Opinion

Sandra Brundage v. Department of the Air Force

Court: Merit Systems Protection Board
Filed: Apr 22, 2024
Status: Unpublished
Cited by: 0 cases
Authority: More cited than 15.8%

The opinion

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

SANDRA LYNN BRUNDAGE, DOCKET NUMBER

Appellant, DC-0752-17-0358-I-2

DEPARTMENT OF THE AIR FORCE, DATE: April 22, 2024

Agency.

THIS FINAL ORDER IS NONPRECEDENTIAL 1

Sandra Lynn Brundage , Suffolk, Virginia, pro se.

Casey Keppler , Joint Base Andrews, 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

sustained the appellant’s removal for excessive absence. On petition for review,

the appellant argues that the administrative judge did not consider all of the

examples she provided in which she claimed that agency managers did not

support her. Generally, we grant petitions such as this one only in the following

circumstances: the initial decision contains erroneous findings of material fact;

A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

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

find that the appellant failed to prove that a hostile working environment caused

her absences, we AFFIRM the initial decision.

Because the administrative judge did not address the appellant’s assertion

raised below and in her petition for review that the agency’s actions and hostile

work environment caused her absences, we do so here. Initial Appeal File (IAF),

Tab 1 at 6; Petition for Review File, Tab 3 at 3, Tab 7 at 4. The Board has held

that, when an agency makes an employee’s working conditions so difficult that a

reasonable person in the employee’s position would feel compelled to resign or

retire, the resignation or retirement may be involuntary. Markon v. Department

of State, 71 M.S.P.R. 574, 577 (1996); Heining v. General Services

Administration, 68 M.S.P.R. 513, 520 (1995). In Gerges v. Department of the

Navy, 89 M.S.P.R. 669, ¶¶ 4-5, 8, 20 (2001), the Board applied the same standard

to determine whether, in a removal action for excessive unauthorized absence, the

agency’s pre-removal actions constituted harassment so severe as to compel a

reasonable person in the employee’s position to absent himself and to remain

absent. Applying that standard here, we find that the agency’s pre-removal

actions did not create a hostile working environment that compelled the

appellant’s absence from the workplace.

The appellant submitted numerous examples of agency actions that she

alleges created a hostile working environment. See Brundage v. Department of

the Air Force, MSPB Docket No. DC-0752-17-0358-I-2, Appeal File (I-2 AF),

Tabs 13, 42, 55. For example, the appellant alleged that the agency discouraged

her forward thinking and “shot down” her suggestions, causing her anxiety and,

in turn, causing her to make mistakes. I-2 AF, Tab 13 at 52. However, the

agency had only asked the appellant to make her suggestions to her supervisors

before she took them outside of her office. Id. Additionally, the appellant

complained about being denied training. Id. at 76. However, the agency

explained to the appellant why her training requests were denied. Id. That

explanation suggested to the appellant that she should “concentrate [her] efforts

on really knowing [her] job” and working on certain specific areas. Id. We find

that this statement was not hostile. The appellant also challenged her appraisal.

Id. at 108, 117. Ultimately, that challenge resulted in an agreement to raise the

appellant’s appraisal and give her a time-off award. Id. at 130-31. Additionally,

the agency afforded the appellant advanced annual and donated leave, id.

at 46-48, and twice engaged in the reasonable accommodation process with the

appellant, IAF, Tab 72 at 17; see IAF, Tab 7 at 129-30, 135-36. We find that the

appellant has not shown that the agency created a hostile working environment

that would have compelled a reasonable person in the appellant’s position to

absent herself from the workplace.

NOTICE OF APPEAL RIGHTS 2

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

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.

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).

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. 3 The court of appeals must receive your petition for

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

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