                         UNITED STATES OF AMERICA
                      MERIT SYSTEMS PROTECTION BOARD
                                      2017 MSPB 4

                            Docket No. NY-315H-13-0277-I-1

                                      Robin Sabio,
                                       Appellant,
                                            v.
                           Department of Veterans Affairs,
                                         Agency.
                                     January 6, 2017

           Charles Wilson, Esquire, and Tony Fisher, Esquire, Buffalo, New York,
             for the appellant.

           Jeffrey L. Whiting, Esquire, Buffalo, New York, for the agency.

                                        BEFORE

                            Susan Tsui Grundmann, Chairman
                               Mark A. Robbins, Member



                                OPINION AND ORDER

¶1         The appellant has filed a petition for review of the initial decision, which
     denied her affirmative defense of race-based discrimination in connection with
     the agency’s rescinded termination action. For the reasons discussed below, we
     DENY the petition for review and AFFIRM the initial decision, as MODIFIED by
     this Opinion and Order.       We take this opportunity to clarify when an
     administrative judge must hold a hearing on a discrimination claim raised in
     connection with an otherwise appealable action and clarify the administrative
     judge’s analysis of the appellant’s race discrimination claim consistent
     with Savage v. Department of the Army, 122 M.S.P.R. 612 (2015).
                                                                                           2

                                       BACKGROUND
¶2         Effective June 17, 2012, the appellant began a 2-year term appointment
     with the agency as a GS-7 Veterans Claims Examiner (VCE) on the Veterans
     Retraining Assistance Program (VRAP) team. Initial Appeal File (IAF), Tab 8
     at 9. Her competitive‑service appointment was subject to a 1-year probationary
     period.   Id.   On May 31, 2013, the agency notified her that she would be
     terminated from her position during her probationary period due to unsatisfactory
     performance.    Id. at 11.   The agency processed her probationary termination
     effective June 14, 2013, at 4:30 p.m. Id. at 11, 21. She appealed her termination
     to the Board.     IAF, Tab 1.      Subsequently, the agency determined that the
     appellant had completed her probationary period just before the effective date and
     time of her termination. IAF, Tab 18 at 4. Because the agency had improperly
     terminated the appellant without providing her the notice and opportunity to
     respond that is due a tenured Federal employee, the agency agreed to rescind the
     removal notice, return the appellant to her term position, and restore her to the
     status quo ante. Id. at 4-5; IAF, Tab 21. The appellant was reinstated to her
     position, IAF, Tab 25 at 18, and remained employed for the remainder of the
     2-year term, IAF, Tab 38 at 1.
¶3         Although the agency rescinded her termination, the appellant continued
     pursuing her discrimination claims with the Board. 1 In a November 8, 2013 order
     and notice of hearing and prehearing conference, the administrative judge
     scheduled the hearing and prehearing conference and ordered the parties to file


     1
       When, as here, an appellant has an outstanding claim for compensatory damages based
     on discrimination, the agency’s complete rescission of the action appealed does not
     afford her all of the relief available before the Board and the appeal is not moot. Hess
     v. U.S. Postal Service, 123 M.S.P.R. 183, ¶¶ 8-9, 19-20 (2016); Wrighten v. Office of
     Personnel Management, 89 M.S.P.R. 163, ¶ 9 (2001).
                                                                                     3

     their prehearing submissions. IAF, Tab 22. In a November 22, 2013 affirmative
     defenses order, the administrative judge directed the appellant to clarify her
     affirmative defenses, including her hostile work environment and discrimination
     claims. IAF, Tab 24. The appellant did not respond to the affirmative defenses
     order and did not file her prehearing submission.       IAF, Tab 29 at 2.      On
     November 26, 2013, the agency served discovery on the appellant. IAF, Tab 26
     at 8-21. The appellant failed to respond to the agency’s discovery requests within
     the 20-day response period, and the agency filed a motion to dismiss the appeal
     and/or for sanctions. Id. at 4-6. The appellant did not respond to the agency’s
     motion.
¶4         On January 17, 2014, the administrative judge denied the agency’s motion
     to dismiss and for sanctions, ordered the appellant to respond to the agency’s
     discovery requests within 10 days, and ordered her to show cause within 10 days
     why appropriate sanctions should not be imposed for her failure to comply with
     the orders regarding her affirmative defenses and prehearing submissions. IAF,
     Tab 29. On or about February 1, 2014, the appellant, through counsel, submitted
     an untimely response to the January 17, 2014 order, asserting that she had been
     overwhelmed with moving, a divorce proceeding, and her son’s health issues.
     IAF, Tab 33 at 1-2. She further asserted that she had not had time to work on the
     agency’s discovery requests, but that her counsel “eventually responde d” to them.
     Id. The appellant did not explain why she failed to respond to the affirmative
     defenses order or why she failed to submit her prehearing submissions pursuant to
     the order and notice of hearing and prehearing conference. Id. at 1-4.
¶5         On May 18, 2015, the administrative judge issued an order imposing
     sanctions against the appellant for failing to comply with his hearing and
     prehearing conference order and affirmative defenses order. IAF, Tab 43. The
     administrative judge found that the appellant’s response to the show cause order
     was nonresponsive to the question of why she had failed to respond to his other
     orders and that, even assuming that her personal circumstances caused her failure
                                                                                            4

     to comply with the orders, her explanation was unpersuasi ve.                 Id. at 2.
     Accordingly, the administrative judge sanctioned the appellant by: (1) drawing
     an inference in favor of the agency that, even assuming a motive to discriminate,
     it would have taken the same adverse action against the appellant due to her p oor
     performance; and (2) limiting the appellant’s presentation of her case to her own
     testimony, if she chose to testify, and to information and evidence already in the
     record, including her responses to the agency’s discovery requests. Id. at 3-4.
¶6         The same day, the administrative judge also issued an order on the
     appellant’s affirmative defenses. IAF, Tab 44. Although the appellant had not
     responded to the affirmative defenses order, the administrative judge considered
     her responses to the agency’s discovery requests, which had been entered into the
     record by the agency. Id. at 2-3; IAF, Tab 32 at 24-32. Based on the information
     in her discovery responses, the administrative judge found that the appellant had
     failed to make a nonfrivolous allegation that she was subjected to a hostile work
     environment that resulted in her unacceptable performance and therefore struck
     her hostile work environment affirmative defense.          IAF, Tab 44 at 2-3.      The
     administrative judge found, however, that the appellant’s responses to the
     discovery requests sufficiently alleged discrimination based on race and notified
     her of her burden of proof to establish that affirmative defense. 2 Id. at 3‑5.



