Filed: Aug. 25, 2016
Latest Update: Mar. 03, 2020
Summary: UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD BASILENE L. HENSON, DOCKET NUMBER Appellant, DA-0752-13-0519-B-1 v. DEPARTMENT OF THE TREASURY, DATE: August 25, 2016 Agency. THIS FINAL ORDER IS NONPRECEDENTIAL * Basilene L. Henson, Arlington, Texas, pro se. Melissa S. Luckett, Dallas, Texas, 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 affirmed her removal. General
Summary: UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD BASILENE L. HENSON, DOCKET NUMBER Appellant, DA-0752-13-0519-B-1 v. DEPARTMENT OF THE TREASURY, DATE: August 25, 2016 Agency. THIS FINAL ORDER IS NONPRECEDENTIAL * Basilene L. Henson, Arlington, Texas, pro se. Melissa S. Luckett, Dallas, Texas, 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 affirmed her removal. Generall..
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UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
BASILENE L. HENSON, DOCKET NUMBER
Appellant, DA-0752-13-0519-B-1
v.
DEPARTMENT OF THE TREASURY, DATE: August 25, 2016
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL *
Basilene L. Henson, Arlington, Texas, pro se.
Melissa S. Luckett, Dallas, Texas, 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
affirmed 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
erroneous application of the law to the facts of the case; the administrative
*
A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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).
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judge’s rulings during either the course of the appeal or the initial decision were
not consistent with required procedures or involved an abuse of discretion, and
the resulting error affected the outcome of the case; or new and material evidence
or legal argument is available that, despite the petitioner’s due diligence, was not
available when the record closed. See title 5 of the Code of Federal Regulations,
section 1201.115 (5 C.F.R. § 1201.115). After fully considering the filings in this
appeal, we conclude that the petitioner has not established any basis under
section 1201.115 for granting the petition for review. Therefore, we DENY the
petition for review and AFFIRM the initial decision, which is now the Board’s
final decision. 5 C.F.R. § 1201.113(b).
¶2 Effective May 23, 2013, the agency removed the appellant from her GS-6
Secretary position based on charges of failure to follow a management directive
and failure to provide accurate information on her time record. Initial Appeal
File (IAF), Tab 5, Subtabs 4a, 4b, 4e3. On appeal, the administrative judge
sustained the removal after applying the doctrine of collateral estoppel to the
factfindings in a prior Board appeal that was reversed on due process grounds.
Henson v. Department of the Treasury, MSPB Docket No. DA-0752-13-0519-I-1,
Initial Decision at 3-4 (Feb. 10, 2014). The appellant petitioned for review and
the Board vacated the initial decision, finding that the criteria for collateral
estoppel had not been met and the doctrine was therefore not applicable. Henson
v. Department of the Treasury, MSPB Docket No. DA-0752-13-0519-I-1, Remand
Order at 3-4 (Jul. 31, 2014). The Board remanded the appeal to the
administrative judge for issuance of a new initial decision. Id. at 4. On remand,
the administrative judge issued a remand initial decision in which he found: the
agency proved its charges; the agency did not violate the appellant’s due process
rights; the appellant failed to prove her affirmative defenses of race, color, and
age discrimination, retaliation for protected equal employment opportunity (EEO)
activity, reprisal for filing a Board appeal, and harmful error; the action promoted
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the efficiency of the service; and the penalty of removal was reasonable. Remand
File, Tab 17, Remand Initial Decision (RID).
¶3 The appellant filed a petition for review of the remand initial decision.
Remand Petition for Review (RPFR) File, Tab 1. The agency responds in
opposition to the petition for review and the appellant replies to the agency’s
response. RPFR File, Tabs 4‑5.
