UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD 

CYNTHIA A. METIVIER,

Appellant,

v.

DEPARTMENT OF THE INTERIOR,

Agency.

DOCKET NUMBER

CH-0351-14-0772-I-1

DATE: December 21, 2016

THIS FINAL ORDER IS NONPRECEDENTIAL*

Cynthia A. Metivier, Esquire, Woodbury, Minnesota, pro se.

Gavin M. Frost, Esquire, and Deborah S. Charette, Esquire, Washington, 

D.C., for the agency.

BEFORE

Susan Tsui Grundmann, Chairman

Mark A. Robbins, Member

FINAL ORDER

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

affirmed the agency’s action separating her by reduction in force (RIF). 

Generally, we grant petitions such as this one only when: the initial decision 

contains erroneous findings of material fact; the initial decision is based on an 

 

* A nonprecedential order is one that the Board has determined does not add 

significantly to the body of MSPB case law. Parties may cite nonprecedential orders, 

but such orders have no precedential value; the Board and administrative judges are not 

required to follow or distinguish them in any future decisions. In contrast, a 

precedential decision issued as an Opinion and Order has been identified by the Board 

as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
2

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. See 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 and 

AFFIRM the initial decision, which is now the Board’s final decision. 5 C.F.R. 

§ 1201.113(b). 

¶2 The agency separated the appellant by RIF from her GS-0905-15

Attorney‐Advisor position with the agency’s Office of Hearings and Appeals 

(OHA), White Earth Land Settlement Act (WELSA) Hearings Division, in 

Minneapolis (Bloomington), Minnesota. Initial Appeal File (IAF), Tab 7 at 17, 

35-37, 77, 92‐94, 112-13. On appeal to the Board, the appellant asserted that the 

agency abolished her position based on reasons personal to her, misinformed her 

about her eligibility to participate in the Career Transition Assistance Plan, failed 

to select her for a different position, included her position in the wrong 

competitive area, incorrectly calculated her service computation date, and took 

numerous actions against her other than her separation by RIF in reprisal for 

whistleblowing. IAF, Tab 20 at 2, 4-6. She also claimed that her separation was 

based on sex discrimination, reprisal for whistleblowing, and retaliation for filing 

grievances and equal employment opportunity (EEO) complaints. Id. at 11-14.

¶3 After a hearing, the administrative judge affirmed the agency’s action. IAF, 

Tab 43, Initial Decision (ID) at 1, 37. The administrative judge found that the 

agency proved by preponderant evidence that the RIF was taken for a legitimate 
3

reason, namely, a reorganization arising from budget constraints due to 

sequestration; properly applied RIF regulations in abolishing the appellant’s 

position because the agency no longer required an Attorney-Advisor to work 

exclusively on WELSA cases; proved that it properly separated the appellant

based on her retention standing, competitive area, and service computation date;

and did not mislead her about her eligibility to participate in career transition 

assistance programs. ID at 7-15. The administrative judge also found that the 

appellant did not prove her claims of discrimination based on sex and EEO 

activity, retaliation for filing grievances, and reprisal for whistleblowing. ID 

at 15-36. The administrative judge noted that the appellant did not exhaust her 

administrative remedy before the Office of Special Counsel (OSC) and therefore 

abandoned her possible claims in an individual right of action (IRA) appeal

involving her reassignment, significant change in duties and working conditions, 

performance rating, and suspensions. ID at 28 n.13.

¶4 The appellant asserts on review that the administrative judge improperly 

failed to consider her motion for sanctions against the agency for misconduct, 

including the agency’s attempts to coerce and retaliate against her witnesses. 

