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UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD RENE GARZA, DOCKET NUMBER Appellant, SF-0752-20-0432-I-1 v. DEPARTMENT OF THE NAVY, DATE: May 27, 2022 Agency. THIS FINAL ORDER IS NONPRECEDENTIAL 1 Dean E. Benton, Silverdale, Washington, for the appellant. David Thayer and Thomas Patrick, Bremerton, Washington, for the agency. BEFORE Raymond A. Limon, Vice Chair Tristan L. Leavitt, Member FINAL ORDER ¶1 The appellant has filed a petition for review of the initial decision, which sustained his removal. Generally, we grant petitions such as this one only in the following circumstances: the initial decision contains erroneous findings of material fact; the initial decision is based on an erroneous interpretation of statute or regulation or the erroneous application of the law to the facts of the 1 A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case law. Parties may cite nonprecedential orders, but such orders have no precedential value; the Board and administrative judges are not required to follow or distinguish them in any future decisions.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 case; the administrative judge’s rulings during either the course of the appeal or the initial decision were not consistent with required procedures or involved an abuse of discretion, and the resulting error affected the outcome of the case; or new and material evidence or legal argument is available that, despite the petitioner’s due diligence, was not available when the record closed. Title 5 of the Code of Federal Regulations, section 1201.115 (
5 C.F.R. § 1201.115). After fully considering the filings in this appeal, we conclude that the petitioner has not established any basis under section 1201.115 for granting the petition for review. Therefore, we DENY the petition for review and AFFIRM the initial decision, which is now the Board’s final decision.
5 C.F.R. § 1201.113(b). ¶2 The appellant states that his petition for review is “based on new information that wasn’t available at the time due to a lack of knowledge on the part of [his] representative.” In support, he attaches two p reviously unsubmitted documents, identified as Documents A and B. Document A, supplied by the Defense Equal Opportunity Management Institute, is a table indicating the demographic breakdown of respondents in a survey. The document itself does not identify the survey, but the appellant identifies it as the 2017 Defense Organizational Climate Survey (DEOCS). According to the appellant, the table indicates that Hispanic employees make up about 5.5 percent of the workforce of the shipyard where he was employed, although he concedes that this figure may actually refer to survey respondents. ¶3 Document B is an unlabeled chart, which the appellant states he obtained from an agency representative during a mediation that took place prior to the Board appeal. The chart identifies ten employees, including the appellant, who were removed or otherwise disciplined around the time of the appellant’s removal. The information includes the unredacted names of the employees, their races, the charges against them, the penalty imposed, and the dates of the disciplinary actions. The appellant asserts that 4 of the 10 employees were of non-white origin, whereas 74% of the DEOCS respondents were white. 3 The appellant contends that the information contained in the newly submitted documents demonstrates the agency’s bias toward non-white employees. ¶4 Under
5 C.F.R. § 1201.115, the Board generally will not consider evidence submitted for the first time with a petition for review absent a showing that it was unavailable before the record was closed before the administrative judge despite the party’s due diligence. Avansino v. U.S. Postal Service,
3 M.S.P.R. 211, 213-14 (1980). Here, the appellant has indicated that the documents were in fact available to him before the record closed below. He explains that his representative, who is not an attorney, did not submit Document A because he believed the agency representative had already done so. However, it is well settled that an appellant is responsible for the errors of his chosen representative. Sofio v. Internal Revenue Service,
7 M.S.P.R. 667, 670 (1981). Furthermore, the appellant has not provided an explanation for his failure to submit Document B before the close of the record below. Thus, he has not shown that the newly submitted evidence was unavailable before the close of the record despite his due diligence. ¶5 In any event, the information contained in Documents A and B would not provide a sufficient basis for reversing the administrative judge’s finding that the appellant failed to show by preponderant evidence that his race was a motivating factor in the agency’s decision to remove him. 2 See Russo v. Veterans Administration,
3 M.S.P.R. 345, 349 (1980) (holding that the Board will not grant a petition for review based on new evidence absent a showi ng that it is of sufficient weight to warrant an outcome different from that of the initial decision). The appellant’s broader concerns about the agency’s hiring and firing practices are outside the scope of this appeal. 2 Notably, Document B identifies only one other nonprobationary employee who was charged with excessive absence. The chart indicates that the employee in question was white, and was also removed. 4 NOTICE OF APPEAL RIGHTS 3 You may obtain review of this final decision.
