Opinion

Derex Brooks v. Department of Veterans Affairs

Court: Merit Systems Protection Board
Filed: Jul 3, 2024
Status: Unpublished
Cited by: 0 cases
Authority: More cited than 30.2%

The opinion

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

DEREX BROOKS, DOCKET NUMBER

Appellant, CH-1221-18-0596-W-1

DEPARTMENT OF VETERANS DATE: July 3, 2024

AFFAIRS,

Agency.

THIS FINAL ORDER IS NONPRECEDENTIAL 1

Jonay McCall , St. Louis, Missouri, for the appellant.

Beth K. Donovan , St. Louis, Missouri, 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

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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

established that he exhausted his administrative remedies before the Office of

Special Counsel (OSC) and nonfrivolously alleged that he made a protected

disclosure but failed to nonfrivolously allege that his protected disclosure was a

contributing factor in his removal, we AFFIRM the initial decision.

BACKGROUND

Effective February 13, 2018, the agency removed the appellant from his

Housekeeping Aid position within its Environmental Management Service (EMS)

in St. Louis, Missouri, for failing to abide by the terms of a last chance agreement

(LCA). Initial Appeal File (IAF), Tab 1 at 17, 22-23. In the decision letter, the

agency advised the appellant that he was entitled to appeal the removal to the

Board, seek corrective action before OSC, or file a discrimination complaint. Id.

at 23. It also informed him that if his appeal included an allegation of

whistleblowing retaliation, he may elect to file an appeal with the Board or OSC

and that his election would be based on which appeal he filed first. Id.

At some point prior to July 27, 2018, the appellant filed a complaint with

OSC alleging that his removal was taken as a result of his protected

whistleblowing activity. IAF, Tab 1 at 3, Tab 11 at 5. On August 21, 2018, OSC

issued the appellant a close-out letter with appeal rights to the Board. IAF, Tab 1

at 3. This appeal followed.

The administrative judge issued an order apprising the appellant of the

applicable law and his burden of proof to establish jurisdiction over his claim and

directing him to provide evidence and argument amounting to a nonfrivolous

allegation of jurisdiction. IAF, Tab 3. The appellant did not respond.

Thereafter, the agency submitted its response to the appeal, arguing that the

appeal should be dismissed for lack of jurisdiction. IAF, Tab 7. After the close

of the record below, the appellant submitted a response to the agency’s pleading

in which he provided a portion of his OSC complaint. IAF, Tab 11. Without

holding the requested hearing, the administrative judge issued an initial decision

dismissing the appeal for lack of jurisdiction. IAF, Tab 1 at 7, Tab 12, Initial

Decision (ID) at 2. She found that the appellant failed to show that he exhausted

his administrative remedies before OSC because he did not prove that he gave

OSC a sufficient basis to pursue an investigation that might lead to corrective

action. ID at 5-6. She further found that the appellant failed to provide sufficient

details to nonfrivolously allege that he made a protected disclosure. ID at 6-9. In

so finding, she considered the appellant’s late-filed submission. ID at 7 n.2.

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

File, Tab 1. 2 The agency has filed a response in opposition. PFR File, Tab 3.

On January 15, 2020, the appellant filed a pleading with the Board seeking to

withdraw his petition for review. PFR File, Tab 7. Thereafter, on January 22, 2020,

and February 21, 2020, the Office of the Clerk of the Board issued orders requiring the

appellant to confirm his intent to withdraw the petition for review and his understanding

that any withdrawal is with prejudice to refiling with the Board. PFR File, Tabs 8-9.

Because the appellant failed to respond, the Office of the Clerk of the Board informed

him that it would take no further action regarding the withdrawal request and the Board

would issue a decision on his petition for review upon restoration of a quorum. PFR

File, Tab 10. The appellant has taken no further action to effect the withdrawal of his

petition, and thus, we address the merits of the petition for review.

