Juliette Mosteller v. Department of Veterans Affairs ( 2016 )


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  •                            UNITED STATES OF AMERICA
    MERIT SYSTEMS PROTECTION BOARD
    JULIETTE MOSTELLER,                             DOCKET NUMBER
    Appellant,                         DC-0752-16-0108-I-1
    v.
    DEPARTMENT OF VETERANS                          DATE: June 27, 2016
    AFFAIRS,
    Agency.
    THIS FINAL ORDER IS NONPRECEDENTIAL 1
    Juliette Mosteller, Glen Burnie, Maryland, pro se.
    Richard Johns, Esquire, Washington, D.C., for the agency.
    BEFORE
    Susan Tsui Grundmann, Chairman
    Mark A. Robbins, Member
    FINAL ORDER
    ¶1         The appellant has filed a petition for review of the initial decision, which
    dismissed her suspension appeal for lack of jurisdiction.        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
    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    A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
    interpretation of statute or regulation or the erroneous application of 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.        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, 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).
    BACKGROUND
    ¶2            The agency suspended the appellant for 14 days, from March 22 to April 4,
    2015. Mosteller v. Department of Veterans Affairs, MSPB Docket No. DC-0752-
    15-0865-I-1, Appeal File (0865 AF), Tab 10 at 132.          However, she was not
    returned to duty on her next scheduled work day. Initial Appeal File (IAF), Tab 4
    at 15. Instead, on April 6, 2015, the agency advised the appellant that it was
    placing her on an “authorized absence.” 0865 AF, Tab 10 at 115. On the same
    day, the agency proposed her removal. 
    Id. at 113-14.
    The agency did not pay the
    appellant between March 22 and May 2, 2015. IAF, Tab 4 at 15. The agency
    resumed her pay effective May 3, 2015. 
    Id. Effective May
    22, 2015, the agency
    removed the appellant from her Program Analyst position.          0865 AF, Tab 10
    at 20.     On June 19, 2015, the agency retroactively paid the appellant for the
    period from April 5 to May 2, 2015. IAF, Tab 4 at 15-16.
    ¶3            The appellant filed a Board appeal of her removal on June 15, 2015.
    0865 AF, Tab 1.       During the processing of her removal appeal, the appellant
    claimed that the agency had suspended her for around 30 days prior to removing
    3
    her.   0865 AF, Tab 23 at 5, Tab 26, Initial Decision (0865 ID) at 2.          The
    administrative judge docketed this separate appeal to address the suspension
    claim. IAF, Tab 2 at 2. He also docketed a separate individual right of action
    (IRA) appeal to address the appellant’s claims of retaliation for whistleblowing
    and for protected whistleblower activity raised in a complaint filed with the
    Office of Special Counsel. Mosteller v. Department of Veterans Affairs, MSPB
    Docket No. DC-1221-16-0107-W-1, Initial Appeal File (0107 AF), Tab 3 at 1-2;
    IAF, Tab 5, Initial Decision (ID) at 2 n.1.
    ¶4          In an acknowledgment order, the administrative judge informed the
    appellant of her burden of proving the Board’s jurisdiction over her appeal and he
    ordered her to file evidence and argument on the jurisdictional issue. IAF, Tab 2
    at 3-4. The appellant responded. IAF, Tab 3.
    ¶5          Without holding a hearing, the administrative judge dismissed this appeal
    for lack of jurisdiction. ID at 1, 5. He found that the Board lacked jurisdiction
    over her 14-day suspension. ID at 4-5. He further found that the appellant failed
    to refute the agency’s evidence showing that she received retroactive pay for the
    period beginning April 5, 2015. ID at 3, 5.
    ¶6          The appellant has filed a petition for review. Petition for Review (PFR)
    File, Tab 1. The agency has filed a response in opposition. PFR File, Tab 3.
