Opinion

Kathy Little v. Corporation for National and Community Service

Court: Merit Systems Protection Board
Filed: May 29, 2024
Status: Unpublished
Cited by: 0 cases
Authority: More cited than 16.2%

The opinion

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

KATHY L. LITTLE, DOCKET NUMBER

Appellant, DC-0351-17-0747-I-1

CORPORATION FOR NATIONAL DATE: May 29, 2024

AND COMMUNITY SERVICE,

Agency.

THIS FINAL ORDER IS NONPRECEDENTIAL 1

E. Neal , Esquire, Annapolis, Maryland, for the appellant.

Diane Bradley , Esquire, Washington, D.C., 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

sustained her separation by reduction in force (RIF). 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

A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

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.

5 C.F.R. § 1201.113(b).

The appellant held the excepted service position of Program Assistant for

the agency’s AmeriCorps Volunteers in Service to America (VISTA) program, in

Washington, D.C. Initial Appeal File (IAF), Tab 7 at 81. In March 2015, the

agency notified her that the position was being eliminated due to reorganization.

Id. The agency further explained that, pursuant to RIF procedures, she did not

have an assignment right to another position and would be separated. Id.

The appellant retired on the date of her scheduled RIF separation. Id.

at 81, 93. She then challenged the RIF in an equal employment opportunity

(EEO) complaint, which was dismissed after the appellant filed the instant Board

appeal, challenging the RIF and raising EEO affirmative defenses. Id.

at 58-59, 76-79. After developing the record in this appeal, the appellant

withdrew her hearing request. IAF, Tab 85. Accordingly, the administrative

judge issued a decision based on the written record. IAF, Tab 130, Initial

Decision (ID).

The administrative judge first found that the Board had jurisdiction over

the RIF action, notwithstanding the appellant’s retirement. ID at 3 n.1. He also

denied several pending motions, including the appellant’s requests for an adverse

inference or other sanction. ID at 4-5.

Turning to the merits of the appeal, the administrative judge found that the

agency met its burden of proof. ID at 5-27. Most notably, he made the following

findings: (1) the agency invoked a proper basis for the RIF, ID at 7-12; (2) the

agency properly established the competitive area, ID at 12-15; (3) the agency

placed the appellant in the proper competitive level or, in the alternative, any

associated error did not impact the appellant’s substantive rights, ID at 15-22; and

(4) the appellant was not denied priority reemployment or consideration

following her separation, ID at 23-27. The administrative judge further found

that the appellant failed to prove her claims of EEO disparate treatment, ID

at 27-33, harmful procedural error, ID at 33-34, or retaliation for engaging in

activity protected by 5 U.S.C. § 2302(b)(9)(B), ID at 34-35.

The appellant has filed a petition for review. Petition for Review (PFR)

File, Tab 1. The agency has filed a response, and the appellant has replied. PFR

File, Tabs 3-4.

The appellant’s motion to submit an additional pleading is denied.

After the petition for review, response, and reply, the appellant filed a

motion for leave to submit an additional pleading. PFR File, Tab 6. In short, the

appellant’s representative asserts that he uncovered new and material evidence for

the instant appeal while adjudicating the RIF separation of another agency

employee. Id. at 4-5. The agency filed a motion in opposition to the request.

PFR File, Tab 9.

The Board’s regulations provide for only four types of pleadings on review:

a petition for review, a cross petition for review, a response, and a reply to a

response. 5 C.F.R. § 1201.114(a)(1)-(4). The Board will not accept any other

pleading unless the party files a motion and obtains leave from the Clerk of the

Board to make such filing. 5 C.F.R. § 1201.114(a)(5). That motion must

describe the nature and need for the pleading. Id.

While the appellant did provide some description of the nature and need for

her additional pleading, we are not persuaded. The appellant presents a lengthy

list of conclusory assertions regarding the content of evidence she would like to

submit, why it is material, and why it was previously unavailable. PFR File,

Tab 6 at 4-11. Like many contained in her petition for review, these assertions

are presented without identifying any evidentiary support. In fact, the appellant’s

lengthy motion does not contain a single citation to the record.

To illustrate our point with an example, the appellant summarily states that

the new evidence—which reportedly consists of deposition testimony and some

additional documents—was previously unavailable because the agency should

have but failed to disclose a particular employee’s involvement in its RIF actions.

