UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD 

NADRA K. DUNBAR,

Appellant,

v.

DEPARTMENT OF 

TRANSPORTATION,

Agency.

DOCKET NUMBER

DC-0752-14-1003-I-1

DATE: November 15, 2016

THIS ORDER IS NONPRECEDENTIAL1

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 1 A nonprecedential order is one that the Board has determined does not add 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 Parties may cite nonprecedential orders, 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

Washington, D.C.

______________________________

Jennifer Everling

Acting Clerk of the Board