Steven Brown v. Department of Justice ( 2015 )

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
STEVEN BROWN, DOCKET NUMBERS
Appellant, DE-0752-13-0092-I-3
DE-0752-13-0265-I-2
v. DE-1221-13-0329-W-2
DEPARTMENT OF JUSTICE, DATE: January 23, 2015
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Kirby G. Smith, Esquire, Decatur, Georgia, for the appellant.
Natalie Holick, Esquire, Kansas City, Kansas, for the agency.
BEFORE
Susan Tsui Grundmann, Chairman
Anne M. Wagner, Vice Chairman
Mark A. Robbins, Member
FINAL ORDER
¶1 The appellant has filed a petition for review of the initial decision that
sustained his demotion and removal and denied his individual right of action
(IRA) appeal. Generally, we grant petitions such as this one only when: the
initial decision contains erroneous findings of material fact; the initial decision is
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
based on an erroneous interpretation of statute or regulation or the erroneous
application of the law to the facts of the case; the 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. See 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, and
based on the following points and authorities, 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 by this Final Order, we AFFIRM the initial decision.
BACKGROUND
¶2 Prior to November 4, 2012, the appellant was employed as a Special
Investigative Agent, GS-0006-12, at the Federal Correctional Complex in
Florence, Colorado. MSPB Docket No. DE-0752-13-0092-I-1 (0092-I-1), Initial
Appeal File (IAF), Tab 5, at 11. By notice dated June 1, 2012, the Deputy
Captain proposed to demote the appellant to the position of Correctional
Counselor, GL-0007-09, on charges of Unauthorized Release of Information and
Unprofessional Conduct. Id. at 24-28. Under the first charge, the notice listed 19
instances in which the appellant sent or forwarded emails containing sensitive
information regarding staff and inmates to his then-girlfriend, who worked at
another location and had no need to know sensitive information concerning the
daily operations at the Florence Complex. Id. at 24-27. Under the second charge,
the notice listed two instances in which the appellant sent his girlfriend emails
containing profanity, in violation of agency policy. Id. at 27. The appellant
submitted a written response to the proposal notice. Id. at 18-23.
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¶3 On September 30, 2012, the appellant filed a complaint with the Office of
Special Counsel (OSC), alleging retaliation for two protected disclosures. MSPB
Docket No. DE-1221-13-0329-W-1 (0329-W-1), IAF, Tab 1 at 82-96. First, he
alleged that in May 2011, he disclosed to the Warden that he had observed a
prison guard taunting a group of Black Muslim inmates about the death of Osama
Bin Laden, id. at 94, after which the Warden refused to speak to him or allow him
to attend any meetings, id. at 95. Second, the appellant alleged before OSC that
he suffered retaliation for a May 15, 2012 letter 2 to the agency’s Office of
Internal Affairs and Office of the Inspector General, in which he disclosed that an
Associate Warden was abusing his authority by granting unearned awards and
promotions to a subordinate employee with whom he was having a sexual
relationship. Id. at 94; see id. at 18-19. The appellant contended that, although
the letter was submitted anonymously, management had determined that he was
the author and that, as a result, he was reassigned on June 26, 2012, from the
Florence U.S. Penitentiary to a less prestigious position elsewhere within the
complex. Id. at 95.
¶4 On November 1, 2012, the Complex Warden issued a letter informing the
appellant of his decision to demote him to Lieutenant, GS-0007-11, effective
November 4, 2012. 0092-I-1, IAF, Tab 5 at 14-17. The appellant filed an appeal
of his demotion, 0092-I-1, IAF, Tab 1, contending that the action was due to
discrimination based on race and color (light-skinned African-American) and was
retaliation for the disclosures made in the anonymous letter. Id.
¶5 On February 5, 2013, while the demotion appeal was pending, an Associate
Warden issued a notice proposing to remove the appellant on charges of Absence
without Leave (AWOL) and Failure to Follow Leave Procedures. MSPB Docket
No. DE-0752-13-0265-I-1 (0265-I-1), IAF, Tab 1 at 4-6. Under the first charge,
the notice specified that the appellant had failed to report for his assigned shift
2
The letter was incorrectly dated April 15, 2012. Id. at 95.
 4
since November 1, 2012, and had not been granted approval for his absences. Id.
at 4. Under the second charge, the notice stated that the appellant had been on
approved leave without pay (LWOP) from October 1 through October 31, 2012,
that he had been instructed on multiple occasions to submit medical
documentation in order to receive additional LWOP beyond that time, and that he
had failed to do so. Id. at 5. The proposal also noted that on January 24, 2013,
an Acting Special Investigative Agent (SIA) contacted the appellant at his
personal email address to inform him that he was the subject of an investigation,
and that he had failed to respond to her request for a statement. Id. at 4-5; see id.
at 7.
¶6 At the request of the parties, the administrative judge dismissed the
appellant’s demotion appeal without prejudice, pending the outcome of the
proposed removal. 0092-I-1, IAF, Tab 15. Meanwhile, the appellant responded
to the proposed removal through his attorney. 0265-I-1, IAF, Tab 1 at 27-30. On
March 25, 2013, the Complex Warden issued a letter informing the appellant of
his decision to remove him effective April 3, 2013. 0265-I-1, IAF, Tab 1
at 55-58.
¶7 Shortly thereafter, on April 9, 2013, OSC terminated its inquiry into the
appellant’s complaint and informed him of his right to seek corrective action from
the Board. 0329-W-1, IAF, Tab 1 at 97-98. On April 26, 2013, the appellant
filed an appeal of his removal and refiled his demotion appeal. 0265-I-1, IAF,
Tab 1; MSPB Docket No. DE-0752-13-0092-I-2 (0092-I-2), IAF, Tab 1. 3
Subsequently, on June 13, 2013, the appellant filed an IRA appeal challenging his
June 26, 2012 reassignment. 0329-W-1, IAF, Tab 1. On July 1, 2013, the
administrative judge issued an order joining the demotion, removal, and IRA
appeals. 0092-I-2, IAF, Tab 11. The joined appeal was dismissed without
3
The appellant initially contended that his removal was due in part to retaliation for
filing his demotion appeal, see 0092-I-2, IAF, Tab 1, but he did not further pursue
that claim.
5
prejudice on July 18, 2013, and automatically refiled on August 29, 2013.
