The opinion
UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
JUANITA WINSTON, DOCKET NUMBER
Appellant, AT-0714-18-0481-I-1
v.
DEPARTMENT OF VETERANS DATE: May 22, 2024
AFFAIRS,
Agency.
THIS ORDER IS NONPRECEDENTIAL 1
Wendell Echols, Sr. , Tuskegee, Alabama, for the appellant.
Kristin Bloodworth , Esquire, Decatur, Georgia, for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
REMAND ORDER
The appellant has filed a petition for review of the initial decision, which
affirmed her removal taken under the authority of the Department of Veterans
Affairs Accountability and Whistleblower Protection Act of 2017 (VA
Accountability Act), Pub. L. No. 115-41, § 202(a), 131 Stat. 862, 869-73
(codified as amended at 38 U.S.C. § 714). For the reasons discussed below, we
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
GRANT the petition for review, VACATE the initial decision, and REMAND the
case to the Atlanta Regional Office for further adjudication in accordance with
this Remand Order. On remand, the administrative judge should: (1) find that
the agency cannot prove specifications 1 and 2 of the charge; (2) provide the
parties with an opportunity to present evidence and argument regarding whether
the agency’s error in reviewing the proposed removal for substantial evidence
was harmful; (3) permit the appellant to pursue her claim of harmful procedural
error concerning the agency’s alleged violation of the applicable collective
bargaining agreement (CBA); (4) reassess the appellant’s claim of equal
employment opportunity (EEO) retaliation consistent with Pridgen v. Office of
Management and Budget, 2022 MSPB 31; and (5) review the agency’s penalty
selection by considering the Douglas factors.
BACKGROUND
Effective May 18, 2018, the agency removed the appellant from her
position as a WG-03 Food Service Worker at the agency’s Central Alabama
Veterans Health Care System (CAVHCS) pursuant to the VA Accountability Act.
Initial Appeal File (IAF), Tab 8 at 4, 9-11, Tab 13 at 7. The agency removed the
appellant based on a single charge of improper conduct, which was supported by
seven specifications. IAF, Tab 8 at 9-14. The specifications related to the
appellant’s rude and profane comments between April 6, 2017, and February 20,
2018, which were made to her coworkers, her supervisors, and a patient at
CAVHCS. Id. at 12-13, 15-45. One specification related to a verbal altercation
with her twin sister, who also worked at CAVHCS, on January 11, 2018, which
required the VA Police to file an official report. Id. at 12, 35-37.
The appellant timely filed a Board appeal, challenging her removal and
contending that the agency retaliated against her for a prior EEO complaint and
created a hostile work environment. IAF, Tab 1, Tab 4, Tab 14 at 4-5. The
appellant’s amended appeal form indicated a possible third affirmative defense—
3
harmful error when the agency allegedly failed to comply with the applicable
CBA. IAF, Tab 4 at 3, Tab 14 at 6. After holding the appellant’s requested
hearing, IAF, Tab 4 at 2, the administrative judge issued an initial decision
sustaining the removal, IAF, Tab 20, Initial Decision (ID) at 2, 16. The
administrative judge found that the agency proved all seven specifications in
support of the improper conduct charge and therefore sustained the charge. ID
at 4-14. She further found that the appellant failed to prove her affirmative
defenses of EEO retaliation or a hostile work environment. ID at 15-16.
The appellant has filed a petition for review. Petition for Review (PFR)
File, Tab 1. 2 The agency has responded in opposition to the appellant’s petition,
and the appellant has filed a reply to the agency’s response. PFR File, Tabs 4-5.
ANALYSIS
Specifications 1 and 2 of the agency’s charge cannot be sustained because
38 U.S.C. § 714 does not apply retroactively.
The agency removed the appellant under 38 U.S.C. § 714, in part, for
conduct predating the VA Accountability Act. After the administrative judge
issued the initial decision in the instant appeal, the U.S. Court of Appeals for
Federal Circuit issued Sayers v. Department of Veterans Affairs, 954 F.3d 1370
(Fed. Cir. 2020). In Sayers, the court explained that the VA Accountability Act
introduced, as applicable here, an expedited, less rigorous alternative to
traditional civil service adverse action appeals under chapter 75. Sayers,
954 F.3d at 1374-79. The court determined that the agency could not remove the
petitioner under the VA Accountability Act for misconduct that predated its
June 23, 2017 enactment because the petitioner was entitled to the substantive
2
The appellant attempted to refile her petition for review with attachments, but the
Office of the Clerk of the Board rejected the filing, returned it to her, and informed her
of how to file a motion for leave to file an additional pleading. PFR File, Tab 3. The
appellant has not filed any such motion, nor has she included any attachments with her
reply to the agency’s response. PFR File, Tab 5.