¶4 The agency’s charges are straightforward and the appellant does not make a
persuasive argument as to why the charges should not be sustained. As to the
charge of failure to follow a supervisory directive, the appellant’s supervisor
instructed her in writing—multiple times—to complete her lunch break by
3:00 p.m. so, among other reasons, the appellant had time to take the day’s
outgoing mail to the mailroom before a 3:30 p.m. deadline. IAF, Tab 5,
Subtab 4e5. The agency explained without rebuttal why it was important for
outgoing mail to leave the office in a timely fashion. Hearing Compact Disc
(HCD) (testimony of J.I.). After issuing the last written instruction, the
supervisor began documenting the appellant’s return from lunch and, in the end,
the agency charged 44 specifications of failure to follow a supervisory direction
when the appellant returned late from lunch. Id.; IAF, Tab 5, Subtab 4e3 at 1-5.
¶5 The appellant does not challenge the agency’s evidence concerning the time
she returned from lunch. Instead, she asserts that the instruction was improper
because the agency’s “sliding system” permitted her to take lunch such that she
could return as late as 4:00 p.m., and that the time she chose to take her lunch had
nothing to do with her job. RPFR File, Tab 1 at 5. On the contrary, the
appellant’s decision to routinely take a late lunch was directly relevant to one of
her job duties; namely, to get the office’s mail to the mailroom before the
deadline for outgoing mail. Moreover, the “sliding system” was not in place
during the relevant time period. HCD (testimony of J.I.). We agree with the
administrative judge that it was entirely proper for the appellant’s supervisor to
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issue the instruction, that the appellant was required to follow it, and that she
did not. RID at 3-6.
¶6 The second charge involves two instances in which the appellant indicated
on her timesheet that she took 15 minutes less leave than she actually took. IAF,
Tab 5, Subtab 4e3 at 5, Subtab 4e7. The appellant alleges that she did nothing
wrong because she was allowed to take leave in 15-minute increments. RPFR
File, Tab 1 at 5. Even so, she was not entitled to under-report her leave by
15 minutes. We agree with the administrative judge that the agency proved this
charge by preponderant evidence. RID at 6-7.
¶7 The appellant contends that the removal action constitutes discrimination
and retaliation for her protected EEO activity. RPFR File, Tab 1. The
administrative judge correctly found that none of the appellant’s discrimination
and retaliation claims had merit because the appellant failed to introduce any
evidence suggesting an inference of discrimination and because her tenuous
evidence that the relevant management officials were aware of her EEO activity
was insufficient to establish that the removal constituted retaliation. RID at 9‑10.
¶8 The administrative judge also found that the appellant’s claim of retaliation
for filing a Board appeal was without merit. The appellant based her claim on the
fact that the agency removed her again on the same charges after its first removal
action was reversed on due process grounds. The administrative judge found, and
we agree, that there is nothing inherently wrong with taking a second removal
action under these circumstances and the appellant failed to introduce any
evidence of malicious or retaliatory intent or bad faith and therefore provided no
reason why her second removal was in any way improper. RID at 11; Litton v.
Department of Justice, 118 M.S.P.R. 626, ¶¶ 12-13 (2012).
¶9 The administrative judge further rejected the appellant’s claim that the
agency violated her due process rights because it removed her fewer than 30 days
after it issued the notice of proposed removal. He correctly found that the
appellant’s assertion, apparently based on a letter from the Federal Retirement
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Thrift Investment Board concerning her Thrift Savings Plan account, was belied
by the evidence of record. RID at 11-12.
¶10 The appellant claimed harmful error because the deciding official was not in
her direct chain of command as required by agency policy. The administrative
judge found that the policy has flexibility built in and is not an absolute
requirement. He also found that the appellant failed to allege or show how the
result in her case would have been different if a different deciding official had
decided her case. Harmful error cannot be presumed; an agency error is harmful
only when the record shows that the procedural 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. Stephen v. Department of the
Air Force, 47 M.S.P.R. 672, 681, 685 (1991). The appellant repeats on review
her argument from below, but proffers nothing showing that the administrative
judge’s conclusion is wrong. The administrative judge correctly found that the
appellant did not prove harmful error. RID at 12-13.
