UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

2017 MSPB 4

Docket No. NY-315H-13-0277-I-1

Robin Sabio,

Appellant,

v.

Department of Veterans Affairs,

Agency.

January 6, 2017

Charles Wilson, Esquire, and Tony Fisher, Esquire, Buffalo, New York, 

for the appellant.

Jeffrey L. Whiting, Esquire, Buffalo, New York, for the agency.

BEFORE

Susan Tsui Grundmann, Chairman

Mark A. Robbins, Member

OPINION AND ORDER

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

denied her affirmative defense of race-based discrimination in connection with 

the agency’s rescinded termination action. For the reasons discussed below, we 

DENY the petition for review and AFFIRM the initial decision, as MODIFIED by

this Opinion and Order. We take this opportunity to clarify when an 

administrative judge must hold a hearing on a discrimination claim raised in 

connection with an otherwise appealable action and clarify the administrative 

judge’s analysis of the appellant’s race discrimination claim consistent 

with Savage v. Department of the Army, 122 M.S.P.R. 612 (2015).
2

BACKGROUND

¶2 Effective June 17, 2012, the appellant began a 2-year term appointment 

with the agency as a GS-7 Veterans Claims Examiner (VCE) on the Veterans 

Retraining Assistance Program (VRAP) team. Initial Appeal File (IAF), Tab 8 

at 9. Her competitive‐service appointment was subject to a 1-year probationary 

period. Id. On May 31, 2013, the agency notified her that she would be 

terminated from her position during her probationary period due to unsatisfactory 

performance. Id. at 11. The agency processed her probationary termination

effective June 14, 2013, at 4:30 p.m. Id. at 11, 21. She appealed her termination 

to the Board. IAF, Tab 1. Subsequently, the agency determined that the 

appellant had completed her probationary period just before the effective date and 

time of her termination. IAF, Tab 18 at 4. Because the agency had improperly 

terminated the appellant without providing her the notice and opportunity to 

respond that is due a tenured Federal employee, the agency agreed to rescind the 

removal notice, return the appellant to her term position, and restore her to the 

status quo ante. Id. at 4-5; IAF, Tab 21. The appellant was reinstated to her 

position, IAF, Tab 25 at 18, and remained employed for the remainder of the 

2-year term, IAF, Tab 38 at 1.

¶3 Although the agency rescinded her termination, the appellant continued

pursuing her discrimination claims with the Board.

1

 In a November 8, 2013 order 

and notice of hearing and prehearing conference, the administrative judge 

scheduled the hearing and prehearing conference and ordered the parties to file 

 

1 When, as here, an appellant has an outstanding claim for compensatory damages based 

on discrimination, the agency’s complete rescission of the action appealed does not 

afford her all of the relief available before the Board and the appeal is not moot. Hess 

v. U.S. Postal Service, 123 M.S.P.R. 183, ¶¶ 8-9, 19-20 (2016); Wrighten v. Office of 

Personnel Management, 89 M.S.P.R. 163, ¶ 9 (2001). 
3

their prehearing submissions. IAF, Tab 22. In a November 22, 2013 affirmative 

defenses order, the administrative judge directed the appellant to clarify her

affirmative defenses, including her hostile work environment and discrimination 

claims. IAF, Tab 24. The appellant did not respond to the affirmative defenses 

order and did not file her prehearing submission. IAF, Tab 29 at 2. On 

November 26, 2013, the agency served discovery on the appellant. IAF, Tab 26 

at 8-21. The appellant failed to respond to the agency’s discovery requests within 

the 20-day response period, and the agency filed a motion to dismiss the appeal 

and/or for sanctions. Id. at 4-6. The appellant did not respond to the agency’s 

motion. 

¶4 On January 17, 2014, the administrative judge denied the agency’s motion 

to dismiss and for sanctions, ordered the appellant to respond to the agency’s 

discovery requests within 10 days, and ordered her to show cause within 10 days 

why appropriate sanctions should not be imposed for her failure to comply with 

the orders regarding her affirmative defenses and prehearing submissions. IAF, 

Tab 29. On or about February 1, 2014, the appellant, through counsel, submitted 

an untimely response to the January 17, 2014 order, asserting that she had been 

overwhelmed with moving, a divorce proceeding, and her son’s health issues. 

IAF, Tab 33 at 1-2. She further asserted that she had not had time to work on the 

agency’s discovery requests, but that her counsel “eventually responded” to them. 

Id. The appellant did not explain why she failed to respond to the affirmative 

defenses order or why she failed to submit her prehearing submissions pursuant to 

the order and notice of hearing and prehearing conference. Id. at 1-4.

¶5 On May 18, 2015, the administrative judge issued an order imposing 

sanctions against the appellant for failing to comply with his hearing and 

prehearing conference order and affirmative defenses order. IAF, Tab 43. The 

administrative judge found that the appellant’s response to the show cause order 

was nonresponsive to the question of why she had failed to respond to his other 

orders and that, even assuming that her personal circumstances caused her failure 
4

to comply with the orders, her explanation was unpersuasive. Id. at 2. 

Accordingly, the administrative judge sanctioned the appellant by: (1) drawing 

an inference in favor of the agency that, even assuming a motive to discriminate, 

it would have taken the same adverse action against the appellant due to her p oor 

performance; and (2) limiting the appellant’s presentation of her case to her own 

testimony, if she chose to testify, and to information and evidence already in the 

record, including her responses to the agency’s discovery requests. Id. at 3-4.

¶6 The same day, the administrative judge also issued an order on the 

appellant’s affirmative defenses. IAF, Tab 44. Although the appellant had not 

responded to the affirmative defenses order, the administrative judge considered 

her responses to the agency’s discovery requests, which had been entered into the 

record by the agency. Id. at 2-3; IAF, Tab 32 at 24-32. Based on the information 

in her discovery responses, the administrative judge found that the appellant had 

failed to make a nonfrivolous allegation that she was subjected to a hostile work 

environment that resulted in her unacceptable performance and therefore struck 

her hostile work environment affirmative defense. IAF, Tab 44 at 2-3. The 

administrative judge found, however, that the appellant’s responses to the 

discovery requests sufficiently alleged discrimination based on race and notified 

her of her burden of proof to establish that affirmative defense. 2 Id. at 3‐5. 