4
civil service protections in effect at the time of his alleged misconduct. Id.
at 1381. Thus, the court vacated the petitioner’s removal. Id. at 1382.
In Wilson v. Department of Veterans Affairs, 2022 MSPB 7, ¶¶ 27-33, we
considered whether it was possible to sustain the agency’s adverse action solely
based on post-June 23, 2017 misconduct when the agency’s charge included
alleged misconduct that both predated and postdated June 23, 2017. We
analogized the agency’s action under 38 U.S.C. § 714 to a due process error that
affects one charge but does not necessarily require vacating the remaining
charges. Id., ¶ 30 (citing Boss v. Department of Homeland Security, 908 F.3d
1278, 1279, 1282-83 (Fed. Cir. 2018)). Assuming that we could separate
specifications of a charge using the same reasoning, we found it inappropriate to
do so under the circumstances of the case because the underlying instances of
misconduct were so factually interrelated that they could not be fairly separated.
Wilson, 2022 MSPB 7, ¶¶ 30-33. In that case, the agency’s charge of neglect of
duty was based on a “steady decline” based on deficiencies of the appellant’s
subordinates over a period spanning at least 8 months, only 1 of which fell after
the enactment of the VA Accountability Act. Id., ¶ 31. Therefore, we reversed
the agency’s action. Id., ¶ 33.
We find the instant case distinguishable from the circumstances in Sayers
and Wilson. Here, the agency removed the appellant for seven discrete instances
of alleged misconduct as set forth in its seven, dated specifications. IAF, Tab 8
at 12-13. Only two of these specifications—specifications 1 and 2—concerned
alleged misconduct by the appellant prior to June 23, 2017, the enactment of the
VA Accountability Act. Id. at 12. As the agency was not permitted to take
adverse action against the appellant under § 714 with respect to these two
specifications, we disagree with the administrative judge’s conclusion that the
agency proved specifications 1 and 2. Generally, when more than one event or
factual specification supports a single charge, proof of one or more, but not all, of
the supporting specifications is sufficient to sustain the charge. Burroughs v.
5
Department of the Army, 918 F.2d 170, 172 (Fed. Cir. 1990). Thus, we conclude
that the agency’s error as to specifications 1 and 2 was harmless as to the
remaining specifications, any of which, if proven, is sufficient to sustain its
charge. IAF, Tab 8 at 12-13; see Burroughs, 918 F.2d at 172; cf. Wilson,
2022 MSPB 7, ¶¶ 30-33.
On review, the appellant does not expressly challenge or dispute the
administrative judge’s findings that the agency proved all specifications of the
improper conduct charge by substantial evidence, and thus the charge itself. PFR
File, Tab 1 at 1-2; ID at 4-14. Under § 714, the Board shall uphold the agency’s
decision to remove a covered individual if it is supported by substantial evidence,
which is the degree of relevant evidence that a reasonable person, considering the
record as a whole, might accept as adequate to support a conclusion, even though
other reasonable persons might disagree. 38 U.S.C. § 714(d)(2)(A), (3)(B);
5 C.F.R. § 1201.4(p). We discern no basis to disturb the administrative judge’s
well-reasoned findings that the agency proved specifications 3-7 by substantial
evidence, and the administrative judge may incorporate these findings in the
remand initial decision. ID at 8-14. However, if any argument or evidence
presented by the parties concerning the issues on remand, as set forth herein,
affects the administrative judge’s analysis of these specifications, she should
address such argument or evidence in the remand initial decision.
On remand, the administrative judge should entertain any claim of harmful error
raised by the appellant concerning the agency’s review of the proposed removal
for substantial evidence.
