UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD
NATACHA LAMOUR, DOCKET NUMBER Appellant, AT-0752-23-0067-B-1
v.
DEPARTMENT OF HOMELAND DATE: August 14, 2026 SECURITY, Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Thomas Tierney , Esquire, Norwalk, Connecticut, for the appellant.
Dalia M. Garcia , Esquire, Miami, Florida for the agency.
BEFORE
Henry J. Kerner, Vice Chairman James J. Woodruff II, Member
FINAL ORDER
The appellant has filed a petition for review of the remand initial decision, which affirmed her removal. 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
1 A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case law. Parties may cite nonprecedential orders, but such orders have no precedential value; the Board and administrative judges are not required to follow or distinguish them in any future decisions.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).
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. Except as expressly MODIFIED to clarify why the appellant’s affirmative defenses are unavailing, we AFFIRM the initial decision. 5 C.F.R. § 1201.113(b).
BACKGROUND
This appeal is back before the Board following an August 26, 2024 Remand Order. The appellant was employed with the agency as a Supervisory Immigration Services Officer, GS-14, in Atlanta, Georgia. Lamour v. Department of Homeland Security, MSPB Docket No. AT-0752-23-0067-I-1, Initial Appeal File (IAF), Tab 5 at 13. Effective October 22, 2022, the agency removed her based on charges of failure to follow supervisory instructions (21 specifications), failure to follow policy (4 specifications), and neglect of duty (2 specifications). 2 Id. at 15; IAF, Tab 8.
Thereafter, the appellant filed an appeal with the Board challenging her removal and asserting that the action was the result of discrimination and reprisal for engaging in equal employment opportunity (EEO) activity. IAF, Tab 1, Tab 53 at 2. After holding the appellant’s requested hearing, the administrative judge issued an initial decision affirming the removal. IAF, Tab 57, Initial
2 Details of the specifications are set forth in the administrative judge’s May 18, 2023 Initial Decision and briefly summarized in the Board’s August 26, 2024 Remand Order. IAF, Tab 57, Initial Decision (ID) at 3-7, 9-11; Lamour v. Department of Homeland Security, MSPB Docket No. AT-0752-23-0067-I-1, Remand Order (Aug. 26, 2024).
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Decision (ID). He found that the agency proved each specification under each charge, based largely on the appellant’s admissions about the underlying facts. ID at 3-13. He also found that the appellant did not prove her claim of race discrimination or reprisal for engaging in EEO activity. ID at 13-17. Finally, he found that the agency met its burden of proving that the penalty of removal for the sustained misconduct bears a nexus to the efficiency of the service and is reasonable. ID at 17-19.
The appellant filed a petition for review of the initial decision. Petition for Review (PFR) File, Tab 3. On August 26, 2024, the Board issued a decision finding that the administrative judge failed to properly consider the full scope of the appellant’s discrimination claim and to make the necessary credibility determinations related thereto. Lamour v. Department of Homeland Security, MSPB Docket No. AT-0752-23-0067-I-1, Remand Order, ¶¶ 7-18 (Aug. 26, 2024) (Remand Order). Specifically, the Board concluded that the administrative judge did not consider the appellant’s claim that, in addition to race, the agency discriminated against her based on her national origin, which is Haitian. Id., ¶¶ 7-13. The Board also concluded that the administrative judge’s analysis of the appellant’s EEO reprisal claim was incomplete. Id., ¶¶ 19-21. Regarding the penalty of removal, the Board explained that the administrative judge should have examined whether the deciding official considered the nature of the appellant’s workplace when deciding on the appropriate penalty. Id., ¶¶ 22, 24. Accordingly, the Board remanded the appeal with instructions for the administrative judge to reconsider the appellant’s national origin discrimination and EEO reprisal claims and, if necessary, the reasonableness of the penalty of removal. Id., ¶¶ 27-29. The Board also instructed the administrative judge to determine whether a supplemental hearing was necessary. Id., ¶ 30.
During the remand proceedings, the administrative judge determined that a supplemental hearing was necessary, and the parties filed prehearing submissions, inclusive of additional exhibits. However, the appellant later requested that the
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appeal be decided on the written record, and she withdrew her request for a hearing. Lamour v. Department of Homeland Security, MSPB Docket No. AT-0752-23-0067-B-1, Remand File (RF), Tabs 3, 8-10. Prior to the close of record, the appellant objected to the agency’s inclusion of additional declarations related to her discrimination claims. RF, Tab 10.
