UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD 

GENISE A. PENNANT,

Appellant,

v.

DEPARTMENT OF THE AIR FORCE,

Agency.

DOCKET NUMBER

AT-0752-19-0689-I-1

DATE: July 9, 2024

THIS FINAL ORDER IS NONPRECEDENTIAL1

Genise A. Pennant, Gainesville, Florida, pro se.

Holly L. Buchanan and William Vincent Cochrane, Eglin Air Force Base, 

Florida, for the agency.

BEFORE

Cathy A. Harris, Chairman

Raymond A. Limon, Vice Chairman

Henry J. Kerner, Member*

*Member Kerner did not participate in the adjudication of this appeal.

FINAL ORDER

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

sustained her removal pursuant to 5 U.S.C. chapter 75 based on the following

charges: (1) absence without leave (AWOL); (2) failure to request leave in

accordance with established procedures; and (3) refusal to comply with proper

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 A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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).
orders. On petition for review, the appellant argues that the administrative judge

made erroneous findings of fact, and she challenges the administrative judge’s

conclusion that she failed to prove the following affirmative defenses:

(1) disability discrimination on the basis of failure to provide a reasonable

accommodation; (2) disability harassment; and (3) whistleblower reprisal.

Petition for Review (PFR) File, Tab 1 at 1-13. 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

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 (1) correct a misstatement made by the administrative judge

regarding the appellant’s status as a disabled veteran, (2) clarify the proper legal

standard for analyzing the appellant’s affirmative defense of disparate treatment

disability discrimination, and (3) supplement the administrative judge’s analysis

regarding the appellant’s claim of whistleblower reprisal, we AFFIRM the initial

decision.

We have considered the appellant’s arguments, but we discern no basis to

disturb the administrative judge’s reasoned factual findings or his legal

conclusions. See Riggsbee v. Office of Personnel Management, 111 M.S.P.R.

129, ¶ 11 (2009) (explaining that an appellant’s mere disagreement with the

administrative judge’s explained factual findings and legal conclusions therefrom

2
does not provide a basis to disturb the initial decision). We have also considered

the voluminous documentary evidence that the appellant provides with her

petition for review, PFR File, Tab 1 at 15-123; however, all of these documents

predate the initial decision, and the appellant provides no explanation as to why

she failed to provide this information to the administrative judge, 2see Avansino v.

U.S. Postal Service, 3 M.S.P.R. 211, 214 (1980) (finding 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). Moreover, even considering this additional

documentation, we find that it does not change the outcome of this appeal. See

Russo v. Veterans Administration, 3 M.S.P.R. 345, 349 (1980) (observing 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).

We modify the initial decision to correct a misstatement.

Although not raised on review, the administrative judge concluded that the

appellant had a disability as defined by 29 C.F.R. § 1630.2(g) because “a

Standard Form 50 in the record indicate[d] that [she] was a disabled veteran.”

Initial Appeal File (IAF), Tab 19, Initial Decision (ID) at 11 (citing IAF, Tab 8

at 130). An appellant’s status as a disabled veteran is not dispositive for purposes

of the Americans with Disabilities Act Amendments Act of 2008. See 29 C.F.R.

§ 1630.2(g); see also 74 Fed. Reg. 48431, 48448 (2009) (“The fact that an

individual has a record of being a disabled veteran . . . does not guarantee that the

individual will satisfy the definition of ‘disability’ under part 1630.”). However,

because we agree with the administrative judge that, even assuming that the

appellant was a qualified individual with a disability, she nonetheless failed to

2

 Some of the documents that the appellant provides on review were part of the record

before the administrative judge; thus, they do not constitute new evidence. See Meier v.

Department of the Interior, 3 M.S.P.R. 247, 256 (1980) (explaining that evidence that is

already a part of the record is not new).

3
prove disability discrimination, we find his misstatement harmless. ID at 11-15;

see Panter v. Department of the Air Force, 22 M.S.P.R. 281, 282 (1984)

(explaining that an adjudicatory error that is not prejudicial to a party’s

substantive rights provides no basis for reversal of an initial decision).

We modify the initial decision to clarify the proper legal standard for analyzing

the appellant’s affirmative defense of disparate treatment disability

discrimination.

On review, the appellant appears to challenge the administrative judge’s

assessment of her affirmative defense of disparate treatment disability

discrimination. To prove an affirmative defense of discrimination on the basis of

disability under the Rehabilitation Act, an appellant must prove that

discrimination was at least a motivating factor in the agency’s action. Pridgen v.

Office of Management and Budget, 2022 MSPB 31, ¶ 40. Here, however, the

administrative judge found that the appellant failed to show that her alleged

disability was a motivating factor in her removal, ID at 14, and because we

discern no basis to disturb this reasoned finding, the appellant’s claim of

disparate treatment disability discrimination necessarily fails, 3see Pridgen, 2022

MSPB 31, ¶ 40. Moreover, because we affirm the administrative judge’s finding

that the appellant failed to show that any prohibited consideration was a

motivating factor in the agency’s action, we need not resolve the issue of whether

the appellant proved that discrimination was a “but-for” cause of the agency’s

decisions. See Pridgen, 2022 MSPB 31, ¶¶ 20-22, 29-33.

