Opinion

Constance Brown v. Department of Transportation

Court: Merit Systems Protection Board
Filed: May 3, 2024
Status: Unpublished
Cited by: 0 cases
Authority: More cited than 15.9%

The opinion

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

CONSTANCE GERALDINE BROWN, DOCKET NUMBER

Appellant, DC-0752-17-0799-I-1

DEPARTMENT OF DATE: May 3, 2024

TRANSPORTATION,

Agency.

THIS FINAL ORDER IS NONPRECEDENTIAL 1

Constance Geraldine Brown , Alexandria, Virginia, pro se.

Jose Ortiz , Esquire, Washington, 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

affirmed her 30-day suspension. 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

A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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 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 supplement the analysis of the insubordination charge, we

AFFIRM the initial decision.

BACKGROUND

The agency employed the appellant as a Contract Specialist in the

Acquisition and Contracting Office of its Federal Aviation Administration (FAA).

Initial Appeal File (IAF), Tab 6 at 4. Her duties included administering the

FAA’s contract with Global Engineering & Management Services (GEMS). Id.

at 18. The GEMS contract provides contractor support for the FAA’s Next

Generation Air Transportation System (NextGen) program, which is one of the

FAA’s top priorities. IAF, Tab 7 at 42.

On July 10, 2017, the agency proposed the appellant’s suspension for

30 calendar days based on the charge of insubordination. IAF, Tab 6 at 18-21.

Specifically, the agency alleged that the appellant refused to sign a GEMS

contract modification authorizing the hiring of contractor support staff for the

NextGen program because she believed that doing so would violate a January 23,

2017 Presidential Memorandum 2 instituting a Federal hiring freeze. 3 Id. at 18.

The parties at times incorrectly refer to the January 23, 2017 issuance by the President

as an Executive Order, but it was issued as a Presidential Memorandum. IAF, Tab 25

at 30-31.

The appellant first refused to sign the contract modification in February 2017,

resulting in a 14-day suspension, which she served from April 4 through April 17, 2017.

The agency attached evidence to its proposal notice showing that the appellant

sought and received advice from managers and legal opinions from attorneys

within the FAA’s Office of Chief Counsel who determined that performing the

contract modification as requested would not violate the Presidential

Memorandum that instituted the hiring freeze. Id. at 22-46. The agency

additionally attached an April 12, 2017 memorandum that lifted the President’s

hiring freeze. Id. at 48-49. The appellant replied to the proposal notice,

reiterating her belief that the hiring of contractor support staff as requested would

violate the President’s hiring freeze. Id. at 16. She also argued that she already

had been disciplined for the same action. Id. at 15. After considering her reply,

the deciding official sustained the 30-day suspension, effective August 31

through September 29, 2017. Id. at 6-9.

The appellant filed an appeal of the suspension and requested a hearing.

IAF, Tab 1 at 2-3. During the proceedings below, however, she refused to

participate in discovery. IAF, Tab 19. Consequently, the administrative judge

granted the agency’s motion for sanctions concerning discovery. Id. Thereafter,

the appellant failed to attend the prehearing conference or file a prehearing

submission. IAF, Tab 24. As a result, the administrative judge canceled the

hearing, notified the appellant that the appeal would be decided on the written

record, and provided the parties an opportunity to submit additional evidence

prior to the close of the record. Id. In response, the agency filed a closing brief.

IAF, Tabs 25-26.

Based on the written record, the administrative judge issued an initial

decision affirming the 30-day suspension. IAF, Tab 29, Initial Decision (ID).

She found that the appellant’s refusal to sign the contract modification constituted

insubordination and that the agency proved its charge. ID at 4-6. She further

found that the penalty was within the bounds of reasonableness. ID at 7. As to

the appellant’s claim that the suspension was duplicative considering she already

IAF, Tab 7 at 4, 6.

had served a 14-day suspension for failing to execute the same contract, the

administrative judge found that the agency’s use of progressive discipline in the

hope of rehabilitating the appellant did not give her license to repeat her

misconduct with impunity once she had been disciplined for her first offense. ID

at 6-7. The administrative judge also found that, although the appellant’s refusal

related to the same contract, there were two or more separate and distinct

incidents in which she knowingly refused to follow orders. ID at 7. She reasoned

that the appellant’s belief that, once she served the first suspension, she was

immune from discipline for future repeated misconduct was unfounded as well as

nonsensical. Id.

The appellant has filed a petition for review. Petition for Review (PFR)

File, Tab 1. The agency has responded in opposition. PFR File, Tab 4.

DISCUSSION OF ARGUMENTS ON REVIEW

Insubordination is the willful and intentional refusal to obey an authorized

order of a superior officer that the officer is entitled to have obeyed. See Parbs v.

