Zippore Early v. Department of Defense

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD

ZIPPORE EARLY, DOCKET NUMBER
Appellant, CH-0752-11-0039-I-2

v.

DEPARTMENT OF DEFENSE, DATE: September 16, 2014
Agency.

THIS FINAL ORDER IS NONPRECEDENTIAL 1

Gony F. Goldberg, Washington, D.C., for the appellant.

Cynthia C. Cummings, Esquire, Indianapolis, Indiana, for the agency.

BEFORE

Susan Tsui Grundmann, Chairman
Anne M. Wagner, Vice Chairman
Mark A. Robbins, Member

FINAL ORDER

¶1 The appellant has filed a petition for review of the initial decision which
affirmed both her indefinite suspension and removal after the agency determined
that she could no longer occupy a noncritical sensitive position. Generally, we
grant petitions such as this one only when: the initial decision contains erroneous

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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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).
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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 judge’s rulings during either the course of the appeal or
the initial decision were not consistent with required procedures or involved an
abuse of discretion, and the resulting error affected the outcome of the case; or
new and material evidence or legal argument is available that, despite the
petitioner’s due diligence, was not available when the record closed. See Title 5
of the Code of Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115).
After fully considering the filings in this appeal, and based on the following
points and authorities, 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. As explained below, however, because both the
Federal Circuit and the Board have issued several decisions which alter the
analysis the Board must conduct in cases such as this, we AFFIRM the initial
decision as MODIFIED with respect to the agency’s removal action for the
reasons set forth below. Additionally, we VACATE the initial decision regarding
the indefinite suspension action and, differing from the administrative judge,
instead DISMISS the appellant’s challenge to her indefinite suspension as
untimely filed without good cause shown. Further, we VACATE that portion of
the initial decision adjudicating the appellant’s disparate impact affirmative
defense and find that the administrative judge should not have adjudicated this
claim on the merits.

DISCUSSION OF ARGUMENTS ON REVIEW
Background and procedural history.