Petition for Review (PFR) File, Tab 1 at 8. The appellant contends that witness 

P.H. overheard the agency’s representative shouting at the appellant before her 

testimony, which made P.H. uncomfortable, and that P.H., her supervisor, and the 

agency’s representative discussed issues without the appellant’s knowledge such 

as whether P.H. would travel to Minnesota when she testified or would testify via 

videoconference from Washington, D.C., the type of transportation P.H. used to 

travel to Minnesota, and whether P.H. had asked the appellant to call her before 

other witnesses, even though the agency representative knew the answer because 

the order of witnesses already had been determined. Id. at 9. The appellant 

asserts that, after she filed her motion for sanctions, P.H.’s supervisor suspended 

P.H.’s ability to telework, instructed her to turn over her Government cell phone, 

informed her that she was deactivating the service, reassigned P.H.’s job 
4

functions and assignments to others, and told her that she could no longer take her 

computer or use Wi-Fi while traveling to provide testimony. Id. at 10. The 

appellant contends that the administrative judge later disregarded P.H.’s 

testimony and unfairly referred to it as “bitter.” Id. at 11. The appellant asserts 

that another witness changed the prior sworn testimony he gave to an EEO 

investigator after speaking with the agency’s representative. Id. 

¶5 The appellant filed a motion for sanctions below asserting that the agency’s 

representative engaged in the behavior described above. IAF, Tab 36 at 4-7. As 

a sanction, the appellant requested that the administrative judge prohibit the 

agency’s representative from further representing the agency. Id. at 7. The 

written record does not show that the administrative judge ruled on the motion. 

IAF, Tabs 37-43. To the extent that the administrative judge failed to rule on the 

appellant’s motion, such a failure was nonprejudicial error. See Jarrard v. 

Department of Justice, 113 M.S.P.R. 502, ¶ 11 n.1 (2010) (finding that it was 

error for an administrative judge not to rule on a motion to strike). An 

adjudicatory error that is not prejudicial to a party’s substantive rights provides 

no basis for reversal of an initial decision. Panter v. Department of the Air 

Force, 22 M.S.P.R. 281, 282 (1984). As set forth below, we find that any error 

by the administrative judge in failing to address the appellant’s motion for 

sanctions did not prejudice her substantive rights. 

¶6 An administrative judge may impose sanctions upon a party, including 

drawing an inference in favor of the requesting party, as necessary to serve the 

ends of justice. Bernstein v. Department of the Army, 82 M.S.P.R. 375, ¶ 7 

(1999). Such a sanction also may involve excluding or limiting a representative’s 

participation for contumacious conduct or conduct prejudicial to the 

administration of justice. 5 C.F.R. § 1201.43(d). The Board has required 

evidence showing that an agency official threatened a witness with adverse 

consequences, such as disciplinary action, or suggested that a witness either not 

testify or not testify truthfully before the Board will find that the agency official 
5

intimidated that witness. Bernstein, 82 M.S.P.R. 375, ¶ 12. We find that the 

allegations set forth above, even if true, do not rise to the level of witness 

intimidation, contumacious conduct, or conduct prejudicial to the administration 

of justice. See West v. U.S. Postal Service, 44 M.S.P.R. 551, 560-61 (1990). In 

any event, the appellant has not shown that the denial of her motion affected her 

substantive rights because she does not suggest how the witnesses in question 

would have testified absent such alleged intimidation. See De Bow v. Department 

of the Air Force, 97 M.S.P.R. 5, ¶ 11 (2004). Thus, the appellant has not shown a 

basis for imposing a sanction in this case.

¶7 The appellant also contends that the administrative judge erred when she 

denied as irrelevant the appellant’s request for J.R., O.F., and J.W. as witnesses, 

all of whom were deciding officials in either the disciplinary actions taken against 

her or her performance appraisals, and her request for E.W., who was the primary 

contact for the RIF. PFR File, Tab 1 at 11. The appellant asserts that the 

administrative judge then improperly referred to statements from J.R., O.F., and 

J.W. in the initial decision, even though the appellant did not have an opportunity

to cross-examine them. Id. at 11-12. She also contends that the administrative 

judge did not respond to her motion to clarify the summary of a prehearing 

conference. Id. at 8, 12.

¶8 The appellant asserted that J.R., O.F., J.W., and E.W. would testify to the 

“contents of [their] sworn affidavit[s] and the events surrounding the disciplinary 

actions taken against the Appellant.” IAF, Tab 19, Part A at 29. The 

administrative judge granted four witnesses who had been requested by both 

parties, five additional witnesses requested by the agency, and three additional 

witnesses requested by the appellant. IAF, Tab 20 at 16-17. The administrative 

judge denied the request for J.R., O.F., J.W., and E.W. as irrelevant. Id. at 17.

