Filed: May 03, 2016
Latest Update: Mar. 02, 2020
Summary: UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD BARBARA MARTIN, DOCKET NUMBER Appellant, SF-0752-13-0050-B-2 v. GENERAL SERVICES DATE: May 3, 2016 ADMINISTRATION, Agency. THIS FINAL ORDER IS NONPRECEDENTIAL 1 Barbara Martin, Half Moon Bay, California, pro se. Deborah Finch, Esquire, San Francisco, California, 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 sustained h
Summary: UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD BARBARA MARTIN, DOCKET NUMBER Appellant, SF-0752-13-0050-B-2 v. GENERAL SERVICES DATE: May 3, 2016 ADMINISTRATION, Agency. THIS FINAL ORDER IS NONPRECEDENTIAL 1 Barbara Martin, Half Moon Bay, California, pro se. Deborah Finch, Esquire, San Francisco, California, 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 sustained he..
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UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
BARBARA MARTIN, DOCKET NUMBER
Appellant, SF-0752-13-0050-B-2
v.
GENERAL SERVICES DATE: May 3, 2016
ADMINISTRATION,
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Barbara Martin, Half Moon Bay, California, pro se.
Deborah Finch, Esquire, San Francisco, California, 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
sustained her removal. 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
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
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. Except as expressly MODIFIED by
this Final Order to apply the proper burden of proof to the appellant’s claim of
retaliation for protected equal employment opportunity (EEO) activity, we
AFFIRM the initial decision.
¶2 The agency removed the appellant from her position as a GS-12
Administrative Contracting Officer for unauthorized absence from August 29,
2011, to December 8, 2011, totaling 559.5 hours. Martin v. General Services
Administration, MSPB Docket No. SF-0752-13-0050-I-1, Initial Appeal File
(IAF), Tab 4 at 42, 44-51, 83-86. The agency stated that the appellant had a
telework agreement that allowed her to work at home for 3 days each pay period,
id. at 87, but that she claimed that she was “fully engaged” in working at home
during all of the hours cited, despite being unable to identify any work produced
during her absence, id. The agency determined that the appellant’s absence
was not justified as telework and that her inconsistent claim that she was unable
to work during this period was not supported by medical evidence or by any leave
request. Id. at 83-86.
¶3 The appellant filed an EEO complaint, which included the issue of her
removal. Id. at 38. In a final decision, the agency found that she had failed to
show that she suffered from a physical disability (eye injury) and that she had not
made a prima facie showing of retaliation based on prior EEO activity. The
3
agency found, though, that the appellant made a prima facie showing of
discrimination based on race (Hispanic), sex, and mental disability (anxiety
disorder), but that the agency showed it had a legitimate management reason for
the action, which the appellant failed to show was pretextual. Id. at 22-36.
¶4 On appeal of that decision, the appellant challenged the removal and
repeated her claims that the agency’s action was due to retaliation for protected
EEO activity, physical and mental disability discrimination, and race and sex
discrimination. 2 IAF, Tab 1. She requested a hearing. Id. at 3.
¶5 Thereafter, the administrative judge issued an initial decision in which she
first found that the gravamen of the unauthorized absence charge was absence
without leave (AWOL), and she therefore addressed whether the agency had
proven that the appellant was AWOL, finding that the agency did prove the
charge as to 541.5 hours of the 559.5 hours cited. 3 Mart. v. General Services
Administration, MSPB Docket No. SF-0752-13-0050-B-2, Appeal File (B-2 AF),
Tab 51, Initial Decision (B-2 ID) at 14-25. The administrative judge then found
that a nexus existed between the sustained charge and the efficiency of the
service. Id. at 26-27. Regarding the appellant’s affirmative defenses, the
administrative judge found that she did not prove her claim of retaliation for
protected EEO activity, id. at 27-30, that she failed to prove that the agency
did not provide her a reasonable accommodation, id. at 31-32, and that she failed
to establish a prima facie case of discrimination based on race and that, even
assuming arguendo that she did, the agency articulated a legitimate
nondiscriminatory reason for its action, id. at 32-33. Finally, the administrative
2
The appellant subsequently withdrew her claim of sex discrimination. Martin v.
