Opinion

Vincent Gomes v. Department of Defense

Court: Merit Systems Protection Board
Filed: May 22, 2024
Status: Unpublished
Cited by: 0 cases
Authority: More cited than 16.2%

The opinion

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

VINCENT A. GOMES, DOCKET NUMBER

Appellant, SF-0752-19-0370-I-1

DEPARTMENT OF DEFENSE, DATE: May 22, 2024

Agency.

THIS FINAL ORDER IS NONPRECEDENTIAL 1

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

Christine J. Yen , Esquire, Stockton, California, for the agency.

BEFORE

Cathy A. Harris, Chairman

Raymond A. Limon, Vice Chairman

FINAL ORDER

The agency has filed a petition for review of the initial decision, which

reversed the agency’s decision to remove the appellant based on an alleged

violation of a last change settlement agreement (LCSA). On petition for review,

the agency argues that the administrative judge erred in concluding that the sick

leave provisions of the LCSA did not apply and that the medical documentation

submitted by the appellant was sufficient. Petition for Review (PFR) File, Tab 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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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).

at 12-19. It also argues that she improperly reconstituted the basis for the LCSA

violation when she considered whether the appellant’s documentation was

fraudulent and not just administratively unacceptable, and thus, that her finding

that the agency acted in bad faith was erroneous. Id. at 10-11. 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 VACATE the administrative judge’s finding that the

agency acted in bad faith when it charged the appellant with fraud, and to provide

the appropriate standards of causation for the appellant’s affirmative defenses, we

AFFIRM the initial decision.

The administrative judge correctly found that the sick leave provisions of

the LCSA do not apply. Initial Appeal File (IAF), Tab 42, Initial Decision (ID)

at 13. Therefore, we agree with her conclusion that the waiver provision

prohibiting an appeal of the appellant’s removal to the Board does not apply.

ID at 14-15; see Bruhn v. Department of Agriculture, 124 M.S.P.R. 1, ¶ 9 (2016)

(stating that a waiver of appeal rights in a LCSA should not be enforced when the

appellant shows that he complied with the agreement). However, in furtherance

of her finding that the waiver provision does not apply, the administrative judge

also concluded that the agency acted in bad faith when it charged the appellant

with submitting fraudulent medical documentation. ID at 14-15. In its petition

for review, the agency asserts that this conclusion was in error. PFR File,

Tab 10-11.

By way of background, in the removal notice, the Chief of Security and

Emergency Services explained the context of the LCSA and noted that the

appellant’s prior removal from March 29, 2017, was held in abeyance for 2 years

absent any violations of the LCSA. IAF, Tab 5 at 18. He then discussed the

Notice of Violation of the LCSA and explained the agency’s basis for

determining that the appellant violated the terms of the LCSA. Id. at 18-19.

While not included in the Notice of Violation, the Chief of Security and

Emergency Services added in the removal notice that the agency believed that a

February 11, 2019 document was “fraudulent.” Id. In the initial decision, the

administrative judge construed this language as a “charge of falsification,” and

found that the appellant did not violate the LCSA by submitting a fraudulent

medical note. ID at 14. She further concluded that the agency acted in bad faith

when it charged the appellant with fraud. ID at 15.

On review, the agency argues that the administrative judge “improperly

reconstituted the basis” for the LCSA violations and erroneously found that the

agency acted in bad faith by charging the appellant with fraud. PFR File, Tab 1

at 10-11. We agree. In the LCSA, the parties agreed that, if the appellant failed

to follow the agreement at any time during the 2-year period, the appellant “will

be immediately removed from Federal service.” IAF, Tab 5 at 50. Elsewhere, the

LCSA also provided that, if an alleged violation of the agreement, as detailed in a

Notice of Violation, is substantiated, the appellant will be issued a written

decision regarding the violation and will not receive a new proposed removal or

new 30-day advanced notice. Id. at 54. In Lizzio v. Department of the Army, the

U.S. Court of Appeals for the Federal Circuit analyzed a similar agreement and

concluded that an alleged breach of an LCSA is not a separate charge, but rather,

an event that triggers the reinstatement of the original charge. 534 F.3d 1367,

1383, 1386 (Fed. Cir. 2008). Thus, the “charges” that served as the basis of the

appellant’s instant removal were the charges which brought about the LCSA in

2017, in conjunction with the violation of the LCSA. IAF, Tab 5 at 50. As such,

we agree with the agency that, contrary to the administrative judge’s discussion,

the agency did not “charge” the appellant with falsification. ID at 14; IAF, Tab 5

at 18.

