Filed: Jul. 31, 2015
Latest Update: Mar. 02, 2020
Summary: UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD TERRANCE MIGUEL PETERSON, DOCKET NUMBERS Appellant, PH-0752-14-0706-I-1 PH-1221-14-0618-W-1 v. DEPARTMENT OF VETERANS AFFAIRS, DATE: July 31, 2015 Agency. THIS FINAL ORDER IS NONPRECEDENTIAL 1 Terrance Miguel Peterson, Newark, Delaware, pro se. Marcus S. Graham, Esquire, Pittsburgh, Pennsylvania, 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
Summary: UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD TERRANCE MIGUEL PETERSON, DOCKET NUMBERS Appellant, PH-0752-14-0706-I-1 PH-1221-14-0618-W-1 v. DEPARTMENT OF VETERANS AFFAIRS, DATE: July 31, 2015 Agency. THIS FINAL ORDER IS NONPRECEDENTIAL 1 Terrance Miguel Peterson, Newark, Delaware, pro se. Marcus S. Graham, Esquire, Pittsburgh, Pennsylvania, 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 i..
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UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
TERRANCE MIGUEL PETERSON, DOCKET NUMBERS
Appellant, PH-0752-14-0706-I-1
PH-1221-14-0618-W-1
v.
DEPARTMENT OF VETERANS
AFFAIRS, DATE: July 31, 2015
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Terrance Miguel Peterson, Newark, Delaware, pro se.
Marcus S. Graham, Esquire, Pittsburgh, Pennsylvania, 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:
(1) sustained both charges, found that he did not prove any of his affirmative
defenses, and affirmed the removal action; and (2) denied his request for
corrective action in the individual right of action (IRA) appeal concerning his
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
10-day suspension. 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 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. We MODIFY the initial
decision to: (1) address the appellant’s argument regarding the administrative
judge’s allegedly improper consideration of hearsay evidence from Patient A;
(2) discuss the appellant’s potential claims pursuant to the Veterans Employment
Opportunities Act of 1998 (VEOA) and/or the Uniformed Services Employment
and Reemployment Rights Act of 1994 (codified at 38 U.S.C. §§ 4301-4333)
(USERRA); and (3) supplement the administrative judge’s analysis of the
appellant’s claims of whistleblower reprisal and harmful procedural error. We
find that the appellant’s arguments on review do not warrant a different outcome.
Except as expressly modified by this Final Order, we AFFIRM the
initial decision.
BACKGROUND
¶2 The appellant, a Health Technician, filed an appeal challenging the
agency’s decision to remove him based on a charges of performing work outside
the scope of his position (three specifications) and conduct unbecoming a Federal
employee (three specifications). Peterson v. Department of Veterans Affairs,
3
MSPB Docket No. PH-0752-14-0706-I-1, Initial Appeal File (0706 IAF), Tab 1,
Tab 6 at 22, 46-48. The appellant also filed an IRA appeal, alleging that his
earlier 10-day suspension was in reprisal for protected whistleblowing activity.
Peterson v. Department of Veterans Affairs, MSPB Docket No. PH-1221-14-
0618-I-1, Initial Appeal File (0618 IAF), Tab 1. The administrative judge joined
these appeals. 0706 IAF, Tab 3.
¶3 The appellant filed various motions, including to compel discovery, for
certification of an interlocutory appeal, for sanctions, and for the administrative
judge to recuse himself, and he also filed a request to stay the proposed removal.
See, e.g., 0706 IAF, Tabs 11, 17, 23, 27, 32, 40; 0618 IAF, Tab 9; see also
Peterson v. Department of Veterans Affairs, PH-1221-14-0618-S-1, Stay Request
File (0618 SRF), Tab 1. The administrative judge denied these motions. See
0706 IAF, Tab 51; see also 0618 SRF, Tab 4. The appellant waived his right to a
hearing in the chapter 75 appeal and the IRA appeal. See 0706 IAF, Tab 33.
¶4 The administrative judge issued a lengthy initial decision. 0706 IAF,
Tab 60, Initial Decision (ID). Regarding the IRA appeal, the administrative judge
determined that the appellant proved that his disclosures were protected but that
he failed to establish that his disclosures were a contributing factor in the
agency’s decision to suspend him for 10 days. ID at 11-14. The administrative
judge also determined that, even if the appellant had established that the
disclosures were a contributing factor in his suspension, the agency proved by
clear and convincing evidence that it would have suspended him absent the
protected activity. ID at 14-16. In the chapter 75 appeal, the administrative
judge sustained both charges and all of the specifications alleged therein. See ID
at 17-22. The administrative judge further found that the appellant did not prove
his affirmative defenses of reprisal for whistleblowing activity, reprisal for
protected equal employment opportunity (EEO) activity, race and disability
discrimination, a hostile working environment, and harmful procedural error. ID
4
at 22-35. He also found that the removal penalty was reasonable and promoted
the efficiency of the service. ID at 36-37.
