Opinion

Veronica Ragland v. Department of Health and Human Services

Court: Merit Systems Protection Board
Filed: Jul 19, 2024
Status: Unpublished
Cited by: 0 cases
Authority: More cited than 30.3%

finding that while the absence of evidence on the third factor may remove it from the analysis, its absence may also “cut slightly against” the agency

How later courts described this case

finding that while the absence of evidence on the third factor may remove it from the analysis, its absence may also “cut slightly against” the agency
noting that the absence of evidence on the third factor “will not necessarily” prevent the agency from meeting its burden

Written by the judges who cited it.

The opinion

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

VERONICA RAGLAND, DOCKET NUMBER

Appellant, DC-1221-22-0243-W-1

DEPARTMENT OF HEALTH AND DATE: July 19, 2024

HUMAN SERVICES,

Agency.

THIS FINAL ORDER IS NONPRECEDENTIAL 1

Veronica Ragland , Phoenix, Arizona, pro se.

Suzanne Nicole Nardone , 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

denied the appellant’s request for corrective action in this individual right of

action appeal. On petition for review, the appellant argues that the agency failed

to rebut her prima facie case of reprisal for her protected disclosures about

A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

budgetary matters. Petition for Review (PFR) File, Tab 1. She argues that the

evidence in support of her June 2021 performance overview and September 2021

probationary termination is weak, id. at 10-14, 16-23, and the motive to retaliate

on the part of relevant officials was strong, id. at 7-10, 15, 23-26. The appellant

also suggests that the agency may have had relevant evidence about potential

comparators that the agency simply failed to produce. 2 Id. at 15-16, 26.

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

find that the appellant did not prove that an alleged disclosure about

reimbursement for Government Accounting Office (GAO) engagements was

protected, we AFFIRM the initial decision.

Even if the lack of comparator evidence caused the third factor of the clear and

convincing analysis to weigh slightly against the agency, we believe that the strength of

the agency’s reasons for taking the action and the slight motive to retaliate still support

a finding that the agency proved by clear and convincing evidence that it would have

taken the same personnel actions absent the appellant’s protected disclosures.

See Miller v. Department of Justice, 842 F.3d 1252, 1262 (Fed. Cir. 2016) (finding that

while the absence of evidence on the third factor may remove it from the analysis, its

absence may also “cut slightly against” the agency); see also Rickel v. Department of

the Navy, 31 F.4th 1358, 1364-65 (Fed. Cir. 2022) (noting that the absence of evidence

on the third factor “will not necessarily” prevent the agency from meeting its burden).

The administrative judge substantively addressed, on the merits, the

appellant’s allegations of reprisal for one alleged disclosure about the possible

misdirection of funds allocated for Federal Parent Locator Service (FPLS) to

other agency priorities and another alleged disclosure about the agency

preventing some states and localities from claiming federal financial participation

of FPLS fees. Initial Appeal File (IAF), Tab 32, Initial Decision (ID) at 8-39.

She found that the appellant proved that those disclosures were protected based

on the appellant’s reasonable belief that she was revealing the kinds of

wrongdoing covered under the whistleblower protection statutes. ID at 12-20.

The administrative judge also found that the agency established that these

protected disclosures were a contributing factor in the appellant’s June 2021

performance overview and her September 2021 probationary termination. ID

at 20-21. But the administrative judge denied corrective action after finding that

the agency proved that it would have taken the same personnel actions in the

absence of the aforementioned disclosures. ID at 21-39.

Separately, the administrative judge indicated that the appellant seemed to

abandon a third disclosure about the agency failing to obtain reimbursement for

GAO engagements, which was mentioned in an initial pleading. ID at 12; IAF,

Tab 1 at 22, 26. Nothing in the appellant’s petition for review suggests

otherwise. PFR File, Tab 1. We nevertheless modify the initial decision to find

that, even if the appellant did not abandon the disclosure, the appellant failed to

meet her burden of proving that it was a separate protected disclosure.

A protected disclosure is a disclosure that an appellant reasonably believes

evidences a violation of any 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. Turner v. Department of Agriculture, 2023 MSPB 25,

¶ 14. A close-out letter from the Office of Special Counsel (OSC), which first

investigated the appellant’s claims of whistleblower reprisal, described the

alleged disclosure at issue as one revealing that the agency had failed to collect

and seek reimbursement for GAO engagements. IAF, Tab 1 at 26. We found

what seem to be some corresponding references in the appellant’s initial

complaint to OSC. Id. at 22. However, the appellant has not directed us to any

further argument or evidence to prove that she made this disclosure or prove that

it is protected under the whistleblower statute. We nevertheless reviewed the

appellant’s various pleadings and found numerous instances of the appellant

indicating that she complained to GAO but no further mention of her making

protected disclosures about reimbursements for GAO engagements. IAF,

Tabs 4, 6, 26.

We recognize, as the administrative judge did, that each of the appellant’s

alleged disclosures generally involve budget and funding issues made over the

same period. ID at 12. But it was the appellant’s burden of proving by

preponderant evidence that she made protected disclosures. In the absence of

further argument and reference to specific evidence, we find that the appellant has

not proven, by preponderant evidence, that she made an additional protected

disclosure about reimbursements for GAO engagements, separate from her other

protected disclosures. We modify the initial decision accordingly. Regardless of

her intent to pursue or abandon this disclosure, the appellant did not prove that it

was protected.

NOTICE OF APPEAL RIGHTS 3

The initial decision, as supplemented by this Final Order, constitutes the

Boards final decision in this matter. 5 C.F.R. &sect 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

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.

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:

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

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,

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