Id. at 6. Yet she has not directed us to anything regarding discovery requests and

responses, or other evidence about who was involved in the appellant’s RIF. The

appellant also asserts that the new evidence she wishes to submit “reveals the

agency built its case on false testimony and declarations.” Id. at 5. Yet she has

not directed us to the alleged false testimony or declarations.

The same is true for each of the appellant’s numerous assertions about her

request to submit an additional pleading. Among other things, she asserts or

insinuates that her new evidence demonstrates that the agency had ulterior

motives in conducting the RIF; that the agency altered pertinent records; that the

agency lied about relevant competitive area; that her duties remained despite the

RIF; that the agency should have, but failed to, give her priority reemployment;

and that the agency still has records previously thought to be destroyed. Id.

at 6-11. We are cognizant of the fact that the appellant could not cite to the

purported new evidence, since it was not yet part of the record. Nevertheless, the

appellant’s motion amounts to little more than an extensive list of bare assertions

of improprieties. As such, we deny her motion for leave to submit additional

arguments and evidence.

The administrative judge did not abuse his discretion in denying the appellant’s

request for sanctions.

The appellant filed multiple requests for sanctions below. E.g., IAF,

Tabs 43, 45. One of those requests concerned the alleged spoliation of evidence.

In particular, the appellant noted that the agency’s former Director of Personnel

Operations provided deposition testimony indicating that she usually took

handwritten notes in meetings—which presumably included meetings during

which the appellant’s RIF was discussed—but probably threw all her notes away

when she separated from the agency. IAF, Tab 43 at 5 (referencing IAF, Tab 24

at 53-56). The administrative judge denied the appellant’s sanctions requests. ID

at 4-5, 22 n.9.

On review, the appellant argues that the administrative judge erred in

failing to grant her request for sanctions in the form of an adverse inference for

the destroyed handwritten notes. 2 PFR File, Tab 1 at 19-23. We are not

persuaded. See Leseman v. Department of the Army, 122 M.S.P.R. 139, ¶ 6

(2015) (recognizing that the Board will not reverse an administrative judge’s

determination regarding sanctions absent an abuse of discretion).

Both below and on review, the appellant’s arguments in favor of an adverse

inference rely on an assumption that the handwritten notes at issue should have

been maintained as a matter of law, regulation, or agency policy. E.g., IAF,

Tab 43 at 6; PFR File, Tab 1 at 19-21. However, the appellant has not directed us

to anything establishing the same. For example, the appellant refers to the

Within her arguments about spoliation and sanctions, the appellant included some

assertions, such as a claim that “[t]he agency, in bad-faith, altered a page by redacting

critical information from the competitive level code book.” PFR File, Tab 1 at 20.

However, it is unclear how this and other similar assertions relate to the surrounding

arguments about the administrative judge’s ruling on spoliation and sanctions. More

importantly, they amount to little more than bare and cursory assertions, unaccompanied

by citations to the record or pertinent law. As such, we will not address them further.

See Weaver v. Department of the Navy, 2 M.S.P.R. 129, 133 (1980) (finding that, before

the Board will undertake a complete review of the record, the petitioning party must

explain why the challenged factual determination is incorrect and identify the specific

evidence in the record that demonstrates the error).

agency’s document retention handbook, but she does so without identifying where

that exists in the record, if at all. PFR File, Tab 1 at 22. The appellant’s petition

also includes several regulatory citations in support of her document retention

argument, but each appears to contain a typo or some other error, as they do not

correspond with actual regulations. Id. (citing 36 C.F.R. §§ 1222.42, .401;

36 C.F.R. § 1228.104).

Even if we assume that the agency should have but failed to preserve the

Director of Personnel Operations’ handwritten notes, we are not convinced that

the administrative judge abused his discretion in denying the request for

sanctions. Both below and on review, the appellant relies on our reviewing

court’s decision in Kirkendall v. Department of the Army, 573 F.3d 1318 (Fed.

Cir. 2009) to support her argument in favor of an adverse inference. Yet that case

is distinguishable from the circumstances at hand. In Kirkendall, the underlying

claim involved the rejection of a disabled veteran’s application for a vacant

position. Kirkendall, 573 F.3d at 1320. The court found that an adverse

inference was appropriate when the agency had destroyed the applications and

associated materials for other applicants. Id. at 1325-27. Among other things,

the court noted that the destroyed documents were undoubtedly relevant, and their

absence hampered or imperiled the appellant’s ability to compare his treatment to

the treatment of others and show that his rights were violated. Id. at 1326-27.

