Margaret M. Reed v. Department of Veterans Affairs

2014 MSPB 85

• Court: Merit Systems Protection Board
• Decided: November 25, 2014
• Status: Published

Opinion

UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD 2014 MSPB 85

Docket No. CH-1221-13-1557-W-1

Margaret M. Reed, Appellant, v. Department of Veterans Affairs, Agency. November 25, 2014

John R. Folkerth, Jr., Esquire, and Kenneth J. Heisele, Esquire, Dayton, Ohio, for the appellant.

Demetrious A. Harris, Esquire, Dayton, Ohio, for the agency.

BEFORE

Susan Tsui Grundmann, Chairman Anne M. Wagner, Vice Chairman Mark A. Robbins, Member

OPINION AND ORDER

¶1 The appellant has filed a petition for review of the initial decision that dismissed her individual right of action (IRA) appeal for lack of jurisdiction. For the reasons discussed below, we GRANT the petition for review and REMAND the case to the regional office for further adjudication in accordance with this Opinion and Order.

BACKGROUND ¶2 In this whistleblower appeal, the appellant alleges that the agency took various personnel actions, including a 3-day suspension, against her in retaliation 2

for disclosures that she made concerning violations of its procedures in the handling of her administrative grievance. The facts, as the appellant alleges them, are as follows. ¶3 The appellant is a Human Resources Specialist (Employee Relations) for the agency. Initial Appeal File (IAF), Tab 5, Subtab 4A. On February 13, 2012, the Assistant Chief of Human Resources issued the appellant an admonishment for disrespectful conduct toward her supervisor. IAF, Tab 4 at 8-10 of 70. The appellant filed an informal grievance, challenging the factual basis of the admonishment. 1 Id. at 34-40 of 70. On April 9, 2012, the Assistant Chief denied the grievance. Id. at 41 of 70. ¶4 On April 18, 2012, the appellant filed a formal grievance, again challenging the factual basis for the admonishment. Id. at 42-49 of 70. On May 14, 2012, the Chief of Human Resources denied the appellant’s formal grievance and the appellant requested that a grievance examiner be appointed. Id. at 51 of 70. ¶5 The agency appointed a grievance examiner, and on June 20, 2012, the grievance examiner issued a memorandum to the Chief recommending that the grievance be denied. Id. at 52 of 70. Citing the examiner’s findings and recommendations, the Chief again informed the appellant that her grievance was denied. 2 Id. at 53 of 70. ¶6 On June 22, 2012, the appellant emailed the Medical Center Director and informed him of what she believed to be a “futile grievance process.” Id. at 54 of

1 The appellant filed this grievance under administrative—not negotiated—grievance procedures. See IAF, Tab 4 at 63 of 70. The appellant is not part of a collective bargaining unit because the nature of her position excludes coverage. IAF, Tab 5, Subtab 2. 2 The Chief’s second grievance decision was dated June 28, 2012, but the appellant was aware of the grievance examiner’s findings and recommendations on June 20, 2012, the date they were issued. IAF, Tab 4 at 53-54 of 70. 3

70. She stated that the allegations underlying the admonishment were untrue and that the agency should have conducted further fact finding. Id. The appellant requested to meet with the Director to discuss the matter. Id. The Chief and the Assistant Chief then threatened to discipline the appellant if she went through with the meeting. ¶7 On July 26, 2012, the appellant sent an email to the Director and the Chief, again complaining of the grievance process. 3 Id. at 56 of 70. She stated that management ignored the factual disputes that she raised and failed to make any additional factual inquiries as required by agency policy. Id. She stated that the agency thereby violated her due process rights. Id. The appellant met with the Director on August 29, 2012. Id. at 4, 58 of 70. She told the Director that the admonishment itself was an unwarranted personnel action taken without due process. Id. at 4 of 70. She also told the Director that, in retaliation for her filing the grievance, the Chief and the Assistant Chief failed to follow the administrative grievance procedures by denying her the opportunity for an oral response and failing to conduct any fact finding, thus denying her due process in the context of her grievance. Id. ¶8 On October 4, 2012, the Chief proposed to suspend the appellant for 3 days based on complaints from three different agency officials who had sought the appellant’s advice on various personnel matters. IAF, Tab 5, Subtab 4C. These complaints were lodged on August 15, 2012, August 24, 2012, and October 1, 2012, respectively, and related that the appellant was unhelpful and rude. Id., Subtabs 4C-4F. After the appellant responded, IAF, Tab 4 at 9-13 of 17, on October 26, 2012, the Chief issued a decision effecting the 3-day suspension, IAF, Tab 5, Subtab 4B. In issuing this discipline, the Chief considered, among