5 U.S.C. § 7703(a)(1). By statute, the nature of your claims determines the time limit for seeking such review and the appropriate forum with which to file.
5 U.S.C. § 7703(b). Although we offer the following summary of available appeal rights, the Merit Systems Protection Board does not provide legal advice on which option is most appropriate for your situation and the rights described below do not represent a statement of how courts will rule regarding which cases fall within their jurisdiction. If you wish to seek review of this final decision, you should immediately review the law applicable to your claims and carefully follow all filing time limits and requirements. Failure to file within the applicable time limit may result in the dismissal of your case by your chosen forum. Please read carefully each of the three main possible choices of revie w below to decide which one applies to your particular case. If you have questions about whether a particular forum is the appropriate one to review your case, you should contact that forum for more information. (1) Judicial review in general. As a general rule, an appellant seeking judicial review of a final Board order must file a petition for review with the U.S. Court of Appeals for the Federal Circuit, which must be received by the court within 60 calendar days of the date of issuance of this decision.
5 U.S.C. § 7703(b)(1)(A). If you submit a petition for review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: 3 Since the issuance of the initial decision in this matter, the Board may have updated the notice of review rights included in final decisions. As ind icated in the notice, the Board cannot advise which option is most appropriate in any matter. 5 U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. (2) Judicial or EEOC review of cases involving a claim of discrimination. This option applies to you only if you have claimed that you were affected by an action that is appealable to the Board and that such action was based, in whole or in part, on unlawful discrimination. If so, you may obtain judicial review of this decision—including a disposition of your discrimination claims—by filing a civil action with an appropriate U.S. district court (not the U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you receive this decision.
5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems Protection Board,
582 U.S. ____,
137 S. Ct. 1975 (2017). If you have a representative in this case, and your representative receives th is decision before you do, then you must file with the district court no later than 30 calendar days after your representative receives this decision. If the action involves a claim of discrimination based on race, color, religion, sex, national origin, o r a disabling condition, you may be entitled to representation by a court-appointed lawyer and 6 to waiver of any requirement of prepayment of fees, costs, or other security. See 42 U.S.C. § 2000e-5(f) and 29 U.S.C. § 794a. Contact information for U.S. district courts can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx. Alternatively, you may request review by the Equal Employment Opportunity Commission (EEOC) of your discrimination claims only, excluding all other issues.
5 U.S.C. § 7702(b)(1). You must file any such request with the EEOC’s Office of Federal Operations within 30 calendar days after you receive this decision.
5 U.S.C. § 7702(b)(1). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the EEOC no later than 30 calendar days after your representative receives this decision. If you submit a request for review to the EEOC by regular U.S. mail, the address of the EEOC is: Office of Federal Operations Equal Employment Opportunity Commission P.O. Box 77960 Washington, D.C. 20013 If you submit a request for review to the EEOC via commercial delivery or by a method requiring a signature, it must be addressed to: Office of Federal Operations Equal Employment Opportunity Commission 131 M Street, N.E. Suite 5SW12G Washington, D.C. 20507 (3) Judicial review pursuant to the Whistleblower Protection Enhancement Act of 2012. This option applies to you only if you have raised claims of reprisal for whistleblowing disclosures under
5 U.S.C. § 2302(b)(8) or other protected activities listed in
5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D). If so, and your judicial petition for review “raises no challenge to the Board’s 7 disposition of allegations of a prohibited personnel practice described in section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either with the U.S. Court of Appeals for the Federal Circuit or any court of appeals of competent jurisdiction. 4 The court of appeals must receive your petition for review within 60 days of the date of issuance of this decision.
5 U.S.C. § 7703(b)(1)(B). If you submit a petition for judicial review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Fede ral Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. 4 The original statutory provision that provided for judicial review of certain whistleblower claims by any court of appeals of competent jurisdiction expired on December 27, 2017. The All Circuit Review Act, signed into law by the President on July 7, 2018, permanently allows appellants to file petitions for judicial review of MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals for the Federal Circuit or any other circuit court of appeals of competent jurisdiction. The All Circuit Review Act is retroactive to November 26, 2017.
Pub. L. No. 115-195, 132Stat. 1510. 8 Contact information for the courts of appeals can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx. FOR THE BOARD: /s/ for Jennifer Everling Acting Clerk of the Board Washington, D.C.
Document Info
Docket Number: SF-0752-20-0432-I-1
Filed Date: 5/27/2022
Precedential Status: Non-Precedential
Modified Date: 2/22/2023