We modify the initial decision to supplement the administrative judge’s analysis

of the appellant’s claim of whistleblower retaliation.

Although the administrative judge addressed the appellant’s claim of

whistleblower reprisal as related to her complaint with the Office of Special

Counsel, he did not address the appellant’s reprisal claim as related to (1) her

3

 Although the initial decision references direct evidence and types of circumstantial

evidence, ID at 14, we find no indication that the administrative judge disregarded any

evidence because of its direct or circumstantial nature, see Pridgen, 2022 MSPB 31,

¶ 24. 

4
complaint with the agency’s Office of the Inspector General (OIG), or (2) her

complaint with the Internet Crime Complaint Center (IC3), 4 wherein she alleged

that agency personnel had unlawfully accessed her email. IAF, Tab 4 at 6, 8-10;

see 5 U.S.C. § 2302(b)(8)(A)(i), (b)(9)(C). The appellant reasserts whistleblower

retaliation on the basis of these protected activities, PFR File, Tab 1 at 13;

accordingly, we supplement the administrative judge’s analysis to address these

specific claims.

Under the Whistleblower Protection Enhancement Act of 2012 (WPEA), to

prevail on a prohibited personnel practice affirmative defense in a chapter 75

appeal, once the agency proves its adverse action by a preponderance of the

evidence, the appellant must demonstrate by preponderant evidence that she made

a protected disclosure or engaged in protected activity and that the disclosure or

activity was a contributing factor in the adverse action. See Shibuya v.

Department of Agriculture, 119 M.S.P.R. 537, ¶ 19 (2013); see also Alarid v.

Department of the Army, 122 M.S.P.R. 600, ¶ 12 (2015) (recognizing that, under

the WPEA, an appellant may raise an affirmative defense of whistleblower

retaliation based on protected activity under 5 U.S.C. §2302(b)(9)(A)(i), (B), (C),

and (D)).

Here, we find that the appellant failed to show by preponderant evidence

that either complaint was a contributing factor in the agency’s decision to remove

her. See Dorney v. Department of the Army, 117 M.S.P.R. 480, ¶ 15 (2012)

(stating that an appellant may show contributing factor through evidence such as

evidence pertaining to the strength or weakness of the agency’s reasons for taking

the personnel action, whether the protected activity was personally directed at the

proposing or deciding officials, and whether these officials had a desire or motive

to retaliate against the appellant). To this end, the record before the

4

 The IC3 is a component of the Federal Bureau of Investigation (FBI) that “provide[s]

the public with a reliable and convenient reporting mechanism to submit information to

the [FBI] concerning suspected Internet-facilitated criminal activity.” See generally

https://www.ic3.gov/Home/About (last visited July 9, 2024).

5
administrative judge was devoid of any indication that the OIG and IC3

complaints factored into the agency’s decision. 5 Indeed, the appellant had

previously received a 14-day suspension for AWOL, IAF, Tab 8 at 109-10, and,

prior to her removal, the agency had repeatedly warned her that AWOL and

failure to comply with leave procedures could result in disciplinary action,

including removal from the Federal service, e.g., id. at 100, 108, 111. Despite

these warnings, the appellant was AWOL from December 23, 2015, through

January 26, 2016, and February 10, 2016, through March 4, 2016. Id. at 17.

Moreover, insofar as the documentary evidence indicates that the appellant filed

her IC3 complaint after the agency’s May 5, 2016 removal action, IAF, Tab 4

at 10, Tab 8 at 4, it could not have been a contributing factor in the agency’s

decision to remove her, see Johnson v. Department of Justice, 104 M.S.P.R. 624,

¶ 26 (2007) (finding that disclosures made after the agency had taken the

personnel actions at issue could not have been contributing factors in that

personnel action). We find, therefore, that the administrative judge correctly

found that the appellant failed to prove her affirmative defenses of whistleblower

reprisal.

5

 On review, the appellant provides, for the first time, an April 4, 2016 email that she

sent to numerous agency officials, including both the proposing official and the

deciding official, wherein she states that she provided information to the “IG Office.”

PFR File, Tab 1 at 119-20. However, the appellant does not explain why she did not

provide this email, which was written after the agency’s March 31, 2016 notice of

proposed removal but prior to her May 5, 2016 removal, to the administrative judge.

IAF, Tab 8 at 4, 17; see Avansino, 3 M.S.P.R. at 214. Moreover, even considering this

document, we find that it does not change the outcome of this appeal. See Russo,

3 M.S.P.R. at 349. Indeed, even assuming that this email satisfies the

knowledge/timing test, see Shibuya, 119 M.S.P.R. 537, ¶ 22, we find that, given the

severity of the appellant’s attendance issues and the agency’s repeated warnings related

thereto, the agency established by clear and convincing evidence that it would have

taken the same action in the absence of this activity, see 5 U.S.C. § 1221(e)(2); see also

Carr v. Social Security Administration, 185 F.3d 1318, 1323 (Fed. Cir. 1999). 

6
NOTICE OF APPEAL RIGHTS6

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). 

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: 

6

 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.

7
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

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

8
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

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

9
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.7 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

Board neither endorses the services provided by any attorney nor warrants that

any attorney will accept representation in a given case. 

7

 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. 

10
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.

11