General Services Administration, MSPB Docket No. SF-0752-13-0050-B-1, Appeal File
(B-1 AF), Tab 27.
3
The administrative judge found that the appellant made a timely request for 18 hours
of annual leave and that the agency improperly denied that request. Martin v. General
Services Administration, MSPB Docket No. SF-0752-13-0050-B-2, Appeal File (B-2
AF), Tab 51, Initial Decision (B-2 ID) at 15, 22-23.
4
judge found that the deciding official considered the Douglas factors 4 in
determining to remove the appellant, that he exercised his discretion within the
tolerable limits of reasonableness, and that, based on the sustained charge, the
penalty of removal was not so excessive so as to suggest an abuse of discretion.
Id. at 33-34. Accordingly, the administrative judge affirmed the agency’s action.
Id. at 2, 34.
¶6 The appellant has filed a petition for review, Petition for Review (PFR)
File, Tab 2, to which the agency has responded in opposition, PFR File, Tab 4.
The AWOL charge was properly sustained.
¶7 On review, the appellant challenges the administrative judge’s finding that
she was AWOL during the period in question, 5 maintaining that she was “not
absent, was not unreachable, was not unresponsive . . . .” PFR File, Tab 2 at 18.
The appellant, however, has misstated the requirements for proving an AWOL
charge. For an agency to prove such a charge, it must show that the employee
was absent, and that her absence was not authorized, or that her request for leave
was properly denied. Little v. Department of Transportation, 112 M.S.P.R. 224,
¶ 6 (2009). The administrative judge found that the appellant was absent on the
dates and times set forth in the proposal notice and that she did not request leave
for 541.5 of those hours. B-2 ID at 14-15, 26. The administrative judge rejected
the appellant’s claim that she was “fully engaged” during the charged hours,
finding that she was not approved for full-time telework, IAF, Tab 4 at 87-88, and
that she knew she could not change her telework status at will, id. at 89-91, 99,
101-04, B-2 ID at 15-17; that the appellant performed no meaningful work during
the 541.5 hours, failing to provide evidence of any work completed despite being
4
In Douglas v. Veterans Administration, 5 M.S.P.R. 280, 305-06 (1981), the Board
articulated a nonexhaustive list of twelve factors, both aggravating and mitigating, that
are relevant to the penalty determination in adverse action cases.
5
For ease of analysis, we have addressed the appellant’s allegations on review in a
different order than that in which they were raised.
5
afforded several opportunities to do so, B-2 ID at 17-19; that the appellant never
requested leave to cover the absences, id. at 19-20; that her request for advanced
sick leave was not a request for leave for the time period at issue, B-2 AF,
Tab 10 at 72, and that her supervisor’s denial of that request was not an abuse of
discretion, id. at 71, B-2 ID at 20-21; that her supervisor’s denial of her request
for 131.5 hours of official time to work on her EEO complaint, IAF, Tab 4 at 106,
was not an improper denial of a leave request because the appellant was on
unauthorized absence at the time and not otherwise on duty, B-2 AF, Tab 10
at 120, B-2 ID at 21; and that her unauthorized absence was not cured when, in
response to the notice of proposed removal, she provided the deciding official
with medical documentation covering the entire period of absence because she
did not request leave, but rather insisted on being paid for the time, claiming she
was “required to stay engaged,” B-2 AF, Tab 37 at 111, B-2 ID at 23-25. The
appellant has not shown error in the administrative judge’s findings that she
was not approved for full-time telework, failed to show that she performed any
meaningful work during the period in question, and did not request leave to cover
the vast majority of her absences. Under the circumstances, we find that the
administrative judge properly sustained the AWOL charge. Wesley v. U.S. Postal
Service, 94 M.S.P.R. 277, ¶ 15 (2003); see Little, 112 M.S.P.R. 224, ¶ 6.