Here, the relevance and importance of the Director of Personnel

Operations’ handwritten notes is far less apparent. The deposition testimony the

appellant referred to suggests that the Director of Personnel Operations

oftentimes took a notebook to meetings, in which she took “notes to jog [her]

memory on something that [she] needed to do.” IAF, Tab 24 at 55. In other

words, she may have taken some RIF-related notes, but we are left to speculate as

to whether those notes were of any evidentiary value in this appeal. There is no

indication that the destroyed notes were the only, or even a primary, record of the

appellant’s RIF. Instead, the limited information the appellant has directed us to

suggests that the destroyed notes consisted of little more than lists of to-dos or

other memory joggers, which is dissimilar to the destroyed evidence at issue in

Kirkendall.

The administrative judge properly sustained the appellant’s RIF.

In a RIF appeal such as this, the agency must establish by preponderant

evidence that it invoked the RIF regulations for an approved reason and

properly implemented the pertinent regulations, including those concerning

the establishment of an appellant’s competitive area and competitive level.

5 C.F.R. §§ 351.201(a)(2), .402, .403; see Abakan v. Department of

Transportation, 98 M.S.P.R. 662, ¶ 6 (2005). The appellant presents a number of

arguments or assertions that touch on these requirements, which we will address

in turn.

The reason for the RIF

Again, the agency’s burden includes proving that it invoked the RIF

regulations for an approved reason. Section 351.201(a)(2) lists the permissible

reasons to include, among other things, a lack of work or reorganization. See

Losure v. Interstate Commerce Commission, 2 M.S.P.R. 195, 199 (1980)

(describing an older iteration of the regulation that similarly included lack of

work and reorganization as permissible reasons for a RIF). The administrative

judge found that the agency proved that it invoked the RIF regulations for those

reasons—lack of work and reorganization. ID at 7-12. He credited a declaration

from the Director of VISTA, which contained an extensive description of the

appellant’s duties in her Program Assistant position, her workload, and an overall

need for reorganization of the VISTA program. ID at 8; IAF, Tab 114 at 7-10.

We note that this is further supported by, inter alia, a contemporaneous

memorandum describing the reorganization. IAF, Tab 53 at 63-64.

The administrative judge found no merit to the appellant’s various rebuttal

arguments. ID at 9-12; see Abakan, 98 M.S.P.R. 662, ¶ 6 (explaining that an

agency may establish a prima facie case on the bona fides of its decision by

coming forward with evidence showing a RIF was undertaken for one of the

approved reasons, after which the burden of going forward with rebuttal evidence,

but not the burden of persuasion, shifts to the employee). Among other things, he

recognized that the appellant had identified some evidence of the agency posting

and filling vacancies before and after her separation, but that evidence did not

invalidate the agency’s rationale for the RIF because it involved agency-wide

recruitment, not recruitment specific to the appellant’s VISTA unit in

Washington, D.C. ID at 9-10 (referencing IAF, Tab 57 at 64-83, Tab 58 at 61-67,

Tab 87 at 66).

On review, the appellant again refers to the agency hiring other employees

as if that shows the agency’s reason for the RIF was invalid, PFR File, Tab 1

at 16, but she has not presented any basis for us to reach a conclusion different

than the administrative judge. She has not, for example, directed us to any

evidence showing what the agency hired new employees to do, where they were

hired, or why their hiring would rebut the agency’s two-fold rationale for the RIF

—lack of work and reorganization. See Weaver v. Department of the Navy,

2 M.S.P.R. 129, 133 (1980). The appellant separately argues that the

administrative judge “changed the agency’s rationale for the RIF, from lack of

clerical support to automation, even though that was rebutted by [the] appellant’s

first-line supervisor.” PFR File, Tab 1 at 16 (citing IAF, Tab 61 at 72-73, 76-77).

In doing so, she cites some specific deposition testimony of her supervisor, but it

is not apparent to us how that testimony, which generally discusses the evolution

of the appellant’s position over a number of years, bears any relevance to the

question of whether the agency invoked the RIF regulations for an approved

reason. IAF, Tab 61 at 72-73, 76-77. Moreover, despite the appellant’s

assertion, we find no inconsistency between the agency’s rationale, as described

in the VISTA Director’s statement, made under the penalty of perjury, and the

administrative judge’s discussions of the same. Compare ID at 8, with IAF,

Tab 114 at 7-10.

