UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD
LUPITA GALLEGOS, DOCKET NUMBER Appellant, DE-1221-22-0304-W-1
v.
DEPARTMENT OF COMMERCE, DATE: August 19, 2024 Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Steven R. Simon , Esquire, Glendale, Arizona, for the appellant.
Naseam Jabberi , Esquire, and David M. Brown , 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 denied corrective action in her individual right of action appeal. On petition for review, the appellant, among other things, challenges the administrative judge’s
1 A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case law. Parties may cite nonprecedential orders, but such orders have no precedential value; the Board and administrative judges are not required to follow or distinguish them in any future decisions.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
credibility determinations and argues that the administrative judge gave inappropriate weight to hearsay evidence without assessing its probative value . 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. 2 5 C.F.R. § 1201.113(b). ¶2 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). Because the appellant has not offered such sufficiently sound reasons here, we decline to
2 Though the appellant claims that her disclosure of an official’s recording of appointment dates the agency allegedly could not honor evidenced falsification, she conceded the possibility that the agency honored those appointment dates during the hearing. Initial Appeal File, Hearing Transcript at 78-79 (testimony of the appellant). We find that the appellant’s purported belief that the official falsified the dates was thus not reasonable, and that her disclosure was not protected under 5 U.S.C. § 2302(b)(8). See Turner v. Department of Agriculture , 2023 MSPB 25, ¶ 14 (stating that a protected disclosure is one an appellant reasonably believes evidences a category of wrongdoing listed in 5 U.S.C. § 2302(b)(8)(A)). 3
disturb the administrative judge’s credibility findings. Petition for Review (PFR) File, Tab 1 at 11-12. ¶3 The appellant argues that the administrative judge erroneously credited certain hearsay evidence over her hearing testimony without assessing the hearsay’s probative value, as required in Borninkhof v. Department of Justice, 5 M.S.P.R. 77, 87 (1981). PFR File, Tab 1 at 11. We disagree. Though she did not cite Borninkhof, the administrative judge discussed evidence corroborating the appellant’s coworker’s account of their February 2020 altercation before crediting that account over the appellant’s testimony. Initial Appeal File, Tab 30, Initial Decision (ID) at 9, 24-25, 33-34. We thus find that the administrative judge appropriately assessed the probative value of the coworker’s hearsay statement. See Borninkhof, 5 M.S.P.R. at 87 (stating that factors to consider in assessing the probative value of hearsay evidence include whether corroboration for statements can be found in the record). In the remainder of the instances the appellant raises in her petition for review, her own live testimony corroborated the hearsay evidence; the hearsay’s probative value was thus not at issue. 3 See id. at 89-90 (finding that the probative value of hearsay evidence was not at issue when it was not materially disputed).
3 In her reply to the agency’s response to her petition for review, the appellant discusses two additional examples of hearsay evidence, which she argues were rebutted by her testimony. PFR File, Tab 1 at 11, Tab 4 at 5-6. Even if the agency did rely on the hearsay evidence the appellant discusses to prove the underlying events, we agree with the administrative judge’s determinations that the appellant’s testimony regarding those events, considering the surrounding evidence, was not credible. ID at 36-37. To the extent the appellant requests that we reverse the administrative judge’s credibility determinations through this claim, we find that she has not provided sufficiently sound reasons for doing so. See Haebe, 288 F.3d at 1301. 4
NOTICE OF APPEAL RIGHTS 4 You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By statute, the nature of your claims determines the time limit for seeking such review and the appropriate forum with which to file. 5 U.S.C. § 7703(b). Although we offer the following summary of available appeal rights, the Merit Systems Protection Board does not provide legal advice on which option is most appropriate for your situation and the rights described below do not represent a statement of how courts will rule regarding which cases fall within their jurisdiction. If you wish to seek review of this final decision, you should immediately review the law applicable to your claims and carefully follow all filing time limits and requirements. Failure to file within the applicable time limit may result in the dismissal of your case by your chosen forum. Please read carefully each of the three main possible choices of review below to decide which one applies to your particular case. If you have questions about whether a particular forum is the appropriate one to review your case, you should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking judicial review of a final Board order must file a petition for review with the U.S.
Free access — add to your briefcase to read the full text and ask questions with AI
UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD
LUPITA GALLEGOS, DOCKET NUMBER Appellant, DE-1221-22-0304-W-1
v.
DEPARTMENT OF COMMERCE, DATE: August 19, 2024 Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Steven R. Simon , Esquire, Glendale, Arizona, for the appellant.