¶2 The appellant began working for the agency’s Defense Finance and
Accounting Service in 1981 and was promoted several times during her career,
ultimately securing a position as an Accounting Technician. Petition for Review
(PFR) File, Tab 3 at 3 (citing hearing testimony); Initial Appeal File (IAF), Tab 4
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at 88. Although the appellant’s position was originally designated as
nonsensitive, the agency redesignated the position as noncritical sensitive, and
the appellant was required to undergo a background investigation. PFR File,
Tab 3 at 6 (citing hearing testimony); IAF, Tab 4 at 89. After conducting a
background investigation, the agency’s Washington Headquarters Services
Consolidated Adjudications Facility (CAF) issued the appellant a statement of
reasons denying her eligibility to access classified information and/or occupy a
sensitive position based on an outstanding delinquent debt. PFR File, Tab 3 at 7;
IAF, Tab 4 at 83-87. The CAF subsequently issued the appellant a letter of denial
denying her eligibility to access classified information and/or occupy a sensitive
position. IAF, Tab 4 at 74-80. The appellant elected to appeal the CAF’s letter
of denial to a Defense Office of Hearings and Appeals (DOHA) administrative
judge. Id. at 71.
¶3 Citing the CAF’s letter of denial, the agency proposed to indefinitely
suspend the appellant based upon her ineligibility to occupy a noncritical
sensitive position. Id. at 71-73. The appellant submitted a written response to
her proposed indefinite suspension. Id. at 59-67. The agency indefinitely
suspended the appellant effective January 18, 2010, and informed her of her right,
inter alia, to file an appeal with the Board challenging her indefinite suspension.
Id. The appellant did not file an appeal with the Board at that time.
¶4 On April 12, 2010, the agency’s Clearance Appeal Board accepted the
recommendation of a DOHA administrative judge and issued a final decision
affirming the CAF’s determination that the appellant was ineligible to access
classified information and/or occupy a sensitive position. Id. at 46. Based upon
this final determination, the agency issued the appellant a notice of proposed
removal charging her with an inability to occupy a noncritical sensitive position.
Id. at 43-45. The appellant again filed a written response to the proposed adverse
action. Id. at 36-42. The deciding official issued a letter of decision imposing
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the appellant’s removal effective October 7, 2010, and again informed her of her
right, inter alia, to file an appeal with the Board. Id. at 28-35.
¶5 The appellant filed an appeal with the Board on October 8, 2010, seeking to
challenge both her indefinite suspension and her removal. IAF, Tab 1. The
administrative judge issued an initial decision affirming the agency’s actions,
citing the Board’s decision in Conyers v. Department of Defense, 115 M.S.P.R.
572, ¶¶ 26-33 (2010), appeal dismissed, 733 F.3d 1148 (Fed. Cir. 2013), cert.
denied, 134 S. Ct. 1759 (2014), which held that the Board has the authority to
review the underlying basis for the agency’s determination that the employee is
unable to occupy a noncritical sensitive position in connection with its
adjudication of the agency’s adverse action. Refiled Appeal File, Tab 30, Initial
Decision (ID) at 2-5. Applying the Board’s standard in Conyers, the
administrative judge found that the agency had established the underlying reasons
for denying the appellant eligibility to occupy a noncritical sensitive position and
sustained both the indefinite suspension action and the removal. ID at 2-5, 7.
The administrative judge also adjudicated the appellant’s affirmative defense of
race-based disparate impact and rejected her argument that the agency’s use of
credit checks in making its security clearance determinations had a disparate
impact on African American employees. ID at 5-6. Lastly, the administrative
judge found that the agency’s penalty of removal was reasonable 2 and rejected the
appellant’s argument that the deciding official failed to conduct a proper Douglas
factors analysis because “[a]ny review of the pertinent ‘Douglas factors’ could
afford no additional remedy” to the appellant. ID at 7.
¶6 The appellant has filed a petition for review challenging the administrative
judge’s decision to affirm her indefinite suspension and removal, and she also
argues that the deciding official erred when he did not conduct a full Douglas
factors analysis. PFR File, Tab 3 at 11, 20-22. The appellant further asserts that
2
The administrative judge did not expressly address the reasonableness of the agency’s
decision to indefinitely suspend the appellant. See ID at 6-7.
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she was denied due process because the deciding official testified that he had
been informed that the appellant had been denied eligibility to occupy a
noncritical sensitive position and that he could not have decided to maintain the
appellant in a pay status because the adverse action was based on a security issue,
which was “out of [his] control.” Id. at 22 (citing hearing testimony). The
agency has filed a response to the petition for review. PFR File, Tab 7.
¶7 The Board subsequently issued two show cause orders seeking additional
briefing from the parties. PFR File, Tabs 8, 10. First, the Board provided the
parties an opportunity to submit additional argument following the Federal
Circuit’s decision in Gargiulo v. Department of Homeland Security, 727 F.3d
1181 (Fed. Cir. 2013), concerning the appellant’s constitutional due process
claim, PFR File, Tab 8; only the agency responded to this show cause order, PFR
File, Tab 9. Second, the Board issued the appellant a show cause order
concerning the timeliness of her challenge to her indefinite suspension. PFR File,
Tab 10. In its show cause order, the Board explained to the appellant that she
was indefinitely suspended effective January 18, 2010, but did not file an appeal
with the Board until October 8, 2010. Id. The Board provided the appellant an
opportunity to demonstrate that her indefinite suspension claim was timely, or
that good cause exists for adjudicating the merits of her indefinite suspension. Id.
Neither party responded to Board’s order as to the timeliness of the indefinite
suspension.
The appellant’s indefinite suspension claim is dismissed as untimely without
good cause shown.