¶5 The appellant has filed a petition for review and five supplemental
submissions. Petition for Review (PFR) File, Tabs 1-6. The agency has filed a
response to the petition for review, and the appellant has filed a reply and a
supplemental reply. PFR File, Tabs 8-10. The appellant also has filed a request
to file an additional pleading. 2 See PFR File, Tab 14.
¶6 After the parties filed their submissions on review, the Office of the Clerk
of the Board issued an order that: (1) acknowledged the appellant’s assertion
below that he was entitled to veterans’ preference and that the agency
discriminated against him based on his veteran status; (2) noted that the
administrative judge did not give the appellant notice of his burdens pursuant to
VEOA or USERRA; (3) provided such notice to the appellant; and (4) ordered the
appellant to clarify the nature of his claims and to submit evidence in support of
those claims. PFR File, Tab 16. Subsequently, the appellant filed three
submissions, and the agency filed a response. See PFR File, Tabs 17-20.
DISCUSSION OF ARGUMENTS ON REVIEW
¶7 On review, the appellant asserts that the administrative judge failed to
properly weigh Patient A’s hearsay evidence, improperly analyzed his
whistleblowing, disability discrimination, and harmful procedural error claims,
and failed to adjudicate his claims regarding veterans’ preference. He also
appears to be alleging certain procedural errors, including the denial of his stay
request, discovery rulings, and the denial of his requests for interlocutory appeal
certification. He appears, moreover, to assert administrative judge bias.
2
We DENY this request because the appellant does not identify or describe any new
evidence nor does he explain how this new evidence warrants a different outcome.
5
We modify the initial decision to supplement the administrative judge’s analysis
of the existence and strength of the motive to retaliate on the part of any officials
who were involved in the decision to suspend the appellant, but we conclude that
the administrative judge properly denied the appellant’s request for corrective
action in the IRA appeal. 3
¶8 In an IRA appeal, after establishing the Board’s jurisdiction, the appellant
then must establish a prima facie case of whistleblower retaliation by proving by
preponderant evidence that: (1) he made a disclosure described under 5 U.S.C.
§ 2302(b)(8) or engaged in protected activity described under 5 U.S.C.
§ 2302(b)(9)(A)(i), (B), (C), or (D); and (2) the disclosure or protected activity
was a contributing factor in the agency’s decision to take or fail to take a
personnel action as defined by 5 U.S.C. § 2302(a). 5 U.S.C. § 1221(e)(1);
Webb v. Department of the Interior, 122 M.S.P.R. 248, ¶ 6 (2015). If the
appellant meets that burden, the Board shall order such corrective action as it
considers appropriate unless the agency shows by clear and convincing evidence
that it would have taken the same personnel action in the absence of the protected
disclosure. 5 U.S.C. § 1221(e)(1)-(2); Chambers v. Department of the
Interior, 116 M.S.P.R. 17, ¶ 12 (2011).
¶9 Here, the appellant does not appear to challenge the administrative judge’s
finding that he failed to establish a prima facie case of whistleblower retaliation.
Rather, he argues that the administrative judge incorrectly analyzed the
connection between the Administrative Investigation Board (AIB) and the
agency’s action. In this regard, he appears to allege that the director that ordered
the AIB was “directly aware of the [d]isclosures,” and “the charged conduct
[would] not have occurred” without the AIB’s decision to order anger
management. PFR File, Tab 3 at 3. We interpret these arguments as relating to
the existence and strength of any motive to retaliate on the part of agency
3
The agency did not file a petition for review challenging the administrative judge’s
conclusion that the appellant made protected disclosures regarding improper handling
of medical instruments, a delay in the arrival of hearing aids, safety concerns in the
dialysis unit, and dirty medical instruments, ID at 12, and we affirm these findings.
6
officials who were involved in the decision. See Carr v. Social Security
Administration, 185 F.3d 1318, 1323 (Fed. Cir. 1999). 4 Because the appellant
raised these arguments below in the context of the suspension, see 0706 IAF,
Tab 49 at 3, the administrative judge did not address them in the initial decision,
and the appellant withdrew his request for a hearing, see 0706 IAF, Tab 33, we
may resolve these issues on the current record. See Whitmore v. Department of
Labor, 680 F.3d 1353, 1368 (Fed. Cir. 2012) (“It is error for the MSPB to not
evaluate all the pertinent evidence in determining whether an element of a claim
or defense has been proven adequately.”).
