Sheila A. McNair v. Department of Agriculture ( 2014 )


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  •                            UNITED STATES OF AMERICA
    MERIT SYSTEMS PROTECTION BOARD
    SHEILA A. MCNAIR,                               DOCKET NUMBER
    Appellant,                        DC-0752-14-0385-I-1
    v.
    DEPARTMENT OF AGRICULTURE,                      DATE: September 16, 2014
    Agency.
    THIS FINAL ORDER IS NONPRECEDENTIAL 1
    Sheila A. McNair, Calypso, North Carolina, pro se.
    Cliff Lockett, Washington, D.C., 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, which
    affirmed the agency’s removal action. Generally, we grant petitions such as this
    one only when: the initial decision contains erroneous findings of material fact;
    the initial decision is based on an erroneous interpretation of statute or regulation
    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    A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
    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 and AFFIRM
    the initial decision, which is now the Board’s final decision.              5 C.F.R.
    § 1201.113(b).
    DISCUSSION OF ARGUMENTS ON REVIEW
    ¶2         The appellant was employed as a Food Inspector for the agency. Initial
    Appeal File (IAF), Tab 7.       As an intermittent employee, the appellant was
    required to be available and to report to work as needed. IAF, Tab 5 at 51-52.
    The agency proposed the appellant’s removal based on seven specifications of
    unsatisfactory attendance. 
    Id. at 30-31.
    In deciding to remove the appellant, the
    deciding official sustained five of the specifications. 
    Id. The appellant
    filed an
    appeal challenging her removal. IAF, Tab 1. She asserted affirmative defenses
    of discrimination based on color and retaliation for making protected disclosures.
    Id.; see IAF, Tab 8 at 2. The appellant requested a hearing. IAF, Tab 3. At the
    hearing, the agency withdrew one of the five sustained specifications.          IAF,
    Tab 16, Hearing Compact Diskette (HCD). The administrative judge issued an
    initial decision sustaining the charge and the penalty and finding that the
    appellant had failed to establish either of her affirmative defenses. IAF, Tab 17,
    Initial Decision (ID).
    3
    ¶3        The appellant has filed a petition for review rearguing defenses for each of
    the sustained specifications of unsatisfactory attendance and challenging the
    penalty. Petition for Review (PFR) File, Tab 1. The agency responds that the
    appellant merely reargues her case and has not shown any reason to disturb the
    initial decision. PFR File, Tab 3 at 7-8.
    ¶4        The agency bears the burden of establishing three things in order to
    withstand a challenge to an adverse action against an employee. First, the agency
    must prove, by a preponderance of the evidence, that the charged conduct
    occurred. 2 Gonzalez v. Department of Homeland Security, 114 M.S.P.R. 318,
    ¶ 11 (2010) (citing 5 U.S.C. § 7701(c)(1)(B)). Second, the agency must establish
    that there is a nexus between the conduct and the efficiency of the service. 
    Id. (citing 5
    U.S.C. § 7513(a)).     Finally, the agency must demonstrate that the
    penalty is reasonable. 
    Id. (citing Douglas
    v. Veterans Administration, 5 M.S.P.R.
    280, 306-07 (1981)).
    The administrative judge correctly sustained the charge.
    ¶5        The administrative judge sustained the charge of unsatisfactory attendance,
    specifically sustaining specifications 1, 2, 6, and 7. ID at 3-9 (citing Miller v.
    U.S. Postal Service, 117 M.S.P.R. 557, ¶ 17 (2012) (where there is one charge
    with multiple factual specifications set out in support of the charge, proof of one
    or more, but not all of the supporting specifications is sufficient to sustain the
    charge)). In her decision, the administrative judge properly identified the factual
    questions in dispute, summarized the evidence, stated which version she believed,
    and explained why she found the version of events proffered by agency witnesses
