Filed: Jan. 06, 2017
Latest Update: Mar. 03, 2020
Summary: UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD REGINA G. DAVIS, PH.D, DOCKET NUMBERS Appellant, DA-1221-12-0640-W-6 PH-315H-12-0551-I-3 v. DEPARTMENT OF THE ARMY, Agency. DATE: January 6, 2017 THIS FINAL ORDER IS NONPRECEDENTIAL 1 Regina G. Davis, Ph.D., San Antonio, Texas, pro se. Randy Ramirez, Esquire, Joint Base San Antonio, Fort Sam Houston, Texas, for the agency. BEFORE Susan Tsui Grundmann, Chairman Mark A. Robbins, Member FINAL ORDER ¶1 The appellant has filed separate petitions
Summary: UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD REGINA G. DAVIS, PH.D, DOCKET NUMBERS Appellant, DA-1221-12-0640-W-6 PH-315H-12-0551-I-3 v. DEPARTMENT OF THE ARMY, Agency. DATE: January 6, 2017 THIS FINAL ORDER IS NONPRECEDENTIAL 1 Regina G. Davis, Ph.D., San Antonio, Texas, pro se. Randy Ramirez, Esquire, Joint Base San Antonio, Fort Sam Houston, Texas, for the agency. BEFORE Susan Tsui Grundmann, Chairman Mark A. Robbins, Member FINAL ORDER ¶1 The appellant has filed separate petitions ..
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UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
REGINA G. DAVIS, PH.D, DOCKET NUMBERS
Appellant, DA-1221-12-0640-W-6
PH-315H-12-0551-I-3
v.
DEPARTMENT OF THE ARMY,
Agency. DATE: January 6, 2017
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Regina G. Davis, Ph.D., San Antonio, Texas, pro se.
Randy Ramirez, Esquire, Joint Base San Antonio, Fort Sam Houston,
Texas, for the agency.
BEFORE
Susan Tsui Grundmann, Chairman
Mark A. Robbins, Member
FINAL ORDER
¶1 The appellant has filed separate petitions for review of the initial decision
in these two joined appeals, which denied her request for corrective action in her
individual right of action (IRA) appeal and dismissed her probationary
termination appeal for lack of jurisdiction. Generally, we grant petitions such as
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
this one only when: the initial decision contains e rroneous 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 judge’s rulings during either the course of the a ppeal 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 petitione r’s due
diligence, was not available when the record closed. Title 5 of the Code of
Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). After fully
considering the filings in this appeal, we conclude that the petitioner has not
established any basis under section 1201.115 for granting the petitions for review.
Therefore, we DENY the petitions for review and AFFIRM the initial decision,
which is now the Board’s final decision. 5 C.F.R. § 1201.113(b).
BACKGROUND
¶2 After serving as a contract psychologist employed by Humana/Veritas
Healthcare in the agency’s Warrior Resiliency Program (WRP) at the Brooke
Army Medical Center (BAMC) for just over 8 months, the appellant began a
2-year term appointment in the competitive service in the WRP as a Clinical
Research Psychologist, GS-13, effective September 27, 2010. MSPB Docket No.
DA-1221-12-0640-W-5, Appeal File (W-5 AF), Tab 29 at 6, Tab 32 at 1; MSPB
Docket No. PH-315H-12-0551-I-1, Initial Appeal File (IAF), Tab 1 at 5. The
appointment was subject to a 1-year trial period. W-5 AF, Tab 29 at 6.
¶3 Before the appellant’s September 27, 2010 appointment, the agency began
an Army Regulation (AR) 15-6 investigation into allegations both by and against
the appellant arising from her contract employment. IAF, Tab 18 at 6‑14. The
agency completed the investigation after her appointment ended with a
November 16, 2010 report. Id.