     2
       The administrative judge notified the appellant of her burden of proof to establish her
     affirmative defense of race-based discrimination pursuant to the burden-shifting method
     established by McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973). IAF,
     Tab 44 at 3-5. After the administrative judge issued this order, the Board issued its
     decision in Savage, 122 M.S.P.R. 612, ¶¶ 46, 50, which held that the burden-shifting
     framework in McDonnell Douglas has no application to Board proceedings. Although
     the appellant was not notified of the correct standard and burden of proof applicable to
     her affirmative defense before the hearing, the initial decision set forth the correct
     standard under Savage, thereby providing her with notice and an opportunity to meet
     this burden on review. IAF, Tab 109, Initial Decision at 5‑9; see Easterling v. U.S.
     Postal Service, 110 M.S.P.R. 41, ¶ 11 (2008).
                                                                                        5

¶7         The hearing was held over the course of 4 days on August 18,
     September 10, 11, and 24, 2015. IAF, Tab 109, Initial Decision (ID) at 5. After
     the first day of the hearing, the appellant submitted an affidavit by a former
     coworker, M.L., alleging disparate treatment of African American females on the
     VRAP team. 3 IAF, Tab 80. The agency moved to strike M.L.’s affidavit from the
     record and for sanctions against the appellant for violating the prior order
     limiting her to her own testimony and to information already in the record. IAF,
     Tab 83. The agency also provided a copy of M.L.’s resignation letter and an
     affidavit executed by M.L. in connection with her own Board appeal, in which
     she attested that “[d]iscrimination did not cause [her] to resign.” Id. at 10-12, 14.
     During the hearing on September 10, 2015, the administrative judge struck M.L.’s
     affidavit from the record pursuant to the sanctions order and denied the agency’s
     motion for further sanctions. Hearing Compact Disc (HCD) (Sept. 10, 2015).
¶8         On September 23, 2015, the appellant moved “to admit the affidavit and
     documents of [M.L.] submitted in compliance with 5 C.F.R. § 1201.34 for a
     permissive [i]ntervenor” and requested that M.L. “or any other of the African
     American female non supervisory employees in the VRA P program during [the
     appellant’s] employment be granted permission to file a brief as an amicus
     curiae.” IAF, Tab 89 at 5. During the last day of the hearing, the administrative
     judge denied the appellant’s motion. HCD (Sept. 24, 2015). The appellant noted
     her objection for the record. Id. After the hearing, both parties filed closing
     statements, IAF, Tabs 94, 100, and the appellant moved to strike the agency’s
     documents pertaining to M.L. and the agency’s closing brief, IAF, Tabs 91, 102.




     3
      The appellant’s counsel represented M.L. in her separate Board appeal.      Hearing
     Compact Disc (Sept. 10, 2015).
                                                                                         6

¶9          In an initial decision, the administrative judge found that the appellant
      failed to show by preponderant evidence 4 that her rescinded termination was
      motivated in any part by race discrimination and that she failed to show that the
      agency’s reasons in support of its action were a mere pretext for race
      discrimination.   ID at 25.    Accordingly, the administrative judge denied the
      appellant’s affirmative defense. Id. The administrative judge did not rule on the
      appellant’s motion to strike the documents regarding M.L.’s Board appeal or her
      motion to strike the agency’s closing brief.
¶10         The appellant has filed a petition for review of the initial decision and a
      supplement to her petition for review challenging all of the administrative judge’s
      findings and rulings. Petition for Review (PFR) File, Tabs 1, 3. The agency has
      responded in opposition to the appellant’s petition for review, and the appellant
      has replied to the agency’s opposition. PFR File, Tabs 4, 6. The appellant also
      has filed motions to submit two additional pleadings, and the agency has
      responded in opposition. PFR File, Tabs 7-8, 10.

                                          ANALYSIS
      The appellant’s motions to submit additional pleadings are denied.
¶11         After submitting her petition for review, a supplemental petition for
      review, and a reply to the agency’s response to her petition for review, the
      appellant requested leave to file: (1) a motion to strike the agency’s response to
      her petition for review on the ground that it does not comply with the Board’s
      regulations; and (2) a supplemental pleading to “correct mistakes, address
      insufficiency of evidence, as well as answer a few points in the non -compliant
      Agency Response that may not have been addressed.” PFR File, Tabs 7-8.



      4
       A preponderance of the evidence is the degree of relevant evidence that a reasonable
      person, considering the record as a whole, would accept as sufficient to find that a
      contested fact is more likely to be true than untrue. 5 C.F.R. § 1201.4(q).
                                                                                         7

¶12         The Board’s regulations specify that a response to a petition for review is
      limited to 30 pages or 7,500 words, whichever is less, and that pleadings must be
      double spaced. 5 C.F.R. § 1201.114(h). Although the agency’s response, which
      is single spaced, does not technically comply with the Board’s regulations , it
      substantially complies with them because it does not exceed the 7,500-word limit.
      PFR File, Tab 4 at 4-14. Thus, we deny the appellant’s request to file a motion to
      strike the agency’s response.
¶13         We also deny the appellant’s request for leave to submit a supplemental
      pleading to allow her to “correct mistakes, address insufficiency of evidence, as
      well as answer a few points in the non-compliant Agency Response that may not
      have been addressed” because she has failed to show that this information is new
      and material or that it was unavailable before the record closed. PFR File, Tab 8
      at 4; see 5 C.F.R. § 1201.114(k).      Moreover, the appellant already has been
      afforded ample opportunity to present her arguments on review; she has filed a
      petition for review, a supplemental petition for review, and a reply to the
      agency’s response, and received a 10-day extension to file her supplemental
      petition for review.   PFR File, Tabs 1-3, 6.     We further find unavailing the
      appellant’s contention that a supplemental pleading is necessary to address the
      agency’s “non-compliant” response because, as discussed above, the agency’s
      response substantially complies with the Board’s regulations.
      The appellant’s motions to strike documents from the record below and to strike
      the agency’s closing brief are denied.
¶14         As stated above, the administrative judge did not rule on the appellant’s
      motion to strike the agency’s submission of M.L.’s resignation letter and her
      affidavit regarding her resignation or the appellant’s motion to strike the agency’s
      closing brief.   We have considered them here and, for the reasons discussed
      below, deny the appellant’s motions. Because we deny the appellant’s motions,
      the administrative judge’s failure to rule on them below did not prejudice the
                                                                                               8

