Lois Starkey v. Department of Housing and Urban DevelopmentLois Starkey v. Department of Housing and Urban Development
Nicole Y. Drew, Washington, D.C., for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
OPINION AND ORDER
¶1 The agency has filed a petition for review of the initial decision, which reversed the appellant‘s probationary termination. For the reasons discussed below, we DENY the agency‘s petition for review and AFFIRM the initial decision.
BACKGROUND
¶2 The appellant filed the instant appeal, asserting that the agency terminated her competitive-service probationary appointment for partisan political reasons. Starkey v. Department of Housing and Urban Development, MSPB Docket No. DC-315H-18-0258-I-1, Initial Appeal File (IAF), Tab 1 at 6. The administrative judge held the requested hearing before issuing an initial decision. Starkey v. Department of Housing and Urban Development, MSPB Docket No. DC-315H-18-0258-I-3, Appeal File (I-3 AF), Hearing Transcript (HT)1; Starkey v. Department of Housing and Urban Development, MSPB Docket No. DC-315H-18-0258-I-4, Appeal File (I-4 AF), Tab 4, Initial Decision (ID).
¶3 The following facts, as further described in that initial decision, are not materially disputed. In June 2017, the Trump administration named a new political appointee as General Deputy Assistant Secretary for Housing (GDASH). HT at 171 (testimony of the GDASH). Prior to this political appointment, some of the appointee‘s professional experience included working for Republicans in both houses of Congress. Id. at 171-72.
¶4 The next month, in July 2017, the agency hired the appellant as a GS-14 Manufactured Housing Specialist, a career competitive-service position, within the agency‘s Office of Manufacturing Housing Programs (OMHP), in Washington, D.C. IAF, Tab 11 at 23. The appellant‘s prior professional experience included several positions with the Manufactured Housing Institute, most recently as the Vice President of Regulatory Affairs, as well as a Legislative and Policy Associate position with the National Council of State Housing Agencies. I-3 AF, Tab 7 at 20-24. In addition, the appellant had worked as a Legislative Assistant for a Democratic Congressional representative, served as a political appointee for the Carter administration, held an elected position as a member of her local Democratic committee, and managed the campaign of her husband, who ran for elected office as a Democrat. E.g., I-3 AF, Tab 7 at 24-25;
¶5 Just days after the appellant began working for the agency, the head of a Washington, D.C.-based industry group—the Manufactured Housing Association for Regulatory Reform (MHARR)—sent a complaint to several agency officials, including the agency‘s White House Liaison, advisors to the President, and the Chief of Staff to the Secretary of Housing and Urban Development. IAF, Tab 6 at 15-16, 19-20, 29. In this letter, MHARR complained that the agency had retained the appellant‘s second-level supervisor, “an Obama Administration holdover,” and hired the appellant, “an Obama donor herself,” whom he further described as having connections to “Obama supporter, Warren Buffet.” Id. at 15-16. He attached public contribution records to evidence the appellant‘s contributions to “Obama for America” in 2012. Id. at 17. Among other things, the MHARR complaint described the agency‘s actions in this regard as “amazingly ill-considered, offensive and arguably scandalous,” surmising that both individuals would “defy and resist” the administration‘s policies. Id. at 15.
¶6 In August 2017, the month after the agency hired the appellant, she met with her first- and second-level supervisors to discuss an ongoing dispute between the agency and a state partner, the Oregon State Administrative Agency. IAF, Tab 6 at 11-12; HT at 123 (testimony of the second-level supervisor). The appellant suggested that it might be helpful to discuss the matter with the Oregon Manufactured Housing Association to assist in resolving the dispute, and her second-level supervisor agreed. The second-level supervisor tasked the appellant with contacting the Oregon Manufactured Housing Association. HT
¶7 In September 2017, the agency‘s state partners in Oregon sent a letter to the Secretary of Housing and Urban Development, threatening to withdraw from their partnership, in part due to the appellant‘s alleged sharing of “sensitive government-to-government discussions with outside parties.” IAF, Tab 11 at 17-21. When this complaint reached the appellant‘s second-level supervisor, she issued an internal memorandum to the appellant‘s third-level supervisor and the GDASH, defending OMHP‘s action and assuring them that the appellant had not shared any confidential or sensitive information. IAF, Tab 6 at 31-32.