Competitive area

The pertinent regulations provide that, in conducting a RIF, an agency must

delineate one or more competitive areas in which employees compete for

retention. 5 C.F.R. § 351.402(a). A competitive area must be defined solely in

terms of the agency’s organizational units and geographical location, and the

minimum competitive area is a subdivision of the agency under separate

administration within the local commuting area. 5 C.F.R. § 351.402(b).

The agency identified the competitive area for its RIF as the VISTA office

in Washington, D.C. E.g., IAF, Tab 7 at 81. To the extent that the appellant

argued that the competitive area should have or did also include the VISTA office

in Austin, Texas, where a vacant position was eliminated around the same time as

the appellant’s separation by RIF, the administrative judge was not persuaded. ID

at 13-14. He further found that there was no evidence that the appellant would

have been retained, even if the competitive area had included the VISTA Austin

office. ID at 14-15. Finally, the administrative judge found that, even if the

agency violated 5 C.F.R. § 351.402(c), which requires that a description of the

competitive area be submitted to the Office of Personnel Management (OPM) for

approval if the competitive level will be in effect less than 90 days prior to the

effective date of a RIF, the error did not affect the appellant’s substantive

entitlements. ID at 15; see Foster v. Tennessee Valley Authority, 87 M.S.P.R. 48,

¶¶ 10, 13 (2000) (stating that the Board will not reverse a RIF action if an agency

fails to comply with the RIF regulations but the error had no adverse effect on the

employee’s substantive entitlements).

On review, the appellant reasserts that the competitive area for her RIF did

include VISTA Austin, despite her RIF notice and other evidence reflecting

otherwise. PFR File, Tab 1 at 10-11. She does so, in part, by alleging that the

aforementioned reorganization memorandum listed the competitive area as

including VISTA Austin. However, that is a mischaracterization of the evidence.

While the memorandum the appellant cites does discuss reorganization of both

offices, the memorandum is silent regarding the designated competitive area for

the RIF. IAF, Tab 53 at 63-65. The other evidence the appellant referred us to,

which indicates that some positions outside of VISTA DC were eliminated around

the same time as the appellant’s, is similarly silent regarding the competitive area

for the appellant’s RIF. IAF, Tab 58 at 72, Tab 61 at 198-99. Further, while the

appellant presents a bare assertion that she would have been retained over VISTA

Austin employees if that office were included in the competitive area, PFR File,

Tab 1 at 10-11, she has identified no evidence to show that the administrative

judge erred in concluding otherwise, see Weaver, 2 M.S.P.R. at 133.

Elsewhere in her petition, the appellant asserts that there is “substantial

evidence showing the agency defined the competitive area on the basis of where

[the] appellant’s work was performed, which is prohibited.” PFR File, Tab 1

at 16-17. Setting aside whether the appellant is accurately characterizing

the limitations on an agency’s establishment of a competitive area, she has

again failed to identify what evidence supports her claim. See Weaver,

2 M.S.P.R. at 133. The lone record citation the appellant provided appears to be

a typo, because it refers to a discussion of reemployment rights, not the

applicable competitive area. PFR File, Tab 1 at 17 (citing IAF, Tab 60 at 20).

In what appears to be her final argument pertaining to the competitive area

of her RIF, the appellant reasserts that the agency failed to comply with

5 C.F.R. § 351.402(c), the provision requiring OPM approval if a competitive

level is established less than 90 days before a RIF. PFR File, Tab 1 at 23-24.

However, she failed to present any argument about the administrative judge’s

findings concerning the same, i.e., that any such error on the part of the agency

did not affect the appellant’s substantive entitlements. ID at 15. Therefore, we

will not address the matter further.

Competitive level

The agency bears the burden of proving that the appellant’s competitive

level was properly drawn. McKenna v. Department of the Navy,

105 M.S.P.R. 373, ¶ 10 (2007). To meet its burden, the agency must establish

distinguishing features between positions in separate competitive levels that are

sufficient as a matter of law to find that the positions are not “similar enough in

duties, qualifications requirements, pay schedules, and working conditions so that

an agency may reassign the incumbent of one position to any of the other

positions in the level without undue interruption.” Id. (quoting 5 C.F.R.