      appellant’s substantive rights.      See Panter v. Department of the Air Force,
      22 M.S.P.R. 281, 282 (1984).
¶15          In response to the appellant’s submission of M.L.’s affidavit below, the
      agency filed a copy of M.L.’s resignation letter and an affidavit executed by M.L.
      in connection with her own Board appeal. IAF, Tab 83. The appellant moved to
      strike these documents and for sanctions because “the inclusion of this
      information in [the instant case] does not allow [M.L.] to possess a clean official
      record,” as agreed to in her settlement agreement. IAF, Tab 91 at 5. The agency
      opposed the appellant’s motion. 5 IAF, Tab 106. We deny the appellant’s motion
      to strike M.L.’s resignation letter and affidavit because the appellant’s
      contentions regarding the terms of a settlement agreement in another appeal , even
      if true, provide no basis for striking the agency’s submission in this appeal.
¶16          The appellant also moved to strike the agency’s closing brief, arguing that
      the agency should not be permitted to submit a “Post Closing Brief as a Substitute
      for a Closing Argument or Statement” and because she “feels that the brief . . .
      does not summarize the case, the law or what occurred in the hearing.”                IAF,
      Tab 102 at 4.     The administrative judge allowed the parties to submit closing
      arguments after the hearing, and the agency timely filed its closing submission,
      titled “Post Hearing Brief,” which set forth the procedural history of this appeal,
      the undisputed facts, and the agency’s legal arguments. HCD (Sept. 24, 2015);
      IAF, Tab 94. We find no merit to the appellant’s assertion that the agency’s


      5
        The appellant appears to object to the agency’s October 9, 2015 opposition to her
      motion to strike and for sanctions because it was submitted after the close of the record
      on October 7, 2015. IAF, Tab 107 at 4. However, the Board will accept a submission
      after the close of the record if “[i]t is in rebuttal to new evidence or argument submitted
      by the other party just before the record closed.” 5 C.F.R. § 1201.59(c)(2). Generally,
      unless the administrative judge provides otherwise, “any objection to a written motion
      must be filed within 10 days from the date of service of the motion.” 5 C.F.R.
      § 1201.55(b). Thus, because the appellant’s motion to strike was filed only 5 days
      before the close of the record, the agency’s rebuttal, filed 7 days later, is permissible.
                                                                                          9

      closing submission somehow exceeds the scope of the closing arguments
      approved by the administrative judge or that it should be stricken because the
      appellant disagrees with its contents.     Accordingly, we deny the appellant’s
      motion to strike the agency’s closing brief.
      The administrative judge properly denied the appellant’s motion to admit M.L.’s
      affidavit and to allow permissive intervenors in this appeal.
¶17         As stated above, the appellant submitted a motion to admit M.L.’s affidavit
      regarding disparate treatment in the VRAP and other documents as a “permissive
      [i]ntervenor” and requested permission for M.L. and other “African American
      female non supervisory employees in the VRAP program during [the appellant’s]
      employment” to file amicus briefs. IAF, Tab 89 at 5. The administrative judge
      denied the appellant’s motion. HCD (Sept. 24, 2015). On review, the appellant
      moves that the Board reverse the administrative judge’s ruling and admit M.L.’s
      affidavit and “documents of an African American employee submitted in
      compliance with 5 C.F.R. § 1201.34 for a permissive intervener [sic].” PFR File,
      Tab 3 at 25.
¶18         We find no basis to disturb the administrative judge’s decision to strike
      M.L.’s affidavit, which the appellant did not submit until after the first day of the
      hearing. IAF, Tab 80. Pursuant to the sanctions order, the appellant was limited
      in the presentation of her case to her own testimony and to information already in
      the record. IAF, Tab 43. The appellant has not challenged the sanctions order,
      and we discern no basis to find that the administrative judge abused his discretion
      in imposing the sanctions after the appellant’s repeated failures to comply with
      his orders regarding her affirmative defenses and prehearing submissions . See
      Smets v. Department of the Navy, 117 M.S.P.R. 164, ¶ 11 (2011) (stating that
      imposing sanctions is a matter within the administrative judge’s sound discretion
      and that, absent a showing that such discretion has been abused, the sanctions
      decision will not be found to constitute reversible error) , aff’d, 498 F. App’x 1
      (Fed. Cir. 2012).
                                                                                         10

¶19         We also find no merit to the appellant’s contention that M.L.’s affidavit
      should be admitted in the instant appeal because M.L. is or should be a
      permissive intervenor.      PFR File, Tab 3 at 25.     “‘Permissive’ intervenors are
      those parties who may be permitted to participate if the proceeding will affect
      them directly and if intervention is otherwise appropriate under law.” 5 C.F.R.
      § 1201.34(a). Permission to intervene will be granted “where the requester will
      be affected directly by the outcome of the proceeding.” 5 C.F.R. § 1201.34(c)(2).
      Here, M.L. has not requested to intervene in the instant matter and, even if she
      did, she could not show that she would be “directly affected” by the outcome of
      this appeal. 5 C.F.R. § 1201.34(c)(2). As such, the administrative judge properly
      denied the appellant’s request to permit M.L. to intervene in this appeal.
      The appellant is not entitled to a hearing on her facially deficient hostile work
      environment affirmative defense.
¶20         In her initial appeal, the appellant appeared to raise a hostile work
      environment affirmative defense, alleging that she witnessed “inappropriate
      touching” and heard “joking, laughing, giggling and intimate conversations” on a
      number of occasions between a married Senior VCE and another married Senior
      VCE, who referred to herself as an “Office Wife.” IAF, Tab 1 at 5. According to
      the appellant, “[w]itnessing this unexpected, inappropr iate and at times offensive
      behavior . . . made it extremely difficult to work and carry out assignments, since
      this was a distraction many times throughout the day, every day.” Id.
¶21         In the order directing the appellant to clarify her affirmative defenses, the
      administrative judge noted that the appellant had not alleged that she had been
      personally harassed on the basis of her sex, but rather that she was subjected to a
      hostile work environment when she observed inappropriate behavior of a sexual
      nature between a Senior VCE and at least one other female employee.               IAF,
      Tab 24 at 7. The administrative judge stated that it was “unclear whether the
      appellant’s claim is cognizable under the law” and ordered her to make a
      nonfrivolous   allegation    of   a   hostile   work   environment   based   on    sex
                                                                                        11