The administrative judge’s credibility determinations are entitled to deference.
¶8 In connection with the administrative judge’s findings, the appellant
contends that she was unfairly found not credible. She argues that the events in
question occurred several years ago and led to extreme emotional distress and
mental confusion from which she still suffers the residual effects. PFR File,
Tab 2 at 6. In making her preliminary determinations, the administrative judge
found that the appellant’s testimony and statements regarding her employment
with the agency and the absences in question were not credible based on her
demeanor, the inconsistency of her statements over time, the inconsistency of her
version of events with other evidence, and the inherent improbability of her
6
description of events. B-2 ID at 11-13; see Hillen v. Department of the Army,
35 M.S.P.R. 453, 458 (1987) (when resolving credibility issues, an administrative
judge must identify the factual questions in dispute, summarize the evidence on
each disputed question, state which version he believes, and explain in detail why
he found the chosen version more credible, considering such factors as: (1) the
witness’s opportunity and capacity to observe the event or act in question; (2) the
witness’s character; (3) any prior inconsistent statement by the witness; (4) a
witness’s bias, or lack of bias; (5) the contradiction of the witness’s version of
events by other evidence or its consistency with other evidence; (6) the inherent
improbability of the witness’s version of events; and (7) the witness’s demeanor).
The administrative judge referred to various instances in the record where the
appellant made misleading or demonstrably false statements to management
officials or other individuals during the course of her employment, found that her
testimony during the hearing and her submissions in the appeal included
statements that, at best, lacked candor, and provided several specific examples
supporting her findings. As such, the administrative judge determined that the
appellant’s testimony merited little weight. B-2 ID at 12-13. Additionally, the
administrative judge found that both the deciding official and the appellant’s
supervisor were credible witnesses, also applying the Hillen factors in reaching
those determinations. B-2 ID at 13-14.
¶9 Based on the appellant’s arguments on review, we discern no reason to
reweigh the evidence or substitute our assessment of the record evidence for that
of the administrative judge. Crosby v. U.S. Postal Service, 74 M.S.P.R. 98,
105-06 (1997) (finding no reason to disturb the administrative judge’s findings
when she considered the evidence as a whole, drew appropriate inferences, and
made reasoned conclusions); Broughton v. Department of Health & Human
Services, 33 M.S.P.R. 357, 359 (1987) (same); see Haebe v. Department of
Justice, 288 F.3d 1288, 1302 (Fed. Cir. 2002) (holding that the Board may
overturn credibility determinations only when it has “sufficiently sound” reasons
7
for doing so). The appellant’s mere disagreement with the administrative judge’s
findings and credibility determinations does not warrant full review of the record
by the Board. Gager v. Department of Commerce, 99 M.S.P.R. 216, ¶ 5 (2005).
The appellant did not establish her claim of disability discrimination based on the
denial of reasonable accommodation.
¶10 On review, the appellant disputes the administrative judge’s finding that she
did not establish her claim of disability discrimination. PFR File, Tab 2 at 11-13.
In addressing the appellant’s claim that the agency failed to reasonably
accommodate her disabilities, the administrative judge assumed without finding
that the appellant is a qualified person with a disability. B-2 ID at 30-32. The
administrative judge found that the accommodation the appellant requested,
reassignment to work for a new supervisor, is one that the law does not require,
id. at 31, and that, as to other potential accommodations the appellant articulated
during the proceedings, including allowing her to perform full-time telework and
requiring her supervisor to change her supervisory style, the appellant did not
request either of these accommodations during the time period at issue or
otherwise put the agency on notice that it should have considered such
adjustments as appropriate, id. at 31-32.
¶11 We first address the appellant’s claim that the agency denied her the
accommodation of being allowed to telework on a full-time basis. PFR File,
Tab 2 at 12. In providing reasonable accommodation, an agency is not required
to modify or eliminate duties that are an essential function of a position.
