Opinion
CIVIL ACTION NO. 99-3782
October 8, 2003
MEMORANDUM
Introduction
Plaintiff Deonne New, a GS-3 secretary in the Veterans' Administration ("VA"), took prolonged leaves from work after suffering a work-related back injury in 1984 that aggravated a pre-existing medical condition. Four years later, the VA removed her from her job for absenteeism, insubordination, and unreliability and marginal value to the Government. In a litigational odyssey spanning four presidential administrations, New has contested the VA's responses to her post-injury requests for workplace accommodations, her 1988 removal, and the VA's subsequent refusal to grant her priority consideration for restoration of her employment status.
Our reference to the long-vanished Veterans' Administration is a measure of the age of this case. In 1989, after New had been removed from Government employment, the Veterans' Administration was elevated to executive departmental status and redesignated as the Department of Veterans Affairs. See 38 U.S.C. § 201 (West Supp. 1989). For the sake of convenience, we will use the terms "VA" and "agency" throughout this opinion rather than "DVA" and "department."
Before us is the Government's motion for summary judgment on New's latest complaint and petition for review, which challenges a 1999 Merit Systems Protection Board ("MSPB") decision upholding the VA's refusal to grant New priority restoration status. The Government also seeks summary judgment on New's claims against the VA for handicap discrimination, sexual harassment, and retaliation.
Factual and Procedural History
We begin with a detailed factual and procedural history because the disposition of the Government's motion turns in large part on both the chronology of New's conflict with the VA as well as the holdings of the MSPB, other judges in this District, and the Court of Appeals for the Federal Circuit in this case's many earlier incarnations.
A. New's Injury, Initial Removal, and First Appeal to the MSPB (1984-1987)
New began working for the VA as a secretary trainee in October of 1983. On May 29, 1984, she sustained a back injury at work that exacerbated her pre-existing sciatica. As a result of this injury, New received Office of Workers' Compensation Programs ("OWCP") benefits from May 29, 1984 to June 3, 1985. New returned to work on June 4, 1985, but she was absent from June 7, 1985 to June 24, 1985, at which time the VA removed her on charges of unauthorized absence ("AWOL") and insubordination. New appealed to the MSPB, which sustained the insubordination charge, but not the AWOL charge, and reduced the removal to a reprimand. See MSPB 0826-0832.
The VA filed a certified MSPB record with the motion for summary judgment. All references to the record in this memorandum are denoted as above.
New returned to work on May 5, 1986, but on January 24, 1987, the VA removed her for absences during the preceding eight and one-half months. New again appealed to the MSPB, and on April 23, 1987, she entered into a settlement agreement with the VA in which she received her immediate reinstatement, back pay for the period after January 26, 1987 with no offset for unemployment compensation, and the payment of her attorney's fees. See MSPB 1118-1121.
B. New's Second Removal and Appeal to the MSPB (1987-1988)
New returned to work at the VA's Data Processing Center in Philadelphia on April 24, 1987, but soon thereafter she suffered a temporary aggravation of her injury. On May 14, 1987, New's treating physician requested that the VA grant her a parking spot at Gate #3, a loading dock area containing seven parking spaces assigned to agency executives. See Def.'s Mot. Ex. 2, at 2. When the VA failed to act on the request, New unilaterally stopped working on July 29, 1987. On August 31, 1987, New's physician reported that she could return to work part time, provided the VA supply her with a parking space at Gate #3 and ergonomically redesign her work area. The VA agreed to make the ergonomic changes, and although the agency refused New's request for a parking space at Gate #3, it offered her a space at Gate #7, where other disabled workers parked. The VA also ordered New to return to work by October 7, 1987.
New refused to comply with the order to return to work, and on October 6, 1987, she applied to the OWCP for benefits on the ground that the VA had not provided the accommodations that her treating physician had requested. The OWCP did not respond to the application until December 19, 1989, when it accepted New's compensation claim for the period from July 29, 1987 to October 14, 1987 but not thereafter. See MSPB 0596.
