Opinion

Thomas J Baylor v. Department of Veterans Affairs

Court: Merit Systems Protection Board
Filed: Jul 2, 2024
Status: Unpublished
Cited by: 0 cases
Authority: More cited than 30.2%

The opinion

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

THOMAS J. BAYLOR, DOCKET NUMBER

Appellant, DC-1221-19-0493-W-1

DEPARTMENT OF VETERANS DATE: July 2, 2024

AFFAIRS,

Agency.

THIS FINAL ORDER IS NONPRECEDENTIAL 1

Thomas J. Baylor , Hampton, Virginia, pro se.

Amanda E. Shaw , Roanoke, Virginia, for the agency.

BEFORE

Cathy A. Harris, Chairman

Raymond A. Limon, Vice Chairman

Henry J. Kerner, Member*

*Member Kerner did not participate in the adjudication of this appeal.

FINAL ORDER

¶1 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

circumstances: the initial decision contains erroneous findings of material fact;

A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

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

supplement the administrative judge’s analysis regarding whether the appellant

nonfrivolously alleged that the single disclosure he exhausted with the Office of

Special Counsel (OSC) was a contributing factor in his termination, and to

VACATE the administrative judge’s alternative findings that the appellant failed

to nonfrivolously allege that he was perceived as a whistleblower and that such

perception was a contributing factor in his termination, we AFFIRM the initial

decision.

BACKGROUND

¶2 The appellant was a WG-02 Housekeeping Aid with the agency. Initial

Appeal File (IAF), Tab 5 at 10. Effective December 15, 2018, the agency

terminated him during his probationary period. Id. at 10-13. The appellant filed

a complaint with OSC on January 8, 2019. IAF, Tab 1 at 12-25. In his OSC

complaint, the appellant alleged that he made a disclosure to the Executive

Assistant to the Associate Director (EAAD) on December 6, 2018, about his

first-line supervisor’s abuse of power and abusive conduct toward staff. Id. at 19.

He also indicated in his OSC complaint that he asked the Environmental

Management Services (EMS) Chief to move him to the day shift, but that this

request was denied. Id. On April 25, 2019, OSC closed its investigation into the

appellant’s complaint. Id. at 31.

¶3 This appeal followed. IAF, Tab 1. In her order on jurisdiction and proof

requirements, the administrative judge informed the appellant of how to establish

the Board’s jurisdiction over his IRA appeal, including how to establish

jurisdiction over his appeal based on a claim that the agency perceived him to be

a whistleblower. IAF, Tab 3. In response, the appellant alleged the following,

among other things: (1) his first-line supervisor’s mistreatment of female staff

rose to the level of sexual harassment; (2) in November 2018, when he requested

that the EMS Chief move him to the day shift, he also told him about his

supervisor’s abusive behavior, and the conversation therefore constituted a

protected disclosure; and (3) even if his disclosures to the EAAD and EMS Chief

were not protected, he was perceived as a whistleblower. IAF, Tab 8 at 6-7.

¶4 Thereafter, the administrative judge issued an initial decision dismissing the

IRA appeal for lack of jurisdiction. IAF, Tab 14, Initial Decision (ID). The

administrative judge found that the appellant exhausted his administrative

remedies regarding his disclosure to the EAAD, but that he failed to establish

exhaustion regarding both making a disclosure to the EMS Chief and being

perceived as a whistleblower. ID at 4-5. The administrative judge further found

that the appellant failed to nonfrivolously allege that his disclosure to the EAAD

was protected because the appellant’s allegations regarding his first-line

supervisor’s alleged abuse of power and abusive behavior were conclusory,

vague, and unsupported. ID at 5-6. The administrative judge also noted that

allegations of sex discrimination and sexual harassment are not protected

disclosures. ID at 6.

¶5 The administrative judge alternatively found that, because the appellant

failed to nonfrivolously allege that the officials involved in his termination were

aware of his disclosure or otherwise perceived him to be a whistleblower, the

appellant failed to nonfrivolously allege that he was perceived as a whistleblower

and that, if such perception existed, it was a contributing factor in his

termination. ID at 7. Moreover, the administrative judge found that the appellant

failed to nonfrivolously allege that his disclosure to the EAAD was a contributing

factor in the agency’s decision to remove him. ID at 7-8. Accordingly, the

administrative judge dismissed the appellant’s IRA appeal for lack of jurisdiction.