Similarly, because there was not a charge of falsification or fraud that led

to the appellant’s removal, we vacate the administrative judge’s finding that

“[t]he agency acted in bad faith when it charged the appellant with fraud.” ID

at 15. Although the Chief of Security and Emergency Services discusses in the

decision removing the appellant the agency’s belief that the February 11, 2019

document was fraudulent, it is the Notice of Violation that served the basis of the

removal and that notice did not discuss fraud or falsification. IAF, Tab 5

at 26-27. Nonetheless, because we agree with the administrative judge’s

conclusion that the appellant complied with the terms of the LCSA, we agree with

her ultimate conclusion that the LCSA’s waiver provision is unenforceable. ID

at 14-15; IAF, Tab 50, 54.

Additionally, the appellant raised below the affirmative defenses of reprisal

for equal employment opportunity (EEO) activity, disparate treatment disability

discrimination, and failure to accommodate. IAF, Tabs 19 at 2, 6, Tab 21 at 2-7.

The administrative judge correctly concluded that the appellant failed to establish

the EEO reprisal and disparate treatment disability discrimination claims, and

concluded that the appellant was collaterally estopped from raising the failure to

accommodate claim. ID at 22-28. However, we modify the initial decision with

respect to the standards of causation applicable to an EEO reprisal claim based on

disability discrimination, as explained below.

The appellant alleged that he filed an EEO complaint concerning the partial

denial of his request for a reasonable accommodation of his disability. IAF,

Tab 19 at 25-34. The administrative judge found that he failed to explain “how

his EEO complaint was a motivating factor in the agency charging him with

violating the LC[S]A and removing him.” ID at 24. However, in Pridgen v.

Office of Management and Budget, 2022 MSPB 31, ¶¶ 46-47, the Board found

that, for an appellant to establish a claim of reprisal for EEO activity based on a

disability, he must show that his request for a reasonable accommodation, which

is protected under the under the Rehabilitation Act, was a but-for cause of the

agency action. Because the administrative judge correctly concluded that the

appellant failed to meet the lower standard of motivating factor, we find that he

could not have met the higher but-for standard. See Haas v. Department of

Homeland Security, 2022 MSPB 36, ¶ 32 (modifying an initial decision to

recognize that the more stringent but-for standard applied because an employee’s

EEO reprisal claim arose under the Rehabilitation Act, while affirming the

administrative judge’s conclusion that the employee failed to satisfy even the

lesser motivating factor standard). As such, we affirm the administrative judge’s

ultimate conclusion but modify the initial decision to include the appropriate

standard of causation.

ORDER

We ORDER the agency to cancel the appellant’s removal and to restore the

appellant effective March 26, 2019. See Kerr v. National Endowment for the

Arts, 726 F.2d 730 (Fed. Cir. 1984). The agency must complete this action no

later than 20 days after the date of this decision.

We also ORDER the agency to pay the appellant the correct amount of

back pay, interest on back pay, and other benefits under the Office of Personnel

Management’s regulations, no later than 60 calendar days after the date of this

decision. We ORDER the appellant to cooperate in good faith in the agency’s

efforts to calculate the amount of back pay, interest, and benefits due, and to

provide all necessary information the agency requests to help it carry out the

Board’s Order. If there is a dispute about the amount of back pay, interest due,

and/or other benefits, we ORDER the agency to pay the appellant the undisputed

amount no later than 60 calendar days after the date of this decision.

We further ORDER the agency to tell the appellant promptly in writing

when it believes it has fully carried out the Board’s Order and of the actions it has

taken to carry out the Board’s Order. The appellant, if not notified, should ask

the agency about its progress. See 5 C.F.R. § 1201.181(b).

No later than 30 days after the agency tells the appellant that it has fully

carried out the Board’s Order, the appellant may file a petition for enforcement

with the office that issued the initial decision on this appeal if the appellant

believes that the agency did not fully carry out the Board’s Order. The petition

should contain specific reasons why the appellant believes that the agency has not

fully carried out the Board’s Order, and should include the dates and results of

any communications with the agency. 5 C.F.R. § 1201.182(a).

For agencies whose payroll is administered by either the National Finance

Center of the Department of Agriculture (NFC) or the Defense Finance and

Accounting Service (DFAS), two lists of the information and documentation

necessary to process payments and adjustments resulting from a Board decision

are attached. The agency is ORDERED to timely provide DFAS or NFC with all

documentation necessary to process payments and adjustments resulting from the

Board’s decision in accordance with the attached lists so that payment can be

made within the 60-day period set forth above.

NOTICE TO THE APPELLANT REGARDING

YOUR RIGHT TO REQUEST

ATTORNEY FEES AND COSTS

You may be entitled to be paid by the agency for your reasonable attorney

fees and costs. To be paid, you must meet the requirements set forth at Title 5 of

the United States Code (5 U.S.C.), sections 7701(g), 1221(g), or 1214(g). The

regulations may be found at 5 C.F.R. §§ 1201.201, 1201.202, and 1201.203. If

you believe you meet these requirements, you must file a motion for attorney fees

and costs WITHIN 60 CALENDAR DAYS OF THE DATE OF THIS DECISION.

You must file your motion for attorney fees and costs with the office that issued

the initial decision on your appeal.

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

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. 3 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