¶8 In October 2017, the head of MHARR sent another complaint to the agency that was the subject of discussions among the appellant‘s first-, second-, and third-level supervisors. I-3 AF, Tab 9 at 98-99. However, it is not apparent whether that complaint, like the prior MHARR complaint, involved anyone‘s political affiliation. Id.
¶9 In a November 2017 performance appraisal by her first- and second-level supervisors, the agency rated the appellant “outstanding,” the highest possible rating, and described her as an “invaluable asset.” I-3 AF, Tab 7 at 26-37. Yet, despite the support from her immediate chain of command, the appellant‘s third-level supervisor terminated the appellant soon thereafter, after consulting with the GDASH and others. IAF, Tab 1 at 9-10; HT at 188-89 (testimony of the GDASH), 341-45 (testimony of the third-level supervisor). The reason for the December 19, 2017 termination, as described in the termination letter, was the appellant‘s alleged release of sensitive information to industry stakeholders in Oregon, as described in the complaint by the agency‘s partners from Oregon State Government. IAF, Tab 1 at 9, Tab 11 at 17-18. The day before, the GDASH also detailed the appellant‘s second-level supervisor from her GS-15 position as Administrator of OMHP to a position described as comparable to that of an
¶10 The appellant filed the instant appeal, arguing that the agency impermissibly terminated her for partisan political reasons. IAF, Tab 1 at 6. The administrative judge agreed and reversed the probationary termination, finding that officials cited the Oregon complaint as a mere pretext to remove the appellant for known political affiliations. ID at 38-49.
¶11 The agency filed a petition for review. Starkey v. Department of Housing and Urban Development, MSPB Docket No. DC-315H-18-0258-I-4, Petition for Review (PFR) File, Tab 1. The appellant filed a response, and the agency replied. PFR File, Tabs 5, 9. The parties also submitted competing arguments, evidence, and pleadings regarding interim relief. PFR File, Tab 5 at 4, Tabs 6-7, Tab 9 at 4-5.
ANALYSIS
The agency failed to comply with its interim relief obligations.
¶12 The Board‘s regulations provide that, if an appellant was the prevailing party in the initial decision, and the initial decision granted the appellant interim relief under
¶13 A separate provision explains that an appellant may request dismissal of an agency‘s petition for failing to provide the required interim relief, but the Board will dismiss the appellant‘s motion if it is not filed within 25 days of the date of service of the agency‘s petition, unless the appellant shows that the motion is based on information not readily available before the close of the time limit.
¶14 Here, although the appellant requested dismissal of the agency‘s petition for its failure to provide interim relief, she did not do so within the allotted time, and we have no reason to conclude that her untimely motion was based upon new information. See PFR File, Tab 7. Accordingly, we dismiss the appellant‘s motion, pursuant to
¶15 In the initial decision, dated October 21, 2019, the administrative judge ordered the agency to provide interim relief and warned of the consequences for failing to do so. ID at 51. Nevertheless, the agency did not include certification regarding interim relief with its November 22, 2019 petition for review, as required under the Board‘s regulations. PFR File, Tab 1;
We clarify the legal standard for an appeal brought under 5 C.F.R. § 315.806(b) .
¶16 An individual in the competitive service who, like the appellant, is serving an initial probationary period and has not completed 1 year of current continuous service has no statutory right of appeal to the Board. Marynowski v. Department of the Navy, 118 M.S.P.R. 321, ¶ 4 (2012); IAF, Tab 1 at 4, 9; see
¶18 Under Title VII, Federal personnel actions “shall be made free from any discrimination based on race, color, religion, sex, or national origin.”