    to be more credible than the appellant’s version of events. ID at 3-9; see Hillen v.
    Department of the Army, 35 M.S.P.R. 453, 458 (1987) (listing those factors to be
    considered by an administrative judge in resolving credibility issues). The Board
    2
    A preponderance of the evidence is that degree of relevant evidence that a reasonable
    person, considering the record as a whole, would accept as sufficient to find that a
    contested fact is more likely to be true than untrue. 5 C.F.R. § 1201.56(c)(2).
    4
    must give deference to an administrative judge’s credibility determinations when
    they are based, explicitly or implicitly, on the observation of the demeanor of
    witnesses testifying at a hearing; the Board may overturn such determinations
    only when it has “sufficiently sound” reasons for doing so. Haebe v. Department
    of Justice, 
    288 F.3d 1288
    , 1301 (Fed. Cir. 2002).        Although the appellant
    disagrees with the administrative judge’s conclusions in favor of the agency, her
    petition has provided no reason for the Board to overturn the administrative
    judge’s credibility determinations and substitute its own, nor has she otherwise
    shown that the administrative judge erred in finding that the agency’s charge is
    supported by preponderant evidence.
    ¶6        On review, the appellant generally asserts that there was a lack of
    communication between her supervisors that led to the issues with her attendance,
    and she argues that she should therefore not be punished. PFR File, Tab 1 at 4.
    The appellant also argues that she was available with a working telephone and
    made appropriate arrangements as needed. 
    Id. The administrative
    judge found,
    however, that the appellant’s assertions were not supported by the record. The
    administrative judge did not find that any of the arguments advanced by the
    appellant were credible or persuasive and we see no reason to disturb her
    findings.   See 
    Haebe, 288 F.3d at 1301
    (outlining the standard of deference
    afforded to an administrative judge’s findings based upon the credibility of
    witnesses). Accordingly, we find that the agency has met its burden of proving
    the charge of unsatisfactory attendance by the preponderance of the evidence.
    See Gonzalez, 114 M.S.P.R. 318, ¶ 11. We therefore affirm the administrative
    judge’s decision sustaining the charge.
    There is a nexus between the charged conduct and the efficiency of the service.
    ¶7        The administrative judge found that the appellant’s charged conduct directly
    involved her job duties because one of the primary purposes of her position was
    to provide emergency coverage for absent employees. ID at 13. We agree that
    5
    there is a nexus between the agency’s discipline for the charged conduct and the
    efficiency of the service. See Gonzalez, 114 M.S.P.R. 318, ¶ 11. We therefore
    affirm the administrative judge’s conclusion in this regard.
    The removal penalty is within the tolerable bounds of reasonableness.
    ¶8        On review, the appellant argues that a lack of communication between
    supervisors caused some of her attendance issues and she should therefore not be
    punished. PFR File, Tab 1 at 4. The Board has recognized a number of relevant
    factors in determining whether a penalty is within the tolerable bounds of
    reasonableness. Douglas, 5 M.S.P.R. at 305-06. The appellant was put on notice
    regarding aggravating factors the agency would consider in determining the
    appropriate penalty, including the nature and seriousness of the appellant’s
    misconduct, and her supervisors’ loss of confidence. IAF, Tab 5 at 32. In the
    removal decision, the agency weighed relevant factors including the appellant’s
    approximately 2 years of service, lack of a prior disciplinary record, and
    otherwise acceptable performance, before finding that the mitigating factors did
    not outweigh the seriousness of her misconduct, particularly considering that her
    inability to report to work affected the agency’s ability to carry out its mission.
    