 

2

The administrative judge notified the appellant of her burden of proof to establish her 

affirmative defense of race-based discrimination pursuant to the burden-shifting method 

established by McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973). IAF, 

Tab 44 at 3-5. After the administrative judge issued this order, the Board issued its 

decision in Savage, 122 M.S.P.R. 612, ¶¶ 46, 50, which held that the burden-shifting 

framework in McDonnell Douglas has no application to Board proceedings. Although

the appellant was not notified of the correct standard and burden of proof applicable to 

her affirmative defense before the hearing, the initial decision set forth the correct 

standard under Savage, thereby providing her with notice and an opportunity to meet 

this burden on review. IAF, Tab 109, Initial Decision at 5‐9; see Easterling v. U.S. 

Postal Service, 110 M.S.P.R. 41, ¶ 11 (2008).
5

¶7 The hearing was held over the course of 4 days on August 18, 

September 10, 11, and 24, 2015. IAF, Tab 109, Initial Decision (ID) at 5. After 

the first day of the hearing, the appellant submitted an affidavit by a former 

coworker, M.L., alleging disparate treatment of African American females on the 

VRAP team.3 IAF, Tab 80. The agency moved to strike M.L.’s affidavit from the 

record and for sanctions against the appellant for violating the prior order 

limiting her to her own testimony and to information already in the record. IAF, 

Tab 83. The agency also provided a copy of M.L.’s resignation letter and an 

affidavit executed by M.L. in connection with her own Board appeal, in which 

she attested that “[d]iscrimination did not cause [her] to resign.” Id. at 10-12, 14. 

During the hearing on September 10, 2015, the administrative judge struck M.L.’s 

affidavit from the record pursuant to the sanctions order and denied the agency’s 

motion for further sanctions. Hearing Compact Disc (HCD) (Sept. 10, 2015).

¶8 On September 23, 2015, the appellant moved “to admit the affidavit and 

documents of [M.L.] submitted in compliance with 5 C.F.R. § 1201.34 for a 

permissive [i]ntervenor” and requested that M.L. “or any other of the African 

American female non supervisory employees in the VRAP program during [the 

appellant’s] employment be granted permission to file a brief as an amicus 

curiae.” IAF, Tab 89 at 5. During the last day of the hearing, the administrative 

judge denied the appellant’s motion. HCD (Sept. 24, 2015). The appellant noted 

her objection for the record. Id. After the hearing, both parties filed closing 

statements, IAF, Tabs 94, 100, and the appellant moved to strike the agency’s 

documents pertaining to M.L. and the agency’s closing brief, IAF, Tabs 91, 102. 

 

3

The appellant’s counsel represented M.L. in her separate Board appeal. Hearing 

Compact Disc (Sept. 10, 2015).
6

¶9 In an initial decision, the administrative judge found that the appellant 

failed to show by preponderant evidence4that her rescinded termination was 

motivated in any part by race discrimination and that she failed to show that the 

agency’s reasons in support of its action were a mere pretext for race 

discrimination. ID at 25. Accordingly, the administrative judge denied the 

appellant’s affirmative defense. Id. The administrative judge did not rule on the 

appellant’s motion to strike the documents regarding M.L.’s Board appeal or her 

motion to strike the agency’s closing brief. 

¶10 The appellant has filed a petition for review of the initial decision and a 

supplement to her petition for review challenging all of the administrative judge’s 

findings and rulings. Petition for Review (PFR) File, Tabs 1, 3. The agency has 

responded in opposition to the appellant’s petition for review, and the appellant 

has replied to the agency’s opposition. PFR File, Tabs 4, 6. The appellant also 

has filed motions to submit two additional pleadings, and the agency has 

responded in opposition. PFR File, Tabs 7-8, 10. 

ANALYSIS

The appellant’s motions to submit additional pleadings are denied.

¶11 After submitting her petition for review, a supplemental petition for 

review, and a reply to the agency’s response to her petition for review, the 

appellant requested leave to file: (1) a motion to strike the agency’s response to 

her petition for review on the ground that it does not comply with the Board’s 

regulations; and (2) a supplemental pleading to “correct mistakes, address 

insufficiency of evidence, as well as answer a few points in the non-compliant 

Agency Response that may not have been addressed.” PFR File, Tabs 7-8. 

 

4 A preponderance of the evidence is the degree of relevant evidence that a reasonable 

person, considering the record as a whole, would accept as sufficient to find that a 

contested fact is more likely to be true than untrue. 5 C.F.R. § 1201.4(q).
7

¶12 The Board’s regulations specify that a response to a petition for review is 

limited to 30 pages or 7,500 words, whichever is less, and that pleadings must be 

double spaced. 5 C.F.R. § 1201.114(h). Although the agency’s response, which 

is single spaced, does not technically comply with the Board’s regulations, it 

substantially complies with them because it does not exceed the 7,500-word limit. 

PFR File, Tab 4 at 4-14. Thus, we deny the appellant’s request to file a motion to 

strike the agency’s response.

¶13 We also deny the appellant’s request for leave to submit a supplemental 

pleading to allow her to “correct mistakes, address insufficiency of evidence, as 

well as answer a few points in the non-compliant Agency Response that may not 

have been addressed” because she has failed to show that this information is new 

and material or that it was unavailable before the record closed. PFR File, Tab 8 

at 4; see 5 C.F.R. § 1201.114(k). Moreover, the appellant already has been 

afforded ample opportunity to present her arguments on review; she has filed a 

petition for review, a supplemental petition for review, and a reply to the 

agency’s response, and received a 10-day extension to file her supplemental 

petition for review. PFR File, Tabs 1-3, 6. We further find unavailing the 

appellant’s contention that a supplemental pleading is necessary to address the 

agency’s “non-compliant” response because, as discussed above, the agency’s 

response substantially complies with the Board’s regulations. 