¶11 The appellant asserts that the administrative judge erred by failing to grant
her the continuance she requested, failed to allow her time to prepare her hearing
exhibits, and failed to allow her time to locate the written list of witness questions
she had prepared. RPFR File, Tab 1 at 2-5. We have thoroughly reviewed the
hearing record and find that the administrative judge did not abuse his discretion.
The administrative judge already had rescheduled the hearing once to give the
appellant additional time to prepare for the hearing. RF, Tabs 9, 12. The
appellant did not submit her hearing exhibits prior to the hearing, much less by
the deadline set by the administrative judge for prehearing submissions, but
waited until the day before the hearing to begin organizing her documents and she
ultimately was unable to do so because of an alleged sore throat. RPFR File,
Tab 1 at 2. Likewise, the administrative judge did not prevent the appellant from
introducing documents or adequately questioning the witnesses, as the appellant
alleges. Id. at 3-4.
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¶12 The appellant also contends that the administrative judge erred by admitting
documents from her Official Personnel File (OPF) into the record as evidence
because the agency obtained those documents illegally. Id. at 2-3. The appellant
has not provided any authority, and we are aware of none, that would preclude the
agency from using documents contained in her OPF in routine employment
litigation concerning her own case. We discern no error in this regard.
¶13 The appellant further asserts that the administrative judge was biased
against her. This claim is based entirely on the fact that the administrative judge
and the agency representative allegedly “talked on a personal note” during breaks
in the hearing. Id. at 4. These assertions, even if true, fall far short of
establishing bias. See Oliver v. Department of Transportation, 1 M.S.P.R. 382,
386 (1980).
¶14 The appellant implicitly argues on review that the penalty of removal is
excessive, given her approximately 24 years of satisfactory service. RPFR File,
Tab 1 at 8-9. However, the record contains at least four memoranda informing
the appellant of her supervisor’s expectations and instructing her to complete her
lunch break by 3:00 p.m., IAF, Tab 5, Subtab 4e5, and she continued to take her
lunch breaks after that designated time, notwithstanding these instructions.
Furthermore, the appellant has a prior disciplinary record consisting of two
14-day suspensions in calendar year 2010 for similar misconduct, id.,
Subtabs 4e2, 4g, 4h, which reflects poorly on her potential for rehabilitation. We
find that the administrative judge correctly determined that the deciding official
considered the aggravating and mitigating factors most relevant in this case and
that there is no basis for the Board to disturb the agency’s exercise of its
managerial discretion. RID at 13-15.
¶15 In addition, the appellant has submitted numerous documents with her
petition for review and in her reply to the agency’s response to her petition for
review. RPFR File, Tabs 1, 5. Some of these documents are clearly in the record
below. Evidence that is already a part of the record is not new. Meier v.
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Department of the Interior, 3 M.S.P.R. 247, 256 (1980). The remaining
documents are all either undated or dated prior to the close of the record below.
Under 5 C.F.R. § 1201.115, the Board will not consider evidence submitted for
the first time with the petition for review absent a showing that it was unavailable
before the record was closed despite the party’s due diligence. Avansino v. U.S.
Postal Service, 3 M.S.P.R. 211, 214 (1980). Further, the Board will not grant a
petition for review based on new evidence absent a showing that it is of sufficient
weight to warrant an outcome different from that of the initial decision. Russo v.
Veterans Administration, 3 M.S.P.R. 345, 349 (1980). None of the documents
that the appellant has submitted on review are particularly relevant to this appeal
and none of them are of sufficient weight to warrant an outcome different from
that of the initial decision. Therefore, we have not relied on them.
¶16 Finally, in light of our disposition of this appeal, we do not address the
apparent untimeliness of the appellant’s petition for review.
NOTICE TO THE APPELLANT REGARDING
YOUR FURTHER REVIEW RIGHTS
You have the right to request further review of this final decision.
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:
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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.
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: ______________________________
Jennifer Everling
Acting Clerk of the Board
Washington, D.C.
