                           UNITED STATES OF AMERICA
                        MERIT SYSTEMS PROTECTION BOARD


     MELISSA J. CHURCH,                              DOCKET NUMBER
                   Appellant,                        SF-0752-15-0450-I-1

                  v.

     DEPARTMENT OF THE ARMY,                         DATE: August 5, 2016
                 Agency.



             THIS FINAL ORDER IS NONPRECEDENTIAL 1

           Christopher H. Bonk, Esquire, and Kevin L. Owen, Esquire, Silver Spring,
             Maryland, for the appellant.

           Joshua Cumming and Robert J. Aghassi, Fort Irwin, California, for the
             agency.


                                           BEFORE

                              Susan Tsui Grundmann, Chairman
                                 Mark A. Robbins, Member


                                       FINAL ORDER

¶1         The appellant has filed a petition for review of the initial decision, which
     reversed her termination and denied her affirmative defenses.          Generally, we
     grant petitions such as this one only when: the initial decision contains erroneous
     findings of material fact; the initial decision is based on an erroneous


     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        A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

     interpretation of statute or regulation or the erroneous application of the law to
     the facts of the case; the administrative judge’s rulings during either the course of
     the appeal or the initial decision were not consistent with required procedures or
     involved an abuse of discretion, and the resulting error affected the outcome of
     the case; or new and material evidence or legal argument is available that, despite
     the petitioner’s due diligence, was not available when the record closed. Title 5
     of the Code of Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115).
     After fully considering the filings in this appeal, we conclude that the petitioner
     has not established any basis under section 1201.115 for granting the petition for
     review. Therefore, we DENY the petition for review and AFFIRM the initial
     decision, which is now the Board’s final decision. 5 C.F.R. § 1201.113(b).
¶2         Effective March 9, 2015, the agency terminated the appellant from her
     competitive-service position as GS-6 Human Resources Assistant at the agency
     following an incident that occurred between the appellant, her husband, and a
     Staff Sergeant who worked in the same building as the appellant. Initial Appeal
     File (IAF), Tab 1 at 18. The agency terminated the appellant having determined
     that: (1) she was serving a probationary period; (2) her actions and personal
     conduct included the use of profanity and caused a “huge” disruption in the
     workplace; (3) a high-ranking company commander had to be called to remove
     her from the work area after she was asked to leave three times to de-escalate the
     situation, and she refused; and (4) she left her duty station without approval to
     attend to a personal matter. Id.
¶3         The appellant filed an appeal with the Board arguing that she was not a
     probationary employee and that the agency terminated her without due process.
     IAF, Tab 1.      The appellant, who is a Caucasian woman married to an
     African-American man, also raised affirmative defenses of sexual harassment and
     discrimination based on her race, marital status, and national origin (the North
     County of San Diego, California).       The appellant also alleged that she was
     discriminated against for being a smoker and that the agency committed
                                                                                            3

     prohibited personnel practices in violation of 5 U.S.C. § 2032(b)(2), (b)(4),
     (b)(6), (b)(7), (b)(8), (b)(9)(A), (D), and (b)(10). IAF, Tabs 1, 5, 11, 14, 21,
     29, 31. In her closing statement, the appellant also submitted an August 21, 2015
     memorandum in which the agency canceled her termination, effective March 9,
     2015. IAF, Tab 31 at 16-17.
¶4         Because the appellant withdrew her request for a hearing, the administrative
     judge issued a decision based on the written record. IAF, Tab 29. She found that
     the Board had jurisdiction over the appeal and reversed the agency’s termination
     action. IAF, Tab 37, Initial Decision (ID). She found that the appellant met the
     definition of “employee” with appeal rights under 5 U.S.C. § 7511(a)(1)(A)(ii)
     because the appellant completed 1 year of current continuous service prior to her
     removal and that she had the right to notice of the proposed disciplinary action
     and the opportunity to respond. ID at 8. Because it was undisputed that the
     agency failed to provide the appellant with the required notice and opportunity to
     respond to the proposed disciplinary action, the administrative judge reversed the
     appellant’s termination on due process grounds. ID at 10. The administrative
     judge also found that the Board retained jurisdiction over the appeal and that it
     was not moot, even though the agency rescinded the termination action, because
     the appellant raised a claim of discrimination with a request for compensatory
     damages. ID at 8-9. The administrative judge further found that the appellant
     failed to prove her affirmative defenses. ID at 10-31.
¶5         The appellant filed a petition for review challenging the administrative
     judge’s finding that she did not prove her affirmative defense of race
     discrimination, and the agency responded in opposition to her petition. Petition
     for Review (PFR) File, Tabs 6, 9. 2