0092-I-2, IAF, Tab 14; MSPB Docket No. DE-0752-13-0092-I-3 (0092-I-3), IAF,
Tab 1. 4 A hearing was conducted on December 5 and 6, 2013. Hearing Compact
Diskettes (HCDs) 1-2. On February 14, 2014, the administrative judge issued an
initial decision sustaining the demotion and removal actions. 0092-I-3, IAF,
Tab 17, Initial Decision (ID). The administrative judge summarily found
jurisdiction over the IRA appeal, see ID at 2 n.2, and denied the appellant’s
request for corrective action.
¶8 On petition for review, the appellant argues that the administrative judge
erred in crediting the testimony of the Warden in connection with his
whistleblowing and discrimination claims. Petition for Review (PFR) File, Tab 1
at 8-9. Concerning the whistleblowing retaliation claim, the appellant contends
that the administrative judge erred in finding that the responsible agency officials
did not know of his protected disclosures. Id. He further argues that the
administrative judge misstated the pertinent case law on discrimination, and that,
contrary to his analysis, “proving an employer’s legitimate business reason to be
false is enough to support a finding of discrimination.” Id. at 12. Regarding the
merits of the removal action, the appellant contests the administrative judge’s
finding that he failed to timely submit medical documentation in support of his
LWOP requests. Id. The appellant also contends that his alleged failure to
respond to the email from the Acting SIA constitutes a separate charge, that he
did attempt to respond to her, and that because the charge fails, the removal must
be reversed. Id. at 16-17. Finally, the appellant asserts that the administrative
4
The agency had previously moved to indefinitely dismiss the IRA appeal pending
possible reconsideration of the then-recent decision in Day v. Department of Homeland
Security, 119 M.S.P.R. 589 (2013), in which the Board found that the portion of the
Whistleblower Protection Enhancement Act (WPEA) clarifying the definition of a
“disclosure” applied to pending Board cases. The administrative judge denied the
motion, agreeing with the appellant that the new provisions of the WPEA had no effect
as to whether his disclosures were protected. 0092-I-2, IAF, Tab 14.
6
judge failed to consider the Douglas factors in sustaining the demotion action.
Id. at 17.
ANALYSIS
The charges underlying the demotion were correctly sustained.
¶9 As noted above, the charge of Unauthorized Release of Information was
based on 19 emails the appellant sent to his girlfriend, containing sensitive
information including the legal status of certain named inmates, photographs of
inmates who had been injured in fights, a local investigation packet, an
arbitration witness list for an upcoming hearing, and an authorization to conduct
an investigation into an allegation of sexual harassment. 0092-I-1, IAF, Tab 5
at 24-27. Under the charge of Unprofessional Conduct, the proposal notice listed
two instances in which the appellant sent his girlfriend emails from his work
address containing profanity. Id. In a March 6, 2012 affidavit, the appellant
admitted to sending his girlfriend an arbitration witness list, inmate pictures and
reports of incidents, reports regarding inmate investigations, and a grievance
response. See id. at 232. He also admitted to sending his girlfriend an
authorization to conduct a local investigation and predicating information,
although he claimed to have done so accidentally. Id. Copies of the emails in
question are contained in the record. See id., parts 2-4.
¶10 On review, the appellant asserts that the administrative judge’s analysis of
the merits of the demotion action “is limited to exactly one sentence” and fails to
address the Douglas factors. PFR File, Tab 1 at 17. The appellant appears to
refer to a sentence in which the administrative judge stated his conclusion that the
agency established the charges underlying the demotion action. See ID at 3.
However, that finding concerned only the merits of the charge and was preceded
by a detailed description of the pertinent record evidence. As discussed below,
the administrative judge considered the reasonableness of the penalty and
thoroughly addressed the Douglas factors elsewhere in the decision. ID at 17-18.
7
The charges underlying the removal were correctly sustained.
¶11 To prove a charge of AWOL, the agency must show that the employee was
absent, and that his absence was not authorized or that his request for leave was
properly denied. Wesley v. U.S. Postal Service, 94 M.S.P.R. 277, ¶ 14 (2003).
Here, it is undisputed that the appellant was absent from work from November 1,
2012, through February 5, 2013, the date of the proposed removal, and that the
agency had denied his requests for LWOP to cover his absences during that
period. We therefore proceed to the question of whether the agency properly
denied his requests for LWOP.
¶12 With exceptions not applicable here, the authorization of LWOP is at the
discretion of the agency. Sambrano v. Department of Defense, 116 M.S.P.R. 449,
¶ 4 (2011). 5 However, in cases involving medical excuses, the Board will
examine the record as a whole to determine whether the agency’s denial of LWOP
to an employee charged with AWOL was reasonable under the circumstances. Id.
Here, the agency denied the appellant’s request for LWOP based on his alleged
failure to provide the medical documentation needed to support his request.
While AWOL and Failure to Follow Leave Procedures are typically considered as
distinct charges with different elements, in this case they are based on the same
conduct, and we therefore consider them as a single charge. See Valenzuela v.
Department of the Army, 107 M.S.P.R. 549, 553 n.* (2007); Jones v. Department
of Justice, 98 M.S.P.R. 86, ¶ 16 (2004) (merging the charge of AWOL into the
charge of failure to follow instructions, where both charges were based on the
same underlying facts, i.e., the appellant’s failure to follow instructions by
5
Department of Justice Order 1630.1B, Leave Administration, provides that granting of
LWOP is mandated for disabled veterans who are entitled to LWOP if needed to
undergo medical examination or treatment of the disability, and reservists or National
Guardsmen who are entitled to LWOP if needed for military training. 0092-I-3, IAF,
Tab 9 at 119; cf. Sambrano, 116 M.S.P.R. 449, ¶ 6 n.2 (noting similar provisions of
Department of Defense policy).
8
refusing to provide the necessary medical documentation to substantiate his
alleged inability to work).
¶13 In determining whether the denial of LWOP was reasonable, the Board will
consider whether the denial was consistent with agency policy. See
Sambrano, 116 M.S.P.R. 449, ¶ 6. Department of Justice Order 1630.1B, Leave
Administration, provides that, “[e]ven where an employee has a legitimate need
for requesting LWOP, e.g., sickness, injury, or personal emergency, the request
may be denied if the employee’s services are required or the employee has not
followed prescribed leave procedures.” 0092-I-3, IAF, Tab 6 at 119. Agency
policy further provides that an employee requesting extended LWOP beyond
30 days for medical reasons “must submit a medical certificate or other
administratively acceptable evidence substantiating the reason(s) for the
absence.” Id. For the reasons discussed below, we find that the appellant failed
to submit such evidence, and that the denial of LWOP that resulted in his AWOL
charge was therefore reasonable.