The appellant’s motions to strike documents from the record below and to strike 

the agency’s closing brief are denied.

¶14 As stated above, the administrative judge did not rule on the appellant’s 

motion to strike the agency’s submission of M.L.’s resignation letter and her 

affidavit regarding her resignation or the appellant’s motion to strike the agency’s 

closing brief. We have considered them here and, for the reasons discussed 

below, deny the appellant’s motions. Because we deny the appellant’s motions, 

the administrative judge’s failure to rule on them below did not prejudice the 
8

appellant’s substantive rights. See Panter v. Department of the Air Force, 

22 M.S.P.R. 281, 282 (1984).

¶15 In response to the appellant’s submission of M.L.’s affidavit below, the 

agency filed a copy of M.L.’s resignation letter and an affidavit executed by M.L. 

in connection with her own Board appeal. IAF, Tab 83. The appellant moved to 

strike these documents and for sanctions because “the inclusion of this 

information in [the instant case] does not allow [M.L.] to possess a clean official 

record,” as agreed to in her settlement agreement. IAF, Tab 91 at 5. The agency

opposed the appellant’s motion.5 IAF, Tab 106. We deny the appellant’s motion 

to strike M.L.’s resignation letter and affidavit because the appellant’s 

contentions regarding the terms of a settlement agreement in another appeal, even 

if true, provide no basis for striking the agency’s submission in this appeal.

¶16 The appellant also moved to strike the agency’s closing brief, arguing that 

the agency should not be permitted to submit a “Post Closing Brief as a Substitute 

for a Closing Argument or Statement” and because she “feels that the brief . . . 

does not summarize the case, the law or what occurred in the hearing.” IAF, 

Tab 102 at 4. The administrative judge allowed the parties to submit closing 

arguments after the hearing, and the agency timely filed its closing submission, 

titled “Post Hearing Brief,” which set forth the procedural history of this appeal, 

the undisputed facts, and the agency’s legal arguments. HCD (Sept. 24, 2015); 

IAF, Tab 94. We find no merit to the appellant’s assertion that the agency’s 

 

5

The appellant appears to object to the agency’s October 9, 2015 opposition to her 

motion to strike and for sanctions because it was submitted after the close of the record 

on October 7, 2015. IAF, Tab 107 at 4. However, the Board will accept a submission 

after the close of the record if “[i]t is in rebuttal to new evidence or argument submitted 

by the other party just before the record closed.” 5 C.F.R. § 1201.59(c)(2). Generally, 

unless the administrative judge provides otherwise, “any objection to a written motion 

must be filed within 10 days from the date of service of the motion.” 5 C.F.R. 

§ 1201.55(b). Thus, because the appellant’s motion to strike was filed only 5 days 

before the close of the record, the agency’s rebuttal, filed 7 days later, is permissible. 
9

closing submission somehow exceeds the scope of the closing arguments 

approved by the administrative judge or that it should be stricken because the 

appellant disagrees with its contents. Accordingly, we deny the appellant’s 

motion to strike the agency’s closing brief. 

The administrative judge properly denied the appellant’s motion to admit M.L.’s 

affidavit and to allow permissive intervenors in this appeal. 

¶17 As stated above, the appellant submitted a motion to admit M.L.’s affidavit 

regarding disparate treatment in the VRAP and other documents as a “permissive 

[i]ntervenor” and requested permission for M.L. and other “African American 

female non supervisory employees in the VRAP program during [the appellant’s] 

employment” to file amicus briefs. IAF, Tab 89 at 5. The administrative judge 

denied the appellant’s motion. HCD (Sept. 24, 2015). On review, the appellant 

moves that the Board reverse the administrative judge’s ruling and admit M.L.’s 

affidavit and “documents of an African American employee submitted in 

compliance with 5 C.F.R. § 1201.34 for a permissive intervener [sic].” PFR File, 

Tab 3 at 25. 

¶18 We find no basis to disturb the administrative judge’s decision to strike 

M.L.’s affidavit, which the appellant did not submit until after the first day of the 

hearing. IAF, Tab 80. Pursuant to the sanctions order, the appellant was limited 

in the presentation of her case to her own testimony and to information already in 

the record. IAF, Tab 43. The appellant has not challenged the sanctions order, 

and we discern no basis to find that the administrative judge abused his discretion 

in imposing the sanctions after the appellant’s repeated failures to comply with 

his orders regarding her affirmative defenses and prehearing submissions. See 

Smets v. Department of the Navy, 117 M.S.P.R. 164, ¶ 11 (2011) (stating that 

imposing sanctions is a matter within the administrative judge’s sound discretion

and that, absent a showing that such discretion has been abused, the sanctions

decision will not be found to constitute reversible error), aff’d, 498 F. App’x 1 

(Fed. Cir. 2012). 
10

¶19 We also find no merit to the appellant’s contention that M.L.’s affidavit 

should be admitted in the instant appeal because M.L. is or should be a 

permissive intervenor. PFR File, Tab 3 at 25. “‘Permissive’ intervenors are 

those parties who may be permitted to participate if the proceeding will affect 

them directly and if intervention is otherwise appropriate under law.” 5 C.F.R. 

§ 1201.34(a). Permission to intervene will be granted “where the requester will 

be affected directly by the outcome of the proceeding.” 5 C.F.R. § 1201.34(c)(2). 

Here, M.L. has not requested to intervene in the instant matter and, even if she 

did, she could not show that she would be “directly affected” by the outcome of 

this appeal. 5 C.F.R. § 1201.34(c)(2). As such, the administrative judge properly 

denied the appellant’s request to permit M.L. to intervene in this appeal. 

