UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD
JESSICA L. OETZEL, DOCKET NUMBER Appellant, DC-1221-21-0518-W-1
v.
DEPARTMENT OF THE NAVY, DATE: February 29, 2024 Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Neil C. Bonney , Esquire, Virginia Beach, Virginia, for the appellant.
William Fuller Stoddard , Esquire, and Debra Mosley Evans , Portsmouth, Virginia, for the agency.
BEFORE
Cathy A. Harris, Vice Chairman Raymond A. Limon, Member
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which denied corrective action in her Individual Right of Action appeal . Generally, we grant petitions such as this one only in the following circumstances: the initial decision contains erroneous findings of material fact; the initial decision is based on an erroneous interpretation of statute or regulation 1 A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case law. Parties may cite nonprecedential orders, but such orders have no precedential value; the Board and administrative judges are not required to follow or distinguish them in any future decisions.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
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. 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. Except to MODIFY the administrative judge’s analysis of the second of the factors set forth in Carr v. Social Security Administration, 185 F.3d 1318, 1323 (Fed. Cir. 1999), we AFFIRM the initial decision.
DISCUSSION OF ARGUMENTS ON REVIEW In denying the appellant’s request for corrective action, the administrative judge found that the appellant’s report of a missed inspection on a propeller shaft constituted a protected disclosure of a violation of an agency rule or regulation, and that the appellant established that her disclosure was a contributing factor in a personnel action, i.e., her transfer to a different project. Initial Appeal File (IAF), Tab 28, Initial Decision (ID) at 3-7. Nevertheless, the administrative judge found, pursuant to an analysis of the Carr factors, that the agency proved by clear and convincing evidence that it would have transferred the appellant absent her disclosure. Specifically, the administrative judge found that there was strong evidence in support of the appellant’s transfer, that the officials who transferred the appellant were not motivated by retaliation, and that the agency also transferred similarly situated individuals who were not whistleblowers. ID 3
at 8-11. On review, the appellant challenges the administrative judge’s findings regarding each of the Carr factors. 2 Petition for Review File, Tab 1. We find that the appellant’s claims on review regarding the administrative judge’s analysis of the first and third Carr factors do not warrant disturbing the initial decision. However, we modify the administrative judge’s analysis of the second Carr factor to find that the evidence shows that one of the two officials responsible for the appellant’s transfer, the welding shop Surface Craft Director, had a motive to retaliate against the appellant due to her disclosure. The administrative judge failed to acknowledge in the initial decision that the Surface Craft Director was the appellant’s third-level supervisor at the time of her disclosure and was also responsible for welding operations on propeller shafts at the shipyard. IAF, Tab 18 at 67, Tab 26, Hearing Recording (HR) (testimony of the Surface Craft Director). The administrative judge also failed to credit undisputed documentary evidence and witness testimony establishing that the missed inspection which the appellant disclosed required 104 man hours of work —excluding lifting and transporting the shaft—to remedy, and delayed refurbishing operations on the shaft by approximately 1 week. IAF, Tab 11 at 20-23; HR (testimony of the Mechanical Engineer). It is fair to infer that the appellant’s disclosure of the welding shop’s failure to adhere to proper procedure, as well as the consequences of that failure, reflected poorly on the Surface Craft Director in his capacity as manager of shaft welding and thus established some retaliatory motive on his part. See Carr, 185 F.3d at 1322-23 (finding motive to retaliate based on criticisms of the management of the office for which the acting official had responsibility); Chavez v. Department of Veterans Affairs,
2 In determining whether an agency has shown by clear and convincing evidence that it would have taken the same personnel action in the absence of whistleblowing, the Board will consider the following factors: (1) the strength of the agency’s evidence in support of its action; (2) the existence and strength of any motive to retaliate on the part of the agency officials who were involved in the decision; and (3) any evidence that the agency takes similar actions against employees who are not whistleblowers but who are otherwise similarly situated. Carr, 185 F.3d at 1323. 4
120 M.S.P.R. 285, ¶ 33 (2013) (finding that an appellant’s criticisms reflecting on her managers’ capacities as managers and employees was sufficient to establish a substantial retaliatory motive). Nevertheless, considering the totality of the evidence relevant to the Carr factors, the agency still proved by clear and convincing evidence that it would have taken the same action absent the appellant’s disclosure. On balance, the Surface Craft Director’s inferred motive to retaliate does not outweigh the strength of the agency’s reasons for transferring the appellant—particularly her expertise at reviewing welding documentation—as well as of the agency’s evidence of its routine transfer of welding shop work leaders who were not whistleblowers. HR (testimony of the Surface Craft Director, testimony of the Submarine Director). In sum, the appellant’s claims on review thus do not justify disturbing the administrative judge’s conclusion that she is not entitled to corrective action.
NOTICE OF APPEAL RIGHTS 3 The initial decision, as supplemented by this Final Order, constitutes the Board’s final decision in this matter. 5 C.F.R. § 1201.113. You may obtain review of this 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).
Free access — add to your briefcase to read the full text and ask questions with AI
UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD
JESSICA L. OETZEL, DOCKET NUMBER Appellant, DC-1221-21-0518-W-1
v.
DEPARTMENT OF THE NAVY, DATE: February 29, 2024 Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Neil C. Bonney , Esquire, Virginia Beach, Virginia, for the appellant.