¶14 The record reflects the following sequence of events. In July 2012, the
appellant applied for leave under the Family Medical Leave Act, and provided
medical documentation from his psychiatrist who indicated that he would be
unable to work for at least 2 months. 0265-I-1, IAF, Tab 1 at 34-37. The
appellant also requested a disability retirement application, and he was assigned
to a Benefits Specialist in the agency’s Benefits Section in Grand Prairie, Texas.
See id. at 42. The appellant retained the Harris Law Firm for assistance in filing
his disability retirement claim. Id. at 44.
¶15 In a letter dated September 11, 2012, the appellant’s psychiatrist informed a
Human Resources (HR) Manager that the appellant had suffered what he believed
to be side effects to his medication, and that he should remain on medical leave
until the issue was resolved. Id. at 38. Although the appellant continued to work
with the Harris Law Firm in connection with his disability retirement application,
he retained his current representative, Kirby Smith, Esquire, of the Vaughan Law
9
Firm, to assist him in requesting additional leave. See id. at 39-41. In an email to
the HR Manager, dated September 20, 2012, attorney Smith explained that the
appellant’s disability retirement application was still being compiled. He
requested that the agency stay any potential personnel actions and place the
appellant on LWOP pending the results of his application, which attorney Smith
estimated might take another 6 months to process. Id. at 39-41.
¶16 By email dated October 10, 2012, an Assistant HR Manager informed
attorney Smith that the appellant had been approved for 30 days of LWOP
beginning October 1, 2012. See 0265-I-1, IAF, Tab 1 at 42. The Assistant HR
Manager also stated that HR had learned from the Benefits Section that the
appellant had not returned any information to support his disability retirement
application and explained that if the appellant required additional LWOP, “he
should submit another request to the Warden, through our offices, with updated
medical documentation to support his request for leave.” Id.; see id. at 8
(Assistant HR Manager’s affidavit).
¶17 On November 1, 2012, following the expiration of the approved LWOP, the
Assistant HR Manager notified the appellant by email that HR had not received
his updated medical documentation, and that he would therefore be placed in
AWOL status. Id. at 9 (Assistant HR Manager’s affidavit). She also indicated
that the appellant had not yet completed his disability retirement application with
the Benefits Section. Id. After receiving the Assistant HR Manager’s email, the
appellant spoke with a legal assistant with the Harris Law Firm, who informed
him that his application had yet to be submitted because she was still waiting for
additional medical documentation. See 0092-I-3, IAF, Tab 9 at 154. The
appellant notified attorney Smith of his conversation with the Harris legal
assistant, stating that she “doesn’t understand the AWOL status and neither do I.”
Id. Smith forwarded the appellant’s message to the Assistant HR Manager,
asking her to “[p]lease inform me of anything further you would need from [the
appellant] to keep him in [LWOP] status.” Id.
10
¶18 The Assistant HR Manager responded the same day, stating as follows:
In the e-mail sent October 10, 2012 … it was indicated if Mr. Brown
requires additional LWOP beyond the October 31, 2012 date
approved by the Warden, he must submit updated medical
documentation through our office to the Warden. To date, we
have not received any documentation, nor a written request to
continue the LWOP.
Additionally, our offices submitted all necessary documents (Agency
Statement) regarding Mr. Brown’s Application for Disability
Retirement in July, 2012. The application is not considered filed
until Mr. Brown submits all required documents to his Benefits
Specialist. Therefore, we have no confirmation Mr. Brown intends
to actually file. Until his complete application is received by his
Benefits Specialist, we cannot assume he is attempting to retire.
Per the attached message, if Mr. Brown would like LWOP, he must
submit a written request with current supporting documentation to
substantiate his request.
Id. at 153; see 0265-I-1, IAF, Tab 1 at 9 (Assistant HR Manager’s affidavit).
¶19 At some point thereafter, the legal assistant notified the appellant that,
although she was still awaiting additional medical documentation, his application,
including records from his psychiatrist and another provider, would be submitted
“as-is” by November 13, 2012. 0265-I-1, IAF, Tab 1 at 46-47. In that same
message, she further advised the appellant that the Harris Law Firm was
representing him only concerning his disability retirement claim, and was unable
to help him with the AWOL issue. Id. at 47. She offered to contact the HR
Manager and the Benefits Specialist and inform them of the status of his
application. Id.
¶20 Subsequently, on November 9, 2012, the appellant emailed the HR Manager
and requested that his AWOL be converted to LWOP status retroactive to
November 1, 2012. 0265-I-1, IAF, Tab 1 at 46. He asserted that, contrary to
what the Assistant HR Manager had implied, he did intend to file a disability
retirement application, and he provided a copy of the undated message from the
legal assistant. Id. He, however, did not submit medical documentation with his
11
request. In an email dated November 12, 2014, apparently sent to the HR
Manager, the legal assistant indicated that the disability application had been sent
to the Benefits Section office that day. Id. at 48. She offered to assist with
obtaining additional documentation or with any general questions or concerns.
Id. The HR Manager was out of the office at the time. Id. at 51-52.
¶21 On November 14, 2014, the Assistant HR Manager emailed attorney Smith,
informing him that the appellant still had not submitted updated medical
documentation to support his request for additional LWOP, that HR had received
correspondence from the Harris Law Firm indicating that the appellant’s
disability retirement application had been forwarded to the Benefits Section, and
that as of that morning the application had not yet been received. 0092-I-3, IAF,
Tab 9 at 162; 0265-I-1, IAF, Tab 1 at 9 (Assistant HR Manager’s affidavit). She
further stated: “Mr. Brown’s disability retirement application and his status for
time and attendance purposes are two different issues. If Mr. Brown would like
to be considered for LWOP, he must submit updated medical information to the
Warden through our offices. This requirement was addressed previously.”
0092-I-3, IAF, Tab 9 at 162. That afternoon, Smith responded, stating: “I have
contacted Mr. Brown about the issue. As we do not represent him regarding
disability retirement, we do not have access to his medical records or any updates
on his condition. He has another firm representing him regarding disability
retirement and I informed Mr. Brown that this message is better directed to
them.” Id. at 158.