Meanwhile, despite the fact that the OWCP had not yet ruled on New's application, the VA terminated New in February 1988 on two charges: (1) her unauthorized absences from October 7, 1987 to December 4, 1987 and insubordination in refusing to return to work, and (2) her frequent absences since May 29, 1984, which made her an unreliable and undependable employee of marginal value to the Government. New appealed to the MSPB, which upheld the removal in an initial decision on June 30, 1988 that the full Board affirmed on April 5, 1989.
C. New's First Three District Court Complaints, Her Request for Restoration, and the OWCP's Award of Benefits (1989-1995)
After the MSPB sustained her termination, New filed a complaint in this Court stating claims against the VA and several individual officers for handicap discrimination, breach of contract, intentional infliction of emotional distress, and negligence. See Def.'s Mot. Ex. 3. Judge Herbert J. Button dismissed the complaint for lack of proper service on December 7, 1989.New v. Turnage, No. 88-8705, 1989 WL 149944 (E.D. Pa. Dec. 7, 1989) (Hutton, J.), aff'd. No. 90-1087, slip. op. (3d Cir. June 29, 1990).
New filed a second complaint on April 25, 1990 that reasserted her claim for handicap discrimination. See Def.'s Mot. Ex. 6. Judge Hutton dismissed this complaint as untimely on November 1, 1990, and our Court of Appeals again upheld his decision. See New v. Derwinski, No. 90-2861, 1990 WL 171520 (E.D. Pa. Nov. 1, 1990) (Hutton, J.), aff'd, No. 90-1922, slip op. (3d Cir. Apr. 17, 1991).
On January 22, 1991, while New's case was pending in the Court of Appeals, the OWCP filed a final order denying benefits for the period after October 14, 1987 and determining that the effects of New's work-related injury had ceased as of October 2, 1990. See MSPB 0596. A few weeks later, New wrote to the VA to request reinstatement and restoration rights. On March 25, 1991, VA Director of Personnel Gerard Schweigert responded that New, in fact, had no restoration rights because the decision to remove her "was a final one and has been upheld by both Administrative Agencies and the Federal Courts." MSPB 0059. New again appealed to the MSPB, which ruled in the VA's favor in an initial decision dated August 12, 1991 that the full Board affirmed on April 10, 1992.
The Court of Appeals for the Federal Circuit has summarized the statutory scheme governing New's restoration rights as follows:
An agency's obligation to restore an individual to her last position or an equivalent position following her recovery from a compensable injury is defined at 5 U.S.C. § 8151 and its attendant regulations at 5 C.F.R. Part 353. . . . An employee who fully recovers within one year is entitled to return to her former position, or an equivalent one without condition. See 5 C.F.R. § 353.301(b). In contrast, when an employee's recovery from a compensable injury takes more than one year, as did Ms. New's, an agency is required only to accord the employee priority consideration for restoration to her former position or an equivalent. See 5 U.S.C. § 8151(b)(2); 5 C.F.R. § 353.303.New v. Dep't of Veterans Affairs, 142 F.3d 1259, 1261 (Fed. Cir. 1998).
On May 22, 1992, New filed a third complaint in this Court seeking review of the MSPB's decision and asserting new claims of discrimination, denial of due process, and retaliation.
In the course of a jury trial on December 6, 1993, Judge John P. Fullam directed a verdict for the VA, ruling from the bench that any possible handicap discrimination occurred when the VA fired New in 1987 and was barred by the doctrine of res judicata. Judge Fullam also ruled that any sexual harassment New experienced at the VA occurred in 1985, and "[i]t is much too late to file suit on that claim in 1992." New v. Brown, No. 92-2992, bench op., at 3-4 (E.D. Pa. Dec. 6, 1993). Finally, as to New's claim that the VA discriminated against her in denying her request for restoration rights, Judge Fullam ruled that New could not avoid the preclusive effect of Judge Button's second decision "by filing an application for reinstatement and then claiming that the failure to reinstate was a furtherance of the original discrimination on the basis of handicap." Judge Fullam deferred review of the MSPB's 1992 decision, but after examining the administrative record, he affirmed that decision on January 11, 1994. New v. Brown, No. 92-2992, bench op., at 4-5 (E.D. Pa. Jan. 11, 1994). New appealed Judge Fullam's rulings.