¶10 The record reflects that D.H., the then-Director, initiated the AIB in April
2013 to investigate allegations of safety concerns and concerns about procedures
being followed in the Ear, Nose and Throat Specialty Clinic where the appellant
worked. See 0618 IAF, Tab 18 at 16; see also 0706 IAF, Tab 30 at 21-26. The
record also reflects that D.H. was aware of some of the appellant’s disclosures.
See, e.g., 0706 IAF, Tab 12 at 21. Even if we were to conclude, solely for the
purposes of our analysis, that D.H.’s decision to initiate the AIB was in
retaliation for the appellant’s disclosures, there is no evidence whatsoever that
D.H. unduly influenced any of the members of the AIB, A.M., 5 or the proposing
or deciding officials in the suspension. See Aquino v. Department of Homeland
Security, 121 M.S.P.R. 35, ¶ 23 (2014) (an appellant can demonstrate that a
prohibited animus toward a whistleblower was a contributing factor in a
4
Regarding the other Carr factors, the appellant does not appear to challenge the
administrative judge’s assessment of the strength of the agency’s evidence regarding
the conduct unbecoming charge or its two specifications, ID at 15-16, and we affirm
this portion of the initial decision. Although the administrative judge did not discuss
the third element, evidence that the agency takes similar actions against employees who
are not whistleblowers but who are otherwise similarly situated, the appellant does not
raise any error in this regard on review.
5
A.M. was the Program Director of the anger management facility to which the
appellant was referred as a result of the AIB, and whose contact with the appellant led
to specification 2 in the conduct unbecoming charge. See, e.g., 0706 IAF, Tab 43
at 32-33; 0618 IAF, Tab 1 at 2.
7
personnel action by showing by preponderant evidence that an individual with
knowledge of the appellant’s protected disclosure influenced the deciding official
accused of taking the personnel action). Nor is there any evidence that any
members of the AIB or A.M. acted in retaliation for the appellant’s
whistleblowing activity. See, e.g., 0706 IAF Tab 30 at 21-26, Tab 43 at 25-26,
32-33. It appears true that the appellant would not have been ordered to attend
anger management absent the results of the AIB, which found, among other
things, that he “has demonstrated disruptive and inappropriate behavior” and his
actions “are perceived as threats of physical violence, harassment, intimidation,
and other threatening behaviors.” 0706 IAF, Tab 30 at 18, 21-26. However, this
chronology does not create a causal connection between the appellant’s
disclosures and the charged misconduct described in specification 2 of the
conduct unbecoming charge. See, e.g., Carr, 185 F.3d at 1326 (the whistleblower
protection rules are not meant to protect employees from their own misconduct).
We are therefore not persuaded by these arguments.
¶11 We further modify the initial decision to supplement the administrative
judge’s conclusion that none of the appellant’s disclosures were directed against
the proposing and deciding officials and neither official had actual or constructive
knowledge of the disclosures. See ID at 16. It appears that the proposing
official, Associate Chief Nurse for Ambulatory Care R.W., and the deciding
official, Associate Director M.A.J., had some knowledge of the appellant’s
various complaints to the Office of the Inspector General (OIG) and his EEO
complaints. See, e.g., 0706 IAF, Tab 43 at 34-35, 38. The appellant’s
disclosures, even if not directed at R.W. or M.A.J., could reflect poorly on them
in their respective supervisory positions and, thus, could be evidence of a
retaliatory motive. See, e.g., Whitmore, 680 F.3d at 1370 (“Those responsible for
the agency’s performance overall may well be motivated to retaliate even if they
are not directly implicated by the disclosures, and even if they do not know the
whistleblower personally, as the criticism reflects on them in their capacities as
8
managers and employees.”). We note, however, that both R.W. and M.A.J.
declared that the appellant’s protected activity and/or his disclosures did not play
any part in their respective decisions to propose or effect the suspension. See
0706 IAF, Tab 43 at 35, 37.
¶12 Based on our supplemental analysis of the agency’s motive to retaliate and
the appellant’s evidence and argument in this regard, we conclude that the agency
demonstrated by clear and convincing evidence that it would have suspended the
appellant even absent his whistleblowing activity. We therefore agree with the
administrative judge’s decision to deny corrective action in the IRA appeal.
We modify the initial decision to address the appellant’s arguments regarding the
probative value of Patient A’s hearsay evidence and his claims regarding his
affirmative defenses of reprisal for whistleblowing activity and harmful
procedural error, but these arguments do not warrant a different outcome in the
removal appeal.