In sustaining the appellant’s proposed removal, the deciding official
indicated that the allegations described in the proposal were “supported by
substantial evidence.” IAF, Tab 8 at 9. In Rodriguez v. Department of Veterans
Affairs, 8 F.4th 1290, 1296-1301 (Fed. Cir. 2021), the Federal Circuit determined
that the agency erred by applying a substantial evidence burden of proof to its
internal review of a disciplinary action under 38 U.S.C. § 714. The court found
6
that substantial evidence is the standard of review to be applied by the Board,
whereas the agency’s deciding official must use a preponderance of the evidence
burden of proof. Id. at 1298-1301. In implementing the Federal Circuit’s
decision in Rodriguez, we determined that the agency’s application of the
substantial evidence standard of proof should be analyzed as a harmful error
affirmative defense. Semenov v. Department of Veterans Affairs, 2023 MSPB 16,
¶¶ 22-25.
Because Rodriguez and Semenov were issued after the issuance of the
initial decision and the appellant’s petition for review in the instant appeal, the
administrative judge should entertain any new harmful error affirmative defense
that the appellant might raise based on the same. If the appellant raises such an
affirmative defense, the administrative judge should provide the parties with an
opportunity to present evidence and argument, including a supplemental hearing,
if requested, addressing this issue. See 5 U.S.C. § 7701(a)(1), (b)(1). The
administrative judge should then address this affirmative defense in her remand
initial decision.
Regardless of whether the appellant proves harmful error, if any argument
or evidence on remand affects the administrative judge’s analysis of the other
issues, the administrative judge should address such argument or evidence in the
remand initial decision.
On remand, the administrative judge should permit the appellant to pursue her
claim of harmful procedural error concerning the agency’s alleged violation of
the applicable CBA.
The appellant contends on review that the agency engaged in harmful
procedural error under 5 C.F.R. § 1201.56(c)(3) in November 2017,
approximately 6 months before her removal. PFR File, Tab 1 at 1. She appeared
to raise a harmful procedural error defense before the administrative judge by
alleging that the agency violated the applicable CBA by failing to apply
progressive discipline before removing her. IAF, Tab 4 at 3, Tab 14 at 6. The
7
administrative judge did not include harmful error as an affirmative defense in the
order and summary of telephonic prehearing conference, and the appellant never
objected to the administrative judge’s characterization of her affirmative
defenses. IAF, Tab 17 at 2-3. However, the appellant, through her non-attorney
representative, appeared to argue this affirmative defense at the hearing by
questioning the proposing official about whether the agency applies progressive
discipline. IAF, Tab 18-2, Hearing Recording. Considering the factors set forth
in Thurman v. U.S. Postal Service, 2022 MSPB 21, ¶¶ 17-28, and exercising our
discretion to consider any argument on appeal regardless of whether it was raised
below, 5 C.F.R. § 1201.115(e), we instruct the administrative judge to permit the
parties to present evidence and argument on this issue on remand. If the appellant
continues to pursue this argument on remand, the administrative judge should
address it in her remand initial decision. Moreover, if any argument or evidence
on this issue affects the administrative judge’s analysis of the other issues, she
should address such argument or evidence in the remand initial decision.
On remand, the administrative judge should reassess the appellant’s claim of EEO
retaliation consistent with Pridgen .
On review, the appellant reiterates her argument that the agency created a
hostile work environment and removed her in retaliation for a 2017 EEO
complaint. PFR File, Tab 1 at 1-2, Tab 5 at 2-3; IAF, Tab 14 at 4, 16. We find
that further adjudication of the appellant’s EEO retaliation claim is warranted. 3
The administrative judge, in both the order and summary of the telephonic
prehearing conference and the initial decision, erroneously applied the “genuine
nexus” reprisal standard set forth in Warren v. Department of the Army, 804 F.2d
3
The agency stated that the appellant filed an EEO case on April 24, 2018, alleging that
her removal was in retaliation for prior EEO activity, but that the case was still in the
informal stage. IAF, Tab 14 at 16. Thus, it appears that the appellant’s Board appeal
alleging the same subject matter was filed prior to any formal EEO complaint. IAF,
Tab 1 at 1, Tab 14 at 16. Accordingly, we find that the appellant has elected to proceed
before the Board on her EEO retaliation claim. See Crumpton v. Department of the
Treasury, 98 M.S.P.R. 115, ¶ 10 (2004); see also 29 C.F.R. § 1614.302(b).
