Opinion

John Doe v. Department of Veterans Affairs

Court: Merit Systems Protection Board
Filed: Jul 30, 2024
Status: Unpublished
Cited by: 0 cases
Authority: More cited than 30.4%

adopting the term “cat’s paw” to describe a case in which a particular management official, acting because of an improper animus, influences an agency official who is unaware of the improper animus when implementing a personnel action

How later courts described this case

adopting the term “cat’s paw” to describe a case in which a particular management official, acting because of an improper animus, influences an agency official who is unaware of the improper animus when implementing a personnel action
testimony of the Nurse Manager, Behavioral Health Unit, Lebanon VAMC

Written by the judges who cited it.

The opinion

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

JOHN DOE, 1 DOCKET NUMBERS

Appellant, PH-1221-17-0223-W-1

PH-1221-17-0449-W-1

DEPARTMENT OF VETERANS DATE: July 30, 2024

AFFAIRS,

Agency.

THIS FINAL ORDER IS NONPRECEDENTIAL 2

Chungsoo J. Lee , Jenkintown, Pennsylvania, for the appellant.

Marcus S. Graham , Esquire, Pittsburgh, Pennsylvania, 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.

The Board finds it appropriate to grant the appellant’s request for anonymity in these

matters. Accordingly, these matters have been recaptioned as “John Doe.”

Additionally, the initial decision in these joined matters has been recaptioned as “John

Doe” and references to the appellant’s name in the initial decision have been changed to

“John Doe.”

A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

FINAL ORDER

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

denied her request for corrective action in her joined individual right of action

(IRA) appeals. 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 joined 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. We AFFIRM the initial

decision, except as expressly MODIFIED by this Final Order to clarify the

administrative judge’s analysis of the following issues: (1) whether five

allegedly protected disclosures raised in a prior IRA appeal could be considered

in these joined appeals, and (2) whether an agency official with knowledge of the

appellant’s alleged disclosures improperly influenced the selecting official for

vacancy announcement number 1588576. We VACATE the administrative

judge’s dismissal of the request for corrective action, as dismissal is inappropriate

where the appeal is denied on the merits.

BACKGROUND

In September 2010, the appellant resigned from her position as a Registered

Nurse (RN) at the agency’s Togus Veterans Affairs Medical Center (VAMC) in

Augusta, Maine. Doe v. Department of Veterans Affairs, MSPB Docket No. PH-

1221-17-0223-W-1, Initial Appeal File (0223 IAF), Tab 56 at 202. In May 2014,

the agency appointed the appellant to an RN position at its Manchester VAMC in

Manchester, New Hampshire. 0223 IAF, Tab 53 at 7. In October 2014, the

appellant’s first-level supervisor requested that a nurse professional standards

board (NPSB) be convened to conduct a summary review of the appellant’s

employment during her probationary period, and in November 2014, the NPSB

recommended that the appellant be separated from the agency during her

probationary period. 0223 IAF, Tab 5 at 18-19, Tab 53 at 7, Tab 56 at 72-73.

The Manchester VAMC director approved the NPSB’s recommendation and

terminated the appellant, effective November 28, 2014. 0223 IAF, Tab 53 at 7.

In December 2016, the appellant filed a complaint with the Office of

Special Counsel (OSC) in which she alleged that the agency had forced her to

resign in September 2010, terminated her in November 2014, and failed to select

her for 15 positions in retaliation for her disclosures of fraud, waste, abuse of

authority, and violations of law. 0223 IAF, Tab 1 at 9-30. On March 24, 2017,

OSC informed the appellant that it had terminated its inquiry into her allegations

regarding the agency’s alleged prohibited personnel practices and notified her of

her right to seek corrective action from the Board. Id. at 31-32.

On March 30, 2017, the appellant timely filed a Board appeal from OSC’s

determination and requested a hearing. 0223 IAF, Tab 1.

Also in March 2017, the appellant filed an OSC complaint in which she

alleged that the agency had failed to select her for two additional positions in

retaliation for her whistleblowing activities. 0223 IAF, Tab 40 at 13-38.

On August 31, 2017, OSC informed the appellant that it had closed its file

regarding her complaint. Doe v. Department of Veterans Affairs, MSPB Docket

No. PH-1221-17-0449-W-1, Initial Appeal File (0449 IAF), Tab 1 at 18. On

September 20, 2017, the appellant timely filed a Board appeal from OSC’s

determination and requested a hearing. 0449 IAF, Tab 1. The administrative

judge joined the two pending Board appeals. 0223 IAF, Tab 36, Tab 61 at 1-2.

After holding a 3-day hearing regarding the joined appeals, the

administrative judge issued an initial decision denying the appellant’s request for

corrective action. 0223 IAF, Tab 93, Initial Decision (ID). The administrative

judge found that the appellant had exhausted her administrative remedies before

OSC with respect to 17 nonselections for positions advertised under the following

vacancy announcement numbers: 1176898, 1182148, 1213402, 1221475,

1223829, 1293297, 1305865, 1307416, 1325763, 1338682, 1343574, 1588576,

1600422, 1606485, 1652067, 1704268, and 1711692. ID at 3, 13-14.

The administrative judge also found that the appellant had alleged that she made

28 disclosures; however, only 15 reasonably could be interpreted to constitute a

disclosure. ID at 7-12. According to the administrative judge, even assuming

that the remaining 15 disclosures were protected, the appellant could not show

that the disclosures were a contributing factor in the 17 nonselections.

ID at 12-30. Accordingly, the administrative judge denied the appellant’s request

for corrective action and dismissed the appeals. ID at 29-30.

The appellant has timely filed a petition for review, and the agency has

filed an opposition to the petition. Doe v. Department of Veterans Affairs,

MSPB Docket No. PH-1221-17-0223-W-1, Petition for Review (PFR) File,

Tabs 1, 3. As set forth below, we find the appellant’s arguments on review to be

without merit.