¶13 We have considered the appellant’s assertion that the administrative judge
improperly evaluated Patient A’s hearsay evidence. See PFR File, Tab 1 at 5.
We understand this argument to relate only to specifications 1 and 3 of charge 1,
performing work outside the scope of his position. 6 It is well settled that relevant
hearsay is admissible in administrative proceedings. See, e.g., Shannon v.
Department of Veterans Affairs, 121 M.S.P.R. 221, ¶ 15 (2014); Borninkhof v.
Department of Justice, 5 M.S.P.R. 77, 83 (1981). An assessment of the probative
value of hearsay evidence necessarily depends on the circumstances of each case.
6
In specification 2, the agency charged the appellant with documenting in Patient A’s
Progress Note that there were “alternative methods [for managing the buildup of wax in
Patient A’s ears] by consulting the local pharmacy for over-the-counter methods.”
0706 IAF, Tab 6 at 46. The appellant’s argument regarding the administrative judge’s
consideration of Patient A’s hearsay evidence does not appear to implicate
specification 2. Moreover, the appellant does not dispute that he made this entry in
Patient A’s electronic record, and it does not appear that this work was within the scope
of the appellant’s assigned duties. See 0706 IAF, Tab 6 at 64; see also 0706 IAF,
Tab 30 at 35-42, 44-94. In the absence of any challenge to the administrative judge’s
decision to sustain specification 2, we affirm the administrative judge’s decision to
sustain this specification.
9
Borninkhof, 5 M.S.P.R. at 83-87. The Board evaluates the probative value of
hearsay under the following factors, among others: the availability of persons
with firsthand knowledge to testify at the hearing; whether the out-of-court
statements were sworn; the consistency of the out-of-court statements with other
statements and evidence; the consistency of declarants’ accounts with other
information in the case, internal consistency, and their consistency with each
other; and whether corroboration for the statements can otherwise be found in the
agency record. Id. at 87.
¶14 Specification 1 charged the appellant with removing wax from Patient A’s
ears on October 25, 2013. 0706 IAF, Tab 6 at 46. Specification 3 charged the
appellant with cleaning Patient A’s ears “[o]n more than one occasion.” Id. To
support these specifications, the agency relied on declarations, made under
penalty of perjury, from Medical Support Assistant B.R. and R.W. who observed
and/or talked to Patient A regarding these allegations. B.R. stated in her
declaration that Patient A came to the medical center on October 25, 2013, he
complained to her about wax build up in his ears, he specifically asked for the
appellant by name, and he told her that the appellant had removed wax from his
ears previously and that he would like to see him again. 0706 IAF, Tab 43 at 39.
B.R. further stated in her declaration that she filled out a walk-in sheet for
Patient A, the appellant retrieved the sheet, and he called Patient A into an
examination room, where they stayed for 15 minutes. Id. B.R. stated that she
did not observe any other individuals enter the room. Id. Upon exiting the
examination room, Patient A told B.R. that his ears felt much better. Id. In her
declaration, R.W. stated that she spoke with Patient A on the telephone on
March 10, 2014, and he stated, among other things, that the appellant did an
“excellent job” cleaning his ears and that the appellant cleans his ears “all the
time,” including in the last few months. 0706 IAF, Tab 43 at 34-35; see
0706 IAF, Tab 6 at 60-61. The appellant denied cleaning Patient A’s ears on
October 25, 2013. See, e.g., 0706 IAF, Tab 6 at 27.
10
¶15 Although the administrative judge did not analyze the Borninkhof factors in
his assessment of the hearsay evidence related to charge 1, we do so now because
the record is fully developed below. It is immaterial whether Patient A was
available to testify because the appellant withdrew his request for a hearing.
Weighing against the probative value of Patient A’s hearsay evidence is the fact
that the agency did not provide a sworn statement from Patient A, and it offered
no explanation for why it was unable to do so. See Wallace v. Department of
Health & Human Services, 89 M.S.P.R. 178, ¶ 7 (2001). We find, however, that
an assessment of the remaining relevant Borninkhof factors weighs in favor of the
probative value of Patient A’s hearsay evidence. Significantly, B.R.’s
conversation with Patient A on October 25, 2013, and her observations of
Patient A and the appellant on this date, are corroborated by the appellant’s entry
in Patient A’s electronic medical record that Patient A complained about “wax in
his ears” and R.W.’s later conversation with Patient A. See 0706 IAF, Tab 6
at 64, Tab 43 at 34-35. Moreover, there was no evidence that any doctor or other
authorized professional saw Patient A on October 25, 2013. We conclude that
Patient A’s hearsay evidence has probative value, and it is more likely than not
that the appellant cleaned Patient A’s ears on this date. The appellant does not
appear to challenge that such work only may be performed under the supervision
of an audiologist or physician, see 0706 IAF, Tab 30, and we find that the agency
proved specification 1 by preponderant evidence.