     2
       On review, the appellant does not appear to contest the administrative judge’s decision
     reversing the termination action or her findings that the appellant failed to prove her
     affirmative defenses unrelated to her claim of race discrimination. PFR File, Tab 1. In
     addition, the agency, in its response to the petition for review, does not challenge the
     administrative judge’s decision reversing the termination. PFR File, Tab 9. We decline
     to revisit these findings on review.
                                                                                          4

¶6         In finding that the appellant failed to prove her affirmative defense of race
     discrimination,   the   administrative    judge   properly   applied   the   analytical
     framework set forth in Savage v. Department of the Army, 122 M.S.P.R. 612, ¶ 51
     (2015). ID at 11-12. The Board held in Savage 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. 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). Savage, 122 M.S.P.R.
     612, ¶ 51.
¶7         In making this initial showing, an appellant may rely on direct evidence or
     any of the three types of circumstantial evidence described in Troupe v. May
     Department Stores Company, 20 F.3d 734, 736-37 (7th Cir. 1994), either alone or
     in combination.      Savage, 122 M.S.P.R. 612, ¶ 51. Those three types of
     circumstantial evidence are (1) a “convincing mosaic” of discrimination, i.e.,
     suspicious timing, ambiguous oral or written statements, behavior toward or
     comments directed at other employees in the protected group at issue, and “other
     bits and pieces from which an inference of discriminatory intent might be drawn,”
     (2) comparator evidence, and (3) evidence that the agency’s stated reason for its
     action is unworthy of belief, such that it is a mere pretext for discrimination.
     Savage, 122 M.S.P.R. 612, ¶ 42 (quoting Troupe, 20 F.3d at 736-37).              If the
     appellant meets her 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. Id., ¶ 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. Id.
                                                                                          5

¶8          On review, the appellant argues that the evidence does not support the
      administrative judge’s finding that she provided no evidence “that her removal
      was motivated in any way by her being Caucasian or being (by association) Black
      or African American.” PFR File, Tab 6 at 12-13. The appellant argues that she
      proved her affirmative defense of race discrimination by association and that the
      administrative judge erroneously concluded that her termination was not
      motivated by race based on her “misreading” of the deciding official’s affidavit.
      Id. at 13. The appellant argues that, although the deciding official denied making
      statements about the appellant’s race and her husband’s social status, the deciding
      official did not deny making other alleged statements against her husband or
      against African Americans in general. Id. The appellant further argues that the
      administrative judge acknowledged that she presented some evidence of race
      discrimination by association. Id.
¶9          We find that the appellant’s arguments on review amount to mere
      disagreement with the administrative judge’s weighing of the evidence and that
      the administrative judge did not misread the deciding official’s affidavit in
      finding that the appellant failed to prove her affirmative defense of race
      discrimination. In her sworn affidavit, the deciding official stated, inter alia, that
      her decision to terminate the appellant “was not based on any discriminatory
      motive” including “her race etc.” IAF, Tab 32 at 16. The deciding official also
      stated in her affidavit that she “never commented [on] nor discussed” the social
      status of the appellant’s husband. IAF, Tab 32 at 16.
¶10         The evidence considered by the administrative judge consisted entirely of
      out-of-court witness statements, and she evaluated the probative value of that
      hearsay evidence, including but not limited to the deciding official’s sworn
      affidavit refuting the appellant’s claims, based on the factors set forth in
      Borninkhof v. Department of Justice, 5 M.S.P.R. 77, 87 (1981). ID at 14. Under
      Borninkhof, the following factors affect the weight to be accorded hearsay
      evidence: (1) the availability of persons with firsthand knowledge to testify at
                                                                                        6