¶22 On November 15, 2012, the Assistant HR Manager forwarded Smith’s
message to the appellant and the Harris Law Firm. Id. at 155. By email dated
November 16, 2012, the Benefits Specialist notified the legal assistant that he had
received the appellant’s disability application. 0265-I-1, IAF, Tab 1 at 53. The
Assistant HR Manager was copied on the email. Id. at 53. In her January 24,
2013 affidavit, the HR Manager stated that she again contacted the appellant on
November 29, 2012, “to inform him what he needed to do.” Id. at 11 (HR
12
Manager’s affidavit). She further stated that the HR office was “expecting
supporting documentation to support an additional [LWOP] period,” and that, as
of the date of her affidavit, the appellant had not provided any
documentation. Id.
¶23 The appellant contends he had a good faith belief that his local HR office
would be able to contact the Benefits Office and obtain a copy of his disability
retirement application, which included the medical documentation to support his
need for LWOP. He notes that HR had previously done so concerning the status
of his application. However, the Assistant HR Manager testified at the hearing
that the Benefits Office was not authorized to share with HR the information
contained in the disability application. HCD1 (Assistant HR Manager).
Moreover, in her emails of October 10, November 1, and November 14, 2012, she
explicitly instructed the appellant and his attorney that medical documentation in
support of the LWOP request should be submitted to the Warden through her
office. Hence, even if HR had been able to obtain medical documentation from
the Benefits Office, the appellant was on clear notice that it was his responsibility
to ensure that HR received the necessary documentation.
¶24 The appellant further argues that, because the Harris Law Firm was
assisting him with his disability retirement application, it “became the natural
point of contact” regarding his medical condition. PFR File, Tab 1 at 14.
However, as the legal assistant informed the appellant, the Harris Law Firm
was not representing the appellant in his LWOP request and could not assist him
in that matter. There is no apparent reason why the appellant or his attorney
could not have obtained copies of the medical records from the Harris Law Firm
and submitted them to HR as instructed. Smith expressly declined to perform that
task, instead suggesting that HR contact the Harris Law Firm directly. In short, it
appears that each firm expected the other to provide HR with the documentation it
needed to support the appellant’s LWOP request. While the failure of
coordination had unfortunate consequences for the appellant, he is ultimately
13
responsible for the errors of his chosen representatives. Sofio v. Internal Revenue
Service, 7 M.S.P.R. 667, 670 (1981). Because the appellant failed to provide HR
with the medical documentation needed to support his request for continued
LWOP, despite having been advised of the need to submit such documentation
and having been provided several opportunities to do so, we find the denial of
LWOP was consistent with agency policy.
¶25 Moreover, even if the appellant had provided the requested documentation,
we still would find that the denial of LWOP that led to his placement on AWOL
was not unreasonable. The Board has held that, where an employee who is
incapacitated for duty has exhausted his or her leave, it is not improper for an
agency to deny LWOP where there is no foreseeable end to the employee’s
absence and the employee’s absence is a burden to the agency. Bologna v.
Department of Defense, 73 M.S.P.R. 110, 113, aff’d, 135 F.3d 774 (Fed. Cir.
1997) (Table). Under such circumstances, denial of LWOP is reasonable even in
the face of medical evidence showing that the employee is unable to work. Young
v. Department of Veterans Affairs, 83 M.S.P.R. 187, ¶ 12 (1999). Here, the
appellant gave the agency no reason to believe that there was a foreseeable end to
his absence, and he does not dispute that his failure to report for assigned shifts
created “a significant burden on [his] fellow staff and severely limit[ed] the
institution’s ability to meet its mission.” 0092-I-2, IAF, Tab 3 at 14, 17; see
Bologna, 73 M.S.P.R. at 115.
¶26 We find no merit to the appellant’s contention that the agency intended to
charge him separately with his alleged failure to respond to the Acting SIA’s
email. Accordingly, we do not make a finding as to whether the appellant
attempted to contact her. We further note that the appellant is mistaken in his
belief that reversal of a single charge would necessitate reversal of the removal
action. See Douglas v. Veterans Administration, 5 M.S.P.R. 280, 308 (1981)
(when not all of the charges are sustained, the Board will consider carefully
whether the sustained charges merit the penalty imposed by the agency).
14
The appellant did not establish his discrimination claim.
¶27 The appellant alleges that his demotion and removal were the result of
discrimination based on race and color, i.e., light-skinned African-American.
Typically, in order to establish a claim of prohibited employment discrimination
under Title VII based on circumstantial evidence, an employee must first
establish a prima facie case; the burden of going forward then shifts to the agency
to articulate a legitimate, nondiscriminatory reason for its action; and, finally, the
employee must show that the agency’s stated reason is merely a pretext for
prohibited discrimination. McDonnell Douglas Corp. v. Green, 411 U.S. 792,
802-04 (1973). To establish a prima face case, the employee must show that:
(1) he is a member of a protected class; (2) he suffered an employment action;
and (3) the unfavorable action gives rise to an inference of discrimination. Wiley
v. Glassman, 511 F.3d 151, 155 (D.C. Cir. 2007).
¶28 Here, as in most cases under chapter 75, the agency has already articulated
a legitimate, nondiscriminatory reason for its action, i.e., the charged misconduct.
See Marshall v. Department of Veterans Affairs, 111 M.S.P.R. 5, ¶ 16 (2008).
Contrary to the appellant’s assertions on petition for review, it is unnecessary for
the agency to actually prove its charges in order to meet its burden under the
McDonnell Douglas framework. Rather, the agency meets its burden of
articulating a legitimate, nondiscriminatory reason for an alleged discriminatory
action when it introduces evidence “which, taken as true, would permit the
conclusion that there was a nondiscriminatory reason for the adverse action.”
Carter v. Small Business Administration, 61 M.S.P.R. 656, 666 (1994) (quoting
St. Mary’s Honor Center v. Hicks, 508 U.S. 502, 509 (1993); cf. Fox v.
Department of the Army, 120 M.S.P.R. 529, ¶ 36 (2014) (finding that the agency
had articulated a nondiscriminatory reason for its action, although only one of
two charges was proven).
¶29 Having met that burden, the agency has done everything that would be
required of it if the appellant had made out a prima face case.
15
Marshall, 111 M.S.P.R. 5, ¶ 16. Accordingly, the inquiry proceeds to the
ultimate question of whether, upon weighing all the evidence, the appellant has
met his burden of proving that the agency intentionally discriminated against him.