On February 18, 2025, the administrative judge issued a remand initial decision again affirming the appellant’s removal. RF, Tab 15, Remand Initial Decision (RID). He addressed the appellant’s objection to the agency’s inclusion of additional declarations in the remand record, concluding that the Board’s explicit authorization of a supplemental hearing included his ability to receive additional evidence. RID at 2. Thus, he denied the appellant’s objection. RID at 3. Regarding the appellant’s national origin discrimination claim, the administrative judge assessed, in detail, the credibility of the appellant and her witnesses, as well as the agency’s witnesses as it relates to the appellant’s allegations. RID at 6-9. He ultimately found the agency’s witnesses more credible, and therefore, found that the record did not reveal any evidence of race, color, ethnicity, or national origin discrimination. RID at 9-10. The administrative judge also examined the Board’s analysis and reasoning for remanding the appellant’s EEO reprisal claim, but he “perceive[d] no valid basis to reconsider [his] previous conclusion” that the appellant failed to prove her EEO reprisal claim. RID at 10-11. Finally, regarding the penalty of removal, the administrative judge concluded that the deciding official recognized that stress and tension existed in the appellant’s workplace but found that it did not excuse her misconduct or overcome its severity. RID at 13. As such, he “confirm[ed]” his finding that the deciding official considered the relevant Douglas 3 factors, and
3 Douglas v. Veterans Administration, 5 M.S.P.R. 280, 305-06 (1981) (articulating a nonexhaustive list of factors relevant to determining the reasonableness of an agency’s penalty selection).
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that any mitigating factors did not outweigh the seriousness of the appellant’s misconduct or warrant mitigation of the removal penalty. RID at 14.
The appellant has filed a petition for review of the remand initial decision.
Remand Petition for Review (RPFR) File, Tab 1. She reasserts her claim that the administrative judge improperly accepted new evidence into the remand record, and she challenges the administrative judge’s credibility determinations related to her national origin discrimination claim. Id. at 6-13. Regarding her EEO reprisal claim, she asserts on review that the administrative judge should have considered whether her supervisor, who was the subject of her EEO complaint, improperly influenced the removal process. Id. at 13-14. Finally, she claims that the administrative judge abused his discretion by failing to engage in an independent review of the mitigating Douglas factors to determine if the penalty of removal was reasonable. Id. at 14-16. The agency has responded to the appellant’s remand petition for review, and the appellant has replied. RPFR File, Tabs 3-4.
DISCUSSION OF ARGUMENTS ON REVIEW In the Board’s Remand Order, we explained that the administrative judge could incorporate his prior findings regarding the charges, if appropriate, into the remand initial decision. Remand Order, ¶ 30. In the remand initial decision, the administrative judge found that the evidence and argument on remand did not affect his previous analysis concerning the merits of the agency’s case. RID at 1-2 n.1. As such, he stated that his findings sustaining the agency’s charges were unchanged. Id. The appellant does not challenge this in her remand petition for review. RPFR File, Tab 1. Additionally, as noted, the administrative judge found in the original initial decision that the agency proved a nexus between the appellant’s removal and the efficiency of the service. ID at 17-18. The appellant does not challenge this finding at any point, and we discern no basis to disturb the administrative judge’s findings regarding the charges or nexus. The scope of this order concerns only the appellant’s challenge to the acceptance of additional
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evidence in the remand proceedings, her national origin discrimination and EEO reprisal affirmative defenses, and the penalty of removal. Ultimately, we discern no basis to disturb the administrative judge’s decision to affirm the appellant’s removal.
The administrative judge did not abuse his discretion in accepting additional evidence during the remand proceedings.
During the remand proceedings, the agency filed with its prehearing submission several declarations from agency employees and officials, some of whom had previously testified at the hearing prior to the Board’s Remand Order. RF, Tab 8 at 66, Tab 12 at 7-20. As previously explained, the appellant objected to the agency’s submission of new statements, but the administrative judge denied the objection in the remand initial decision. RF, Tab 11; RID at 1-2. The appellant asserts on review that the administrative judge abused his discretion when he allowed the agency to introduce new evidence during the remand proceedings because the agency did not show that the statements were previously unavailable during the original hearing and some of the statements were from employees who were not on the approved witness list for the original hearing. 4 RPFR File, Tab 1 at 6.
