Strickland v. Wilkie

105 F.4th 285

Deborah STRICKLAND, Plaintiff—Appellant, v. Robert WILKIE; United States Department of Veterans Affairs, Defendants—Appellees.

No. 23-60191

United States Court of Appeals, Fifth Circuit

FILED June 18, 2024

Appeal from the United States District Court for the Southern District of Mississippi, USDC No. 3:18-CV-750, Henry T. Wingate, U.S. District Judge

Joel Frank Dillard, Jackson, MS, for Plaintiff-Appellant.

Angela Givens Williams, Assistant U.S. Attorney, U.S. Attorney's Office, Southern District of Mississippi, Jackson, MS, for Defendants-Appellees.

Before Clement, Southwick, and Ho, Circuit Judges.

Leslie H. Southwick, Circuit Judge:

The Department of Veterans Affairs ("VA") suspended an employee for 15 days without pay after a series of events involving her supervisor. The employee appealed her disciplinary decision to the Merit Systems Protection Board ("MSPB" or "Board"), raising claims of disability discrimination as an affirmative defense. The Board refused to consider the entire disciplinary decision after determining one part of the decision was correct. The employee then appealed to district court, which affirmed. We VACATE, REVERSE, and REMAND.¹

FACTUAL AND PROCEDURAL BACKGROUND

Deborah Strickland is a secretary and timekeeper in the Information Technology office of the VA in Jackson, Mississippi. A series of events began in November 2017 that ended in Strickland's 15-day suspension. Feeling unwell on November 9, Strickland called the VA's "sick line" to report that she would not be coming into work. Because she had no remaining sick leave, she requested her time be categorized as annual leave. VA policy, however, required she seek approval from her supervisor before using annual leave. Because she had not sought that approval, her supervisor, Robert Wolak, marked her as absent without leave, or "AWOL." When Strickland returned to work on November 13, 2017, she confronted Wolak about the AWOL designation, leading to a heated confrontation.

That same day, Strickland spoke with Lisa Tyler-Gee, a Human Resource ("HR") specialist at the VA, who explained how to request leave under the Family Medical Leave Act ("FMLA"). On December 5, 2017, Tyler-Gee sent Strickland an FMLA memorandum to be signed by her supervisors. When she submitted the memorandum for signature, Strickland apparently made several changes that eliminated restrictions on her FMLA leave and made the memorandum appear to apply to her November 9 absence.

Also on December 5, Wolak met with Strickland and several union representatives. Another heated exchange ensued between Strickland and Wolak, and Wolak left the meeting. A few weeks later, on December 21, 2017, Wolak had another argument with Strickland after hearing her "ranting" about having to change another co-worker's timecard.

On January 12, 2018, the VA proposed terminating Strickland for these events. The VA presented Strickland with a copy of the proposal, but she refused to sign it. Under 38 U.S.C. § 714(c)(1)(B), Strickland had seven business days to respond to the proposal. She did so in writing on January 18. An additional meeting regarding the proposed removal was held in late January.

On February 5, the VA rescinded the January proposal because it listed the wrong deciding official. In a meeting with Wolak, other VA officials, and a union representative, Strickland was given a copy of a memorandum rescinding the January proposal and was shown a copy of a revised proposal. Strickland refused to sign either because her preferred representative was not present. The only difference between the two proposals was the change in the deciding official.

A few days later, on February 7, the VA issued the renewed proposal. Strickland was not at work to receive it because she had taken FMLA leave on February 6 and remained on leave until February 21. Consequently, VA officials emailed the proposal to Strickland's VA email address and sent paper copies via UPS and USPS to Strickland's latest address on file. Even though Strickland returned to work on February 21, she did not open the email containing the renewed proposal until February 27, citing a backlog of emails because of her absence as the reason for the delay. On March 2, Strickland sent an email containing her response to the renewed proposal to David Wagner, who was the deciding official under the January proposal. Strickland's response, however, was untimely because the statutory period to respond had expired. 38 U.S.C. § 714(c)(1)(B).

The correct deciding official, Jack Galvin, issued his decision on March 5, 2018. This was 17 business days after the February 7 proposal was issued, which is two business days longer than the 15-business day statutory deadline. § 714(c)(1)(A). The final decision repeated the charges and specifications contained in the February 7 proposal.² Galvin "sustained" each charge and specification, which are summarized as follows: "Charge I: Unauthorized Absence," with a single specification regarding Strickland's November 9 AWOL mark; "Charge II: Inappropriate Conduct," with two specifications regarding the altered FMLA memorandum; "Charge III: Conduct Unbecoming of a Federal Employee," with three specifications regarding Strickland's November 13, December 5, and December 21 confrontations with Wolak.