At the same time New was seeking redress in federal court, she was also pursuing a challenge to the OWCP's denial of compensation for the period from October 15, 1987 to October 2, 1990. See supra n. 2. On July 14, 1994, while New's case was pending in the Court of Appeals, the OWCP vacated an earlier decision and held that New was entitled to compensation through October 2, 1990. Upon the parties' joint request, the Court of Appeals vacated Judge Fullam's rulings in 1995 and directed him to remand the case to the MSPB to reconsider its 1991 denial of restoration rights in light of the OWCP's recent decision.
D. The MSPB's 1996 Decision and New's Fourth District Court Complaint (1995-1997)
___Pursuant to Judge Fullam's remand, the MSPB reopened New's restoration appeal. In proceedings before the Board, New argued that when the VA announced its proposed handicap accommodations and ordered her to return to work in October of 1987, it had failed to comply with regulations requiring the OWCP to determine the suitability of a position that an agency offers a partially disabled employee. See 20 C.F.R. § 10.124(c); Fed. Personnel Manual, ch. 820, subch. 8 ¶ 4. In the absence of such a determination, New argued, she feared returning to work on the terms the VA had set. Thus, the unexcused absences and purported insubordination that led to her removal — and, by extension, the removal itself — were all related to her compensable injury. And because under Board precedent an employee is entitled to restoration rights when the removal is the "result of her compensable injury or for reasons substantially related to her compensable injury," the Board had erred in 1991. New, 142 F.3d at 1261-62, quoting Wricrht v. United States Postal Serv., 62 M.S.P.R. 122, 128 (1994).
The MSPB upheld the VA's denial of restoration rights in a decision filed December 5, 1996. Rejecting New's argument in its entirety, the Board held that the VA was not obliged to await the OWCP's approval of its proposed handicap accommodations before ordering New to return to work. In view of its determination that New had no right to flaunt the VA's return-to-work order, the Board concluded that she had no restoration rights because her removal for AWOL and insubordination was not related to her compensable injury. However, the MSPB declined for lack of jurisdiction to address the issue of whether the VA had engaged in handicap discrimination in refusing to grant restoration rights to New. See New v. Dep't of Veterans Affairs, 72 M.S.P.R. 574, 591-96 (1996).
New responded to the Board's decision by returning to this Court on January 7, 1997. In addition to seeking review of the MSPB's decision, New's fourth action here asserted a Bivens claim for due process violations as well as claims for sex discrimination, handicap discrimination, and retaliation. In an October 21, 1997 decision, the late Judge Jay C. Waldman dismissed the petition for review on jurisdictional grounds. Judge Waldman also dismissed New's discrimination and retaliation claims because she had not exhausted administrative remedies, and he dismissed the Bivens claim with prejudice. New v. Brown, No. 97-125, 1997 WL 666173, at *8 (E.D. Pa. Oct. 21, 1997) (Waldman, J.).
E. The Court of Appeals for the Federal Circuit's Decision and the MSPB's Final Ruling (1998-1999)
After Judge Waldman dismissed New's case, she appealed the MSPB's 1996 decision to the Court of Appeals for the Federal Circuit. In a sharply worded decision lambasting the MSPB's approach to the case as "fundamentally flawed," the Federal Circuit agreed with New that, because the OWCP had never approved the VA's proposed handicap accommodations, she was justified in refusing to return to work in October of 1987. New, 142 F.3d at 1262. Thus, there was a sufficient nexus between New's removal and her compensable injury to entitle her to priority consideration for restoration, unless the VA had grounds to remove her for cause unrelated to her injury. Id. at 1265. The Court then noted that the MSPB had not ruled on whether the VA's alternative ground for removal — New's poor attendance record from 1984 onward — was related to her compensable injury, and it remanded the case to the Board to decide this question. Id.