Although the appellant is correct that an administrative judge will not ordinarily accept new evidence or argument into the record without a showing that it was not readily available before the record closed, see 5 C.F.R. § 1201.59(c), the evidentiary record in this appeal reopened upon the Board’s August 26, 2024 Remand Order. As correctly explained by the administrative
4 The appellant also states on review that the declarations “present problems because they are selective as to content and because they are not subject to cross-examination.” RPFR File, Tab 1 at 7. Additionally, she argues that the statements “could be signed by employees who fear reprisal from or desire to curry the favor of supervisors or managers.” Id. These arguments are without merit. The appellant herself waived the supplemental hearing in favor of a remand initial decision on the written record. RF, Tab 10 at 1. In doing so, she gave up her right and ability to cross-examine any of the witnesses who provided the declarations she challenges on review.
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judge, the Board authorized a supplemental hearing on remand and further explained that “[i]f the evidence or argument on remand” affected other portions of the administrative judge’s analysis, he should address that evidence or argument in a remand initial decision. Remand Order, ¶ 30 & n.5. The administrative judge correctly interpreted that language to broadly include his ability to receive additional evidence. RID at 2. Similarly, the Board’s regulations provide an administrative judge with the authority to receive relevant evidence. See 5 C.F.R. § 1201.41(b)(3). Further, in the administrative judge’s September 30, 2024 Order and Notice of Prehearing and Prehearing Conference, he provided the parties with an opportunity to re-engage in discovery—a process designed to obtain relevant information leading to admissible evidence—and the appellant engaged in that post-remand discovery, even filing a motion to compel, which the administrative judge partially granted. RF, Tabs 3-4, 7; see 5 C.F.R. § 1201.72(a). Moreover, the appellant indicated in her prehearing submission in the remand proceedings, which she filed before she withdrew her request for a supplemental hearing, that she intended to call witnesses to testify at the supplemental hearing and planned to include the agency’s discovery responses as additional exhibits. RF, Tab 9. Thus, the appellant herself intended to introduce additional evidence during the remand proceedings. Based on the foregoing, we find that the administrative judge did not abuse his discretion in accepting additional evidence into the remand record. The appellant’s arguments to the contrary do not provide a basis to disturb the remand initial decision.
We agree with the administrative judge’s conclusion that the appellant failed to establish her national origin discrimination claim, as modified.
As we summarized in our Remand Order, the gravamen of the appellant’s national origin discrimination claim is that her direct supervisor, who held the position of Field Office Director, repeatedly made discriminatory remarks related to the appellant’s race, ethnicity, and national origin, which is Haitian. Examples of such remarks include the appellant’s allegation that the Field Office Director
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told the appellant that she “wasn’t [B]lack enough” because the appellant would not assist in her discrimination against non-Black employees. IAF, Tab 46 at 5. The appellant also testified at the hearing that the Field Office Director made fun of her Haitian accent with another employee. IAF, Tab 56-10, Hearing Transcript (HT) at 189, 216-17. In total, four witnesses, including the appellant, testified on the appellant’s behalf, and four witnesses, including the Field Office Director, testified for the agency in rebuttal of the appellant’s discrimination claims. As noted, the agency also submitted eight declarations during the remand proceedings, including six from employees that did not previously testify at the hearing. RF, Tab 8 at 66, Tab 12 at 7-20.
In the remand initial decision, the administrative judge appropriately acknowledged that his determination as to whether the appellant’s removal was motivated by unlawful factors such as discrimination 5 turned on whose testimony he found more credible. RID at 6. He applied the nonexhaustive list of factors set forth in Hillen v. Department of the Army, 35 M.S.P.R. 453, 458 (1987) for an administrative judge to consider in assessing witness credibility, which include the following: (1) the witness’s opportunity and capacity to observe the event or act; (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. 6 The administrative judge determined that the first three factors were “neutral,” and he proceeded to discuss, at length, the remaining four factors. RID at 6-9. After detailed analysis, he found that each of those factors favored the agency. Specifically regarding witness demeanor, the administrative judge explained that he found the Field Office Director’s “testimonial demeanor to be
5 In Pridgen v. Office of Management and Budget, 2022 MSPB 31, ¶¶ 20-25, the Board explained that, to prove an affirmative defense of Title VII discrimination, including race, ethnicity, and national origin discrimination, an appellant must show that discrimination was a motiving factor in or a but-for cause of the agency’s action.