¶8 Although chapter 75 contains no specific reference to “indefinite
suspensions,” the requirements of subchapter II of chapter 75 apply to “a
suspension for more than 14 days.” 5 U.S.C. § 7512(2); Gonzalez v. Department
of Homeland Security, 114 M.S.P.R. 318, ¶ 12 (2010). An “indefinite
suspension” is a “suspension” for purposes of chapter 75, even though it is
imposed without a definitive end date, and where, as here, an indefinite
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suspension lasts for more than 14 days, it becomes an action subject to the
requirements of subchapter II of chapter 75. See Gonzalez, 114 M.S.P.R. 318,
¶ 12.
¶9 An appeal of an agency action must generally be filed no later than 30 days
after the effective date of the action being appealed or 30 days after the date of
the receipt of the agency’s decision, whichever is later. Miranne v. Department
of the Navy, 121 M.S.P.R. 235, ¶ 8 (2014); 5 C.F.R. § 1201.22(b). The appellant
bears the burden of proof on the issue of timeliness. 5 C.F.R. § 1201.56(a)(2).
Here, the record reflects that the agency imposed the appellant’s indefinite
suspension effective January 18, 2010, and that the appellant received notice of
her indefinite suspension on January 14, 2010. IAF, Tab 4 at 53-54. The
appellant, however, did not file an appeal with the Board until October 8, 2010,
1 day after the effective date of her removal. IAF, Tab 1, Tab 4 at 28-35. Thus,
we find that the appellant’s challenge to her indefinite suspension is untimely by
over 8 months.
¶10 The Board will generally dismiss an untimely claim unless the appellant
establishes good cause for the delay. Mauldin v. U.S. Postal
Service, 115 M.S.P.R. 513, ¶ 5 (2011); 5 C.F.R. § 1201.22(c). To establish good
cause, a party must show that she exercised due diligence or ordinary prudence
under the particular circumstances of the case. Alonzo v. Department of the Air
Force, 4 M.S.P.R. 180, 184 (1980). To determine if an appellant has shown good
cause, the Board will consider the length of the delay, the reasonableness of her
excuse and her showing of diligence, whether she is proceeding pro se, and
whether she has presented evidence of the existence of circumstances beyond her
control that affected her ability to comply with the time limits or of unfavorable
casualty or misfortune which similarly shows a causal relationship to her inability
to timely file her claim. Moorman v. Department of the Army, 68 M.S.P.R. 60,
62-63 (1995), aff’d, 79 F.3d 1167 (Fed. Cir. 1996) (Table).
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¶11 Here, we find no good cause for accepting the appellant’s untimely
challenge to her indefinite suspension. The 8-month lapse in time between the
effective date of the appellant’s indefinite suspension and the filing of her initial
appeal is significant, and the record reflects that the agency informed the
appellant of her right to file an appeal with the Board following the imposition of
her indefinite suspension. IAF, Tab 4 at 53-58. The appellant, moreover, has not
responded to the Board’s timeliness order, and we can discern no basis from the
current record which would justify her untimely challenge to her indefinite
suspension. We note, moreover, that this is not a situation where the appellant’s
appeal of her removal could be construed as a timely challenge to the agency’s
continuation of her indefinite suspension. See, e.g., Lemons v. Department of the
Army, 111 M.S.P.R. 178, ¶ 9 (2009). In such cases, the Board has found that an
appellant may separately challenge an agency’s continuation of an indefinite
suspension when the identifiable condition subsequent which should trigger the
end of the indefinite suspension has occurred, but the agency has not returned the
appellant to duty within a reasonable period of time. Id. Here, however, the
agency’s identifiable condition subsequent which would have triggered the
appellant’s return to duty—a determination that she could occupy a noncritical
sensitive position—never occurred, and at no point was the agency under an
obligation to return the appellant to an active duty status within a reasonable
period of time of the condition subsequent. See, e.g., Ryan v. Department of
Homeland Security, 2014 MSPB 64, ¶¶ 13-14 (finding that the agency was not
required to return the appellant to duty because her security clearance had not
been reinstated). Furthermore, the Board has held that an agency may keep an
appellant who has been indefinitely suspended in a nonpay status while the
agency initiates a separate removal proceeding. See Campbell v. Defense
Logistics Agency, 31 M.S.P.R. 691, 695 (1986), aff’d, 833 F.2d 1024 (Fed. Cir.
1987) (Table).
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¶12 Under these circumstances, we find that there is no basis to accept the
appellant’s untimely challenge to her indefinite suspension. The appellant’s
indefinite suspension claim is therefore DISMISSED as untimely without good
cause shown.
The agency’s removal of the appellant for failure to occupy a noncritical sensitive
position is affirmed.
¶13 Applying the Board’s previous decision in Conyers, the administrative
judge reviewed the reasons for the agency’s decision to deny the appellant
eligibility to occupy a noncritical sensitive position in connection with his
adjudication of the appellant’s removal. ID at 2-5. In Kaplan v.
Conyers, 733 F.3d 1148, 1160 (Fed. Cir. 2013), cert. denied, 134 S. Ct. 1759
(2014), however, the Federal Circuit subsequently held that “there is no
meaningful difference in substance between a designation that a position is
‘sensitive’ and a designation that a position requires ‘access to classified
information,’” and it ruled that the Board is precluded from reviewing the
Department of Defense’s national security determinations concerning the
eligibility of an individual to occupy a sensitive position, regardless of whether
that position requires access to classified information. Conyers, 733 F.3d at
1160; 3 see also Ingram v. Department of Defense, 120 M.S.P.R. 420, ¶ 9 (2013).
In such cases, the Board’s review is limited under Egan v. Department of the
Navy, 484 U.S. 518 (1988), to whether: (1) an Executive Branch employer
determined the employee’s position required a security clearance;
(2) the clearance was denied or revoked; and (3) the employee was provided with
the procedural protections specified in 5 U.S.C. § 7513. Gamboa v. Department
of the Air Force, 120 M.S.P.R. 594, ¶ 5 (2014). 4