On June 24, 1999, the MSPB found that New's removal for poor overall attendance was a valid cause for removal unrelated to her compensable injury. The Board reached this result by following a strictly quantitative approach to New's absences. Beginning with a calculation that the VA's initial charge of poor attendance had covered twenty-eight months, the Board then noted that the OWCP had awarded compensation for sixteen and one-half of those months. Subtracting the OWCP-compensated months — during which New's absences were arguably "related to" her injury within the meaning of the Federal Circuit's decision — the Board concluded that the VA had cause to remove New for her absenteeism during the remaining eleven and one-half months that were covered by the VA's initial charge but for which the OWCP had never awarded compensation. New, 82 M.S.P.R. at 615-616.
The periods covered by the charge were (1) May 29, 1984 to June 23, 1985, (2) May 6, 1986 to January 25, 1987, and (3) April 27, 1987 to December 4, 1987. See New v. Dep't of Veterans Affairs, 82 M.S.P.R. 609, 615 (1999).
The periods for which the OWCP awarded compensation were (1) May 29, 1984 to June 4, 1985, and (2) July 30, 1987 to December 4, 1987.See New, 82 M.S.P.R. at 615.
The MSPB ended by reaching the merits of New's claims that the VA had engaged in disability discrimination and retaliation when it denied her restoration request. After examining the record from New's 1991 restoration appeal hearing, the MSPB concluded that New had failed to state a prima facie case on either claim. Id. at 617-18.
At the hearing, New's counsel asked on direct examination why she believed she was the victim of discrimination and retaliation. She responded that, when she had called the agency to ask for restoration rights, VA Director of Personnel Gerard Schweigert had responded that the agency was denying her request "because of a prior litigated case." MSPB 0478-0479. The MSPB concluded that any such alleged comment could not be evidence of discrimination or retaliation as it merely reflected the VA's position that, in view of the decisions of the MSPB, Judge Hutton, and the Court of Appeals, New was not entitled to restoration rights because she had been removed for cause. See New, 72 M.S.P.R. at 617-618.
F. New's Instant Complaint and Petition for Review (1999-Present)
After the MSPB sustained the VA's denial of restoration rights, New filed her fifth action in this Court, a complaint and petition for review challenging the MSPB decision and stating claims for handicap discrimination (Count I), sexual harassment (Count II), and retaliation (Count III). Shortly after the VA filed the motion for summary judgment now before us, we placed the case in the Court's civil suspense docket because New filed an interlocutory appeal on February 28, 2001. The Court of Appeals ultimately dismissed the appeal for want of appellate jurisdiction.On May 12, 2003, after the case had languished in civil suspense for almost two years with no activity on New's part, we dismissed the complaint for lack of prosecution. New then filed a motion for reconsideration, which we granted, and New finally responded to the motion for summary judgment.
The VA's Motion for Summary Judgment
This action is a "mixed case" brought under 5 U.S.C. § 7703 (b)(2), which provides that judicial review lies in the district court in cases that involve both an agency personnel action normally appealable to the MSPB as well as claims of discrimination. See Washington v. Garrett, 10 F.3d 1421, 1428 (9th Cir. 1993). In a mixed case, the complainant is entitled to trial de novo on her discrimination claim. 5 U.S.C. § 7703(c). However, the district court may set aside the MSPB's resolution of any non-discrimination issues only if it is:
(1) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law;
(2) obtained without procedures required by law, rule, or regulation having been followed; or
(3) unsupported by substantial evidence.
Applying these two quite different standards of review, we begin by examining whether the VA is entitled to judgment on New's claims for sex discrimination, handicap discrimination, and retaliation. We will then review the MSPB's decision that New was removed in 1988 for a cause unrelated to her compensable injury.
A. The Sex Discrimination Claim
Count II of the complaint, which New styles as a claim for sexual harassment, asserts that the VA discriminated against her on the basis of sex "by removing her from her position and retaliating against her by refusing to grant her restoration and/or priority consideration." Compl. ¶ 61.