DISCUSSION OF ARGUMENTS ON REVIEW

In order to establish a prima facie case of reprisal for whistleblowing under

the Whistleblower Protection Enhancement Act of 2012 (WPEA), 3 the appellant

In adjudicating this matter, the administrative judge applied the WPEA. ID at 4.

She did not address that several of the appellant’s allegedly protected disclosures

occurred prior to the WPEA’s effective date of December 27, 2012; however, we find

that the WPEA applies to these joined appeals. Pub. L. No. 112-199, § 202, 126 Stat.

1465, 1476. The Board has held that, when the appellant’s protected activity occurred

before but the relevant personnel actions occurred after the WPEA’s effective date, the

WPEA should be applied because the agency knew of the parties’ rights, liabilities, and

duties under the WPEA when it acted. Pridgen v. Office of Management and Budget,

must prove by preponderant evidence that: (1) she made a disclosure protected

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

§ 2302(b)(9)(A)(i), (B), (C), or (D); and (2) that the protected disclosure or

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). 4 5 U.S.C. § 1221(e)(1);

Webb v. Department of the Interior, 122 M.S.P.R. 248, ¶ 6 (2015). If the

appellant makes out a prima facie case, then the agency is given an opportunity to

prove, by clear and convincing evidence, that it would have taken the same

personnel action in the absence of the protected disclosure or activity. 5 U.S.C.

§ 1221(e)(2); Webb, 122 M.S.P.R. 248, ¶ 6.

2022 MSPB 31, ¶¶ 50-51. Here, although some of the alleged disclosures occurred

prior to the WPEA’s effective date, each of the nonselections at issue occurred after the

effective date, thus the WPEA should be applied in this matter.

Additionally, during the pendency of this appeal, the National Defense Authorization

Act for Fiscal Year 2018 (NDAA), Pub. L. No. 115-91, 131 Stat. 1283, was signed into

law on December 12, 2017. Section 1097 of the NDAA amended various provisions of

Title 5 of the U.S. Code. Our decision to affirm this appeal would be the same under

both pre- and post-NDAA law.

The administrative judge did not explicitly find that the appellant established

jurisdiction in this matter. In her initial decision, the administrative judge found that

the appellant had exhausted her administrative remedies before OSC and that

15 incidents reasonably could be interpreted to constitute a disclosure. ID at 3-12.

In holding a hearing, the administrative judge implicitly found that the appellant made a

nonfrivolous allegation that she made protected disclosures that were a contributing

factor in the nonselections at issue. See Mastrullo v. Department of Labor,

123 M.S.P.R. 110, ¶ 15 (2015) (finding that, because the administrative judge held a

hearing, he implicitly found that the appellant had established jurisdiction). On review,

neither party challenges the administrative judge’s implicit conclusion that the appellant

established the Board’s jurisdiction over this matter, nor do we discern a reason to

disturb it. See Salerno v. Department of the Interior , 123 M.S.P.R. 230, ¶ 5 (2016)

(holding that, to establish Board jurisdiction over an IRA appeal brought pursuant to the

WPEA, the appellant must exhaust her administrative remedies before OSC and make

nonfrivolous allegations that: (1) she 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 protected disclosure or 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)).

The administrative judge found that, of the 28 disclosures that the appellant

alleged were protected, only 15 could be reasonably interpreted to constitute a

disclosure. ID at 7-12; see 0223 IAF, Tab 1 at 24-27; 0449 IAF, Tab 1 at 5-7.

As discussed below, the administrative judge properly found that the appellant

was precluded from raising three claims of whistleblower reprisal in the instant

case. The administrative judge incorrectly found that the appellant was precluded

from raising five additional alleged disclosures in this case; however, the

appellant did not show that four of the alleged disclosures were protected and did

not exhaust administrative remedies with respect to one of the alleged

disclosures. We agree with the administrative judge that five other alleged

disclosures were not protected. Finally, the administrative judge correctly found

that the appellant did not show that the remaining 15 allegedly protected

disclosures were a contributing factor in the 17 nonselections at issue.

The administrative judge correctly found that only 15 of the appellant’s

28 alleged disclosures could constitute disclosures.

The administrative judge correctly found that the appellant was

precluded from raising three claims she raised in a prior IRA appeal.

On review, the appellant alleges that the administrative judge ignored facts

demonstrating that she made protected disclosures. PFR File, Tab 1 at 14.

In large part, however, the appellant merely restates on review that the

disclosures that she alleged below were protected and does not identify specific

errors in the administrative judge’s reasoning that 13 alleged disclosures could

not be considered by the Board or were not protected. 0223 IAF, Tab 51 at 8-12;

PFR File, Tab 1 at 10-15.

We have reviewed the administrative judge’s findings regarding the

appellant’s allegedly protected disclosures and agree that the appellant was

precluded from raising three claims in the instant case. ID at 2 nn.1-2, 8.

The administrative judge found that the appellant alleged that her September 2010

resignation, the October 2014 convention of an NPSB, and her November 2014

probationary termination constituted protected disclosures, but that none of the

three incidents are disclosures protected under 5 U.S.C. § 2302(b)(8) or activity

protected under the applicable provisions of 5 U.S.C. § 2302(b)(9). ID at 7-8.

Moreover, as explained by the administrative judge, to the extent that the

appellant alleges that these three incidents constitute personnel actions that the

agency took in retaliation for the protected disclosures raised in her prior OSC

complaints, the appellant is precluded from raising them in the instant

proceedings. 0223 IAF, Tab 18, Tab 61 at 1-2, ID at 2 nn.1-2, 8. In a prior IRA

appeal, the appellant alleged that the three above-referenced actions occurred in

retaliation for disclosures that are identical to those raised in the instant appeal.