      discrimination by showing that the alleged conduct directed at others had the
      purpose or effect of unreasonably interfering with her work performance or of
      creating an intimidating, hostile, or offensive working environment. Id. at 7-8.
      As noted above, however, the appellant did not respond to the affirmative
      defenses order, and the administrative judge ultimately struck her hostile work
      environment affirmative defense. IAF, Tab 44 at 2-3.
¶22         Over a month later, the appellant notified the administrative judge that she
      objected to the ruling, arguing that an “ongoing display and environment of
      viewing sexual escapades in the workplace” created a hostile work environment
      that affected her performance. IAF, Tab 51 at 3. She stated that the Senior VCEs
      “carried on a sexual liaison on site and in full view of the people that were being
      trained” and that “changes [in one’s performance] can and do occur when a party
      (Appellant) witnesses that there is a reward to be obtained by an individual who
      has an inappropriate sexual relationship; especially if these observations occur
      during training.”    Id.    In subsequent pleadings, the appellant reiterated her
      contentions that witnessing “a pervasive atmosphere of sexual escapades and
      relationships occurring” created a hostile work environment that affected her
      performance. IAF, Tab 53 at 4‑5, Tab 55 at 10, 13.
¶23         The administrative judge considered the appellant’s objectio n to his ruling
      to strike her hostile work environment affirmative defense as a request for
      reconsideration of the ruling, which he denied during a status conference. IAF,
      Tabs 54, 68. The appellant noted her objection for the record. IAF, Tab 68. On
      review,   the   appellant   contends,   without   supporting   argument,   that   the
      administrative judge erred in striking her affirmative defense of a hostile work
      environment based on sex prior to the hearing. PFR File, Tab 3 at 25, Tab 6 at 7.
¶24         Sections 7701(a)(1) and 7702(a)(1) of title 5 provide that an appellant is
      entitled to a hearing in any appeal brought before the Board under any law, rule,
      or regulation, and that she is entitled to have the Board decide the merits of any
      claim of statutorily prohibited discrimination raised in such an appeal. 5 U.S.C.
                                                                                      12

      §§ 7701(a)(1), 7702(a)(1).      Interpreting these provisions and the legislative
      history of the Civil Service Reform Act of 1978, the U.S. Court of Appeals for
      the Federal Circuit held that the Board lacks the authority to grant summary
      judgment and that an appellant’s right to a hearing is not contingent on her
      showing that there are no genuine and material issues of fact in dispute. Crispin
      v. Department of Commerce, 732 F.2d 919, 922 (Fed. Cir. 1984) (quoting H.R.
      Rep. No. 95‑1717, at 137 (1978) (Conf. Rep.), reprinted in 1978 U.S.C.C.A.N.
      2860, 2871). However, the issue of when an administrative judge must hold a
      hearing on a discrimination claim raised in connection with an otherwise
      appealable action has a complex history before the Board.           We take this
      opportunity to clarify this issue.
¶25         In Crawford v. U.S. Postal Service, 70 M.S.P.R. 416, 423-24 (1996), the
      Board held that an administrative judge may strike a discrimination claim before
      a hearing if the appellant fails to raise nonfrivolous factual allegations that, if
      proven, could establish a prima facie case of discrimination. In Currier v. U.S.
      Postal Service, 79 M.S.P.R. 177, 180-82 (1998), the Board overruled Crawford
      and found instead that, when an appellant who claims discrimination has
      requested a hearing, the administrative judge may not find against the appellant
      on the discrimination claim without holding such a hearing.         In Browder v.
      Department of the Navy, 81 M.S.P.R. 71, ¶ 6 (1999), aff’d, 250 F.3d 763 (Fed.
      Cir. 2000) (Table), the Board clarified its holding in Currier, explaining that, if
      an appellant makes a claim of prohibited discrimination in connection with an
      otherwise appealable action, the appellant must be afforded the opportunity for a
      hearing and a decision on the merits of the claim.         Browder further held,
      however, that striking a claim because an appellant did not allege facts that, if
      proven, would establish a prima facie case of discrimination was not harmful
      error because the appellant had failed to allege a cognizable claim of statutorily
      prohibited discrimination.    Id., ¶¶ 7-8.   Subsequently, in Redd v. U.S. Postal
      Service, 101 M.S.P.R. 182, ¶¶ 5, 13 (2006) (citing Browder, 81 M.S.P.R. 71,
                                                                                         13

