Opinion

Catherine Avila v. Department of Agriculture

Court: Merit Systems Protection Board
Filed: May 16, 2024
Status: Unpublished
Cited by: 0 cases
Authority: More cited than 16.1%

finding that 29 U.S.C. § 633a prohibits not just age-based discrimination, but retaliation for complaints of age-based discrimination as well

How later courts described this case

finding that 29 U.S.C. § 633a prohibits not just age-based discrimination, but retaliation for complaints of age-based discrimination as well

Written by the judges who cited it.

The opinion

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

CATHERINE A. AVILA, DOCKET NUMBER

Appellant, SF-0752-17-0488-I-1

DEPARTMENT OF AGRICULTURE, DATE: May 16, 2024

Agency.

THIS FINAL ORDER IS NONPRECEDENTIAL 1

Brook L. Beesley , Alameda, California, for the appellant.

Marcus Alonzo Mitchell, Albuquerque, New Mexico, 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 removal. On petition for review, she argues that the administrative

judge abused his discretion in denying her motions to compel discovery and

postpone the hearing, contends that he erred in finding that the agency proved

that she engaged in conduct unbecoming a Federal employee, and reasserts two

affirmative defenses not addressed in the initial decision. Petition for Review

A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

(PFR) File, Tab 3 at 1-7. 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. Except as expressly MODIFIED to

correct a factual error in the administrative judge’s consideration of the

appellant’s sex discrimination affirmative defense and address the appellant’s

claim that the agency violated the Consolidated Appropriations Act of 2016

(CAA) 2 in removing her, we AFFIRM the initial decision.

The appellant argues that she was denied the opportunity to submit

evidence and testimony contesting two prior disciplinary actions, which are not

the subject of this appeal, but would allow her to establish her sex discrimination

affirmative defense. PFR File, Tab 3 at 2, 6-7. An administrative judge has wide

discretion to control the proceedings, including the authority to exclude evidence

and witnesses that he believes would be irrelevant, immaterial, or unduly

repetitious. Parker v. Department of Veterans Affairs, 122 M.S.P.R. 353, ¶ 21

(2015); 5 C.F.R. § 1201.41(b)(8), (10). Here, the Board may conduct only a

limited review of the appellant’s prior discipline because those actions were in

writing, the appellant had an opportunity to challenge them, and they are a matter

The appellant cites to several versions of the CAA. PFR File, Tab 3 at 6. The CAA

cited here is relevant to Government expenditures during the time periods relevant to

this appeal. Pub. L. No. 114-113, § 542, 129 Stat. 2242, 2242, 2332-33 (2015).

of record. Initial Appeal File (IAF), Tab 31, Initial Decision (ID) at 16-17; see

Bolling v. Department of the Air Force, 9 M.S.P.R. 335, 338-40 (1981) (setting

forth the three-part criteria for conducting a limited review of a prior disciplinary

action that the agency relied upon in taking the disciplinary action at issue). This

review is limited to the record on the prior discipline, and no new evidence or

argument, other than the appellant’s reasons for the challenge, is admissible.

Bolling, 9 M.S.P.R. at 340. Given the limited nature of the Board’s review of her

prior disciplinary actions, the administrative judge appropriately denied the

appellant’s request to present a witness and letter, which she believes would

support her assertion that the prior discipline was unwarranted and

discriminatory. PFR File, Tab 3 at 2, 6-7; ID at 16-17. Accordingly, the

appellant has not shown that the administrative judge abused his discretion in

denying that evidence.

The administrative judge denied the appellant’s equal employment

opportunity affirmative defenses, including her claim of sex discrimination. ID

at 14-21. Neither party has raised any additional challenges to those findings on

review. Nonetheless, we take this opportunity to correct the administrative

judge’s factual findings concerning the appellant’s sex discrimination affirmative

defense, still affirming his determination that the agency did not engage in such

discrimination.

To prove her discrimination or retaliation claims under Title VII and the

Age Discrimination in Employment Act, an appellant must show that the

prohibited consideration was a motivating factor in how the agency made its

decision. Pridgen v. Office of Management and Budget, 2022 MSPB 31,

¶¶ 20-22, 30 (addressing this standard in the context of claims of age and sex

discrimination and of retaliation for opposing Title VII discrimination); see

Gomez-Perez v. Potter, 553 U.S. 474, 491 (2008) (finding that 29 U.S.C. § 633a

prohibits not just age-based discrimination, but retaliation for complaints of

age-based discrimination as well). One way an appellant may establish a

discrimination or retaliation claim is through comparator evidence, or evidence

relating to the treatment of similarly situated employees. Pridgen, 2022 MSPB

31, ¶ 27. To be similarly situated, comparators must have reported to the same

supervisor, been subjected to the same standards governing discipline, and

engaged in conduct similar to the appellant’s without differentiating or mitigating

circumstances. Id.