The appellant is not entitled to a hearing on her facially deficient hostile work 

environment affirmative defense.

¶20 In her initial appeal, the appellant appeared to raise a hostile work 

environment affirmative defense, alleging that she witnessed “inappropriate 

touching” and heard “joking, laughing, giggling and intimate conversations” on a 

number of occasions between a married Senior VCE and another married Senior 

VCE, who referred to herself as an “Office Wife.” IAF, Tab 1 at 5. According to 

the appellant, “[w]itnessing this unexpected, inappropriate and at times offensive 

behavior . . . made it extremely difficult to work and carry out assignments, since 

this was a distraction many times throughout the day, every day.” Id. 

¶21 In the order directing the appellant to clarify her affirmative defenses, the 

administrative judge noted that the appellant had not alleged that she had been

personally harassed on the basis of her sex, but rather that she was subjected to a 

hostile work environment when she observed inappropriate behavior of a sexual 

nature between a Senior VCE and at least one other female employee. IAF, 

Tab 24 at 7. The administrative judge stated that it was “unclear whether the 

appellant’s claim is cognizable under the law” and ordered her to make a 

nonfrivolous allegation of a hostile work environment based on sex 
11

discrimination by showing that the alleged conduct directed at others had the 

purpose or effect of unreasonably interfering with her work performance or of

creating an intimidating, hostile, or offensive working environment. Id. at 7-8. 

As noted above, however, the appellant did not respond to the affirmative 

defenses order, and the administrative judge ultimately struck her hostile work 

environment affirmative defense. IAF, Tab 44 at 2-3. 

¶22 Over a month later, the appellant notified the administrative judge that she 

objected to the ruling, arguing that an “ongoing display and environment of 

viewing sexual escapades in the workplace” created a hostile work environment 

that affected her performance. IAF, Tab 51 at 3. She stated that the Senior VCEs

“carried on a sexual liaison on site and in full view of the people that were being 

trained” and that “changes [in one’s performance] can and do occur when a party 

(Appellant) witnesses that there is a reward to be obtained by an individual who 

has an inappropriate sexual relationship; especially if these observations occur 

during training.” Id. In subsequent pleadings, the appellant reiterated her 

contentions that witnessing “a pervasive atmosphere of sexual escapades and 

relationships occurring” created a hostile work environment that affected her 

performance. IAF, Tab 53 at 4‐5, Tab 55 at 10, 13.

¶23 The administrative judge considered the appellant’s objection to his ruling

to strike her hostile work environment affirmative defense as a request for 

reconsideration of the ruling, which he denied during a status conference. IAF, 

Tabs 54, 68. The appellant noted her objection for the record. IAF, Tab 68. On 

review, the appellant contends, without supporting argument, that the 

administrative judge erred in striking her affirmative defense of a hostile work 

environment based on sex prior to the hearing. PFR File, Tab 3 at 25, Tab 6 at 7. 

¶24 Sections 7701(a)(1) and 7702(a)(1) of title 5 provide that an appellant is 

entitled to a hearing in any appeal brought before the Board under any law, rule, 

or regulation, and that she is entitled to have the Board decide the merits of any 

claim of statutorily prohibited discrimination raised in such an appeal. 5 U.S.C. 
12

§§ 7701(a)(1), 7702(a)(1). Interpreting these provisions and the legislative 

history of the Civil Service Reform Act of 1978, the U.S. Court of Appeals for 

the Federal Circuit held that the Board lacks the authority to grant summary 

judgment and that an appellant’s right to a hearing is not contingent on her 

showing that there are no genuine and material issues of fact in dispute. Crispin 

v. Department of Commerce, 732 F.2d 919, 922 (Fed. Cir. 1984) (quoting H.R. 

Rep. No. 95‐1717, at 137 (1978) (Conf. Rep.), reprinted in 1978 U.S.C.C.A.N. 

2860, 2871). However, the issue of when an administrative judge must hold a 

hearing on a discrimination claim raised in connection with an otherwise 

appealable action has a complex history before the Board. We take this 

opportunity to clarify this issue.

¶25 In Crawford v. U.S. Postal Service, 70 M.S.P.R. 416, 423-24 (1996), the 

Board held that an administrative judge may strike a discrimination claim before 

a hearing if the appellant fails to raise nonfrivolous factual allegations that, if 

proven, could establish a prima facie case of discrimination. In Currier v. U.S. 

Postal Service, 79 M.S.P.R. 177, 180-82 (1998), the Board overruled Crawford 

and found instead that, when an appellant who claims discrimination has 

requested a hearing, the administrative judge may not find against the appellant 

on the discrimination claim without holding such a hearing. In Browder v. 

Department of the Navy, 81 M.S.P.R. 71, ¶ 6 (1999), aff’d, 250 F.3d 763 (Fed.

Cir. 2000) (Table), the Board clarified its holding in Currier, explaining that, if 

an appellant makes a claim of prohibited discrimination in connection with an 

otherwise appealable action, the appellant must be afforded the opportunity for a 

hearing and a decision on the merits of the claim. Browder further held, 

however, that striking a claim because an appellant did not allege facts that, if 

proven, would establish a prima facie case of discrimination was not harmful 

error because the appellant had failed to allege a cognizable claim of statutorily 

prohibited discrimination. Id., ¶¶ 7-8. Subsequently, in Redd v. U.S. Postal 

Service, 101 M.S.P.R. 182, ¶¶ 5, 13 (2006) (citing Browder, 81 M.S.P.R. 71, 
13

¶¶ 6-8), the Board overruled Currier, holding that an appellant does not have an 

unconditional right to a hearing on a discrimination claim and that, when an 

appellant’s allegations in support of a discrimination claim are deficient as a 

matter of law, the claim may be disposed of without a hearing. Redd also 

declined to follow Crispin insofar as it held that the Board may not render

summary judgment in adjudicating discrimination claims because it concluded 

that the Federal Circuit has no authority to review Board findings on the 

substance of discrimination law, and thus, no authority to review the Board’s 

procedures for adjudicating such claims. Id., ¶ 12. Recently, in Savage, the 

Board overruled Redd to the extent it declined to follow Crispin and reaffirmed 

Crispin’s holding that the Board’s procedures do not provide for summary 

judgment. Savage, 122 M.S.P.R. 612, ¶ 46 & n.10 (citing Crispin, 732 F.2d 

at 922). 