The VA argues that this claim is barred by New's failure to exhaust administrative remedies and, in any event, is greatly out of time. New has declined to respond to the VA's argument, but pursuant to Fed.R.Civ.P. 56(c) and LOG. R. Civ. P. 7.1(c), we may not grant this aspect of the VA's motion as uncontested. Nevertheless, we have thoroughly examined the record and conclude that the VA is entitled to judgment on this claim.
Under the provisions of Title VII governing federal employment, 42 U.S.C. § 2000e-16, a Government employee may bring a civil action for discrimination only after receipt of a final action by a department or the Equal Employment Opportunity Commission ("EEOC"). See § 2000e-16(c). In the alternative, a federal employee may present a discrimination claim in MSPB proceedings and then file a complaint in federal district court. See 5 U.S.C. § 7702(a)(1)(B) 7703(b)(2); see also Ballentine v. Merit Systems Protection Board, 738 F.2d 1244, 1246 (Fed. Cir. 1984) ("When an appeal has been taken to the MSPB, until the discrimination issue . . . [has] been decided on the merits by the MSPB, an appellant is granted no rights to a trial de novo in a civil action under [5 U.S.C.] § 7702 or § 7703.").
New never brought her sex discrimination claim before the EEOC or the MSPB, and the only administrative action in the record before us concerns a 1984 incident in which New filed a harassment grievance against her supervisor, Joseph Goodman. After an initial meeting between New, Goodman, and her union representative on December 21, 1984, the grievance was denied, and New declined to advance the grievance to the next step. See Def.'s Resp. to PI.'s Interrogatories, at 3 (Def.'s Mot. Ex. 20). Even if the disposition of this grievance could be deemed a "final action" under Title VII, it has no conceivable relation to New's removal in 1988 or the VA's denial of restoration rights in 1991. Finally, we agree with the VA that any claim for sexual harassment during her employment at the VA would be time-barred at this late date.
As we note above, Judge Fullam reached the identical conclusion in 1993. See supra, at 6-7. The Government has conceded that it would be inappropriate to grant res judicata effect to Judge Fullam's rulings in 1993-1994 because the Court of Appeals vacated his decisions upon the parties' joint request for remand to the MSPB. See Def.'s Mem. at 18.
We therefore enter judgment for the VA on Count II of the complaint.
B. The Handicap Discrimination and Retaliation Claims
Count I of the complaint asserts that the VA engaged in handicap discrimination in denying New's request for restoration in 1991, and Count III claims that the denial constituted retaliation for New's earlier engagement in protected activities. The VA challenges both Counts on the ground that the doctrine of claim preclusion bars them.
Claim preclusion bars a plaintiff from asserting a cause of action that could have been raised and decided in a prior suit. See Corestates Bank, N.A. v. Huls America, Inc., 176 F.3d 187, 194 (3d Cir. 1999); see also Mass. Sch. of Law at Andover, Inc. v. American Bar Ass'n, 142 F.3d 26, 38 (1st Cir. 1998) (noting that claim preclusion is inapplicable "if the claim asserted in the second suit could not have been asserted in the first."). For claim preclusion to apply, the defendant must show (1) a final judgment in a prior suit (2) involving the same parties or their privies and (3) a subsequent suit based on the same cause of action.Corestates Bank, 176 F.3d at 194. Our Court of Appeals has eschewed the traditional rule that the theories of liability in the two suits must be identical. Instead, the defendant must show that there is an "essential similarity of the underlying events giving rise to the various legal claims" arising from a "transaction," which can be defined as "a natural grouping or common nucleus of operative facts." Id., quoting Restatement (Second) of Judgments § 24 cmt. b (1982).
The VA argues that there are two final judgments precluding New's discrimination and retaliation claims, and we examine each in turn.
As we note above, the VA has properly conceded that it would be inappropriate to give preclusive effect to Judge Fullam's holdings on these claims because the Court of Appeals later vacated his judgments.See supra n. 7.