¶19 Notwithstanding these differences between Title VII and
¶20 In this case, the appellant proceeded under the McDonnell Douglas framework. See I-4 AF, Tab 3. To prove but-for causation under McDonnell Douglas, the appellant must first establish a prima facie case of discrimination. Wilson, 2024 MSPB 3, ¶ 16. To establish a prima facie case, an appellant must generally show that (1) she is a member of a protected class, (2) she suffered an adverse employment action, and (3) the unfavorable action gives rise to an inference of discrimination. Id.; see Furnco Construction Corp. v. Waters, 438 U.S. 567, 575-77 (1978). If the appellant makes out a prima facie case, then the burden shifts to the agency to provide a nondiscriminatory explanation for the action. Wilson, 2024 MSPB 4, ¶ 17. If the agency fails to give a nondiscriminatory explanation or the appellant proves that the agency‘s
The appellant met her burden of proof.
¶21 Broadly speaking, the administrative judge found that the appellant‘s termination was unusual, not justified, and notably comparable to the reassignment of the other individual targeted by MHARR‘s partisan political complaints—the appellant‘s second-level supervisor. ID at 41-49. He also found that the GDASH was responsible for both actions, and he did not credit the GDASH‘s testimony that she knew of the second-level supervisor‘s political affiliation but not the appellant‘s. ID at 38-41. Under these circumstances, as further discussed in the initial decision, the administrative judge concluded that the appellant‘s termination was based on partisan political reasons and that the Oregon incident was merely used as a pretext for doing so. ID at 49. For the following reasons, we agree.
The decision to terminate the appellant‘s appointment was unusual and unjustified.
¶22 The stated reason for the appellant‘s termination was her alleged sharing of sensitive information with the Oregon Manufactured Housing Association, as described in the Oregon complaint. IAF, Tab 1 at 9-10, Tab 11 at 17. Yet the appellant‘s second-level supervisor, who was both an attorney and the Administrator of OMHP, responded by issuing a contemporaneous intra-agency memorandum to explain otherwise. IAF, Tab 6 at 31-32; HT at 106-09 (testimony of the second-level supervisor). That memorandum was directed to the appellant‘s third-level supervisor and the GDASH. IAF, Tab 6 at 31-32.
¶23 During the hearing, the appellant‘s second-level supervisor further discussed the appellant‘s handling of the ongoing dispute between the agency and its Oregon partner. Among other things, she described how the appellant had not shared confidential or sensitive information, and in fact had acted in accordance with advance instructions from her chain of command and existing OMHP policy,
¶24 The appellant‘s first-level supervisor, who was Deputy Administrator of OMHP during the relevant period and was also serving as Acting Administrator of OMHP by the time of hearing, provided additional support for the appellant‘s actions. HT at 246, 248-53 (testimony of the first-level supervisor). She testified that the second-level supervisor was responsible for establishing the policy, she agreed with the policy at the time, and the appellant carried out the policy in good faith, notwithstanding the negative reaction from their state partner in Oregon. Id. This individual indicated that upon taking over as Acting Administrator, she ran OMHP somewhat differently than the outgoing Administrator to “cover” herself and avoid repercussions stemming from the politics surrounding OMHP work. Id. at 247-49, 262-64.
¶25 The appellant provided a written statement and testimony similar to that of her first- and second-level supervisors. IAF, Tab 6 at 11-12; HT at 28-30 (testimony of the appellant). She indicated that her second-level supervisor, as Administrator of OMHP, had broad authority and exercised that authority in a manner comparable to years past, when different officials were in control of OMHP and the appellant was on the receiving end of those policies in the private sector. HT at 34-37 (testimony of the appellant).
