# Toccara Greene v. Department of the Army

> Merit Systems Protection Board · May 6, 2024

URL: https://www.frixlaw.com/law-library/cases/9966609

## Case

- **Court:** Merit Systems Protection Board
- **Decided:** May 6, 2024
- **Precedential status:** Unpublished
- **Opinion:** Opinion
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD

TOCCARA A. GREENE, DOCKET NUMBER
Appellant, DA-0752-19-0460-I-2

v.

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THIS FINAL ORDER IS NONPRECEDENTIAL 1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

1
A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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).
2
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.
2

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.
3
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.
3

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

4
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.
4

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
5
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.
6
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.
5

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.
6

(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.
7

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).

7
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.
8

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
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.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .

FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9966609. Public record. Not legal advice.