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calm, candid, and straightforward,” while he found the appellant’s demeanor to be “both extreme and erratic.” RID at 9. Accordingly, he found that the appellant’s discrimination claim, including her national origin discrimination claim, “is not supported by credible preponderant evidence.” Id.
On review, the appellant asserts that the administrative judge’s credibility determinations were improper, and she urges the Board to reweigh the evidence related to her discrimination claim. RPFR File, Tab 1 at 8-13. It is well settled that, when an administrative judge has held a hearing and has made credibility determinations that were, as is the case here, explicitly or implicitly based on witness demeanor, the Board must defer to those credibility determinations and may overturn such determinations only when it has “sufficiently sound” reasons for doing so. Purifoy v. Department of Veterans Affairs, 838 F.3d 1367, 1372-73 (Fed. Cir. 2016); Haebe v. Department of Justice, 288 F.3d 1288, 1301 (Fed. Cir. 2002). Sufficiently sound reasons for overturning an administrative judge’s demeanor-based credibility determinations include circumstances when the administrative judge’s findings are incomplete, inconsistent with the weight of the evidence, and do not reflect the record as a whole. Wallace v. Department of Commerce, 106 M.S.P.R. 23, ¶ 14 (2007); see Karnes v. Department of Justice, 2023 MSPB 12, ¶ 13.
The appellant’s challenges to the administrative judge’s credibility determinations can be distilled to two primary arguments: 7 (1) the administrative judge should not have credited the declarations because the witnesses did not testify at the hearing; and (2) the administrative judge’s analysis of the Hillen
6 The administrative judge’s reliance on Hillen for his credibility determinations in a remand proceeding for which no supplemental hearing was held is nonetheless proper because he was the same administrative judge who observed witness testimony in the initial hearing and, thus, is still in the best position to determine issues of credibility. See Haebe v. Department of Justice, 288 F.3d 1288, 1299-01 (Fed. Cir. 2002) (explaining that the administrative judge who observed the demeanor of witnesses testifying at a hearing is in the best position to determining which witnesses were testifying credibly).
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factor concerning the inherent improbability of the appellant’s version of events was improper. RPFR File, Tab 1 at 8-13. We will address each in turn.
In assessing the Hillen factor concerning the contradiction of the witness’s version of events by other evidence or its consistency with other evidence, the administrative judge considered the declarations from agency employees submitted during the remand proceedings to be “particularly significant” because both employees, “like the appellant, identified as Black and of Haitian national origin.” RID at 8. Both employees denied observing the Field Office Director harass anyone or make racially-charged or inappropriate statements. RF, Tab 8 at 66, Tab 12 at 7. In her remand petition for review, the appellant argues that the affidavits are not credible because “there was no indication that any of the employees who gave [declarations] were present” for any of the meetings during which the Field Office Director allegedly made the remarks at issue. RPFR File, Tab 1 at 9. Such an argument, however, goes to the weight to be afforded those declarations and not to the credibility of the statements contained therein. See Borninkhof v. Department of Justice, 5 M.S.P.R. 77, 83-84 (1981) (setting forth a nonexhaustive list of factors for the Board to analyze in assessing the probative value of hearsay evidence). We discern no error in the administrative judge’s decision to afford the hearsay statements weight, as they are otherwise consistent with hearing testimony from agency witnesses.
7 The appellant also disagrees with the administrative judge’s characterization of two of the appellant’s witnesses’ testimony. RPFR File, Tab 1 at 11-12. In the remand initial decision, the administrative judge stated that, although one of the appellant’s witnesses testified regarding hostile behavior by the Field Office Director, that witness was “clearly uncertain as to any discriminatory animus.” RID at 7 n.2. He also explained that another one of the appellant’s witnesses provided “only lukewarm testimony” regarding possible animus against White people. Id. Accordingly, he concluded that neither testimony directly corroborated the appellant’s specific claim of discrimination based on national origin. Id. We have reviewed the record, and we discern no indication that the administrative judge’s description of the testimony and related conclusion are inaccurate, inconsistent with the record, or otherwise improper. The appellant’s arguments in this regard do not provide a basis to overturn the administrative judge’s credibility determinations or disturb the initial decision.