¶16 Because our decision to sustain specifications 1 and 2 is sufficient to
support a finding that the agency proved charge 1, we need not resolve whether
the probative value of Patient A’s hearsay evidence supports a finding that the
agency proved specification 3. See, e.g., Burroughs v. Department of the
Army, 918 F.2d 170, 172 (Fed. Cir. 1990) (where more than one event or factual
specification supports a single charge, proof of one or more, but not all, of the
supporting specifications is sufficient to sustain the charge).
11
¶17 The appellant does not appear to challenge on review the administrative
judge’s decision to sustain any of the three specifications of the conduct
unbecoming a Federal employee charge, which included allegations that the
appellant: (1) “threatened to cut [a doctor] up like a [t]urkey”; (2) stated to
another agency employee that he was “going to hurt someone”; and (3) while on
duty time, contacted A.M. and threatened to sue him based on what he said in an
email to the appellant’s supervisor. 0706 IAF, Tab 6 at 46-47. In the absence of
any challenge to the administrative judge’s decision to sustain the charge and
corresponding specifications, we affirm the initial decision in this regard. See,
e.g., 0706 IAF, Tab 43 at 32-33, 42-45.
¶18 Regarding the appellant’s defense of reprisal for whistleblowing activity, he
does not challenge the administrative judge’s decision to assume that he made
protected disclosures based on his EEO complaints and his complaints to OIG,
Congress, the Office of Special Counsel (OSC), the Department of Health and
Human Services, and the Delaware Board of Professional Regulations. See ID
at 22-23, 25. Rather, the appellant appears to challenge the administrative
judge’s conclusion that the agency proved by clear and convincing evidence that
it would have removed the appellant absent his whistleblowing activity. See PFR
File, Tab 3 at 3 (arguing that the agency retaliated against him by initiating an
investigation into the allegations involving Patient A nearly 5 months after the
alleged events). We understand the appellant’s argument to relate to the motive
to retaliate element discussed in Carr. 7
7
Regarding the strength of the agency’s evidence, the administrative judge did not
specifically discuss the appellant’s response to the notice of proposed removal. See
0706 IAF, Tab 6 at 26-29. We modify the initial decision to consider the appellant’s
response per Whitmore, but we agree with the administrative judge that the agency’s
evidence is strong. See, e.g., 0706 IAF, Tab 43 at 32-35, 39, 42-45; see also 0706 IAF,
Tab 6 at 64. The appellant also does not appear to challenge the administrative judge’s
conclusion that there was “no evidence that any employee who was not a whistleblower
was allowed to stay on the agency’s rolls after committing misconduct of the
magnitude” that he sustained in this matter. ID at 25.
12
¶19 An investigation is not generally a personnel action under 5 U.S.C.
§ 2302(a)(2)(A); however, it is appropriate to consider evidence regarding an
investigation if it is so closely related to a personnel action that it could have
been a pretext for gathering information to retaliate for whistleblowing.
Shibuya v. Department of Agriculture, 119 M.S.P.R. 537, ¶ 22 n.12 (2013). Here,
the results of the investigation into the appellant’s interactions with Patient A
resulted in one of the charges (performing work outside the scope of his position)
that ultimately led to his removal, which is a personnel action under 5 U.S.C.
§ 2302(a)(2)(A)(iii). See Shibuya, 119 M.S.P.R. 537, ¶ 22 n.12. The record
reflects that R.W. contacted Patient A in March 2014. See 0706 IAF, Tab 6
at 59-60, Tab 43 at 35. The record also reflects that R.W. and proposing official
M.A.J. had some knowledge of some of the appellant’s disclosures but that
deciding official Director R.A-W. did not. See 0706 IAF, Tab 43 at 34-38, 46-47.
Even if we conclude, solely for the purposes of our analysis, that the appellant’s
disclosures were a contributing factor in R.W.’s decision to initiate an
investigation into the appellant’s contacts with Patient A, the appellant has
identified no persuasive evidence upon which we could conclude that deciding
official R.A-W. had constructive knowledge of the disclosures based on R.W.’s
influence over the personnel action. See Aquino, 121 M.S.P.R. 35, ¶¶ 18-24.
¶20 We further modify the initial decision to supplement the administrative
judge’s analysis of the motive to retaliate element in his Carr analysis. In the
initial decision, the administrative judge concluded that neither M.A.J. nor
R.A-W. had a motive to retaliate against the appellant because M.A.J. did not
consider his complaints and R.A-W. had no knowledge of any of his complaints.
