Opinion

Toccara Greene v. Department of the Army

Court: Merit Systems Protection Board
Filed: May 6, 2024
Status: Unpublished
Cited by: 0 cases
Authority: More cited than 16.0%

The opinion

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

TOCCARA A. GREENE, DOCKET NUMBER

Appellant, DA-0752-19-0460-I-2

DEPARTMENT OF THE ARMY, DATE: May 6, 2024

Agency.

THIS FINAL ORDER IS NONPRECEDENTIAL 1

Toccara A. Greene , Wallisville, Texas, pro se.

Erin D. Reid , Galveston, Texas, 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 the agency’s removal action. On petition for review, the appellant

argues that the administrative judge improperly denied her request for a subpoena

and that he made several factually inaccurate statements in the initial decision. 2

A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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 appellant also alleges that she was unable to obtain certain documents due to the

COVID-19 pandemic while the appeal was pending before the administrative judge.

Petition for Review (PFR) File, Tab 1 at 3-6. Generally, we grant petitions such

as this one only in the following circumstances: the initial decision contains

erroneous findings of material fact; the initial decision is based on an erroneous

interpretation of statute or regulation or the erroneous application of the law to

the facts of the case; the administrative judge’s rulings during either the course of

the appeal or the initial decision were not consistent with required procedures or

involved an abuse of discretion, and the resulting error affected the outcome of

the case; or new and material evidence or legal argument is available that, despite

the petitioner’s due diligence, was not available when the record closed. Title 5

of the Code of Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115).

After fully considering the filings in this appeal, we conclude that the petitioner

has not established any basis under section 1201.115 for granting the petition for

review. Therefore, we DENY the petition for review and AFFIRM the initial

decision, which is now the Board’s final decision. 3 5 C.F.R. § 1201.113(b).

PFR File, Tab 1 at 4. However, the appellant does not attach any of these documents to

her petition for review, nor does she explain how the contents of these documents would

impact the outcome of this matter. Id.

On June 3, 2023, the appellant filed a pleading stating only “[w]ithdrawal of Petition

for Review.” PFR File, Tab 6 at 3. Consistent with Board policy, the Office of the

Clerk of the Board responded to the appellant, informing her that “to ensure the

appellant’s request to withdraw her petition for review is knowing and voluntary, the

appellant is ordered to submit a brief pleading within 7 days of the date of this Order

confirming that her request to withdraw her petition for review is voluntary and that she

understands the withdrawal is with prejudice to refiling with the Board.” PFR File,

Tab 7 at 2 (emphasis removed). The appellant did not respond to the Acting Clerk’s

order. Thereafter, the Acting Clerk issued a second order again informing the appellant

of the steps necessary to withdraw her petition for review. PFR File, Tab 8 at 1. That

order also informed the appellant that if she did not file a pleading confirming her intent

to withdraw her petition for review, the Clerk’s Office would not act on her request to

withdraw the petition for review, and the Board would instead issue a decision. Id.

at 1-2. The appellant did not respond to the order. On August 8, 2023, the Acting

Clerk informed the appellant that it would take no further action to process the June 3,

2023 pleading seeking to withdraw the petition for review and that the appeal would be

returned to the Board for consideration. Accordingly, the Board is issuing this decision

addressing the appellant’s petition for review.

On review, the appellant argues that the administrative judge erred in

denying her motion for a subpoena that would have allowed her to obtain a

declaration that “directly rebutted the one document evidence provided by the

agency.” PFR File, Tab 1 at 3. An administrative judge has wide discretion to

control the proceedings of an appeal. Sanders v. Social Security Administration,

114 M.S.P.R. 487, ¶ 10 (2010); 5 C.F.R. § 1201.41. In order to obtain a reversal

of an initial decision based upon an abuse of discretion, the petitioning party must

show that the resulting error affected the outcome of the case. Sanders,

114 M.S.P.R. 487, ¶ 10; 5 C.F.R. § 1201.115(c). Here, the administrative judge

denied the appellant’s motion because it did not comply with 5 C.F.R.

§ 1201.73(c) or 5 C.F.R. § 1201.81, which set forth the procedural and

substantive requirements for requesting subpoenas. Greene v. Department of the

Army, MSPB Docket No. DA-0752-19-0460-I, Initial Appeal File (IAF), Tab 36

at 3. The administrative judge invited the parties to present any objections to the

order within 3 days. Id. at 4. The appellant did not object to the order, nor did

she refile her motion to comply with the relevant regulations. Thus, we discern

no basis to disturb the administrative judge’s finding. 4 See Brown v. Department

of the Army, 96 M.S.P.R. 232, ¶ 6 (2004) (rejecting an argument presented on

review when the party failed to preserve an objection by objecting to the

administrative judge’s order below).

Regarding the appellant’s claims that the administrative judge incorrectly

decided important facts in this matter, we disagree. PFR File, Tab 1 at 4-5. After

a thorough review of the record, we find that the administrative judge considered

the evidence as a whole and made reasoned and logical conclusions that are

Additionally the appellant fails to explain how the denial of the subpoena affected the

outcome of the matter. PFR File, Tab 1 at 3. Although the appellant claims that the

information would have “directly rebutted” the agency’s document, the two parties

listed in the subpoena already confirmed that the certificate of care was false, and thus

we fail to understand how this additional information sought by the appellant would

have resulted in a different outcome. IAF, Tab 14 at 175; Greene v. Department of the

Army, MSPB Docket No. DA-0752-19-0460-I-2, Appeal File, Tab 11 at 25-26.

supported by the evidence. Accordingly, we discern no reason to challenge the

administrative judge’s findings. 5 Crosby v. U.S. Postal Service, 74 M.S.P.R. 98,

106 (1997) (declining to disturb the administrative judge’s findings when she

considered the evidence as a whole, drew appropriate inferences, and made

reasoned conclusions); Broughton v. Department of Health and Human Services ,

33 M.S.P.R. 357, 359 (1987) (same).

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

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

In response to the appellant’s claim of disability discrimination, the administrative

judge determined that the appellant failed to establish that she was entitled to relief

because she failed to establish that her disability was a motivating factor in the

agency’s decision to remove her. ID at 14-17. While the administrative judge was

accurate in stating that appellant must establish that her disability was a motivating

factor in her removal in order to receive some relief, in light of the Board’s decision in

Pridgen v. Office of Management and Budget, 2022 MSPB 31, we clarify that to be

entitled to full relief an appellant must show that disability discrimination was a but-for

cause of the personnel action. Pridgen, 2022 MSPB 31, ¶¶ 21-22, 40, 42. As the

appellant did not establish that her disability was a motivating factor in her removal,

she cannot meet the higher but-for standard required to obtain full relief. Accordingly,

we see no need to further address this matter. Similarly, the record supports the

administrative judge’s finding that the appellant offered nothing more than mere

speculation that her removal was motivated by retaliation for her EEO complaint. ID

at 18-19. Thus, there is no showing of motivating factor in this regard, and there is no

need to further address this issue. See Pridgen, 2022 MSPB 31, ¶¶ 21-22, 43-44, 47.

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.

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).

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.

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