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The appellant also argues that the administrative judge’s demeanor-based credibility determinations regarding the witnesses who submitted declarations are improper because the witnesses did not testify at the original hearing, and there would be no demeanor for the administrative judge to observe. RPFR File, Tab 1 at 10. This argument, however, reflects a misreading of the remand initial decision. Although the administrative judge did discuss the declarations submitted during the remand proceedings in his Hillen analysis, which is typically applied to assess witness credibility during a hearing, the only demeanor-based credibility determinations contained in the remand initial decision concern witnesses who actually testified at the original hearing, such as the appellant, the Field Office Director, and a witness testifying on behalf of the appellant. RID at 9. The remand initial decision does not contain any demeanor -based credibility determinations regarding those witnesses who only submitted declarations.
As briefly noted, the appellant also argues that the administrative judge’s analysis of the inherent improbability of the appellant’s version of events was improper. RPFR File, Tab 1 at 12-13. In the remand initial decision, the administrative judge found it inherently improbable that the Field Office Director would make the sort of statements attributed to her by the appellant because “[s]uch statements would amount to a clear admission of illegal conduct,” and while he acknowledged that discriminatory attitudes do exist, he further reasoned that “the kind of blatant proclamations of prejudice alleged by the appellant here are all but non-existent among [F]ederal agency management officials.” RID at 8-9. The appellant asserts that this reasoning is “flawed” and “naïve.” RPFR File, Tab 1 at 12. We agree.
The alleged illegality of the statements does not render them any more or less probable, and rejecting them based, in part, on generalized assumptions about Federal managers is improper. Nonetheless, the administrative judge provided additional reasoning for his conclusion that the appellant’s version of events was inherently improbable. He also reasoned that, had the Field Office Director
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“constantly” made discriminatory statements as alleged by the appellant, it was inherently improbable that the majority of the other witnesses would have failed to hear such statements. RID at 9. Similarly, he further stated that, had the Field Office Director actually derided employees of Haitian descent, it would be “beyond strange” that the appellant failed to request any of them as witnesses. Id.
Even though we disagree with a portion of the administrative judge’s analysis of this credibility factor, we still find the remainder of that analysis proper. On the whole, we conclude that his credibility determinations are not inconsistent with the weight of evidence. See Karnes, 2023 MSPB 12, ¶ 13; Wallace, 106 M.S.P.R. 23, ¶ 14. Accordingly, we discern no basis to disturb his conclusion that the appellant failed to produce credible evidence in support of her claim that her removal was motivated by her race, color, national origin, or ethnicity. RID at 9.
We agree with the administrative judge’s conclusion that the appellant did not prove her EEO reprisal claim, as modified.
As previously set forth in our Remand Order, the appellant’s EEO reprisal claim concerns her own EEO complaints about the Field Office Director and her alleged support for a peer who had previously complained about another manager and the Field Office Director. Remand Order, ¶ 19; ID at 16; IAF, Tab 46 at 6, 13-16. She alleged that her removal was in reprisal for these activities. We previously remanded this claim because, although the administrative judge considered whether the deciding official for the appellant’s removal was motivated by reprisal for her EEO activity, he did not consider whether the Field Office Director played any role in the removal. Remand Order, ¶¶ 19-21. Specifically, the Board acknowledged that the Field Office Director was responsible for reporting the appellant’s misconduct to the Office of Investigation (OI) and observed that the Field Office Director was “at the center of the alleged
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discrimination and resulting EEO activity.” Id., ¶ 21. We, therefore, concluded that the Field Office Director “played a significant role in the matter.” Id.
In the remand initial decision, the administrative judge acknowledged that the Field Office Director was the agency official who reported to OI the appellant’s misconduct that ultimately formed the basis of her removal, but he reasoned that “there is no claim or evidence that [she] had any role in determining the validity of her own report, in recommending what (if any) disciplinary action against the appellant should be taken, or in preparing the [notice of proposed removal] or final decision letter.” RID at 10-11. As such, he disagreed with the Board’s conclusion that the Field Office Director played a significant role in the appellant’s removal, and he declined to reconsider his previous conclusion that “the record contains no persuasive direct or circumstantial evidence supporting the appellant’s claim of EEO reprisal.” RID at 11.