3
The Federal Circuit’s decision in Conyers was issued after the administrative judge
issued his initial decision in this case.
4
The Board may also consider whether transfer to a nonsensitive position was feasible
but only where a statute or regulation provides the employee with a substantive right to
such a reassignment. See Ryan, 2014 MSPB 64, ¶ 7.
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¶14 We agree with the administrative judge’s initial decision insofar as it found
that the agency established that the appellant’s position was designated as
noncritical sensitive, that the appellant was denied eligibility to occupy such a
position, and that the agency complied with the procedural protections
of 5 U.S.C. § 7513 by providing the appellant with 30 days’ advanced written
notice of its proposed adverse action, a period of time of more than 7 days to
reply, the right to be represented, and a written decision on the proposed action.
See ID at 2; Ryan, 2014 MSPB 64, ¶ 6; 5 U.S.C. § 7513(b)(1)-(4). The appellant,
moreover, has not established that the agency violated one of its specific policies
in effecting her removal, and we discern no basis for reversing the appellant’s
removal on this ground. See Ryan, 2014 MSPB 64, ¶ 6; Ulep v. Department of
the Army, 120 M.S.P.R. 579, ¶ 4 (2014). Furthermore, because the appellant was
unable to occupy her noncritical sensitive position, we concur with the
administrative judge that the appellant’s removal satisfies the efficiency of the
service standard under 5 U.S.C. § 7513. See ID at 3-4; Munoz v. Department of
Homeland Security, 2014 MSPB 66, ¶ 13 (removal based on failure to maintain a
security clearance promotes the efficiency of the service).
The deciding official did not err in imposing the appellant’s removal under
Douglas and the appellant has not established that she was denied due process.
¶15 On review, the appellant argues that the deciding official failed to conduct a
thorough Douglas factors analysis and that her constitutional right to due process
was violated because the deciding official testified that he had limited authority
to impose a penalty other than removal based upon the denial of her eligibility to
occupy a noncritical sensitive position. PFR File, Tab 3 at 11, 20-22. Neither
argument, however, supports the appellant’s challenges to her removal.
¶16 First, the Board has recently held that the traditional Douglas factors
analysis does not apply in cases involving adverse actions based on the
suspension or revocation of a security clearance or a national security
determination that an employee cannot occupy a sensitive position. See
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Munoz, 2014 MSPB 66, ¶ 15; Ryan, 2014 MSPB 64, ¶ 9; Flores v. Department of
Homeland Security, 121 M.S.P.R. 287, ¶ 12 (2014). Thus, the appellant’s
arguments on review that the deciding official failed to consider her length of
service, lack of disciplinary record, or favorable work record are of no moment.
See PFR File, Tab 3 at 11, 20-21. We thus cannot agree with the appellant the
agency’s selected penalty is entitled to less deference under these circumstances.
The appellant, moreover, has neither argued nor demonstrated that there exists a
statute, regulation, or agency policy requiring that she be considered for
reassignment prior to being removed under these circumstances. See
Ryan, 2014 MSPB 64, ¶¶ 9-10. Absent evidence of a right to compulsory
reassignment, the appellant’s argument that the agency erred under Douglas by
failing to consider alternative penalties prior to imposing her removal is
inapplicable under the facts of this case. Id., ¶¶ 9-11.
¶17 Second, we also find the appellant’s assertion of a due process violation is
without support in the record. In Buelna v. Department of Homeland
Security, 121 M.S.P.R. 262 (2014), the Board found that an employee’s due
process rights in connection with an adverse action based on the suspension or
revocation of a security clearance is limited to invoking the discretion of a
deciding official who, within the parameters of the agency’s disciplinary
procedures, had the authority to consider and impose alternative forms of
discipline in lieu of the proposed adverse action. See Ryan, 2014 MSPB 64, ¶ 6
(citing Buelna, 121 M.S.P.R. 262, ¶¶ 25-28). As we made clear in Buelna, due
process does not demand that the deciding official consider alternatives that are
prohibited, impracticable, or outside management’s purview. See Buelna, 121
M.S.P.R. 262, ¶ 27.
¶18 Applying this standard, we discern no constitutional error in connection
with the agency’s removal action. The record reflects that the appellant had the
opportunity to respond to her proposed removal to a deciding official but that the
deciding official had limited authority to consider alternative penalties because of
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the agency’s determination that the appellant could not occupy a noncritical
sensitive position. PFR File, Tab 3 at 22 (citing hearing testimony). Under
Buelna, these facts do not present a constitutional deprivation warranting reversal
of the agency’s adverse action. See Buelna, 121 M.S.P.R. 262, ¶¶ 25-28. The
appellant, moreover, has not argued that the deciding official considered
additional information outside the scope of the notice of proposed removal in
rendering his decision on her proposed removal, and we find no colorable due
process violation under Ward v. U.S. Postal Service, 634 F.3d 1274 (Fed. Cir.
2011). See Buelna, 121 M.S.P.R. 262, ¶¶ 31-32 (explaining that a deciding
official cannot consider ex parte information when rendering his penalty
determination in an adverse action based on the suspension or revocation of a
security clearance).
The administrative judge erred in adjudicating the appellant’s disparate impact
affirmative defense.
¶19 Lastly, we VACATE the portion of the administrative judge’s initial
decision in which the administrative judge adjudicated the merits of the
appellant’s race-based disparate impact affirmative defense. See ID at 5-6. In
Pangarova v. Department of the Army, 42 M.S.P.R. 319 (1989), the Board found
that it is precluded from reviewing allegations of prohibited discrimination and
reprisal when such affirmative defenses relate to the revocation of a security
clearance because it is without the expertise or authority to adjudicate whether an
agency’s adverse action, which is premised on the suspension or revocation of a
security clearance, constitutes impermissible discrimination or reprisal. See id.
at 322-23. The Board and the Federal Circuit have followed this approach in
subsequent cases. See, e.g., Doe v. Department of Justice, 118 M.S.P.R. 434,
¶ 40 (2012); Hesse v. Department of State, 82 M.S.P.R. 489, ¶ 9 (1999),
aff’d, 217 F.3d 1372 (Fed. Cir. 2000). We therefore find that the administrative
judge should not have adjudicated the appellant’s Title VII affirmative defense
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challenging the process the agency followed in rendering its decision to deny her
eligibility to hold a noncritical sensitive position.
¶20 For the foregoing reasons, the initial decision is AFFIRMED AS
MODIFIED with respect to the agency’s removal action and VACATED with
respect to the agency’s indefinite suspension action and the appellant’s disparate
impact affirmative defense. The appellant’s indefinite suspension claim is
DISMISSED as untimely without good cause shown. 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 have the right to request further review of this
final decision.

