Opinion

Tannie Jackson v. Department of the Army

Court: Merit Systems Protection Board
Filed: May 28, 2024
Status: Unpublished
Cited by: 0 cases
Authority: More cited than 16.2%

The opinion

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

TANNIE S. JACKSON, DOCKET NUMBER

Appellant, AT-1221-18-0334-W-1

DEPARTMENT OF THE ARMY, DATE: May 28, 2024

Agency.

THIS FINAL ORDER IS NONPRECEDENTIAL 1

Tannie S. Jackson , Columbia, South Carolina, pro se.

Eric J. Teegarden , Fort McCoy, Wisconsin, 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

denied her request for corrective action in connection with her individual right of

action (IRA) appeal. 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

A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

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

supplement the administrative judge’s analysis in support of his finding that the

agency met its burden of proof, we AFFIRM the initial decision.

BACKGROUND

The appellant filed a whistleblowing complaint with the Office of Special

Counsel (OSC) regarding what she described as the toxic leadership of her

immediate supervisor, the Director of the Department of Human Resources

(DHR), and the Chief of the 81st Readiness Division, about which she had filed a

complaint with the agency’s Office of Inspector General (OIG). Initial Appeal

File (IAF), Tab 1 at 11, Tab 15 at 9. She alleged to OSC that, because of her OIG

complaint, the agency had directed her lateral reassignment from her current

supervisory position to a nonsupervisory position. IAF, Tab 1 at 14-16.

After OSC notified the appellant that it had ended its inquiry into her allegations,

id. at 20, she filed a Board appeal, IAF, Tab 1. Following the hearing she

requested, the administrative judge issued an initial decision in which he denied

the appellant’s request for corrective action. IAF, Tab 28, Initial Decision (ID)

at 1, 19. The administrative judge found that the appellant proved that she

engaged in protected activity under 5 U.S.C. § 2302(b)(9)(C) when she filed her

OIG complaint, and that, based on knowledge and timing, she also proved that

that activity was a contributing factor in the agency’s decision to reassign her.

ID at 8-9. The administrative judge found, however, that the agency proved by

clear and convincing evidence that it would have reassigned the appellant, even

absent her protected activity. ID at 13-19.

On review, the appellant challenges the administrative judge’s finding that

the agency met its burden of proof. 2 Petition for Review (PFR) File, Tab 4

at 5-12. The agency has responded to the appellant’s petition. PFR File, Tab 9.

ANALYSIS

In finding that the agency proved by clear and convincing evidence that it

would have reassigned the appellant even absent her protected activity, the

administrative judge acknowledged that the Board applies the factors set forth by

our reviewing court in Carr v. Social Security Administration, 185 F.3d 1318

(Fed. Cir. 1999). Phillips v. Department of Transportation, 113 M.S.P.R. 73,

¶ 11 (2010); ID at 7. Those factors are: (1) the strength of the agency’s evidence

in support of its action; (2) the existence and strength of any motive to retaliate

on the part of agency officials who were involved in the decision; and (3) any

evidence that the agency takes similar actions against employees who are not

whistleblowers but who are otherwise similarly situated. Carr, 185 F.3d at 1323.

Regarding Carr factor (1), the strength of the agency’s evidence in support

of the appellant’s reassignment, the administrative judge found that the agency’s

evidence was supported by the independent findings of the individual assigned to

conduct the OIG investigation. ID at 11; IAF, Tab 6 at 38-47. The administrative

judge quoted substantially from the investigating officer’s report, including her

finding that a number of the witnesses she interviewed stated that the appellant

did not always treat subordinates with dignity and respect, as evidenced by

accounts of meetings and one-on-one interactions with her as well as email

traffic, and that this behavior negatively impacted the climate of the command;

We have not considered the two supplements the appellant filed after she filed her

petition, Petition for Review File, Tabs 5-6, because they are untimely with no good

cause shown, see 5 C.F.R. § 1201.114(g).

that she failed to ensure the well-being of her subordinates, and that, at times, she

could be perceived as overbearing and authoritarian; that she sometimes

admonished personnel in a harsh manner, evidencing a lack of supervisory skills;

that her behavior created fear, intimidation, and avoidance among staff; and that

her frequent criticism of her supervisor and the Division Chief caused a negative

climate within the Division. ID at 13-15; IAF, Tab 6 at 40-42.

