Aubrey Carney v. Department of Veterans Affairs ( 2023 )

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
AUBREY M. CARNEY, DOCKET NUMBER
Appellant, NY-0752-17-0187-I-1
v.
DEPARTMENT OF VETERANS DATE: February 28, 2023
AFFAIRS,
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Robert C. Laity, Tonawanda, New York, for the appellant.
Amber Groghan, Esquire, Akron, Ohio, for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
Tristan L. Leavitt, Member
FINAL ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
dismissed her constructive removal appeal for lack of jurisdiction without a
hearing. Generally, we grant petitions such as this one only in the following
circumstances: the initial decision contains erroneous findings of material fact;
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
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 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).
BACKGROUND
¶2 The appellant was a Grade-2 Food Service Worker for the agency,
appointed under 38 U.S.C. § 7802. Initial Appeal File (IAF), Tab 9 at 4. On
July 11, 2017, the Assistant Canteen Chief called the appellant into his office and
showed her a video of her giving a drink to a customer without remuneration. Id.
at 17. According to the appellant, the Assistant Chief gave her an ultimatum —
resign immediately, or he would call the agency police. IAF, Tab 1 at 6, Tab 5
at 6. The appellant also stated that the Assistant Chief told her that the agency
had been watching her for a long time and had additional unspecified evidence
against her. IAF, Tab 3 at 5-6, Tab 5 at 6. She further stated that the union
representative, who was not of her own choosing, acted in concert with the
agency to pressure her resignation. IAF, Tab 1 at 6, Tab 3 at 5. The appellant
relented. She wrote and signed a brief note, stating “I Aubrey Carney quit today
on 7/11/17 asap.” IAF, Tab 9 at 18. On July 24, 2017, the agency issued a
Standard Form 50 documenting the appellant’s resignation effective July 11,
2017. Id. at 20.
3
¶3 The appellant filed a Board appeal and requested a hearing. IAF, Tab 1
at 2, 4. She claimed that her resignation was involuntary and that the agency
coerced her resignation because of her disability and becaus e of her
father-in-law’s prior union, equal employment opportunity, and whistleblowing
activity at the agency. Id. at 4, 6. The administrative judge issued a show cause
order, notifying the appellant that the Board might lack jurisdiction over her
appeal, and informing her of how to establish jurisdiction over a constructive
removal appeal. IAF, Tab 4. The appellant responded, providing additional
support and detail to her allegations of involuntariness. IAF, Tabs 5 -7. The
agency also responded, addressing the appellant’s arguments pertaining to
voluntariness and also arguing that, as a title 38 employee, the appellant lacked
adverse action appeal rights. IAF, Tab 10. The appellant replied to the agency’s
response. IAF, Tabs 11-12.
¶4 The administrative judge issued an initial decision dismissing the appeal for
lack of jurisdiction without a hearing. IAF, Tab 15, Initial Decision (ID) at 15.
She found that, because of the nature of her appointment, the appellant lacked a
statutory right to appeal her alleged constructive removal. ID at 3. She further
found that the appellant failed to make a nonfrivolous allegation that her
resignation was involuntary. ID at 3-5.
¶5 The appellant has filed a petition for review, disputing the administrative
judge’s findings. Petition for Review (PFR) File, Tab 1. The agency has fil ed a
response to the petition, PFR File, Tab 2, and the appellant has filed a reply to the
agency’s response, PFR File, Tab 4. After the close of the record on review, the
appellant filed a motion for leave to file additional evidence regarding her “status
as a covered union member of [the Service Employees International Union]
entitled to appeal rights to the [Merit Systems Protection Board].” PFR File,
Tab 5.
4
ANALYSIS
The appellant’s motion for leave to file additional evidence is denied.
¶6 Based on the appellant’s description of the additional evidence that she
wishes to submit, we find that it would not be material to the outcome of the
appeal. PFR File, Tab 5. Contrary to the appellant’s assertion, her union
membership has no bearing on whether she is an “employee” with Board appeal
rights under 5 U.S.C. chapter 75. The appellant’s motion for leave to file
additional evidence is therefore denied.
The appellant lacks Board appeal rights under 5 U.S.C. chapter 75.
¶7 On petition for review, the appellant argues that she has a statutory right to
appeal her constructive removal under 5 U.S.C. chapter 75, because she fits the
definition of “employee” under 5 U.S.C. § 7511(a)(1)(C). PFR File, Tab 1 at 4-5,
7. However, for the reasons explained below, we find that the appellant lacks
Board appeal rights not because she fails to meet the basic definition of
“employee” under section 7511(a)(1), but because she is specifically excluded
from coverage under section 7511(b)(10). See Thomas v. Department of Veterans
Affairs, 78 M.S.P.R. 304, 306 (1998).
¶8 Only an “employee” as defined in 5 U.S.C. § 7511 can appeal a constructive
adverse action to the Board. Mfotchou v. Department of Veterans Affairs,
113 M.S.P.R. 317, ¶ 8 (2010). This right of appeal does not accrue to an
individual “who holds a position within the Veterans Health Administration
which has been excluded from the competitive service by or under a provision of
title 38, unless such employee was appointed to such position under section
7401(3) of such title.” 5 U.S.C. § 7511(b)(10); Falso v. Office of Personnel
Management, 77 M.S.P.R. 207, 210 (1997).
¶9 In this case, it is undisputed that the appellant was an excepted -service
employee, appointed under 38 U.S.C. § 7802. IAF, Tab 1 at 1, Tab 9 at 14; PFR
File, Tab 1 at 4. That section specifically states that employees appointed under
it may be “removed by the Secretary [of Veterans Affairs] without regard to the
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provisions of title 5 governing appointments in the competitive service.”
38 U.S.C. § 7802(e). We therefore agree with the administrative judge that the
Board lacks jurisdiction over the appellant’s constructive removal appeal. 2 ID
at 3; see Mfotchou, 113 M.S.P.R. 317, ¶¶ 11-12.
¶10 Because we affirm the initial decision on this basis, we decline to reach the
issue of whether the appellant made a nonfrivolous allegation that her resignation
was involuntary.
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.
2
Although the administrative judge did not apprise the appellant of this jurisdictional
issue prior to issuing the initial decision, we find that the appellant’s substantive rights
were not prejudiced because the agency’s submissions were sufficient to notify her of
her burden in this regard. IAF, Tab 9 at 7, Tab 10 at 6-8; see Herbert v. U.S. Postal
Service, 86 M.S.P.R. 80, ¶ 10 (2000). Furthermore, any defect in the notice was cured
in the initial decision, thus affording the appellant an opportunity to meet her
jurisdictional burden on review. ID at 3; see Easterling v. U.S. Postal Service,
110 M.S.P.R. 41, ¶ 11 (2008).
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 indicated in the notice, the
Board cannot advise which option is most appropriate in any matte r.
6
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general. As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination. This option applies to you only if you have claimed that you
7
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 this decision before
you do, then you must file with the district court no later than 30 calendar days
after your representative receives this decision. If the action involves a claim of
discrimination based on race, color, religion, sex, national origin, or a disabling
condition, you may be entitled to representation by a court-appointed lawyer and
to waiver of any requirement of prepayment of fees, costs, or other security. See
42 U.S.C. § 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx.
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues. 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
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Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012. This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction. 4 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
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,
132 Stat. 1510.
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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 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.
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.