Compare Doe v. Department of Veterans Affairs, MSPB Docket No. PH-1221-

17-0115-W-1, Initial Appeal File (0115 IAF), Tab 1 at 8-12, 17-19, with 0223

IAF, Tab 1 at 24-27. In the prior IRA appeal, the appellant acknowledged that

her appeal was untimely, and the administrative judge assigned to the case

dismissed it as untimely filed; this initial decision became final on February 9,

2017, when neither party appealed it. 5 0115 IAF, Tab 4 at 3-4, Tab 9. Here, the

appellant does not challenge the administrative judge’s finding that the appellant

is precluded from relitigating these three claims in the instant case, and we

discern no reason to disturb it. See Clay v. Department of the Army,

123 M.S.P.R. 245, ¶ 6 (2016) (finding no reason to disturb the administrative

judge’s findings where she considered the evidence as a whole, drew appropriate

inferences, and made reasoned conclusions on the issue of credibility);

Broughton v. Department of Health and Human Services, 33 M.S.P.R. 357, 359

(1987) (same).

The appellant also appeared to admit that an appeal of her September 2010 resignation

was precluded by a December 2010 settlement agreement. 0115 IAF, Tab 4 at 3;

see 0223 IAF, Tab 17 at 15-16. Because we agree with the administrative judge that the

appellant is precluded from relitigating the September 2010 resignation in the instant

appeal based on her prior IRA appeal, we do not make any findings regarding whether

the appellant is precluded from appealing the resignation under the settlement

agreement.

The administrative judge incorrectly found that the appellant was

precluded from raising five alleged disclosures in the instant case;

however, the appellant did not show that four of the alleged

disclosures were protected and did not exhaust administrative

remedies with respect to the remaining alleged disclosure.

The administrative judge found that the appellant alleged that certain

communications with OSC were protected, including the following: OSC’s

issuance of an October 2014 preliminary determination regarding a prior

whistleblower retaliation claim; her disclosure to OSC in November 2014 that she

had been terminated in retaliation for whistleblowing; OSC’s issuance of a

November 2014 closure notice regarding a prior OSC complaint; and OSC’s

issuance of a January 2015 determination letter regarding a prior OSC complaint.

0223 IAF, Tab 1 at 26-27; ID at 8. The administrative judge incorrectly stated

that the appellant could not raise these disclosures in the instant matter because

they were raised in the prior IRA appeal that was dismissed as untimely. ID at 8.

We modify the initial decision to find that, to the extent that the appellant is

alleging that these allegations reflect that she made a protected disclosure that

was a contributing factor in a personnel action not previously adjudicated by the

Board, such as the 17 nonselections at issue here, she is raising a new claim of

reprisal for whistleblowing that she may bring before the Board, so long as she

exhausted her administrative remedies before OSC by raising the claim in the

OSC complaint from which she appealed in the instant case. See Groseclose v.

Department of the Navy, 111 M.S.P.R. 194, ¶ 29 (2009) (finding that the

appellant was not barred from raising claims that alleged that new personnel

actions were taken in retaliation for allegedly protected disclosures raised in his

prior IRA appeal); Becker v. Department of Veterans Affairs, 76 M.S.P.R. 292,

298 n.3 (1997) (observing that, when an appellant has filed multiple complaints

with OSC, exhaustion may only be demonstrated through the complaint that led to

the filing of the IRA appeal before the Board). Here, however, three of the

alleged disclosures pertain to actions that OSC took and cannot be construed to be

protected disclosures on the appellant’s part. 0223 IAF, Tab 1 at 26-27.

Additionally, the appellant does not allege that her disclosure to OSC regarding

her 2014 probationary termination was a contributing factor in any of her

nonselections and appears to have included these facts regarding OSC solely as

background information. 6 Id.

The administrative judge also detailed the appellant’s allegation that she

filed a report of contact and a grievance regarding an allegedly illegal search

performed by agency police and concluded that she was precluded from raising

these issues because they were raised in a prior OSC complaint. ID at 9. As set

forth above, the appellant was not precluded from alleging that she made such a

disclosure, or engaged in protected activity, if she had alleged that it was a

contributing factor in the nonselections at issue and thus raised a new claim of

reprisal for whistleblowing. However, there is no evidence that the appellant

raised the issue of her July 2014 report of contact and grievance as a protected

disclosure or activity in conjunction with either of the OSC complaints at issue in

this matter; thus, she failed to exhaust administrative remedies with respect to

this claim in the instant case. 0223 IAF, Tab 1 at 9-32, Tab 40 at 13-38;

0449 IAF, Tab 1 at 14-18; see Chambers v. Department of Homeland Security,

2022 MSPB 8, ¶¶ 10-11.

The administrative judge correctly found that five alleged

disclosures were not protected.

As discussed by the administrative judge, the appellant’s assertions that she

was traumatized by the September 2010 death of a patient, that the agency

omitted information from her in a January 2015 report, that Senator Ayotte’s

office staff communicated with her, and that the Manchester VAMC responded to

Senator Ayotte, do not constitute protected disclosures or activity on the

appellant’s part. ID at 8-9. Additionally, the appellant’s assertion that she

Similarly, the appellant has not alleged that her disclosure to OSC constituted

protected activity under 5 U.S.C. § 2302(b)(9)(C) that was a contributing factor in any

of her nonselections. See 0223 IAF, Tab 1 at 26-27.

entered into a December 2010 settlement agreement does not constitute a

protected disclosure, as discussed by the administrative judge, nor does it

constitute protected activity, as the appellant sought to remedy a violation of

Title VII in entering into the settlement agreement. 0223 IAF, Tab 1 at 25,

Tab 17 at 15-16; ID at 8. Title VII-related claims are excluded from protections

under the whistleblower protection statutes at issue in this case. See Edwards v.

Department of Labor, 2022 MSPB 9, ¶¶ 10-23, aff’d, No. 2022-1967, 2023 WL

4398002 (Fed. Cir. July 7, 2023).