8
654, 656-58 (Fed. Cir. 1986), to the appellant’s claim of EEO retaliation. IAF,
Tab 17 at 2-3; ID at 15. She found that the appellant failed to show that anyone
involved in her removal was aware of her protected activity and, therefore, failed
to show by preponderant evidence that her removal was in retaliation for EEO
activity. ID at 15. The Board overruled the “genuine nexus” standard for
analyzing claims of EEO retaliation in Savage v. Department of the Army,
122 M.S.P.R. 612, ¶¶ 48-51 (2015), overruled in part by Pridgen, 2022 MSPB 31,
¶¶ 23-25. In Pridgen, we further clarified the evidentiary standards and burdens
of proof for EEO retaliation claims, and overruled Savage by finding that the
McDonnell Douglas framework applies. Pridgen, 2022 MSPB 31, ¶¶ 20-25,
30-33, 44-47; see McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-04
(1973). On remand, the administrative judge shall provide the parties an
opportunity to submit relevant evidence and argument on this issue and, in the
remand initial decision, reassess the appellant’s affirmative defense of EEO
retaliation in accordance with Pridgen. 4
Furthermore, the administrative judge considered the appellant’s
allegations of a hostile work environment and found that the appellant failed to
show that she was subjected to a hostile work environment based on any protected
class under Title VII, i.e., sex, race, color, religion, or national origin. ID
at 15-16. However, as acknowledged by the administrative judge in her
prehearing conference order, IAF, Tab 17 at 3, evidence of a hostile work
environment might also constitute circumstantial evidence of a retaliatory motive,
see Pridgen, 2022 MSPB 31, ¶¶ 24, 30. In her reply to the agency’s response to
her petition for review, the appellant expressly alleges that her EEO complaint
concerning unlawful discrimination caused disparate treatment from management.
4
On review, the appellant alleges broadly that the EEO complaint was based on
unlawful discrimination under 5 U.S.C. § 2302(b)(1). PFR File, Tab 1 at 1, Tab 5 at 2.
Her burden of proof depends on whether she alleged Title VII and/or age
discrimination, or disability discrimination in her prior EEO complaint. See Pridgen,
2022 MSPB 31, ¶¶ 20-22, 30, 44-47; see also Desjardin v. U.S. Postal Service,
2023 MSPB 6, ¶ 33.
9
PFR File, Tab 5 at 2. Therefore, on remand, the administrative judge should
consider any argument or evidence of harassment in the context of her EEO
retaliation claim.
If any argument or evidence on the appellant’s EEO retaliation claim
affects the administrative judge’s analysis of the other issues, she should address
such argument or evidence in the remand initial decision on those issues.
On remand, the administrative judge should review the agency’s penalty selection
by considering the Douglas factors.
The administrative judge found that, because the agency proved the charge
by substantial evidence and the appellant failed to prove her affirmative defenses
by preponderant evidence, the removal penalty must be affirmed. ID at 16. She
stated that the reasonableness of the agency’s imposed penalty, along with a
consideration of mitigating and aggravating factors under Douglas v. Veterans
Administration, 5 M.S.P.R. 280, 305-06 (1981), was immaterial, but she did not
have the benefit of subsequent Federal Circuit decisions on this issue. ID at 3;
see Sayers, 954 F.3d at 1379; see also Connor v. Department of Veterans Affairs,
8 F.4th 1319, 1323-27 (Fed. Cir. 2021); Brenner v. Department of Veterans
Affairs, 990 F.3d 1313, 1322-27 (Fed. Cir. 2021). In Sayers, the Federal Circuit
clarified that, while the Board may not “mitigate the penalty,” § 714 nevertheless
requires the Board to review for substantial evidence the entirety of the agency’s
removal decision—including the penalty. Sayers, 954 F.3d at 1379. In Connor,
the Federal Circuit addressed the continued relevance of the Douglas factors and
concluded that § 714 “did not alter preexisting law, which required the VA and
the Board to apply the Douglas factors to the selection and review of penalties in
VA disciplinary actions.” Connor, 8 F.4th at 1326. It stated, “if the Board
determines that the VA failed to consider the Douglas factors or that the chosen
penalty is unreasonable, the Board must remand to the VA for a redetermination
of the penalty.” Id. at 1326-27; see Semenov, 2023 MSPB 16, ¶¶ 44-49
10
(remanding the matter to the administrative judge to review the agency’s penalty
selection by considering the Douglas factors).