¶9 An administrative judge has wide discretion under 5 C.F.R. 

§ 1201.41(b)(8), (10) to exclude witnesses when it has not been shown that their 

testimony would be relevant, material, and nonrepetitious. Franco v. U.S. Postal 
6

Service, 27 M.S.P.R. 322, 325 (1985). Here, the appellant did not indicate in her 

prehearing submission that these witnesses’ hearing testimony would differ from

their affidavit testimony. Moreover, the summary of the prehearing conference 

did not identify any disciplinary actions taken against the appellant as issues in 

the case, except to the extent that they could form the basis for an IRA appeal, 

IAF, Tab 20 at 1-14, and the appellant did not object to the administrative judge’s 

rulings on witnesses, see Tarpley v. U.S. Postal Service, 37 M.S.P.R. 579, 581 

(1988) (finding that the appellant’s failure to timely object to the administrative 

judge’s rulings on witnesses precluded his doing so on petition for review). The 

administrative judge noted that the appellant indicated that she had not requested 

corrective action from OSC, id. at 10, and ultimately found that the appellant 

abandoned her whistleblowing claim, ID at 28 n.13. Thus, we find no abuse of 

discretion by the administrative judge in denying these witnesses. Although the 

appellant asserts that the administrative judge did not respond to her motion to 

clarify the summary of the prehearing conference, it is not clear from the 

appellant’s motion what she sought to have clarified aside from possible 

questions regarding deadline dates. IAF, Tab 21 at 4-5. Any such ambiguity is

not relevant to the issues on review.

¶10 The appellant also asserts that the administrative judge did not cite to Hillen 

v. Department of the Army, 35 M.S.P.R. 453 (1987), or refer to the factors for 

determining credibility set forth in Hillen. PFR File, Tab 1 at 13. She contends 

that, contrary to her supervisor’s unsupported testimony that production in the 

WELSA office declined sharply in April 2013 without paralegal support, thereby 

justifying the reassignment of new cases away from the appellant to an 

administrative law judge in Salt Lake City, Utah, the appellant continued to 

maintain similar production numbers, with only 18 fewer cases produced between 

fiscal years 2012 and 2013. Id. The appellant asserts that her supervisor testified 

falsely that she lowered the appellant’s performance appraisal due to, among 

other things, the appellant saying to her that a paralegal was “unable to learn,” 
7

“not normal,” and “seemed like a child with a disability”; the appellant asserts

that she did not attribute negative statements to the paralegal, did not make false 

claims, and was not uncooperative. Id. at 13-14. In particular, the appellant 

asserts that statements her supervisor made in her pre-fiscal year (FY) 2012 

appraisals of the appellant and to an EEO investigator regarding the contents of 

the FY 2012 appraisal conflict with the findings made by the administrative judge

in the initial decision. Id. at 14. The appellant further contends that, contrary to 

her supervisor’s testimony that the appellant objected to using the support staff in 

Salt Lake City, the exhibit cited by the administrative judge did not support that 

testimony. Id. at 15. She also asserts that her supervisor’s testimony that the 

appellant was disrespectful and argumentative during a teleconference was 

contradicted by testimony and evidence from a legal assistant, P.H., and the 

appellant. Id.

¶11 The administrative judge found that in May 2014, the agency directed the 

appellant’s supervisor to reduce the OHA’s budget by $474,000 and 

approximately four full-time equivalent positions (FTEs). ID at 8; IAF, Tab 7 at 

83; Hearing Transcript Day 1 (HTD1) at 35-38. The appellant does not dispute 

this finding on review. The record also reflects that the appellant’s supervisor

determined that other offices within her control could not absorb the loss of 

FTEs, but the WELSA division, which consisted of the appellant and another 

individual at the time, was a stand-alone office that was expensive, handled a 

relatively small case load, and could be eliminated because the Salt Lake City 

office could absorb WELSA work without additional FTEs. HTD1 at 42-43. We 

find that the administrative judge correctly determined that the agency’s decision 

to reorganize by closing the WELSA office was not arbitrary or irrationa l under 

the circumstances, and that Federal agencies have broad management discretion 

to act to avoid a budgetary deficit. ID at 8‐10; see Waksman v. Department of 

Commerce, 37 M.S.P.R. 640, 645 (1988), aff’d sub nom. Harris v. Department of 

Commerce, 878 F.2d 1447 (Fed. Cir. 1989) (Table); cf. Einboden v. Department 
8

of the Navy, 802 F.3d 1321, 1325-26 (Fed. Cir. 2015) (holding that a furlough 

promotes the efficiency of the service when it is a reasonable management 

solution to the financial restrictions placed on the agency). The agency, not the 