¶26 Neither of the appellant‘s immediate supervisors was involved in the appellant‘s termination. The first-level supervisor testified that she first learned of the appellant‘s termination after it had already occurred and that no one ever explained to her the reason for the termination or who made the decision. HT at 232-33, 238-39, 251, 261 (testimony of the first-level supervisor). The first-level supervisor described those circumstances as unusual, indicating
¶27 The administrative judge found the appellant and her first- and second-level supervisors to be credible witnesses. ID at 15 n.23, 19 n.29, 22 n.36. To resolve credibility issues, an administrative judge must identify the factual questions in dispute, summarize the evidence on each disputed question, state which version he believes, and explain in detail why he found the chosen version more credible, considering such factors as: (1) the witness‘s opportunity and capacity to observe the event or act in question; (2) the witness‘s character; (3) any prior inconsistent statement by the witness; (4) the witness‘s bias, or lack of bias; (5) the contradiction of the witness‘s version of events by other evidence or its consistency with other evidence; (6) the inherent improbability of the witness‘s version of events; and (7) the witness‘s demeanor. Hillen v. Department of the Army, 35 M.S.P.R. 453, 458 (1987). The Board must defer to an administrative judge‘s credibility determinations when they are based, explicitly or implicitly, on observing the demeanor of witnesses testifying at a hearing; the Board may overturn such determinations only when it has “sufficiently sound” reasons for doing so. Haebe v. Department of Justice, 288 F.3d 1288, 1301 (Fed. Cir. 2002). In fact, the Board must give “special deference” to an administrative judge‘s demeanor-based credibility determinations, “[e]ven if demeanor is not explicitly discussed.” Purifoy v. Department of Veterans Affairs, 838 F.3d 1367, 1373 (Fed. Cir. 2016).
¶28 In this matter, the administrative judge properly considered the Hillen factors and made demeanor-based credibility determinations. Concerning the appellant, he noted that her version of events was internally consistent and
¶29 In contrast to the appellant‘s first- and second-level supervisors—the ones who were not consulted but had OMHP expertise, a detailed understanding of what occurred, the authority to direct the appellant‘s actions, and a firm belief that the appellant was an outstanding employee who had acted appropriately—agency officials involved in the appellant‘s termination, including the appellant‘s third-level supervisor, the Senior Advisor to the GDASH, the GDASH, and the Acting Associate General Counsel, lacked or ignored the relevant facts and expertise.
¶30 The appellant‘s third-level supervisor, who signed the appellant‘s termination letter, indicated that she lacked expertise in OMHP matters and was unsure whether the appellant‘s information sharing was appropriate. HT at 335-36, 338, 352 (appellant‘s third-level supervisor). The third-level supervisor also testified that she failed to realize that the second-level supervisor had instructed the appellant to engage in the information sharing and, in hindsight, she acknowledged the appellant should not have been blamed. Id. at 350-51, 375. She did, however, recall that the appellant‘s second-level
¶31 The Senior Advisor to the GDASH, who testified that she first raised the idea of terminating the appellant in the aforementioned meeting, indicated that she had many years of experience within the agency but no experience working with OMHP. HT at 274, 276, 279, 284-85 (testimony of the Senior Advisor). Nevertheless, she concluded that the appellant should be terminated based on the Oregon complaint alone, without additional investigation or information, including whether the appellant had simply followed existing policy and instructions from her chain of command. Id. at 275-76, 279-82, 291-92 (testimony of the Senior Advisor). The Senior Advisor disputed the third-level supervisor‘s meeting notes and testimony, asserting that the third-level supervisor did not disclose that the appellant‘s chain of command approved of the appellant‘s conduct. Compare id. at 290-91, 298-302, with HT at 335-36 (testimony of the third-level supervisor); IAF, Tab 6 at 31-32; I-3 AF, Tab 12 at 4. She instead described the third-level supervisor as a passive participant in the meeting who essentially agreed to carry out the termination without explanation or objection. HT at 302, 304-06 (testimony of the Senior Advisor). Nonetheless, the Senior Advisor suggested that the circumstances of the termination were somewhat unusual because a first- or second-level supervisor
¶32 The GDASH indicated that she was not an expert in the field and she had a limited understanding of OMHP policy. HT at 212-15 (testimony of the GDASH). She also acknowledged that the appellant‘s second-level supervisor had broad discretion to set OMHP policy. Id. at 222. However, the GDASH could not recall the second-level supervisor‘s memorandum defending the appellant‘s actions, which was addressed to the GDASH and assured her that the appellant had acted appropriately. Id. at 179-80; IAF, Tab 6 at 31-32. Similarly, the GDASH could not recall pertinent details of the termination meeting with the appellant‘s third-level supervisor and the Senior Advisor, including whether there was a discussion about the second-level supervisor‘s defense of the appellant. Compare HT at 179-80, 195-97 (testimony of the GDASH), with IAF, Tab 6 at 31-32; I-3 AF, Tab 12 at 4. The GDASH did, however, recall coming to the conclusion that the appellant‘s actions were grounds for dismissal. HT at 185-91, 195-99 (testimony of the GDASH). The GDASH indicated that she came to this conclusion after reviewing the Oregon complaint and consulting with others, such as the appellant‘s third-level supervisor, her Senior Advisor, and the Acting Associate General Counsel. Id. at 186-87, 214-15.
