Jean Germain v. Federal Reserve System

CourtMerit Systems Protection Board
DecidedJuly 29, 2024
DocketNY-0752-21-0042-I-1
StatusUnpublished

This text of Jean Germain v. Federal Reserve System (Jean Germain v. Federal Reserve System) is published on Counsel Stack Legal Research, covering Merit Systems Protection Board primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Jean Germain v. Federal Reserve System, (Miss. 2024).

Opinion

UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD

JEAN R. GERMAIN, DOCKET NUMBER Appellant, NY-0752-21-0042-I-1

v.

FEDERAL RESERVE SYSTEM, DATE: July 29, 2024 Agency.

THIS FINAL ORDER IS NONPRECEDENTIAL 1

Jean R. Germain , Princeton, New Jersey, pro se.

Sarah Preis , Esquire, and Kelsie Williams , Esquire, Washington, D.C., for the agency.

BEFORE

Cathy A. Harris, Chairman Raymond A. Limon, Vice Chairman Henry J. Kerner, Member*

*Member Kerner did not participate in the adjudication of this appeal.

FINAL ORDER

¶1 The appellant has filed a petition for review of the initial decision, which affirmed his removal. On petition for review, the appellant challenges the administrative judge’s handling of his equal employment opportunity (EEO) reprisal claim, and he argues that the administrative judge improperly denied him

1 A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case law. Parties may cite nonprecedential orders, but such orders have no precedential value; the Board and administrative judges are not required to follow or distinguish them in any future decisions.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

an opportunity to present evidence and call witnesses and was biased against him. Petition for Review (PFR) File, Tab 1 at 6. He also submits several documents with his petition for review. Id. at 10-33. Generally, we grant petitions such as this one only in the following circumstances: 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 judge’s rulings during either the course of the appeal or the initial decision were not consistent with required procedures or involved an abuse of discretion, and the resulting error affected the outcome of the case; or new and material evidence or legal argument is available that, despite the petitioner’s due diligence, was not available when the record closed. Title 5 of the Code of Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). After fully considering the filings in this appeal, we conclude that the petitioner has not established any basis under section 1201.115 for granting the petition for review. Therefore, we DENY the petition for review and AFFIRM the initial decision, which is now the Board’s final decision. 5 C.F.R. § 1201.113(b). ¶2 The administrative judge correctly found that the agency proved the charges of disrespectful conduct and making an inflammatory statement by preponderant evidence, that a nexus exists between the misconduct and the efficiency of the service, and that the penalty of removal was reasonable. Initial Appeal File (IAF), Tab 109, Initial Decision (ID) at 4-13, 16-17. She also correctly found that the appellant failed to establish any of his affirmative defenses, which include a claim of a due process violation, discrimination based on his military 3

status, 2 and reprisal for engaging in EEO activity and filing an Office of Workers’ Compensation Programs (OWCP) claim. 3 ID at 13-16.

We discern no basis to disturb the administrative judge’s finding that the appellant failed to establish his EEO reprisal claim. ¶3 In the initial decision, the administrative judge concluded that the record did not support a finding that the removal action was “taken because of” the appellant’s EEO activity. ID at 16. The appellant argues on review that the administrative judge should have consolidated his Board appeal with his Equal Employment Opportunity Commission (EEOC) appeal because the two appeals are “connected” and should have been consolidated for evidentiary purposes. PFR File, Tab 1 at 6. This argument is without merit, as the Board and the EEOC are separate tribunals with separate processes and do not consolidate cases. ¶4 Additionally, the appellant argues that the administrative judge failed to consider the cat’s paw theory or whether the evidence demonstrated a convincing mosaic of retaliation. Id. Neither argument provides a basis to disturb the initial decision. Under the cat’s paw theory, an appellant can show retaliation by showing that a particular management official, acting because of an improper 2 The appellant has also filed a Uniformed Services Employment and Reemployment Rights Act (USERRA) appeal, which is pending before the Board on petition for review following remand, and will be addressed in a separately issued decision. Germain v. Federal Reserve System, MSPB Docket No. NY-4324-21-0117-B-1, Petition for Review File, Tab 1. 3 In the appellant’s arguments below regarding reprisal, he references an Office of the Inspector General complaint as well as disclosures regarding harassment. IAF, Tab 21 at 5, 11-12. Although the administrative judge provided the appellant notice of how to prove a whistleblower reprisal claim, she did not address any such claim in the initial decision. The appellant has not raised this as an issue on review. PFR File, Tab 1. Given that the focus of the appellant’s reprisal claims is largely concentrated around his EEO activity, the fact he did not further elaborate on his already vague and underdeveloped whistleblower reprisal allegations following the administrative judge’s notice, and the fact that he did not challenge the administrative judge’s decision to omit a discussion of whistleblower reprisal from the initial decision, we conclude that a remand is not necessary on this issue. See Thurman v. U.S. Postal Service, 2022 MSPB 21, ¶ 18 (setting forth a nonexhaustive list of factors to consider in determining whether an appellant waived an affirmative defense or whether an administrative judge’s handling of an affirmative defense warrants remand). 4

animus, influences an agency official who is unaware of the improper animus when implementing a personnel action. See Aquino v. Department of Homeland Security, 121 M.S.P.R. 35, ¶ 19 (2014). Here, according to the appellant, the management official with the alleged improper animus was his supervisor, who is also the official who proposed his removal. Thus, the supervisor was directly involved in implementing the personnel action and the administrative judge considered whether that official had improper motives. Accordingly, the cat’s paw theory does not apply. Additionally, although the appellant is correct that the administrative judge did not discuss whether the evidence demonstrated a “convincing mosaic” of retaliation, the Board has explained that not all types of evidence or ways of viewing the evidence will be applicable in every case. See Wilson v. Small Business Administration, 2024 MSPB 3, ¶ 12; Pridgen v. Office of Management and Budget, 2022 MSPB 31, ¶ 24. To the extent the appellant is arguing that the administrative judge did not adequately address all the evidence of record, the Board has explained that an administrative judge’s failure to mention all the evidence of record does not mean that she did not consider it in reaching her conclusion. 4 See Marques v. Department of Health and Human Services, 22 M.S.P.R. 129, 132 (1984), aff’d, 776 F.2d 1062 (Fed. Cir. 1985) (Table). Based on our review of the record, we discern no basis to disturb the administrative judge’s finding that the appellant failed to establish this affirmative defense.

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Jean Germain v. Federal Reserve System, Counsel Stack Legal Research, https://law.counselstack.com/opinion/jean-germain-v-federal-reserve-system-mspb-2024.