Opinion

Tonya Moore-Moody v. Department of Veterans Affairs

Court: Merit Systems Protection Board
Filed: Jul 16, 2024
Status: Unpublished
Cited by: 0 cases
Authority: More cited than 30.3%

The opinion

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

TONYA MOORE-MOODY, DOCKET NUMBER

Appellant, DC-1221-19-0581-W-1

DEPARTMENT OF VETERANS DATE: July 16, 2024

AFFAIRS,

Agency.

THIS FINAL ORDER IS NONPRECEDENTIAL 1

Paul E. Hamilton , Gilbert, Arizona, for the appellant.

David R. Scruggs , Esquire, Washington, D.C., 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 her 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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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, as to one claim, the appellant did not exhaust her remedy with the

Office of Special Counsel (OSC), and that therefore that claim must be dismissed

for lack of jurisdiction, we AFFIRM the initial decision.

The Board has jurisdiction over an IRA appeal if the appellant exhausts her

administrative remedies before OSC and makes nonfrivolous allegations that

(1) she made a 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). Linder v. Department of Justice, 122 M.S.P.R. 14, ¶ 6 (2014); see

Yunus v. Department of Veterans Affairs, 242 F.3d 1367, 1371 (Fed. Cir. 2001).

The administrative judge found the appellant exhausted her claim that she

made protected whistleblower disclosures by filing an equal employment

opportunity (EEO) complaint alleging that agency officials discriminated against

her based on her race and sex, and retaliated against her for having filed a

previous EEO complaint. Initial Appeal File (IAF), Tab 21, Initial Decision

at 6-7. We find no error in the administrative judge’s findings regarding

exhaustion of this claim before OSC.

On review, the appellant argues that, in her EEO complaint, she also

alleged that the agency violated the law, specifically, the Americans with

Disabilities Act (ADA), in not selecting her for a higher-graded position for

which she had applied, failing to reasonably accommodate her regarding the

granting of leave under the Family and Medical Leave Act, and in job

assignments. Petition for Review File, Tab 3 at 7-12.

In an IRA appeal, the Board may consider only those matters that the

appellant asserted before OSC. 2 Mason v. Department of Homeland Security,

116 M.S.P.R. 135, ¶ 8 (2011). The appellant here failed to show that she raised

to OSC her claim alleging violation of the ADA. 3 IAF, Tab 2. Because she has

not shown that she provided OSC with a sufficient basis to pursue an

investigation regarding her claim that the agency violated the ADA or otherwise

discriminated against her based on her disability, Ward v. Merit Systems

Protection Board, 981 F.2d 521, 526 (Fed. Cir. 1992), she did not exhaust her

The purpose of the requirement that an appellant exhaust her remedies with OSC prior

to filing an IRA appeal with the Board 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). 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. The test of the sufficiency of an

employee’s charges of whistleblowing to OSC is the statement that she makes in the

complaint requesting corrective action, not her post hoc characterization of those

statements. Ellison v. Merit Systems Protection Board , 7 F.3d 1031, 1036 (Fed. Cir.

1993).

Below, the appellant stated that she did not have a copy of her OSC complaint. IAF,

Tab 9 at 4. She submitted only the closure letter she received from OSC. IAF, Tab 2.

remedy before OSC, and therefore that claim in her IRA appeal must be dismissed

for lack of jurisdiction because of her failure to exhaust her remedy with OSC.

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).

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. 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