In the appellant’s remand petition for review, she asserts that the administrative judge erred in his legal analysis of this claim by not applying the cat’s paw theory, which provides that an appellant can establish retaliation by showing that a particular management official, acting because of improper animus, influences an agency official who is unaware of the improper animus when implementing a personnel action. RPFR File, Tab 1 at 13-14; see Aquino v. Department of Homeland Security, 121 M.S.P.R. 35, ¶ 19 (2014). In other words, the appellant argues that the administrative judge should have considered whether the Field Office Director improperly influenced the proposing or deciding officials when implementing the appellant’s removal. We agree.
As previously noted, the Field Office Director was the subject of the appellant’s EEO complaint and was mentioned in a coworker’s complaint with which the appellant assisted. ID at 16; IAF, Tab 46 at 6, 13-16. Additionally, she is the agency official who gave the instructions that the appellant was charged with not following and who reported the appellant’s misconduct, which lead to her removal. IAF, Tab 11 at 8. Therefore, we reiterate that the Field Office
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Director played a substantial role in and, therefore, influenced the appellant’s removal. The question here is whether that influence was due to improper animus. Because we ultimately conclude that such an analysis does not require additional credibility determinations, we answer that question here on review. See Hamilton v. U.S. Postal Service, 84 M.S.P.R. 635, ¶ 14 (1999) (finding it unnecessary to remand for adjudication of the charge and appellant’s additional claims because the parties were afforded the opportunity to develop the full record, and the resolution of the issues does not require credibility determinations).
In Young v. Department of Homeland Security, 2024 MSPB 18, ¶ 22, in the context of a whistleblower reprisal claim, 8 the Board explained that considerations relevant to determining whether an agency official has a motive to retaliate include whether the official was the subject of the appellant’s protected activity, whether the official suffered any consequences as a result of that activity, whether the official knew about the activity when making a report or initiating an investigation of the appellant, and how soon after the protected activity the report of misconduct or initiation of an investigation began. Here, although the Field Office Director was the subject of the appellant’s EEO complaint, she could not have been aware of that complaint at the time she reported the appellant’s misconduct to OI on January 27, 2021, because the appellant did not contact the EEO office until approximately 1 week later. IAF, Tab 10 at 5, Tab 11 at 8; RF, Tab 12 at 16, 32-33. The appellant also did not file her formal EEO complaint until more than 3 months after the Field Office Director reported the misconduct. RF, Tab 12 at 34. Thus, the Field Office
8 In the remand initial decision, the administrative judge acknowledged the Board’s decision in Young but declined to analyze it further because that matter involved an individual right of action appeal alleging whistleblower retaliation. RID at 11 n.4. We find Young to be relevant to the appellant’s affirmative defense here because both matters involve claims of reprisal and require the examination of a motive to retaliate on the part of relevant agency officials.
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Director could not have been motivated to retaliate against the appellant based on her EEO complaint because it had not yet occurred when she contacted OI. See, e.g., Orr v. Department of the Treasury, 83 M.S.P.R. 117, ¶ 15 (1999) (finding, within the whistleblower reprisal context, that protected activity that occurs after a challenged personnel action could not contribute to the agency’s decision to take the challenged personnel action), aff’d, 232 F.3d 912 (Fed. Cir. 2000) (Table). Additionally, there is no evidence that the Field Office Director suffered any negative consequences from the appellant’s EEO complaint.
Regarding the appellant’s participation in a coworker’s 2019 complaint, the primary subject of that complaint was not the Field Office Director, although she was referenced in that complaint as creating a hostile work environment. RF, Tab 12 at 23. Further, the record does not clearly establish that the Field Office Director was aware of the appellant’s participation in that activity. Nonetheless, even if she was aware of the appellant’s participation, there is no evidence that she suffered any negative consequences as a result of that complaint, and she did not report the appellant’s misconduct until more than a year later. Id. at 21. Based on the foregoing, we find that the Field Office Director had little motive to retaliate against the appellant due to her EEO activity.
