UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
ELIZABETH R. ILAGAN, DOCKET NUMBER
Appellant, SF-0752-14-0792-I-1
v.
DEPARTMENT OF VETERANS DATE: January 11, 2016
AFFAIRS,
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Elizabeth R. Ilagan, Henderson, Nevada, pro se.
Matthew S. Voss, Esquire, North Las Vegas, Nevada, for the agency.
BEFORE
Susan Tsui Grundmann, Chairman
Mark A. Robbins, Member
FINAL ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
sustained her removal. Generally, we grant petitions such as this one only when:
the initial decision contains erroneous findings of material fact; the initial
decision is based on an erroneous interpretation of statute or regulation or 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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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).
2
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. 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, 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 by this Final Order to incorporate
the standards set out in the Board’s decision in Savage v. Department of the
Army, 122 M.S.P.R. 612 (2015), we AFFIRM the initial decision.
¶2 The appellant held the position of Physical Therapist for the agency’s
Southern Nevada Health Care System in Las Vegas, Nevada. Initial Appeal File
(IAF), Tab 4 at 24. In August 2013, the agency reprimanded her for “Failure to
Follow Instructions” and “Negligent Workmanship.” IAF, Tab 9 at 22-26. In
November 2013, the agency suspended the appellant for 3 days for “Failure to
Safeguard Protected Health Information.” IAF, Tab 8 at 26, 34-35.
¶3 In May 2014, the agency proposed removing the appellant for “Failure to
Recognize Contraindications.” IAF, Tab 5 at 94-96. The proposal included
five specifications, A-E. Id. The deciding official sustained four of them, B-E,
and removed the appellant from service. IAF, Tab 4 at 28-30. The appellant filed
the instant appeal. IAF, Tab 1.
¶4 The administrative judge affirmed the appellant’s removal from service,
finding that the agency met its burden of proof and the appellant failed to prove
any of the affirmative defenses she asserted. IAF, Tab 20, Initial Decision (ID).
The appellant has filed a petition for review. Petition for Review (PFR) File,
Tab 1. The agency has filed a response. PFR File, Tab 3.
3
¶5 In her petition, the appellant argues that the administrative judge committed
a number of abuses of discretion by (1) insisting that she could only be
represented by an attorney licensed in the state of Nevada, (2) coercing the
appellant to cancel her request for a hearing due to her not having a
Nevada-licensed attorney, (3) denying a request to reopen or extend the close of
record, and (4) refusing to consider her untimely submissions. 2 PFR File, Tab 1
at 2-4, 6-21. 3 We find no merit to these arguments.
The appellant has failed to show any abuse of discretion concerning her lack of
representation and the cancelling of her scheduled hearing.
¶6 The appellant alleges that the administrative judge erroneously prohibited
her from designating her representative of choice and, as a result, coerced her into
withdrawing her hearing request. See, e.g., PFR File, Tab 1 at 2. In a statement
made under the penalty of perjury, the agency’s representative disputes the
allegations. PFR File, Tab 3 at 25-28; see Office of Hearings and Appeals v.
Whittlesey, 59 M.S.P.R. 684, 692 (1993) (explaining that a sworn statement has
greater weight than one that is not), aff’d, 39 F.3d 1197 (Fed. Cir. 1994) (Table).
We find no merit to the appellant’s claims.
¶7 The Board’s regulations permit a party to choose any representative as long
as that person is willing and available to serve. 5 C.F.R. § 1201.31(b). Absent a
conflict of interest or position, the Board has held that the choice of
representative is personal, and parties may choose to be represented by a
nonattorney if they wish. See Walton v. Tennessee Valley
Authority, 48 M.S.P.R. 462, 469 (1991); 5 C.F.R. § 1201.31(a)-(b). In addition,
2
On review, the appellant has presented no substantive challenge to the administrative
judge’s findings that the agency met its burden concerning proof of the charge, nexus,
and reasonableness of the penalty. We see no reason to revisit these well-reasoned
findings. See ID at 5-16.
3
With her arguments, the appellant’s petition contains a number of attachments,
including copies of Board regulations, PFR File, Tab 1 at 24-30, and copies of exhibits
from the initial appeal file, compare id. at 32-803, with IAF, Tabs 17-19. None of the
attachments appear to be new evidence.
4
an appellant generally is entitled to a hearing in a timely filed removal appeal
within the Board’s jurisdiction if she wants one. 5 C.F.R. § 1201.24(a)(3), (d),
(e).
¶8 In this case, although the appellant’s initial appeal included the contact
information of a private attorney, she checked a box indicating that she did not
yet wish to designate any individual or organization to represent her. IAF,
Tab 1 at 1-2. Subsequently, the administrative judge issued an acknowledgment
order, informing the appellant how she could designate a representative. IAF,
Tab 2 at 2. That order, dated September 11, 2014, repeatedly referred to a
“representative,” without any indication that the representative had to be an
attorney licensed in Nevada. Id.