3 Two other individuals were copied on the email. IAF, Tab 4 at 56 of 70. The record does not indicate the positions of these individuals, and the appellant does not allege that they had any role in any personnel actions against her. 4

other things, the appellant’s January 12, 2012 admonishment, which could have been removed from her file 6 months after its issuance, but which the Assistant Chief elected not to remove. IAF, Tab 4 at 9 of 70, 15 of 33, Tab 5, Subtab 4B at 1, Subtab 4C at 3. ¶9 The appellant filed a complaint with the Office of Special Counsel (OSC), alleging that the 3-day suspension was in reprisal for her disclosures to the Director. IAF, Tab 4 at 8-24 of 33. After OSC closed the appellant’s file without taking corrective action, the appellant filed the instant IRA appeal and requested a hearing. IAF, Tab 1 at 6, Tab 4 at 31-32 of 33. The parties submitted evidence and argument on the jurisdictional issue, and the administrative judge issued an initial decision dismissing the appeal for lack of jurisdiction. 4 IAF, Tab 16, Initial Decision (ID). She found that the appellant failed to make a nonfrivolous allegation that she made a protected disclosure and that the appellant’s grievance itself was not protected activity covered under the Whistleblower Protection Enhancement Act (WPEA). ID at 6-10. ¶10 The appellant has filed a petition for review, arguing that the administrative judge erred in finding that her disclosures were not protected. According to the appellant, they evidenced numerous abuses of authority and violations of law and agency policy concerning the grievance process and the underlying admonishment itself. Petition for Review (PFR) File, Tab 1. The agency has responded in opposition to the petition for review, PFR File, Tab 3, and the appellant has filed a reply to the agency’s response, PFR File, Tab 4.

4 The initial decision states that corrective action was denied, thus suggesting that the disposition was on the merits. IAF, Tab 16, Initial Decision at 2, 10. However, the substance of the decision makes clear that the administrative judge actually dismissed the appeal for lack of jurisdiction. 5

ANALYSIS ¶11 Generally, to establish jurisdiction over an IRA appeal regarding activity protected under 5 U.S.C. § 2302(b)(8), an appellant must prove that she exhausted her administrative remedies before OSC and make nonfrivolous allegations that (1) she engaged in whistleblowing activity by making a protected disclosure under 5 U.S.C. § 2302(b)(8), and (2) the disclosure was a contributing factor in the agency’s decision to take or fail to take a personnel action as defined by 5 U.S.C. § 2302(a). Yunus v. Department of Veterans Affairs, 242 F.3d 1367, 1371 (Fed. Cir. 2001); Rusin v. Department of the Treasury, 92 M.S.P.R. 298, ¶ 12 (2002).