Johnson v. U.S. Postal Service, 120 M.S.P.R. 87, ¶ 10 (2013). Although the
appellant disagrees, both her supervisor and the deciding official testified that the
appellant could not perform the full scope of her duties if she teleworked on a
full-time basis. Hearing Compact Disc (HCD), Mar. 11, 2015; HCD, Feb. 5,
2015. As noted earlier, the administrative judge found both of these witnesses to
be credible. B-2 ID at 13-14. And, while the appellant claims that she
8
teleworked successfully for “years prior,” PFR File, Tab 2 at 12, she does not
claim, nor does the record reflect, that she ever teleworked on a full-time basis.
¶12 We next address the appellant’s claim that the agency denied her the
accommodation of being assigned to a new supervisor, even though there
apparently were three other supervisors to whom she could have been assigned.
Id. As the administrative judge found, however, an employer is not required, as
part of its duty to provide reasonable accommodation, to assign an employee to a
different supervisor. 6 B-2 ID at 31; see Weiler v. Household Finance Corp.,
101 F.3d 519, 526-27 (7th Cir. 1996).
The appellant did not establish her claim of retaliation for protected EEO activity.
¶13 Regarding the appellant’s claim that the agency’s action was in retaliation
for her protected EEO activity, she acknowledges on review that “[i]t may not be
obvious that GSA made a direct connect from EEO activity to termination,” but
she insists that she was targeted “for some reason.” PFR File, Tab 2 at 20. The
administrative judge determined that the appellant did not prove her claim,
finding no evidence that she was removed for her EEO activity or that the actions
6
To the extent the appellant now attempts to argue that other agency employees in the
same pay grade or in similar roles were allowed to telework and to report to other
supervisors, PFR File, Tab 2 at 12, this constitutes a claim of disability discrimination
based on disparate treatment. She did not challenge the administrative judge’s
statement below in a summary of prehearing conference that it appeared she was raising
a claim of disability discrimination under a failure to accommodate theory despite the
administrative judge’s statement that she needed to state any additional disability
discrimination theories she intended to raise. B-1 AF, Tab 27 at 2-3. Although she was
afforded an opportunity below to argue disability discrimination based on a disparate
treatment theory, she did not do so. As such, she may not raise the issue on review.
See Miller v. U.S. Postal Service, 117 M.S.P.R. 557, ¶ 7 (2012) (finding that the failure
to object to the administrative judge’s ruling excluding evidence during proceedings
below precluded a party from challenging that ruling on review); Crowe v. Small
Business Administration, 53 M.S.P.R. 631, 634-35 (1992) (stating that an appellant
may not object on review to an administrative judge’s exclusion of evidence on an issue
when the issue is not included in the memorandum summarizing the prehearing
conference, the parties were afforded an opportunity to file an addition or correction to
the summary, and no such addition or correction was filed).
9
of her supervisors were motivated by retaliation for such activity. 7 B-2 ID
at 27-30. The administrative judge specifically considered the “Gingerbread
incident” that occurred in December 2011 at the office holiday party when the
legal division prepared a gingerbread house labeled as an agency building with a
flattened and injured gingerbread man next to it, along with the words “Torte
Denied.” The administrative judge found that nothing about the holiday party
joke appeared to be aimed at the appellant. Id. at 28-29. On review, the appellant
argues that the administrative judge “misrepresent[ed]” the incident, although the
appellant claims that she “never said it was retaliatory” or “even specifically
directed at [her].” PFR File, Tab 2 at 20. Even if the appellant found the incident
“deeply disturbing,” as she claims, she has not shown error in the administrative
judge’s finding that, upon weighing all of the evidence, the appellant has not met
her overall burden of proving illegal retaliation. 8 B-2 ID at 27-30; Simien v. U.S.
Postal Service, 99 M.S.P.R. 237, ¶ 28 (2005).
The appellant did not suffer a constructive suspension.
