Opinion

Duc V Le v. Department of Veterans Affairs

Court: Merit Systems Protection Board
Filed: Jul 1, 2024
Status: Unpublished
Cited by: 0 cases
Authority: More cited than 30.0%

The opinion

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

DUC V. LE, DOCKET NUMBER

Appellant, CH-1221-19-0060-W-1

DEPARTMENT OF VETERANS DATE: July 1, 2024

AFFAIRS,

Agency.

THIS FINAL ORDER IS NONPRECEDENTIAL 1

Lori Liddell , Tomah, Wisconsin, for the appellant.

John Jakubiak , Esquire, Milwaukee, Wisconsin, 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.

FINAL ORDER

The appellant has filed a petition for review of the initial decision, which

dismissed his individual right of action (IRA) appeal for lack of jurisdiction.

Generally, we grant petitions such as this one only in the following

A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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).

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

find that the appellant exhausted his administrative remedies with the Office of

Special Counsel (OSC) and made a nonfrivolous allegation that he engaged in

protected activity under 5 U.S.C. § 2302(b)(9)(C), we AFFIRM the initial

decision.

BACKGROUND

The appellant, a GS-13 Pharmacist, filed a Board appeal alleging that the

agency retaliated against him for his whistleblowing activities and disclosures. 2

Initial Appeal File (IAF), Tab 1 at 5-6, 8. The administrative judge issued an

order providing the appellant with his burden of establishing Board jurisdiction

over an IRA appeal. IAF, Tab 3. The appellant did not respond to the order.

The appellant also indicated on his Board appeal form that he was appealing a

negative suitability determination. Initial Appeal File, Tab 1 at 4. Because the nature

of the appellant’s appeal was unclear, the administrative judge docketed a separate

adverse action appeal. The administrative judge issued an initial decision dismissing

the appeal for lack of jurisdiction. Le v. Department of Veterans Affairs, MSPB Docket

No. CH-3443-19-0061-I-1, Initial Decision (Nov. 28, 2018). The appellant filed a

petition for review and the Board issued a Final Order denying the petition and

affirming the initial decision. Le v. Department of Veterans Affairs, MSPB Docket

No. CH-3443-19-0061-I-1, Final Order (Apr. 8, 2024).

Thereafter, the administrative judge issued an initial decision dismissing

the appeal for lack of jurisdiction. IAF, Tab 7, Initial Decision (ID). The

administrative judge found that it appeared that the appellant was alleging that

the agency failed to grant him a reasonable accommodation because he filed a

report with the agency’s Office of Inspector General (OIG) and an equal

employment opportunity (EEO) complaint. ID at 3. The administrative judge

found that the appellant failed to nonfrivolously allege that any of his disclosures

or activities were protected. ID at 4-5. In particular, the administrative judge

found that the Whistleblower Protection Enhancement Act of 2012 (WPEA) 3 only

extends protection to an OIG report or EEO complaint if such a report or

complaint was filed with regard to remedying a violation of the disclosures listed

under 5 U.S.C. § 2302(b)(8). ID at 4. The administrative judge found that the

appellant’s EEO complaint and OIG report did not seek to remedy a violation

under this section and, accordingly, were not protected. ID at 4-5. In addition,

the administrative judge found that the appellant failed to exhaust his

administrative remedies with OSC. ID at 6. In relevant part, the administrative

judge found that the appellant did not identify what he reported to the agency’s

OIG or the nature of his EEO complaint. Id.

The appellant timely filed a petition for review. Petition for Review (PFR)

File, Tab 1. The agency has not filed a response.

DISCUSSION OF ARGUMENTS ON REVIEW

To establish jurisdiction in an IRA appeal, an appellant generally must

show by preponderant evidence that he exhausted his administrative remedies

before OSC and make nonfrivolous allegations that (1) he made a disclosure

Pursuant to the WPEA, effective December 27, 2012, Congress expanded the grounds

on which an appellant may file an IRA appeal with the Board. Rebstock Consolidation

v. Department of Homeland Security, 122 M.S.P.R. 661, ¶ 5 (2015). Because all of the

material events in this appeal occurred after December 27, 2012, the WPEA applies to

this appeal. The relevant holdings of pre-WPEA case law that we have cited in this

decision have not been affected by the WPEA.

described under 5 U.S.C. § 2302(b)(8) or engaged in a protected activity

described under 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D), and (2) the

disclosure or protected activity 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).

