UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD
YVONNE ROUGH, DOCKET NUMBER Appellant, DE-1221-21-0078-W-1
v.
DEPARTMENT OF VETERANS DATE: December 23, 2024 AFFAIRS, Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Georgia A. Lawrence , Esquire, and Shaun Southworth , Esquire, Atlanta, Georgia, for the appellant.
Jason Halper , Tucson, Arizona, for the appellant.
Karl Lynch , Esquire, Garland, Texas, for the agency.
BEFORE
Cathy A. Harris, Chairman Raymond A. Limon, Vice Chairman Henry J. Kerner, Member*
*Member Kerner recused himself and did not participate in the adjudication of this appeal.
1 A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case law. Parties may cite nonprecedential orders, but such orders have no precedential value; the Board and administrative judges are not required to follow or distinguish them in any future decisions.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
FINAL ORDER
The appellant has filed a petition for review of the initial decision in this individual right of action (IRA) appeal, which denied her request for corrective action because the appellant failed to establish that she actually made the disclosure that she alleged. On petition for review, the appellant argues that the administrative judge erred in finding that she failed to prove that she made her purported disclosure. 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 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 as expressly MODIFIED to VACATE the administrative judge’s finding that the agency established that it would have terminated the appellant during her probationary period despite her purported protected disclosure, we AFFIRM the initial decision. The administrative judge found that the appellant failed to show by preponderant evidence that she made a protected disclosure. Initial Appeal File (IAF), Tab 26, Initial Decision (ID) at 8-16. The administrative judge also found that the appellant failed to show that her purported disclosure was a contributing factor in the agency’s decision to terminate her during her probationary period. 2
2 To the extent that the administrative judge considered the appellant’s motivation in making a purported disclosure and discounted her testimony because of its self-serving 3
ID at 16-19. We agree with the administrative judge, and the appellant’s arguments on review provide no reason to disturb the initial decision. However, despite the appellant’s failure to establish a prima face case of retaliation, the administrative judge proceeded to make findings on whether the agency had proved by clear and convincing evidence that it would have terminated the appellant in the absence of her alleged protected activity. ID at 19-28. An administrative judge only reaches the agency’s burden to prove that it would have taken the same action absent the appellant’s protected activity after the appellant has met her burden to establish a prima facie case. See Scoggins v. Department of the Army, 123 M.S.P.R. 592, ¶ 28 (2016). Given her correct finding that the appellant failed to prove her prima facie case, it was inappropriate for the administrative judge to determine whether the agency proved by clear and convincing evidence that it would have taken the same action absent the appellant’s alleged whistleblowing. See Clarke v. Department of Veterans Affairs, 121 M.S.P.R. 154, ¶ 19 n.10 (2014) (stating that the Board may not proceed to the clear and convincing evidence test unless it has first determined that the appellant established his prima facie case), aff’d, 623 F. App’x 1016 (Fed. Cir. 2015), disagreed with on other grounds by Delgado v. Merit Systems Protection Board, 880 F.3d 913 (7th Cir. 2018). Accordingly, we vacate the administrative judge’s findings that the agency proved by clear and convincing evidence that it would still have terminated the appellant absent her alleged whistleblowing.
nature, doing so was error. ID at 11. An employee’s motivation for making a disclosure does not render that disclosure unprotected. 5 U.S.C. § 2302(f)(1)(C). Moreover, the Board has observed that most testimony by an appellant can be described as self-serving, but that is not a basis to discredit the testimony. Thompson v. Department of the Army, 122 M.S.P.R. 372, ¶ 25 (2015). We have carefully considered the record evidence and find that it supports the administrative judge’s conclusion even in the absence of the finding regarding the appellant’s motivation and the self-serving nature of her testimony. 4
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 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.
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UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD
YVONNE ROUGH, DOCKET NUMBER Appellant, DE-1221-21-0078-W-1
v.
DEPARTMENT OF VETERANS DATE: December 23, 2024 AFFAIRS, Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Georgia A. Lawrence , Esquire, and Shaun Southworth , Esquire, Atlanta, Georgia, for the appellant.
Jason Halper , Tucson, Arizona, for the appellant.
Karl Lynch , Esquire, Garland, Texas, for the agency.
BEFORE
Cathy A. Harris, Chairman Raymond A. Limon, Vice Chairman Henry J. Kerner, Member*
*Member Kerner recused himself and did not participate in the adjudication of this appeal.
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
FINAL ORDER
The appellant has filed a petition for review of the initial decision in this individual right of action (IRA) appeal, which denied her request for corrective action because the appellant failed to establish that she actually made the disclosure that she alleged. On petition for review, the appellant argues that the administrative judge erred in finding that she failed to prove that she made her purported disclosure. 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 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 as expressly MODIFIED to VACATE the administrative judge’s finding that the agency established that it would have terminated the appellant during her probationary period despite her purported protected disclosure, we AFFIRM the initial decision. The administrative judge found that the appellant failed to show by preponderant evidence that she made a protected disclosure. Initial Appeal File (IAF), Tab 26, Initial Decision (ID) at 8-16. The administrative judge also found that the appellant failed to show that her purported disclosure was a contributing factor in the agency’s decision to terminate her during her probationary period. 2
2 To the extent that the administrative judge considered the appellant’s motivation in making a purported disclosure and discounted her testimony because of its self-serving 3
ID at 16-19. We agree with the administrative judge, and the appellant’s arguments on review provide no reason to disturb the initial decision. However, despite the appellant’s failure to establish a prima face case of retaliation, the administrative judge proceeded to make findings on whether the agency had proved by clear and convincing evidence that it would have terminated the appellant in the absence of her alleged protected activity. ID at 19-28. An administrative judge only reaches the agency’s burden to prove that it would have taken the same action absent the appellant’s protected activity after the appellant has met her burden to establish a prima facie case. See Scoggins v. Department of the Army, 123 M.S.P.R. 592, ¶ 28 (2016). Given her correct finding that the appellant failed to prove her prima facie case, it was inappropriate for the administrative judge to determine whether the agency proved by clear and convincing evidence that it would have taken the same action absent the appellant’s alleged whistleblowing. See Clarke v. Department of Veterans Affairs, 121 M.S.P.R. 154, ¶ 19 n.10 (2014) (stating that the Board may not proceed to the clear and convincing evidence test unless it has first determined that the appellant established his prima facie case), aff’d, 623 F. App’x 1016 (Fed. Cir. 2015), disagreed with on other grounds by Delgado v. Merit Systems Protection Board, 880 F.3d 913 (7th Cir. 2018). Accordingly, we vacate the administrative judge’s findings that the agency proved by clear and convincing evidence that it would still have terminated the appellant absent her alleged whistleblowing.
nature, doing so was error. ID at 11. An employee’s motivation for making a disclosure does not render that disclosure unprotected. 5 U.S.C. § 2302(f)(1)(C). Moreover, the Board has observed that most testimony by an appellant can be described as self-serving, but that is not a basis to discredit the testimony. Thompson v. Department of the Army, 122 M.S.P.R. 372, ¶ 25 (2015). We have carefully considered the record evidence and find that it supports the administrative judge’s conclusion even in the absence of the finding regarding the appellant’s motivation and the self-serving nature of her testimony. 4
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 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:
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
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.
(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 6
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: 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 7
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). 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.
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
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.