3
¶4 According to the report, on February 9, 2011, the appellant allegedly raised
her voice to staff in charge of videoconferencing equipment after a staff member
inadvertently connected her to the wrong location, and she therefore was not able
to converse with a patient. E.g., MSPB Docket No. DA-1221-12-0640-W-1,
Appeal File (W-1 AF), Tab 9 at 356, 415-17, 425-30, 435‑37. Later that same
month, the agency initiated a second AR 15-6 investigation into claims the
appellant raised of a hostile work environment. Id. at 362, 364‑65, 371-75. In a
March 2011 report, the investigating officer concluded that the allegations were
“not substantiated.” Id. at 371. In April 2011, the appellant refused to attend a
meeting to discuss these findings and her request for a transfer. W-5 AF, Tab 29
at 30-31, 38. On May 5, 2011, the agency issued the appellant notice that it
would terminate her appointment effective May 11, 2011, based on her failure to
attend the April 2011 meeting as instructed. Id. at 30-31.
¶5 The appellant filed an appeal, which the Board docketed as two separate
actions, Davis v. Department of the Army, MSPB Docket No. PH-315H-12-0551‑
I-1, concerning her probationary termination, and Davis v. Department of the
Army, MSPB Docket No. DA-1221-12-0640-W-1, an IRA appeal in which the
appellant contended that the agency terminated her in reprisal for protected
whistleblowing activity. IAF, Tab 1; W-1 AF, Tab 1. Following several
dismissals without prejudice and the subsequent refiling of each appeal consistent
with the terms of those dismissals, an administrative judge joined the appeals and
granted the appellant’s motion to transfer the joined appeals to the Board’s Dallas
Regional Office for hearing. W-5 AF, Tabs 2-5, 17-18.
¶6 The Chief Administrative Judge in Dallas gave the appellant notice of the
elements and burdens necessary for her to establish jurisdiction over and prove
the merits of her probationary termination and IRA appeals, reassigned the
appeals to another administrative judge in that office, and scheduled a hearing.
W-5 AF, Tabs 38, 42-43, 45.
4
¶7 Following a 3-day hearing, the administrative judge issued an initial
decision. W-5 AF, Tabs 51, 59; MSPB Docket No. DA-1221-12-0640-W-6,
Appeal File (W-6 AF), Tabs 1-3, 7. She found that the Board lacks jurisdiction
over the appellant’s probationary termination. W-6 AF, Tab 11, Initial Decision
(ID) at 3‑8. The administrative judge determined that the appellant was not an
“employee” with Board appeal rights under chapter 75 of title 5 because she was
serving a probationary period and did not have 1 year of current continuous
service when the agency terminated her. ID at 4; 5 U.S.C. § 7511(a)(1)(A). She
rejected the appellant’s contention that the time she served as a contract employee
for Humana/Veritas should be tacked onto the time she served in her term
position to meet the statutory 1-year current continuous service requirement. ID
at 4-5; W-5 AF, Tab 32 at 6.
¶8 The appellant argued that the agency terminated her based on
preappointment reasons and subsequently failed to provide her with the
procedures set forth in 5 C.F.R. § 315.805, contending that her termination arose
out of the first AR 15-6 investigation, which terminated in November 2010, and
concerned allegations that she engaged in misconduct while still a contractor. ID
at 5-6; W-5 AF, Tab 32 at 7. The administrative judge found otherwise,
distinguishing the instant appeal from cases where an agency specifically alleges
an instance of preappointment conduct in the termination notice as a basis for its
action, and determining that the deciding official sought to remove the appellant
for her “blatant disregard for authority and failure to follow directions” and not
for the misconduct referred to in the agency’s AR 15-6 investigations which, by
contrast, involved the appellant’s alleged confrontational and aggressive behavior
towards her colleagues, not her supervisors. ID at 6-8. The administrative judge
also found that because those investigations were not concluded prior to the
appellant’s appointment, any consequences that flowed from them could not have
occurred until after her appointment. ID at 8 n.7. Hence, the administrative
5
judge found that the appellant failed to establish jurisdiction over her
probationary termination appeal.