      ¶¶ 6-8), the Board overruled Currier, holding that an appellant does not have an
      unconditional right to a hearing on a discrimination claim and that, when an
      appellant’s allegations in support of a discrimination claim are deficient as a
      matter of law, the claim may be disposed of without a hearing .             Redd also
      declined to follow Crispin insofar as it held that the Board may not render
      summary judgment in adjudicating discrimination claims because it concluded
      that the Federal Circuit has no authority to review Board findings on the
      substance of discrimination law, and thus, no authority to review the Board’s
      procedures for adjudicating such claims.        Id., ¶ 12.   Recently, in Savage, the
      Board overruled Redd to the extent it declined to follow Crispin and reaffirmed
      Crispin’s holding that the Board’s procedures do not provide for summary
      judgment.       Savage, 122 M.S.P.R. 612, ¶ 46 & n.10 (citing Crispin, 732 F.2d
      at 922).
¶26             Although Savage overruled Redd to the extent that it erroneously assumed
      that the Board’s procedures for deciding discrimination claims we re a matter of
      substantive discrimination law, it did not overrule Redd’s holding that, when an
      appellant’s allegations in support of a discrimination claim are deficient as a
      matter of law, the discrimination claim may be disposed of without a hearing.
      See Savage, 122 M.S.P.R. 612, ¶ 46 n.10; Redd, 101 M.S.P.R. 182, ¶ 13. This
      distinction is made less clear, however, because Redd improperly conflates a
      post-discovery grant of summary judgment with a pre-discovery dismissal for
      failure to state a claim.        Redd, 101 M.S.P.R. 182, ¶ 13.        Specifically, in
      discussing when a deficient claim may be dismissed without a hearing, Redd
      states:
                The Board has held that, notwithstanding Currier, when an
                appellant’s allegations in support of a discrimination claim are
                deficient as a matter of law, the claim may be disposed of without a
                hearing. [Browder, 81 M.S.P.R. 71, ¶¶ 6-8]. We now hold that when
                the appellant’s factual allegations in support of a discrimination
                claim, taken as true, could not support an inference that the agency’s
                action was a pretext for discrimination, the [administrative judge] is
                                                                                        14

             not required to permit the appellant to attempt to prove his
             allegations at an evidentiary hearing. In other words, when there is
             no genuine dispute of material fact regarding discrimination, an
             evidentiary hearing on discrimination need not be conducted.
      Id.   The first two sentences in the foregoing paragraph concern dismissal for
      failure to state a claim, whereas the last sentence incorrectly equates dismissal for
      failure to state a claim to a grant of summary judgment.        This is problematic
      because a dismissal without a hearing when the appellant’s factual allegations in
      support of a discrimination claim, taken as true, could not support an inference
      that the agency’s action was discriminatory is not the same thing as a
      post-discovery judgment without a hearing on the basis that there is no genuine
      dispute of material fact and the nonmoving party is entitled to judgment as a
      matter of law.
¶27          The Federal Rules of Civil Procedure, which are not controlling but may be
      used as a general guide in proceedings before the Board, Social Security
      Administration v. Long, 113 M.S.P.R. 190, ¶ 10 (2010), aff’d, 635 F.3d 526 (Fed.
      Cir. 2011), underscore the difference between summary judgment and dismissal
      for failure to state claim upon which relief may be granted.           See Fed. R.
      Civ. P. 12(b)(6); Fed. R. Civ. P. 56(a). “Dismissal for failure to state a claim
      under Rule 12(b)(6) is proper only when a [party] can prove no set of facts in
      support of [his] claim which would entitle him to relief.” Leider v. United States,
      301 F.3d 1290, 1295 (Fed. Cir. 2002) (internal quotations omitted).                In
      considering a motion to dismiss for failure to state a claim under Rule 12(b)(6),
      the court must assume that all well-pled factual allegations are true and draw all
      reasonable inferences in favor of the nonmoving party. Leider, 301 F.3d at 1295.
      On the other hand, the court will grant summary judgment pursuant to Rule 56(a)
      when “there is no genuine dispute as to any material fact and the movant is
      entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a); see Anderson v.
      Liberty Lobby, Inc., 477 U.S. 242, 247‑48 (1986). A factual dispute is “genuine”
      when there is sufficient evidence supporting the contention of the party seeking
                                                                                          15

      an evidentiary hearing for the trier of fact to resolve the dispute in that party’s
      favor. Anderson, 477 U.S. at 248-49.
¶28         Thus, contrary to the statement in Redd, an administrative judge may not
      dispose of a discrimination claim without a hearing when there is no genuine
      dispute of material fact regarding discrimination because to do so would be an
      improper grant of summary judgment.           See Redd, 101 M.S.P.R. 182, ¶ 13.
      However, Redd is correct that an administrative judge is not required to hold a
      hearing on a discrimination claim raised in connection with an otherwise
      appealable action when the appellant’s factual allegations in support of a
      discrimination claim, taken as true, could not support an inferenc e that the
      agency’s action was discriminatory. Id. The current state of Board law on this
      issue is most accurately summarized in Browder, which was cited in Redd and
      which held that, when an appellant’s allegations in support of a discrimination
      claim are deficient as a matter of law, the claim may be disposed of without a
      hearing. 6 Redd, 101 M.S.P.R. 182, ¶ 13; Browder, 81 M.S.P.R. 71, ¶¶ 6‑8.
¶29         As recently articulated in Hess v. U.S. Postal Service, 123 M.S.P.R. 183,
      ¶¶ 9-10 (2016), if an appellant states a cognizable claim of statutorily prohibited
      discrimination in connection with an otherwise appealable action, the Board must
      decide those discrimination claims only after the record is complete, in
      accordance with its appellate procedures as defined in title 5. On the other hand,
      if an appellant fails to allege a cognizable claim of discrimination in connection
      with the otherwise appealable action, the claim may be disposed of without a




      6
        We disagree with Browder, however, to the extent that it held that it was not harmful
      error for the administrative judge to strike a facially deficient discrimination claim
      without holding a hearing because the administrative judge’s action under such
      circumstances was not error at all. Browder, 81 M.S.P.R. 71, ¶¶ 7‑8.
                                                                                           16

      hearing. 7   Browder, 81 M.S.P.R. 71, ¶¶ 7‑8.               A cognizable claim of
      discrimination in this context is analogous to a claim that would survive a motion
      to dismiss for failure to state a claim.
¶30          Here, as discussed above, the administrative judge found that the appellant
      failed to raise a nonfrivolous claim that she was subjected to a hostile work
      environment based on sex that resulted in her unacceptable performance and,
      therefore, struck that portion of her affirmative defense prior to the hearing. IAF,
      Tab 44 at 2-3. In so finding, the administrative judge reasoned that the appellant
      failed to explain why she believed that alleged inappropriate sexual conduct on
      the part of others in the workplace caused her unacceptable performance and
      resulting removal and failed to provide the date, time, and location of each
      incident. Id. Additionally, the administrative judge noted that “[s]ome of the
      incidents reported were clearly based upon rumor or conversati ons overheard.”
      Id. at 2. To the extent that the administrative judge struck the appellant’s hostile
      work environment affirmative defense for failure to establish a genuine issue of
      material fact in dispute by providing insufficient detail, he improperly rendered
      summary judgment on this issue.              See Anderson, 477 U.S. at 247‑49.
      Nonetheless, we find that he properly struck the appellant’s hostile work
      environment affirmative defense because, taking her allegations as true and