In finding that the appellant did not prove her sex discrimination

affirmative defense, the administrative judge determined that, unlike the

appellant, none of the three males she alleged were similarly situated were

charged with offenses related to the cultivation and distribution of marijuana. ID

at 16-17. This finding is incorrect, in part. The deciding official, who was

involved in all four of the disciplinary actions, testified that two of the three male

employees were charged with conduct unbecoming related to cultivating

marijuana at their homes. Hearing Transcript (HT) at 126-28, 133-34, 157

(testimony of the deciding official); IAF, Tab 4 at 27-28. Even so, the

circumstances of the appellant’s situation were materially different. The record

reflects that none of the identified male employees were charged with selling or

being associated with the sale of marijuana from their homes or had any prior

discipline, whereas the appellant was charged with having marijuana cultivated

at, processed at, and distributed from her home and had two prior instances of

discipline. IAF, Tab 4 at 21, 26-27, 51; HT at 126-28, 133-34, 157 (testimony of

the deciding official). The administrative judge credited the deciding official’s

testimony that she decided not to offer the appellant a last chance settlement

agreement in lieu of removal, as she had offered the identified male employees,

because of the appellant’s prior discipline. ID at 17. After reviewing the record,

we agree with the administrative judge that the appellant did not prove that her

sex was a motivating factor in the agency’s decision to remove her. ID at 16-17.

We therefore find that the administrative judge’s factual error was harmless.

Panter v. Department of the Air Force, 22 M.S.P.R. 281, 282 (1984) (finding that

an adjudicatory error that is not prejudicial to a party’s substantive rights

provides no basis for reversal of an initial decision).

As argued below, the appellant reasserts her claim that the agency violated

section 542 of the CAA by expending resources that interfered with her husband’s

possession and use of medicinal-marijuana, which was legal under California

state law. 3 PFR File, Tab 3 at 3-5; IAF, Tab 18 at 3, 5-6. Essentially, the

appellant alleged that the agency’s action was not in accordance with the law,

thus requiring reversal. See 5 U.S.C. § 7701(c)(2)(C). The appellant bears the

burden of proving her affirmative defenses by preponderant evidence. 5 C.F.R.

§ 1201.56(b)(2)(i)(C). Under section 542, the Department of Justice was

prohibited from using funds during the Fiscal Year ending September 30, 2016,

and appropriated under the CAA that interfered with California’s, and other

identified states’, implementation of medicinal marijuana laws. There is no

indication from the plain language of the identified statutory provision that the

agency, which is separate from the Department of Justice, was prohibited from

conducting an independent investigation into the marijuana growing operations

occurring on the appellant’s property. See Miller v. Department of

Transportation, 86 M.S.P.R. 293, ¶ 7 (2000) (explaining that “[t]he starting point

Although the appellant did not object to the administrative judge’s failure to identify

the appellant’s CAA violation claim as an issue on appeal, we find that she did not

waive or abandon it because she raised substantive arguments as to this claim in her

prehearing submission, presented evidence on this issue at the hearing, and continues to

meaningfully argue the issue on review. IAF, Tab 18 at 5-6, Tab 22 at 1-2; HT

at 92-92, 105 (testimony of a Forest Service Special Agent on cross examination); see

Thurman v. U.S. Postal Service, 2022 MSPB 21, ¶¶ 17-18 (setting forth a nonexhaustive

list of factors for determining whether an appellant waived or abandoned a previously

identified affirmative defense, such as the thoroughness and clarity with which the

appellant raised his affirmative defense, the degree to which the appellant continued to

pursue his affirmative defense in the proceedings below after initially raising it, and

whether the appellant objected to a summary of the issues to be decided that failed to

include the potential affirmative defense when specifically afforded an opportunity to

object and the consequences of his failure were made clear). Although the

administrative judge did not address this affirmative defense in the initial decision, the

appellant’s submissions below show that she nevertheless understood her burden of

showing that the agency violated the CAA. IAF, Tab 18 at 5-6.

in every case involving construction of a statute is the language itself”) (quoting

Landreth Timber Company v. Landreth, 471 U.S. 681, 685 (1985) (citation

omitted)). Although the appellant argues that the CAA prohibition applies to

Federal law enforcement operations generally, and thus the agency, there is no

basis for reaching such a conclusion. PFR File, Tab 3 at 4-5; see Joseph v.

