UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
CYNTHIA A. METIVIER, DOCKET NUMBER
Appellant, CH-0351-14-0772-I-1
v.
DEPARTMENT OF THE INTERIOR, DATE: December 21, 2016
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL *
Cynthia A. Metivier, Esquire, Woodbury, Minnesota, pro se.
Gavin M. Frost, Esquire, and Deborah S. Charette, Esquire, Washington,
D.C., 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
affirmed the agency’s action separating her by reduction in force (RIF).
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
*
A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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 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. 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 and
AFFIRM the initial decision, which is now the Board’s final decision. 5 C.F.R.
§ 1201.113(b).
¶2 The agency separated the appellant by RIF from her GS-0905-15
Attorney‑Advisor position with the agency’s Office of Hearings and Appeals
(OHA), White Earth Land Settlement Act (WELSA) Hearings Division, in
Minneapolis (Bloomington), Minnesota. Initial Appeal File (IAF), Tab 7 at 17,
35-37, 77, 92‑94, 112-13. On appeal to the Board, the appellant asserted that the
agency abolished her position based on reasons personal to her, misinformed her
about her eligibility to participate in the Career Transition Assistance Plan, failed
to select her for a different position, included her position in the wrong
competitive area, incorrectly calculated her service computation date, and took
numerous actions against her other than her separation by RIF in reprisal for
whistleblowing. IAF, Tab 20 at 2, 4-6. She also claimed that her separation was
based on sex discrimination, reprisal for whistleblowing, and retaliation for filing
grievances and equal employment opportunity (EEO) complaints. Id. at 11-14.
¶3 After a hearing, the administrative judge affirmed the agency’s action. IAF,
Tab 43, Initial Decision (ID) at 1, 37. The administrative judge found that the
agency proved by preponderant evidence that the RIF was taken for a legitimate
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reason, namely, a reorganization arising from budget constraints due to
sequestration; properly applied RIF regulations in abolishing the appellant’s
position because the agency no longer required an Attorney-Advisor to work
exclusively on WELSA cases; proved that it properly separated the appellant
based on her retention standing, competitive area, and service computation date;
and did not mislead her about her eligibility to participate in career transition
assistance programs. ID at 7-15. The administrative judge also found that the
appellant did not prove her claims of discrimination based on sex and EEO
activity, retaliation for filing grievances, and reprisal for whistleblowing . ID
at 15-36. The administrative judge noted that the appellant did not exhaust her
administrative remedy before the Office of Special Counsel (OSC) and therefore
abandoned her possible claims in an individual right of action (IRA) appeal
involving her reassignment, significant change in duties and working conditions,
performance rating, and suspensions. ID at 28 n.13.
¶4 The appellant asserts on review that the administrative judge improperly
failed to consider her motion for sanctions against the agency for misconduct,
including the agency’s attempts to coerce and retaliate against her witnesses.
Petition for Review (PFR) File, Tab 1 at 8. The appellant contends that witness
P.H. overheard the agency’s representative shouting at the appellant before her
testimony, which made P.H. uncomfortable, and that P.H., her supervisor, and the
agency’s representative discussed issues without the appellant’s knowledge such
as whether P.H. would travel to Minnesota when she testified or would testify via
videoconference from Washington, D.C., the type of transportation P.H. used to
travel to Minnesota, and whether P.H. had asked the appellant to call her before
other witnesses, even though the agency representative knew the answer because
the order of witnesses already had been determined. Id. at 9. The appellant
asserts that, after she filed her motion for sanctions, P.H.’s supervisor suspended
P.H.’s ability to telework, instructed her to turn over her Government cell phone,
informed her that she was deactivating the service, reassigned P.H.’s job
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functions and assignments to others, and told her that she could no longer take her
computer or use Wi-Fi while traveling to provide testimony. Id. at 10. The
appellant contends that the administrative judge later disregarded P.H.’s
testimony and unfairly referred to it as “bitter.” Id. at 11. The appellant asserts
that another witness changed the prior sworn testimony he gave to an EEO
investigator after speaking with the agency’s representative. Id.