    DISCUSSION OF ARGUMENTS ON REVIEW
    ¶7          The Board’s jurisdiction is limited to those matters over which it has been
    given jurisdiction by law, rule, or regulation.       Maddox v. Merit Systems
    Protection Board, 
    759 F.2d 9
    , 10 (Fed. Cir. 1985). A suspension for more than
    14 days is an appealable action.       5 U.S.C. § 7512(2); Abbott v. U.S. Postal
    Service, 121 M.S.P.R. 294, ¶ 6 (2014).         A “suspension” is the temporary
    placement of an employee in a nonpay, nonduty status.         5 U.S.C. § 7501(2);
    Abbott, 121 M.S.P.R. 294, ¶ 6.      The appellant has the burden of proving the
    4
    Board’s     jurisdiction    by   a    preponderance   of   the   evidence. 2    5 C.F.R.
    § 1201.56(b)(2)(i)(A). If an appellant makes a nonfrivolous allegation 3 of Board
    jurisdiction over an appeal, she is entitled to a hearing on the jurisdictional
    question.    Garcia v. Department of Homeland Security, 
    437 F.3d 1322
    , 1344
    (Fed. Cir. 2006) (en banc). The Board’s jurisdiction is determined by the nature
    of the agency’s action against an appellant at the time her appeal is filed. Lefavor
    v. Department of the Navy, 115 M.S.P.R. 120, ¶ 10 (2010).
    ¶8           Here, the agency did not pay the appellant between March 22 and May 2,
    2015.     IAF, Tab 4 at 15.          As the administrative judge properly found, the
    appellant’s 14-day suspension, from March 22 to April 4, 2015, is not an
    appealable action.         ID at 3 n.2; 0865 AF, Tab 10 at 132; see Lefavor,
    115 M.S.P.R. 120, ¶ 5 (2010) (stating that a suspension of 14 days or less is not
    an appealable action).       The administrative judge also found that the appellant
    failed to refute the agency’s evidence proving that she received retroactive pay. 4
    ID at 5. We agree and find that she was paid retroactively on June 19, 2015, for
    the period from April 5 to May 2, 2015. 5 IAF, Tab 4 at 15-16. Although the
    appellant was effectively suspended for longer than 14 days because the agency
    did not pay her after placing her on “authorized absence” on April 6, 2015, she
    2
    A preponderance of the evidence is the 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. § 1201.4(q).
    3
    A nonfrivolous allegation is an assertion that, if proven, could establish the matter at
    issue. 5 C.F.R. § 1201.4(s).
    4
    Although the administrative judge mistakenly stated that the agency retroactively paid
    the appellant for 10 work days, or 80 hours, the record shows that the agency
    retroactively paid her for 20 work days, or 160 hours. ID at 3, 5; IAF, Tab 4 at 15-16.
    However, such error does not affect the appellant’s substantive rights, and thus, it does
    not provide a reason to disturb the initial decision. See Panter v. Department of the Air
    Force, 22 M.S.P.R. 281, 282 (1984) (stating that an adjudicatory error that is not
    prejudicial to a party’s substantive rights provides no basis for reversal of an initial
    decision).
    5
    The record also shows that the appellant did not receive pay during her 14-day
    suspension from March 22 to April 4, 2015. IAF, Tab 4 at 15; 0865 AF, Tab 10 at 132.
    5
    did not raise her suspension claim until after she received retroactive pay. 6
    Further, because the record supports a finding that the two consecutive
    suspensions arose out of separate events and circumstances, they cannot be
    combined into one suspension. 7 See Jennings v. Merit Systems Protection Board,
    
    59 F.3d 159
    , 160-61 (Fed. Cir. 1995) (prohibiting the combination of two
    consecutive suspensions for purposes of determining jurisdiction because they
    arose out of separate events and circumstances). For these reasons, we find that
    the appellant has failed to make a nonfrivolous allegation of jurisdiction over a
    suspension for more than 14 days.
    ¶9         In her petition for review, the appellant seems to acknowledge that she was
    paid retroactively, but alleges that the agency’s error in not paying her in the first
    instance was both discriminatory and retaliatory. PFR File, Tab 1 at 59-60. She
    also raises additional claims of discrimination and prohibited personnel practices
    on review. 