      the hearing; (2) whether the statements of the out-of-court declarants were signed
      or in affidavit form, and whether anyone witnessed the signing; (3) the agency’s
      explanation for failing to obtain signed or sworn statements; (4) whether
      declarants were disinterested witnesses to the events, and whether the statements
      were routinely made; (5) consistency of declarants’ accounts with other
      information in the case, internal consistency, and their consistency with each
      other; (6) whether corroboration for statements otherwise can be found in the
      agency record; (7) the absence of contradictory evidence; and (8) the credibility
      of declarant when she made the statement attributed to her. 5 M.S.P.R. at 87.
¶11        The administrative judge found that the appellant withdrew her hearing
      request; accordingly, the witnesses could not provide hearing testimony.         ID
      at 15. The administrative judge also found that all except one of the witnesses’
      statements were signed and made under the penalty of perjury.            Id.    The
      administrative judge found that the appellant and the deciding official were not
      disinterested witnesses and that their statements were contradictory.     Id.   The
      administrative judge found that the appellant failed to prove her claim of race
      discrimination because it was based entirely on double hearsay, which lacked
      sufficient reliability to have real probative value, and that she submitted only
      “sparse” evidence showing that her removal was motivated by her race
      (Caucasian) or by her association with a race (Black or African American). ID
      at 16. The administrative judge also found it significant that the appellant failed
      to submit corroborating evidence consisting of statements from disinterested
      witnesses substantiating the alleged race discrimination or contemporaneous
      evidence in diary or journal entries reflecting the alleged discriminatory
      comments. Id. at 15.
¶12        We find that the appellant submits no new, material, and previously
      unavailable evidence on review to support her allegations of race discrimination
      by association or based on her race.     Although the appellant argues that the
      administrative judge erred in finding that she failed to prove that the agency’s
                                                                                                 7

      stated reason for her termination was a pretext for race discrimination, we
      disagree. PFR File, Tab 6 at 8-11. She contends that her “mere reluctance to
      depart” from the scene of the disturbance “does not reasonably demonstrate
      affirmatively disruptive misconduct” and that the eyewitnesses’ sworn statements
      do not support the agency’s claim that her actions caused chaos or that she used
      inappropriate language. Id. at 9-10. She further argues that the administrative
      judge’s decision relied “upon the possibility of testimony from an individual who
      provided no sworn statement, and the rebutted testimony from an individual not
      present at the time of the charged misconduct.”            Id. at 11.        The appellant,
      however, has not shown that race discrimination, by association or otherwise, was
      a motivating factor in the agency’s              decision to terminate          her.     See
      Savage, 122 M.S.P.R. 612, ¶ 49.
¶13        Finally, we have also considered the appellant’s other arguments and
      allegations of error on review, and we conclude that none of them form a basis for
      disturbing the administrative judge’s thorough, well-reasoned decision reversing
      the appellant’s termination and finding that she failed to prove the affirmative
      defenses    that   she   raised   on   appeal.       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); Broughton v.
      Department of Health & Human Services, 33 M.S.P.R. 357, 359 (1987) (same).
      We therefore deny the appellant’s petition for review and affirm the initial
      decision.

                         NOTICE TO THE APPELLANT REGARDING
                            YOUR FURTHER REVIEW RIGHTS
            You have the right to request further review of this final decision. There
      are several options for further review set forth in the paragraphs below. You may
      choose only one of these options, and once you elect to pursue one of the avenues
                                                                                 8

of review set forth below, you may be precluded from pursuing any other avenue
of review.

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 U.S. 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 is:
                           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.

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 U.S. 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 receives this order before you
do, then you must file with the district court no later than 30 calendar days after
                                                                                     9

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.   42 U.S.C.   § 2000e-5(f)
and 29 U.S.C. § 794a.

Other Claims: Judicial Review
        If you want to request review of the Board’s decision concerning your
claims of prohibited personnel practices described in 5 U.S.C. § 2302(b)(8),
(b)(9)(A)(i), (b)(9)(B), (b)(9)(C), or (b)(9)(D), but you do not want to challenge
the Board’s disposition of any other claims of prohibited personnel practices, you
may request the U.S. Court of Appeals for the Federal Circuit or any court of
appeals of competent jurisdiction to review this final decision.          The court of
appeals must receive your petition for review within 60 days after the date of this
order. See 5 U.S.C. § 7703(b)(1)(B) (as rev. eff. Dec. 27, 2012). If you choose
to file, be very careful to file on time.
        If you need further information about your right to appeal this decision to
court, you should refer to the Federal law that gives you this right. It is found in
title 5 of the U.S. Code, section 7703 (5 U.S.C. § 7703) (as rev. eff. Dec. 27,
2012). You may read this law as well as other sections of the U.S. Code, at our
website, http://www.mspb.gov/appeals/uscode/htm. Additional information about
the U.S. Court of Appeals for the Federal Circuit is available at the court’s
website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide
for Pro Se Petitioners and Appellants,” which is contained within the
court’s Rules of Practice, and Forms 5, 6, and 11. Additional information about
other courts of appeals can be found at their respective websites, which can be
accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx.
                                                                                10

      If you are interested in securing pro bono representation for your appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website
at   http://www.mspb.gov/probono      for     information   regarding   pro   bono
representation for Merit Systems Protection Board appellants before the Federal
Circuit.   The Merit Systems Protection Board neither endorses the services
provided by any attorney nor warrants that any attorney will accept representation
in a given case.




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