¶14 The appellant also claims on review, PFR File, Tab 2 at 7, as she did below,
an “alternate defense,” which is that she suffered a “constructive discharge” at the
hands of the agency, B-2 AF, Tab 7. She acknowledged below that she did not
formally resign or retire, id. at 4, instead claiming that she was “fully engaged”
7
In Savage v. Department of the Army, 122 M.S.P.R. 612, ¶ 51 (2015), issued after the
initial decision in this case, the Board modified the test for establishing retaliation for
protected EEO activity, holding that, when an appellant asserts such an affirmative
defense, the Board first will inquire whether the appellant has shown by preponderant
evidence that the prohibited consideration was a motivating factor in the contested
personnel action. Under this test, we find that the appellant failed to make such a
showing regarding her claim of retaliation for protected EEO activity. Therefore, her
substantive rights have not been prejudiced by the administrative judge’s application of
the previously approved method of proving this claim. Panter v. Department of the
Air Force, 22 M.S.P.R. 281, 282 (1984).
8
The appellant has not challenged on review the administrative judge’s finding that she
did not establish her claim of race discrimination, and we find no basis upon which to
disturb it.
10
while working at home full time. Concluding that she was not so engaged, the
agency charged her AWOL for the entire time. The administrative judge agreed,
save 18 hours for which she found the agency improperly denied the appellant
annual leave. We find that, apart from those 18 hours, the appellant otherwise
purposefully took no leave during the period in question, and therefore she
did not suffer a constructive suspension. See Romero v. U.S. Postal Service,
121 M.S.P.R. 606, ¶ 8 (2014).
The appellant did not establish adjudicatory error on the part of the
administrative judge.
¶15 On review, the appellant makes a number of allegations of adjudicatory
error. She argues that the administrative judge limited the scope of the hearing
and the evidence that was submitted. PFR File, Tab 2 at 6. She claims that “the
Union” gathered six boxes of evidence, most of which was not allowed because
her attorney asked to enter documents, but was denied. Id. A petition for review
must contain sufficient specificity to enable the Board to ascertain whether there
is a serious evidentiary challenge justifying a complete review of the record.
Herndon v. Department of the Navy, 97 M.S.P.R. 609, ¶ 7 (2004). Regarding this
claim, the appellant’s general statement referencing an abuse of discretion by the
administrative judge clearly lacks the necessary specificity to justify such
a review.
¶16 Next, the appellant alleges that the administrative judge did not allow her
former representative to be a witness, but did allow the agency’s former
representative to testify. PFR File, Tab 2 at 6. The record reflects, however, that
the appellant’s current representative did not request her former representative as
a witness, B-2 AF, Tab 10, whereas the agency’s current representative did
request its former representative as a witness, explaining the narrow scope of her
proposed testimony, and on that basis, the administrative judge approved her to
testify, Martin v. General Services Administration, MSPB Docket No. SF-0752-
13-0050-B-1, Appeal File (B-1 AF), Tab 15. The appellant further argues that
11
she had only two witnesses whereas the agency had “day after day of witnesses.”
PFR File, Tab 2 at 6. The appellant’s assertions are not borne out by the record.
The administrative judge originally approved four witnesses for the agency,
including its former representative, the appellant’s supervisor, and the appellant
herself. At the prehearing conference, the administrative judge approved seven
witnesses for the appellant, including the appellant’s supervisor and the appellant,
noting at that time that she had withdrawn her request for four additional
witnesses. B-1 AF, Tab 27. Prior to withdrawing from the case, the appellant’s
former representative submitted an “updated” witness list, B-1 AF, Tab 29, but
during the conference that followed, the administrative judge noted that the
appellant had withdrawn her request for two of those witnesses and denied four
others on the basis that the appellant had failed to show the relevancy of their
proposed testimony. B-1 AF, Tab 30.
¶17 An administrative judge has wide discretion to exclude witnesses where it
has not been shown that their testimony would be relevant, material, and
nonrepetitious. Franco v. U.S. Postal Service, 27 M.S.P.R. 322, 325 (1985).
Moreover, the Board will not reverse an administrative judge’s rulings on
discovery matters absent an abuse of discretion. Wagner v. Environmental
Protection Agency, 54 M.S.P.R. 447, 452 (1992), aff’d, 996 F.2d 1236 (Fed. Cir.
