Sandra Barrowclough v. Department of Veterans Affairs
AT-0714-21-0061-I-1
MSPBDec 23, 2024Background
- Sandra Barrowclough was removed from her position as a GS-5 Nursing Assistant at the Department of Veterans Affairs in 2019 under 38 U.S.C. § 714, based on inability to perform essential job functions.
- After the proposed removal, the agency gave her a 90-day period to seek reassignment, but eventually enforced her removal when no suitable position was found.
- Barrowclough initially challenged her removal by filing a mixed-case complaint (alleging discrimination) with the agency, and subsequently appealed the agency’s adverse decision to the Merit Systems Protection Board (MSPB).
- The agency argued that MSPB lacked jurisdiction because Barrowclough had pursued her claims with the EEOC, but the Board found otherwise upon later review of the Final Agency Decision (FAD).
- The administrative judge had dismissed the appeal for lack of jurisdiction, but the MSPB granted Barrowclough’s petition for review, finding the Board did have jurisdiction and identifying further errors related to the agency’s and Board’s review standards that had to be revisited upon remand.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| MSPB Jurisdiction over mixed-case appeal | Board has jurisdiction per appeal rights notice | Board divested of jurisdiction due to EEOC case | Board has jurisdiction; appeal timely filed |
| Election of forum (EEOC vs MSPB for mixed cases) | Properly exercised MSPB appeal rights after FAD | EEOC election was binding | MSPB review permitted for removal-related claims |
| Burden of proof standard for agency discipline | Agency erred in applying substantial evidence | Agency standard properly applied | Agency applied wrong standard; use preponderance |
| Reasonableness of penalty imposed | Agency penalty may be excessive/unreasonable | Agency’s penalty was appropriate | Board must review penalty for reasonableness |
Key Cases Cited
- Rodriguez v. Dep’t of Veterans Affairs, 8 F.4th 1290 (Fed. Cir. 2021) (agency must apply preponderance standard, not substantial evidence, in disciplinary actions under § 714)
- Bryant v. Dep’t of Veterans Affairs, 26 F.4th 1344 (Fed. Cir. 2022) (echoing Rodriguez on standard of proof required of agency)
- Connor v. Dep’t of Veterans Affairs, 8 F.4th 1319 (Fed. Cir. 2021) (Board must review penalty for reasonableness in § 714 actions)
- Harrington v. Dep’t of Veterans Affairs, 981 F.3d 1356 (Fed. Cir. 2020) (mandates Board review of penalty in adverse actions)
- Sayers v. Dep’t of Veterans Affairs, 954 F.3d 1370 (Fed. Cir. 2020) (requirement for Board review of penalties in MSPB appeals)