Moreover, the Field Office Director testified at the hearing that a subordinate brought to her attention that the appellant was engaging in activity that violated the agency’s Handbook for Safeguarding Sensitive PII and that she, as a management official, has an obligation to report known or suspected misconduct to an investigatory body. HT at 23-24; IAF, Tab 16 at 33-36. The appellant conceded at the hearing that, if she, as a supervisor, similarly had been made aware that a subordinate violated an agency policy, she would also be required to report it to OI. HT at 208. We find that such an admission further diminishes the likelihood that the Field Office Director acted with retaliatory motive when she reported the matter to OI. On the whole, we find that, although the Field Office Director influenced the agency’s decision to remove the
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appellant by reporting her misconduct in the first instance, the appellant has failed to prove that the Field Office Director’s actions were improper. As such, the appellant has not established the cat’s paw theory with relation to the Field Office Director. We otherwise agree with the administrative judge’s ultimate conclusion that the appellant failed to establish that her EEO activity was a motivating factor in the agency’s decision to remove her.
The administrative judge properly concluded that the penalty of removal is reasonable.
In our Remand Order, we explained that, if the administrative judge’s analyses of the appellant’s discrimination and reprisal claims did not require reversal of the appellant’s removal, he “must consider whether the agency has proven the reasonableness of the penalty,” and should specifically consider, among other things, whether the deciding official appropriately considered mitigating factors identified by the appellant. Remand Order, ¶ 24. In the remand initial decision, the administrative judge set forth several instances in the record, such as the decision letter itself and hearing testimony, where the deciding official explicitly stated that she considered the appellant’s claim of workplace tension as a mitigating factor. RID at 12-13. Based on those instances, he found that the “cumulative import” is that “she recognized that stress or tension existed in the appellant’s workplace, but that fact (even in combination with other mitigating factors) did not excuse her misconduct or overcome its severity.” RID at 13. Therefore, he found that the deciding official “gave full and proper consideration to all mitigating Douglas factors” and “reasonably determined” that they did not warrant mitigation of the removal penalty. RID at 14.
In her remand petition for review, the appellant asserts that the administrative judge erred when he failed to perform an “independent analysis of whether the mitigating factors in this case made the chosen penalty of removal unreasonable,” and she reiterates the impact of the workplace tension on her life
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and her health. RPFR File, Tab 1 at 15. However, when as here, all of the charges are sustained, the Board reviews the agency-imposed penalty only to determine if the agency considered all the relevant factors and exercised management discretion within the tolerable limits of reasonableness. Ellis v. Department of Defense, 114 M.S.P.R. 407, ¶ 11 (2010). The Board’s function is not to displace management’s responsibility or to decide what penalty to impose, but to assure that management’s judgment has been properly exercised and that the penalty selected by the agency does not exceed the maximum limits of reasonableness. Stuhlmacher v. U.S. Postal Service, 89 M.S.P.R. 272, ¶ 20 (2001); Douglas, 5 M.S.P.R. at 306.
In the original initial decision, the administrative judge summarized the deciding official’s consideration of the Douglas factors. ID at 18-19. In determining whether the imposed penalty is within the range of reasonableness, he agreed with the deciding official that the failure to follow supervisory instructions is “serious misconduct,” and he emphasized that the appellant is a supervisor who is held to a higher standard than other employees. ID at 19. We agree that the deciding official considered the relevant Douglas factors, including the mitigating factors discussed on remand, and we agree that the penalty of removal is within the bounds of reasonableness. See Saiz v. Department of the Navy, 122 M.S.P.R. 521, ¶ 11 (2015) (stating that in selecting a reasonable penalty, the first and foremost consideration is the nature and seriousness of the misconduct and its relation to the employee’s duties, position, and responsibilities, including whether the offense was intentional or was frequently repeated); see also Edwards v. U.S. Postal Service, 116 M.S.P.R. 173, ¶ 14 (2010) (considering that agencies are entitled to hold supervisors to a higher standard than nonsupervisors because they occupy positions of trust and responsibility). The appellant’s arguments on review do not provide a basis to disturb the remand initial decision.
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NOTICE OF APPEAL RIGHTS 9 The initial decision, as supplemented by this Final Order, constitutes the Board's final decision in this matter. 5 C.F.R. § 1201.113. 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).
9 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.
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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
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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
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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. 10 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
10 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.
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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.