William Fuller Stoddard , Esquire, and Debra Mosley Evans , Portsmouth, Virginia, for the agency.
BEFORE
Cathy A. Harris, Vice Chairman Raymond A. Limon, Member
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which denied corrective action in her Individual Right of Action appeal . Generally, we grant petitions such as this one only in the following circumstances: the initial decision contains erroneous findings of material fact; the initial decision is based on an erroneous interpretation of statute or regulation 1 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
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. 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. Except to MODIFY the administrative judge’s analysis of the second of the factors set forth in Carr v. Social Security Administration, 185 F.3d 1318, 1323 (Fed. Cir. 1999), we AFFIRM the initial decision.
DISCUSSION OF ARGUMENTS ON REVIEW In denying the appellant’s request for corrective action, the administrative judge found that the appellant’s report of a missed inspection on a propeller shaft constituted a protected disclosure of a violation of an agency rule or regulation, and that the appellant established that her disclosure was a contributing factor in a personnel action, i.e., her transfer to a different project. Initial Appeal File (IAF), Tab 28, Initial Decision (ID) at 3-7. Nevertheless, the administrative judge found, pursuant to an analysis of the Carr factors, that the agency proved by clear and convincing evidence that it would have transferred the appellant absent her disclosure. Specifically, the administrative judge found that there was strong evidence in support of the appellant’s transfer, that the officials who transferred the appellant were not motivated by retaliation, and that the agency also transferred similarly situated individuals who were not whistleblowers. ID 3
at 8-11. On review, the appellant challenges the administrative judge’s findings regarding each of the Carr factors. 2 Petition for Review File, Tab 1. We find that the appellant’s claims on review regarding the administrative judge’s analysis of the first and third Carr factors do not warrant disturbing the initial decision. However, we modify the administrative judge’s analysis of the second Carr factor to find that the evidence shows that one of the two officials responsible for the appellant’s transfer, the welding shop Surface Craft Director, had a motive to retaliate against the appellant due to her disclosure. The administrative judge failed to acknowledge in the initial decision that the Surface Craft Director was the appellant’s third-level supervisor at the time of her disclosure and was also responsible for welding operations on propeller shafts at the shipyard. IAF, Tab 18 at 67, Tab 26, Hearing Recording (HR) (testimony of the Surface Craft Director). The administrative judge also failed to credit undisputed documentary evidence and witness testimony establishing that the missed inspection which the appellant disclosed required 104 man hours of work —excluding lifting and transporting the shaft—to remedy, and delayed refurbishing operations on the shaft by approximately 1 week. IAF, Tab 11 at 20-23; HR (testimony of the Mechanical Engineer). It is fair to infer that the appellant’s disclosure of the welding shop’s failure to adhere to proper procedure, as well as the consequences of that failure, reflected poorly on the Surface Craft Director in his capacity as manager of shaft welding and thus established some retaliatory motive on his part. See Carr, 185 F.3d at 1322-23 (finding motive to retaliate based on criticisms of the management of the office for which the acting official had responsibility); Chavez v. Department of Veterans Affairs,
2 In determining whether an agency has shown by clear and convincing evidence that it would have taken the same personnel action in the absence of whistleblowing, the Board will consider the following factors: (1) the strength of the agency’s evidence in support of its action; (2) the existence and strength of any motive to retaliate on the part of the agency officials who were involved in the decision; and (3) any evidence that the agency takes similar actions against employees who are not whistleblowers but who are otherwise similarly situated. Carr, 185 F.3d at 1323. 4
120 M.S.P.R. 285, ¶ 33 (2013) (finding that an appellant’s criticisms reflecting on her managers’ capacities as managers and employees was sufficient to establish a substantial retaliatory motive). Nevertheless, considering the totality of the evidence relevant to the Carr factors, the agency still proved by clear and convincing evidence that it would have taken the same action absent the appellant’s disclosure. On balance, the Surface Craft Director’s inferred motive to retaliate does not outweigh the strength of the agency’s reasons for transferring the appellant—particularly her expertise at reviewing welding documentation—as well as of the agency’s evidence of its routine transfer of welding shop work leaders who were not whistleblowers. HR (testimony of the Surface Craft Director, testimony of the Submarine Director). In sum, the appellant’s claims on review thus do not justify disturbing the administrative judge’s conclusion that she is not entitled to corrective action.
NOTICE OF APPEAL RIGHTS 3 The initial decision, as supplemented by this Final Order, constitutes the Board’s final decision in this matter. 5 C.F.R. § 1201.113. You may obtain review of this 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 this final decision, you should immediately review the law applicable to your claims and carefully follow all filing time limits and requirements. Failure to file
3 Since the issuance of the initial decision in this matter, the Board may have updated the notice of review rights included in final decisions. As indicated in the notice, the Board cannot advise which option is most appropriate in any matter. 5
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: 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. 6
(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 this 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 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: 7
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 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. 4 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).
4 The original statutory provision that provided for judicial review of certain whistleblower claims by any court of appeals of competent jurisdiction expired on December 27, 2017. The All Circuit Review Act, signed into law by the President on July 7, 2018, permanently allows appellants to file petitions for judicial review of MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals for the Federal Circuit or any other circuit court of appeals of competent jurisdiction. The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195, 132 Stat. 1510. 8
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 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: ______________________________ Gina K. Grippando Clerk of the Board Washington, D.C.