The administrative judge considered the testimony of the investigating officer,

Hearing Compact Disc (HCD) (testimony of the investigating officer), which was

in accord, finding it to be succinct, forthright, and completely credible. ID at 16.

The administrative judge also considered the testimony of the Chief of Staff who

directed the appellant’s reassignment to the effect that there were two other bases

for his taking the action against her besides the results of the investigation, that

is, a 2015 “climate study” that revealed problems in the manner in which she

managed her subordinates, and a letter of admonishment he issued her for her

hiring practices. HCD (testimony of the Chief of Staff); ID at 17.

The administrative judge determined that the Chief of Staff’s testimony was

credible and persuasive. ID at 18. The administrative judge concluded that the

agency presented strong evidence in support of its action. ID at 13.

On review, the appellant argues that the investigating officer was not

independent because she reported to the Chief of Staff. PFR File, Tab 4 at 5.

As noted, the administrative judge found the investigating officer’s testimony to

be credible. ID at 16; see Hillen v. Department of the Army, 35 M.S.P.R. 453,

458 (1987). It is well established that the Board must give due deference to an

administrative judge’s credibility findings when, as here, they are based explicitly

or implicitly on the observed demeanor of witnesses at a Board hearing, and that

the Board may overturn such determinations only when it has sufficiently sound

reasons for doing so. Haebe v. Department of Justice, 288 F.3d 1288, 1301 (Fed.

Cir. 2002). The appellant’s claim that negative implications necessarily arise

because the investigating officer reported to the Chief of Staff is speculative and

does not provide a sufficiently sound reason not to defer to the administrative

judge’s credibility findings.

The appellant also challenges on review certain features of the

investigation. For example, she argues that the individual interviewed whose

statement was identified as Statement D and who allegedly complained about the

appellant, IAF, Tab 6 at 40-42, did not mention her by name, PFR File, Tab 4

at 10, and, in fact, the appellant appears to be correct as to this individual,

IAF, Tab 18 at 75-82. The appellant also alleges that others who were

interviewed during the investigation and who allegedly complained about her,

Statements G, I, O, and P, did not have daily contact with her.

She acknowledges, however, that they expressed negative opinions about her.

PFR File, Tab 4 at 10-12. And, the appellant questions the investigator’s reliance

on the statements made by the appellant’s immediate supervisor and the Division

Chief, PFR File, Tab 4 at 12, because those individuals were the subject of the

investigation.

On review, the appellant maintains that the climate survey “was nothing

more than a venue for a disgruntled employee to complain,” and found no issues

with her performance. PFR File, Tab 4 at 16. She testified during the hearing,

however, that she was told that some of her subordinates believed that she

displayed favoritism toward certain employees. 3 HCD (testimony of the

appellant). The appellant has not provided a genuine challenge to the testimony

of the Chief of Staff regarding this survey, testimony which, as we have noted,

the administrative judge found credible and persuasive. ID at 18.

The admonishment the Chief of Staff issued to the appellant on

June 18, 2015, IAF, Tab 20 at 109, was for conducting a prohibited personnel

practice in violation of 5 U.S.C. § 2302(b)(12) (taking a personnel action in

violation of any law, rule, or regulation implementing or directly concerning the

The administrative judge found that no documentary evidence of this survey was cited

by the parties, and that he could not locate it in the record. ID at 17. Nor can we.

merit system principles of 5 U.S.C. § 2301). Specifically, according to the

admonishment, the appellant, in communications with a staffer, gave the

appearance that she had been “preselected” for a particular position. Id.

On review, the appellant states only that the admonishment was to appease her

supervisor who wanted the appellant suspended for trying to correct an erroneous

transaction. PFR File, Tab 4 at 15. She does not, however, directly address the

basis for the admonishment.

In any event, to the extent the appellant challenges the agency’s assessment

of how she performed as a supervisor, the relevant inquiry in an IRA appeal is not

whether the appellant committed any actual misconduct, but whether the agency

had strong evidence to support its personnel action. See Yunus v. Department of

Veterans Affairs, 84 M.S.P.R. 78, ¶ 12 (1999), aff’d, 242 F.3d 1367 (Fed. Cir.