¶26 Although Savage overruled Redd to the extent that it erroneously assumed 

that the Board’s procedures for deciding discrimination claims we re a matter of 

substantive discrimination law, it did not overrule Redd’s holding that, when an 

appellant’s allegations in support of a discrimination claim are deficient as a 

matter of law, the discrimination claim may be disposed of without a hearing. 

See Savage, 122 M.S.P.R. 612, ¶ 46 n.10; Redd, 101 M.S.P.R. 182, ¶ 13. This 

distinction is made less clear, however, because Redd improperly conflates a 

post-discovery grant of summary judgment with a pre-discovery dismissal for 

failure to state a claim. Redd, 101 M.S.P.R. 182, ¶ 13. Specifically, in 

discussing when a deficient claim may be dismissed without a hearing, Redd

states: 

The Board has held that, notwithstanding Currier, when an 

appellant’s allegations in support of a discrimination claim are 

deficient as a matter of law, the claim may be disposed of without a 

hearing. [Browder, 81 M.S.P.R. 71, ¶¶ 6-8]. We now hold that when 

the appellant’s factual allegations in support of a discrimination 

claim, taken as true, could not support an inference that the agency’s 

action was a pretext for discrimination, the [administrative judge] is 
14

not required to permit the appellant to attempt to prove his 

allegations at an evidentiary hearing. In other words, when there is 

no genuine dispute of material fact regarding discrimination, an 

evidentiary hearing on discrimination need not be conducted. 

Id. The first two sentences in the foregoing paragraph concern dismissal for 

failure to state a claim, whereas the last sentence incorrectly equates dismissal for 

failure to state a claim to a grant of summary judgment. This is problematic

because a dismissal without a hearing when the appellant’s factual allegations in 

support of a discrimination claim, taken as true, could not support an inference 

that the agency’s action was discriminatory is not the same thing as a 

post-discovery judgment without a hearing on the basis that there is no genuine 

dispute of material fact and the nonmoving party is entitled to judgment as a 

matter of law.

¶27 The Federal Rules of Civil Procedure, which are not controlling but may be 

used as a general guide in proceedings before the Board, Social Security 

Administration v. Long, 113 M.S.P.R. 190, ¶ 10 (2010), aff’d, 635 F.3d 526 (Fed. 

Cir. 2011), underscore the difference between summary judgment and dismissal 

for failure to state claim upon which relief may be granted. See Fed. R. 

Civ. P. 12(b)(6); Fed. R. Civ. P. 56(a). “Dismissal for failure to state a claim 

under Rule 12(b)(6) is proper only when a [party] can prove no set of facts in 

support of [his] claim which would entitle him to relief.” Leider v. United States, 

301 F.3d 1290, 1295 (Fed. Cir. 2002) (internal quotations omitted). In 

considering a motion to dismiss for failure to state a claim under Rule 12(b)(6), 

the court must assume that all well-pled factual allegations are true and draw all 

reasonable inferences in favor of the nonmoving party. Leider, 301 F.3d at 1295. 

On the other hand, the court will grant summary judgment pursuant to Rule 56(a) 

when “there is no genuine dispute as to any material fact and the movant is 

entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a); see Anderson v. 

Liberty Lobby, Inc., 477 U.S. 242, 247‐48 (1986). A factual dispute is “genuine” 

when there is sufficient evidence supporting the contention of the party seeking 
15

an evidentiary hearing for the trier of fact to resolve the dispute in that party’s 

favor. Anderson, 477 U.S. at 248-49. 

¶28 Thus, contrary to the statement in Redd, an administrative judge may not 

dispose of a discrimination claim without a hearing when there is no genuine 

dispute of material fact regarding discrimination because to do so would be an 

improper grant of summary judgment. See Redd, 101 M.S.P.R. 182, ¶ 13. 

However, Redd is correct that an administrative judge is not required to hold a 

hearing on a discrimination claim raised in connection with an otherwise 

appealable action when the appellant’s factual allegations in support of a 

discrimination claim, taken as true, could not support an inference that the

agency’s action was discriminatory. Id. The current state of Board law on this 

issue is most accurately summarized in Browder, which was cited in Redd and 

which held that, when an appellant’s allegations in support of a discrimination 

claim are deficient as a matter of law, the claim may be disposed of without a 

hearing.6 Redd, 101 M.S.P.R. 182, ¶ 13; Browder, 81 M.S.P.R. 71, ¶¶ 6‐8. 

¶29 As recently articulated in Hess v. U.S. Postal Service, 123 M.S.P.R. 183, 

¶¶ 9-10 (2016), if an appellant states a cognizable claim of statutorily prohibited 

discrimination in connection with an otherwise appealable action, the Board must 

decide those discrimination claims only after the record is complete, in 

accordance with its appellate procedures as defined in title 5. On the other hand, 

if an appellant fails to allege a cognizable claim of discrimination in connection 

with the otherwise appealable action, the claim may be disposed of without a 

 

6 We disagree with Browder, however, to the extent that it held that it was not harmful 

error for the administrative judge to strike a facially deficient discrimination claim 

without holding a hearing because the administrative judge’s action under such 

circumstances was not error at all. Browder, 81 M.S.P.R. 71, ¶¶ 7‐8. 
16

hearing.