Regarding the remaining 15 allegedly protected disclosures, the

administrative judge did not rule as to whether the disclosures were in fact

protected. Rather, the administrative judge described the 15 alleged disclosures

and found that, assuming that the disclosures were protected, the appellant did not

show that the disclosures were a contributing factor in the 17 nonselections at

issue. ID at 9-30. Because we find that the administrative judge correctly found

that the appellant did not show that any of the allegedly protected disclosures

were a contributing factor in the nonselections at issue, we need not determine

whether the appellant showed by preponderant evidence that each alleged

disclosure was protected.

The administrative judge correctly found that the appellant failed to show that her

remaining 15 allegedly protected disclosures were a contributing factor in the

17 nonselections at issue in this matter.

The administrative judge correctly found that, assuming that the appellant’s

remaining 15 alleged disclosures were protected, she could not show that her

disclosures were a contributing factor in her nonselections. ID at 12-30.

A protected disclosure is a contributing factor if it in any way affects an agency’s

decision to take, or fail to take, a personnel action. Dorney v. Department of the

Army, 117 M.S.P.R. 480, ¶ 14 (2012). One way to establish contributing factor is

the knowledge/timing test. Wadhwa v. Department of Veterans Affairs,

110 M.S.P.R. 615, ¶ 12, aff’d, 353 F. App’x 435 (Fed. Cir. 2009). Under that

test, an appellant can prove the contributing factor element through evidence

showing that the official taking 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. An appellant also may satisfy the knowledge prong of the

knowledge/timing test by proving that the official taking the action had

constructive knowledge of the protected disclosure, even if the official lacked

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

An appellant may establish constructive knowledge by showing that an individual

with actual knowledge of the disclosure influenced the official accused of taking

the retaliatory action. Id.; see Staub v. Proctor Hospital, 562 U.S. 411, 415-16

(2011) (adopting the term “cat’s paw” to describe a case in which a particular

management official, acting because of an improper animus, influences an agency

official who is unaware of the improper animus when implementing a personnel

action).

As discussed below, the appellant’s challenges to the administrative

judge’s findings that her 15 alleged disclosures were not a contributing factor in

17 nonselections are without merit. The appellant does not dispute the

administrative judge’s findings that her alleged disclosures were not a

contributing factor in her nonselection for vacancy announcement numbers

1176898, 1223829, 1293297, 1343574, and 1704268. She has not shown that the

October 2014 NPSB or November 2014 probationary termination constituted

retaliatory actions that were improperly considered in her nonselection for

vacancy announcement numbers 1182148 and 1213402. She also fails to show

that the Manchester VAMC director influenced the selection decision for vacancy

announcement number 1307416. Next, the appellant’s arguments that the

Manchester VAMC Human Resources Officer (HRO) was aware of her alleged

disclosures and improperly influenced the selection decision for vacancy

announcement number 1588576 are without merit. She also fails to show that her

salary determination essay informed the selecting official for vacancy

announcement numbers 1600422 and 1711692 of her alleged disclosures.

Further, the appellant has not shown that the selecting official for vacancy

announcement number 1325763 became aware of her alleged disclosures through

his involvement in an administrative investigation board (AIB) at

Manchester VAMC or that her email correspondence with the selecting official

for vacancy announcement numbers 1652067 and 1606485 informed the official

of her alleged disclosures. Finally, the appellant’s arguments that witnesses were

not credible, such that her alleged disclosures should be considered a contributing

factor in her nonselection for vacancy announcement numbers 1652067, 1221475,

and 1338682, are unpersuasive. Accordingly, we affirm the administrative

judge’s finding that the appellant did not establish the contributing factor element

of her IRA appeal.

The administrative judge properly concluded that the appellant did

not show that her alleged disclosures were a contributing factor in

her nonselection for vacancy announcement numbers 1176898,

1223829, 1293297, 1343574, 1704268, 1182148, and 1213402.

On review, the appellant does not challenge the administrative judge’s

findings that she did not show that her alleged disclosures were a contributing

factor in her nonselection for vacancy announcement numbers 1176898, 1223829,

1293297, 1343574, and 1704268. ID at 14-26. We discern no reason to disturb

the administrative judge’s well-reasoned findings with respect to these

nonselections. See Clay, 123 M.S.P.R. 245, ¶ 6.

The appellant renews her argument that her first-level supervisor at

Manchester VAMC called for an NPSB and provided records and testimony to the

NPSB in retaliation for the appellant’s prior equal employment opportunity

(EEO) activity and disclosures. PFR File, Tab 1 at 5, 7, 15-16. As set forth

above, the administrative judge properly found that the appellant is precluded

from raising a claim that the NPSB, and her resulting probationary termination,

constituted personnel actions taken in retaliation for her protected disclosures.

ID at 2 nn.1-2, 8. Accordingly, to the extent that the appellant argues that the

NPSB itself was retaliatory and resulted in her nonselections for those positions

advertised under vacancy announcement numbers 1182148, 1213402,

and 1588576, the appellant has not demonstrated that the NPSB and termination

constituted retaliatory actions and were thus improperly considered in the

selecting officials’ decisions not to select her for the positions. PFR File, Tab 1

at 5, 7, 15-16. The appellant does not otherwise challenge the administrative

judge’s findings that the selecting officials for the positions advertised under

vacancy announcement numbers 1182148 and 1213402 did not have actual or

constructive knowledge of the appellant’s alleged disclosures, and that there was

no other evidence that her disclosures were a contributing factor in these

nonselections, thus we discern no reason to disturb the administrative judge’s

findings. ID at 27-29; see Clay, 123 M.S.P.R. 245, ¶ 6. We discuss the

appellant’s other arguments regarding vacancy announcement number 1588576

below.

The appellant has not shown that the Manchester VAMC director

influenced the selection decision for vacancy announcement

number 1307416.