¶9 In addition, the administrative judge set forth a comprehensive, detailed
analysis of the appellant’s whistleblowing claims, pursuant to which she found
that the appellant had established jurisdiction and a prima facie case of
whistleblowing reprisal. ID at 9-22. She determined that the appellant made two
protected disclosures, the first one on October 21, 2010, when she alleged that
without conducting an evaluation, another psychologist changed her diagnosis of
a patient so that the patient could attend recruiter school, and the second on
February 2, 2011, in which she alleged that an agency psychiatrist had
fraudulently changed a Medical Evaluation Board report regarding an individual
soldier to reflect a diagnosis of Post-Traumatic Stress Disorder so that he could
quality for Government benefits. ID at 11-21. The administrative judge, though,
found that a third alleged April disclosure to the commanding officer of the
BAMC in April 2011 that agency officials had allegedly abused their authority
when they allowed fellows in the WRP to provide anonymous written reviews of
her work was not a protected disclosure because everyone that provided training
to the WRP fellows was subject to the same review process, not just the appellant.
ID at 21. Concerning the appellant’s two disclosures that the administrative
judge found were protected, she further found that the appellant had established
exhaustion of her administrative remedies before the Office of Special Counsel
(OSC), and determined that those disclosures could have been a contributing
factor in the appellant’s probationary termination by virtue of the
knowledge/timing test. ID at 22-24.
¶10 The administrative judge also determined that, notwithstanding the
appellant’s prima facie case of whistleblower reprisal , the agency established by
clear and convincing evidence that it would have terminated the appellant for
failing to follow orders to attend the April 2011 meeting even in the absence of
6
her protected whistleblowing activity. ID at 24-37. Therefore, the administrative
judge denied the appellant’s request for corrective action. ID at 36-37.
DISCUSSION OF ARGUMENTS ON REVIEW
¶11 The appellant timely filed separate petitions for review in her probationary
termination and IRA appeals, the agency filed a single response to the appellant’s
petitions for review, and the appellant filed a reply to the agency’s response.
Petition for Review (PFR) File, Tabs 5-6, 8-9. 2 The agency filed an additional
pleading, which the Clerk of the Board rejected because the Board’s rules do not
provide for any pleadings other than a petition for review, a cross petition for
review, a response to the petition for review or cross petition for review, and a
reply to a response. PFR File, Tab 10; 5 C.F.R. § 1201.114(a)(5). As instructed
by the Clerk of the Board, the agency moved for leave to file the supplemental
pleading, which it claimed was necessary to address the factual and legal issues
raised by the appellant for the first time in her reply to the agency’s response to
her petition for review. PFR File, Tab 11 at 4-5. The agency also moved for the
Board to reject the appellant’s reply to its response to her petition for review
because her initial and supplemental version of that document are approximatel y
200 words over the Board’s word limit for a reply and the appellant failed to
request leave to submit such a noncompliant pleading, which the agency contends
the Board erroneously accepted. Id. at 6-8.
2
The agency challenges the timeliness of the appellant’s petitions for review. PFR
File, Tab 8 at 8-10. The Clerk of the Board explained that the appellant filed by
e-Appeal two petitions for review in MSPB Docket No. DA-1221-12-0640-W-6 but then
filed a petition for review in MSPB Docket No. PH-315H-12-0551-I-3, clarifying that
she mistakenly filed this petition for review in MSPB Docket No. DA-1221-12-0640-
W-6 and was therefore refiling it under the appropriate docket number . PFR File,
Tab 7. Though the appellant’s petitions were date and time stamped with Eastern Time,
the Clerk of the Board considered both of the appellant’s petitions for review to have
been timely filed because the appellant filed them by e-Appeal from the Central Time
Zone, and the timeliness of a pleading is assessed based on the time zone from which
the pleading is filed. PFR File, Tab 7; see 5 C.F.R. § 1201.14(m)(1). The agency
identifies no reason on review for us to revisit that determination.
