One Employee, Multiple Appeals, Different Results

By on June 7, 2007 in Current Events with 0 Comments

Davis v. Department of Homeland Security, (C.A.F.C. No. 2006-3061, 5/30/07) involves a Customs and Border Patrol employee (Davis) who took leave under the Family and Medical Leave Act to care for her allegedly terminally ill husband. Instead the agency discovered that Davis had falsified the leave. As it turns out the allegedly ill husband was not incapacitated. He was in fact working as the director on a movie set during the time of his apparent terminal illness. Further, Davis was working side-by-side with her husband on the movie set, since she had written the screenplay for the movie.

Complicating this case was the fact that a few months before her FMLA application, Davis had filed a sexual harassment complaint for reasons not specified in the court’s decision. But, apparently, the complaint led to the Equal Employment Opportunity Commission eventually finding that there had been harassment and awarding Ms. Davis damages. (Opinion p. 2)

But let’s back up to the FMLA leave situation involving Ms. Davis. Before the agency could deal with the falsified leave, Ms. Davis came out swinging. When she returned to work following her FMLA leave, she immediately charged her supervisor with assigning her to work with contagious aliens which caused her to contract TB, throwing her handbag on the floor damaging her cell phone, lowering her performance rating, and breaking into her locker. Davis also threw in three whistleblowing allegations (none of which ultimately proved to be merited), as well as a whistleblowing retaliation complaint.

The agency placed Davis in a non-duty pay status, revoked her credentials, weapon and computer access, and ordered Davis to appear before its Office of Professional Responsibility to testify about her allegations. Before the testimony could take place, Davis told the agency she was “involuntarily resigning.” (Opinion pp. 3-4)

You guessed it. Davis then filed an appeal with the Merit Systems Protection Board arguing that her resignation had been involuntary and therefore was a constructive discharge. She further argued that the agency’s actions were retaliation for her whistleblowing and her prior EEO complaint. (p. 4)

The MSPB administrative judge held an evidentiary hearing and found that the evidence did not support Davis’ allegations. He further found that while it was obviously stressful for Davis to be investigated, the agency had a legitimate reason to investigate the truthfulness of Davis’ allegations against her supervisor. He found that Davis had voluntarily resigned and therefore the Board did not have jurisdiction over her appeal. (p. 5)

The EEOC ruling on Davis’ sexual harassment charges was issued just after the MSPB AJ issued his decision and before the full MSPB ruled on Davis’ petition for review of that decision. The EEOC found there was sexual harassment, stating “no reasonable person could have continued working in such an employment environment.” (p. 6)

Davis petitioned the full MSPB to review the AJ’s decision and asked that the Board consider the EEOC ruling and transcript in making its decision. The full Board declined to consider the EEOC information and concluded that there was no new evidence that would warrant overturning the AJ’s decision. It therefore agreed that Davis’ resignation was voluntary. (p. 6)

The appeals court sided with the MSPB on pretty much every aspect of the case, except for one crucial one—consideration of the EEOC decision and record. On whether Davis had been coerced into resigning, the court did not think so, stating, “She was found to have fraudulently represented her need for FMLA leave, and she compounded her deception by making what was determined to be additional false allegations.” (p. 9) But for her sexual harassment allegation, the court agreed with the Board that the evidence did not support finding that her resignation was coerced. (p. 10)

As to Davis’ argument that taking her weapon, badge, credentials and computer access amounted to adverse actions, the court did not agree, pointing out that these actions occurred after her last day of work. (p. 11)

The court even agreed that it was proper of the Board to refuse to admit the EEOC transcript into evidence since the record before the Board had already been closed by the time the EEOC case decision was issued. The court further pointed out that the witnesses before the EEOC had pretty much all testified in the Board case as well. (p. 12)

The snag, however, involves the EEOC final opinion. The court points out that EEOC’s decision was “inconsistent with the determination made by the AJ in the Initial Decision. The Board, faced with this inconsistency, should have considered the final decision of the EEOC.” (p. 11)

The court finds this reason enough to vacate and remand to the MSPB to “resolve inconsistencies, if any.” The Board is apparently supposed to take comfort from this caveat by the court: “Our remand does not necessarily require that the Board reach a different result; for example, the Board could find that the sexual harassment was too far removed in time from Ms. Davis’s resignation to have rendered that resignation involuntary, or that her resignation was voluntary because other factors …–unrelated to the harassment—caused her to resign voluntarily.” (p. 11)

Nevertheless, the case now goes back to the MSPB for more work.

© 2016 Susan McGuire Smith. All rights reserved. This article may not be reproduced without express written consent from Susan McGuire Smith.


About the Author

Susan McGuire Smith spent most of her federal legal career with NASA, serving as Chief Counsel at Marshall Space Flight Center for 14 years. Her expertise is in government contracts, ethics, and personnel law.