On review, the appellant argues that the administrative judge ignored

evidence of the Manchester VAMC director’s knowledge of her protected

activity. PFR File, Tab 1 at 14-16. The appellant argues that “[i]t is reasonable

to assume that” the Manchester VAMC director learned of the appellant’s role in

disclosing the circumstances surrounding the September 17, 2010 death of a

veteran through her involvement in agency police’s discovery of the appellant’s

past work location and prior last name. Id. at 11. The appellant also contends

that the Manchester VAMC director’s work at an agency facility in

Bedford, Massachusetts, overseeing Togus VAMC, increased the likelihood that

she was aware of the appellant’s disclosure. Id. at 11-13. Finally, the appellant

argues that the administrative judge ignored the fact that, on August 15, 2014,

she disclosed to the Manchester VAMC director that she was not trained to handle

a suicidal veteran that came to her with no mental health care provider available. 7

Id. at 12, 14-15. Regardless of whether the Manchester VAMC director was

aware of the appellant’s alleged disclosures, there is no evidence that the director

influenced any of the selection decisions at issue, as discussed below.

The appellant argues that the former associate director at White River

Junction VAMC learned from the Manchester VAMC director of the appellant’s

prior EEO activity at Manchester VAMC and that the former White River

Junction VAMC associate director then influenced the selecting official at White

River Junction VAMC to not interview the appellant for the position available

under vacancy announcement number 1307416. Id. at 8-9; see 0223 IAF, Tab 33

at 13-14. As set forth above, Title VII-related claims are excluded from

protections under the whistleblower protection statutes, thus this allegation is not

relevant to the issue of whether any of the appellant’s alleged disclosures were a

contributing factor in the nonselection. See Edwards, 2022 MSPB 9, ¶¶ 10-23.

The record supports the administrative judge’s finding that the selecting official

for this vacancy did not speak with anyone regarding the appellant, including the

former White River Junction VAMC associate director, and was unaware of the

appellant’s protected disclosures. 0223 IAF, Tab 76, Hearing Recording 1 (HR 1)

(testimony of the selecting official for vacancy announcement number 1307416),

ID at 19. Accordingly, the appellant has not shown that her protected disclosures

were a contributing factor in her nonselection for this position.

As discussed above, to the extent that the appellant alleges that her grievance

regarding the agency police search and bullying incident was protected activity, the

appellant failed to exhaust administrative remedies with OSC regarding the grievance.

0223 IAF, Tab 1 at 9-30, Tab 40 at 13-38. Similarly, there is no evidence that the

appellant exhausted her administrative remedies before OSC, with respect to the

August 15, 2014 alleged disclosure, in conjunction with the OSC complaints relevant to

this case. 0223 IAF, Tab 1 at 9-30, Tab 40 at 13-38. Accordingly, we have considered

these allegations only to the extent that the appellant contends that they show that the

15 alleged disclosures she exhausted before OSC were a contributing factor in the 17

nonselections.

The appellant did not show that the Manchester VAMC Human

Resources Officer was aware of her alleged disclosures and

improperly influenced the selection decision for vacancy

announcement number 1588576.

The appellant argues that she was not selected for positions only because

the Manchester VAMC HRO was aware of her protected disclosures and made

“retaliatory and discriminatory referrals” to selecting officials. PFR File, Tab 1

at 5, 15. The administrative judge found that, following the issuance of a

tentative offer to the appellant for the position advertised under vacancy

announcement number 1588576, the Senior Human Resources Specialist for the

Chief Business Office (SHRS) contacted the Manchester VAMC HRO for

information regarding the appellant’s employment at Manchester VAMC.

ID at 20. The Manchester VAMC HRO read to the SHRS the NPSB’s summary

of its recommendations, and the SHRS wrote down the findings and relayed them

to the selecting official and the Northeast Consolidated Patient Account Center

(NECPAC) director. ID at 20-21. The selecting official then recommended that

the appellant’s tentative offer be rescinded, and the NECPAC director concurred;

subsequently, the appellant’s tentative offer was rescinded. ID at 21.

The administrative judge observed that the Manchester VAMC HRO became

aware of a congressional inquiry regarding the appellant but did not discuss any

disclosures with anyone. ID at 20-21. She also found that the SHRS did not

inform the selecting official or NECPAC director of any disclosures or otherwise

influence their decision. ID at 21. Finally, she found that the agency advanced a

legitimate reason for rescinding the offer. ID at 21-22.

We modify the administrative judge’s analysis of whether the selecting

official and the NECPAC director had constructive knowledge of the appellant’s

disclosures to clarify that the proper inquiry is whether an individual with actual

knowledge of the disclosure influenced the official accused of taking the

retaliatory action. Nasuti, 120 M.S.P.R. 588, ¶ 7. Such influence does not

require the individual to actually inform the official of the disclosure.

See Aquino v. Department of Homeland Security, 121 M.S.P.R. 35, ¶¶ 20-21

(2014) (affirming the administrative judge’s decision to impute knowledge of the

appellant’s disclosures to the proposing and deciding official in his removal

where the appellant’s supervisor learned of the appellant’s disclosure and

reported concerns about the quality of his performance to upper management a

few days later). The issue here is whether the Manchester VAMC HRO was

aware of the appellant’s disclosures and improperly influenced the SHRS, who in

turn influenced the selecting official and the NECPAC director.

It is undisputed that the Manchester VAMC HRO was aware that the NPSB

convened and recommended terminating the appellant, but the record does not

reflect that he was aware of any of the appellant’s alleged disclosures as a result

of his involvement with the NPSB. HR 1 (testimony of the Manchester VAMC

HRO and the Manchester VAMC director). The Manchester VAMC HRO

testified that he was aware of an inquiry from Senator Ayotte but could not

remember what it was about and whether he became aware of it before or after he

received two calls regarding the appellant from NECPAC. Id. (testimony of the

Manchester VAMC HRO). The record reflects that the Manchester VAMC

responded to Senator Ayotte’s inquiry in February 2016, two months prior to the

SHRS’s April 2016 call to the Manchester VAMC HRO. 0223 IAF, Tab 34 at 14.