7
¶12 Addressing the agency’s motion, to the extent that the appellant has raised
new issues on review, either in her petition or in her reply to the agency’s
response, the Board generally will not consider them absent a showing that they
are based on new and material evidence not previously available despite her due
diligence. Banks v. Department of the Air Force, 4 M.S.P.R. 268, 271 (1980). In
her reply to the agency’s response, the appellant does not identify any new
evidence, and to the extent that she raises new issues therein, we therefore
have not considered them. As for the length of the appellant’s reply, although it
may be slightly over the word limit for a reply to a response in a single appeal,
because it addresses two joined appeals, we exercise our discretion to waive the
length limitation. In light of these rulings, we deny the agency’s motion to
submit a supplemental pleading.
The administrative judge correctly found that the appellant failed to establish
jurisdiction over her probationary termination appeal.
¶13 Regarding her probationary termination, the appellant essentially reiterates
the arguments she set forth below. She claims that the administrative judge erred
in refusing to consider certain evidence that allegedly would establish that the
agency, rather than Humana/Veritas, hired her in January 2010, such that she had
more than 1 year of current continuous service when the agency terminated her
employment in May 2011. PFR File, Tab 6 at 6-7. She asserts that she is an
employee under common law doctrine and cites an Equal Employment
Opportunity Commission case in support of her assertion. Id. at 7-8 (citing
Carranza v. Department of the Army, EEOC Appeal No. 0120092727, 2010 WL
2029126 (May 11, 2010)). We disagree.
The appellant was not an “employee” with appeal rights under 5 U.S.C.
chapter 75.
¶14 To qualify as an “employee” with appeal rights under 5 U.S.C. chapter 75,
an individual in the competitive service, like the appellant, must show that she
either is not serving a probationary period or has completed 1 year of current
8
continuous service under an appointment other than a temporary one limited to a
year or less. 5 U.S.C. § 7511(a)(1)(A); see McCormick v. Department of the
Air Force, 307 F.3d 1339, 1341-43 (Fed. Cir. 2002); Baggan v. Department of
State, 109 M.S.P.R. 572, ¶ 5 (2008). “Current continuous service” means a
period of employment or service immediately preceding an adverse action without
a break in Federal civilian employment of a workday. Ellefson v. Department of
the Army, 98 M.S.P.R. 191, ¶ 14 (2005).
¶15 The administrative judge correctly determined that the appellant failed to
establish that she was an employee with Board appeal rights because the record
reflects that she was serving in a probationary period at the time of her
termination and she did not have 1 year of current continuous service. ID at 3-5.
As a contractor, the appellant was not appointed as a member of the competitive
or excepted service within the meaning of section 7511(a)(1) and, therefore, her
tenure as a contractor before her civil service appointment is not deemed
creditable for purposes of establishing jurisdiction. ID at 4; Johnson v. Merit
Systems Protection Board, 495 F. App’x 68, 71 (Fed. Cir. 2012) (finding that
employment as a contractor cannot be tacked onto Federal service); 5 C.F.R.
§ 315.802(b) (limiting service that counts toward completing probation to “[p]rior
Federal civilian service”). Consequently, we agree with the administrative
judge’s conclusion that the appellant does not qualify as an “employee” pursuant
to 5 U.S.C. § 7511. ID at 5.
The agency did not remove the appellant for preappointment reasons.
¶16 A probationary employee in the competitive service has a regulatory rig ht
of appeal to the Board if she makes a nonfrivolous allegation that she was
terminated due to discrimination based on marital status or for partisan political
reasons, or because of conditions arising before appointment to the position in
question. Harris v. Department of the Navy, 99 M.S.P.R. 355, ¶ 6 (2005);
5 C.F.R. §§ 315.805-806. Here, the appellant alleged that she was terminated for
preappointment reasons. IAF, Tab 7 at 4-6.
9
¶17 The administrative judge properly found that the agency did not terminate
the appellant for preappointment reasons. ID at 5-8. As the administrative judge
explained in her initial decision, a termination is based on a preappointment
reason when the notice lists a specific example of a preappointment incident and
it relates to the stated reason for the terminatio n. ID at 7. Although the Board
recently found in LeMaster v. Department of Veterans Affairs, 123 M.S.P.R. 453,
¶ 8 (2016), that an individual is entitled to the procedural requirements set forth
in 5 C.F.R. § 315.805 when her termination in based in part on preappointment
reasons, that case is distinguishable from the instant matter. The agency’s
termination notice relied on the appellant’s preappointment probation agreement
and his failure to disclose that the agreement prevented him from performing his
job duties. LeMaster, 123 M.S.P.R. 453, ¶¶ 8, 10 (2010).