¶5 The appellant filed a motion for sanctions below asserting that the agency’s
representative engaged in the behavior described above. IAF, Tab 36 at 4-7. As
a sanction, the appellant requested that the administrative judge prohibit the
agency’s representative from further representing the agency. Id. at 7. The
written record does not show that the administrative judge ruled on the motion.
IAF, Tabs 37-43. To the extent that the administrative judge failed to rule on the
appellant’s motion, such a failure was nonprejudicial error. See Jarrard v.
Department of Justice, 113 M.S.P.R. 502, ¶ 11 n.1 (2010) (finding that it was
error for an administrative judge not to rule on a motion to strike). An
adjudicatory error that is not prejudicial to a party’s substantive rights provides
no basis for reversal of an initial decision. Panter v. Department of the Air
Force, 22 M.S.P.R. 281, 282 (1984). As set forth below, we find that any error
by the administrative judge in failing to address the appellant’s motion for
sanctions did not prejudice her substantive rights.
¶6 An administrative judge may impose sanctions upon a party, including
drawing an inference in favor of the requesting party, as necessary to serve the
ends of justice. Bernstein v. Department of the Army, 82 M.S.P.R. 375, ¶ 7
(1999). Such a sanction also may involve excluding or limiting a representative’s
participation for contumacious conduct or conduct prejudicial to the
administration of justice. 5 C.F.R. § 1201.43(d). The Board has required
evidence showing that an agency official threatened a witness with adverse
consequences, such as disciplinary action, or suggested that a witness either not
testify or not testify truthfully before the Board will find that the agency official
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intimidated that witness. Bernstein, 82 M.S.P.R. 375, ¶ 12. We find that the
allegations set forth above, even if true, do not rise to the level of witness
intimidation, contumacious conduct, or conduct prejudicial to the administration
of justice. See West v. U.S. Postal Service, 44 M.S.P.R. 551, 560-61 (1990). In
any event, the appellant has not shown that the denial of her motion affected her
substantive rights because she does not suggest how the witnesses in question
would have testified absent such alleged intimidation. See De Bow v. Department
of the Air Force, 97 M.S.P.R. 5, ¶ 11 (2004). Thus, the appellant has not shown a
basis for imposing a sanction in this case.
¶7 The appellant also contends that the administrative judge erred when she
denied as irrelevant the appellant’s request for J.R., O.F., and J.W. as witnesses,
all of whom were deciding officials in either the disciplinary actions taken against
her or her performance appraisals, and her request for E.W., who w as the primary
contact for the RIF. PFR File, Tab 1 at 11. The appellant asserts that the
administrative judge then improperly referred to statements from J.R., O.F., and
J.W. in the initial decision, even though the appellant did not have an opportunity
to cross-examine them. Id. at 11-12. She also contends that the administrative
judge did not respond to her motion to clarify the summary of a prehearing
conference. Id. at 8, 12.
¶8 The appellant asserted that J.R., O.F., J.W., and E.W. would testify to the
“contents of [their] sworn affidavit[s] and the events surrounding the disciplinary
actions taken against the Appellant.” IAF, Tab 19, Part A at 29. The
administrative judge granted four witnesses who had been requested by both
parties, five additional witnesses requested by the agency, and three additional
witnesses requested by the appellant. IAF, Tab 20 at 16 -17. The administrative
judge denied the request for J.R., O.F., J.W., and E.W. as irrelevant. Id. at 17.
¶9 An administrative judge has wide discretion under 5 C.F.R.