Corthell v. Department of Homeland Security, 123 M.S.P.R. 417, ¶ 8 (2016),

overruled on other grounds by Requena v. Department of Homeland Security ,

2022 MSPB 39. A nonfrivolous allegation is an assertion that, if proven, could

establish the matter at issue. 5 C.F.R. § 1201.4(s).

The appellant has proven exhaustion of his OSC remedies by

preponderant evidence.

The Board, in Chambers v. Department of Homeland Security, 2022 MSPB

8, ¶¶ 10-11, clarified the substantive requirements of exhaustion. The

requirements are met when an appellant has provided OSC with a sufficient basis

to pursue an investigation. The Board’s jurisdiction is limited to those issues that

were previously raised with OSC. However, appellants may give a more detailed

account of their whistleblowing activities before the Board than they did to OSC.

Id. Appellants may demonstrate exhaustion through their initial OSC complaint;

evidence that they amended the original complaint, including but not limited to

OSC’s determination letter and other letters from OSC referencing any amended

allegations; and, their written responses to OSC referencing the amended

allegations. Id. Appellants also may establish exhaustion through other

sufficiently reliable evidence, such as an affidavit or a declaration attesting that

they raised with OSC the substance of the facts in the Board appeal. Id.

Here, for the first time on review, the appellant submits his initial OSC

complaint and his email correspondence with OSC. PFR File, Tab 1 at 7-22,

36-38. The issue of the Board’s jurisdiction is always before the Board and may

be raised by either party or sua sponte by the Board at any time during a Board

proceeding. Simnitt v. Department of Veterans Affairs, 113 M.S.P.R. 313, ¶ 5

(2010). Thus, we will consider the appellant’s OSC complaint and his email

correspondence with OSC as jurisdictional evidence. See id., ¶¶ 5, 9 (remanding

the appellant’s IRA appeal for adjudication based on evidence of OSC exhaustion

submitted for the first time on review).

In his OSC complaint, the appellant alleged that he filed a report with the

OIG on October 29, 2017, and an EEO complaint on October 26, 2017. PFR File,

Tab 1 at 14. He further stated that he reported in his EEO complaint that the

agency failed to follow Office of Diversity and Inclusion guidelines and the

Americans with Disabilities Act. Id. at 15. It appears that, in response to an

email from an OSC attorney requesting further information, id. at 37-38, the

appellant provided the OSC attorney with email correspondence between himself

and an EEO counselor, id. at 20-36, 67-85. In his correspondence regarding his

EEO complaint, the appellant alleged, inter alia, that the agency violated his

privacy, denied his reasonable accommodation requests, and treated him

disparately from his coworkers. Id. at 67.

The appellant contended in his initial OSC complaint that he suffered

personnel actions on June 8 and October 23, 2017. Id. at 15. In response to an

email from an OSC attorney requesting that the appellant describe what took

place on those dates, id. at 37-38, the appellant stated that his

reasonable accommodation requests were denied, id. at 20. He alleged that the

agency also denied his reasonable accommodation requests on January 31,

April 13, August 1, September 1, and November 24, 2017. Id. at 20-21.

Based on the foregoing, we find that the appellant exhausted these claims

with OSC. Although, as noted above, the administrative judge stated that the

appellant did not describe the content of his report to the OIG, it is unnecessary

for us to determine this issue at the jurisdictional stage. ID at 6; Fisher v.

Department of the Interior, 2023 MSPB 11, ¶ 8 & n.1. Under the broadly

worded provision of 5 U.S.C. § 2302(b)(9)(C), disclosures of information to an

agency’s OIG are protected regardless of their content, as long as such

disclosures are made “in accordance with applicable provisions of law.” Fisher,

2023 MSPB 11, ¶ 8. Accordingly, we find that the appellant exhausted these

claims before OSC and modify the initial decision accordingly.

The appellant has made a nonfrivolous allegation that he engaged in protected

activity under 5 U.S.C. § 2302(b)(9)(C).

Next, we turn to the issue of whether the appellant made a nonfrivolous

allegation of a protected disclosure under 5 U.S.C. § 2302(b)(8) or engaged in

protected activity described under 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).

See Corthell, 123 M.S.P.R. 417, ¶ 8. The Board has long held that reprisal for

filing an EEO complaint is a matter relating solely to discrimination and is not

protected by 5 U.S.C. § 2302(b)(8). Williams v. Department of Defense,

46 M.S.P.R. 549, 554 (1991). Despite expanding the scope of whistleblower

protection in other ways, the WPEA has not altered the long -standing

administrative and judicial interpretation that Title VII -related claims are

excluded from protection under the whistleblower statutes. Edwards v.

