                           UNITED STATES OF AMERICA
                        MERIT SYSTEMS PROTECTION BOARD


     NADRA K. DUNBAR,                                DOCKET NUMBER
                  Appellant,                         DC-0752-14-1003-I-1

                  v.

     DEPARTMENT OF                                   DATE: November 15, 2016
       TRANSPORTATION,
                 Agency.



                  THIS ORDER IS NONPRECEDENTIAL 1

           Nadra K. Dunbar, Oxon Hill, Maryland, pro se.

           Thomas P. Healy and Christie Iannetta, Washington, D.C., for the agency.


                                           BEFORE

                              Susan Tsui Grundmann, Chairman
                                 Mark A. Robbins, Member


                                     REMAND ORDER

¶1         The appellant has filed a petition for review of the initial decision, which
     sustained her removal.      For the reasons set forth below, we GRANT the
     appellant’s petition, VACATE the initial decision, and REMAND the appeal for
     further adjudication consistent with this Order.


     1
        A nonprecedential order is one that the Board has determined does not add
     significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
     but such orders have no precedential value; the Board and administrative judges are not
     required to follow or distinguish them in any future decisions. In contrast, a
     precedential decision issued as an Opinion and Order has been identified by the Board
     as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
                                                                                           2

                                       BACKGROUND
¶2         The agency removed the appellant, a GS-14 Human Resources Specialist
     (Strategic Human Capital), based on the following charges: (1) insubordination
     by willfully refusing, on seven occasions, to make specific corrections to a draft
     2008-2012 workforce plan; (2) making false statements on two occasions
     regarding her attendance; (3) intentional misrepresentation by listing herself as
     the author of the draft plan, even though she did not write large portions of it;
     (4) three specifications of creating workplace disruption; (5) six specifications of
     unprofessional behavior; and (6) two specifications of failing to follow her
     supervisor’s instructions. 2 Initial Appeal File (IAF), Tab 14 at 45, Tab 7 at 19,
     Tab 6 at 61. On appeal, the appellant disputed the charges and argued that there
     was no nexus and that the penalty was unreasonable. IAF, Tab 1 at 9, 11, 15.
     She also argued that the agency’s action was in retaliation for her protected equal
     employment opportunity (EEO) activity, id. at 15, and for her whistleblowing
     activity, id. at 16. She also alleged that the agency committed various procedural
     errors, id. at 10-14, and she requested a hearing, id. at 3.
¶3         Thereafter, the administrative judge issued an initial decision in which she
     found charges (1), (2), and (3) sustained, IAF, Tab 58, Initial Decision (ID)
     at 4‑9; charge (4) sustained based on two of three specifications, ID at 10-13;
     charge (5) sustained based on three of six specifications, 3 ID at 13-16; and charge
     (6) sustained, 4 ID at 17. The administrative judge then found that a nexus existed
     between the sustained charges and the efficiency of the service. ID at 17-18. In
     considering   the   appellant’s   claim   of   retaliation     for   EEO   activity and


     2
      The agency placed the appellant on administrative leave from the date of the proposal
     notice to the effective date of the action. Initial Appeal File (IAF), Tab 14 at 44.
     3
       The administrative judge found that one specification of charge (5), unprofessional
     behavior, merged into charge (1), insubordination. ID at 14.
     4
       The administrative judge found that the two specifications of charge (6) addressed the
     same incident and thus should be considered as a single specification. ID at 17.
                                                                                               3

     whistleblowing, and harmful error, the administrative judge found that the
     appellant offered no testimonial or documentary evidence at the hearing, and that,
     based on a lack of proof, she failed to establish any of these affirmative defenses.
     ID at 18-19. Finally, the administrative judge found that the penalty of removal
     for the sustained charges was within the bounds of reasonableness. ID at 20-21.
     Accordingly, she affirmed the agency’s action. ID at 1, 21.
¶4         The appellant has filed a petition for review, Petition for Review (PFR)
     File, Tab 1, the agency has responded, PFR File, Tab 3, and the appellant has
     replied thereto, 5 PFR File, Tab 4.

