UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
DONALD E. GRYDER, DOCKET NUMBER
Appellant, AT-0752-16-0466-I-1
v.
DEPARTMENT OF DATE: June 22, 2023
TRANSPORTATION,
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Donald E. Gryder, Johnson City, Tennessee, pro se.
Linda Martin and Elizabeth A. Sorrells, Esquire, Washington, D.C., for the
agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
FINAL ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
affirmed the agency’s removal action. 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
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
interpretation of statute or regulation or the erroneous application of the law to
the facts of the case; the administrative judge’s rulings during either the course of
the appeal or the initial decision were not consistent with required procedures or
involved an abuse of discretion, and the resulting error affected the outcome of
the case; or new and material evidence or legal argument is available that, despite
the petitioner’s due diligence, was not available when the record closed. Title 5
of the Code of Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115).
After fully considering the filings in this appeal, we conclude that the petitioner
has not established any basis under section 1201.115 for granting the petition for
review. Therefore, we DENY the petition for review. Except as expressly
MODIFIED to consider the appellant’s affirmative defense of retaliation for
engaging in activity protected by the Rehabilitation Act, we AFFIRM the initial
decision.
¶2 On petition for review, the appellant challenges the administrative judge’s
findings regarding the agency’s charges of misconduct, his claim of a violation of
his due process rights, the affirmative defenses of discrimination (age and
disability) and retaliation for prior equal employment opportunity (EEO) activity,
and the reasonableness of the imposed penalty. Petition for Review (PFR) File,
Tab 6 at 6-31. 2 Further, he argues that the administrative judge erroneously
denied his motion to compel discovery and denied him a hearing. Id. at 19, 25.
With his petition for review, the appellant has submitted evidence predating the
close of the record before the administrative judge. Id. at 4-5, 32-59. 3 The
2
For the first time on review, the appellant asserts that the agency committed the
prohibited personnel practices described in 5 U.S.C. § 2302(b)(8), (b)(9), and (b)(12).
PFR File, Tab 6 at 9-17. We decline to address further the appellant’s new claims
because he has not explained why he was unable to raise them before the administrative
judge. See Banks v. Department of the Air Force, 4 M.S.P.R. 268, 271 (1980).
3
The appellant has failed to explain why he was unable to submit the “new”
evidence—consisting of an email dated April 30, 2014, and medical
documentation—before the record closed despite his due diligence. PFR File, Tab 6
at 38-59; see Avansino v. U.S. Postal Service, 3 M.S.P.R. 211, 214 (1980).
3
agency has filed a response to the appellant’s petition for review, PFR File,
Tab 8, 4 and he has filed a reply to the agency’s response, PFR File, Tab 9. 5 In his
reply, the appellant argues that the administrative judge was biased and engaged
in improper ex parte communications with the agency. 6 Id. at 2, 5-6, 8, 11.
¶3 After considering the appellant’s arguments on the merits of the appeal , we
find that they were adequately addressed in the initial decision by the
administrative judge, and we discern no reason to disturb her findings. Initial
Nevertheless, we find that such evidence is immaterial to the outcome of this appeal.
The appellant’s evidence of an email exchange concerning the inspection reports for
April 7 and 8, 2014, and an email dated April 22, 2014, was part of the record before
the administrative judge and, thus, does not constitute new evidence. PFR File, Tab 6
at 4-5, 32-37; Initial Appeal File, Tab 14 at 36-39, Tab 73 at 51-52; see Meier v.
Department of the Interior, 3 M.S.P.R. 247, 256 (1980).
4
We disagree with the appellant’s assertion that the agency’s response to his petition
for review was untimely filed. PFR File, Tab 9 at 1-2; see 5 C.F.R. §§ 1201.4(l),
1201.14(m)(1), 1201.23. In addition, we deny the appellant’s request to reject the
agency’s response as procedurally inadequate. PFR File, Tab 9 at 1-2.
5
We deny the agency’s motion for leave to file a response to the appellant’s reply.
PFR File, Tab 14; see 5 C.F.R. § 1201.114(a)(5).
6
After filing the petition for review and reply, the appellant filed a motion for leave to
file an additional pleading. PFR File, Tab 19. Specifically, the appellant is requesting
to submit a recent decision by the Office of Federal Operations (OFO) allegedly finding
that the agency retaliated against him for his prior EEO activity. Id. at 1-2. For
purposes of this case, the record on review closed on the expiration of the period for
filing the reply to the response to the petition for review. See 5 C.F.R. § 1201.114(k).
Once the record on review closes, no additional evidence or argument will be accepted
unless it is new and material and the party submitting it shows that the evidence or
argument was not readily available before the record closed. Id. To constitute new
evidence, the information contained in the document, not just the document itself, must
have been unavailable despite due diligence when the record closed. Durr v.
Department of Veterans Affairs, 119 M.S.P.R. 195, ¶ 23 (2013). Here, the appellant has
not shown that the evidence relied upon by the OFO in its decision was unavail able
despite his due diligence before the record on review closed. Therefore, we deny the
appellant’s motion for leave to file an additional pleading. See id. (denying the
appellant’s request for leave to submit a court decision after the record closed o n
review); 5 C.F.R. § 1201.114(a)(5), (k).