ID at 9.

¶6 The appellant timely filed a petition for review, in which he merely asserts

that he was retaliated against. Petition for Review (PFR) File, Tab 1. The agency

has filed a response opposing the petition. PFR File, Tab 4.

DISCUSSION OF ARGUMENTS ON REVIEW

¶7 Generally, the Board has jurisdiction over an IRA appeal if the appellant

has exhausted his administrative remedies before OSC and makes nonfrivolous

allegations that (1) he made a protected disclosure described 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), 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). Salerno v. Department of the Interior,

123 M.S.P.R. 230, ¶ 5 (2016); see 5 U.S.C. §§ 1214(a)(3), 1221(e)(1). Under

certain circumstances, however, an appellant can establish jurisdiction over an

IRA appeal without making a nonfrivolous allegation that he made a protected

disclosure. King v. Department of the Army, 116 M.S.P.R. 689, ¶ 6 (2011).

Specifically, an individual who is perceived as a whistleblower is still entitled to

the protections of the Whistleblower Protection Act, as amended by the

Whistleblower Protection Enhancement Act of 2012 (WPEA), even if he has not

made protected disclosures or engaged in protected activity. Id.; Corthell v.

Department of Homeland Security, 123 M.S.P.R. 417, ¶¶ 12-13 (2016), overruled

on other grounds by Requena v. Department of Homeland Security , 2022 MSPB

39. To establish the Board’s jurisdiction over a claim of retaliation for being

perceived as a whistleblower, the appellant must show that he exhausted his

administrative remedies with OSC and make nonfrivolous allegations that (1) the

agency perceived him as making or intending to make a whistleblowing

disclosure, or engaging in or intending to engage in a protected activity, and

(2) the agency’s perception was a contributing factor in its decision to take or not

take the personnel action at issue. See Corthell, 123 M.S.P.R. 417, ¶¶ 12-13;

Rumsey v. Department of Justice, 120 M.S.P.R. 259, ¶ 8 (2013).

The appellant exhausted his administrative remedies regarding his disclosure to

the EAAD, but he failed to exhaust his remedies regarding his disclosure to the

EMS Chief and his claim of being perceived as a whistleblower.

¶8 Under 5 U.S.C. § 1214(a)(3), an appellant is required to “seek corrective

action from [OSC] before seeking corrective action from the Board” through an

IRA appeal. Chambers v. Department of Homeland Security, 2022 MSPB 8, ¶ 10.

To satisfy this requirement, an appellant must provide to OSC a sufficient basis to

pursue an investigation that might lead to corrective action. Id. The purpose of

the exhaustion requirement is to give OSC “the opportunity to take corrective

action before involving the Board in the case.” Ward v. Merit Systems Protection

Board, 981 F.2d 521, 526 (Fed. Cir. 1992).

¶9 In his OSC complaint, the appellant alleged that he met with the EAAD on

December 6, 2018, to initiate a complaint against his first-line supervisor for

abuse of power, abusive behavior toward male staff, and inappropriate and

offensive conduct with female staff. IAF, Tab 1 at 19. The appellant stated that

he also wanted to report the harassment and bullying that he personally

experienced from the supervisor. Id. The administrative judge found that the

appellant sufficiently exhausted this disclosure with OSC. ID at 4-5. We see no

reason to disturb that well-reasoned finding. See Crosby v. U.S. Postal Service,

74 M.S.P.R. 98, 105-06 (1997) (finding that the Board will not disturb an

administrative judge’s findings when she considered the evidence as a whole,

drew appropriate inferences from the evidence, and made reasoned conclusions).

¶10 The appellant also stated in his OSC complaint that he requested that the

EMS Chief move him to the day shift so that he could work under a different

supervisor, but that this request was denied. IAF, Tab 1 at 19. Although before

the Board the appellant stated that he also made a disclosure to the EMS Chief

about his first-line supervisor’s abusive behavior, IAF, Tab 8 at 6-7, such

information was absent from his OSC complaint, IAF, Tab 1 at 13-25. OSC’s

close-out letter does not indicate that OSC was aware of any such disclosure by

the appellant to the EMS Chief. Id. at 31. Nor is there any other correspondence

in the record between the appellant and OSC through which such information

might have been conveyed. We therefore discern no basis for disturbing the

administrative judge’s well-reasoned finding that the appellant failed to exhaust

this disclosure with OSC. ID at 4-5.