¶33 The Acting Associate General Counsel attended a meeting (different than the one discussed above) with the Senior Advisor and the appellant‘s third-level supervisor to discuss the Oregon complaint. I-3 AF, Tab 12 at 4; HT at 324 (testimony of the Senior Advisor). During the hearing, this Acting Associate General Counsel testified that, although her office was the program counsel for OMHP, OMHP did not regularly seek their counsel during the relevant time period. HT at 394-95, 406-09 (testimony of the Acting Associate General Counsel). As a result, OMHP tended to take actions that she was late to learn about, and she found many of those actions concerning. Id. at 405-09.
¶34 Approximately 1 week after the meetings discussed above, without any further investigation or inquiry, the agency terminated the appellant‘s appointment. Compare I-3 AF, Tab 12 at 4-5 (emails indicating that the termination meetings occurred on December 11, 2017), with IAF, Tab 1 at 9-10 (December 19, 2017 termination notice), and HT at 291-93 (testimony of the Senior Advisor). Although the GDASH, the Senior Advisor, and the Acting Associate General Counsel all testified that they did not realize the appellant‘s second-level supervisor had authorized the appellant‘s information sharing, they nevertheless indicated that the appellant‘s termination remained warranted because the appellant should have known not to follow those instructions. HT at 209 (testimony of the GDASH), 281-82, 293-94 (testimony of the Senior Advisor), 414-17 (testimony of the Associate General Counsel). The administrative judge disagreed, finding no persuasive support for that conclusion. ID at 44 n.68.
¶35 Unlike his determination that the appellant, her first-level supervisor, and her second-level supervisor were credible witnesses, the administrative judge
¶36 On review, the agency argues that the appellant‘s termination was warranted and that the administrative judge erred by concluding otherwise. PFR File, Tab 1 at 6-7, 14-15. The agency notes that the appellant‘s first-level supervisor5 indicated that Oregon‘s threat to withdraw from its partnership with the agency was unusual. Id. at 6 (citing HT at 244, 255-56 (testimony of the first-level supervisor)). However, the testimony that the agency references merely describes Oregon‘s threat to withdraw from its partnership with the agency as unusual; it does not suggest that the appellant acted unusually or inappropriately.
¶37 The agency also recounts how the Acting Associate General Counsel testified that the sharing of information described in the Oregon complaint was
¶38 The agency next argues that the appellant‘s sharing of information regarding Oregon was not comparable to how OMHP handled the situation with Michigan because only Oregon responded by threatening to withdraw from their partnership. PFR File, Tab 1 at 7 (citing HT at 151-52 (testimony of the second-level supervisor), 257 (testimony of the first-level supervisor)). However, we are not persuaded that the different reactions from these two state partners are particularly relevant. What is most relevant is evidence that OMHP handled these state partners similarly.
¶39 In sum, the evidence of record supports a finding that the appellant acted in accordance with past practices by OMHP, existing OMHP policy, and the instructions of her second-level supervisor, the Administrator of OMHP. Nevertheless, roughly 3 months after the Oregon complaint, officials who lacked or ignored those facts convened to abruptly terminate the appellant‘s
The GDASH was responsible for the appellant‘s termination.