¶18 By contrast, the appellant’s termination here was based on her
postappointment failure to attend a meeting in April 2011, as instructed. W-1 AF,
Tab 9 at 30-31. Although the termination letter also referred to the findings of
both the November 2010 and March 2011 AR 15-6 investigations that she
“engage[d] in conduct with co-workers which has been described as
confrontational and aggressive,” we agree with the administrative judge that this
information was not the stated basis for the termination. Id. at 31; ID at 8.
Rather, it was mentioned merely as background information that the deciding
official “also considered.” W-1 AF, Tab 9 at 31.
¶19 On review, the appellant reiterates her claim that the agency terminated her
for preappointment reasons, requiring the agency to afford her the procedural
requirements set forth in 5 C.F.R. § 315.805. PFR File, Tab 6 at 8‑10. Although
the appellant fails to differentiate between the different investigations in her
petition for review, we note that the first AR 15-6 investigation was the only one
that involved the time predating the appellant’s September 27, 2010 appointment
and it did not concern the misconduct cited in her termination notice, i.e., her
alleged “confrontational, aggressive, intimidating, and hostile” con duct toward
10
her coworkers. Compare W-5 AF, Tab 29 at 8, with IAF, Tab 18 at 6-14, 19. By
contrast, the second AR 15-6 investigation began after the appellant’s
September 2010 appointment and almost exclusively concerned events occurring
during her civil service tenure. IAF, Tab 16 at 3, 9-12. Although the report
indicates that the agency undertook the second AR 15-6 investigation in response
to the appellant’s claims of a hostile work environment, which date from before
her civil service appointment, the investigator was unable to corroborate any of
the appellant’s accusations and instead reported that the appellant’s colleagues , in
response to his investigative inquiries, universally described the appellant in
terms similar to if not exactly as set forth in her termination notice, cited above.
Id. at 9-12. Because the only references to inappropriate conduct by the appellant
are in the agency’s report regarding the second AR 15-6 investigation, the record
reflects that the agency terminated the appellant for postappointment reasons.
¶20 Accordingly, we find that the administrative judge correctly found that the
appellant was not entitled to the procedures set forth in 5 C.F.R. § 315.805 upon
her probationary termination. 3
The administrative judge did not abuse her considerable discretion in
ruling on witnesses and evidence.
¶21 The appellant alleges that the administrative judge who held the hearing
failed to consider evidence submitted before the Chief Administrative Judge
transferred the case to her, and further argues that the administrative judge
rejected more than half of her requested witnesses, denying her the ability to fully
develop the merits of her appeal. PFR File, Tab 6 at 10-11. Lastly, the appellant
argues the administrative judge failed to make a proper evidentiary record
regarding evidence she excluded from the hearing. Id. at 12.
3
To the extent that the appellant is attempting to raise a due process arg ument for the
first time on review, we find that we are without jurisdiction to consider this claim.
PFR File, Tab 5 at 14; Burnett v. U.S. Postal Service, 104 M.S.P.R. 308, ¶ 15 (2006).
11
¶22 An administrative judge has broad discretion to regulate the course of the
hearing and to exclude evidence and witnesses that have not been shown to be
relevant, material, and nonrepetitious. E.g., Thomas v. U.S. Postal Service,
116 M.S.P.R. 453, ¶ 4 (2011); Franco v. U.S. Postal Service, 27 M.S.P.R. 322,
325 (1985); 5 C.F.R. § 1201.41(b)(8), (10). To obtain reversal of an initial
decision on these grounds, the petitioning party must show on review that a
relevant witness or evidence, which could have affected the outcome, was
disallowed. See Thomas, 116 M.S.P.R. 453, ¶ 4. Our review of the record
indicates that the Chief Administrative Judge explained the reasons why she
denied each witness, W-5 AF, Tab 44, and the appellant fails to make the required
showing on review of how any of those witnesses would have affected the
outcome. Thus, we find that the appellant failed to show that the administrative
judge abused her discretion in this regard.