      7
        Although an administrative judge need not hold a hearing on a discrimination claim
      raised in connection with an otherwise appealable action when the appellant fails to
      state a cognizable claim of discrimination, the Board’s admonition in Redd that
      administrative judges should be extremely cautious in resolving discrimination claims
      without hearings still applies when determining whether to strike such an affirmative
      defense for failure to state a claim. See Redd, 101 M.S.P.R. 182, ¶ 14. Thus, in cases
      in which administrative judges will be holding an evidentiary hearing, it generally will
      be preferable to allow the appellant to present whatever evidence she has on
      discrimination, as this approach promotes development of a complete record, should
      either party seek review. Id.
                                                                                         17

      drawing all reasonable inferences in her favor, she cannot prevail on her hostile
      work environment claim as a matter of law. See Leider, 301 F.3d at 1295.
¶31         Title VII prohibits employers from “discriminat[ing] against any individual
      with respect to his compensation, terms, conditions, or privileges of employment,
      because of such individual’s race, color, religion, sex, or national origin.”
      42 U.S.C. § 2000e‑2(a)(1).      Title VII is violated “[w]hen the workplace is
      permeated with ‘discriminatory intimidation, ridicule, and insult ’ . . . that is
      ‘sufficiently severe or pervasive to alter the conditions of the victim’s
      employment and create an abusive working environment.’”          Harris v. Forklift
      Systems, Inc., 510 U.S. 17, 21 (1993) (quoting Meritor Savings Bank v. Vinson,
      477 U.S. 57, 65, 67 (1986)).     Title VII does not impose a general workplace
      civility code and does not prohibit all workplace harassment, but only that which
      involves statutorily proscribed forms of discrimination.     Oncale v. Sundowner
      Offshore Services, Inc., 523 U.S. 75, 80 (1998).
¶32         Accepting as true all of the appellant’s factual allegations about the
      “inappropriate sexual relationship” between two coworkers, she has failed to state
      a cognizable claim of a hostile work environment based on her sex.              Her
      allegations that she and others located in proximity to her cubicle—without
      regard to their sex—were generally exposed to distracting office flirtation is not
      the type of situation covered by title VII. See id. As such, the appellant’s hostile
      work environment affirmative defense is facially deficient and, rather than
      eliciting relevant, admissible evidence on a disputed fact, a hearing on this claim
      would have been an empty ritual.         Accordingly, we find no error in the
      administrative judge’s decision to strike this claim without a hearing.
      The appellant failed to prove her race-based discrimination affirmative defense.
¶33         The appellant argued below that she and other African American VCEs
      were treated less favorably than Caucasian VCEs regarding seating assignments,
      distributing work assignments, assisting with work assignments, and applying
      performance standards. IAF, Tabs 1, 100; HCDs (Aug. 18, 2015) (Sept. 10‑11,
                                                                                            18

      2015). During redirect examination at the hearing, the appellant also alleged, for
      the first time, that one Senior VCE used racially discriminatory nicknames when
      speaking with other Senior VCEs regarding African American VCE trainees.
      HCDs (Sept. 10-11, 2015).         Based on the evidence and hearing testimony,
      however, the administrative judge concluded that the agency did not discriminate
      against the appellant in terms of seating assignments, distributing or assisting
      with work assignments, or applying performance standards.             ID at 1 0-23.   In
      addition, the administrative judge found that the Senior VCE in question did not
      make the alleged discriminatory statements attributed to him by the appellant. ID
      at 23-25. The appellant challenges these findings on review. PFR File, Tabs 3,
      6.
¶34         Several months before the administrative judge issued the initial decision
      in the instant appeal, the Board issued its decision in Savage, which clarified the
      evidentiary standards and burdens of proof under which the Board analyzes
      discrimination and retaliation claims. Savage, 122 M.S.P.R. 612, ¶¶ 42-43, 51.
      Although the administrative judge referenced Savage in his discussion of the
      applicable law, ID at 5-7, he applied, in part, the McDonnell Douglas
      burden-shifting analytical framework, ID at 7-8, 25. 8 As noted above, in Savage,
      the Board held that the McDonnell Douglas framework has no application to


      8
         To establish a claim of prohibited employment discrimination under the
      burden-shifting method of McDonnell Douglas, the employee first must establish a
      prima facie case of racial discrimination; the burden then shifts to the agency to
      articulate a legitimate nondiscriminatory reason for its action; and, finally, the
      employee must show that the agency’s stated reason is merely a pretext for prohibited
      discrimination. McDonnell Douglas, 411 U.S. at 802-04. Although the administrative
      judge did not expressly refer to the burden-shifting method, he drew an inference in
      favor of the agency that it had articulated a legitimate nondiscriminatory reason for its
      action, tasked the appellant with showing that the a gency’s stated reason was mere
      pretext for discrimination, and concluded that the appellant failed to show that “the
      agency’s articulated legitimate nondiscriminatory reasons in support of its action were a
      mere pretext for race discrimination.” ID at 7-8, 25.
                                                                                       19