The VA first points to the MSPB's 1999 decision, which concluded that New had failed to state a prima facie case of discrimination or retaliation in the VA's denial of restoration rights. The MSPB engaged in a careful examination of the record and considered the identical issues New raises here. However, we cannot give this decision preclusive effect because it would subvert the statutory scheme governing appeals from MSPB decisions, a key element of which is that federal employees are entitled to come to district court and receive de novo reconsideration of discrimination claims. See 5 U.S.C. § 7703 (c).
The Government's other candidate for claim preclusion is Judge Button's 1990 decision, which dismissed New's second district court action as time-barred. See New, 1990 WL 171520, at *3. We have no difficulty with the proposition that a dismissal on timeliness grounds can bar a subsequent action. See Rose v. Town of Harwich, 778 F.2d 77, 80 (1st Cir. 1985) (surveying federal cases and discerning "a clear trend toward giving claim-preclusive effect to dismissals based on statutes of limitations"); see also Williamson v. Columbia Gas Elec. Corp., 186 F.2d 464, 466-467 (3d Cir. 1950). However, as the VA has recognized, the problem with applying this principle here is that the case before Judge Button stated a claim for handicap discrimination in New's 1988 removal, whereas her current discrimination and retaliation claim focus on the VA's denial of restoration rights. See Def.'s Mem. at 19.
The Government strenuously argues that Judge Button's decision nevertheless bars these claims. It reasons that the 1991 denial of restoration rights was so closely connected to its 1988 removal decision that they should be deemed a single nucleus of operative facts for preclusion purposes. This argument has much force, especially in view of the MSPB's 1999 finding that New had failed to refute the VA's position that Schweigert denied restoration rights based solely on his judgment that New had been removed for cause. See New, 82 M.S.P.R. at 617-18.
It would nevertheless be inappropriate to give preclusive effect to Judge Button's 1990 decision. As we note above, a prior decision does not bar a subsequent claim where the plaintiff could not have asserted it in the earlier proceeding. This principle is dispositive here since New could not assert a discrimination or retaliation claim based on the denial of restoration rights before 1991, when she unsuccessfully requested those rights from the VA.
We acknowledge the important principle that claim preclusion bars a later-filed suit where the plaintiff "sits on his rights" by waiting until an adverse ruling before laying the procedural foundations for a new, slightly different claim. See, e.g., Churchill v. Star Enterprises, 183 F.3d 184, 191 (3d Cir. 1999) (plaintiff's ADA claim barred where she refrained from requesting EEOC right to sue letter until termination of related FMLA suit). Indeed, it was this concern that prompted Judge Fullam to rule in 1993 that New could not "get a new bite at the apple by filing an application for reinstatement and then claiming that the failure to reinstate was a furtherance of the original discrimination on the basis of handicap." New v. Brown, No. 92-2992, bench op., at 4.
With the benefit of the voluminous record this case has generated since Judge Fullam's 1993 ruling, we conclude that New had good reason to wait until 1991 to seek restoration rights. As the MSPR has noted, New's restoration request was governed by the Federal Personnel Manual issued February 24, 1988, which provided that:
Restoration rights . . . are keyed to eligibility for compensation. Thus, the cessation of compensation indicates a determination by [the OWCP] that the individual is fully recovered and able to resume regular employment. This, in turn, triggers the restoration rights obligation for fully recovered employees.
Fed. Personnel Manual, ch. 353, subch. 2-4 (Feb. 24, 1988) (MSPB 0789-93); see also New, 72 M.S.P.R. at 587-88 (discussing Federal Personnel Manual provisions).
Given the centrality of OWCP determinations in the vesting of restoration rights, it would appear that New had good reason to refrain from seeking such rights until January 22, 1991, when the OWCP decided that the effects of her compensable injury had ceased as of October 2, 1990. We therefore conclude that it would be inappropriate to penalize New with the Draconian consequences of claim preclusion merely because she waited until after Judge Button's 1990 dismissal to assert the restoration rights that constitute the crux of her current claims.