Board, is responsible for deciding whether to retain or abolish particular positions 

during a RIF and how to accommodate a shortage of funds. Waksman, 37 

M.S.P.R. at 645-46. Regarding the appellant’s performance appraisal, the 

administrative judge correctly found that, even if the appellant’s appraisal had 

been rated superior, rather than minimally successful for FY 2012, it did not 

make a difference in the appellant’s retention standing for purposes of the RIF. 

ID at 12-13; see Hearing Transcript Day 2 at 210-14. The appellant’s other 

arguments do not demonstrate error in the administrative judge’s determination 

that the agency showed by preponderant evidence that the RIF was bona fide and 

not personal to the appellant. ID at 8-10.

¶12 The appellant also asserts that her supervisor had discriminatory animus 

because she verbally opposed a settlement agreement into which the appellant had 

entered, gave her a minimally successful performance appraisal for FY 2012 

based on information she later admitted was unsubstantiated, initiated two 

unfounded disciplinary actions against the appellant suspending her for 3 and 5 

days, respectively, and directed her to attend weekly teleconferences at which she 

was harassed and verbally abused. PFR File, Tab 1 at 17-18. Further, the 

appellant contends that her supervisor was only an “Acting Director” who should 

not have initiated restructuring actions but who instead should have been a 

“caretaker,” a tribal council chairwoman objected to moving the WELSA office to 

Salt Lake City, and similarly situated male employees were retained. Id. at 

19-20, 23.

¶13 The administrative judge found that the appellant did not show that her 

supervisor placed false information in her FY 2012 performance evaluation, the 

appellant’s evidence regarding her prior disciplinary actions did not establish a 

motive for sex discrimination, the legal assistant who attended the weekly 
9

teleconferences did not substantiate the appellant’s claim that the appellant’s 

supervisor defamed, threatened, and abused her, P.H.’s testimony did not support 

a finding of sex discrimination because she did not testify that the appellant’s 

supervisor treated women any differently from men, and the appellant was not 

similarly situated to male employees who were not separated because they either 

held a different position, occupied a different grade level, or held a position that 

the agency determined it needed to retain. ID at 18‐21. Although the appellant 

contends that her supervisor opposed the term of the settlement agreement

requiring the agency to appoint the appellant to a position in the Twin Cities area, 

the record reflects that the appellant’s supervisor acknowledged that the matter 

had been decided, but merely expressed her view that it was not financially 

advantageous to open a new office in that location. HTD1 at 81-83. The 

appellant has not identified on review any evidence showing that her supervisor

lacked the authority to recommend or implement the restructuring changes at 

issue in this case, even as an acting director. In fact, although an acting director

typically may not have taken bold, major restructuring actions, the then-Deputy 

Assistant Secretary testified that she came to him with restructuring ideas 

“because of the crisis that we were in and my . . . pressure to all of the offices to 

really . . . scrub every opportunity,” and that such recommendations from the 

appellant’s supervisor were “exactly what I was hoping to see from all of my 

offices.” HTD1 at 147-48, 161-62. The appellant has identified no evidence on 

review showing that the agency’s decision to abolish her position, despite any 

initial objection from a tribal chief as to the WELSA office’s location, was based 

on discrimination. 