¶9 By the time of a scheduled prehearing conference on December 17, 2014,
the appellant had not yet submitted a designation of representative form or
anything else to suggest that she had sought or obtained a representative. IAF,
Tab 13, Prehearing Compact Disc (PCD). At the end of the prehearing
conference, the administrative judge went on the record to note that the appellant
was pro se and that she had withdrawn her hearing request. PCD. The appellant
affirmed the same, without any objection or other indication that the
administrative judge induced her choice to proceed pro se and without a hearing.
PCD.
¶10 The administrative judge later issued an order summarizing the prehearing
conference call, including a notation that the appellant withdrew her hearing
request. IAF, Tab 14 at 1. That order provided a period during which the parties
could object to the administrative judge’s summary, but neither did. See id. at 22.
The appellant proceeded to file arguments and evidence as to the merits of her
appeal, without any indication that she wished to designate a representative or
have a hearing. IAF, Tabs 16, 18-19. Therefore, we find the appellant’s waiver
of her hearing and representation rights to be clear and unequivocal. See Axsom
v. Department of Veterans Affairs, 110 M.S.P.R. 605, ¶ 10 (2009) (finding that an
5
appellant waived his right to a hearing when he clearly and repeatedly asserted
that he did not want one). Under these circumstances, we find that the
administrative judge did not abuse his discretion, prevent the appellant from
designating a representative, or induce her to waive her hearing rights. See, e.g.,
Doe v. Department of Justice, 118 M.S.P.R. 434, ¶ 38 (2012) (determining that an
administrative judge has wide discretion to control the proceedings); 5 C.F.R.
§ 1201.41(b) (enumerating the powers of an administrative judge, including the
authority to hold prehearing conferences to simplify the issues).
The administrative judge did not abuse his discretion by denying the appellant’s
request to extend the close of record and refusing to consider untimely filings.
¶11 The appellant appears to argue that the administrative judge erred by
denying her request to extend the close of record and refusing to consider her
untimely filings. See, e.g., PFR File, Tab 1 at 3-4. We disagree.
¶12 Where the appellant waives a hearing, setting the deadline for closing the
record is within the sound discretion of the administrative judge, but the
procedures used must comport with the basic requirements of fairness and notice,
including an opportunity for response to the opposing party’s submissions; thus,
where one party is precluded from responding to material evidence that is
included in the opposing party’s submission, and upon which the administrative
judge relies in the initial decision, such error may warrant reversal of the initial
decision. Gavette v. Department of the Treasury, 44 M.S.P.R. 166, 174
(1990); 5 C.F.R. § 1201.58(b). The Board’s regulations provide that additional
evidence or argument generally will not be accepted after the record closes unless
“the party submitting it shows that the evidence or argument was not readily
available before the record closed” or “it is in rebuttal to new evidence or
argument submitted by the other party just before the record closed.” 5 C.F.R.
§ 1201.58(c)(1)-(2).
¶13 Aside from her initial appeal, the appellant did not submit any argument or
evidence until after the designated close of record. The parties agreed to close
6
the record on February 11, 2015. IAF, Tab 14 at 1; PCD. The appellant
submitted her argument and evidence a day later, on February 12, 2015, without
addressing her untimeliness. IAF, Tab 16. Within that already untimely
submission, the appellant requested that the administrative judge extend the close
of record, suggesting that the agency had some unspecified but nonetheless
pertinent documents in its possession. Id. at 6. The administrative judge denied
the request, IAF, Tab 17, but the appellant proceeded to submit two additional
pleadings on February 17 and 26, 2015, IAF, Tab 18-19.
¶14 The administrative judge accepted the appellant’s February 12, 2015
submission for consideration, finding that it was, arguably, in response to the
agency’s submission from the day before. ID at 3-4; see 5 C.F.R.
§ 1201.58(c)(2). However, the administrative judge concluded that the appellant
failed to present any basis for considering the untimely filings of
February 17 and 26, 2015, ID at 4, and we agree.
¶15 Concerning the February 17, 2015 submission, the appellant argues that it
was key to the administrative judge understanding her defense. PFR File, Tab 1
at 3; see IAF, Tab 18. However, relevance alone does not excuse the
untimeliness of a filing. See Sanders v. Department of the
Army, 64 M.S.P.R. 136, 140 (1994) (finding that an administrative judge properly
rejected proffered evidence where it was untimely filed without a showing of
good cause), aff’d, 50 F.3d 22 (Fed. Cir. 1995) (Table). The appellant also
suggests that she had some technical difficulties submitting the February 17, 2015
pleading through e-Appeal due to its size. PFR File, Tab 1 at 7. However, she
failed to specify when those problems arose or provide any corroborating
evidence. See id.; IAF, Tab 18 at 1. Moreover, when an appellant attempts to
upload a pleading that exceeds e-Appeal’s size limits, users are instructed either
to reduce the file size of their pleading and try again or split their oversized
pleading into multiple pleadings. The appellant failed to explain why she failed
to do so. She also failed to explain why she waited 6 days after the close of
7
record to hand deliver the materials. IAF, Tab 2 at 3-4; cf. Boykin v. U.S. Postal
Service, 104 M.S.P.R. 460, ¶¶ 6-7 (2007) (finding good cause for untimeliness of
1 day where the appellant alleged difficulties with e-Appeal and the Board’s
records confirmed a higher incidence of problems with the system during the
relevant period).