¶23 Similarly, the appellant fails to show how a particular exhibit the
administrative judge disallowed, W-5 AF, Tab 55, would have affected the
outcome. Moreover, we note that, contrary to the appellant’s contention on
review, the administrative judge described the exhibit (which involved audio
recordings the appellant surreptitiously made and video of the agency’s location),
in a prehearing conference summary and in a subsequent order. W-5 AF,
Tabs 38, 50. Because the evidence does not show that the appellant received an
appointment to a civil service position prior to September 27, 2010, it is not
relevant to her probationary termination appeal. Based on our review, we find
that the appellant failed to establish that the administrative judge err ed in
excluding this evidence 4 or in her ultimate finding that the appellant failed to
establish jurisdiction over her probationary termination appeal.
4
To the extent that the appellant makes the same argument in the petition for review of
her IRA appeal, PFR File, Tab 5 at 8, we similarly find that she fails to show that the
administrative judge abused her considerable discretion in dis allowing the exhibit.
12
The administrative judge properly denied corrective action as to the appellant’s
claim of whistleblower reprisal.
¶24 The Board has jurisdiction over an IRA appeal if the appellant has
exhausted her administrative remedies before OSC and makes nonfrivolous
allegations that: (1) she engaged in whistleblowing activity by making a
protected disclosure; and (2) the disclosure was a contributing factor in the
agency’s decision to take or fail to take a personnel action. Yunus v. Department
of Veterans Affairs, 242 F.3d 1367, 1371 (Fed. Cir. 2001). In an IRA appeal, the
standard for establishing subject matter jurisdiction and the right to a hearing is
the assertion of a nonfrivolous claim, while the standard for establishing a prima
facie case is that of preponderant evidence. Langer v. Department of the
Treasury, 265 F.3d 1259, 1265 (Fed. Cir. 2001). When an appellant meets her
burden to establish a prima facie case of reprisal for whistleblowing, the burden
shifts to the agency to prove by clear and convincing evidence that it would have
taken the same personnel action(s) in the absence of the appellant’s
whistleblowing. Scoggins v. Department of the Army, 123 M.S.P.R. 592,
¶ 26 (2016).
¶25 The appellant argues that the administrative judge erred in finding that the
agency terminated her for the misconduct cited in the AR 15-6 investigations,
which she contends the agency based on fabricated documents and then concealed
the results. 5 She also reasserts her claim that the agency actually terminated her
employment in reprisal for her protected disclosures. PFR File, Tab 5 at 6-8.
However, as discussed above, the administrative judge properly found that the
basis of the appellant’s termination was her failure to follow instructions to attend
an April 2011 meeting regarding the results of the second AR 15-6 investigation.
ID at 6; W-5 AF, Tab 29 at 7-8. As previously stated, although the termination
notice mentions the AR 15-6 investigations, it does not cite them as a reason for
5
Nevertheless, the appellant concedes on review that the agency produced the
investigative documents as part of the record in these appeals. PFR File, Tab 5 at 7.
13
the appellant’s termination but instead mentions them only in the context of
additional factual background information that the deciding official considered.
W-5 AF, Tab 29 at 7-8.
¶26 The appellant also contends that the agency terminated her only after she
requested a transfer, and not because she failed to attend the AR 15-6
investigation meeting. PFR File, Tab 5 at 8-9. However, the appellant not only
fails to explain why agency officials would seek to terminate her because she
wanted a transfer, it would seem illogical that this was the real basis for the
termination, given that the termination notice indicates that the appellant ’s
request for a transfer was on the agenda for the meeting that she refused to attend.