    Id. at 57-61.
    However, the Board does not have jurisdiction over
    discrimination claims absent an otherwise appealable action. Pridgen v. Office of
    Management      and   Budget,    117 M.S.P.R.    665,    ¶7   (2012);    see   5 U.S.C.
    § 7702(a)(1). Further, prohibited personnel practices under 5 U.S.C. § 2302(b)
    are not an independent source of Board jurisdiction. Wren v. Department of the
    Army, 2 M.S.P.R. 1, 2 (1980), aff’d, 
    681 F.2d 867
    (D.C. Cir. 1982). Additionally,
    her claims of retaliation for whistleblowing and for protected whistleblower
    activity are being addressed in her separately docketed IRA appeal. PFR File,
    Tab 1 at 57-60; 0107 AF, Tab 3 at 1-2.
    6
    During the course of the appellant’s removal appeal filed on June 15, 2015, she raised
    a suspension claim for the first time on October 28, 2015, in a prehearing submission.
    0865 AF, Tab 1, Tab 23 at 5. She received retroactive pay on June 19, 2015. IAF,
    Tab 4 at 15.
    7
    The appellant’s first suspension was based on the charges of failure to follow
    directions and inappropriate communication, while her placement on “authorized
    absence” was unexplained and coincided with her proposed removal for alleged lack of
    candor. 0865 AF, Tab 10 at 113-15, 132-33.
    6
    ¶10         The appellant claims that the agency refused to cooperate in the discovery
    process below.   PFR File, Tab 1 at 59. However, because she did not file a
    motion to compel, she is precluded from raising this discovery issue for the first
    time on review. 8 See Szejner v. Office of Personnel Management, 99 M.S.P.R.
    275, ¶ 5 (2005), aff’d, 167 F. App’x 217 (Fed. Cir. 2006).
    ¶11         Next, the appellant alleges that the administrative judge abused his
    discretion by dismissing her appeal for her having untimely filed her response to
    the acknowledgment order. PFR File, Tab 1 at 58. We disagree. Although the
    administrative judge noted that the appellant’s response was untimely filed, he
    still considered it and he did not base his dismissal of her appeal on her untimely
    response. ID at 5 n.3. Rather, he dismissed her appeal for lack of jurisdiction.
    ID at 1, 5.
    ¶12         The appellant also argues that the administrative judge abused his discretion
    by separating her claims of a suspension and whistleblower reprisal from her
    removal appeal. PFR File, Tab 1 at 61-62; see, e.g., McCarthy v. International
    Boundary and Water Commission, 116 M.S.P.R. 594, ¶¶ 11-13 (2011) (finding
    that the administrative judge abused his discretion by failing to join the
    appellant’s related IRA appeals), aff’d, 497 F. App’x 4 (Fed. Cir. 2012);
    Stein ‑ Verbit v. Department of Commerce, 72 M.S.P.R. 332, 339 (1996) (finding
    that the administrative judge abused her discretion by bifurcating the charges of
    the agency’s removal action).    The decision to bifurcate a Board appeal is a
    matter committed     to   the sound    discretion   of   an   administrative   judge.
    Stein ‑ Verbit, 72 M.S.P.R. at 339. Because the administrative judge separated the
    appellant’s suspension claim to resolve whether the Board had jurisdiction over
    it, we find that he did not abuse his discretion. 0865 ID at 2; see Stein-Verbit,
    8
    The appellant’s submission of a motion to compel from her separate removal appeal
    does not show that she filed a motion to compel in this appeal. PFR File, Tab 1
    at 49-52.
    7
    72 M.S.P.R. at 340 (stating that bifurcation is an appropriate and efficient means
    of adjudicating issues of timeliness and jurisdiction).