Devine, 19 M.S.P.R. 66, 68 (1984) (explaining that, under the doctrine of unius

est exclusio alterius, when exceptions to a general rule are specifically

enumerated, it is not ordinarily permissible to read additional exceptions into the

rule). Accordingly, the appellant’s affirmative defense that the agency’s action is

not in accordance with the law is not a basis for reversing her removal. 4

Finally, after the record closed on review, the appellant filed a motion

seeking leave to submit a new pleading. PFR File, Tabs 4, 10. Specifically, she

argues that President Biden changed the law by granting a pardon for the Federal

crime of possession of marijuana. PFR File, Tab 10 at 4-5. New evidence or

legal argument that was previously unavailable despite a party’s due diligence

warrants review if it is of sufficient weight to merit an outcome different from

that of the initial decision. See Russo v. Veterans Administration, 3 M.S.P.R.

345, 349 (1980) (holding that, to constitute “new and material” evidence for

purposes of granting a petition for review, the new evidence must be of sufficient

weight to warrant a different outcome from that ordered by the presiding official);

5 C.F.R. § 1201.115(d) (providing that the Board may grant review based on new

On review the appellant argues that the constitutionality of the agency’s action should

be “examine[d]” to determine whether it violated the appellant’s freedom of association

with her husband, a lawful marijuana user. PFR File, Tab 3 at 3. The administrative

judge did not address this affirmative defense in the initial decision, and we decline to

consider it because we find that the appellant has waived or abandoned this claim. The

appellant, who was represented at all times of the appeal, committed one sentence of her

prehearing submission to this affirmative defense; offered no evidence in support of her

freedom of association assertions; did not object to the prehearing order’s failure to

identify this affirmative defense as an issue on appeal, despite having an opportunity to

do so; and did not elaborate on this argument on review. IAF, Tab 18 at 3, Tab 22

at 1-2, Tab 24; PFR File, 3 at 3; see Thurman, 2022 MSPB 21, ¶¶ 17-18. Accordingly,

we decline to address this argument.

and material evidence or legal argument that was not available when the record

closed below). According to the appellant this proclamation means that her

removal is now “legally erroneous.” PFR File, Tab 10 at 5-6. We are not

persuaded.

The agency charged the appellant with conduct unbecoming a Federal

employee. IAF, Tab 4 at 51. Intent is not an element of a conduct unbecoming

charge. Cross v. Department of the Army, 89 M.S.P.R. 62, ¶ 9 (2001). Nor is an

agency required to prove that an appellant violated a law that was not part of its

charge. See Canada v. Department of Homeland Security, 113 M.S.P.R. 509, ¶ 9

(2010) (determining that an administrative judge erred to the extent that she

considered whether an agency that charged employees with conduct unbecoming

proved that the employees violated a policy that was not part of the charge).

On October 6, 2022, President Biden issued a proclamation pardoning

individuals lawfully present in the United States, including citizens, whether

convicted or not, of “the offense of simple possession of marijuana in violation of

the Controlled Substances Act.” Proclamation No. 10,467, 87 Fed. Reg. 61441

(Oct. 6, 2022). In support of its charge, the agency alleged that the appellant

admitted that marijuana was grown, processed, packaged, and sold at her

property. IAF, Tab 4 at 51. It did not allege that the appellant violated the

Controlled Substances Act. IAF, Tab 4 at 51. In fact, the agency did not allege

that the appellant broke any laws whatsoever. Id. at 21-23, 51-53. Therefore, the

agency was not required to prove that the appellant committed the crime of

possession of marijuana. 5 Instead, it was required to prove that the appellant’s

conduct was unsuitable or detracted from her reputation. Miles v. Department of

Even if the President’s proclamation was material to the agency’s charge, it still would

not impact the outcome here. The President pardoned “only the offense of simple

possession of marijuana . . . , and not any other offenses related to marijuana.” 87 Fed.

Reg. at 61441. It is also a crime to “manufacture, distribute, or dispense” marijuana.

21 U.S.C. § 841(a)(1); see Bruhn v. Department of Agriculture, 124 M.S.P.R. 1, ¶ 15

(2016) (recognizing that it is illegal to manufacture or possess marijuana under the

Controlled Substances Act).

the Army, 55 M.S.P.R. 633, 637 (1992). That requirement was satisfied here.

Accordingly, the appellant’s new argument does not change the outcome of this

appeal, and we deny her motion for leave to make an additional submission.

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

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).

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.

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