                                            ANALYSIS
¶5         The appellant argues on review, inter alia, that the administrative judge
     abused her discretion regarding her discovery rulings, both by sanctioning the
     appellant for not complying with the administrative judge’s rulings in favor of the
     agency’s discovery requests and by not allowing the appellant to pursue discovery
     against the agency. PFR File, Tab 1 at 25-27, 29.
¶6         In the August 28, 2014 order acknowledging the appellant’s appeal, the
     administrative judge advised the parties that initial discovery requests must be



     5
       When the appellant electronically filed her reply, she indicated that her exhibits to that
     reply would be “sent via separate cover.” PFR File, Tab 4 at 19. Three days later, she
     sent the exhibits by regular mail, explaining that she had been unable to upload them
     due to their size (the exhibits totaled 182 pages). PFR File, Tab 5. We do not consider
     them because they are either part of the record below, see, e.g., id., Exhibits A, E, G, K;
     Meier v. Department of the Interior, 3 M.S.P.R. 247, 256 (1980) (stating that evidence
     that is already a part of the record is not new); not new, see, e.g., PFR File, Tab 5,
     Exhibits B-C, F, H; Avansino v. U.S. Postal Service, 3 M.S.P.R. 211, 214 (1980)
     (stating that the Board generally will not consider evidence submitted for the first time
     with the petition for review absent a showing that it was unavailable before the record
     was closed despite the party’s due diligence); or not material, see, e.g., PFR File, Tab 5,
     Exhibits L-M, O-P; Russo v. Veterans Administration, 3 M.S.P.R. 345, 349 (1980)
     (stating that the Board generally will not grant a petition for review based on new
     evidence absent a showing that it is of sufficient weight to warrant an outcome different
     from that of the initial decision).
                                                                                           4

     served on the other party within 30 calendar days of the date of the order. 6 IAF,
     Tab 2 at 3.     On September 29, 2014, the agency filed a motion to suspend
     processing of the appeal for 30 days to allow the administrative judge to rule on
     its motion to dismiss certain of the appellant’s claims based on her pending civil
     litigation in the U.S. District Court for the District of Columbia, and to afford the
     agency time to engage in discovery which, on its part, was underway.
     IAF, Tab 22. On October 2, 2014, the appellant filed a motion to extend
     discovery,    claiming   that   she   never    received   the   administrative   judge’s
     acknowledgment order which explained discovery and she had only “recently”
     learned of it through the agency’s discovery request.                   IAF, Tab 23.
     On October 6, 2014, the administrative judge issued an order suspending case
     processing for 30 days, and stating that processing would resume on
     November 5, 2014. IAF, Tab 25.
¶7         On October 20, 2014, the agency filed a motion to compel the appellant to
     respond to its discovery requests. IAF, Tab 27. The agency asserted that, on
     September 25, 2014, it timely served the appellant with a request for production
     of documents, interrogatories, and a request for admissions, but that, as of
     October 20, 2014, she had not responded, despite the administrative judge’s
     having stated in her acknowledgment order that a party must respond to discovery
     requests within 20 days of receipt.      Id.    The administrative judge granted the
     agency’s motion on October 23, 2014, directing the appellant to respond
     immediately or face possible sanctions upon the agency’s properly filed motion,
     including the drawing of adverse evidentiary inferences against her. IAF, Tab 28.
     The agency filed a second motion to compel on October 28, 2014, stating that the
     appellant had not responded to its October 3, 2014 supplemental discovery
     request seeking production of the Government-issued computer that she had not
     returned following her removal.        IAF, Tab 29.       The agency noted that the
     6
       At that time, the hearing was scheduled for October 30, 2014. IAF, Tab 21. In fact,
     the hearing was held on January 14, 2015. IAF, Tabs 35, 56.
                                                                                         5

     appellant still had not complied with the administrative judge’s order granting its
     first motion to compel. Id. The administrative judge granted the agency’s second
     motion on October 30, 2014, directing the appellant to respond to the
     supplemental request immediately or face sanctions, including the drawing of
     adverse evidentiary inferences and prohibiting her from presenting certain
     evidence at the hearing. IAF, Tab 30.
¶8         On November 7, 2014, the agency filed a motion for sanctions, arguing that
     the appellant failed to comply with either of the administrative judge’s orders.
     IAF, Tab 32. The agency acknowledged that, on November 5, 2014, the appellant
     mailed responses to its first discovery request, but it argued that her responses
     were incomplete, insufficient, and “in many cases incoherent.”           The agency
     suggested that the appropriate sanctions were the drawing of an adverse
     inference, admitting all requests for admissions, and/or the preclusion of
     evidence.      Id.   On November 21, 2014, the administrative judge granted the
     agency’s motion for sanctions “for good cause shown,” ordering that the appellant
     not be allowed to produce on her own behalf any evidence requested by the
     agency in its discovery requests.       The administrative judge stated that the
     appellant was prohibited from offering factual testimony on any issue covered by
     the agency’s discovery requests to which she refused to respond, and that, to the
     extent that the responses the appellant did provide were incoherent or
     incomprehensible, the agency should seek clarification from her. IAF, Tab 33.
     During the prehearing conference, the administrative judge directed the agency to
     state whether any of the appellant’s proffered testimony or exhibits should be
     barred due to the administrative judge’s having granted the agency’s motion for
     sanctions. 7    IAF, Tab 53.    In response, the agency argued that the appellant