§ 351.403(a)(1)). “Without undue interruption” means without any loss to

productivity beyond that normally expected in the orientation of any new, but

fully qualified employee. Id., ¶ 10 & n.2; see 5 C.F.R. § 351.203. Absent

evidence of patent unfairness or bad faith, the Board may properly defer to an

agency’s determination of the requirements an individual must satisfy to qualify

for a particular position. Hayes v. Department of Health and Human Services,

829 F.2d 1092, 1100 (Fed. Cir. 1987).

The agency assigned the appellant to competitive level 0005. IAF, Tab 7

at 81. According to the agency and its documentation of the VISTA Washington

D.C. office, there were no employees for the appellant to compete with for

retention; she was the only Program Assistant, the only employee in her grade

and classification series, and the only employee in her competitive level. Id.

at 11, 96-118, 122.

Both below and on review, the appellant has argued that she should have

been placed in competitive level 0013, not 0005, where she would have competed

with, and been retained over, one other individual—a temporary appointee in a

Program Support Assistant position. E.g., PFR File, Tab 1 at 6-10. The

administrative judge found that the record presented a muddled picture

concerning the appellant’s competitive level, or at least its coding. ID at 16.

Among other things, he recognized and considered conflicting documentation

about the coding number identified as the appellant’s competitive level, i.e., 0005

or 0013. ID at 16-18. Nevertheless, the administrative judge found that the

appellant’s Program Assistant position was not mutually interchangeable with the

Program Support Assistant position. ID at 18-21. Among other things, he noted

that the former included a broad scope of duties and required a broad set of

abilities. ID at 19-20. To illustrate, one of the many duties of the appellant’s

Program Assistant position was to “[a]ssist[] in the development, management,

and implementation of grant programs and initiatives in conjunction with

[agency] priorities.” IAF, Tab 50 at 45. An associated job requirement was

“[k]nowledge of grants management including program and proposal

development; program implementation and management.” Id. at 46. Another job

requirement was “basic working knowledge of the procurement fundamentals

related to a large government or non-profit environment.” Id. In contrast, all of

the duties and job requirements for the Program Support Assistant position

generally involved event planning and coordinating. IAF, Tab 53 at 44-45.

Therefore, regardless of coding numbers, the administrative judge concluded that

the agency properly determined that the Program Assistant and Program Support

Assistant did not belong in the same competitive level. ID at 21.

The appellant’s arguments on review do not persuade us otherwise.

Throughout her petition, the appellant reiterates that the temporary Program

Support Assistant would have been separated before or instead of her if their two

positions had been in the same competitive level. PFR File, Tab 1 at 7-10, 15-16.

She also directs us to inconsistencies in the record regarding the coding for her

position, like those specifically discussed by the administrative judge. Id.

at 6-10. However, the appellant has failed to present any substantive argument

about the underlying question—whether her Program Assistant position was

mutually interchangeable with the Program Support Assistant position or any

other position in VISTA Washington D.C., such that they belonged in the same

competitive level. Instead, the appellant summarily asserts that the

administrative judge abused his discretion in finding that her Program Assistant

position and that of the Program Support Assistant were not interchangeable. Id.

at 10. We will not address this bare assertion any further. See Weaver,

2 M.S.P.R. at 133.

Uniform and consistent application of the RIF provisions

Separate from her arguments about the reason for the RIF, the competitive

area, and the competitive level, the appellant argues that the RIF was improper

because it was not carried out in the same way as other agency RIFs. PFR File,

Tab 1 at 14-15 (referencing 5 C.F.R. § 351.201(c)). Specifically, the appellant

alleges that other RIFs were both proposed and approved, while the RIF that led

to her separation was merely proposed, without ever being formally approved. Id.

As an initial matter, it is not apparent to us that the appellant preserved this

argument by raising it below. See Banks v. Department of the Air Force,

4 M.S.P.R. 268, 271 (1980) (stating that the Board generally will 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). The issue is not identified below in her written submission

identifying the issues for adjudication, the administrative judge’s close of record

order, or the initial decision. IAF, Tab 86 at 1-2, Tab 87 at 15; ID at 7.

Moreover, even if the appellant both preserved the argument and accurately

identified a difference among the agency’s RIFs, her reliance on 5 C.F.R.

§ 351.201 is misplaced. The regulation provides that an “agency is responsible

for assuring that the [RIF] provisions . . . are uniformly and consistently applied

in any one reduction in force.” 5 C.F.R. § 351.201(c) (emphasis added). It is

silent as to inconsistencies between separate RIFs.

The administrative judge made proper findings regarding priority consideration

and reemployment.