¶11 Nowhere in his OSC complaint does the appellant reference being perceived

as a whistleblower, and OSC’s close-out letter does not indicate that OSC

understood him as raising such a claim. IAF, Tab 1 at 13-25, 31. As previously

noted, the administrative judge provided the appellant with notice on how to

establish jurisdiction over his IRA appeal based on a claim that he was perceived

as a whistleblower. IAF, Tab 3 at 5-8. Accordingly, we agree with the

administrative judge’s finding that the appellant failed to exhaust this claim with

OSC. ID at 4-5; see El v. Department of Commerce, 123 M.S.P.R. 76, ¶ 12

(2015) (finding that the appellant failed to exhaust with OSC his claim that he

may have been perceived as a whistleblower), aff’d, 663 F. App’x 921 (Fed. Cir.

2016).

The appellant failed to nonfrivolously allege that his disclosure to the EAAD

about his supervisor was protected.

¶12 A nonfrivolous allegation of a protected whistleblowing disclosure is an

allegation of facts that, if proven, would show that the appellant disclosed a

matter that a reasonable person in his position would believe evidenced one of the

categories of wrongdoing specified in 5 U.S.C. § 2302(b)(8). Salerno,

123 M.S.P.R. 230, ¶ 6. The test to determine whether a putative whistleblower

has a reasonable belief in the disclosure is an objective one: whether a

disinterested observer with knowledge of the essential facts known to and readily

ascertainable by the employee could reasonably conclude that the actions of the

agency evidenced a violation of law, rule, or regulation, gross mismanagement, a

gross waste of funds, an abuse of authority, or a substantial and specific danger to

public health or safety. Id. The disclosures must be specific and detailed, not

vague allegations of wrongdoing. Id.

¶13 Regarding the appellant’s allegation that he disclosed to the EAAD that his

first-line supervisor was abusing his power and engaging in abusive behavior, the

appellant has provided virtually no details in support of this contention. In his

OSC complaint, he stated that his supervisor abused his power, was abusive

toward male subordinate staff, and that his supervisor’s conduct toward female

subordinate staff was inappropriate and offensive. IAF, Tab 1 at 19. The

appellant also stated that the harassment “included threats of getting rid of us

(employees)” and “being written up” based on untrue allegations. Id. He

reasserted these same vague claims before the Board, and, as previously noted,

added that he believed his supervisor’s conduct toward female staff rose to the

level of sexual harassment. IAF, Tab 8 at 6. However, the appellant failed to

provide even a single, specific example of his supervisor’s alleged abuse of

power or harassment. Accordingly, the administrative judge found that the

appellant failed to nonfrivolously allege that he made a protected disclosure to

the EAAD about his supervisor’s conduct. ID at 5-6. We see no reason to disturb

that finding. Crosby, 74 M.S.P.R. at 105-06.

¶14 Regarding the appellant’s vague allegation of his supervisor sexually

harassing female employees, the administrative judge correctly noted that

disclosures regarding allegations of sex discrimination and sexual harassment are

not protected disclosures under 5 U.S.C. § 2302(b)(8). ID at 6; see Edwards v.

Department of Labor, 2022 MSPB 9, ¶ 22, aff’d, No. 2022-1967, 2023 WL

4398002 (Fed. Cir. July 7, 2023). Although the administrative judge relied on

cases that predated the enactment of the WPEA in reaching this finding, the

Board has recently clarified that the WPEA does not alter the long-standing

administrative and judicial interpretation that Title VII-related claims are

excluded from protection under the whistleblower protection statutes. Edwards,

2022 MSPB 9, ¶ 22.

The appellant failed to nonfrivolously allege that his disclosure to the EAAD was

a contributing factor in his termination.

¶15 To satisfy the contributing factor criterion at the jurisdictional stage of an

IRA appeal, the appellant only need raise a nonfrivolous allegation that the fact

or the content of the protected disclosure was one factor that tended to affect the

personnel action in any way. Bradley v. Department of Homeland Security ,

123 M.S.P.R. 547, ¶ 13 (2016). One way to establish this criterion is the

knowledge/timing test, under which an employee may nonfrivolously allege that

the disclosure was a contributing factor in a personnel action through

circumstantial evidence, such as evidence that the official who took the personnel

action knew of the disclosure and that the personnel action occurred within a

period of time such that a reasonable person could conclude that the disclosure

was a contributing factor in the personnel action. Id.