NOTICE TO THE APPELLANT REGARDING
YOUR FURTHER REVIEW RIGHTS
Discrimination Claims: Administrative Review
You may request review of this final decision on your discrimination
claims by the Equal Employment Opportunity Commission (EEOC). See Title 5
of the United States Code, section 7702(b)(1) (5 U.S.C. § 7702(b)(1)). If you
submit your request by regular U.S. mail, the address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013

If you submit your request via commercial delivery or by a method
requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, NE
Suite 5SW12G
Washington, D.C. 20507

You should send your request to EEOC no later than 30 calendar days after
your receipt of this order. If you have a representative in this case, and your
representative receives this order before you do, then you must file with EEOC no
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later than 30 calendar days after receipt by your representative. If you choose to
file, be very careful to file on time.

Discrimination and Other Claims: Judicial Action
If you do not request EEOC to review this final decision on your
discrimination claims, you may file a civil action against the agency on both your
discrimination claims and your other claims in an appropriate United States
district court. See 5 U.S.C. § 7703(b)(2). You must file your civil action with
the district court no later than 30 calendar days after your receipt of this order. If
you have a representative in this case, and your representative receives this order
before you do, then you must file with the district court no later than 30 calendar
days after receipt by your representative. If you choose to file, be very careful to
file on time. If the action involves a claim of discrimination based on race, color,
religion, sex, national origin, or a disabling condition, you may be entitled to
representation by a court-appointed lawyer and to waiver of any requirement of
prepayment of fees, costs, or other security. See 42 U.S.C. § 2000e-5(f)
and 29 U.S.C. § 794a.

FOR THE BOARD: ______________________________
William D. Spencer
Clerk of the Board
Washington, D.C.