Although we deny the Government's motion, we are not blind to the fact that the MSPB examined the record surrounding the denial of New's restoration rights and decided that she had failed even to state a prima facie case of discrimination and retaliation. In view of these findings, it may be pointless to put the parties to the expense and inconvenience of trial, and we therefore grant the VA leave to renew its motion for summary judgment on the record. See Whitford v. Boglino, 63 F.3d 527, 530 (7th Cir. 1995) (noting that the denial of summary judgment is an interlocutory order and that district courts may allow a party to file a successive motion advancing a stronger legal argument). Once the case is in a procedural posture that focuses on the merits of New's discrimination and retaliation claims, New will have the opportunity to point to any evidence supporting these claims that the MSPB either overlooked in 1999 or that came to light during discovery in this case.
C. The MSPB's Validation of the 1988 Removal
New's petition for review challenges the MSPB's determination that the VA had cause to remove her in 1988 for reasons unrelated to her compensable injury. As we note above, the MSPB used the award of OWCP benefits as evidence that New's absences during a particular time were related to her compensable injury, and the Board then concluded that the VA was justified in removing New for her absenteeism in two periods for which she never obtained OWCP benefits: May 6, 1986 to January 25, 1987, and April 27, 1987 to July 30, 1987. See New, 82 M.S.P.R. at 615.
We have no quarrel with the MSPB's essentially quantitative strategy for resolving this issue. We are, however, concerned that the MSPB too readily concluded from the lack of OWCP benefits for the period from May 1986 to January 1987 that New's absences during this time were unrelated to her compensable injury. The MSPB has already found that the VA removed New in January of 1987 for injury-related absenteeism, and it is likely that she abandoned any claim to compensation for the May 1986-January 1987 period by entering into the 1987 settlement agreement. See New v. Veterans Administration, No. PH7528810219, mem. op., at 2 (M.S.P.B. June 30, 1988) (Def.'s Mot. Ex. 2) (noting that the removal was "based on attendance related problems, generally arising out of claimed work related injuries."). Under these circumstances, it is arguable that New's failure to obtain OWCP benefits for this period does not actually mean that her absences were unrelated to her compensable injury within the meaning of the Federal Circuit's remand order.
In applying the "arbitrary and capricious" standard of review, a court must "consider whether the decision was based on a consideration of the relevant factors and whether there has been a clear error of judgment" and should "uphold a decision of less than ideal clarity if the agency's path may reasonably be discerned." Bowman Transp., Inc. v. Arkansas-Best Freight System, Inc., 419 U.S. 281, 285 (1974), quoting Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402, 416 (1971) Colorado Interstate Gas Co. v. FPC, 324 U.S. 581, 595 (1945).
New cogently argued in the 1995-1996 MSPB proceedings that her 1986 absences were covered by the 1987 settlement agreement. See MSPB 1087-89. It is possible that she would have prevailed in 1999 if the MSPB had excluded these absences from its calculus, as even the VA must concede that New's work attendance in the summer of 1987 (the only other period the Board took into consideration) falls short of abysmal.
It is unclear whether New reasserted this argument in the 1998-1999 remand proceedings because the MSPB has omitted her brief from the official record. See MSPB 1126.
It is unclear how much time New took off from work during these months. The VA claims that New used 75 hours of leave between April 27, 1987 and July 29, 1987. Def.'s Mem. at 5. New responds that "THE DEFENDANT HAS ZERO (0) ABSENCES TO SUPPORT ITS SECOND CHARGE, POOR OVERALL ATTENDANCE." Def.'s Resp. at 2 (capitalized in original);see also id. at 15.
Because the MSPB failed in 1999 even to acknowledge this important contention, we cannot determine whether its decision was based on a consideration of all the relevant factors. We therefore hold that the decision was arbitrary and capricious, and at the conclusion of the proceedings on New's discrimination and retaliation claims, we will remand this action to the MSPB to reconsider its decision that New's Sremoval for absenteeism was unrelated to her compensable injury.
We decline to express an opinion on whether the MSPB can take New's 1986 absences into consideration in determining whether the VA removed her for cause. See Bowman, 419 U.S. at 285 (noting that in exercising arbitrary and capricious review, "[t]he court is not empowered to substitute its judgment for that of the agency.").