DISCUSSION OF ARGUMENTS ON REVIEW 3

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

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)(2)(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. The U.S. Court of Appeals for the Federal Circuit has found that

in the context of an IRA appeal, a nonfrivolous allegation is an allegation of

“sufficient factual matter, accepted as true, to state a claim that is plausible on its

face.” Hessami v. Merit Systems Protection Board, 979 F.3d 1362, 1364, 1369

(Fed. Cir. 2020). Once an appellant establishes jurisdiction over his IRA appeal,

he is entitled to a hearing on the merits of his claim, which he must prove by

preponderant evidence. Rebstock Consolidation v. Department of Homeland

Security, 122 M.S.P.R. 661, ¶ 9 (2015). For the reasons discussed below, we find

that the appellant has shown that he exhausted his administrative remedies before

OSC but failed to nonfrivolously allege that his alleged protected disclosure was

a contributing factor in his removal.

The appellant exhausted his administrative remedies before OSC.

Under 5 U.S.C. § 1214(a)(3), an employee is required to seek corrective

action from OSC before seeking corrective action from the Board. Mason v.

Department of Homeland Security, 116 M.S.P.R. 135, ¶ 8 (2011). The Board may

only consider those disclosures of information and personnel actions that the

appellant raised before OSC. Id. To satisfy the exhaustion requirement, the

We have reviewed the relevant legislation enacted during the pendency of this appeal

and conclude that it does not affect the outcome of the appeal.

appellant must provide to OSC a sufficient basis to pursue an investigation that

might lead to corrective action. Chambers v. Department of Homeland Security,

2022 MSPB 8, ¶ 10.

Here, the appellant submitted a portion of his OSC complaint in which he

stated that he believed the EMS department removed him in retaliation for

reporting his supervisor for physically assaulting him. IAF, Tab 11 at 5.

Specifically, he claimed that he reported the assault to the agency police and

provided them a report on the same day that the alleged assault occurred,

October 19, 2017. Id. He also claimed that the altercation with his supervisor

that day formed the grounds on which the agency first proposed his removal and

which resulted in the LCA. Id. at 6, 11-12. Under these circumstances, we find

that the appellant provided OSC with a sufficient basis to pursue an investigation

that might lead to corrective action regarding his removal. See Chambers,

2022 MSPB 8, ¶ 9; see also Swanson v. General Services Administration ,

110 M.S.P.R. 278, ¶ 8 (2008) (finding that an appellant satisfied the exhaustion

requirement when he informed OSC of the content of his disclosure, the

individual to whom it was made, the nature of the personnel actions allegedly

taken in retaliation, and the individuals responsible for taking those actions).

Accordingly, we find that the appellant demonstrated that he exhausted his

administrative remedies before OSC concerning his removal. See id.

The appellant nonfrivolously alleged that he made a protected disclosure under

5 U.S.C. § 2302(b)(8).

Protected whistleblowing occurs when an appellant makes a disclosure that

he reasonably believes evidences 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 and safety. Mason, 116 M.S.P.R. 135, ¶ 17.

The proper test for determining whether an employee had a reasonable belief that

his disclosures were protected is whether a disinterested observer with knowledge

of the essential facts known to, and readily ascertainable by, the employee could

reasonably conclude that the actions evidenced a violation of a law, rule, or

regulation, or one of the other conditions set forth in 5 U.S.C. § 2302(b)(8). Id.

The appellant alleged that his supervisor physically assaulted him on

October 19, 2017. IAF, Tab 11 at 5. As a result of the alleged assault, the

appellant claimed that he filed a report with the agency police on the same day.

Id. He further claimed that he went to the emergency room as a result of his

injuries from the assault. Id. The Board has held that an assault is a violation of

criminal law, and a disclosure that an assault occurred is a disclosure of a

violation of law, rule, or regulation. Lewis v. Department of Commerce,

101 M.S.P.R. 6, ¶ 11 (2005). Under these circumstances, we find that the

appellant nonfrivolously alleged that he made a protected disclosure under

5 U.S.C. § 2302(b)(8) when he reported the alleged assault by his supervisor to

the agency police on October 19, 2017. See id. (explaining that there is no de

minimis exception for the violation-of-law aspect of the protected disclosure

standard).