The response referenced the Senator’s inquiry into the appellant’s termination and

that the appellant was informed of her right to file a complaint if she believed the

termination was based on discrimination because of race, color, religion, national

origin, age, or disability. Id. The response also referred the Senator to the

Manchester VAMC HRO for any further questions. Id. The record thus reflects

that the Manchester VAMC HRO was aware of the Senator’s inquiry on the

appellant’s behalf prior to the SHRS’s call.

However, the record does not suggest that the Manchester VAMC HRO was

aware that the appellant had made any protected disclosures to the Senator’s

office. The content of the inquiry the Senator sent to the agency is not in the

record, and the agency’s response only references the appellant’s termination and

an allegation of discrimination, neither of which can be construed to constitute

protected activity under the WPEA. Accordingly, the appellant did not show that

the Manchester VAMC HRO was aware of her alleged disclosures, thus there is

no basis upon which to conclude that the Manchester VAMC HRO improperly

influenced the SHRS or the selecting official for the vacancy. The appellant does

not argue that the selecting official or the NECPAC director had actual

knowledge of the appellant’s alleged disclosures, and, as discussed below, there

is no evidence that the SHRS was aware of the disclosures. Accordingly, the

appellant has not shown that her protected disclosures were a contributing factor

in this nonselection.

The appellant did not show that her salary determination essay

informed the selecting official for vacancy announcement numbers

1600422 and 1711692 of her alleged disclosures.

The appellant argues that the selecting official for vacancy announcement

numbers 1600422 and 1711692 was aware of her disclosures because she

accessed the appellant’s “9 dimensions” salary determination essay and thus

rescinded the job offer for vacancy 1588576. PFR File, Tab 1 at 14. There is no

evidence that the selecting official for vacancy announcement numbers 1600422

and 1711692 was involved in the selection for vacancy announcement number

1588576. To the extent that the appellant argues that the SHRS was aware of her

protected disclosures because he reviewed the appellant’s essay, we find her

arguments unpersuasive. See id. at 13-14.

The administrative judge did not address the essay in her analysis of the

SHRS’s knowledge of the appellant’s protected disclosures. The record reflects

that, after the appellant received a tentative offer, the SHRS requested that the

appellant explain her experience within each of the Dimensions of Nursing and

return her explanation to him for provision to a nurse professional standards

board to determine her starting salary. 0223 IAF, Tab 5 at 32-33. The SHRS

acknowledged that he most likely received the appellant’s response but did not

read it because it was to go to the board. 0223 IAF, Tab 54 at 19-27, Tab 92,

Hearing Recording 3 (HR 3) (testimony of the SHRS). Even if the SHRS read the

document, it is insufficient to notify him that the appellant had made protected

disclosures. In the document, the appellant discusses the September 17, 2010

death of a veteran but describes her role as an “advocate for nurses working

w[ith] staffing shortages, attempting to follow organizational policy and

procedures for documentation, and attempting to instill a moral compass in a vast

healthcare setting.” 0223 IAF, Tab 54 at 21. Additionally, the appellant

describes an August 12, 2014 incident with a suicidal veteran. Id. Nothing in the

description of these incidents suggests that the appellant disclosed wrongdoing

about the veteran’s death.

The appellant did not show that the selecting official for vacancy

announcement number 1325763 learned of her alleged disclosures

because of his involvement in an administrative investigation board

at Manchester VAMC.

The appellant also argues that the selecting official for vacancy

announcement number 1325763 was aware of her prior EEO and whistleblower

activities through the AIB that he conducted at the Manchester VAMC director’s

request. PFR File, Tab 1 at 14-15. She alleges that, despite this knowledge, the

selecting official invited her to interview for a position but did not select her for

the position. Id. The administrative judge found that the appellant applied for,

and was interviewed for, an RN (Care Manager) position in the Fitchburg

Outpatient Clinic, advertised under vacancy announcement number 1325763,

but was not selected for the position. ID at 17-18. One of the three selection

panel members also served as one of two fact -finders tasked with conducting a

January 2015 AIB at Manchester VAMC regarding incidents involving the

appellant’s former first-level supervisor at Manchester VAMC. HR 1 (testimony

of the panelist for vacancy announcement number 1325763). Although the

appellant contended that she requested to be interviewed for the AIB,

the administrative judge found credible the panelist’s testimony that he was given

a list of employees who wanted to be interviewed, and that he was unaware that

the appellant was one of her former first-level supervisor’s subordinates,

particularly because the appellant had been terminated prior to the initiation of

the investigation. ID at 18-19. She also found his testimony credible that he was

unaware of the appellant’s history at Manchester VAMC. ID at 19. On review,

the appellant does not identify any specific error in the administrative judge’s

findings, and we discern no reason to disturb them.

The appellant has not shown that her email correspondence with the

selecting official for vacancy announcement numbers 1652067 and

1606485 informed the selecting official of her alleged disclosures.

Next, the appellant argues that, after she sent the Nurse Manager of

Recruitment and Staffing at Lebanon VAMC a statement reflecting her protected

activity, she was not selected for the position advertised under vacancy

announcement number 1652067. PFR File, Tab 1 at 15. The administrative judge

found that neither management official on the selection panel was aware of the

appellant’s alleged disclosures. ID at 22-23. However, in her analysis for this

vacancy, the administrative judge did not address that the appellant had sent the

Nurse Manager of Recruitment and Staffing a March 31, 2016 email that the

appellant alleged contained protected disclosures, and that she was notified that

she was not selected for the position on April 27, 2016. 8 0223 IAF, Tab 5

at 39-40, Tab 54 at 30-31.