2001). An agency may direct an employee’s reassignment, without a reduction in

grade or pay, in a manner consistent with its rules and regulations and any

applicable collective bargaining agreement, as long as the reassignment is based

on legitimate management reasons. Shenwick v. Department of State,

92 M.S.P.R. 289, ¶ 11 (2002). The Chief of Staff’s testimony reflects that his

decision was influenced by the results of the investigation, the climate survey,

and the letter of admonishment he issued to the appellant. HCD (testimony of the

Chief of Staff). Having reviewed all the evidence of record, we find that the

appellant has not shown error in the administrative judge’s finding that the

agency presented strong evidence in support of its legitimate business reasons for

the appellant’s reassignment.

Regarding Carr factor (2), the existence and strength of any motive to

retaliate on the part of the agency officials involved in the decision, the

administrative judge stated that he perceived no retaliatory motive on the part of

the agency officials involved. ID at 19. He considered the Chief of Staff’s

testimony that, although it was recommended that the command take disciplinary

action against the appellant up to removal, he elected only to reassign her because

he viewed her as an intelligent and valued employee who greatly contributed to

the organization, but that, based on the results of the investigation, the climate

survey, and the admonishment, he concluded that she was not well-suited for a

supervisory position. The administrative judge also considered the Chief of

Staff’s testimony that he consulted with the Commanding General and the Staff

Judge Advocate’s Office before directing the appellant’s reassignment.

HCD (testimony of the Chief of Staff); IAF, Tab 6 at 35-36.

On review, the appellant essentially counters the administrative judge’s

assessment of a lack of retaliatory motive, claiming that the OIG complaint

reflected poorly on the Chief of Staff as the “senior official in the building on a

day to day basis” because he allowed “the situation” to escalate. PFR File, Tab 4

at 18. Although the Chief of Staff was not implicated in the IG complaint,

IAF, Tab 5 at 38, it is reasonable that the appellant’s comments that were

generally critical of her supervisor and the Division Chief would reflect poorly on

upper management, see Chavez v. Department of Veterans Affairs, 120 M.S.P.R.

285, ¶ 33 (2013). Therefore, while we acknowledge the administrative judge’s

finding that the Chief of Staff testified credibly regarding his view of the

appellant’s contributions to the organization, we find that he had at least a slight

motive to retaliate against her for filing the OIG complaint.

Finally, the administrative judge made no findings as to Carr factor (3),

any evidence that the agency takes similar actions against employees who are not

whistleblowers but who are otherwise similarly situated. However, the only other

individuals called out during the investigation for bad work-related deeds, but

who were not whistleblowers, were not similarly situated to the appellant because

she engaged in other misconduct. For example, the investigator recommended that

the appellant’s supervisor be issued an Official Written Reprimand for failure to

address improper treatment of staff or other inappropriate conduct within DHR

and allowing nepotism to influence an award submission for the husband of the

Division Chief, and that the Division Chief be suspended from duty for

committing a prohibited personnel practice. IAF, Tab 6 at 46. Instead, the Chief

of Staff issued Memoranda of Concern to both the appellant’s supervisor and the

Division Chief for their failure to foster a healthy command climate within the

directorate. IAF, Tab 19 at 56, 58. While the appellant’s directed reassignment

was harsher than the Memoranda of Concern that were issued to her supervisor

and the Division Chief, unlike those individuals, the appellant’s reassignment was

also based on other factors, specifically, the climate survey that revealed

problems with her management of her subordinates and her prior admonishment.

HCD (testimony of the Chief of Staff). For that reason, those two individuals are

not similarly situated to the appellant. 4 Therefore, Carr factor (3) is insignificant.

Runstrom v. Department of Veterans Affairs, 123 M.S.P.R. 169, ¶ 18 (2016)

(finding that, due to the lack of evidence that there were any employees similarly

situated to the appellant, the third Carr factor was not significant for the analysis

of that case).

Weighing the three Carr factors together, and notwithstanding the slight

motive to retaliate on the part of the Chief of Staff, we find, based on the strength

of the agency’s evidence in support of the appellant’s reassignment and the

insignificance of Carr factor (3), that the agency demonstrated by clear and

convincing evidence that it would have reassigned the appellant absent her

protected activity. We therefore find that the administrative judge properly

denied the appellant’s request for corrective action. 5

On review, the appellant refers to a WG-10 Heavy Mobile Equipment Mechanic

Inspector who she claims received a reduced suspension for discourtesy. PFR File,

Tab 4 at 18. The limited information the appellant has provided regarding this

individual suggests that he also is not similarly situated to her.

Because we agree with the administrative judge’s ultimate disposition, we have made

no findings on the timeliness of the appellant’s petition for review.

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).

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:

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.

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