See ID at 24-25. The administrative judge failed to acknowledge that the
appellant’s disclosures, even if not directly made against proposing official
M.A.J., could reflect negatively on her and could be indicative of a motive to
retaliate. See Whitmore, 680 F.3d at 1370.
13
¶21 Notwithstanding our supplemental analysis, we conclude that the agency
demonstrated by clear and convincing evidence that it would have removed the
appellant absent his whistleblowing activity. See, e.g., Carr, 185 F.3d at 1326
(the whistleblower protection rules are not meant to protect employees from their
own misconduct).
¶22 The appellant asserts that the agency failed to follow its own procedures in
the manner that it obtained evidence from Patient A. PFR File, Tab 1 at 5. The
appellant raised this argument below, see 0706 IAF, Tab 36 at 5, but the
administrative judge did not discuss it in his harmful procedural error analysis,
see ID at 33-35. We therefore modify the initial decision to supplement the
administrative judge’s analysis of this issue. Even if we assume that the agency
violated its procedures in the manner in which it obtained evidence from
Patient A, the appellant has not persuaded us that any such error was likely to
have caused the agency to reach a conclusion different from the one it would have
reached in the absence or cure of the error. See Stephen v. Department of the
Air Force, 47 M.S.P.R. 672, 681, 685 (1991).
¶23 Regarding the appellant’s failure to accommodate claim, the administrative
judge found, among other things, that the appellant presented “scant evidence” of
the nature of his disability other than to claim that he suffered from depression,
and there was no evidence that he specifically asked his supervisors for an
accommodation. See ID at 31-33. 8 The appellant states briefly that the agency
denied his request for an accommodation, and he asserts that the “proposing
official of the suspension and the deciding official were aware of the Appellant’s
history of depression.” PFR File, Tab 1 at 5. Even if these arguments were true,
the appellant does not explain how the administrative judge erred in his analysis
of this claim.
8
In his reasonable accommodation request, the appellant asked “to be supervised by
another supervisor” because of a “hostile work environment.” 0706 IAF, Tab 30 at 43.
We cannot discern to whom this request was given.
14
¶24 The appellant does not appear to challenge the administrative judge’s
assessment of his affirmative defenses of reprisal for protected EEO activity, race
discrimination, and/or a hostile working environment. We therefore affirm the
administrative judge’s conclusions in this regard.
¶25 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. Douglas v. Veterans
Administration, 5 M.S.P.R. 280, 306 (1981). We conclude that the removal
penalty is reasonable for the sustained misconduct, and we affirm the removal. 9
¶26 To the extent that the appellant makes any additional arguments on review
that relate to the IRA appeal or the chapter 75 appeal, we find that these
arguments are without merit.
We modify the initial decision to discuss the appellant’s assertions involving
VEOA and USERRA, but we conclude that he has not proven either of these
affirmative defenses.
¶27 In response to the order from the Office of the Clerk of the Board, the
appellant states, in relevant part, 10 that the agency “treated [him] differently as a
preference eligible veteran” and discriminated against him based on his status as
a veteran. PFR File, Tab 17 at 4. He appears to allege that this discrimination is
9
Even if we did not sustain specification 3 of charge 1, see supra ¶ 15, we still
conclude that the removal penalty is reasonable. See Payne v. U.S. Postal Service,
72 M.S.P.R. 646, 650 (1996) (when all of the agency’s charges are sustained, but some
of the underlying specifications are not sustained, the agency’s penalty determination is
entitled to deference and should be reviewed only to determine whether it is within the
parameters of reasonableness).
10
In his three responsive submissions, the appellant includes many allegations that
do not appear related to any claims involving his veterans’ preference and/or his status
as a veteran. See, e.g., PFR File, Tab 17 (discussing allegations of a due process
violation, Privacy Act violations, failure to train, administrative judge bias, and other
legal issues related to his claim of reprisal for whistleblowing activity). Because the
record on review was only open for clarification regarding his claims involving
veterans’ preference and/or discrimination based on his status as a veteran, we do not
consider the other allegations in these submissions.
15
evidenced by the agency’s April 2013 investigation of him and its decision to put
a flag on his patient file in June 2014. Id. He also includes a list of “comparator
employees,” both veteran and nonveteran, whom he claims “were either treated
similarly” or “more favorabl[y]” than him. Id. at 9-10. In response to the request
for information regarding whether he received a closing letter from the
Department of Labor, the appellant includes correspondence from the Department
of Labor acknowledging that he had filed a USERRA complaint. PFR File,
Tab 18 at 4-5. The appellant further states that his USERRA complaint was
forwarded to OSC’s USERRA unit, and he includes a close-out letter from OSC.
