative

judge that the agency proved by clear and convincing evidence that it would have

removed the appellant absent her whistleblowing, ID at 29-30, we find that his

analysis of the second and third Carr factors requires clarification, as explained

below.

The administrative judge found that the appellant failed to satisfy the contributing

factor standard because her disclosures were made in 2017, such that too much time had

lapsed to establish the timing prong of the knowledge/timing test, and she failed to

establish it by other means. ID at 26-28. As noted by the appellant in her petition for

review, however, she raised her 2017 disclosures again in an email in March 2020. PFR

File, Tab 1 at 20; IAF, Tab 27 at 56-61. Thus, she meets the timing prong of the

knowledge/timing test. However, the appellant still fails to establish contributing factor

through the knowledge/timing test because she did not prove that the deciding official

had any knowledge of the March 2020 email, or was influenced by anyone that did have

knowledge of the disclosure. See Dorney v. Department of the Army, 117 M.S.P.R. 480,

¶ 12 (2012) (stating that, in determining whether an appellant has proven contributing

factor, “a lack of actual knowledge by a single official is not dispositive”).

Furthermore, as correctly found by the administrative judge, none of the other

considerations, i.e., the strength of the agency’s evidence, the fact that the deciding

official was not the target of her disclosures, and the lack of any evidence establishing

retaliatory intent, established contributing factor. ID at 28. Accordingly, because the

administrative judge’s error had no impact on the substantive rights of the parties, such

error does not serve as a basis to disturb the initial decision. See Panter v. Department

of the Air Force, 22 M.S.P.R. 281, 282 (1984).

The second Carr factor weighs in favor of the agency because there is no

evidence of a professional or personal retaliatory motive on the part of the

deciding official.

The administrative judge found that there was “no basis to infer a

retaliatory motive on [the deciding official’s] part” because the deciding official

knew nothing of the appellant’s OSC complaint other than its mere existence, and

the deciding official’s professional demeanor left the administrative judge with

the “firm impress[ion] that he had no interest in [the OSC complaint].” ID at 29.

To the extent that the administrative judge failed to consider whether the deciding

official may have had a professional motive to retaliate, that was an error.

Nevertheless, upon reviewing the record, we discern no evidence of a retaliatory

motive on the part of the deciding official, either personal or professional.

The U.S. Court of Appeals for the Federal Circuit has cautioned the Board

from taking too narrow of a view of the second Carr factor. For instance, in

Whitmore v. Department of Labor, 680 F.3d 1353, 1370 (Fed. Cir. 2012), the

court explained that, “[t]hose responsible for the agency’s performance overall

may well be motivated to retaliate even if they are not directly implicated by the

disclosures, and even if they do not know the whistleblower personally, as the

criticism reflects on them in their capacities as managers and employees.”

Similarly, in Miller v. Department of Justice, 842 F.3d 1252, 1261-62 (Fed. Cir.

2016), the court instructed the Board not to limit its consideration of a motive to

retaliate to the appellant’s supervisors, but to examine whether a retaliatory

motive could be imputed more broadly to other officials or entities involved in

the decision. Then, in Robinson v. Department of Veterans Affairs, 923 F.3d

1004, 1019 (Fed. Cir. 2019), the court found that, while there may not be a

personal motive, the administrative judge erred by failing to consider whether the

deciding official had a “professional retaliatory motive” against the appellant

because his disclosures “implicated the capabilities, performance, and veracity of

[agency] managers and employees, and implied that the [agency] deceived [a]

Senate Committee.”

Thus, the administrative judge here should have expressly considered the

possibility of a professional retaliatory motive. However, although the Federal

Circuit has directed the Board to consider the possibility of a professional

retaliatory motive, it has not mandated that we find such motive in every

whistleblower appeal. For instance, in Robinson, after taking into consideration

the administrative judge’s demeanor-based credibility determinations, the court

agreed with the administrative judge that there was no retaliatory motive, either

professional or personal, and found that the second Carr factor weighed in favor

of the agency. Robinson, 923 F.3d at 1019-20. Similarly, here, taking into

consideration the administrative judge’s demeanor-based credibility findings, we

find no evidence of a retaliatory motive on the part of the deciding official, either

personal or professional. 5 Absent merely knowing that the appellant filed an OSC

complaint, the record is entirely devoid of evidence demonstrating that the

deciding official harbored any motive to retaliate, either personal or professional.

Accordingly, we discern no sufficiently sound reason to disturb the administrative

judge’s demeanor-based credibility finding that the deciding official had no

motive to retaliate. ID at 29; see Haebe v. Department of Justice, 288 F.3d 1288,

1301 (Fed. Cir. 2002) (explaining that the Board may overturn an administrative

judge’s demeanor-based credibility determinations only when it has “sufficiently

sound” reasons for doing so).

In conclusion, having considered the possibility of a professional

retaliatory motive, we agree with the administrative judge that there is no such

motive in this appeal. However, even if we were to find that there was a slight

While we recognize that the appellant’s supervisor, i.e., the proposing official, may

have had a motive to retaliate because the appellant’s whistleblowing named her, IAF,

Tab 27 at 56-61, and she was aware of the pending OSC complaint, IAF, Tab 17 at 5,

25, the appellant has put forth no evidence demonstrating that the proposing official had

any influence on the deciding official’s decision to sustain the proposed removal.

motive to retaliate on the agency’s part, in light of the overwhelming evidence

supporting the appellant’s removal, we would still find that the agency met its

burden to present clear and convincing evidence in support of its action.

The third Carr factor cannot weigh in favor of the agency, but even if it slightly

cuts against it, the agency has still met its clear and convincing burden.

Regarding the third Carr factor, the administrative judge stated that this

factor was neutral because “neither party identified any comparators.” ID at 29.

To the extent that the administrative judge’s statement implies that it was the

appellant’s burden to produce comparators, that is incorrect. It is the agency that

carries the burden of proving by clear and convincing evidence that the same

action would have been taken absent the whistleblowing. Whitmore, 680 F.3d

at 1374. Furthermore, because it is the agency’s burden of proof, when the

agency fails to introduce relevant comparator evidence, the third Carr factor

cannot weigh in favor of the agency. Smith v. General Services Administration,

930 F.3d 1359, 1367 (Fed. Cir. 2019); Siler v. Environmental Protection Agency ,

908 F.3d 1291, 1299 (Fed. Cir. 2018). Thus, while we see no need to disturb the

administrative judge’s finding that the third Carr factor was neutral, we note that,

even if this factor weighed slightly in favor of the appellant, given the strength of

the agency’s evidence in support of removal, the agency still proved by clear and

convincing evidence that it would have removed the appellant absent her

whistleblowing.

NOTICE OF APPEAL RIGHTS 6

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

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.

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).

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. 7 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