      Board proceedings. Savage, 122 M.S.P.R. 612, ¶ 46. Although we agree with the
      administrative judge’s conclusion that the appellant failed to establish her
      discrimination affirmative defense, we modify the portion of the initial decision
      that applies the burden-shifting framework and supplement the administrative
      judge’s analysis consistent with Savage.
¶35         In Savage, we stated that, when an appellant asserts an affirmative defense
      of discrimination or retaliation under 42 U.S.C. § 2000e-16, the Board first will
      inquire whether the appellant has shown by preponderant evidence that the
      prohibited consideration was a motivating factor in the contested personnel
      action. Savage, 122 M.S.P.R. 612, ¶ 51. Such a showing is sufficient to establish
      that the agency violated 42 U.S.C. § 2000e-16, thereby committing a prohibited
      personnel practice under 5 U.S.C. § 2302(b)(1). Naval Station Norfolk-Hearing 2
      v. Department of the Navy, 123 M.S.P.R. 144, ¶ 28 (2016); Savage, 122 M.S.P.R.
      612, ¶ 51. If the appellant meets this initial burden, the Board then will inquire
      whether the agency has shown by preponderant evidence that the action was not
      based on the prohibited personnel practice, i.e., that it still would have taken the
      contested action in the absence of the discriminatory or retaliatory motive. Naval
      Station Norfolk Hearing 2, 123 M.S.P.R. 144, ¶ 28; Savage, 122 M.S.P.R. 612,
      ¶ 51. If the Board finds that the agency has made that showing, its violation of
      42 U.S.C. § 2000e-16 will not require reversal of the action.        Naval Station
      Norfolk-Hearing 2, 123 M.S.P.R. 144, ¶ 28; Savage, 122 M.S.P.R. 612, ¶ 51.
¶36         In determining whether the appellant has met her initial burden to show a
      motivating factor, the Board must consider all of the evidence together as a whole
      without sorting evidence into different piles, labeled “direct” or “indirect” that
      are evaluated differently.      Gardner v. Department of Veterans Affairs,
      123 M.S.P.R. 647, ¶ 29 (2016) (citing Ortiz v. Werner Enterprises, Inc., 834 F.3d
      760 (7th Cir. 2016)). Therefore, we must first determine whether, on the basis of
      all of the evidence, the appellant has shown by preponderant evidence that her
      termination was motivated by discriminatory animus. Id.
                                                                                            20

¶37         As noted above, the administrative judge found that th e appellant failed to
      show that the agency discriminated against her in terms of seating assignments,
      distributing work assignments, assisting with work assignments, or applying
      performance standards.       ID at 10-23.   In so finding, the administrative judge
      credited the hearing testimony of the appellant’s supervisor (supervisor) who
      testified that seating and work were assigned in a nondiscriminatory manner, and
      the three Senior VCEs, who all consistently testified that they assisted the
      appellant when she came to them for assistance and that they never refused to
      help her. ID at 10-15. On review, the appellant argues that the administrative
      judge erred in crediting the hearing testimonies of the agency’s witnesses and
      ignored evidence. PFR File, Tab 3 at 8-13, 16-18, Tab 6 at 8-16.
¶38         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, and 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).               Here, the
      administrative judge explained that he observed each witness who testified at the
      hearing and, based on the Hillen factors, 9 found that the agency witnesses
      generally were more credible than the appellant because they testified in a
      straightforward manner, were consistent with each other and the written record,
      and their version of events was inherently more likely than the appellant’s
      version of events. ID at 8-9. On the other hand, he found that the appellant’s
      version of events often changed depending on who was asking her questions, was


      9
        In Hillen, the Board held that, to resolve credibility issues, the 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 h e found the chosen
      version more credible. Hillen v. Department of the Army, 35 M.S.P.R. 453, 458 (1987).
      Hillen further articulated a list of seven factors that the adminis trative judge must
      consider in making credibility determinations. Id.
                                                                                              21

      not consistent with the written record, and was inherently unlikely. ID at 9. The
      administrative judge also noted that the appellant’s allegations were often based
      only on surmise or conjecture and were not corroborated by other witnesses. Id.
¶39          The appellant argues on review that her supervisor repeatedly contradicted
      himself, his testimony “does not pass the common sense or credibility test,” and
      his “reason and rationale seemed to be fabricated to hide an improper motive.”
      PFR File, Tab 3 at 8-9.      For example, the appellant argues that, although the
      supervisor first testified that he generally assigned seating on the basis of the
      employee’s hire date, he later “contradict[ed] himself to state that the employees
      were hired at different times, dates and years by the Agency.” 10 Id. at 8. As
      another example, the appellant asserts that the supervisor testified that “he knew
      nothing of the VCEs when he assigned their seats other than their names and
      dates they were hired,” but that he later contradicted himself by testifying that
      “he knew personal information about some employees since they had been
      working at the Agency, but also he knew marital status and other information.”
      Id. at 9. The appellant also argues that the supervisor testified that he was the
      only one who distributed work, but that he later “admitted there was a
      disproportionate amount of claims being distributed and that every employee was
      not receiving equal amounts . . . the system was broken for a time and a number
      of claims were distributed.” 11 Id. at 13. We have considered these examples of


      10
          As explained in the initial decision, the supervisor testified that the seating
      assignments generally were based on hire date, but that there were some exceptions. ID
      at 11; HCD (Sept. 11, 2015). Specifically, he testified that: three Senior VCEs on the
      VRAP team were assigned seats first and had the opportunity to request a location
      based on seniority; a VCE who had been working in another division had the
      opportunity to request a seat when she was selected for the VRAP team position; and
      two married employees were seated near each other. ID at 11; HCD (Sept. 11, 2015).
      11
        As explained in the initial decision, the supervisor testified that, prior to March 2013,
      claims examiners could pull cases from the original claims queue as necessary but, as
      the volume of claims decreased, there was a concern that some VCEs were taking a
      disproportionate share of the cases. ID at 13; HCD (Sept. 11, 2015). He further
                                                                                          22

      alleged contradictory statements, as well as others cited by the appellant on
      review, but find that, even when the supervisor later clarified his initial
      statements, his subsequent statements are not necessarily contradictory and do not
      constitute “sufficiently sound” reasons for overturning the administrative judge’s
      credibility determination. See Haebe, 288 F.3d at 1301.
¶40         The appellant also argues that the administrative judge ignored a seating
      chart, which shows that she and other African American employees were racially
      segregated from Caucasian employees, and failed to consider the “fact that almost
      everyone who was sitting in the segregated section which was referred to as ‘the
      hood' was transferred, fired or did not complete their term.”        PFR File, Tab 3
      at 8-11, Tab 6 at 8-12. However, the administrative judge’s failure to mention in
      the initial decision the seating chart and some of the appellant’s allegations
      regarding the seating arrangement does not mean he did not consider them and is
      not a basis to overturn his well-reasoned findings. See Gardner, 123 M.S.P.R.
      647, ¶ 25 (citing Marques v. Department of Health & Human Services,
      22 M.S.P.R. 129, 132 (1984), aff’d, 776 F.2d 1062 (Fed. Cir. 1985) (Table)). The
      administrative judge considered the record as a whole and —based on the
      supervisor’s credible testimony, the credible testimony of two agency witnesses
      that the appellant’s cubicle location was seen as desirable by some employees,
      and the fact that no one, including the appellant, complained to a manager that
      they felt the seating arrangement was discriminatory—concluded that the agency
      assigned seating in a nondiscriminatory manner. ID at 10-12. Furthermore, the
      administrative judge expressly considered the appellant’s argument that “almost
      everyone” seated near her was unsuccessful in the VRAP, but found that this
      contention was “simply not true.” ID at 18.