     7
       On November 26, 2014, the appellant filed a motion to compel the agency to respond
     to her discovery requests. IAF, Tab 36. She argued that she did not receive the
     administrative judge’s August 28, 2014 acknowledgment order until 2 months after it
     was sent to the agency, and had not received it on September 25, 2014, when the agency
     first served her with discovery requests. She further argued that she timely initiated
                                                                                          6

      should be prohibited from offering evidence or factual testimony regarding her
      affirmative defenses. IAF, Tab 54. The appellant noted her objections to the
      administrative judge’s rulings. IAF, Tab 55.
¶9         An administrative judge has wide discretion over matters relating to
      discovery, and the Board will not reverse rulings on discovery matters absent an
      abuse of discretion. Parker v. Department of Housing & Urban Development,
      106 M.S.P.R. 329, ¶ 9 (2007). The Board’s regulations provide that, if a party
      fails or refuses to respond in full to a discovery request, the requesting party may
      file a motion to compel discovery. The requesting party must serve a copy of the
      motion on the other party. Before filing any such motion, the moving party shall
      discuss the anticipated motion with the opposing party, and all those involved
      shall make a good faith effort to resolve the discovery dispute and narrow the
      areas of disagreement. 5 C.F.R. § 1201.73(c). The regulations further provide
      that any pleading in opposition to a motion to compel discovery must be filed
      within 10 days of the date of service of the motion. 5 C.F.R. § 1201.73(d)(3).
¶10        Here, as noted, the agency filed its first motion to compel on
      October 20, 2014, IAF Tab 27, and the administrative judge granted the motion
      3 days later on October 23, 2014, IAF, Tab 28.         The agency filed its second
      motion to compel on October 28, 2014, IAF, Tab 29, and the administrative judge
      granted the motion 2 days later on October 30, 3014, IAF, Tab 30. There is no
      suggestion that the agency representative discussed the anticipated motions with
      the appellant. Moreover, the appellant clearly did not have 10 days to oppose the
      motions because of the speed with which the administrative judge granted them.


      discovery on November 5, 2014, the end of the 30-day period during which the case
      processing was suspended. Id. After the agency responded, urging denial of the
      appellant’s motion, IAF, Tab 37, the administrative judge issued an order denying the
      appellant’s motion to compel on the basis that it was not in the proper format and did
      not state a basis for granting it, IAF, Tab 38. The appellant filed a motion for
      reconsideration, IAF, Tab 50, but the administrative judge denied the motion, IAF,
      Tab 53.
                                                                                         7

      Additionally, both of the agency’s motions were filed and both of the
      administrative judge’s rulings were made during the 30-day period when she had
      suspended case processing. The administrative judge did not, in her ruling to
      suspend case processing, explain the implications that ruling would have on the
      discovery process. IAF, Tab 25. It is likely that the appellant perceived that no
      action would be taken during the period of suspended case processing because she
      responded to the agency’s first discovery request on the day case processing was
      to resume, November 5, 2014, IAF, Tab 32, and she also, that same day, served
      the agency with her discovery request, IAF, Tabs 36-37. Guidance set forth in
      the Administrative Judges’ Handbook provides that, if the parties contact the
      administrative judge during the period of suspended processing for assistance
      relative to discovery, and if the administrative judge’s involvement is likely to be
      extensive, the administrative judge will notify the parties that it will be necessary
      to take the case off suspension and return it to standard processing. See Merit
      Systems Protection Board Judges’ Handbook, Ch. 3, § 12. The administrative
      judge’s granting of two motions to compel discovery during the period of
      suspension suggests that her involvement in the discovery process was extensive.
      For all these reasons, we find that the administrative judge abused her discretion
      in granting the agency’s motions to compel.
¶11         Administrative judges may impose sanctions upon the parties as necessary
      to serve the ends of justice. 5 C.F.R. § 1201.43. When a party fails to comply
      with an order, the administrative judge may “[p]rohibit the party failing to
      comply with the order from introducing evidence concerning the information
      sought, or from otherwise relying upon testimony related to that information.”
      5 C.F.R. § 1201.43(a)(2).    The imposition of sanctions is a matter within the
      administrative judge’s sound discretion, and absent a showing that such discretion
      has been abused, the administrative judge’s determination will not be found to
      constitute reversible error. Smets v. Department of the Navy, 117 M.S.P.R. 164,
      ¶ 11 (2011), aff’d, 498 F. App’x 1 (Fed. Cir. 2013).
                                                                                            8