This appeal involves four personnel actions. ¶12 We find that the appellant identified alleged “personnel actions” that do not fall within the protection of the WPEA. These include the denial of several procedural protections during the grievance process and various actions and procedures leading up to the 3-day suspension. IAF, Tab 4 at 5-6 of 70. As to the alleged denials of procedural protections during the grievance process, the appellant asserted that these were in retaliation for her filing the grievance. Id. at 5 of 70. We do not reach the issue of whether these allegations amount to personnel actions because, as the administrative judge correctly found, the filing of a grievance, which does not itself seek to remedy whistleblower reprisal, is not a protected disclosure under the WPEA. 5 ID at 9-10; see Mudd v. Department of Veterans Affairs, 120 M.S.P.R. 365, ¶¶ 6-7 (2013) (citing 5 U.S.C. § 2302(b)(9)(A)(i)); see also 5 U.S.C. §§ 1221, 1214 (containing the codified version of the statute at large cited in the Mudd decision as section 101(b)(1)(A) of the WPEA). Concerning the several matters surrounding the appellant’s 3-day

5 We have reviewed both the formal and the informal grievances, and we find that they do not contain allegations of whistleblower reprisal. IAF, Tab 4 at 34-40, 42-49 of 70. 6

suspension, we find that the actions that the appellant identifies related to the Chief’s handling and consideration of her response do not amount to “personnel actions” under 5 U.S.C. § 2302(a)(2)(A). IAF, Tab 4 at 6 of 70. ¶13 Nevertheless, we find that the appellant identified four alleged personnel actions over which the Board might have jurisdiction in the context of this appeal: (1) the proposed 3-day suspension, (2) the decision to sustain the 3-day suspension, (3) the refusal to remove the admonishment from the appellant’s personnel file, and (4) the threats to discipline the appellant for meeting with the Director. Specifically, the proposed 3-day suspension and the 3-day suspension itself constituted a threatened disciplinary action and a disciplinary action, respectively. See 5 U.S.C. § 2302(a)(2)(iii). We also find that the Assistant Chief’s alleged refusal to remove the admonishment from the appellant’s Official Personnel File constituted a failure to take a personnel action under these circumstances. The admonishment itself was a personnel action, Cochran v. Department of Veterans Affairs, 67 M.S.P.R. 167, 174 (1995), and the letter of admonishment indicated that it would remain in the appellant’s Official Personnel File for 6 months or up to 2 years, depending on her future behavior and attitude, IAF, Tab 4 at 9 of 70. The Assistant Chief’s decision to retain the admonishment in the appellant’s file beyond 6 months could have, and did in fact have, an adverse consequence in a future disciplinary action—the 3-day suspension. IAF, Tab 5, Subtab 4B at 1, Subtab 4C at 3; cf. Johnson v. Department of Health & Human Services, 93 M.S.P.R. 38, ¶ 16 (2002) (finding that an admonishment was a personnel action, in part, because the agency could rely on it for penalty enhancement in future discipline). Finally, we find that the appellant has made a nonfrivolous allegation that the Chief and the Assistant Chief threatened her with 7

a personnel action on or about July 26, 2012, by threatening to discipline her for meeting with the Director. 6 IAF, Tab 4 at 6 of 70, 15 of 33.

The appellant failed to nonfrivolously allege that she made a protected disclosure that was a contributing factor in the decision to take a personnel action. ¶14 On review, the appellant has identified a large number of alleged irregularities in the grievance process. These include that the Chief was not a proper deciding official for the grievance, PFR File, Tab 1 at 7, 14, 25-26; the grievance examiner was not properly qualified, id. at 7, 15-17, 25-28; the appellant was not timely informed of the grievance examiner’s appointment, id. at 16-17; the agency failed to create a grievance file and an examiner’s final report, id. at 16-17, 29; the informal grievance did not notify the appellant of her right to file a formal grievance, id. at 13; and the Assistant Chief tried to dissuade the appellant from filing a formal grievance, id. These allegations are not properly before the Board because the appellant has not alleged that they were in reprisal for any disclosure. An IRA appeal is not the appropriate forum to collaterally attack the agency’s internal process for resolving discipline; the Board’s jurisdiction is limited to adjudicating claims of whistleblower reprisal. See McCarthy v. International Boundary & Water Commission, 116 M.S.P.R. 594, ¶ 27 (2011) (declining to consider the appellant’s arguments of constitutional and statutory violations in connection with his termination in the context of an IRA appeal), aff’d, 497 F. App’x 4 (Fed. Cir. 2012), cert. denied, 134 S. Ct. 386 (2013). Moreover, the appellant has raised these arguments for the first time on review without explaining why she did not raise them below. See Avansino v. U.S. Postal Service, 3 M.S.P.R. 211, 214 (1980) (the Board will generally not consider evidence submitted for the first time with the petition for review absent