¶40 As the administrative judge discussed, there is some conflicting evidence regarding the degree to which the GDASH—the only political appointee involved in this matter—was responsible for the appellant‘s termination.7 ID at 24-25, 31-33 & n.51, 56. Again, the appellant‘s second-level supervisor responded to the Oregon complaint by issuing an internal memorandum to the appellant‘s third-level supervisor and the GDASH, defending the appellant‘s actions and assuring them that the appellant had not shared any confidential or sensitive information. IAF, Tab 6 at 31-32. The third-level supervisor testified that she believed this explanation. HT at 332-33, 335 (testimony of the third-level supervisor). However, she was reportedly convinced otherwise by the GDASH, her Senior Advisor, and the Acting Associate General Counsel. E.g., I-3 AF, Tab 12 at 4; HT at 276-79 (testimony of the Senior Advisor), 335-39 (testimony of third-level supervisor), 412-15 (testimony of the Acting Associate General Counsel). The third-level supervisor initially indicated that she made the termination decision herself but later testified that she was instructed to terminate the appellant‘s appointment during a meeting with the GDASH, the Senior Advisor, and an Employee Labor Relations Specialist. HT at 343-44, 389-91 (testimony of the third-level supervisor).
¶41 The Senior Advisor characterized the third-level supervisor as a passive participant when summoned to the meeting to discuss the appellant‘s termination. HT at 302, 304-06 (testimony of the Senior Advisor). She also indicated that she, herself, first raised the idea of termination. Id. at 276, 279. The GDASH denied directing the third-level supervisor to terminate the appellant‘s appointment but
¶42 After reviewing these accounts, the administrative judge concluded that the GDASH, in consultation with the Senior Advisor and an Employee Labor Relations Specialist, was the agency official who made the termination decision and directed the third-level supervisor to carry it out. ID at 38. He noted that others were involved, but the GDASH was the only official with the authority to direct the third-level supervisor to act. ID at 38 n.64. As mentioned above, he also found that the third-level supervisor colored her testimony in an attempt to justify the GDASH‘s directive, notwithstanding her own concerns about the legitimacy and abnormality of the termination. ID at 33 n.56.
¶43 On review, the agency does not dispute the GDASH‘s responsibility over the termination, and we discern no reason to disturb the administrative judge‘s conclusion on the point. The GDASH called a meeting with her subordinate—the third-level supervisor—for the purpose of recommending that she effectuate the appellant‘s probationary termination. The third-level supervisor abruptly did so, just days later, in the unusual manner described above.
The administrative judge correctly found that the GDASH‘s testimony denying that she knew of the appellant‘s political affiliation was not credible.
¶44 It is undisputed that the appellant has extensive personal and professional ties to the Democratic Party, which were included in her resume and discussed during an office-wide introduction on her first day of work. I-3 AF, Tab 7 at 24-25; HT at 10-15 (testimony of the appellant), 111-12 (testimony of the second-level supervisor). It is also undisputed that, after her appointment, the head of an industry group, MHARR, sent at least one written complaint to the agency about the political leanings of the appellant. IAF, Tab 6 at 15-17; I-3 AF, Tab 9 at 98-99; HT at 112-13, 240-43 (testimony of the second-level supervisor).
¶46 In contrast, the officials involved in the termination all denied knowing of the appellant‘s political affiliation and indicated that they could not recall seeing anything that would have revealed her political affiliation. HT at 210-12 (testimony of the GDASH), 284 (testimony of the Senior Advisor), 372 (testimony of the third-level supervisor), 423 (testimony of the Acting Associate General Counsel). Despite some indication that the third-level supervisor may have been involved in the office-wide introduction where the appellant discussed her background, the third-level supervisor said she did not recall the meeting. HT at 111-12 (testimony of the second-level supervisor), 228-30 (testimony of the first-level supervisor), 328 (testimony of the third-level supervisor). She also could not recall any MHARR complaint targeting the appellant but acknowledged seeing complaint letters from MHARR, including some “attacking” the appellant‘s second-level supervisor. HT at 328-30 (testimony of the third-level supervisor).