Despite finding that the charges were supported by substantial evidence, Galvin revised the proposed discipline from removal to a 15-day suspension. This was based on the seriousness of Strickland's conduct relating to Charge II (altering the FMLA memorandum), while considering that Strickland had "no prior record of discipline and that the suspension is reasonable and commensurate with the offense." Strickland's suspension went into effect on March 12, 2018.

Strickland timely appealed her temporary suspension to the MSPB,³ contesting the charges, asserting that the VA violated her due process rights, and raising affirmative defenses of discrimination and retaliation. An Administrative Law Judge ("ALJ") held a videoconference hearing on August 22, 2018. He conducted the hearing in a "trifurcated" manner. At the instruction of the ALJ, the parties first presented evidence regarding Strickland's claim that the VA deprived her of due process. After the ALJ determined that "no due process violation had occurred," the parties then presented testimony and evidence on the charges, with Charge III addressed first. The ALJ found that Charge III was supported by substantial evidence. The ALJ concluded that because Charge III was sustained, there was no reason to address Charges I and II at all. The third and final portion of the hearing addressed Strickland's affirmative defenses. The ALJ limited Strickland's presentation to evidence directly related to Charge III. Although Strickland sought to show her discipline was pretextual and unlawfully motivated and to establish comparators to support her discrimination claim, the ALJ refused to hear it.⁴ Following the hearing, the ALJ issued his decision sustaining the suspension.

Strickland timely challenged the ALJ's decision by filing a complaint in the United States District Court for the Southern District of Mississippi. Her complaint challenged the manner in which the VA issued the discipline and the MSPB's post-disciplinary review. The complaint contained separate discrimination claims under the Rehabilitation Act (the same claims that served as the basis for her affirmative defenses). On the VA's motion to dismiss, the district court upheld MSPB's final decision and dismissed Strickland's Rehabilitation Act claims. Strickland timely appealed.

DISCUSSION

Before reviewing the merits, we must assure ourselves of our own jurisdiction. Perez v. McCreary, Veselka, Bragg & Allen, P.C., 45 F.4th 816, 822-23 (5th Cir. 2022). Where appeals from the MSPB only allege violations of the Civil Service Reform Act, the Court of Appeals for the Federal Circuit has exclusive jurisdiction. 5 U.S.C. § 7703(b)(1)(A). On the other hand, "[w]hen an employee complains of a personnel action serious enough to appeal to the MSPB and alleges that the action was based on discrimination, she is said (by pertinent regulation) to have brought a 'mixed case.' " Kloeckner v. Solis, 568 U.S. 41, 44, 133 S.Ct. 596, 184 L.Ed.2d 433 (2012) (emphasis in original) (quoting 29 C.F.R. § 1614.302). Mixed cases are properly appealed from the MSPB by filing a complaint in a district court. Id. at 50, 133 S.Ct. 596; § 7703(b)(2). The district court then decides both the issues of the MSPB's alleged errors and the plaintiff's discrimination claims, with the latter receiving de novo review. Kloeckner, 568 U.S. at 55 n.4, 133 S.Ct. 596; § 7703(c).

Here, Strickland appealed the MSPB's decision by filing a complaint challenging the decision as well as bringing claims of discrimination, retaliation, and failure to accommodate under the Rehabilitation Act. She therefore filed a mixed case over which the district court had jurisdiction under Section 7703(b)(2). See Kloeckner, 568 U.S. at 50, 133 S.Ct. 596. Because the district court's order granting summary judgment to the VA and dismissing Strickland's discrimination claims is a final appealable order, we have jurisdiction under 28 U.S.C. § 1291.

Our review of the MSPB's decisions on non-discrimination claims is deferential. We will uphold its determinations "unless they are clearly arbitrary and capricious, unsupported by substantial evidence or otherwise not in accordance with law." Williams v. Wynne, 533 F.3d 360, 373 (5th Cir. 2008) (citation omitted); 5 U.S.C. § 7703(c)(1)-(3). A determination is not clearly arbitrary and capricious if the MSPB "has reasonably considered the relevant issues and reasonably explained the decision." FCC v. Prometheus Radio Project, 592 U.S. 414, 423, 141 S.Ct. 1150, 209 L.Ed.2d 287 (2021). Although this standard is deferential, "[o]ur deference . . . has limits." Carey Salt Co. v. NLRB, 736 F.3d 405, 410 (5th Cir. 2013). We...