§ 1201.41(b)(8), (10) to exclude witnesses when it has not been shown that their
testimony would be relevant, material, and nonrepetitious. Franco v. U.S. Postal
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Service, 27 M.S.P.R. 322, 325 (1985). Here, the appellant did not indicate in her
prehearing submission that these witnesses’ hearing testimony would differ from
their affidavit testimony. Moreover, the summary of the prehearing conference
did not identify any disciplinary actions taken against the appellant as issues in
the case, except to the extent that they could form the basis for an IRA appeal,
IAF, Tab 20 at 1-14, and the appellant did not object to the administrative judge’s
rulings on witnesses, see Tarpley v. U.S. Postal Service, 37 M.S.P.R. 579, 581
(1988) (finding that the appellant’s failure to timely object to the administrative
judge’s rulings on witnesses precluded his doing so on petition for review). The
administrative judge noted that the appellant indicated that she had not requested
corrective action from OSC, id. at 10, and ultimately found that the appellant
abandoned her whistleblowing claim, ID at 28 n.13. Thus, we find no abuse of
discretion by the administrative judge in denying these witnesses. Although the
appellant asserts that the administrative judge did not respond to her motion to
clarify the summary of the prehearing conference, it is not clear from the
appellant’s motion what she sought to have clarified asid e from possible
questions regarding deadline dates. IAF, Tab 21 at 4-5. Any such ambiguity is
not relevant to the issues on review.
¶10 The appellant also asserts that the administrative judge did not cite to Hillen
v. Department of the Army, 35 M.S.P.R. 453 (1987), or refer to the factors for
determining credibility set forth in Hillen. PFR File, Tab 1 at 13. She contends
that, contrary to her supervisor’s unsupported testimony that production in the
WELSA office declined sharply in April 2013 without paralegal support, thereby
justifying the reassignment of new cases away from the appellant to an
administrative law judge in Salt Lake City, Utah, the appellant continued to
maintain similar production numbers, with only 18 fewer cases produced between
fiscal years 2012 and 2013. Id. The appellant asserts that her supervisor testified
falsely that she lowered the appellant’s performance appraisal due to, among
other things, the appellant saying to her that a paralegal was “unable to learn,”
7
“not normal,” and “seemed like a child with a disability” ; the appellant asserts
that she did not attribute negative statements to the paralegal, did not make false
claims, and was not uncooperative. Id. at 13-14. In particular, the appellant
asserts that statements her supervisor made in her pre-fiscal year (FY) 2012
appraisals of the appellant and to an EEO investigator regarding the contents of
the FY 2012 appraisal conflict with the findings made by the administrative judge
in the initial decision. Id. at 14. The appellant further contends that, contrary to
her supervisor’s testimony that the appellant objected to using the support staff in
Salt Lake City, the exhibit cited by the administrative judge did not support that
testimony. Id. at 15. She also asserts that her supervisor’s testimony that the
appellant was disrespectful and argumentative during a teleconference was
contradicted by testimony and evidence from a legal assistant, P.H., and the
appellant. Id.
¶11 The administrative judge found that in May 2014, the agency directed the
appellant’s supervisor to reduce the OHA’s budget by $474,000 and
approximately four full-time equivalent positions (FTEs). ID at 8; IAF, Tab 7 at
83; Hearing Transcript Day 1 (HTD1) at 35-38. The appellant does not dispute
this finding on review. The record also reflects that the appellant’s supervisor
determined that other offices within her control could not absorb the loss of
FTEs, but the WELSA division, which consisted of the appellant and another
individual at the time, was a stand-alone office that was expensive, handled a
relatively small case load, and could be eliminated because the Salt Lake City
office could absorb WELSA work without additional FTEs. HTD1 at 42 -43. We
find that the administrative judge correctly determined that the agency’s decision
to reorganize by closing the WELSA office was not arbitrary or irrationa l under
the circumstances, and that Federal agencies have broad management discretion
to act to avoid a budgetary deficit. ID at 8‑10; see Waksman v. Department of
Commerce, 37 M.S.P.R. 640, 645 (1988), aff’d sub nom. Harris v. Department of
Commerce, 878 F.2d 1447 (Fed. Cir. 1989) (Table); cf. Einboden v. Department
8
of the Navy, 802 F.3d 1321, 1325-26 (Fed. Cir. 2015) (holding that a furlough
promotes the efficiency of the service when it is a reasonable management
solution to the financial restrictions placed on the agency). The agency, not the
Board, is responsible for deciding whether to retain or abolish particular positions
during a RIF and how to accommodate a shortage of funds. Waksman, 37
M.S.P.R. at 645-46. Regarding the appellant’s performance appraisal, the
administrative judge correctly found that, even if the appellant’s appraisal had
been rated superior, rather than minimally successful for FY 2012, it did not
make a difference in the appellant’s retention standing for purposes of the RIF.