7

 Browder, 81 M.S.P.R. 71, ¶¶ 7‐8. A cognizable claim of 

discrimination in this context is analogous to a claim that would survive a motion 

to dismiss for failure to state a claim.

¶30 Here, as discussed above, the administrative judge found that the appellant 

failed to raise a nonfrivolous claim that she was subjected to a hostile work 

environment based on sex that resulted in her unacceptable performance and, 

therefore, struck that portion of her affirmative defense prior to the hearing. IAF, 

Tab 44 at 2-3. In so finding, the administrative judge reasoned that the appellant 

failed to explain why she believed that alleged inappropriate sexual conduct on 

the part of others in the workplace caused her unacceptable performance and 

resulting removal and failed to provide the date, time, and location of each 

incident. Id. Additionally, the administrative judge noted that “[s]ome of the 

incidents reported were clearly based upon rumor or conversations overheard.” 

Id. at 2. To the extent that the administrative judge struck the appellant’s hostile 

work environment affirmative defense for failure to establish a genuine issue of 

material fact in dispute by providing insufficient detail, he improperly rendered 

summary judgment on this issue. See Anderson, 477 U.S. at 247‐49. 

Nonetheless, we find that he properly struck the appellant’s hostile work 

environment affirmative defense because, taking her allegations as true and 

 

7 Although an administrative judge need not hold a hearing on a discrimination claim 

raised in connection with an otherwise appealable action when the appellant fails to 

state a cognizable claim of discrimination, the Board’s admonition in Redd that 

administrative judges should be extremely cautious in resolving discrimination claims 

without hearings still applies when determining whether to strike such an affirmative 

defense for failure to state a claim. See Redd, 101 M.S.P.R. 182, ¶ 14. Thus, in cases 

in which administrative judges will be holding an evidentiary hearing, it generally will 

be preferable to allow the appellant to present whatever evidence she has on 

discrimination, as this approach promotes development of a complete record, should 

either party seek review. Id. 
17

drawing all reasonable inferences in her favor, she cannot prevail on her hostile 

work environment claim as a matter of law. See Leider, 301 F.3d at 1295.

¶31 Title VII prohibits employers from “discriminat[ing] against any individual 

with respect to his compensation, terms, conditions, or privileges of employment, 

because of such individual’s race, color, religion, sex, or national origin.”

42 U.S.C. § 2000e‐2(a)(1). Title VII is violated “[w]hen the workplace is 

permeated with ‘discriminatory intimidation, ridicule, and insult’ . . . that is 

‘sufficiently severe or pervasive to alter the conditions of the victim’s 

employment and create an abusive working environment.’” Harris v. Forklift 

Systems, Inc., 510 U.S. 17, 21 (1993) (quoting Meritor Savings Bank v. Vinson, 

477 U.S. 57, 65, 67 (1986)). Title VII does not impose a general workplace 

civility code and does not prohibit all workplace harassment, but only that which 

involves statutorily proscribed forms of discrimination. Oncale v. Sundowner 

Offshore Services, Inc., 523 U.S. 75, 80 (1998).

¶32 Accepting as true all of the appellant’s factual allegations about the 

“inappropriate sexual relationship” between two coworkers, she has failed to state 

a cognizable claim of a hostile work environment based on her sex. Her 

allegations that she and others located in proximity to her cubicle—without 

regard to their sex—were generally exposed to distracting office flirtation is not 

the type of situation covered by title VII. See id. As such, the appellant’s hostile 

work environment affirmative defense is facially deficient and, rather than 

eliciting relevant, admissible evidence on a disputed fact, a hearing on this claim 

would have been an empty ritual. Accordingly, we find no error in the 

administrative judge’s decision to strike this claim without a hearing.

The appellant failed to prove her race-based discrimination affirmative defense.

¶33 The appellant argued below that she and other African American VCEs 

were treated less favorably than Caucasian VCEs regarding seating assignments, 

distributing work assignments, assisting with work assignments, and applying 

performance standards. IAF, Tabs 1, 100; HCDs (Aug. 18, 2015) (Sept. 10‐11, 
18

2015). During redirect examination at the hearing, the appellant also alleged, for 

the first time, that one Senior VCE used racially discriminatory nicknames when 

speaking with other Senior VCEs regarding African American VCE trainees. 

HCDs (Sept. 10-11, 2015). Based on the evidence and hearing testimony, 

however, the administrative judge concluded that the agency did not discriminate 

against the appellant in terms of seating assignments, distributing or assisting 

with work assignments, or applying performance standards. ID at 10-23. In 

addition, the administrative judge found that the Senior VCE in question did not 

make the alleged discriminatory statements attributed to him by the appellant. ID 

at 23-25. The appellant challenges these findings on review. PFR File, Tabs 3, 

6. 

¶34 Several months before the administrative judge issued the initial decision 

in the instant appeal, the Board issued its decision in Savage, which clarified the 

evidentiary standards and burdens of proof under which the Board analyzes 

discrimination and retaliation claims. Savage, 122 M.S.P.R. 612, ¶¶ 42-43, 51. 

Although the administrative judge referenced Savage in his discussion of the 

applicable law, ID at 5-7, he applied, in part, the McDonnell Douglas

burden-shifting analytical framework, ID at 7-8, 25.8 As noted above, in Savage, 

the Board held that the McDonnell Douglas framework has no application to 

 

8

To establish a claim of prohibited employment discrimination under the 

burden-shifting method of McDonnell Douglas, the employee first must establish a 

prima facie case of racial discrimination; the burden then shifts to the agency to 

articulate a legitimate nondiscriminatory reason for its action; and, finally, the 

employee must show that the agency’s stated reason is merely a pretext for prohibited 

discrimination. McDonnell Douglas, 411 U.S. at 802-04. Although the administrative 

judge did not expressly refer to the burden-shifting method, he drew an inference in 

favor of the agency that it had articulated a legitimate nondiscriminatory reason for its 

action, tasked the appellant with showing that the agency’s stated reason was mere 

pretext for discrimination, and concluded that the appellant failed to show that “the 

agency’s articulated legitimate nondiscriminatory reasons in support of its action were a 

mere pretext for race discrimination.” ID at 7-8, 25. 
19

Board proceedings. Savage, 122 M.S.P.R. 612, ¶ 46. Although we agree with the 

administrative judge’s conclusion that the appellant failed to establish her 

discrimination affirmative defense, we modify the portion of the initial decision 

that applies the burden-shifting framework and supplement the administrative 

judge’s analysis consistent with Savage.