PFR File, Tab 17 at 10, Tab 18 at 6. The OSC close-out letter reveals that the
appellant alleged that the agency discriminated against him based on his status as
a veteran when it “improperly placed a ‘behavioral flag’ on [his] patient medical
record while [he was] employed there as a Health Technician” and that this flag
made it difficult for him to obtain subsequent Federal employment. PFR File,
Tab 18 at 6. The record reflects that the agency placed a behavioral restriction
flag on the appellant’s patient file in June 2014, nearly 2 months after his removal
was effected. See 0706 IAF, Tab 10 at 168.
¶28 Based on these assertions, we conclude that the appellant has not proven by
preponderant evidence that his military status was a motivating or substantial
factor in the removal action. See, e.g., Sheehan v. Department of the
Navy, 240 F.3d 1009, 1013-15 (Fed. Cir. 2001). To the extent that the appellant
is alleging that the agency’s decision to initiate the AIB and/or to place a
behavioral restriction flag on his patient file led to or is otherwise connected to
the removal action, we find that he has not demonstrated that his military status
was a motivating or substantial factor in either of these actions. Even if we were
to conclude that the appellant met his burden in this regard, the agency has
proven by preponderant evidence that its actions would have been taken for a
valid reason despite the protected status. See id.; see also 0706 IAF, Tab 6 at 46-
47 (describing the allegations of misconduct in the removal appeal), Tab 10
16
at 168 (explaining that the flag was placed on the appellant’s patient file because
of his history of personal attacks towards staff, violent and threatening behavior,
and documentation of unpredictable and violent behavior at the facility), Tab 30
at 21-26 (AIB report of investigation). We also conclude that the appellant
has not alleged any facts to show that he went to the Department of Labor for a
VEOA issue or that he was even raising a VEOA issue in connection with his
removal. See Loggins v. U.S. Postal Service, 112 M.S.P.R. 471, ¶ 15 (2009)
(stating that veterans’ preference rules appear only to apply to hiring and
retention during a reduction in force). Thus, we find that the appellant has not
proven either of these affirmative defenses in the removal action. 11
¶29 To the extent that the appellant may be alleging that the agency violated
USERRA and/or VEOA concerning the 10-day suspension in the IRA appeal,
Congress did not give the Board general jurisdiction to decide the merits of the
underlying personnel action except where they are relevant to the allegations of
reprisal for whistleblowing activity. See Marren v. Department of
Justice, 51 M.S.P.R. 632, 638 (1991), aff’d, 980 F.2d 745 (Fed. Cir. 1992)
(Table), and modified on other grounds by Robinson v. U.S. Postal
Service, 63 M.S.P.R. 307, 323 n.13 (1994). We have considered the appellant’s
allegations, but they do not change our analysis of the IRA appeal.
We discern no error with the administrative judge’s rulings on the
appellant’s motions.
¶30 On review, the appellant asserts that he “was not afforded due process of
the results of the AIB” and that the administrative judge erred when he denied the
appellant’s discovery requests regarding the AIB. PFR File, Tab 3 at 3. We note
that the agency included a copy of the AIB results and recommendation in its
11
To the extent that the appellant alleged below that any prior nonselections violated
his veterans’ preference rights, see 0706 IAF, Tab 30 at 32, he may file a separate
VEOA appeal. The Board takes no position on whether it would have jurisdiction over
such an appeal.
17
submissions, and it appears that the appellant obtained portions of the witness
testimony during the AIB pursuant to a Freedom of Information Act request. See
0706 IAF, Tab 28 at 14-109, Tab 30 at 21-26. The AIB was not charged with
investigating any of the allegations of misconduct for which the appellant was
charged in either appeal, and we are not persuaded that any requested information
regarding the AIB was reasonably calculated to lead to the discovery of
admissible evidence in either the IRA appeal or the removal appeal. See 5 C.F.R.
§ 1201.72(a). We therefore discern no error with the administrative judge’s
decision to deny the appellant’s motions to compel for this reason. See 0706 IAF,
Tab 51.
¶31 Regarding the appellant’s assertion that his due process rights were
violated, the Board lacks jurisdiction to adjudicate the merits of such a claim in
the context of an IRA appeal, and his assertion in this regard, even accepted as
true, is not of sufficient weight to change our analysis of the IRA appeal
concerning the 10-day suspension. See Parikh v. Department of Veterans
Affairs, 116 M.S.P.R. 197, ¶ 34 (2011); Marren, 51 M.S.P.R. at 638. We also
conclude that the appellant received all the due process to which he was entitled
in the removal action. See, e.g., Cleveland Board of Education v.