1993) (Table). Based on the lack of specificity in the appellant’s claims and our
review of the record, we discern no abuse of discretion in the administrative
judge’s witness rulings.
¶18 The appellant also argues on review that the administrative judge erred in
not requiring the agency to produce records a union representative sought on her
behalf that she claims would show that she regularly logged in to her computer
during the time she was charged AWOL. PFR File, Tab 2 at 5. The appellant
further claims that she was forced to file a Freedom of Information Act (FOIA)
request to obtain the documents but that the agency notified her that she would
have to pay for the data in an amount she claims is substantially higher than
12
allowed under FOIA regulations. Id. The record reflects that, when the appellant
notified the administrative judge that she intended to change representatives, the
administrative judge advised the parties that “there will be no additional
discovery permitted even in the event a new representative is designated.”
B-1 AF, Tab 30. Shortly after that, the administrative judge dismissed the appeal
without prejudice, stating that it would be automatically refiled on a date certain
to allow the appellant to secure new representation. B-1 AF, Tab 35. She did so,
and the appeal was refiled on the date designated by the administrative judge.
B-2 AF, Tabs 1, 3. Subsequently, the appellant’s new representative filed a
motion to compel the agency to produce the log-in information. B-2 AF, Tab 7.
The agency opposed the appellant’s motion. B-2 AF, Tab 8. The administrative
judge did not rule on the motion, although, during a status conference, she did
remind the parties of her earlier ruling that no new discovery would be permitted.
B-2 AF, Tab 20. Notwithstanding, on or around the first day of the hearing, the
administrative judge directed the agency to provide the appellant with her leave
usage records for 2011. According to the appellant, the agency provided a table
summary for the entire year, but a set of leave records for only 9 months of the
year, and so she filed a motion to compel production of the remainder of the
documents. B-2 AF, Tab 35. After indicating its intention to provide them,
B-2 AF, Tab 36, the agency submitted more than 100 pages of documents,
including the appellant’s archived primary timecards for the period from
January 2, 2011, to February 25, 2012, with codes, leave requests and related
correspondence, and a leave calendar. B-2 AF, Tab 37. In renewing her motion
to compel, however, the appellant argued that the agency had “selectively
withheld essential documents,” B-2 AF, Tab 38, although the agency disputed
that claim, B-2 AF, Tab 39.
¶19 The appellant asserts on review only that the data she sought would have
proven that she routinely logged in to her computer during the period in question.
PFR File, Tab 2 at 5. However, any such evidence would not change the fact that
13
she was not approved for full-time telework and did not account for her time,
despite being given several opportunities to do so. Therefore, even if the
administrative judge abused her discretion in not requiring the agency to submit
more, or more complete, documentation of the appellant’s log-ins during the
period in question, she has failed to show any prejudice to her substantive rights.
Panter, 22 M.S.P.R. at 282.
¶20 Citing various blogs and websites as part of her “cursory research,” the
appellant claims on review that, based on their rates of affirmance, both the
administrative judge and the Board in general are biased against employees. PFR
File, Tab 2 at 4-5. 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. Oliver v. Department of
Transportation, 1 M.S.P.R. 382, 386 (1980). Furthermore, an allegation of bias
by an administrative judge must be raised as soon as practicable after a party has
reasonable cause to believe that grounds for disqualification exist, and must be
supported by an affidavit. Lee v. U.S. Postal Service, 48 M.S.P.R. 274, 280-82
(1991). The appellant has not met these requirements. Simmons v. Small
Business Administration, 115 M.S.P.R. 647, ¶ 10 (2011); Schneider v.
Department of Homeland Security, 98 M.S.P.R. 377, ¶ 7 (2005). Moreover, to
establish that an administrative judge was biased, a party generally must show
that any such bias constitutes extrajudicial conduct, rather than conduct arising in
the administrative proceeding. Ali v. Department of the Army, 50 M.S.P.R. 563,
568 (1991). An administrative judge’s conduct during the course of a Board
proceeding warrants a new adjudication if the administrative judge’s comments or
actions evidence “a 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)). The appellant has failed to make such a showing as to the administrative
judge’s conduct during the Board proceeding.