The evidence to be considered at this stage may include: (1) the elements of the
prima facie case; (2) any evidence the employee presents to attack the employer’s
proffered explanations for its actions; and (3) any further evidence of
discrimination that may be available to the employee, such as independent
evidence of discriminatory statements or attitudes on the part of the employer, or
any contrary evidence that may be available to the employer, such as a strong
track record in equal opportunity employment. Aka v. Washington Hospital
Center, 156 F.3d 1284, 1289 (D.C. Cir. 1998) (en banc). If we disbelieve the
agency’s proffered reason, especially if we find it to be mendacious, our rejection
of that reason, in combination with the elements of the prima facie case, permits a
finding of intentional discrimination. Hicks, 508 U.S. at 511. However, the
appellant is mistaken in his belief that disproving the agency’s proffered reason
would require a finding of discrimination. As the Court clearly stated in Hicks,
“[t]hat the employer’s proffered reason is unpersuasive, or even obviously
contrived, does not necessarily establish that the [employee’s] proffered reason of
[discrimination] is correct.” Id.
¶30 In support of his discrimination claim, the appellant testified that in a
meeting with the Warden, the Assistant Warden made comments to the effect that
the appellant had “pretty green eyes” and nice hair and lips, and that his mother
must have had pretty lips. HCD1 (appellant). He further alleged that the
Assistant Warden called him a “mixie,” referring to his biracial background. Id.
A subordinate of the Assistant Warden testified that he also heard the Assistant
Warden make such comments in that meeting, which occurred in 2009 or 2010,
and that it made him uncomfortable, but that the appellant merely said that “it
was what it was.” HCD1 (subordinate employee). For his part, the Assistant
Warden denied making such statements, and further testified that he had never
16
heard the term “mixie” and did not know what it meant. HCD2 (Assistant
Warden). The Warden, who also was present at the meeting, testified that he
never heard the Assistant Warden make such comments or any unprofessional
remarks about the appellant or anyone else. HCD1 (Warden).
¶31 On review, the appellant argues that the administrative judge erred in
crediting the testimony of the Warden that he had not heard the Assistant Warden
make the discriminatory remarks. PFR File, Tab 1 at 8-9. He notes that the
Warden’s testimony was contrary to his own and that of the subordinate
employee, and further contends that the Warden displayed a religious bias by
citing his Christian beliefs as a reason to consider the Assistant Warden as
trustworthy. Id. However, assuming arguendo that the administrative judge
should have discredited the Warden’s testimony, the error provides no basis for
reversal, because the administrative judge did not make a finding as to whether
the Assistant Warden made the statements in question. The administrative judge
rather found that, even if the Assistant Warden had made the statements, and
those statements were discriminatory, they were nonetheless insufficient to
establish that the adverse actions on appeal were based on the appellant’s race
and color. ID at 11. In so finding, the administrative judge correctly noted the
absence of any evidence that these sentiments were shared by the Complex
Warden or either of the proposing officials, or by the Warden, who had no
involvement in the adverse actions in any case. We agree with the administrative
judge that, regardless of whether the Assistant Warden made the inappropriate
remarks, the appellant failed to establish by preponderant evidence his
discrimination claim.
The appellant did not establish his affirmative defense of whistleblowing reprisal.
¶32 Regarding the appellant’s adverse action appeals, we treat his claim of
whistleblowing reprisal as an affirmative defense. Shannon v. Department of
Veterans Affairs, 121 M.S.P.R. 221, ¶ 21 (2014). To establish an affirmative
defense of whistleblowing reprisal, the appellant must show by preponderant
17
evidence that he engaged in whistleblowing by making a protected disclosure
under 5 U.S.C. § 2302(b)(8) and that the disclosure was a contributing factor in
the agency’s personnel action. 6 Shannon, 121 M.S.P.R. 221, ¶ 21.
¶33 A protected disclosure is a disclosure of information that the appellant
reasonably believes evidences a violation of any law, rule, or regulation, gross
mismanagement, a gross waste of funds, an abuse of authority, or a substantial
and specific danger to public health or safety. 5 U.S.C. § 2320(b)(8)(A);
Chambers v. Department of the Interior, 515 F.3d 1362, 1367 (Fed. Cir. 2008).
To prove that a disclosure is protected, the appellant must show that a
disinterested observer with knowledge of the essential facts known to and readily
ascertainable by him could reasonably conclude that: (1) the alleged misconduct
occurred; and (2) the alleged misconduct evidences one of the categories of
wrongdoing identified in 5 U.S.C. § 2302(b)(8)(A).
¶34 Here, the administrative judge found that both of the appellant’s alleged
disclosures were protected, but he did not elaborate on that finding or indicate
which types of wrongdoing were implicated in those disclosures. ID at 16. It
was error to omit the necessary analysis. See Spithaler v. Office of Personnel
Management, 1 M.S.P.R. 587, 589 (1980) (an initial decision must identify all
material issues of fact and law, summarize the evidence, resolve issues of
credibility, and include the administrative judge’s conclusions of law and his
legal reasoning, as well as the authorities on which that reasoning rests).
Nonetheless, we discern no error in the administrative judge’s ultimate
conclusion that the disclosures were protected.
¶35 Concerning the appellant’s first alleged disclosure, while the agency
does not dispute that the taunting incident took place, there is a dispute as to
whether the appellant in fact disclosed the incident to the Warden. The appellant
6
The administrative judge erroneously set forth the standard appropriate to retaliation
claims under § 2302(b)(9). See ID at 11 (citing Warren v. Department of the Army,
804 F.2d 654, 656-58 (Fed. Cir. 1986)).
18
testified that the Captain notified him of a report of the incident, that he then
watched the videotape of the confrontation between the prison guard and the
Muslim inmates, and that the Captain suggested that they report it to the Warden.
The appellant related that, after the Warden learned that the guard was a friend of
the union vice-president, he indicated that he was “going to let the Union have
this one,” and not pursue the matter further. The appellant explained that when
he protested, the Warden got angry and told him to get out of his office. HCD1
(appellant); see 0392-W-1, IAF, Tab 1 at 90. However, both the Warden and the
Captain testified that they did not recall the meeting at which the disclosure
allegedly took place. ID at 14; see HCD1 (Warden, Captain).