W-5 AF, Tab 29 at 7‑8. The appellant offers no support for her assertion nor
does she identify any authority that would bring such a claim under the Board’s
jurisdiction and, even if she were to identify such authority, the record does not
reflect that she raised this specific issue with OSC in her complaint to exhaust her
administrative remedies there. IAF, Tab 1 at 20-21; see Ellison v. Merit Systems
Protection Board, 7 F.3d 1031, 1036 (Fed. Cir. 1993) (finding that the test of the
sufficiency of an individual’s charges of whistleblowing to OSC is the statement
that she makes in the complaint requesting corrective action, not her post hoc
characterization of those statements).
¶27 In determining whether an agency has shown by clear and convincing
evidence that it would have taken the same personnel action in the absence of
whistleblowing, the Board will consider the following factors: the strength of the
agency’s evidence in support of its action; the existence and strength of any
motive to retaliate on the part of the agency officials who were involved in the
decision; and any evidence that the agency takes similar actions against
employees who are not whistleblowers but who are otherwise similarly situated.
Carr v. Social Security Administrative, 185 F.3d 1318, 1323 (Fed. Cir. 1999).
The Board does not view these factors as discrete elements, each of which the
agency must prove by clear and convincing evidence, but rather weighs these
14
factors together to determine whether the evidence is clear and convincing as a
whole. Alarid v. Department of the Army, 122 M.S.P.R. 600, ¶ 14 (2015). The
Board must consider all the evidence, including evidence that detracts from the
conclusion that the agency met its burden. Whitmore v. Department of Labor,
680 F.3d 1353, 1368 (Fed. Cir. 2012).
¶28 Regarding the strength of the agency’s evidence in support of its action,
including the testimony provided at the hearing, the record reflects that the
appellant engaged in repeated insubordination, failing to follow orders from
senior leadership to attend meetings called to discuss the results of the second
AR 15-6 investigation. ID at 5-6; W-5 AF, Tab 29 at 7-8. The agency has,
therefore, presented strong evidence in support of the appellant’s termination .
See Miller v. Department of Justice, No. 2015-3149, 2016 WL 7030359 (Fed. Cir.
Dec. 2, 2016) (referring to the agency’s burden as a showing of “independent
causation”). As recounted by the administrative judge, we agree that the
appellant’s defiant refusal to obey orders from senior agency leadership,
especially considering her probationary status, is overwhelming evidence that the
agency certainly would have terminated her during her probationary period in the
absence of her protected whistleblowing activity. ID at 25-26.
¶29 As for the second Carr factor, the strength of any motive to retaliate on the
part of the agency officials who were involved in the decision, the administrative
judge gave serious consideration to the appellant’s overarching claim that the
agency engaged in a pattern of retaliatory conduct against her , analyzing each of
the exchanges which the appellant claimed illustrated her point. ID at 27-36. We
agree with the administrative judge that the appellant’s allegations involving
events that occurred before her protected whistleblowing activity provide little
evidence of whether the agency terminated her in reprisal for those subsequent
disclosures. ID at 27-30. This includes the appellant’s allegations on review
regarding her claims of sexual harassment against an agency commander and of
physical assault against that commander’s wife, both of which allegedly occurred
15
before the appellant’s appointment to the civil service in September 2010. PFR
File, Tab 5 at 6. We also agree that the interactions identified by the appellant
with her immediate supervisor, rather than reflecting the hostility that the
appellant alleged existed between her and her supervisor, instead show that the
appellant’s supervisor exercised extraordinary patience in the face of the
appellant’s steadily increasing level of hostility and disrespect. ID at 30-32. Nor
is there any support in the record for the appellant’s claim that the agency
fabricated the results of its investigation of the February 2011 incident in which
the appellant allegedly raised her voice to staff involved in setting up a video link
for her use, or for her assertion that her supervisor’s directive for all employees to
meet with their supervisors was somehow retaliatory toward her. ID at 33-35.