¶16 Here, the appellant’s purported disclosure to the EAAD occurred 1 day

before he received the notice that he was to be terminated. As the administrative

judge found, this satisfies the timing component of the knowledge/timing test. ID

at 8; see Ontivero v. Department of Homeland Security , 117 M.S.P.R. 600, ¶ 23

(2012) (finding that a personnel action taken within approximately 1 to 2 years of

the appellant’s disclosures satisfies the timing component of the

knowledge/timing test). The administrative judge nevertheless found that the

appellant failed to nonfrivolously allege that the disclosure was a contributing

factor in his termination because he failed to allege that the officials involved in

his termination—namely, the EMS Chief as the proposing official and the Human

Resources (HR) Chief as the deciding official—were aware of the disclosure. ID

at 7-8. We discern no basis for disturbing the administrative judge’s finding that

the appellant failed to nonfrivolously allege that the proposing and deciding

officials were aware of his disclosure. 2

¶17 However, the Board has held that, if an administrative judge determines that

an appellant has failed to satisfy the knowledge/timing test, she 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 was

personally directed at the proposing or deciding officials, and whether these

individuals had a desire or motive to retaliate against the appellant. Dorney v.

Department of the Army, 117 M.S.P.R. 480, ¶ 15 (2012). Here, the administrative

judge did not consider evidence other than that pertaining to the

knowledge/timing test in relation to the contributing factor issue. Nevertheless,

she did provide the appellant with notice of how he could meet the contributing

factor element of his appeal based on evidence other than that related to the

knowledge/timing test. IAF, Tab 3 at 4-5.

¶18 Concerning the strength of the agency’s evidence in support of its action,

the agency terminated the appellant due to his alleged excessive and unauthorized

absences, insubordination, and disrespectful behavior toward employees and

patients. IAF, Tab 6 at 11. These allegations against the appellant are supported

by numerous contemporaneous reports and memoranda from the appellant’s

first-line supervisor and others, dated between September 30, 2018, and

November 9, 2018, documenting the appellant’s alleged misconduct, unauthorized

absences, and excessive leave. Id. at 14-46. Other than to assert in conclusory

fashion that he was terminated because of his disclosures and that the agency’s

allegations are unsubstantiated, the appellant did not dispute any of the agency’s

specific allegations against him. IAF, Tab 1 at 6, 19, 25.

Additionally, there is no information in the record to indicate that anyone aware of the

appellant’s alleged protected disclosures influenced the individuals who took the

personnel action involved.

¶19 Regarding the issue of whether the disclosures were directed at the

proposing or deciding officials, the appellant’s disclosure to the EAAD was

personally directed against his first-line supervisor, who did not serve as either

the proposing or deciding official in this matter. Moreover, we discern no

evidence indicating that the proposing and deciding officials had a desire or

motive to retaliate against the appellant. Accordingly, we find that the appellant

failed to nonfrivolously allege that his protected disclosure was a contributing

factor in the agency’s decision to terminate him.

We vacate the administrative judge’s findings that the appellant failed to

nonfrivolously allege that he was perceived as a whistleblower and that such

perception was a contributing factor in his termination.

¶20 In the case of a perceived whistleblower, the focus is on the agency’s

perception, 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 listed under 5 U.S.C. § 2302(b)(8). King,

116 M.S.P.R. 689, ¶ 8. The issue of whether the appellant actually made

protected disclosures is immaterial; the issue of whether the agency perceived the

appellant as a whistleblower will essentially stand in for that portion of the

Board’s analysis in both the jurisdictional and merits stages of the appeal. Id.

¶21 The administrative judge found that the appellant failed to nonfrivolously

allege that he was perceived as a whistleblower by the responsible agency

officials or that such a perception, if it existed, was a contributing factor in his

termination, because he never alleged that the EMS Chief or HR Chief knew of

his disclosure to the EAAD or otherwise viewed him as a whistleblower. ID at 7.

As stated above, we agree with the administrative judge that the appellant failed

to exhaust with OSC his claim regarding being perceived as a whistleblower. ID

at 5. We therefore find it unnecessary to consider this claim further and vacate

the administrative judge’s alternative finding that the appellant failed to

nonfrivolously allege that he was perceived as a whistleblower and that any such

perception was a contributing factor in his termination.

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).

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.

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.

(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. 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