¶36 We agree with the appellant that the administrative judge should have
applied the factors set forth in Hillen v. Department of the Army, 35 M.S.P.R. 453
(1987), and made an explicit credibility determination. See id. at 458 (to resolve
credibility issues, an administrative judge must identify the factual questions in
dispute, summarize the evidence on each disputed question, state which version
he believes, and explain in detail why he found the chosen version more
credible); Spithaler, 1 M.S.P.R. at 589. However, in finding that the first
disclosure was protected, the administrative judge implicitly credited the
testimony of the appellant over that of the Warden and the Captain.
Consequently, the appellant was not prejudiced by the administrative judge’s
failure to conduct an explicit Hillen analysis. See Panter v. Department of the
Air Force, 22 M.S.P.R. 281, 282 (1984).
¶37 We further find that the appellant reasonably believed both disclosures
evidenced an abuse of power. The Board has defined “abuse of authority” as an
arbitrary or capricious exercise of power by a federal official or employee that
adversely affects the rights of any person or that results in personal gain or
advantage to himself or to preferred other persons. D’Elia v. Department of the
Treasury, 60 M.S.P.R. 226, 232-33 (1993), overruled on other grounds by
Thomas v. Department of the Treasury, 77 M.S.P.R. 224 (1998). A reasonable
19
person could well conclude that the prison guard abused his authority by taunting
inmates about their religious preferences. Cf. Herman v. Department of
Justice, 115 M.S.P.R. 386, ¶ 11 (2011) (harassment of other employees may
constitute an abuse of authority). Likewise, the appellant’s undisputed allegation
that the Associate Warden gave a subordinate employee preferential treatment
based on his having a sexual relationship with her, clearly falls within the
definition of abuse of authority. See Sirgo v. Department of Justice, 66 M.S.P.R.
261, 267 (1995).
¶38 The next question to be decided is whether the appellant established by
preponderant evidence that the disclosures were a contributing factor in his
demotion and/or removal. The most common way of proving that a disclosure
was a contributing factor is the “knowledge/timing” test. Shannon, 121 M.S.P.R.
221, ¶ 23 (2014); Wadhwa v. Department of Veterans Affairs, 110 M.S.P.R. 615,
¶ 12, aff’d, 353 F. App’x 435 (Fed. Cir. 2009). Under that test, an appellant can
prove the contributing factor element through evidence that the official taking the
personnel action knew of the whistleblowing disclosure and took the personnel
action within a period of time such that a reasonable person could conclude that
the disclosure was a contributing factor in the personnel action. Id.
¶39 The appellant has not alleged that the Deputy Captain, the Associate
Warden, or the Complex Warden were aware of his first disclosure, and again,
there is no evidence that the Warden played any role in either the demotion or
removal actions. As for the second disclosure, there is a dispute as to whether
management was aware that the appellant was the author of the anonymous letter.
The Deputy Captain, an appellant witness, testified that he had not heard anyone
in management identify the appellant as the author of the letter, and that he
did not know what management had done with the letter or if they had tried to
find out who wrote it. HCD1 (Deputy Captain). The Warden testified that he
did not remember seeing the letter and that he had already learned about the
allegations against the Associate Warden in February 2012. HCD1 (Warden).
20
The Complex Warden, the deciding official in both cases, testified that he was
aware of the anonymous letter, but that an investigation into the allegations
against the Associate Warden was already underway, and he was never aware that
the appellant had written the letter. HCD (Complex Warden). The appellant
contends that it “flies in the face of reason” that the agency would fail to
determine the author of the letter “simply because an investigation into similar
claims was already ongoing,” and that neither the Complex Warden nor the
Warden “provided any compelling testimony as to why the Agency would not
investigate the anonymous letter . . . .” PFR File, Tab 1 at 11 (emphasis in
original). However, we find that it is not implausible that management would
decline to spend time and energy investigating the authorship of the letter, and
the appellant’s speculation to the contrary does not amount to preponderant
evidence that the agency officials knew of his disclosure.
¶40 Although the administrative judge confined his analysis to the
knowledge/timing test, we note that the knowledge/timing test is not the only way
for an appellant to establish the contributing factor element. Daniels v.
Department of Veterans Affairs, 105 M.S.P.R. 248, ¶ 16 (2007). Where, as here,
the appellant fails to satisfy the knowledge/timing test, the Board will consider
other evidence, such as that pertaining to the strength or weakness of the agency’s
reasons for taking the personnel action, whether whistleblowing was personally
directed at the proposing or deciding officials, and whether those individuals had
a desire or motive to retaliate against the appellant. Stiles v. Department of
Homeland Security, 116 M.S.P.R. 263, ¶ 24 (2011). In this case, the agency’s
charges were proven, the whistleblowing was not personally directed at the
proposing or deciding officials, and the appellant has provided no evidence that
those officials had a desire or motive to retaliate against him. Accordingly, we
conclude that the appellant has not shown that his disclosures were a contributing
factor in his demotion or removal, and that his affirmative defense of
whistleblowing reprisal therefore fails.
21
The demotion and removal penalties are reasonable for the sustained misconduct.
¶41 As it is undisputed that the sustained misconduct bears a nexus to the
efficiency of the service, we proceed to the question of whether the penalty was
reasonable. Where, as here, all of the agency’s charges have been sustained, the
Board will review an agency-imposed penalty only to determine if the agency
considered all the relevant factors and exercised management discretion within
tolerable limits of reasonableness. Davis v. U.S. Postal Service, 120 M.S.P.R.
457, ¶ 6 (2013); Douglas, 5 M.S.P.R. at 306. In determining whether the selected
penalty is reasonable, the Board gives due deference to the agency’s discretion in
exercising its managerial function of maintaining employee discipline and
efficiency. Davis, 120 M.S.P.R. 457, ¶ 6. The Board recognizes that its function
is not to displace management’s responsibility or to decide what penalty it would
impose but to assure that management’s judgment has been properly exercised
and that the penalty selected does not exceed the maximum limits of
reasonableness. Id. Thus, the Board will modify a penalty only when it finds that
the agency failed to weigh the relevant factors or that the penalty imposed clearly
exceeded the bounds of reasonableness. Id. However, if the deciding official
failed to appropriately consider the relevant factors, the Board need not defer to
the agency’s penalty determination. Id.