ID at 12-13; see Hearing Transcript Day 2 at 210-14. The appellant’s other
arguments do not demonstrate error in the administrative judge’s determination
that the agency showed by preponderant evidence that the RIF was bona fide and
not personal to the appellant. ID at 8-10.
¶12 The appellant also asserts that her supervisor had discriminatory animus
because she verbally opposed a settlement agreement into which the appellant had
entered, gave her a minimally successful performance appraisal for FY 2012
based on information she later admitted was unsubstantiated, initiated two
unfounded disciplinary actions against the appellant suspending her for 3 and 5
days, respectively, and directed her to attend weekly teleconferences at which she
was harassed and verbally abused. PFR File, Tab 1 at 17-18. Further, the
appellant contends that her supervisor was only an “Acting Director” who should
not have initiated restructuring actions but who instead should have been a
“caretaker,” a tribal council chairwoman objected to moving the WELSA office to
Salt Lake City, and similarly situated male employees were retained. Id. at
19-20, 23.
¶13 The administrative judge found that the appellant did not show that her
supervisor placed false information in her FY 2012 performance evaluation, the
appellant’s evidence regarding her prior disciplinary actions did not establish a
motive for sex discrimination, the legal assistant who attended the weekly
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teleconferences did not substantiate the appellant’s claim that the appellant’s
supervisor defamed, threatened, and abused her, P.H.’s testimony did not support
a finding of sex discrimination because she did not testify that the appellant’s
supervisor treated women any differently from men, and the appellant was not
similarly situated to male employees who were not separated because they either
held a different position, occupied a different grade level, or held a position that
the agency determined it needed to retain. ID at 18‑21. Although the appellant
contends that her supervisor opposed the term of the settlement agreement
requiring the agency to appoint the appellant to a position in the Twin Cities area,
the record reflects that the appellant’s supervisor acknowledged that the matter
had been decided, but merely expressed her view that it was not financially
advantageous to open a new office in that location. HTD1 at 81-83. The
appellant has not identified on review any evidence showing that her supervisor
lacked the authority to recommend or implement the restructuring changes at
issue in this case, even as an acting director. In fact, although an acting director
typically may not have taken bold, major restructuring actions, the then-Deputy
Assistant Secretary testified that she came to him with restructuring ideas
“because of the crisis that we were in and my . . . pressure to all of the offices to
really . . . scrub every opportunity,” and that such recommendations from the
appellant’s supervisor were “exactly what I was hoping to see from all of my
offices.” HTD1 at 147-48, 161-62. The appellant has identified no evidence on
review showing that the agency’s decision to abolish her position, despite any
initial objection from a tribal chief as to the WELSA office’s location, was based
on discrimination.
¶14 In adjudicating the appellant’s discrimination claim, the administrative
judge applied the evidentiary standards set forth in Savage v. Department of the
Army, 122 M.S.P.R. 612, ¶¶ 42-43, 51 (2015), and observed that the appellant
sought to prove her claim with circumstantial evidence using a “mosaic” theory of
discrimination. ID at 17. Regardless of the characterization of evidence relating
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to the discrimination claim, we find that the administrative judge properly
considered the evidence as a whole in finding that the appellant did not prove that
discrimination based on sex or retaliation based on prior EEO activity was a
motivating factor in her separation by RIF. See Gardner v. Department of
Veterans Affairs, 123 M.S.P.R. 647, ¶¶ 30-31 (2016).
