Brinson v. Dep't of the Navy

• Docket Number: DC-0752-14-1129-B-1
• Decision Date: 08 September 2023
• Parties: LEAMON D. BRINSON, Appellant, v. DEPARTMENT OF THE NAVY, Agency.
• Court: Merit Systems Protection Board

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LEAMON D. BRINSON, Appellant,
v.
DEPARTMENT OF THE NAVY, Agency.

No. DC-0752-14-1129-B-1

United States of America Merit Systems Protection Board

September 8, 2023

Steve M. Fesler, Sykesville, Maryland, for the appellant.

Ray Goldstein and Nikki Greenberg, Washington Naval Yard, D.C., for the agency.

BEFORE Cathy A. Harris, Vice Chairman Raymond A. Limon, Member Vice Chairman Harris issues a separate opinion. Member Limon issues a separate opinion.

ORDER

CATHY A. HARRIS VICE CHAIRMAN.

¶1 The appellant has filed a petition for review which sustained his removal for misconduct. The two Board members cannot agree on the disposition of the petition for review. Therefore, the initial decision now becomes the final decision of the Merit Systems Protection Board in this appeal. Title 5 of the Code of Federal Regulations, section 1200.3(b) (5 C.F.R. § 1200.3(b)). This decision shall not be considered as precedent by the Board in any other case. 5 C.F.R. § 1200.3(d).

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NOTICE OF APPEAL RIGHTS^[1]

You may obtain review of the 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 the 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:

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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 the final 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

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to waiver of any requirement of prepayment of fees, costs, or other security. See 42 U.S.C. § 2000e-5(f) and 29 U.S.C. § 794a.

Contact information for U.S. district courts can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx.

Alternatively, you may request review by the Equal Employment Opportunity Commission (EEOC) of your discrimination claims only, excluding all other issues. 5 U.S.C. § 7702(b)(1). You must file any such request with the EEOC's Office of Federal Operations within 30 calendar days after you receive this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the EEOC no later than 30 calendar days after your representative receives this decision.

If you submit a request for review to the EEOC by regular U.S. mail, the address of the EEOC is:

Office of Federal Operations Equal Employment Opportunity Commission P.O. Box 77960 Washington, D.C. 20013

If you submit a request for review to the EEOC via commercial delivery or by a method requiring a signature, it must be addressed to:

Office of Federal Operations Equal Employment Opportunity Commission 131 M Street, N.E. Suite 5SW12G Washington, D.C 20507

(3) Judicial review pursuant to the Whistleblower Protection Enhancement Act of 2012. This option applies to you only if you have raised claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or 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

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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.^[2] 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

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Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case.

Contact information for the courts of appeals can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx. FOR THE BOARD: /s/ for Jennifer Everling Acting Clerk of the Board Washington, D.C.

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SEPARATE OPINION OF VICE CHAIRMAN CATHY A. HARRIS

in

Leamon D. Brinson v. Department of the Navy

MSPB Docket No. DC-0752-14-1129-B-1

¶1 For the reasons discussed below, I would grant the appellant's petition for review, reverse the initial decision, and not sustain his removal.

¶2 The appellant was a WG-11 Electronic Industrial Controls Mechanic whom the agency suspended for 30 days on charges of insubordination and disrespectful conduct. Brinson v. Department of the Navy, MSPB Docket No. DC-0752-14-0424-I-1, Appeal File (0424 AF), Tab 1 at 7-10. The appellant filed a Board appeal and raised some affirmative defenses, including an affirmative defense of age discrimination. 0424 AF, Tab 1 at 2, Tab 5 at 3, Tab 19 at 2. During discovery in those proceedings, the appellant, proceeding pro se, deposed his fifth-level supervisor, a Navy Commander and Public Works Officer. 0424 AF, Tab 4 at 3; Brinson v. Department of the Army, MSPB Docket No. DC-0752-14-1129-I-1, Initial Appeal File (IAF), Tab 1 at 27-37. During the deposition questioning, the appellant called the Commander "a snake" and "an outright liar," and he suggested that the Commander had "short man syndrome" or "little man syndrome." IAF, Tab 10 at 33-34, 36.

¶3 While the suspension appeal was still pending, the agency proposed to remove the appellant for his conduct during the Commander's deposition.^[1] Id. at 23-26. The proposal was based on a charge of disrespectful conduct, with three specifications, referring to the "snake," "outright liar," and "little man" comments respectively. Id. at 23-24. The deciding official sustained the charge and removed the appellant effective August 27, 2014. Id. at 4-10.

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¶4 The appellant filed the instant Board appeal, arguing among other things that the agency was not...