    ¶13            The appellant further alleges that the administrative judge’s dismissal of her
    appeal prevented her from obtaining compensatory damages under the Civil
    Rights Act of 1991 (CRA). PFR File, Tab 1 at 59, 61; see Hocker v. Department
    of Transportation, 63 M.S.P.R. 497, 505 (1994) (holding that an appellant who
    prevails in an appeal before the Board based on a finding of discrimination may
    recover compensatory damages from an agency pursuant to the CRA), aff’d per
    curiam, 
    64 F.3d 676
    (Fed. Cir. 1995) (Table). Here, because the appellant did not
    prevail in her Board appeal based on a finding of discrimination, she may not
    claim compensatory damages. See Hocker, 63 M.S.P.R. at 505. She also argues
    that the Board must afford her an opportunity to raise a claim for consequential
    damages before dismissing her IRA appeal.              PFR File, Tab 1 at 61; see
    Lachenmyer v. Federal Election Commission, 92 M.S.P.R. 80, ¶ 10 (2002)
    (finding that the administrative judge should afford the appellant a specific
    opportunity to raise a claim for consequential damages before dismissing his IRA
    appeal as moot); see also Santos v. Department of Energy, 99 M.S.P.R. 475, ¶ 7
    (2005) (finding that an administrative judge erred in dismissing an IRA appeal as
    moot before providing the appellant with an opportunity to request attorney’s
    fees).     However, the appellant may address claims, including her possible
    entitlement to consequential damages, that are related to her IRA appeal in that
    separately docketed action.
    ¶14            Finally, the appellant argues that the administrative judge was biased
    because he did not find jurisdiction over her suspension claim. PFR File, Tab 1
    at 57, 60.     The Board will not infer bias based on an administrative judge’s
    case‑related rulings. Vaughn v. Department of the Treasury, 119 M.S.P.R. 605,
    ¶ 18 (2013). We find that the appellant’s broad allegation of bias is insufficient
    to rebut the presumption of the administrative judge’s honesty and integrity. See
    Oliver v. Department of Transportation, 1 M.S.P.R. 382, 386 (1980) (observing
    8
    that, in making a claim of bias or prejudice against an administrative judge, a
    party must overcome the presumption of honesty and integrity that accompanies
    administrative adjudicators).
    ¶15         Accordingly, we find that the administrative judge properly dismissed the
    appellant’s suspension appeal for lack of jurisdiction. 9
    NOTICE TO THE APPELLANT REGARDING
    YOUR FURTHER REVIEW RIGHTS 10
    You have the right to request review of this final decision by the U.S.
    Court of Appeals for the Federal Circuit. You must submit your request to the
    court at the following address:
    United States Court of Appeals
    for the Federal Circuit
    717 Madison Place, N.W.
    Washington, DC 20439
    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 has held
    that normally it does not have the authority to waive this statutory deadline and
    9
    In light of our disposition, we express no opinion as to whether this appeal was timely
    filed.
    10
    The appellant argues that her appeal is a mixed-case appeal because she has raised
    claims of discrimination. PFR File, Tab 1 at 62. A mixed-case appeal is an appeal filed
    directly to the Board that alleges that an appealable agency action was effected, in
    whole or in part, because of discrimination on the basis of race, color, religion, sex,
    national origin, disability, age, genetic information, or reprisal. Caros v. Department of
    Homeland Security, 122 M.S.P.R. 231, ¶ 20 (2015). In Kloeckner v. Solis, 
    133 S. Ct. 596
    (2012), the U.S. Supreme Court held that an employee who receives a final Board
    decision in a mixed case may seek review in Federal district court, not the U.S. Court of
    Appeals for the Federal Circuit, regardless of whether the Board addresses the
    substance of the discrimination claim. Here, however, because the appellant has failed
    to make a nonfrivolous allegation of Board jurisdiction, her appeal is not considered a
    mixed-case appeal, and we need not provide notice of mixed-case appeal rights. See,
    e.g., Evans v. Department of Veterans Affairs, 119 M.S.P.R. 257, ¶¶ 9-10 (2013)
    (finding that the Board need not provide notice of mixed-case appeal rights because the
    appellant was not affected by an appealable agency action).
    9
    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 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     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.
    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
    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:                               ______________________________
    Jennifer Everling
    Acting Clerk of the Board
    Washington, D.C.