Department of the Labor, 2022 MSPB 9, ¶ 22, aff’d, No. 22-1967 (Fed. Cir.

July 7, 2023).

Rather, reprisal for exercising an EEO right is a prohibited personnel

practice under 5 U.S.C. § 2302(b)(9). Linder v. Department of Justice,

122 M.S.P.R. 14, ¶¶ 7, 10 (2014); Williams, 46 M.S.P.R. at 553. As relevant in

this case, under 5 U.S.C. § 2302(b)(9)(A), it is a protected activity to exercise

“any appeal, complaint, or grievance right granted by any law, rule, or regulation

—(i) with regard to remedying a violation of [5 U.S.C. § 2302(b)(8)]; or (ii) other

than with regard to remedying a violation of [5 U.S.C. § 2302(b)(8)].” However,

of the two provisions, an employee or applicant for employment may seek

corrective action from the Board only for protected activity under 5 U.S.C.

§ 2302(b)(9)(A)(i). 5 U.S.C. § 1221(a); Edwards, 2022 MSPB 9, ¶ 24.

Here, the administrative judge found that the appellant’s EEO complaint

did not seek to remedy alleged whistleblower reprisal under section 2302(b)(8).

ID at 4-5. We have reviewed the appellant’s newly submitted evidence pertaining

to his EEO complaint and discern no basis for disturbing this finding on review.

Thus, the administrative judge correctly found that the appellant failed to

nonfrivolously allege that he engaged in protected activity under

5 U.S.C. § 2302(b)(9)(A)(i). See Edwards, 2022 MSPB 9, ¶ 25 (finding that the

appellant failed to show that he engaged in protected activity under

section 2302(b)(9)(A)(i) when his complaints to the agency’s EEO office did not

seek to remedy alleged whistleblower reprisal).

However, we find that the appellant engaged in protected activity when he

disclosed information to the agency’s OIG. Under 5 U.S.C. § 2302(b)(9)(C), an

employee engages in protected activity when he cooperates with or discloses

information to an agency’s OIG, in accordance with applicable provisions of law.

Fisher, 2023 MSPB 11, ¶ 8. Contrary to the administrative judge’s statement in

the initial decision, there is no requirement that the appellant’s disclosure to the

OIG seek to remedy whistleblower reprisal. See id.; ID at 6. Here, the appellant

has nonfrivolously alleged that he engaged in protected activity under

section 2302(b)(9)(C) by filing a complaint with the agency’s OIG. Because the

administrative judge found that the appellant failed to make a nonfrivolous

allegation that he engaged in protected activity, we modify the initial decision to

reflect that the appellant nonfrivolously alleged that he engaged in protected

activity under section 2302(b)(9)(C). However, as discussed below, any such

error by the administrative judge did not prejudice the appellant’s substantive

rights because the appellant nonetheless failed to establish jurisdiction over his

IRA appeal. See Panter v. Department of the Air Force, 22 M.S.P.R. 281, 282

(1984) (an adjudicatory error that is not prejudicial to a party's substantive rights

provides no basis for reversal of an initial decision).

The appellant has failed to nonfrivolously allege that his protected activity was a

contributing factor in a personnel action.

As noted above, to establish jurisdiction over an IRA appeal, the appellant

must nonfrivolously allege that he engaged in protected activity that was a

contributing factor in a personnel action. Corthell, 123 M.S.P.R. 417, ¶ 8. To

satisfy the contributing factor criterion at the jurisdictional stage, an appellant

need only raise a nonfrivolous allegation that his protected activity was one factor

that tended to affect the personnel action in any way. See Mudd v. Department of

Veterans Affairs, 120 M.S.P.R. 365, ¶ 10 (2013). One way to establish this

criterion is the knowledge-timing test, under which an employee may

nonfrivolously allege that the protected activity was a contributing factor in a

personnel action through circumstantial evidence, such as evidence that the

official taking the personnel action knew of the protected activity, and that the

personnel action occurred within a period of time such that a reasonable person

could conclude that the protected activity was a contributing factor in the

personnel action. Id. An appellant also may show that the protected activity was

a contributing factor by proving that the official taking the action had

constructive knowledge of the protected activity, even if the official lacked actual

knowledge. See Nasuti v. Department of State, 120 M.S.P.R. 588, ¶ 7 (2014).