¶42 The Board has articulated factors to be considered in determining the
propriety of a penalty, such as the nature and seriousness of the offense, the
employee’s past disciplinary record, the employee’s potential for rehabilitation,
the supervisor’s confidence in the employee’s ability to perform his assigned
duties, and the consistency of the penalty with those imposed on other employees
for the same or similar offenses. Douglas, 5 M.S.P.R. at 305-06. Not all of the
Douglas factors will be pertinent in every instance, and so the relevant factors
must be balanced in each case to arrive at the appropriate penalty.
Davis, 120 M.S.P.R. 457, ¶ 7; Douglas, 5 M.S.P.R. at 306. The seriousness of the
offense is always one of the most important factors in assessing the
22
reasonableness of an agency’s penalty determination. Davis, 120 M.S.P.R. 457,
¶ 7; Schoemer v. Department of the Army, 81 M.S.P.R. 363, ¶ 12 (1999).
¶43 Regarding the demotion action, the deciding official explained that
disclosing sensitive information to unauthorized persons, especially information
pertaining to inmate and staff investigations, is a serious offense given that
release of such information could potentially affect the integrity of those
investigations and jeopardize the safe and orderly running of the Florence U.S.
Penitentiary. 0092-I-1, IAF, Tab 5 at 14-15. He further explained that this is
especially true in light of the appellant’s position as a supervisory Special
Investigative Agent, in which he is entrusted with sensitive information and given
the responsibility of ensuring the integrity of investigations completed by his
office. Id. The deciding official noted that the appellant had 14 years of service
with no prior discipline, and that his performance had been above an acceptable
level, but found that his conduct demonstrated poor judgment that caused him to
lose faith in his ability to perform his duties effectively and professionally. Id.
¶44 The appellant observes that his girlfriend received only a short suspension
for her role in the same email exchanges for which he was demoted. In Boucher
v. U.S. Postal Service, 118 M.S.P.R. 640 (2012), the Board clarified the criteria
necessary for showing disparate penalties. Specifically, the Board held that an
appellant must show that there is “enough similarity between both the nature of
the misconduct and the other factors to lead a reasonable person to conclude that
the agency treated similarly-situated employees differently, but the Board will not
have hard and fast rules regarding the ‘outcome determinative’ nature of those
factors.” Id., ¶ 20 (quoting Lewis v. Department of Veterans
Affairs, 113 M.S.P.R. 657, ¶ 15 (2010)). The agency’s burden to prove a
legitimate reason for the difference in treatment between employees is triggered
by the appellant’s initial showing that there is enough similarity between both the
nature of the conduct and the other factors to lead a reasonable person to
conclude that the agency treated similarly-situated employees differently.”
23
Boucher, 118 M.S.P.R. 640, ¶ 24. As the administrative judge correctly noted,
the appellant’s girlfriend worked at a different institution, reported to a different
manager, and received her discipline from a different deciding official.
Moreover, her position as a Unit Manager did not involve the same level of
exposure to or responsibility over sensitive information as did the appellant’s
Special Investigative Agent position. We agree with the administrative judge
that, given these significant differences, the girlfriend is not a comparable
employee for purposes of establishing a disparate penalties claim.
¶45 Regarding the removal action, the Board has held that AWOL is a serious
offense warranting a severe penalty. Young v. U.S. Postal Service, 79 M.S.P.R.
25, 39 (1998). Moreover, following agency leave-requesting procedures is an
essential part of a government job as the failure to do so results in unscheduled
absences, which seriously burden an agency and are disruptive to its efficient
operations. Stevens v. Department of the Army, 73 M.S.P.R. 619, 625 (1997).
The record reflects that the deciding official considered potential mitigating
factors, including the appellant’s performance and length of service, but found
that these factors were not sufficient to outweigh the factors supporting the
removal penalty. 0265-I-1, IAF, Tab 1 at 56. Given the appellant’s being AWOL
for more than 60 days and his failure to provide the medical documentation
needed to support his request for extended LWOP, we agree that the penalty of
removal was within the bounds of reasonableness. See McCauley v. Department
of the Interior, 116 M.S.P.R. 484 (2011) (penalty of removal for more than 20
consecutive days of AWOL did not exceed the tolerable limits of reasonableness).
The appellant established jurisdiction over his IRA appeal, but he is not entitled
to corrective action.
¶46 Before proceeding to the merits of an IRA appeal, the Board must first
resolve the threshold issue of jurisdiction. See Schmittling v. Department of the
Army, 219 F.3d 1332, 1337 (Fed. Cir. 2000). Here, the administrative judge
found that the Board had jurisdiction over the IRA appeal, but he did so without
24
providing any analysis to support that conclusion. ID at 2 n.1; see
Spithaler, 1 M.S.P.R. at 589. Accordingly, we modify the initial decision to
address the jurisdictional issue. See Metzenbaum v. General Services
Administration, 96 M.S.P.R. 104, ¶ 15 (2004) (the Board must satisfy itself that it
has the authority to adjudicate the matter before it and may raise the issue of its
own jurisdiction sua sponte at any time).
¶47 The Board has jurisdiction over an IRA appeal if the appellant has
exhausted his administrative remedies before OSC and makes nonfrivolous
allegations that: (1) he engaged in whistleblowing activity by making a protected
disclosure, and (2) the disclosure was a contributing factor in the agency’s
decision to take or fail to take a personnel action. Yunus v. Department of
Veterans Affairs, 242 F.3d 1367, 1371 (Fed. Cir. 2001). Concerning the
exhaustion requirement, the appellant alleged before OSC that his
reassignment--which is the only personnel action at issue in this IRA appeal—was
the result of his second disclosure. See 0092-I-3, IAF, Tab 11, Tab 17 at 12 n.5.
Accordingly, for purposes of determining jurisdiction over the IRA appeal, we
consider only whether the appellant nonfrivolously alleged that his second
disclosure was both protected and a contributing factor in his reassignment. See
McCarthy v. International Boundary and Water Commission, 116 M.S.P.R. 594,
¶ 34 (2011) (in an IRA appeal, the Board may consider only those charges of
whistleblowing that were asserted before OSC, and may not consider any
subsequent recharacterization of those charges before the Board), aff’d, 497 F.
App’x 4 (Fed. Cir. 2012).
¶48 Because the appellant established by preponderant evidence that his second
disclosure was protected, it follows that he made a nonfrivolous allegation that
the disclosure was protected. The remaining jurisdictional question is whether he
made a nonfrivolous allegation that the disclosure was a contributing factor in his
June 26, 2012 reassignment. As discussed above, the appellant failed to show by
preponderant evidence that the official responsible for his reassignment was
25
aware that he was the author of the anonymous letter, or was otherwise motivated
to retaliate against him for that disclosure. However, this does not preclude a
finding that, based on the written record, the appellant made a nonfrivolous
allegation that the disclosure was a contributing factor in his reassignment. Cf.