6 We find that the appellant exhausted her administrative remedies with respect to these alleged personnel actions. IAF, Tab 4 at 15, 20-22 of 33. 8

a showing that it was unavailable before the record was closed despite the party’s due diligence). ¶15 In response to the administrative judge’s jurisdictional order, the appellant identified the following disclosures: (1) the June 22, 2012 email to the Director complaining about the grievance process and requesting an in-person meeting, with a follow-up email of June 25, 2012, containing grievance-related documents, IAF, Tab 4 at 3-4, 54 of 70; (2) a July 24, 2012 email to the Director requesting to meet with him about the grievance process, id. at 4, 55 of 70; (3) a July 26, 2012 email to the Director complaining about the grievance process and informing him that the appellant still wished to meet with him, id. at 4, 56 of 70; (4) an August 7, 2012 email to the Assistant Chief informing her that the appellant had a meeting scheduled with the Director, id. at 4, 58 of 70; (5) the August 29, 2012 meeting with the Director complaining about the admonishment and the grievance process, id., at 4 of 70; and (6) the October 9, 2012 complaint to OSC, id. at 4 of 70, 8-24 of 33. ¶16 Regarding the June 22, 2012 email to the Director, the appellant contends that her email disclosed that the Assistant Chief and the Chief of Human Resources had repeatedly failed to follow VA Handbook 5021. IAF, Tab 4 at 4 of 70. We find that the appellant made a nonfrivolous allegation that she reasonably believed that her email disclosed information that evidenced a violation of law, rule, or regulation. See Czarkowski v. Department of the Navy, 87 M.S.P.R. 107, ¶ 11 (2000). Accordingly, we find that the appellant has made a nonfrivolous allegation that her June 22, 2012 email to the Director constituted a protected disclosure. However, the appellant has failed to nonfrivolously allege that this disclosure was a contributing factor in her 3-day suspension because she has not alleged that the Chief or the Assistant Chief, who were responsible for the alleged personnel actions described above, knew about the email or its contents. IAF, Tab 4 at 4, 54 of 70. 9

¶17 Regarding the July 24, 2012 email, we find that the appellant failed to nonfrivolously allege that this was a protected disclosure because it did not disclose any information. Id. at 55 of 70. It was merely a request to meet with the Director. Id. ¶18 Regarding the July 26, 2012 email, the appellant alleged that the agency deprived her of due process in the context of her grievance because it failed to address the factual dispute that she raised and failed to conduct a proper factual inquiry. Id. We agree with the administrative judge that the appellant has failed to make a nonfrivolous allegation that she reasonably believed that the agency’s assessment of the evidence constituted a violation of agency rule, an abuse of authority, or any other type of wrongdoing under 5 U.S.C. § 2302(b)(8)(A). ID at 7-9. Contrary to the appellant’s assertions, the formal grievance decisions, one by the Chief and the other by the grievance examiner, both made specific findings that the charges were “fully supported by the evidence.” IAF, Tab 4 at 51-53 of 70. The agency’s assessment of the evidence is lacking in detail, and the appellant may disagree with its conclusion, but we find that her assertion that the factual dispute was never acknowledged is patently incorrect. PFR File, Tab 1 at 6, 12, 24-25, 27. ¶19 We also agree with the administrative judge that the appellant has failed to identify any rule that would require the agency to conduct any further fact finding investigation beyond the evidence that the appellant and management had already submitted. ID at 7-8. We have reviewed the relevant excerpt of VA Handbook 5021, and we find that it provides for a preliminary inquiry but states that further investigation “may be warranted” depending on the nature and seriousness of the incident. IAF, Tab 4 at 64 of 70. We therefore cannot agree with the appellant that the agency somehow violated this portion of VA Handbook 5021. PFR File, Tab 1 at 5-6, 10-11, 14. For these reasons, we agree with the administrative judge that the appellant failed to make a nonfrivolous allegation that she 10