As set forth above, the appellant alleged that the agency failed to approve

his accommodation requests on January 31, April 13, June 8,

August 1, September 1, October 23, and November 24, 2017. PFR File, Tab 1

at 15, 20-21. The appellant filed his OIG complaint on October 29, 2017. Id.

at 14. Thus, the appellant’s OIG complaint could not have been a contributing

factor in the agency’s failure to approve his reasonable accommodation requests

on January 31, April 13, June 8, August 1, September 1, and October 23, 2017.

See Johnson v. Department of Justice, 104 M.S.P.R. 624, ¶ 26 (2007) (disclosures

made after the agency has already taken the personnel actions at issue cannot

have been contributing factors in the personnel actions and do not support a

nonfrivolous allegation that the disclosures were contributing factors in the

personnel actions).

Regarding the agency’s alleged denial of his reasonable accommodation

request on November 24, 2017, the appellant has failed to nonfrivolously allege

that any agency official involved in the denial of his request had actual or

constructive knowledge of his OIG complaint. Thus, the appellant has failed to

nonfrivolously allege that his OIG report was a contributing factor in the

agency’s November 24, 2017 denial of his reasonable accommodation request

under the knowledge-timing test. See Mudd, 120 M.S.P.R. 365, ¶ 10.

However, the knowledge-timing test is not the only way an appellant can

establish that his protected disclosures were a contributing factor in the agency’s

decision to take a personnel action against him. The Board has held that, if an

appellant has failed to satisfy the knowledge-timing test, it shall consider other

evidence, such as evidence pertaining to the strength or weakness of the agency’s

reasons for taking the personnel action, whether the whistleblowing activity was

personally directed at the officials in question, and whether they had a desire or

motive to retaliate against the appellant. See Dorney v. Department of the Army,

117 M.S.P.R. 480, ¶ 15 (2012).

We first consider the strength or weakness of the agency’s reasons for

denying the appellant’s November 24, 2017 reasonable accommodation request.

See id. The appellant merely alleges, without supporting evidence or argument,

that, on November 24, 2017, his “reasonable accommodation requests for

5 minute[] breaks as needed was denied by the inappropriate [Designated

Management Official (DMO)].” PFR File, Tab 1 at 20. The appellant’s

unsubstantiated and vague allegations fail to raise a material issue about the

weakness of the agency’s reasons for denying his November 24, 2017 reasonable

accommodation request. See also Dorney, 117 M.S.P.R. 480, ¶ 18 (finding that

the appellant satisfied the contributing factor criterion at the jurisdictional stage

by, among other things, raising a material issue about the strength or weakness of

the agency’s reasons for the personnel action at issue). As previously noted, the

appellant has the burden of establishing jurisdiction over his IRA appeal, which

includes the burden of meeting the contributing factor requirement. See Corthell,

123 M.S.P.R. 417, ¶ 8 (setting forth the appellant’s burden of establishing

jurisdiction over an IRA appeal).

Next, we turn to the issue of whether the whistleblowing activity was

personally directed at the officials in question. See Dorney, 117 M.S.P.R. 480,

¶ 15. While the appellant does not specify who the DMO was in respect to the

November 24, 2017 denial of his reasonable accommodation request, he refers to

the Medical Center Director as the DMO when describing other denials of his

reasonable accommodation requests. PFR File, Tab 1 at 20. The appellant’s

October 29, 2017 OIG report mentioned the Medical Center Director and alleges

that she had improperly appointed herself as DMO. Id. at 39. Therefore, there is

evidence that the appellant’s whistleblowing activity was directed towards at least

one of agency officials involved in the November 24, 2017 denial of his

reasonable accommodation request.

However, we discern no other evidence that could indicate that the Medical

Center Director had a motive or desire to retaliate against the appellant. There is

no evidence that the Medical Center Director was embarrassed or inconvenienced

by the appellant’s OIG complaint. According to the appellant, the Medical

Center Director had denied at least some of his other reasonable accommodation

requests prior to his OIG complaint. Id. at 20. Thus, we find that, to the extent

the appellant’s OIG complaint created a retaliatory motive for the Medical Center

Director, any such retaliatory motive was slight. Weighing the factors set forth

above, we find that the appellant failed to nonfrivolously allege that his protected

activity was a contributing factor in the November 24, 2017 denial of his

reasonable accommodation request.

The appellant has therefore failed to establish jurisdiction over his IRA

appeal. We therefore affirm the initial decision dismissing the appeal for lack of

jurisdiction, except as modified as set forth above.

NOTICE OF APPEAL RIGHTS 4

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:

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.

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

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

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. 5 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