In her March 31, 2016 email, the appellant stated that she “[w]as bullied by

co-workers and attacked by a co-worker for [her] race,” and in retaliation for

reporting the racially motivated bullying or attack to the police and

Manchester VAMC officials, her supervisor brought her before an NPSB, and the

agency terminated her due to false information placed in her file by the

The administrative judge did address this email with respect to another vacancy,

however, and concluded that the email did not reference the appellant’s whistleblowing

activities. ID at 23-24.

individuals who bullied her. 0223 IAF, Tab 54 at 30-31. The appellant’s

allegations fall squarely within the confines of Title VII and are excluded from

whistleblower protection statutes. 9 See Edwards, 2022 MSPB 9, ¶¶ 10-23.

Accordingly, we find that the appellant’s March 31, 2016 email does not

constitute a protected disclosure, and thus, we agree with the administrative judge

that the Nurse Manager of Recruitment and Staffing was not aware of the

appellant’s protected disclosures, nor was she influenced by anyone with actual

knowledge of the disclosures. ID at 22-23. With respect to vacancy

announcement number 1606485, we agree with the administrative judge that the

appellant sent the March 31, 2016 email to the Nurse Manager of Recruitment and

Staffing after she was notified of her nonselection on March 18, 2016, thus it

could not have been a contributing factor in her nonselection. ID at 23-24;

Sherman v. Department of Homeland Security, 122 M.S.P.R. 644, ¶ 8 (2015)

(stating that a disclosure that occurs after the personnel action at issue was taken

cannot be considered a contributing factor in that personnel action).

The appellant’s arguments regarding witnesses’ lack of credibility

do not warrant finding that her alleged disclosures were a

contributing factor in the selection decisions for vacancy

announcement numbers 1652067, 1221475, and 1338682.

The appellant argues that the testimony of several witnesses was not

credible. First, the appellant argues that all of the selecting officials who testified

during the hearing regarding positions to which the appellant applied in

Pennsylvania testified that the appellant was not qualified, and that their

testimony is not credible because they identified the appellant by her actual name,

rather than the name she used to apply for the positions to protect her identity.

PFR File, Tab 1 at 4-5. Of the 10 positions located in Pennsylvania for which the

To the extent that the appellant alleges that she disclosed in her March 31, 2016 email

that she was bullied by coworkers for reasons other than her race, the email contains no

details or specifics regarding the bullying. 0223 IAF, Tab 54 at 30-31. An allegation

of bullying, without more information, is too vague to constitute a protected disclosure.

See Gabel v. Department of Veterans Affairs, 2023 MSPB 4, ¶ 6 (stating that disclosures

must be specific and detailed, not vague allegations of wrongdoing).

appellant applied, the selecting officials for 5 positions, advertised under vacancy

announcement numbers 1305865, 1600422, 1606485, 1652067, and 1711692,

testified. HR 1 (testimony of the Nurse Manager, Behavioral Health Unit,

Lebanon VAMC), HR 3 (testimony of the selecting officials for vacancy

announcement numbers 1305865, 1600422, 1606485, and 1711692, and the

Nurse Manager, Recruitment and Staffing, Lebanon VAMC). 10 Of those selecting

officials, only the Nurse Manager of the Behavioral Health Unit at Lebanon

VAMC, one of the interview panelists for vacancy announcement number

1652067, testified that she knew the appellant by her actual name. HR 1

(testimony of the Nurse Manager, Behavioral Health Unit, Lebanon VAMC). The

appellant did not question the witness further on this issue but generally noted it

in her closing argument. Id. (testimony of the Nurse Manager, Behavioral Health

Unit, Lebanon VAMC), HR 3 (the appellant’s closing argument). The

administrative judge nevertheless found this witness’ testimony credible. ID

at 22-23.

The Board must defer to an administrative judge’s credibility

determinations when they are based, explicitly or implicitly, on the observation of

the demeanor of witnesses testifying at a hearing. Haebe v. Department of

Justice, 288 F.3d 1288, 1301 (Fed. Cir. 2002). Although the Board may decline

to defer to an administrative judge’s credibility findings that are abbreviated,

based on improper considerations, or unsupported by the record, Redschlag v.

Department of the Army, 89 M.S.P.R. 589, ¶ 13 (2001), it may not overturn an

administrative judge’s demeanor-based credibility findings merely because it

disagrees with those findings, Purifoy v. Department of Veterans Affairs ,

838 F.3d 1367, 1372 (Fed. Cir. 2016) (quoting Haebe, 288 F.3d at 1299).

Although the administrative judge did not mention considering this issue in

assessing the witness’ credibility, her failure to mention all of the evidence of

The administrative judge found that the interview panelists for vacancy

announcement number 1652067 each recalled that the other was the designated

selecting official. ID at 22-23.

record does not mean that she did not consider it in reaching her decision.

Marques v. Department of Health and Human Services, 22 M.S.P.R. 129, 132

(1984), aff’d, 776 F.2d 1062 (Fed. Cir. 1985) (Table). This issue is not one that

warrants overturning the administrative judge’s well-reasoned finding that this

particular selecting official was credible.

The appellant also argues that the selecting official for vacancy

announcement number 1221475 testified that the appellant did not have primary

care experience and that this testimony is false. PFR File, Tab 1 at 7.

However, the administrative judge found that the selecting official testified that

she was not aware of the appellant’s whistleblowing activity, did not recognize

the names of agency employees aware of the activity, and was not contacted by

anyone regarding the appellant’s application for the position, and that the

appellant did not refute this testimony. HR 1 (testimony of the selecting official

for vacancy announcement number 1221475); ID at 15. The appellant does not

dispute these findings on review. The record reflects that the administrative

judge properly concluded that the selecting official for this position did not have

actual or constructive knowledge of the appellant’s alleged disclosures, thus the

appellant did not show that her disclosures were a contributing factor in her

nonselection for the position. ID at 15.