¶35 In Savage, we stated 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. Savage, 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). Naval Station Norfolk-Hearing 2 

v. Department of the Navy, 123 M.S.P.R. 144, ¶ 28 (2016); Savage, 122 M.S.P.R. 

612, ¶ 51. If the appellant meets this initial 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. Naval 

Station Norfolk Hearing 2, 123 M.S.P.R. 144, ¶ 28; Savage, 122 M.S.P.R. 612, 

¶ 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. Naval Station 

Norfolk-Hearing 2, 123 M.S.P.R. 144, ¶ 28; Savage, 122 M.S.P.R. 612, ¶ 51.

¶36 In determining whether the appellant has met her initial burden to show a 

motivating factor, the Board must consider all of the evidence together as a whole 

without sorting evidence into different piles, labeled “direct” or “indirect” that 

are evaluated differently. Gardner v. Department of Veterans Affairs, 

123 M.S.P.R. 647, ¶ 29 (2016) (citing Ortiz v. Werner Enterprises, Inc., 834 F.3d 

760 (7th Cir. 2016)). Therefore, we must first determine whether, on the basis of 

all of the evidence, the appellant has shown by preponderant evidence that her 

termination was motivated by discriminatory animus. Id. 
20

¶37 As noted above, the administrative judge found that the appellant failed to 

show that the agency discriminated against her in terms of seating assignments, 

distributing work assignments, assisting with work assignments, or applying 

performance standards. ID at 10-23. In so finding, the administrative judge 

credited the hearing testimony of the appellant’s supervisor (supervisor) who 

testified that seating and work were assigned in a nondiscriminatory manner, and 

the three Senior VCEs, who all consistently testified that they assisted the 

appellant when she came to them for assistance and that they never refused to 

help her. ID at 10-15. On review, the appellant argues that the administrative 

judge erred in crediting the hearing testimonies of the agency’s witnesses and 

ignored evidence. PFR File, Tab 3 at 8-13, 16-18, Tab 6 at 8-16.

¶38 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, and may overturn such 

determinations only when it has “sufficiently sound” reasons for doing so. Haebe 

v. Department of Justice, 288 F.3d 1288, 1301 (Fed. Cir. 2002). Here, the 

administrative judge explained that he observed each witness who testified at the 

hearing and, based on the Hillen factors,9found that the agency witnesses 

generally were more credible than the appellant because they testified in a 

straightforward manner, were consistent with each other and the written record, 

and their version of events was inherently more likely than the appellant’s 

version of events. ID at 8-9. On the other hand, he found that the appellant’s 

version of events often changed depending on who was asking her questions, was 

 

9

In Hillen, the Board held that, to resolve credibility issues, the administrative judge

must identify the factual questions in dispute, summarize the evidence on each disputed 

question, state which version he believes, and explain in detail why he found the chosen 

version more credible. Hillen v. Department of the Army, 35 M.S.P.R. 453, 458 (1987). 

Hillen further articulated a list of seven factors that the administrative judge must 

consider in making credibility determinations. Id.
21

not consistent with the written record, and was inherently unlikely. ID at 9. The 

administrative judge also noted that the appellant’s allegations were often based 

only on surmise or conjecture and were not corroborated by other witnesses. Id. 

¶39 The appellant argues on review that her supervisor repeatedly contradicted 

himself, his testimony “does not pass the common sense or credibility test,” and 

his “reason and rationale seemed to be fabricated to hide an improper motive.” 

PFR File, Tab 3 at 8-9. For example, the appellant argues that, although the 

supervisor first testified that he generally assigned seating on the basis of the 

employee’s hire date, he later “contradict[ed] himself to state that the employees 

were hired at different times, dates and years by the Agency.” 10 Id. at 8. As 

another example, the appellant asserts that the supervisor testified that “he knew 

nothing of the VCEs when he assigned their seats other than their names and 

dates they were hired,” but that he later contradicted himself by testifying that 

“he knew personal information about some employees since they had been 

working at the Agency, but also he knew marital status and other information.” 

Id. at 9. The appellant also argues that the supervisor testified that he was the 

only one who distributed work, but that he later “admitted there was a 

disproportionate amount of claims being distributed and that every employee was 

not receiving equal amounts . . . the system was broken for a time and a number 

of claims were distributed.”11 Id. at 13. We have considered these examples of 

 

10 As explained in the initial decision, the supervisor testified that the seating 

assignments generally were based on hire date, but that there were some exceptions. ID 

at 11; HCD (Sept. 11, 2015). Specifically, he testified that: three Senior VCEs on the 

VRAP team were assigned seats first and had the opportunity to request a location 

based on seniority; a VCE who had been working in another division had the 

opportunity to request a seat when she was selected for the VRAP team position; and 

two married employees were seated near each other. ID at 11; HCD (Sept. 11, 2015). 

11 As explained in the initial decision, the supervisor testified that, prior to March 2013, 

claims examiners could pull cases from the original claims queue as necessary but, as 

the volume of claims decreased, there was a concern that some VCEs were taking a 

disproportionate share of the cases. ID at 13; HCD (Sept. 11, 2015). He further 
22

alleged contradictory statements, as well as others cited by the appellant on 

review, but find that, even when the supervisor later clarified his initial 

statements, his subsequent statements are not necessarily contradictory and do not 

constitute “sufficiently sound” reasons for overturning the administrative judge’s 

credibility determination. See Haebe, 288 F.3d at 1301.