In addition to disputing the merits of her separation by RIF, the appellant

presented an alternative argument. She asserted that, if her RIF separation was

proper, the agency should have but failed to give her priority consideration and

reemployment. E.g., IAF, Tab 87 at 80-82. The administrative judge disagreed

for several reasons. ID at 23-26. Among other things, he found that, while

agency policy did provide for priority consideration in certain circumstances, the

appellant failed to complete the associated paperwork and failed to apply for any

position, both of which were required under the agency’s policies. ID at 24-25;

IAF, Tab 6 at 41, Tab 7 at 91.

On review, the appellant summarily asserts that she did complete the

appropriate paperwork. PFR File, Tab 1 at 11. Yet she has failed to identify

where we might find that paperwork in the record. And the reemployment

priority list registration form we have located is incomplete, just as the

administrative judge found. ID at 25; IAF, Tab 7 at 91. The appellant provided

some basic biographical information, but she failed to otherwise complete the

form by identifying the positions for which she wished to be considered. IAF,

Tab 7 at 91.

The appellant also suggests that it was not her responsibility to search for

and apply to vacant positions. Instead, she argues that the agency should have

notified her of any positions that became available during the 1-year

reemployment period, and deposition testimony proves as much. PFR File, Tab 1

at 11-12. According to the appellant, the agency stated it was obligated to notify

her of vacant positions. Id. at 12. We disagree. In deposition testimony she has

referred us to, the Chief Human Capital Officer explained that, if the appellant

had completed the appropriate paperwork and was qualified for a position that

became available, “[he] would assume that they would have notified her.” IAF,

Tab 60 at 77, 116. He then noted, though, that he did not know whether the

agency was obligated to do so. Id. at 116. And the written policies we located in

the record contain no such obligation. IAF, Tab 6 at 41, Tab 7 at 40. As a result,

we discern no basis for disagreeing with the administrative judge’s conclusion;

the appellant was not improperly denied priority consideration and reemployment.

We are not persuaded by the appellant’s arguments or the ambiguous deposition

testimony to which she has referred.

The appellant’s remaining arguments are unavailing.

The appellant has presented a number of other arguments, but we are not

persuaded by any of them. To illustrate, she asserts that the administrative judge

erred in denying her affirmative defense of age and race discrimination. PFR

File, Tab 1 at 12-13. However, in doing so, the appellant has simply claimed that

she presented evidence relevant to her discrimination claims, without providing

relevant citations to the record and without identifying any specific error by the

administrative judge. Id.; see Weaver, 2 M.S.P.R. at 133. Other arguments, such

as one that her separation by RIF was motivated by agency bias and disdain for

her, personally, fail for the same reason. PFR File, Tab 1 at 24-28.

We separately note the appellant’s assertion that she offered proof of prior

inconsistent and conflicting statements of agency officials, but the administrative

judge ignored the same. Id. at 17-19. In making this argument, the appellant did

not specifically identify any inconsistent or conflicting statements that the

administrative judge should have further considered. Instead, she refers us to a

portion of her closing argument from below, wherein the appellant presented

extensive allegations of inconsistencies and improprieties. Id. at 17 (citing IAF,

Tab 87 at 46-62, Tab 122 at 5-6). For example, the first of those arguments from

below is that the agency provided conflicting statements about whether a

particular agency official was her second or third level supervisor. IAF, Tab 87

at 47-48. The next is an insinuation that, based in part on his pay history, this

same official was biased and unqualified. Id. at 48. While the aforementioned

arguments are of little or no apparent relevance to the issues at hand, some others

are unavailing because they amount to bare assertions, unsupported by citations to

evidence. Id. at 48-49. More importantly, in the absence of more specific

arguments and citations to the record in her petition for review, we will not pore

over the appellant’s extensive closing argument from below to compare it with

the initial decision in search of errors. See 5 C.F.R. § 1201.114(b) (a petition for

review states a party’s objections to the initial decision, including all of the

party’s legal and factual arguments, and must be supported by references to

applicable laws or regulations and by specific references to the record); see also

Marques v. Department of Health and Human Services, 22 M.S.P.R. 129, 132

(1984) (stating that the administrative judge’s failure to mention all of the

evidence of record does not mean that he did not consider it in reaching his

decision), aff’d, 776 F.2d 1062 (Fed. Cir. 1985) (Table).

In conclusion, the appellant’s petition for review presents no basis for

reaching a conclusion different than that of the administrative judge, sustaining

the appellant’s separation.

NOTICE OF APPEAL RIGHTS 3

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

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.

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.

(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. 4 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

following address:

U.S. Court of Appeals

for the Federal Circuit

717 Madison Place, N.W.

Washington, D.C. 20439

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.