¶30 The administrative judge recognized that the appellant’s numerous
complaints against management, which she raised “to the highest levels of agency
authority,” could have fostered a motive for agency off icials to retaliate against
her. ID at 35. Nevertheless, the administrative judge found only weak evidence
of any motive to retaliate against the appellant. To that end, the administrative
judge found that the appellant’s supervisor credibly testified at the hearing that he
was unaware of the appellant’s higher‑level complaints until after he decided to
terminate her probationary appointment. The administrative judge also noted that
the supervisor credibly testified that he would have removed any other employee
for disobeying a direct order to report for a meeting with their senior supervisory
officials. ID at 35-36. The Board must defer to an administrative judge’s
credibility determinations when they are based, explicitly or implicitly, on
observing the demeanor of witnesses testifying at a hearing; the Board may
overturn such determinations only when it has “sufficiently sound” reasons for
doing so. Haebe v. Department of Justice, 288 F.3d 1288, 1301 (Fed. Cir. 2002) .
The appellant offers no sufficiently sound reasons for us to upset the
administrative judge’s credibility determinations.
16
¶31 As for the third Carr factor, any evidence that the agency takes similar
actions against employees who are not whistleblowers but who are otherwise
similarly situated, the administrative judge found that the agency’s otherwise
strong evidence regarding the other Carr factors is not undermined by a lack of
evidence concerning the treatment of other employees . Carr, 185 F.3d at 1323.
Although our reviewing court has long held that “Carr does not impose an
affirmative burden on the agency to produce evidence with respect to each and
every one of the three Carr factors to weigh them each individually in the
agency’s favor,” and that “the absence of any evidence relating to Carr factor
three can effectively remove that factor from the analysis,” it also has recently
observed that “the Government’s failure to produce evidence on this factor ‘may
be at the agency’s peril,’ considering the Government’ s advantage in accessing
this type of evidence.” Miller, 2016 WL 7030359, at *3, *8 (quoting
Whitmore,
680 F.3d at 1374).
¶32 The appellant identified two individuals, one of them her supervisor, who
she alleged failed to appear in conjunction with the first of the two AR 15-6
investigations involved here, and she claimed that they suffered no repercussions
for their failure to do so. ID at 26-27. The administrative judge distinguished
these individuals’ behavior because, unlike the meeting the appellant refused to
attend, here the record did not reflect that those individuals’ sixth-line supervisor
(and a commanding General) had directly ordered them to attend the meeting and
that their supervisors telephoned them during the meeting to again demand their
attendance, thereby supporting the agency’s three witnesses’ testimony that the
appellant’s refusal amounted to an “extremely serious” act of misconduct . ID
at 25‑26; W-5 AF, Hearing Compact Disc. Further, the earlier meeting the
appellant refused to attend was called by the investigator as part of his inquiry,
while the second meeting the appellant refused to attend was called by senior
leadership to discuss the results of an investigation, thus aggravating the nature of
her adamant refusal to attend. ID at 26-27. Thus, the appellant’s assertions
17
do not support an analogy to her situation. Moreover, unlike the situation the
U.S. Court of Appeals for the Federal Circuit analyzed in Miller, 2016 WL
7030359, at *8, the agency’s evidence on the first and second Carr factors here is
strong and, in our estimation, more than makes up for any dearth of evidence on
the third Carr factor.
¶33 Accordingly, we agree with the administrative judge’s extensive and
thorough analysis, in which she found that the agency established by clear and
convincing evidence that it would have terminated the appellant during her
probationary period in the absence of her protected whistleblowing a ctivity and
so she therefore was not entitled to corrective action.
NOTICE TO THE APPELLANT REGARDING
YOUR FURTHER REVIEW RIGHTS
You have the right to request review of this final decision by the
U.S. Court of Appeals for the Federal Circuit.
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 U.S. 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
18
Board’s decision in the U.S. 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 f rom 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 U.S. 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 U.S. Code, at our
website, http://www.mspb.gov/appeals/uscode.htm. Additional information about
the U.S. Court of Appeals for the Federal Circuit is available at the court’s
website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide
for Pro Se Petitioners and Appellants,” which is contained within the court’s
Rules of Practice, and Forms 5, 6, and 11. Additional information about other
courts of appeals can be found at their respective websites, which can be accessed
through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
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: ______________________________
Jennifer Everling
Acting Clerk of the Board
Washington, D.C.