¶40 The appellant also argues that the administrative judge ignored a seating 

chart, which shows that she and other African American employees were racially 

segregated from Caucasian employees, and failed to consider the “fact that almost 

everyone who was sitting in the segregated section which was referred to as ‘the 

hood' was transferred, fired or did not complete their term.” PFR File, Tab 3 

at 8-11, Tab 6 at 8-12. However, the administrative judge’s failure to mention in 

the initial decision the seating chart and some of the appellant’s allegations 

regarding the seating arrangement does not mean he did not consider them and is 

not a basis to overturn his well-reasoned findings. See Gardner, 123 M.S.P.R. 

647, ¶ 25 (citing Marques v. Department of Health & Human Services,

22 M.S.P.R. 129, 132 (1984), aff’d, 776 F.2d 1062 (Fed. Cir. 1985) (Table)). The 

administrative judge considered the record as a whole and—based on the 

supervisor’s credible testimony, the credible testimony of two agency witnesses 

that the appellant’s cubicle location was seen as desirable by some employees, 

and the fact that no one, including the appellant, complained to a manager that 

they felt the seating arrangement was discriminatory—concluded that the agency 

assigned seating in a nondiscriminatory manner. ID at 10-12. Furthermore, the 

administrative judge expressly considered the appellant’s argument that “almost 

everyone” seated near her was unsuccessful in the VRAP, but found that this 

contention was “simply not true.” ID at 18.

 

testified that, to address this concern, he changed the process of assigning cases in 

March 2013 so that he or, in his absence, the division supervisor reviewed new original 

claims each day and assigned them in an equal manner. ID at 13; HCD (Sept. 11, 

2015).
23

¶41 Regarding the administrative judge’s finding that the agency applied the 

performance standards in a nondiscriminatory manner, the appellant argues that 

the administrative judge “totally ignored” the fact that “there was no formal set of 

standards” and that her performance was evaluated in an “arbitrary and 

capricious” manner. PFR File, Tab 3 at 13, Tab 6 at 15. The record reflects, 

however, that the appellant signed the monthly Individual Performance Reports, 

which set forth her productivity and accuracy requirements and her performance 

for the previous month. IAF, Tab 64 at 153-61. The administrative judge 

thoroughly discussed the appellant’s performance standards and concluded that

she consistently failed to meet them. ID at 18-23. The administrative judge 

further found no evidence to suggest that the agency discriminated against the 

appellant in applying the VCE performance standards to her work performance. 

ID at 23. The appellant’s arguments on review provide no basis to disturb these

findings.

¶42 The appellant also argues that the administrative judge erred in finding that 

the Senior VCEs did not provide assistance in a discriminatory manner because, 

among other reasons, he failed to mention that one of the Senior VCEs testified 

that he believed he was a supervisor. PFR File, Tab 3 at 17-18. Her arguments, 

however, provide no basis to disturb the administrative judge’s credibility 

determinations or his conclusion that the Senior VCEs provided assistance in a 

nondiscriminatory manner. ID at 16‐18. 

¶43 Lastly, as noted above, the administrative judge found that the Senior VCE 

alleged by the appellant to have used discriminatory nicknames in conversations 

with other Senior VCEs in the workplace did not do so. ID at 23-25. In so 

finding, the administrative judge relied on the hearing testimonies of the accused 

Senior VCE and two other Senior VCEs, who all “emphatically and 

unequivocally” denied that they had made such comments or heard any coworkers 

make such comments. ID at 24. The administrative judge also relied on their 

testimonies that no one ever complained to them about hearing such comments in 
24

the workplace and, if they had heard such comments, they would have reported it 

to a manager. Id. Given the arrangement of the cubicles and their proximity to 

one another, the administrative judge concluded that, if the Senior VCE had made 

the racially discriminatory comments attributed to him by the appellant, other 

employees would have heard and complained about the comments. Id. However, 

the undisputed testimony was that no one made or filed such complaints with 

management. Id. The administrative judge also appeared to find probative the 

fact that the appellant failed to raise this allegation—which goes “directly to the 

heart of her allegation of race discrimination”—at any time during the proceeding 

until redirect examination. Id.; HCD (Sept. 10-11, 2015). The appellant 

generally challenges these findings on review and argues that “[t]he 

administrative judge ignored a pattern of discrimination and did not test the 

credibility of witnesses with conflicting statements.” PFR File, Tab 3 at 18-24, 

Tab 6 at 16-18. The appellant’s arguments, however, constitute mere 

disagreement with the administrative judge’s findings and provide no basis to 

overturn his credibility determinations or his conclusion that the Senior VCE in 

question did not make the discriminatory comments attributed to him.

¶44 In sum, we agree with the administrative judge’s finding that the appellant 

failed to show by preponderant evidence that racial discrimination was a 

motivating factor in the agency’s action. The appellant’s arguments on review 

constitute mere disagreement with the administrative judge’s well-reasoned 

findings and provide no basis to disturb the initial decision. 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 on issues of 

credibility).
25

ORDER

¶45 This is the final decision of the Merit Systems Protection Board in this 

appeal. Title 5 of the Code of Federal Regulations, section 1201.113(c) (5 C.F.R. 

§ 1201.113(c)).

NOTICE TO THE APPELLANT REGARDING

YOUR FURTHER REVIEW RIGHTS

You have the right to request further review of this final decision.

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 United States 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.
26

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 United States 

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 rec eives this order 

before you do, then you must file with the district court no later than 30 calendar 

days after 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. See 42 U.S.C. § 2000e-5(f) and 

29 U.S.C. § 794a.

FOR THE BOARD:

______________________________

Jennifer Everling

Acting Clerk of the Board

Washington, D.C.