U.S. Postal Service, 107 M.S.P.R. 559, ¶ 13 (2007), aff’d per curiam,

301 F. App’x 923 (Fed. Cir. 2008). It requires proof of intent, which is a state of

mind that generally is proven by circumstantial evidence in the context of an

insubordination charge. Id. Unless the order is clearly unlawful, an employee

must first obey the order and then challenge its validity—even when there is

substantial reason to believe that an order is improper—except in extreme or

unusual circumstances in which the employee would be placed in a clearly

dangerous situation or which would cause her irreparable harm. Pedeleose v.

Department of Defense, 110 M.S.P.R. 508, ¶¶ 16-18, aff’d, 343 F. App’x 605

(Fed. Cir. 2009); see Parbs, 107 M.S.P.R. 559, ¶ 19. This rule reflects the

fundamental management right to expect that its decisions will be obeyed and its

instructions carried out. Pedeleose, 110 M.S.P.R. 508, ¶ 16.

Here, the administrative judge properly found, and the appellant does not

dispute, that the appellant willfully and intentionally refused the agency’s order

to execute the contract. ID at 6. She further found that, even if the appellant

believed the order to be unlawful, she should have followed the order and taken

steps to challenge its validity through the appropriate internal channels. Id.

Although the appellant generally disagrees with this determination on review, she

has shown no basis to disturb it. PFR File, Tab 1 at 1-2. Specifically, she has

failed to show that the agency’s order was clearly unlawful. Indeed, the

appellant’s only objection to obeying the order was her belief that it violated the

January 23, 2017 Presidential Memorandum instituting a hiring freeze, which she

concedes had since been lifted. Id. at 2; IAF, Tab 6 at 49. Moreover, she had

received legal opinions from the FAA’s Office of Chief Counsel informing her

that the agency’s order did not violate the January 23, 2017 Presidential

Memorandum. IAF, Tab 6 at 28-29. Further, she has failed to show that

executing the contract would have placed her in a clearly dangerous situation or

caused her irreparable harm. Under these circumstances, the appellant was not

justified in refusing to obey the order, and the administrative judge correctly

sustained the charge of insubordination. See Bowen v. Department of the Navy ,

112 M.S.P.R. 607, ¶ 15 (2009) (finding that, even when the appellant believed

that an order was improper because the agency had not complied with its labor

relations obligations, he still was required to first comply with the order and then

On review, the appellant continues to argue that she is being disciplined

twice for the same misconduct. PFR File, Tab 1 at 1-2. We are not persuaded by

this argument, however, because the appellant’s misconduct here, although

relating to the same contract, is separate and distinct from the misconduct for

which she served a 14-day suspension. See Bowen, 112 M.S.P.R. 607, ¶ 13

(finding that a letter of reprimand for misconduct committed on March 6, 2008,

was distinguishable from a removal proposal based on insubordinate conduct on

different dates in February and March of 2008). In addition, we find that the

administrative judge properly concluded that the suspension penalty was within

the bounds of reasonableness. 4 ID at 7 (citing Redfearn v. Department of Labor,

58 M.S.P.R. 307, 316 (1993)).

Accordingly, we affirm the 30-day suspension. 5

NOTICE OF APPEAL RIGHTS 6

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

When the appellant engaged in the conduct at issue here, 5 U.S.C. § 2302(b)(9)(D)

made it a prohibited personnel practice to take an action against an employee for

“refusing to obey an order that would require the individual to violate a law.” IAF,

Tab 6 at 18. On June 14, 2017, after the appellant engaged in the conduct at issue here

but before the agency issued the notice of a proposed 30-day suspension, the President

signed into law the Follow the Rules Act, which amended section 2302(b)(9)(D) by

making it a prohibited personnel practice to take an action against an employee for

“refusing to obey an order that would require the individual to violate a law, rule, or

regulation.” Pub. L. No. 115-40, 131 Stat. 861 (2017). Regardless of which section

2302(b)(9)(D) applies, and even if the January 23, 2017 Presidential Memorandum

constituted a law, rule, or regulation under the applicable section, we find that the

agency’s order was lawful because the hiring freeze instituted by the January 23, 2017

Presidential Memorandum was lifted on April 12, 2017, and, thus, not in effect when

the appellant was given the order to execute the contract modification at issue. IAF,

Tab 6 at 48-49. Accordingly, to the extent that the appellant contends that the agency

committed a prohibited personnel practice and violated the Whistleblower Protection

Enhancement Act of 2012 when it ordered her to execute the contract modification, we

find the argument unavailing.

On review, the appellant submits alleged new evidence in the form of an email

communication dated January 30, 2017, and the initial decision in this matter. PFR

File, Tab 1 at 3-19. However, this evidence is included in the record below and

provides no basis to disturb the initial decision. IAF, Tab 25 at 38-39; ID; see Meier v.

Department of the Interior, 3 M.S.P.R. 247, 256 (1980) (holding that evidence that is

already a part of the record is not new).

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.

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. 7 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