14
¶21 The appellant argues on review that the agency refused to settle her case
despite repeated requests from the administrative judge that the parties consider
settlement. PFR File, Tab 2 at 21-22. Although the Board “strongly encourages”
settlement, discussion of possible options is not required if either party concludes
in good faith that no compromise of any kind is possible. IAF, Tab 2. The
appellant has shown no support for her claim that agencies in all cases must be
required to engage in settlement discussions, and we are aware of no
such support. 9
The appellant has not submitted new and material evidence.
¶22 With her petition for review, the appellant has submitted copies of “sample
communication with ‘Upper Management,’” specifically, email exchanges. PFR
File, Tab 2 at 22-24. One of the emails was part of the record below, IAF, Tab 4
at 94, and therefore is not new evidence. Meier v. Department of the Interior,
3 M.S.P.R. 247, 256 (1980). The others date from 2011, well before the close of
the record below. In the absence of a showing, or even a suggestion, that those
9
The appellant argues that the agency violated the Fair Labor and Standards Act by not
paying her for the 3 days per pay period that she was allowed to telework and she asks
to be paid for that time. PFR File, Tab 2 at 13-14. The agency has shown, however,
that the appellant did not perform compensable work during the period in question,
including her approved telework days. B-2 ID at 17-19. The appellant also claims that
her pay should not have been “taken back,” id. at 15, and that these failures on the part
of the agency have left her in financial ruin, id. at 16. The pay “taken back” resulted
from the fact that the appellant was originally awarded Office of Workers’
Compensation Programs benefits in the form of Continuation of Pay for 29 days in 2011
for an eye injury she suffered, allegedly due to a defective computer monitor. The
claim was subsequently denied, however, with the result that the appellant was paid
funds to which she was not entitled. B-1 AF, Tab 15 at 20-22. As instructed, the
agency allowed her to choose whether she wished to charge the hours in question to her
annual leave or sick leave account, but when she repeatedly declined to choose, B-2 AF,
Tab 37 at 73-76, the agency eventually placed her in a nonpay status and collected her
indebtedness through her pay, B-1 AF, Tab 23 at 79-81. That time period occurred
months before the dates at issue in this appeal and therefore has no bearing on it.
Neither is the appellant’s current financial situation a factor for consideration in
this case.
15
emails were unavailable despite the appellant’s due diligence, we will not
consider them. Avansino v. U.S. Postal Service, 3 M.S.P.R. 211, 214 (1980).
NOTICE TO THE APPELLANT REGARDING
YOUR FURTHER REVIEW RIGHTS
The initial decision, as supplemented by this Final Order, constitutes the
Board’s final decision in this matter. 5 C.F.R. § 1201.113.
Discrimination Claims: Administrative Review
You may request review of this final decision on your discrimination
claims by the Equal Employment Opportunity Commission (EEOC). See title 5
of the United States Code, section 7702(b)(1) (5 U.S.C. § 7702(b)(1)). If you
submit your request by regular U.S. mail, the address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit your request via commercial delivery or by a method requiring a
signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, NE
Suite 5SW12G
Washington, D.C. 20507
You should send your request to EEOC no later than 30 calendar days after your
receipt of this order. If you have a representative in this case, and your
representative receives this order before you do, then you must file with EEOC no
later than 30 calendar days after receipt by your representative. If you choose to
file, be very careful to file on time.
Discrimination and Other Claims: Judicial Action
If you do not request EEOC to review this final decision on your
discrimination claims, you may file a civil action against the agency on both your
discrimination claims and your other claims in an appropriate U.S. district court.
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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. See 42 U.S.C. § 2000e-5(f) and
29 U.S.C. § 794a.
FOR THE BOARD: ______________________________
William D. Spencer
Clerk of the Board
Washington, D.C.