Loudermill, 470 U.S. 532, 546 (1985) (“The essential requirements of due
process … are notice and an opportunity to respond.”); 5 C.F.R. § 752.404(b).
¶32 To the extent that the appellant challenges the administrative judge’s
decision to deny his multiple requests to certify an interlocutory appeal, we agree
with the administrative judge’s conclusion that the appellant did not prove that an
immediate Board ruling is necessary or that the issues presented involved an
important question of law about which there is substantial ground for
disagreement. 0706 IAF, Tab 51; see 0618 IAF, Tab 19; 0706 IAF, Tabs 17, 27;
see also 5 C.F.R. § 1201.92.
¶33 Below, the appellant requested a sanction of “summary judgment based on
harmful procedural error,” and he appeared to allege that the agency
18
representative had “prejudicial communications” with a “prospective witness”
and that his due process rights were violated. 0706 IAF, Tab 32 at 3. The
administrative judge denied this request because the Board lacks authority to
grant summary judgment under normal circumstances, and he stated that he
did not see a reason to do so as a sanction. 0706 IAF, Tab 51 at 3. The
appellant’s bare assertions on review, that the agency’s communications with the
prospective witness were “ex[] parte communications to potential witnesses” and
he was unable to respond to the “later characterizations” of him by the agency
representatives, PFR File, Tab 2 at 3, do not persuade us that the administrative
judge abused his discretion. See Leseman v. Department of the
Army, 122 M.S.P.R. 139, ¶ 6 (2015); see also 5 C.F.R. § 1201.43 (an
administrative judge may impose sanctions as necessary to serve the ends
of justice).
¶34 We have considered the appellant’s assertion that the administrative judge
improperly denied his stay request because he did not consider the “4/30/2014”
OSC close-out letter. PFR File, Tab 1 at 3; see 0618 IAF, Tab 14 at 5-7; see also
0618 SRF, Tab 4. We note, however, that OSC’s close-out letter post-dates the
administrative judge’s order denying the stay request. Thus, this argument
is not persuasive.
¶35 We are not persuaded, furthermore, that the agency’s decision to put a
behavioral restriction flag on the appellant’s patient file is an action over which
the Board has jurisdiction in either an IRA appeal or an appeal under chapter 75.
See, e.g., 5 U.S.C. §§ 2302(a)(2)(A) (definition of “personnel action”), 7512
(actions covered in a chapter 75 appeal). To the extent that the appellant
complains that his due process rights “as a patient” were violated by the agency’s
action, PFR File, Tab 1 at 5, the Board also lacks jurisdiction over such a claim,
see Maddox v. Merit Systems Protection Board, 759 F.2d 9, 10 (Fed. Cir. 1985)
(the Board’s jurisdiction is limited to those matters over which it has been given
jurisdiction by law, rule, or regulation).
19
¶36 To the extent that the appellant claims that there is a discrepancy regarding
the issuance date of the administrative judge’s order on his motions, or that he
was somehow prejudiced because the administrative judge issued this order on or
near the date that the record closed below, we are not persuaded that a different
outcome is warranted.
¶37 We also are not persuaded by the appellant’s assertion of administrative
judge bias. The appellant has not identified, nor are we aware of, evidence of any
“deep-seated favoritism or antagonism that would make fair judgment
impossible.” Bieber v. Department of the Army, 287 F.3d 1358, 1362-63 (Fed.
Cir. 2002) (quoting Liteky v. United States, 510 U.S. 540, 555 (1994)).
¶38 Accordingly, we have considered the appellant’s remaining arguments in his
petition for review, but we find them unavailing.
NOTICE TO THE APPELLANT REGARDING YOUR FURTHER REVIEW
RIGHTS IN PETERSON V. DEPARTMENT OF VETERANS AFFAIRS,
MSPB DOCKET NO. PH-0752-14-0706-I-1
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
20
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
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),
21
(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.
If you are interested in securing pro bono representation for your appeal to
the 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.
22
NOTICE TO THE APPELLANT REGARDING YOUR FURTHER REVIEW
RIGHTS IN PETERSON V. DEPARTMENT OF VETERANS AFFAIRS,
MSPB DOCKET NO. PH-0752-14-0618-W-1
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 the United States Court of Appeals for the Federal Circuit to review this
final decision.
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 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 under 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 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. You may choose to request
review of the Board’s decision in the United States Court of Appeals for the
Federal Circuit or any other court of appeals of competent jurisdiction, but not
both. Once you choose to seek review in one court of appeals, you may be
precluded from seeking review in any other court.
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.
23
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 your appeal to
the 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: ______________________________
William D. Spencer
Clerk of the Board
Washington, D.C.
