Robin Sabio v. Department of Veterans Affairs, 2017 MSPB 4

Background

Appellant Sabio was a term GS-7 Veterans Claims Examiner (VRAP) subject to a 1-year probationary period; the agency issued a probationary termination effective June 14, 2013, but later rescinded it after determining her probation had ended, reinstating her for the remainder of the term.
Sabio pursued race- and sex-based discrimination/hostile-work-environment affirmative defenses to the rescinded termination before the MSPB despite reinstatement and continued employment.
The administrative judge imposed sanctions for Sabio’s failure to comply with prehearing orders, limiting her evidence to her own testimony and record material, and struck her hostile-work-environment claim as legally deficient; he also struck a late-filed coworker affidavit submitted after the hearing began.
A multi-day hearing followed on the remaining race-discrimination affirmative defense; the judge credited agency witnesses and found Sabio failed to prove race was a motivating factor in the removal or that the agency’s explanations were pretextual.
On review the Board (1) denied Sabio’s procedural motions, (2) clarified when an AJ must hold a hearing on discrimination claims (discussing the line between dismissal for failure to state a claim and improper summary judgment), and (3) affirmed the initial decision as modified to apply Savage’s evidentiary approach.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether AJ erred by striking hostile work environment claim pre‑hearing	Sabio argued observation of coworkers’ sexual behavior created hostile environment that impaired performance	Agency argued allegations were conclusory, lacked particulars, and did not state a cognizable sex‑based hostile environment claim	Claim was legally deficient as a matter of law; striking it without a hearing was proper because, even accepting allegations, Title VII not implicated by generalized workplace flirtation
Whether AJ abused discretion in imposing sanctions and excluding late affidavit	Sabio contended exclusion prejudiced her case and that coworker should be admitted as permissive intervenor	Agency cited Sabio’s repeated noncompliance with orders and sanction rationale	AJ did not abuse discretion; sanctions were appropriate and permissive intervention was not warranted
Whether race discrimination was a motivating factor in the rescinded termination	Sabio alleged disparate seating, assignment, assistance, performance standards, and later alleged racial nicknames	Agency denied discriminatory conduct and presented testimony/documentation showing nondiscriminatory practices and performance failures	Board affirmed that Sabio failed to prove race was a motivating factor by preponderant evidence; credibility findings for agency witnesses sustained
Proper legal standard/procedure for disposing of discrimination claims without a hearing	Sabio argued she was entitled to a hearing on discrimination claims connected to an appealable action	Agency relied on precedent permitting dismissal where allegations are legally deficient	Board clarified: where allegations are facially deficient (fail to state cognizable claim) claim may be dismissed without hearing; but an AJ may not grant post‑discovery summary judgment in contravention of Crispin; Savage’s evidentiary approach governs analysis

Key Cases Cited

Crispin v. Department of Commerce, 732 F.2d 919 (Fed. Cir.) (appellant entitled to a hearing; Board procedures do not permit summary judgment)
Anderson v. Liberty Lobby, 477 U.S. 242 (summary judgment standard: no genuine dispute of material fact)
Meritor Savings Bank v. Vinson, 477 U.S. 57 (hostile work environment standard)
Harris v. Forklift Systems, 510 U.S. 17 (severity/pervasiveness inquiry for hostile environment)
McDonnell Douglas Corp. v. Green, 411 U.S. 792 (burden‑shifting framework for discrimination claims)
Oncale v. Sundowner Offshore Services, 523 U.S. 75 (Title VII does not create a general civility code; harassment must involve protected characteristic)