UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD 

MARY STOCKARD TURNER,

Appellant,

v.

NATIONAL ARCHIVES AND 

RECORDS ADMIN,

Agency.

DOCKET NUMBER

CH-4324-19-0433-I-2

DATE: March 7, 2024

THIS FINAL ORDER IS NONPRECEDENTIAL1

Mary Stockard Turner, St Louis, Missouri, pro se.

Stephani L. Abramson, Esquire, Hannah Bergman, and Sean W. Ryal, 

College Park, Maryland, for the agency.

BEFORE

Cathy A. Harris, Vice Chairman

Raymond A. Limon, Member

FINAL ORDER

The appellant has filed a petition for review of the initial decision, which

denied her request for corrective action in connection with her appeal under

Uniformed Services Employment and Reemployment Rights Act (USERRA).

Generally, we grant petitions such as this one only in the following

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 A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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).
circumstances: the initial decision contains erroneous findings of material fact;

the initial decision is based on an erroneous 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. 2

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). 

Following a hearing, the administrative judge issued a thorough and

well-reasoned initial decision in which she addressed the appellant’s claims

regarding seven nonselections for promotions/details, four reassignments, four

other actions,3 and a general claim of a hostile work environment, all of which the

appellant contended were based on discrimination due to her status as a military

reservist and in retaliation for her protected activity of asserting her rights under

2

 After the record closed on review, the appellant filed a motion requesting leave to

include new evidence in her petition for review purportedly showing that the

administrative judge acted improperly. 5 C.F.R. § 1201.114(k); Petition for Review

File, Tab 6. Once the record closes on review, no additional evidence or argument will

be accepted unless it is new and material and was not readily available before the record

closed. 5 C.F.R. § 1201.114(k). Because the appellant’s motion does not show that her

evidence is material nor that it was not readily available before the record closed on

review, it is denied.

3

 These included the appellant’s claims that the agency was slow in providing her office

essentials (phone and computer access) when she returned from a period of leave in

May 2018, transferred her belongings when she was on leave prior to May 15, 2018,

pressured her to change a subordinate’s appraisal during fiscal year 2013, and ignored a

complaint she filed with the Office of Inspector General in the summer of 2018.

Turner v. National Archives and Records Admin, MSPB Docket No. CH-4324-19-0433-

I-2, Appeal File, Tab 16 at 3-5.

2
USERRA. Turner v. National Archives and Records Admin, MSPB Docket No.

CH-4324-19-0433-I-2, Appeal File, Tab 32, Initial Decision (ID). The

nonselections and other events complained about by the appellant occurred

between 2012 and 2018. The administrative judge carefully examined

the documentary and testimonial evidence related to each nonselection for

promotion/detail, the reassignments, and the other actions, finding that the

appellant did not offer sufficient evidence to show that any were based on her

status as a military reservist or due to her protected activity of asserting her

USERRA rights. ID at 11-25. The administrative judge further found that the

appellant failed to prove her claim that, based on her military service or protected

activity, the agency subjected her to a hostile work environment, and that she also

failed to show that the agency had a general animosity towards veterans or those

who were obligated to perform military service. ID at 25-29. Accordingly, the

administrative judge denied the appellant’s request for corrective action. ID at 2,

30.

The appellant’s petition for review consists of a copy of the initial decision

to which she has noted, in bold, her specific objections to certain of the

administrative judge’s statements or findings. Petition for Review (PFR) File,

Tab 1 at 2-30. The great majority of these objections have no bearing on her

USERRA claim, that is, they do not explain the significance of the appellant’s

military service or protected activity to the actions of which she complains.

38 U.S.C. § 4311(a), (b); Sheehan v. Department of the Navy, 240 F.3d 1009,

1012 (Fed. Cir. 2001). Thus, they do not support a finding that the administrative

judge erred in concluding that the appellant failed to prove a violation of

USERRA. Regarding her objections to the administrative judge’s findings in

which the appellant does allude to her military service, she merely disagrees with

those findings in conclusory fashion. A petition for review must contain

sufficient specificity to enable the Board to ascertain whether there is a serious

evidentiary challenge justifying a complete review of the record. Tines v.

3
Department of the Air Force, 56 M.S.P.R. 90, 92 (1992). The appellant’s

disagreement with the administrative judge’s findings does not explain why they

are incorrect or otherwise establish error. Yang v. U.S. Postal Service,

115 M.S.P.R. 112, ¶ 12 (2010) (stating that a petition for review that consists of

mere disagreement with the initial decision does not provide a basis to grant

review); see Broughton v. Department of Health and Human Services,

33 M.S.P.R. 357, 359 (1987) (finding that there is no reason to disturb the

administrative judge’s conclusions when the initial decision reflects that the

administrative judge considered the evidence as a whole, drew appropriate

inferences, and made reasoned conclusions).

The appellant raises two claims of bias by the administrative judge.

She first challenges the administrative judge’s statement, made after she had

reviewed the record, that “the evidence revealed tendencies on [the] [a]ppellant’s

part to interpret innocuous events negatively and let unfounded perceptions color

her review of the facts . . . .” ID at 23. On review, the appellant argues only that

the statement reflects bias on the administrative judge’s part. PFR File, Tab 1

at 24. In making a claim of bias, an appellant must overcome the presumption of

honesty and integrity that accompanies administrative adjudicators. Oliver v.

Department of Transportation, 1 M.S.P.R. 382, 386 (1980). The mere fact that an

administrative judge does not accept the appellant’s assertions or interprets

testimony in the fashion the appellant claims is correct does not constitute bias.

Protopapa v. Department of Transportation, 14 M.S.P.R. 455, 459 (1983).

Here, the appellant’s claim of bias reflects only her disagreement with the

administrative judge’s findings. We therefore find this bias claim to be without

merit.

The appellant also argues that the administrative judge’s credibility

determinations reflect bias. PFR File, Tab 1 at 28. The administrative judge

found that all of the agency witnesses were credible, and that they exhibited

appropriate demeanor, even while being questioned by the appellant. ID at 27.

4
Notably, the administrative judge did not find that the appellant was incredible,

but rather that she was generally credible, except that, when she discussed her

claims of military bias, she was not persuasive. Haebe v. Department of Justice,

288 F.3d 1288, 1301 (Fed. Cir. 2002) (finding that 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; the

Board may overturn such determinations only when it has “sufficiently sound”

reasons for doing so); ID at 22-23, 27-28. The administrative judge further found

that the appellant could point to no evidence in the record to support her

contention that the agency had discriminated or retaliated against her based on

her military service, except for her subjective belief, and that she appeared to

have a heightened sensitivity to straightforward agency actions. ID at 23, 28.

None of these statements or findings by the administrative judge evidence bias.

Neither do the appellant’s contrary conclusory statements. 4 Lee v. U.S. Postal

Service, 48 M.S.P.R. 274, 281 (1991). 

NOTICE OF APPEAL RIGHTS5

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

4

 Regarding the appellant’s argument that the administrative judge erred in her

discovery-related rulings, PFR File, Tab 1 at 10, an administrative judge has broad

discretion in ruling on discovery matters, and absent an abuse of discretion, the Board

will not find reversible error in such rulings, Kingsley v. U.S. Postal Service,

123 M.S.P.R. 365, ¶ 16 (2016). The appellant’s allegations do not establish an abuse of

discretion in this appeal.

5

 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.

5
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). 

If 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

6
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

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. 

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

7
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

other 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.6 The court of appeals must receive your petition for

6

 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. 

8
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

Board 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

Washington, D.C.

9