reasonably believed that this disclosure evidenced an abuse of discretion or a violation of law, rule, or regulation. ID at 7-9. ¶20 In any event, we also find that the appellant failed to nonfrivolously allege that the July 26, 2012 email was a contributing factor in any personnel actions taken against the appellant. 7 The Chief was one of the recipients of this disclosure. IAF, Tab 4 at 56 of 70. Therefore, he was undoubtedly aware of it. The appellant, however, has not alleged that the Assistant Chief was aware of this disclosure. Thus, the appellant has failed to meet her jurisdictional burden with respect to it. ¶21 Regarding the August 7, 2012 email to the Assistant Chief, we find that the appellant failed to nonfrivolously allege that this was a protected disclosure because the only information contained in that email is the fact that the appellant had a meeting scheduled with the Director. IAF, Tab 4 at 58 of 70. This email did not disclose wrongdoing of any sort. ¶22 Regarding the August 29, 2013 meeting with the Director, the appellant contends that she disclosed during the meeting agency violations of VA Handbook 5021. IAF, Tab 4 at 4 of 70. We find that the appellant made a nonfrivolous allegation that she reasonably believed that these disclosures evidenced a violation of law, rule, or regulation. See Czarkowski, 87 M.S.P.R. 107, ¶ 11. In any event, she has failed to make a nonfrivolous allegation that they 7 We note that the WPEA instructs that a denial of a request for corrective action on the basis that the agency established its affirmative defense may only be made “after a finding that a protected disclosure was a contributing factor.” 5 U.S.C. § 1221(e)(2); see Clarke v. Department of Veterans Affairs, 121 M.S.P.R. 154, ¶ 19 n.10 (2014); Belyakov v. Department of Health & Human Services, 120 M.S.P.R. 326, ¶ 7 n.3 (2013). Nothing in the WPEA, however, precludes the Board from considering, at the jurisdictional stage, whether the appellant made a nonfrivolous allegation that the disclosure was a contributing factor in the agency’s decision to take or fail to take a personnel action, even in the absence of a finding that she made a nonfrivolous allegation that the disclosure was protected. 11

were a contributing factor in the personnel actions at issue. She has not alleged that either the Chief or the Assistant Chief were aware of what transpired during the meeting or of any particular disclosures that the appellant might have made. ¶23 Regarding the appellant’s October 9, 2012 complaint to OSC, we find that the appellant made a nonfrivolous allegation that her complaint was protected by 5 U.S.C. § 2302(b)(8)(B)(i). Prior to the enactment of the WPEA, that section stated, in pertinent part, that it is a prohibited personnel practice to take or fail to take, or threaten to take or fail to take, a personnel action concerning any employee “because of . . . any disclosure to the Special Counsel” of information that the employee reasonably believes evidences “a violation of any law, rule, or regulation.” 8 5 U.S.C. § 2302(b)(8)(B)(i)(2011); Colbert v. Department of Veterans Affairs, 121 M.S.P.R. 677, ¶ 8 (2014). In her complaint to OSC, the appellant disclosed alleged agency violations of VA Handbook 5021. IAF, Tab 4 at 8-24 of 33. We find that the appellant has made a nonfrivolous allegation that she reasonably believed that she disclosed a violation of a law, rule, or regulation to OSC. See Colbert, 121 M.S.P.R. 677, ¶ 8. ¶24 The appellant, however, has again failed to make a nonfrivolous allegation that this disclosure was a contributing factor to any of the personnel actions at issue. The OSC complaint postdates the threatened discipline for meeting with the Director, the failure to remove the admonishment from the appellant’s Official Personnel File, and the proposed suspension. IAF, Tab 4 at 8, 15 of 33, Tab 5, Subtab 4C at 1. Therefore, it could not have been a contributing factor in these actions. See Johnson v. Department of Justice, 104 M.S.P.R. 624, ¶ 26

