Nadra K. Dunbar v. Department of Transportation
Background
- Nadra K. Dunbar, a GS-14 HR Specialist, was removed by the Department of Transportation on multiple charges including insubordination, false statements, misrepresentation of authorship, workplace disruption, unprofessional behavior, and failure to follow instructions.
- Dunbar appealed to the Merit Systems Protection Board (MSPB); an administrative judge sustained several charges, found nexus and penalty reasonable, and denied Dunbar’s affirmative defenses (EEO retaliation, whistleblowing, and procedural error) for lack of proof.
- Procedurally, the AJ issued an acknowledgment order setting discovery deadlines, then suspended case processing for 30 days. During suspension the agency filed two motions to compel; the AJ granted both quickly and later sanctioned Dunbar for purported discovery noncompliance, precluding her from introducing evidence on areas covered by the discovery requests.
- At hearing Dunbar offered little testimony (apparently constrained by the sanctions), and the AJ relied on the undeveloped record to reject her affirmative defenses and uphold removal.
- On petition for review the full Board found the AJ abused her discretion in granting the agency’s motions to compel during the suspension period and therefore abused her discretion in imposing sanctions that prevented Dunbar from developing evidence on her affirmative defenses.
- The Board remanded for limited discovery solely on Dunbar’s affirmative defenses and a supplemental hearing confined to those issues; if Dunbar fails to prove the defenses, the AJ may adopt prior findings as to charges, nexus, and penalty.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Did the AJ properly grant the agency’s motions to compel during a 30-day suspension of case processing? | Dunbar said she was unaware of the AJ’s acknowledgment order and reasonably relied on the suspension; she lacked proper opportunity to respond. | Agency asserted it served discovery timely and the motions were proper. | AJ abused discretion in granting motions to compel during suspension without giving Dunbar proper opportunity to oppose. |
| Were sanctions precluding Dunbar from offering evidence justified for discovery noncompliance? | Dunbar contended she made a good-faith effort and that sanctions unfairly foreclosed her defense. | Agency argued Dunbar failed to respond adequately and sanctions were warranted. | Because the motions to compel were improperly granted, the sanctions based on them were also an abuse of discretion. |
| Did exclusion of evidence bar Dunbar from proving affirmative defenses (EEO retaliation, whistleblowing, procedural error)? | Dunbar argued the discovery rulings and sanctions prevented development of evidence on these defenses. | Agency maintained Dunbar failed to produce proof of affirmative defenses. | Excluding evidence supporting whistleblower/retaliation claims and then relying on the empty record to deny them is improper; remand required to develop the record. |
| Remedy: Is remand with limited discovery appropriate? | Dunbar asked for ability to pursue discovery and present evidence on affirmative defenses. | Agency opposed reopening discovery. | Board remanded for renewed discovery limited to affirmative defenses and a supplemental hearing; AJ may adopt earlier findings on other issues if Dunbar fails to prove defenses. |
Key Cases Cited
- Whitmore v. Department of Labor, 680 F.3d 1353 (Fed. Cir.) (excluding evidence that would support whistleblower retaliation and then denying claim for lack of evidence is an abuse of discretion)
- Smets v. Department of the Navy, 117 M.S.P.R. 164 (MSPB) (imposition of discovery sanctions is discretionary and reviewed for abuse of discretion)
- Parker v. Department of Housing & Urban Development, 106 M.S.P.R. 329 (MSPB) (administrative judges have broad discretion over discovery rulings)