Here, the deciding official referenced some of the Douglas factors in
making her removal decision. IAF, Tab 8 at 9. She did not testify at the hearing.
The appellant testified about her personal health, her mother’s illness, and a lack
of progressive discipline in her removal, which the administrative judge
recognized as circumstances ordinarily considered as mitigating factors with
respect to the penalty but, in this case, were immaterial. ID at 16. On remand,
the administrative judge should permit the parties to submit additional evidence
and argument on the penalty issue, determine whether the agency proved by
substantial evidence that it properly applied the relevant Douglas factors and
whether the agency’s penalty was reasonable, and, if not, remand the matter to the
agency for a new decision on the appropriate penalty. See Semenov, 2023 MSPB
16, ¶ 50. The administrative judge should consider that specifications 1 and 2
cannot be sustained. See Payne v. U.S. Postal Service, 72 M.S.P.R. 646, 651
(1996) (stating that an agency’s failure to sustain all of its supporting
specifications may require, or contribute to, a finding that the agency’s penalty is
not reasonable).
The administrative judge need not consider other claims raised by the appellant
for the first time in her petition for review.
In her petition for review, the appellant mentioned her prior Board appeal
concerning her probationary termination, which the administrative judge
dismissed for lack of jurisdiction. PFR File, Tab 1 at 1, Tab 4 at 2; Winston v.
Department of Veterans Affairs, MSPB Docket No. AT-0752-17-0747-I-1, Initial
Decision at 1-3 (Oct. 4, 2017). Her prior Board appeal did not appear to involve
claims of discrimination or retaliation for engaging in EEO activity. Therefore,
to the extent that the appellant alleges retaliation for filing her prior Board
appeal, the standard under Warren, 804 F.2d at 658, would apply. See 5 U.S.C.
§ 2302(b)(9)(A)(ii); see also Pridgen, 2022 MSPB 31, ¶ 32.
11
However, the Board will generally not consider an argument raised for the
first time in a petition for review absent a showing that it is based on new and
material evidence not previously available despite the party’s due diligence.
Pridgen, 2022 MSPB 31, ¶ 34 n. 10; Banks v. Department of the Air Force,
4 M.S.P.R. 268, 271 (1980). As it does not appear that the appellant raised an
affirmative defense of retaliation for filing her prior Board appeal at any point
before the administrative judge, we find that the administrative judge need not
address this claim on remand.
Similarly, for the first time on review, the appellant raises a claim of
“retaliation for whistleblowing activities under 5 U.S.C. 2302(b)(8) and (b)(9)(A)
(i), (B), (C) or (D).” PFR File, Tab 1 at 2. She identifies, presumably as the
alleged whistleblowing activity, a police report that she allegedly filed against her
supervisor on February 22, 2018. Id. The appellant did not raise this affirmative
defense below or submit a February 22, 2018 police report into the record, and
the administrative judge did not identify any whistleblower reprisal affirmative
defense in her August 8, 2018 order and summary of the telephonic prehearing
conference. IAF, Tab 14, Tab 17 at 2-3. The appellant has not explained why
she did not raise a whistleblower reprisal affirmative defense below. PFR File,
Tabs 1, 5. Therefore, we find that she is precluded from doing so on review. See
Pridgen, 2022 MSPB 31, ¶ 34 n. 10; Banks, 4 M.S.P.R. at 271. Accordingly, the
administrative judge need not address the appellant’s whistleblower reprisal claim
on remand.
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ORDER
We vacate the initial decision and remand the appeal to the regional office
for further adjudication. In the remand initial decision, the administrative judge
may reincorporate prior findings as appropriate, consistent with this Remand
Order.
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.