    Id. at 18-19.
    The administrative judge found that the agency considered relevant
    Douglas factors, and that the penalty imposed was within the bounds of
    reasonableness.   ID at 15.    Although the appellant generally asserts that she
    should not have been punished, we find no reason to disturb the administrative
    judge’s conclusion.
    The appellant has not established her affirmative defenses of discrimination based
    on color or retaliation for protected whistleblowing.
    ¶9        The appellant bears the burden of proving her affirmative defenses by
    preponderant evidence. 5 C.F.R. §1201.56(a)(2)(iii). She alleges that the agency
    discriminated against her based upon her color (Black) and retaliated against her
    for making a protected disclosure.
    6
    ¶10        The appellant’s claim of disparate treatment based on color was grounded
    on her assertion that she was required to travel away from her home plant more
    than a Caucasian female coworker. IAF, Tab 10 at 3. To establish a prima facie
    case of discrimination based on disparate treatment, an appellant must prove that:
    (1) she is a member of a protected class; (2) she suffered an adverse employment
    action; and (3) the unfavorable action gives rise to an inference of discrimination.
    McDonnell Douglas Corp. v. Green, 
    411 U.S. 792
    , 802 (1973). If an appellant
    establishes a prima facie case of prohibited employment discrimination, 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. 
    Id. at 802-04.
      However, in a case like this, where the record is complete and a
    hearing has been held, the Board will proceed directly to the ultimate question of
    whether the appellant has demonstrated by a preponderance of the evidence that
    the agency’s reason for its actions was a pretext for discrimination. See Berry v.
    Department of Commerce, 105 M.S.P.R. 596, ¶ 10 (2007).               Applying this
    standard, the administrative judge found that the appellant had not met her burden
    of proving that she, as a Black woman, had to travel more than similarly-situated
    Caucasian employees. She noted that the appellant had not submitted travel logs
    of other employees. She also considered that the appellant’s allegation regarding
    travel had been corrected. Finally, the administrative judge considered that the
    appellant’s supervisor credibly testified both that his comparison of the
    appellant’s schedule with that of another employee showed that the appellant did
    not travel more than did the other employee, and that scheduling was random and
    done according to need.       ID at 9-11.     We see no reason to disturb the
    administrative judge’s finding that the appellant failed to prove disparate
    treatment discrimination.
    ¶11        Next, in order to establish reprisal for whistleblowing, the appellant must
    show by preponderant evidence that she engaged in whistleblowing activity by
    7
    making a protected disclosure and that the disclosure was a contributing factor in
    the   agency’s    personnel   action.   Shannon     v.   Department    of   Veterans
    Affairs, 121 M.S.P.R. 221, ¶ 21 (2014).     Protected disclosures under 5 U.S.C.
    § 2302(b)(8)(A) include disclosures that the employee reasonably believes
    evidence “any violation of any law, rule, or regulation,” as well as disclosures
    that she reasonably believes evidence “gross mismanagement, a gross waste of
    funds, an abuse of authority, or a substantial and specific danger to public health
    or safety.” Certain disclosures to the Special Counsel or to the Inspector General
    are also protected.   See 5 U.S.C. § 2302(b)(8)(B).      In this case, the appellant
    alleges that she made a protected disclosure when she reported to a human
    resources staff member that a supervisor was completing unemployment
    compensation requests on behalf of employees. IAF, Tab 10. The administrative
    judge found that the appellant’s disclosure was not protected because the
    appellant failed to articulate a reasonable belief that her disclosure evidenced any
    of the enumerated protected categories.           ID at 12.       Furthermore, the
    administrative judge found that the appellant failed to demonstrate that anyone
    who was involved in proposing or deciding her removal had either actual or
    constructive knowledge of her disclosure. ID at 12. We see no reason to disturb
    the administrative judge’s findings regarding the appellant’s whistleblower
    reprisal claim.
    NOTICE TO THE APPELLANT REGARDING
    YOUR FURTHER REVIEW RIGHTS
    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.
    8
    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
    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
    9
    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.   42 U.S.C.   § 2000e-5(f)
    and 29 U.S.C. § 794a.
    Other Claims: Judicial Review
    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 the United States Court of Appeals for the Federal Circuit or any
    court of appeals of competent jurisdiction to review this final decision. 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.
    10
    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 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.
    

Document Info

Filed Date: 9/16/2014

Precedential Status: Non-Precedential

Modified Date: 4/18/2021