¶47 Like the third-level supervisor, the Acting Associate General Counsel acknowledged seeing MHARR complaints targeting the appellant‘s second-level supervisor but could not recall whether any targeted the appellant. HT at 423-26 (testimony of the Acting Associate General Counsel). Generally, she testified that the MHARR complaints against the second-level supervisor were well known and that she “would be shocked” if the GDASH was not aware of them. Id. at 426-27. The Senior Advisor could not recall whether she had seen any letters from MHARR. HT at 287 (testimony of the Senior Advisor).
¶49 On review, the agency argues that the administrative judge erred in finding that the GDASH was aware of the appellant‘s political affiliation. PFR File, Tab 1 at 11-14. The agency asserts that there is no evidence to prove that the GDASH reviewed the appellant‘s resume, that she was present during the meet-and-greet event in which the appellant discussed her background, or that she reviewed any specific MHARR letter complaining about the appellant‘s politics. Id.
¶50 We are not persuaded by the agency‘s arguments. There is ample evidence that the head of MHARR was quite focused on the politics of the appellant and her second-level supervisor—so much so that he regularly lodged complaints about them that were well known and widely distributed. HT at 18-19 (testimony
The circumstances of the second-level supervisor‘s reassignment are relevant to this appeal.
¶51 The record shows that, the day before the appellant‘s probationary termination, the GDASH reassigned the appellant‘s second-level supervisor to an administrative position. The agency argued below that the second-level supervisor‘s reassignment is not relevant to the instant appeal. I-2 AF, Tab 2 at 26-27. However, we agree with the administrative judge that it is both relevant and material. ID at 47 n.73. Evidence of similarly situated individuals whom the employer treated similarly is commonly known as “me too” evidence, and its relevance and admissibility “depends on many factors, including how closely related the evidence is to the plaintiff‘s circumstances and theory of the case.” Sprint/United Management Co. v. Mendelsohn, 552 U.S. 379, 388 (2008); see Didinger v. Allsteel, Inc., 853 F.3d 414, 424 (8th Cir. 2017).
¶52 In this case, both the appellant and her second-level supervisor were targets of MHARR‘s partisan political complaints, the official who decided to reassign the second-level supervisor was the same official who decided to terminate the appellant‘s appointment, these personnel actions were taken almost simultaneously, neither personnel action was subject to the kind of deliberation that might normally be expected, and, as with the termination, the agency‘s justification for the reassignment was weak at best. ID at 25-26 & n.43, 47-48; HT at 109, 131, 156 (testimony of the second-level supervisor), 181-84
¶53 To conclude, the agency has presented no basis for disturbing the administrative judge‘s findings of fact. We therefore affirm the initial decision. The evidence supports the conclusion that the appellant‘s termination was not justified, an innocent mistake, or otherwise excusable. Instead, the record before us indicates that, more likely than not, the termination was impermissibly based on partisan political reasons. The appellant proved, by preponderant evidence, that partisan political reasons were a but-for cause of her probationary termination. Accordingly, the probationary termination is reversed.
ORDER
¶54 We ORDER the agency to cancel the probationary termination and to retroactively restore the appellant effective December 19, 2017. See Kerr v. National Endowment for the Arts, 726 F.2d 730 (Fed. Cir. 1984). The agency must complete this action no later than 20 days after the date of this decision.
¶55 We also ORDER the agency to pay the appellant the correct amount of back pay, interest on back pay, and other benefits under the Office of Personnel Management‘s regulations, no later than 60 calendar days after the date of this
¶56 We further ORDER the agency to tell the appellant promptly in writing when it believes it has fully carried out the Board‘s Order and of the actions it has taken to carry out the Board‘s Order. The appellant, if not notified, should ask the agency about its progress. See
¶57 No later than 30 days after the agency tells the appellant that it has fully carried out the Board‘s Order, the appellant may file a petition for enforcement with the office that issued the initial decision in this appeal if the appellant believes that the agency did not fully carry out the Board‘s Order. The petition should contain specific reasons why the appellant believes that the agency has not fully carried out the Board‘s Order, and should include the dates and results of any communications with the agency.