¶12         In this case, the administrative judge granted “for good cause shown” the
      agency’s motion for sanctions against the appellant for failing to comply with the
      two orders to compel. 8       IAF, Tab 33.       Because we have found that the
      administrative judge abused her discretion in granting the agency’s motions to
      compel discovery, and because those motions formed the foundation for its
      motion for sanctions, we likewise must find that the administrative judge abused
      her discretion in granting the agency’s motion for sanctions.
¶13         In finding that the appellant failed to establish her affirmative defenses, the
      administrative judge found that she did not seek to introduce any testimony or
      evidence on those defenses, and that therefore the administrative judge did not
      have to rule on whether such information should be excluded. ID at 3. However,
      it appears likely that, based on the administrative judge’s ruling and the agency’s
      response as to how it should be effectuated, IAF, Tab 54, the appellant believed
      that the administrative judge already had determined, prior to the hearing, not to
      accept evidence relating to the appellant’s affirmative defenses and thus that she
      was precluded from offering such evidence.            IAF, Tab 55 (the appellant’s
      objections to the prehearing conference summary).
¶14         The administrative judge’s ruling precluded the appellant from offering
      evidence or factual testimony regarding her affirmative defenses. Then, based on
      a lack of proof, the administrative judge found against her on those defenses.
      They included retaliation for protected EEO activity, specifically, the appellant’s
      having filed two EEO complaints and participated in the complaint of a coworker
      which, like hers, named the appellant’s supervisor, retaliation for protected


      8
        As noted, in its motion for sanctions, the agency conceded that the appellant had,
      2 days before, responded to its first discovery request, but argued that her responses
      were incomplete. IAF, Tab 32. To the extent that the administrative judge relied upon
      that argument in granting the agency’s motion for sanctions, we are not convinced that
      the appellant, appearing pro se at this point in the proceedings, failed to make a good
      faith effort in responding to the agency’s discovery requests. Id. at 52-59; see Wiggins
      v. Department of the Air Force, 113 M.S.P.R. 443, ¶ 12 (2010).
                                                                                             9

      disclosures the appellant made regarding prohibited personnel practices at the
      agency and allegedly illegal information technology, cyber-security, and Privacy
      Act violations, and harmful procedural error regarding restrictions on her right to
      make an oral reply to the charges. IAF, Tab 1 at 14-16. Our reviewing court has
      ruled that it is an abuse of discretion to exclude evidence during a Board
      proceeding that would tend to support an employee’s claim of retaliation for
      whistleblowing, and then use that lack of evidence to find against the employee
      on that claim. Whitmore v. Department of Labor, 680 F.3d 1353, 1369‑70 (Fed.
      Cir. 2012).   The administrative judge’s discovery rulings in this case and her
      findings on the appellant’s affirmative defenses are the kinds of actions that the
      court in Whitmore cautioned against. See id. at 1369.
¶15         Under these circumstances, we find that the appellant was denied the ability
      to develop the record on her affirmative defenses and that therefore this case must
      be remanded. On remand, the administrative judge shall, in accordance with the
      Board’s regulations, allow the appellant to engage anew in discovery as to her
      affirmative defenses only. 9 Thereafter, the administrative judge shall convene a
      supplemental hearing confined to those issues after which she shall issue a new
      initial decision. If, on remand, the administrative judge finds that the appellant
      has failed to prove any of these claims, she may adopt the findings from her first
      initial decision as to the charges, nexus, and the reasonableness of the penalty. 10




      9
       We therefore make no findings as to the propriety of the administrative judge’s denial
      of the appellant’s motion to compel.
      10
         Accordingly, we need not, at this time, address the appellant’s claims of error
      regarding these findings.
                                                                                   10


                                          ORDER
¶16        For the reasons discussed above, we remand this case to the regional office
      for further adjudication in accordance with this Remand Order.




      FOR THE BOARD:                          ______________________________
                                              Jennifer Everling
                                              Acting Clerk of the Board
      Washington, D.C.