      testified that, to address this concern, he changed the process of assigning cases in
      March 2013 so that he or, in his absence, the division supervisor reviewed new original
      claims each day and assigned them in an equal manner. ID at 13; HCD (Sept. 11,
      2015).
                                                                                       23

¶41         Regarding the administrative judge’s finding that the agency applied the
      performance standards in a nondiscriminatory manner, the appellant argues that
      the administrative judge “totally ignored” the fact that “there was no formal set of
      standards” and that her performance was evaluated in an “arbitrary and
      capricious” manner. PFR File, Tab 3 at 13, Tab 6 at 15. The record reflects,
      however, that the appellant signed the monthly Individual Performance Reports,
      which set forth her productivity and accuracy requirements and her performance
      for the previous month.     IAF, Tab 64 at 153-61.       The administrative judge
      thoroughly discussed the appellant’s performance standards and concluded that
      she consistently failed to meet them.    ID at 18-23.    The administrative judge
      further found no evidence to suggest that the agency discriminated against the
      appellant in applying the VCE performance standards to her work performance.
      ID at 23. The appellant’s arguments on review provide no basis to disturb these
      findings.
¶42         The appellant also argues that the administrative judge erred in finding that
      the Senior VCEs did not provide assistance in a discriminatory manner because,
      among other reasons, he failed to mention that one of the Senior VCEs testified
      that he believed he was a supervisor. PFR File, Tab 3 at 17-18. Her arguments,
      however, provide no basis to disturb the administrative judge’s credibility
      determinations or his conclusion that the Senior VCEs provided assistance in a
      nondiscriminatory manner. ID at 16‑18.
¶43         Lastly, as noted above, the administrative judge found that the Senior VCE
      alleged by the appellant to have used discriminatory nicknames in conversations
      with other Senior VCEs in the workplace did not do so. ID at 23-25. In so
      finding, the administrative judge relied on the hearing testimonies of the accused
      Senior VCE and two other Senior VCEs, who all “emphatically and
      unequivocally” denied that they had made such comments or heard any coworkers
      make such comments. ID at 24. The administrative judge also relied on their
      testimonies that no one ever complained to them about hearing such comments in
                                                                                          24

      the workplace and, if they had heard such comments, they would have reported it
      to a manager. Id. Given the arrangement of the cubicles and their proximity to
      one another, the administrative judge concluded that, if the Senior VCE had made
      the racially discriminatory comments attributed to him by the appellant, other
      employees would have heard and complained about the comments. Id. However,
      the undisputed testimony was that no one made or filed such complaints with
      management. Id. The administrative judge also appeared to find probative the
      fact that the appellant failed to raise this allegation—which goes “directly to the
      heart of her allegation of race discrimination”—at any time during the proceeding
      until redirect examination.       Id.; HCD (Sept. 10-11, 2015).       The appellant
      generally   challenges    these   findings   on   review   and   argues   that   “[t]he
      administrative judge ignored a pattern of discrimination and did not test the
      credibility of witnesses with conflicting statements.” PFR File, Tab 3 at 18-24,
      Tab 6 at 16-18.          The appellant’s arguments, however, constitute mere
      disagreement with the administrative judge’s findings and provide no basis to
      overturn his credibility determinations or his conclusion that the Senior VCE in
      question did not make the discriminatory comments attributed to him.
¶44         In sum, we agree with the administrative judge’s finding that the appellant
      failed to show by preponderant evidence that racial discrimination was a
      motivating factor in the agency’s action. The appellant’s arguments on review
      constitute mere disagreement with the administrative judge’s well -reasoned
      findings and provide no basis to disturb the initial decision. See Crosby v. U.S.
      Postal Service, 74 M.S.P.R. 98, 105-06 (1997) (finding no reason to disturb the
      administrative judge’s findings when she considered the evidence as a whole,
      drew appropriate inferences, and made reasoned conclusions on issues of
      credibility).
                                                                                     25

                                               ORDER
¶45         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(c) ( 5 C.F.R.
      § 1201.113(c)).

                        NOTICE TO THE APPELLANT REGARDING
                           YOUR FURTHER REVIEW RIGHTS
            You have the right to request further review of this final decision.

      Discrimination Claims: Administrative Review
            You may request review of this final decision on your discrimination
      claims by the Equal Employment Opportunity Commission (EEOC). See title 5
      of the United States Code, section 7702(b)(1) (5 U.S.C. § 7702(b)(1)). If you
      submit your request by regular U.S. mail, the address of the EEOC i s:
                                 Office of Federal Operations
                          Equal Employment Opportunity Commission
                                       P.O. Box 77960
                                  Washington, D.C. 20013

      If you submit your request 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, NE
                                        Suite 5SW12G
                                  Washington, D.C. 20507

            You should send your request to EEOC no later than 30 calendar days after
      your receipt of this order. If you have a representative in this case, and your
      representative receives this order before you do, then you must file with EEOC no
      later than 30 calendar days after receipt by your representative. If you choose to
      file, be very careful to file on time.
                                                                                   26

Discrimination and Other Claims: Judicial Action
      If you do not request EEOC to review this final decision on your
discrimination claims, you may file a civil action against the agency on both your
discrimination claims and your other claims in an appropriate United States
district court. See 5 U.S.C. § 7703(b)(2). You must file your civil action with
the district court no later than 30 calendar days after your receipt of this order. If
you have a representative in this case, and your representative rec eives this order
before you do, then you must file with the district court no later than 30 calendar
days after receipt by your representative. If you choose to file, be very careful to
file on time. If the action involves a claim of discrimination based on 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.



FOR THE BOARD:


______________________________
Jennifer Everling
Acting Clerk of the Board
Washington, D.C.