¶15 Finally, the appellant contends that the agency should have selected her for
an administrative judge position with the Indian Board of Appeals, and that her
supervisor harmed her selection prospects by informing the selecting official that
the appellant had filed a grievance and an EEO complaint. PFR File, Tab 1 at 24.
The appellant also asserts that, because the agency transferred her function to
Salt Lake City, it should have transferred her to the Salt Lake City competitive
area without a change in the tenure of her employment. Id. at 26-27.
¶16 The appellant has not shown that her nonselection for another position is
relevant to the merits of her separation by RIF or her affirmative defenses.
Moreover, whether the agency should have applied the transfer of function
regulations set forth at 5 C.F.R. part 351, subpart C was not identified as an issue
in this case. IAF, Tab 20 at 1-6. Because the appellant did not raise this
argument regarding transfer of function below, and she has not shown that it is
based on new and material evidence not previously available despite her due
diligence, we need not address it for the first time on review. See Banks v.
Department of the Air Force, 4 M.S.P.R. 268, 271 (1980). In any event, we find
that no transfer of function occurred in this case. A “function” is “all or a clearly
identifiable segment of an agency’s mission (including all integral parts of that
mission), regardless of how it is performed.” 5 C.F.R. § 351.203. A “transfer of
function,” in relevant part, is “the transfer of the performance of a continuing
function from one competitive area and its addition to one or more other
competitive areas, except when the function involved is virtually identical to
functions already being performed in the other competitive area(s) affected.” Id.
No transfer of function occurred in this case because the agency’s Salt Lake City
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office was already performing an adjudication function, including processing
WELSA cases. IAF, Tab 7, Part 4 at 14, 18; HTD1 at 32-34, 168-69; see Mullen
v. Department of the Navy, 76 M.S.P.R. 590, 597 (1997).
¶17 Accordingly, we deny the petition for review and affirm the initial decision.
NOTICE TO THE APPELLANT REGARDING
YOUR FURTHER REVIEW RIGHTS
You have the right to request further review of this final decision. There
are several options for further review set forth in the paragraphs below. You may
choose only one of these options, and once you elect to pursue one of the avenues
of review set forth below, you may be precluded from pursuing any other avenue
of review.
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.
Other Claims: Judicial Review
If you want to request review of the Board’s decision conc erning your
claims of prohibited personnel practices described in 5 U.S.C. § 2302(b)(8),
(b)(9)(A)(i), (b)(9)(B), (b)(9)(C), or (b)(9)(D), but you do not want to challenge
the Board’s disposition of any other claims of prohibited personnel practices, you
may request review of this final decision by the U .S. Court of Appeals for the
Federal Circuit or by any court of appeals of competent jurisdiction. The court of
appeals must receive your petition for review within 60 days after the date of this
order. See 5 U.S.C. § 7703(b)(1)(B) (as rev. eff. Dec. 27, 2012). If you choose
to file, be very careful to file on time.
If you need further information about your right to appeal this decision to
court, you should refer to the Federal law that gives you this right. It is found in
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title 5 of the United States Code, section 7703 (5 U.S.C. § 7703) (as rev. eff.
Dec. 27, 2012). You may read this law as well as other sections of the United
States Code, at our website, http://www.mspb.gov/appeals/uscode/htm.
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, and 11. Additional
information about other 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.
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
Merit Systems Protection Board neither endorses the services provided by any
attorney nor warrants that any attorney will accept representation in a given case.
FOR THE BOARD: ______________________________
Jennifer Everling
Acting Clerk of the Board
Washington, D.C.