UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD

DAYO STEVENS, Appellant,

v.
DEPARTMENT OF VETERANS AFFAIRS, Agency. DOCKET NUMBER PH-0714-22-0158-I-1

DATE: March 28, 2024



### THIS FINAL ORDER IS NONPRECEDENTIAL 1

Dayo Stevens , Georgetown, Delaware, pro se.

Nelda R. Davis , Esquire, Baltimore, Maryland, for the agency.

BEFORE Cathy A. Harris, Chairman Raymond A. Limon, Vice Chairman

FINAL ORDER The appellant has filed a petition for review of the initial decision, which denied his affirmative defense of national origin discrimination and implicitly dismissed his removal appeal as moot. Generally, we grant petitions such as this one only in the following circumstances: 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1 A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case law. Parties may cite nonprecedential orders, but such orders have no precedential value; the Board and administrative judges are not required to follow or distinguish them in any future decisions.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).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. Except as expressly MODIFIED to explicitly DISMISS the removal appeal as moot, we AFFIRM the
initial decision. The Board may dismiss an appeal as moot if the appealable action is canceled or rescinded by the agency. Fernandez v. Department of Justice , 105 M.S.P.R. 443, ¶ 5 (2007). For the appeal to be deemed moot, the employee
must have received all of the relief that he could have received if the matter had been adjudicated and he had prevailed. Id. When an agency cancels an action after an appellant files a Board appeal and the appellant has a viable outstanding compensatory damages claim, such as a discrimination claim, the appeal is not mooted by the cancellation. See Currier v. U.S. Postal Service , 72 M.S.P.R. 191, 195-97 (1996). On review, the appellant challenges the administrative judge’s findings regarding his affirmative defense of national origin discrimination, and he asserts that he is entitled to compensatory damages for the pain and suffering he endured in connection with the removal. Petition for Review (PFR) File, Tab 1. Compensatory damages are typically not available in connection with a removal appeal unless the appellant prevails on an affirmative defense. 2 See Currier ,

2 In any event, the appellant has waived this argument because he did not timely raise it before the administrative judge. Initial Appeal File (IAF), Tab 21 at 1 n.1, 6 (noting that, aside from the discrimination claim, the appellant did not dispute that he was 272 M.S.P.R. at 195

- 96 (explaining that, in the absence of an affirmative defense

such as a discrimination claim, compensatory damages are not available in connection with an adverse action appeal before the Board). The appellant’s arguments concerning his national origin discrimination claim are not clear. To the extent the appellant is asserting that the removal action was discriminatory, we agree with the administrative judge, for the reasons stated in the initial decision, that there is no evidence that the agency considered the appellant’s national origin in connection with proposing or sustaining the removal. Initial Appeal File (IAF), Tab 28, Initial Decision (ID) at 3-13. The appellant’s arguments on review provide no basis to disturb this finding. 3 See Crosby v. U.S.
Postal Service , 74 M.S.P.R. 98, 106 (1997); Broughton v. Department of Health
& Human Services , 33 M.S.P.R. 357, 359 (1987). To the extent the appellant is asserting that he was subjected to harassment, separate and apart from the removal, the Board lacks jurisdiction over a harassment claim unless it is connected to an otherwise appealable action. See Lethridge v. U.S. Postal
Service , 99 M.S.P.R. 675, ¶¶ 8-9 (2005) (holding that claims of discrimination and harassment are within the jurisdiction of the Board only when they are related to an otherwise appealable personnel action). Based on the foregoing, we deny

returned to the status quo ante); see McCarty v. Department of the Navy , 67 M.S.P.R. 177, 180-81 (1995) (finding that the appellant failed to preserve an objection for review when he failed to object to the administrative judge’s ruling contained in a prehearing conference order).

3 We have not considered the documents filed with the appellant’s petition for review. PFR File, Tab 1 at 5-13, 19. Under 5 C.F.R. § 1201.115, the Board generally will not consider evidence submitted for the first time with a petition for review absent a showing that it was unavailable before the record was closed before the administrative judge despite the party’s due diligence. Avansino v. U.S. Postal Service , 3 M.S.P.R. 211, 213-14 (1980). Some of the documents were filed before the administrative judge and are not new, including an excerpt from an agency handbook, which was discussed by the administrative judge in the initial decision. ID at 10-11 n.4; see Meier v. Department of the Interior , 3 M.S.P.R. 247, 256 (1980). To the extent any of the documents in the petition for review are not already in the record, the appellant has not alleged that they were unavailable before the record closed judge despite his due diligence. See Avansino , 3 M.S.P.R. at 213-14; 5 C.F.R. § 1201.115. 3the petition for review and affirm the initial decision, as modified to explicitly

dismiss the removal appeal as moot.

NOTICE OF APPEAL RIGHTS 4 The initial decision, as supplemented by this Final Order, constitutes the
Board’s final decision in this matter. 5 C.F.R. § 1201.113. You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By statute, the nature of your claims determines the time limit for seeking such review and the appropriate forum with which to file. 5 U.S.C. § 7703(b). Although we offer the following summary of available appeal rights, the Merit Systems Protection Board does not provide legal advice on which option is most appropriate for your situation and the rights described below do not represent a statement of how courts will rule regarding which cases fall within their jurisdiction. If you wish to seek review of this final decision, you should immediately review the law applicable to your claims and carefully follow all filing time limits and requirements. Failure to file within the applicable time limit may result in the dismissal of your case by your
chosen forum. Please read carefully each of the three main possible choices of review below to decide which one applies to your particular case. If you have questions about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.

(1) Judicial review in general . As a general rule, an appellant seeking judicial review of a final Board order must file a petition for review with the U.S. Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C. § 7703(b)(1)(A).

4 Since the issuance of the initial decision in this matter, the Board may have updated the notice of review rights included in final decisions. As indicated in the notice, the Board cannot advise which option is most appropriate in any matter. 4If you submit a petition for review to the U.S. Court of Appeals for the

Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 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, 10, and 11. If you are interested in securing pro bono representation for an 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 Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you were affected by an action that is appealable to the Board and that such action was based, in whole or in part, on unlawful discrimination. If so, you may obtain judicial review of this decision

— including a disposition of your discrimination
claims

— by filing a civil action with an appropriate U.S. district court ( not the U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case, and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on 5race, 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. Contact information for U.S. district courts can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx

. Alternatively, you may request review by the Equal Employment Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case, and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision. If you submit a request for review to the EEOC 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 a request for review to the EEOC 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, N.E. Suite 5SW12G Washington, D.C. 20507 (3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or 6other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).

If so, and your judicial petition for review “raises no challenge to the Board’s disposition of allegations of a prohibited personnel practice described in section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either with the U.S. Court of Appeals for the Federal Circuit or any court of appeals of competent jurisdiction. 5 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C. § 7703(b)(1)(B). If you submit a petition for judicial review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 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, 10, and 11. If you are interested in securing pro bono representation for an 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

5 The original statutory provision that provided for judicial review of certain whistleblower claims by any court of appeals of competent jurisdiction expired on December 27, 2017. The All Circuit Review Act, signed into law by the President on July 7, 2018, permanently allows appellants to file petitions for judicial review of MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals for the Federal Circuit or any other circuit court of appeals of competent jurisdiction. The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195, 132 Stat. 1510. 7Board neither endorses the services provided by any attorney nor warrants that

any attorney will accept representation in a given case. Contact information for the 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

.

FOR THE BOARD:

______________________________ Gina K. Grippando Clerk of the Board 8