8 The WPEA went into effect on December 27, 2012, after the appellant’s October 9, 2012 complaint to OSC. Colbert v. Department of Veterans Affairs, 121 M.S.P.R. 677, ¶ 6 (2014). The only change that the WPEA made to 5 U.S.C. § 2302(b)(8)(B)(i) is that it struck “a violation” and inserted “any violation (other than a violation of this section).” Colbert, 121 M.S.P.R. 677, ¶ 8 n.3. We have considered this amendment and find that it does not change the result in this case. See id. 12

(2007). The only personnel action to which this disclosure could possibly have been a contributing factor was the October 26, 2012 suspension decision. IAF, Tab 4B at 1. However, the appellant has not alleged that the Chief was aware of her OSC complaint at the time he rendered his decision; therefore, there is no basis for the Board to conclude that this disclosure was a contributing factor.

This appeal is remanded for the appellant to have an opportunity to make a nonfrivolous allegation that she was perceived as a whistleblower. ¶25 Under certain circumstances, an appellant can establish jurisdiction over an IRA appeal without making a nonfrivolous allegation that she made a protected disclosure. Specifically, an individual who is perceived as a whistleblower is still entitled to the whistleblower protections, even if she has not made protected disclosures. King v. Department of the Army, 116 M.S.P.R. 689, ¶ 6 (2011); Special Counsel v. Department of the Navy, 46 M.S.P.R. 274, 278-80 (1990). For the following reasons, we find that the appellant’s submissions below warrant an analysis under this theory. ¶26 Although there is no indication that the Chief or the Assistant Chief were aware of any specific disclosures that the appellant might have made during her August 29, 2012 meeting with the Director, the appellant alleged that they were very resistant to the notion that she should have such a meeting, even to the point of threatening to discipline her for it. IAF, Tab 4 at 15 of 33. She further claimed that these threats were contrary to the Director’s “open door policy.” Id. at 14 of 33. Absent from the appellant’s allegations, however, is any indication that the opposition to her meeting with the Director was due to the Chief’s and Assistant Chief’s perception that the appellant was going to make protected disclosures during that meeting, or if it was due to some other reason. See King, 116 M.S.P.R. 689, ¶ 8 (in cases involving perceived whistleblowing, the Board will focus its analysis on the agency’s perceptions, i.e., whether the agency officials involved in the personnel actions at issue believed that the appellant made or intended to make disclosures that evidenced the type of wrongdoing 13

listed under 5 U.S.C. § 2302(b)(8)). Therefore, the appellant has not yet made a nonfrivolous allegation that the agency perceived her as a whistleblower or that this perception was a contributing factor in a personnel action. ¶27 Nevertheless, the administrative judge did not give the appellant explicit notice of how to establish jurisdiction over an IRA appeal as a perceived whistleblower, and the defect was not corrected by the agency’s submissions or by the initial decision. See Burgess v. Merit Systems Protection Board, 758 F.2d 641, 643-44 (Fed. Cir. 1985); King, 116 M.S.P.R. 689, ¶ 11. Because the nature of the appellant’s claim below suggested that she may be attempting to argue that she was a perceived whistleblower, and because she has not received notice of how to establish jurisdiction under such a theory, we find it appropriate to remand this appeal for the appellant to receive such notice and for further development of the record on this issue. 9 On remand, the administrative judge may adopt in her new initial decision her prior findings related to the appellant’s claim that she was retaliated against for actual whistleblowing activity.

ORDER ¶28 For the reasons discussed above, we REMAND this case to the regional office for further adjudication in accordance with this Remand Order.

FOR THE BOARD:

______________________________ William D. Spencer Clerk of the Board Washington, D.C.

9 We find that the appellant’s allegations to OSC were sufficient to satisfy the exhaustion requirement for this issue. IAF, Tab 4 at 14-16 of 33.