¶14 In adjudicating the appellant’s discrimination claim, the administrative 

judge applied the evidentiary standards set forth in Savage v. Department of the 

Army, 122 M.S.P.R. 612, ¶¶ 42-43, 51 (2015), and observed that the appellant 

sought to prove her claim with circumstantial evidence using a “mosaic” theory of 

discrimination. ID at 17. Regardless of the characterization of evidence relating 
10

to the discrimination claim, we find that the administrative judge properly 

considered the evidence as a whole in finding that the appellant did not prove that 

discrimination based on sex or retaliation based on prior EEO activity was a 

motivating factor in her separation by RIF. See Gardner v. Department of 

Veterans Affairs, 123 M.S.P.R. 647, ¶¶ 30-31 (2016).

¶15 Finally, the appellant contends that the agency should have selected her for 

an administrative judge position with the Indian Board of Appeals, and that her 

supervisor harmed her selection prospects by informing the selecting official that 

the appellant had filed a grievance and an EEO complaint. PFR File, Tab 1 at 24. 

The appellant also asserts that, because the agency transferred her function to 

Salt Lake City, it should have transferred her to the Salt Lake City competitive 

area without a change in the tenure of her employment. Id. at 26-27.

¶16 The appellant has not shown that her nonselection for another position is 

relevant to the merits of her separation by RIF or her affirmative defenses. 

Moreover, whether the agency should have applied the transfer of function 

regulations set forth at 5 C.F.R. part 351, subpart C was not identified as an issue 

in this case. IAF, Tab 20 at 1-6. Because the appellant did not raise this 

argument regarding transfer of function below, and she has not shown that it is 

based on new and material evidence not previously available despite her due 

diligence, we need not address it for the first time on review. See Banks v. 

Department of the Air Force, 4 M.S.P.R. 268, 271 (1980). In any event, we find 

that no transfer of function occurred in this case. A “function” is “all or a clearly 

identifiable segment of an agency’s mission (including all integral parts of that 

mission), regardless of how it is performed.” 5 C.F.R. § 351.203. A “transfer of 

function,” in relevant part, is “the transfer of the performance of a continuing 

function from one competitive area and its addition to one or more other 

competitive areas, except when the function involved is virtually identical to 

functions already being performed in the other competitive area(s) affected.” Id. 

No transfer of function occurred in this case because the agency’s Salt Lake City 
11

office was already performing an adjudication function, including processing

WELSA cases. IAF, Tab 7, Part 4 at 14, 18; HTD1 at 32-34, 168-69; see Mullen 

v. Department of the Navy, 76 M.S.P.R. 590, 597 (1997).

¶17 Accordingly, we deny the petition for review and affirm the initial decision.

NOTICE TO THE APPELLANT REGARDING

YOUR FURTHER REVIEW RIGHTS

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

are several options for further review set forth in the paragraphs below. You may 

choose only one of these options, and once you elect to pursue one of the avenues 

of review set forth below, you may be precluded from pursuing any other avenue 

of review. 

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 
12

later than 30 calendar days after receipt by your representative. If you choose to 

file, be very careful to file on time.

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 receives 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.

Other Claims: Judicial Review

If you want to request review of the Board’s decision concerning your 

claims of prohibited personnel practices described in 5 U.S.C. § 2302(b)(8), 

(b)(9)(A)(i), (b)(9)(B), (b)(9)(C), or (b)(9)(D), but you do not want to challenge 

the Board’s disposition of any other claims of prohibited personnel practices, you 

may request review of this final decision by the U.S. Court of Appeals for the 

Federal Circuit or by any court of appeals of competent jurisdiction. The court of 

appeals must receive your petition for review within 60 days after the date of this 

order. See 5 U.S.C. § 7703(b)(1)(B) (as rev. eff. Dec. 27, 2012). If you choose 

to file, be very careful to file on time.

If you need further information about your right to appeal this decision to 

court, you should refer to the Federal law that gives you this right. It is found in 
13

title 5 of the United States Code, section 7703 (5 U.S.C. § 7703) (as rev. eff. 

Dec. 27, 2012). You may read this law as well as other sections of the United 

States Code, at our website, http://www.mspb.gov/appeals/uscode/htm. 

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, and 11. Additional 

information about other 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.

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 

Merit Systems Protection Board neither endorses the services provided by any 

attorney nor warrants that any attorney will accept representation in a given case. 

FOR THE BOARD:

Washington, D.C.

______________________________

Jennifer Everling

Acting Clerk of the Board