The appellant nonfrivolously alleged that the agency subjected him to a personnel

action.

Here, the appellant claimed that the agency removed him in retaliation for

his whistleblowing activity. IAF, Tab 11 at 5. It is undisputed that the agency

removed the appellant, effective February 13, 2018. IAF, Tab 1 at 17.

Accordingly, we find that the appellant nonfrivolously alleged that the agency

subjected him to a personnel action under 5 U.S.C. § 2302(a)(2)(A). See Cochran

v. Department of Veterans Affairs, 67 M.S.P.R. 167, 174 (1995) (finding that a

removal action is a covered personnel action under section 2302(a)(2)(A)).

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

contributing factor in the agency’s decision to take a personnel action against

him.

To satisfy the contributing factor criterion, an appellant need only raise a

nonfrivolous allegation that the fact or content of the protected disclosure or the

protected activity was one factor that tended to affect the personnel action in any

way. See Salerno v. Department of the Interior, 123 M.S.P.R. 230, ¶¶ 13-14

(2016). One way to establish this criterion is the knowledge/timing test, under

which an employee may nonfrivolously allege that the disclosure or 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 disclosure or

activity and that the personnel action occurred within a period of time such that a

reasonable person could conclude that the disclosure or activity was a

contributing factor in the personnel action. See id. An appellant also may meet

his jurisdictional burden by making a nonfrivolous allegation of other evidence,

such as that pertaining to the strength or weakness of the agency’s reasons for

taking the personnel action, whether the protected disclosure or activity was

personally directed at the acting officials, and whether those individuals had a

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

122 M.S.P.R. 600, ¶ 13 n.6 (2015); Rumsey v. Department of Justice,

120 M.S.P.R. 259, ¶ 26 (2013).

Here, although the appellant claimed that the agency removed him in

retaliation for his whistleblowing activity, he did not allege that anyone involved

in the decision to remove him had actual or constructive knowledge of that

activity. IAF, Tab 11 at 5. Specifically, he did not allege that either the

proposing or deciding officials had knowledge of his disclosure to the agency

police on October 19, 2017, or that any other agency official was involved in the

decision to remove him. Thus, the appellant’s allegations do not satisfy the

knowledge/timing test. Nor did the appellant make nonfrivolous allegations that

would otherwise establish that his disclosure was a contributing factor in his

removal. Notably, he alleged that the substance of his disclosure to the agency

police pertained only to the October 19, 2017 altercation with his supervisor, and

he did not allege any wrongdoing by either the proposing or deciding official. Id.

at 5-6. Moreover, while the appellant claimed that the supervisor who allegedly

assaulted him had a motive to retaliate against him given his disclosure to the

agency police, he did not allege that either the proposing or deciding official had

a motive to retaliate against him. While the appellant generally challenges the

merits of his removal, we find that he failed to nonfrivolously allege that his

protected disclosure was a contributing factor in that action.

The appellant’s arguments on review provide no basis to disturb the

administrative judge’s ultimate conclusion that the Board lacks jurisdiction over

his IRA appeal.

In his brief petition for review, the appellant claims to possess new

evidence of defamation and breach of contract regarding the LCA. PFR File,

Tab 1 at 1. These arguments, however, relate to the merits of the removal action

as opposed to his claims of whistleblower retaliation. Because the administrative

judge properly found that the appellant knowingly elected to pursue a complaint

with OSC in lieu of a direct appeal to the Board pursuant to 5 U.S.C. § 7701, the

Board lacks jurisdiction to review the merits of his removal pursuant to the LCA.

ID at 2 n.1; see Brooks v. Department of Veterans Affairs, MSPB Docket No. CH-

0714-18-0598-I-1, Initial Decision (Oct. 16, 2018); see also Agoranos v.

Department of Justice, 119 M.S.P.R. 498, ¶¶ 14-16 (2013).

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

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.

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:

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

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.

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