Boechler v. Department of the Interior, 109 M.S.P.R. 619, ¶ 17 (2008) (the
appellant was not collaterally estopped from raising a protected disclosure raised
in his previous IRA appeal; whereas the issue in the earlier appeal was whether,
after a hearing, the appellant proved by preponderant evidence that the disclosure
was protected, the issue in the second appeal was whether, on the written record,
he made a nonfrivolous allegation that his disclosure was protected), aff’d, 328 F.
App’x 660 (Fed. Cir. 2009). In his OSC complaint, the appellant alleged that his
May 15, 2012 anonymous letter had been sent to “virtually every member of
management at [U.S. Penitentiary] Florence” and stated that the Deputy Captain
could confirm that “by June 26 or possibly earlier, management assumed [the
appellant was] the author.” 0329-W-1, IAF, Tab 1 at 95. While the Deputy
Captain ultimately testified to the contrary, we find that, based solely on the
written record, the appellant nonetheless made a nonfrivolous allegation that, by
the time of the reassignment, the deciding official was aware of his anonymous
disclosure, thus satisfying the knowledge/timing test. Accordingly, we conclude
that the IRA appeal lies within the Board’s jurisdiction.
¶49 Next, in reviewing the merits of an IRA appeal, the Board must examine
whether the appellant proved by preponderant evidence that he engaged in
whistleblowing activity by making a protected disclosure under 5 U.S.C.
§ 2302(b)(8), and that such whistleblowing activity was a contributing factor in
an agency personnel action; if so, the Board must order corrective action unless
the agency established by clear and convincing evidence that it would have taken
the same personnel action in the absence of the disclosures. Schnell v.
Department of the Army, 114 M.S.P.R. 83, ¶ 18 (2010); see 5 U.S.C. § 1221(e).
For the same reasons discussed above, we find that the appellant failed to
26
establish by preponderant evidence that his second disclosure was a contributing
factor in his reassignment. 7 The administrative judge was therefore correct in
denying the appellant’s request for corrective action.
NOTICE TO THE APPELLANT REGARDING
YOUR FURTHER REVIEW RIGHTS
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 have the right to
request further review of this final decision. There are several options for further
review set forth in the paragraphs below. You may choose only one of these
options, and once you elect to pursue one of the avenues of review set forth
below, you may be precluded from pursuing any other avenue of review.
Discrimination Claims: Administrative Review
You may request review of this final decision on your discrimination claims
by the Equal Employment Opportunity Commission (EEOC). See Title 5 of the
United States Code, section 7702(b)(1) (5 U.S.C. § 7702(b)(1)). If you submit
your request 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 your request 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, NE
Suite 5SW12G
Washington, D.C. 20507
7
We therefore do not reach the question of whether the agency established by clear and
convincing evidence that it would have reassigned the appellant in the absence of the
disclosure. See 5 U.S.C. § 1221(e)(2); Clarke v. Department of Veterans Affairs,
121 M.S.P.R. 154, ¶ 19 n.10 (2014).
27
You should send your request to EEOC no later than 30 calendar days after
your receipt of this order. If you have a representative in this case, and your
representative receives this order before you do, then you must file with EEOC no
later than 30 calendar days after receipt by your representative. If you choose to
file, be very careful to file on time.
Discrimination and Other Claims: Judicial Action
If you do not request EEOC to review this final decision on your
discrimination claims, you may file a civil action against the agency on both your
discrimination claims and your other claims in an appropriate United States
district court. See 5 U.S.C. § 7703(b)(2). You must file your civil action with
the district court no later than 30 calendar days after your receipt of this order. If
you have a representative in this case, and your representative receives this order
before you do, then you must file with the district court no later than 30 calendar
days after receipt by your representative. If you choose to file, be very careful to
file on time. 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.
Other Claims: Judicial Review
If you do not want to request review of this final decision concerning your
discrimination claims, but you do want to request review of the Board's decision
without regard to your discrimination claims, you may request review of this final
decision on the other issues in your appeal by the United States Court of Appeals
for the Federal Circuit.
The court must receive your request for review no later than 60 calendar
days after the date of this order. See 5 U.S.C. § 7703(b)(1)(A) (as rev. eff.
Dec. 27, 2012). If you choose to file, be very careful to file on time. The court
28
has held that normally it does not have the authority to waive this statutory
deadline and that filings that do not comply with the deadline must be dismissed.
See Pinat v. Office of Personnel Management, 931 F.2d 1544 (Fed. Cir. 1991).
If you want to request review of the Board’s decision concerning your
claims of prohibited personnel practices described in 5 U.S.C. § 2302(b)(8),
(b)(9)(A)(i), (b)(9)(B), (b)(9)(C), or (b)(9)(D), but you do not want to challenge
the Board’s disposition of any other claims of prohibited personnel practices, you
may request review of this final decision by the United States Court of Appeals
for the Federal Circuit or by any court of appeals of competent jurisdiction. The
court of appeals must receive your petition for review within 60 days after the
date of this order. See 5 U.S.C. § 7703(b)(1)(B) (as rev. eff. Dec. 27, 2012). If
you choose to file, be very careful to file on time.
If you need further information about your right to appeal this decision to
court, you should refer to the federal law that gives you this right. It is found in
Title 5 of the United States Code, section 7703 (5 U.S.C. § 7703) (as rev. eff.
Dec. 27, 2012). You may read this law as well as other sections of the
United States Code, at our website, http://www.mspb.gov/appeals/uscode/htm.
Additional information about the United States 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, and 11.
Additional information about other courts of appeals can be found at their
respective websites, which can be accessed
through http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx.
If you are interested in securing pro bono representation for an appeal to the
United States Court of Appeals for the Federal Circuit, you may visit our website
at http://www.mspb.gov/probono for a list of attorneys who have expressed
interest in providing pro bono representation for Merit Systems Protection Board
appellants before the Federal Circuit. The Merit Systems Protection Board
29
neither endorses the services provided by any attorney nor warrants that any
attorney will accept representation in a given case.
FOR THE BOARD: ______________________________
William D. Spencer
Clerk of the Board
Washington, D.C.