¶58 For agencies whose payroll is administered by either the National Finance Center of the Department of Agriculture (NFC) or the Defense Finance and Accounting Service (DFAS), two lists of the information and documentation necessary to process payments and adjustments resulting from a Board decision are attached. The agency is ORDERED to timely provide DFAS or NFC with all documentation necessary to process payments and adjustments resulting from the Board‘s decision in accordance with the attached lists so that payment can be made within the 60-day period set forth above.
¶59 This is the final decision of the Merit Systems Protection Board in this appeal. Title 5 of the Code of Federal Regulations, section 1201.113 (
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DFAS BACK PAY CHECKLIST
The following documentation is required by DFAS Civilian Pay to compute and pay back pay pursuant to
NOTE: Attorneys’ fees or other non-wage payments (such as damages) are paid by vendor pay, not DFAS Civilian Pay.
☐ 1) Submit a “SETTLEMENT INQUIRY - Submission” Remedy Ticket. Please identify the specific dates of the back pay period within the ticket comments.
Attach the following documentation to the Remedy Ticket, or provide a statement in the ticket comments as to why the documentation is not applicable:
☐ 2) Settlement agreement, administrative determination, arbitrator award, or order.
☐ 3) Signed and completed “Employee Statement Relative to Back Pay“.
☐ 4) All required SF50s (new, corrected, or canceled). ***Do not process online SF50s until notified to do so by DFAS Civilian Pay.***
☐ 5) Certified timecards/corrected timecards. ***Do not process online timecards until notified to do so by DFAS Civilian Pay.***
☐ 6) All relevant benefit election forms (e.g. TSP, FEHB, etc.).
☐ 7) Outside earnings documentation. Include record of all amounts earned by the employee in a job undertaken during the back pay period to replace federal employment. Documentation includes W-2 or 1099 statements, payroll documents/records, etc. Also, include record of any unemployment earning statements, workers’ compensation, CSRS/FERS retirement annuity payments, refunds of CSRS/FERS employee premiums, or severance pay received by the employee upon separation.
Lump Sum Leave Payment Debts: When a separation is later reversed, there is no authority under
NATIONAL FINANCE CENTER CHECKLIST FOR BACK PAY CASES
Below is the information/documentation required by National Finance Center to process payments/adjustments agreed on in Back Pay Cases (settlements, restorations) or as ordered by the Merit Systems Protection Board, EEOC, and courts.
- Initiate and submit AD-343 (Payroll/Action Request) with clear and concise information describing what to do in accordance with decision.
- The following information must be included on AD-343 for Restoration:
- Employee name and social security number.
- Detailed explanation of request.
- Valid agency accounting.
- Authorized signature (Table 63).
- If interest is to be included.
- Check mailing address.
- Indicate if case is prior to conversion. Computations must be attached.
- Indicate the amount of Severance and Lump Sum Annual Leave Payment to be collected (if applicable).
Attachments to AD-343
- Provide pay entitlement to include Overtime, Night Differential, Shift Premium, Sunday Premium, etc. with number of hours and dates for each entitlement (if applicable).
- Copies of SF-50s (Personnel Actions) or list of salary adjustments/changes and amounts.
- Outside earnings documentation statement from agency.
- If employee received retirement annuity or unemployment, provide amount and address to return monies.
- Provide forms for FEGLI, FEHBA, or TSP deductions. (if applicable)
- If employee was unable to work during any or part of the period involved, certification of the type of leave to be charged and number of hours.
- If employee retires at end of Restoration Period, provide hours of Lump Sum Annual Leave to be paid.
NOTE: If prior to conversion, agency must attach Computation Worksheet by Pay Period and required data in 1-7 above.
The following information must be included on AD-343 for Settlement Cases: (Lump Sum Payment, Correction to Promotion, Wage Grade Increase, FLSA, etc.)
- Must provide same data as in 2, a-g above.
- Prior to conversion computation must be provided.
- Lump Sum amount of Settlement, and if taxable or non-taxable.
If you have any questions or require clarification on the above, please contact NFC‘s Payroll/Personnel Operations at 504-255-4630.