4
Appeal File (IAF), Tab 78, Initial Decision (ID) at 3 -32. 7 Moreover, we find that
the administrative judge did not abuse her discretion in granting the agency’s
motion for sanctions by canceling the scheduled hearing based on the appellant’s
contumacious and prejudicial conduct as to the agency’s attempts to take his
deposition. IAF, Tab 65 at 1-3; see, e.g., Heckman v. Department of the Interior,
106 M.S.P.R. 210, ¶¶ 8-12 (2007); 5 C.F.R. § 1201.43(e). The record supports
the administrative judge’s explanation that the appellant failed to appear for a
scheduled deposition despite being warned three times that his failure to appear
may result in sanctions. IAF, Tab 40 at 1, Tab 54 at 3, Tab 58 at 1, Tab 65 at 3.
We further find that the administrative judge did not abuse her discretion in
denying the appellant’s motion to compel discovery because he failed to serve his
requests for discovery on the correct agency. IAF, Tab 26 at 1; see, e.g.,
Kingsley v. U.S. Postal Service, 123 M.S.P.R. 365, ¶ 17 (2016); 5 C.F.R.
§ 1201.74(a). In addition, we find that the appellant’s arguments of adjudicatory
bias and improper ex parte communications between the administrative judge and
the agency provide no basis for disturbing the initial decision. In particular, the
Board will not infer bias based on an administrative judge’s case-related rulings,
Vaughn v. Department of the Treasury, 119 M.S.P.R. 605, ¶ 18 (2013), and we
find that the appellant’s broad allegation of bias is insufficient to rebut the
presumption of the administrative judge’s honesty and integrity, see Oliver v.
Department of Transportation, 1 M.S.P.R. 382, 386 (1980). Further, the
appellant has failed to describe or provide evidence of improper ex parte
communications or to specify how his substantive rights were harmed by not
participating in a telephonic close-of-record conference. IAF, Tab 40 at 2 n.1;
see Karapinka v. Department of Energy, 6 M.S.P.R. 124, 127 (1981).
7
Because we affirm the administrative judge’s finding that the appellant failed to show
that any prohibited consideration was a motivating factor in the agency’s action, we
need not resolve the issue of whether the appellant proved that discrimination or
retaliation was a “but-for” cause of the agency’s decisions. See Pridgen v. Office of
Management and Budget, 2022 MSPB 31, ¶¶ 20-22, 29-33.
5
¶4 For the following reasons, we modify the initial decision as follows to
consider the appellant’s affirmative defense of retaliation for engaging in activity
protected by the Rehabilitation Act. As mentioned above, the appellant raised the
affirmative defense of retaliation for prior EEO activity. The record reflects that
the appellant filed 18 prior EEO complaints, 3 of which concerned allegations of
disability discrimination. IAF, Tab 8 at 97 n.3, 113, Tab 17 at 20-23. The
administrative judge found that the appellant failed to prove that his prior EEO
activity was a factor in the agency’s decision to remove him. ID at 30-32.
However, because three of the appellant’s prior EEO complaints in 2003, 2014,
and 2015 concerned disability discrimination, we find th at the appellant’s EEO
retaliation claim includes a separate affirmative defense of retaliation for
engaging in activity protected by the Rehabilitation Act. IAF, Tab 17 at 20, 23.
Asserting disability discrimination is an activity protected by the Rehabilitation
Act. 8 Pridgen v. Office of Management and Budget, 2022 MSPB 31, ¶ 44. The
anti-retaliation provision of the Americans with Disabilities Act of 1990, which is
incorporated by reference in the Rehabilitation Act, prohibits discriminating
against any individual “because such individual” has engaged in protected
activity. 42 U.S.C. § 12203(a); Pridgen, 2022 MSPB 31, ¶ 44. An affirmative
defense of retaliation for engaging in activity protected by the Rehabilitation Act
is analyzed under the “but-for” causation standard, i.e., if the agency would not
have taken the same action in the absence of the protected activity. Pridgen,
2022 MSPB 31, ¶¶ 44-47. Here, because the administrative judge found that the
appellant failed to prove that any of his prior 18 EEO complaints were a factor in
his removal, we find that he cannot meet the higher “but-for” causation standard
to prove retaliation for engaging in activity protected by the Rehabilitation Act.
8
The standards under the Americans with Disabilities Act of 1990 have been
incorporated by reference into the Rehabilitation Act, and the Board applies them to
determine whether there has been a Rehabilitation Act violation. 29 U.S.C. § 791(f);
Pridgen, 2022 MSPB 31, ¶ 35; Miller v. Department of the Army, 121 M.S.P.R. 189,
¶ 13 n.3 (2014).
6
¶5 Accordingly, we affirm the initial decision except as modified herein.
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 si tuation 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.
7
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
8
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
9
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 w ebsite 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.
10
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: /s/ for
Jennifer Everling
Acting Clerk of the Board
Washington, D.C.