¶16 Concerning the February 26, 2015 submission, the appellant alleges that the
administrative judge should have considered her pleading because it was her
rebuttal to the agency’s final submission. PFR File, Tab 1 at 3-4; see IAF,
Tab 19; see also 5 C.F.R. § 1201.58(c)(2). However, the agency and the
appellant were both registered e-filers, so the appellant is presumed to have
received the agency’s brief on the day it was submitted, February 11, 2015. IAF,
Tab 1 at 20, Tab 3 at 2; see 5 C.F.R. § 1201.14(m)(2) (documents served
electronically on registered e-filers are deemed received on the date of electronic
submission). Even if her final pleading was a rebuttal to that brief, as the
appellant alleges, it still was untimely. Compare IAF, Tab 14 at 1 (permitting the
parties to submit a rebuttal to arguments and evidence filed just before the
February 11, 2015 close of record, to be received by February 18, 2015), with
IAF, Tab 19 (appellant’s final pleading, electronically filed on February 26,
2015).
¶17 In addition to the aforementioned arguments, the appellant appears to
suggest that her untimeliness may have been caused, in part, by her having never
been advised of her discovery rights. PFR File, Tab 1 at 7-8. Yet, contrary to
that assertion, the administrative judge’s acknowledgment order provided the
parties with information about how to engage in the discovery process. IAF,
Tab 2 at 2-3; see Sanders, 64 M.S.P.R. at 140 (finding that an appellant failed to
establish good cause for filing untimely evidence where he did not comply with
the order concerning discovery and failed to initiate discovery in a timely
manner). Regarding her untimeliness, the appellant also emphasizes that she was
proceeding pro se. PFR File, Tab 1 at 7, 9-10. However, inexperience with legal
8
matters does not warrant waiver of unambiguous filing deadlines. See, e.g.,
Olson v. U.S. Postal Service, 66 M.S.P.R. 383, 387-88 (1995).
¶18 It is well established that parties ignore Board orders at their own peril.
Mendoza v. Merit Systems Protection Board, 966 F.2d 650, 653 (Fed. Cir. 1992).
Litigants are obligated to respect the Board’s established deadlines. Id.
Although the appellant would have us excuse her untimely arguments and
evidence, she has failed to present any persuasive basis for doing so.
Accordingly, we agree with the administrative judge’s decision not to consider
the untimely filings of February 17 and 26, 2015. See ID at 3-4. 4
We modify the initial decision to incorporate the proper standards for the
appellant’s affirmative defenses of national origin discrimination, age
discrimination, and equal employment opportunity (EEO) reprisal.
¶19 After the administrative judge issued the initial decision, we issued a
decision clarifying the evidentiary standards and burdens of proof under which
the Board analyzes the national origin discrimination, age discrimination, and
EEO reprisal affirmative defenses. See Savage, 122 M.S.P.R. 612, ¶¶ 42-43, 51.
Pursuant to Savage, an appellant may establish these affirmative defenses using
direct evidence or any of three types of circumstantial evidence: a convincing
mosaic of evidence from which a discriminatory intent may be inferred, evidence
of disparate treatment of similarly situated comparators, or evidence that the
agency’s stated reason is not worthy of credence but rather a pretext for
discrimination. Id., ¶¶ 42-43. If an appellant shows by preponderant evidence
that the prohibited consideration was a motivating factor in the contested
personnel action, in violation of 42 U.S.C. § 2000e-16, the Board will inquire
whether the agency has shown by preponderant evidence that it still would have
taken the contested action in the absence of the discriminatory or retaliatory
4
The administrative judge’s decision refers to filings dated
February 17, 23, and 26, 2015. ID at 4. However, the February 23 filing was made part
of the February 17 filing, as it merely confirmed delivery of that pleading to the agency.
IAF, Tab 18 at 698.
9
motive. Id., ¶¶ 49-51. If the agency meets that burden, its violation will not
require reversal of the action. Id., ¶ 51.
¶20 Because the factual record is fully developed on the appellant’s affirmative
defenses and we do not base our finding on witness demeanor, we need not
remand this claim for further adjudication. See Panter v. Department of the Air
Force, 22 M.S.P.R. 281, 282 (1984) (holding that an adjudicatory error that is not
prejudicial to a party’s substantive rights provides no basis for reversal of an
initial decision). We find that applying the analytical framework in Savage
would not change the result in this case. Thus, based on the existing record, and
for the reasons contained in the initial decision, we affirm the administrative
judge’s finding that the appellant did not meet her burden of proving her
affirmative defenses of national origin discrimination, age discrimination, or EEO
reprisal. See, e.g., ID at 16-25.
NOTICE TO THE APPELLANT REGARDING
YOUR FURTHER REVIEW RIGHTS
The initial decision, as supplemental 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.
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 U.S. 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:
10
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
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 U.S. 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
11
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.