Naseam Jabberi , Esquire, and David M. Brown , 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 denied corrective action in her individual right of action appeal. On petition for review, the appellant, among other things, challenges the administrative judge’s
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
credibility determinations and argues that the administrative judge gave inappropriate weight to hearsay evidence without assessing its probative value . 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. 2 5 C.F.R. § 1201.113(b). ¶2 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). Because the appellant has not offered such sufficiently sound reasons here, we decline to
2 Though the appellant claims that her disclosure of an official’s recording of appointment dates the agency allegedly could not honor evidenced falsification, she conceded the possibility that the agency honored those appointment dates during the hearing. Initial Appeal File, Hearing Transcript at 78-79 (testimony of the appellant). We find that the appellant’s purported belief that the official falsified the dates was thus not reasonable, and that her disclosure was not protected under 5 U.S.C. § 2302(b)(8). See Turner v. Department of Agriculture , 2023 MSPB 25, ¶ 14 (stating that a protected disclosure is one an appellant reasonably believes evidences a category of wrongdoing listed in 5 U.S.C. § 2302(b)(8)(A)). 3
disturb the administrative judge’s credibility findings. Petition for Review (PFR) File, Tab 1 at 11-12. ¶3 The appellant argues that the administrative judge erroneously credited certain hearsay evidence over her hearing testimony without assessing the hearsay’s probative value, as required in Borninkhof v. Department of Justice, 5 M.S.P.R. 77, 87 (1981). PFR File, Tab 1 at 11. We disagree. Though she did not cite Borninkhof, the administrative judge discussed evidence corroborating the appellant’s coworker’s account of their February 2020 altercation before crediting that account over the appellant’s testimony. Initial Appeal File, Tab 30, Initial Decision (ID) at 9, 24-25, 33-34. We thus find that the administrative judge appropriately assessed the probative value of the coworker’s hearsay statement. See Borninkhof, 5 M.S.P.R. at 87 (stating that factors to consider in assessing the probative value of hearsay evidence include whether corroboration for statements can be found in the record). In the remainder of the instances the appellant raises in her petition for review, her own live testimony corroborated the hearsay evidence; the hearsay’s probative value was thus not at issue. 3 See id. at 89-90 (finding that the probative value of hearsay evidence was not at issue when it was not materially disputed).
3 In her reply to the agency’s response to her petition for review, the appellant discusses two additional examples of hearsay evidence, which she argues were rebutted by her testimony. PFR File, Tab 1 at 11, Tab 4 at 5-6. Even if the agency did rely on the hearsay evidence the appellant discusses to prove the underlying events, we agree with the administrative judge’s determinations that the appellant’s testimony regarding those events, considering the surrounding evidence, was not credible. ID at 36-37. To the extent the appellant requests that we reverse the administrative judge’s credibility determinations through this claim, we find that she has not provided sufficiently sound reasons for doing so. See Haebe, 288 F.3d at 1301. 4
NOTICE OF APPEAL RIGHTS 4 You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By statute, the nature of your claims determines the time limit for seeking such review and the appropriate forum with which to file. 5 U.S.C. § 7703(b). Although we offer the following summary of available appeal rights, the Merit Systems Protection Board does not provide legal advice on which option is most appropriate for your situation and the rights described below do not represent a statement of how courts will rule regarding which cases fall within their jurisdiction. If you wish to seek review of this final decision, you should immediately review the law applicable to your claims and carefully follow all filing time limits and requirements. Failure to file within the applicable time limit may result in the dismissal of your case by your chosen forum. Please read carefully each of the three main possible choices of review below to decide which one applies to your particular case. If you have questions about whether a particular forum is the appropriate one to review your case, you should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking judicial review of a final Board order must file a petition for review with the U.S. Court of Appeals for the Federal Circuit, which must be received by the court within 60 calendar days of the date of issuance of this decision. 5 U.S.C. § 7703(b)(1)(A).
4 Since the issuance of the initial decision in this matter, the Board may have updated the notice of review rights included in final decisions. As indicated in the notice, the Board cannot advise which option is most appropriate in any matter. 5
If you submit a petition for review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439
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, 10, and 11. 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 Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of discrimination . This option applies to you only if you have claimed that you were affected by an action that is appealable to the Board and that such action was based, in whole or in part, on unlawful discrimination. If so, you may obtain judicial review of this decision—including a disposition of your discrimination claims —by filing a civil action with an appropriate U.S. district court ( not the U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems Protection Board, 582 U.S. 420 (2017). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the district court no later than 30 calendar days after your representative receives this decision. If the action involves a claim of discrimination based on 6
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. Contact information for U.S. district courts can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . Alternatively, you may request review by the Equal Employment Opportunity Commission (EEOC) of your discrimination claims only, excluding all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the EEOC’s Office of Federal Operations within 30 calendar days after you receive this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the EEOC no later than 30 calendar days after your representative receives this decision. If you submit a request for review to the EEOC 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 a request for review to the EEOC 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, N.E. Suite 5SW12G Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection Enhancement Act of 2012 . This option applies to you only if you have raised claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or 7
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D). If so, and your judicial petition for review “raises no challenge to the Board’s disposition of allegations of a prohibited personnel practice described in section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either with the U.S. Court of Appeals for the Federal Circuit or any court of appeals of competent jurisdiction. 5 The court of appeals must receive your petition for review within 60 days of the date of issuance of this decision. 5 U.S.C. § 7703(b)(1)(B). If you submit a petition for judicial review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439
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, 10, and 11. 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
5 The original statutory provision that provided for judicial review of certain whistleblower claims by any court of appeals of competent jurisdiction expired on December 27, 2017. The All Circuit Review Act, signed into law by the President on July 7, 2018, permanently allows appellants to file petitions for judicial review of MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals for the Federal Circuit or any other circuit court of appeals of competent jurisdiction. The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195, 132 Stat. 1510. 8
Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. Contact information for the 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 .
FOR THE BOARD: ______________________________ Gina K. Grippando Clerk of the Board Washington, D.C.