The appellant further argues that the Human Resources Specialist who

testified regarding the selection process for vacancy announcement

number 1338682 is not credible because, contrary to her testimony, Article 23 of

the Master Agreement “says nothing about referring the internal candidates to the

selecting official first” and that her testimony that the appellant was not referred

because she was an external candidate must be disregarded. PFR File, Tab 1 at 6.

The administrative judge found that the Master Labor Agreement in effect for the

relevant facility provided that the agency was required to first consider internal

candidates for vacant RN positions, and we agree. ID at 16. Article 23,

Section 8(B) of the Master Labor Agreement between the agency and its

exclusive bargaining representative provides that, “Prior to considering

candidates from outside the bargaining unit, the Department agrees to first

consider internal candidates for selection.” 0223 IAF, Tab 79 at 18.

The appellant’s argument is without merit.

Next, the appellant argues that the testimony of one of the selecting

officials at Lebanon VAMC that the appellant did not have enough mental health

experience is false because the appellant worked in the Mental Healthcare unit in

Manchester VAMC. PFR File, Tab 1 at 7. The appellant does not identify which

selecting official so testified or cite to the record in support of her argument. Id.

We find this argument too vague to warrant reversal of the initial decision.

Finally, the appellant argues that she was better qualified than all of the

selectees for the vacancies at issue and that her probationary termination did not

disqualify her from being interviewed and hired. Id. at 5-6. Given the

administrative judge’s well-reasoned findings that the selecting officials for the

positions at issue were not aware of her alleged disclosures and credibly testified

to legitimate reasons for their decisions not to select her, her arguments are

unpersuasive.

The appellant has not shown that the administrative judge erred in denying her

motion to compel the production of certain documents or in denying her request

for certain witnesses to testify.

On review, the appellant argues that the administrative judge erred in

denying her motion to compel the agency to produce requested documents.

PFR File, Tab 1 at 4. An administrative judge has broad discretion in ruling on

discovery matters and, absent a showing of an abuse of discretion, the Board will

not find reversible error in such rulings. Kingsley v. U.S. Postal Service,

123 M.S.P.R. 365, ¶ 16 (2016). Here, the appellant appears to be referring to the

administrative judge’s denial of her motion to compel the agency to identify the

location of documents responsive to her requests for the production of documents

in the agency file. 0223 IAF, Tab 21 at 3, Tab 23. In denying the appellant’s

motion to compel, the administrative judge noted that the agency had organized

the agency file by each nonselection at issue and that the appellant had not cited a

regulation requiring the agency to respond to her requests in the manner she

desired. 0223 IAF, Tab 23. On review, the appellant has not articulated a basis

for her continued assertion that the administrative judge erred in denying her

motion to compel, and the record does not reflect that the administrative judge’s

ruling constituted an abuse of discretion; thus, we decline to reverse it.

The appellant also argues that the administrative judge erred in denying her

requests to call the initial selecting official for vacancy announcement number

1588576 as a rebuttal witness. 0223 IAF, Tab 85; PFR File, Tab 1 at 9.

An administrative judge has wide discretion to exclude witnesses where it has not

been shown that their testimony would be relevant, material, and nonrepetitious.

Fox v. Department of the Army, 120 M.S.P.R. 529, ¶ 42 (2014). The appellant

asserts that the Manchester VAMC HRO read to the initial selecting official the

NPSB’s recommendation and that the initial selecting official then rescinded the

tentative offer made to the appellant for the position advertised under vacancy

announcement number 1588576. PFR File, Tab 1 at 9. However, the

administrative judge found that the Manchester VAMC HRO read the NPSB’s

recommendation to SHRS, not to the initial selecting official. ID at 20-21.

The administrative judge also found that the initial selecting official made the

original selection that resulted in a tentative offer to the appellant, but that she

changed jobs, and her replacement subsequently learned of the NPSB’s

recommendation from the SHRS and recommended rescinding the appellant’s

offer. Id. The record, which includes testimony from the SHRS on the subject, is

consistent with the administrative judge’s findings. 0223 IAF, Tab 9 at 61-63,

HR 1 (testimony of the NECPAC director and the Manchester VAMC HRO),

HR 3 (testimony of the SHRS). The appellant does not point to any evidence that

contradicts the administrative judge’s findings or identify how the initial

selecting official’s testimony would have been relevant to the nonselection.

Thus, we find no abuse of discretion in the administrative judge’s ruling.

See Fox, 120 M.S.P.R. 529, ¶ 42.

Finally, the appellant argues that the administrative judge erred in denying

the appellant’s request to call the selecting official for vacancy announcement

numbers 1600422 and 1711692 in her case-in-chief and only allowing her to

testify on rebuttal. 0223 IAF, Tab 61 at 4, Tab 85 at 1; PFR File, Tab 1 at 14.

She contends that this selecting official was aware of her disclosure of the

September 2010 death of a veteran and, with advice from the Manchester VAMC

director and the SHRS, rescinded the appellant’s offer for the position advertised

under vacancy announcement number 1588576. PFR File, Tab 1 at 14.

The record does not reflect that this selecting official was involved with vacancy

announcement number 1588576; moreover, this selecting official testified that

she did not speak with anyone at NECPAC or Manchester VAMC regarding the

appellant, nor was she aware that the appellant had been terminated from

Manchester VAMC. HR 3 (testimony of the selecting official for vacancy

announcement numbers 1600422 and 1711692); ID at 24-25. The appellant does

not explain what additional testimony this selecting official would have provided

in her case-in-chief rather than on rebuttal. Our review of the record reflects no

abuse of discretion in the administrative judge’s ruling limiting this selecting

official’s testimony to rebuttal.

Accordingly, we affirm the administrative judge’s conclusion that the

appellant failed to prove that her alleged disclosures were a contributing factor in

her nonselections and affirm the initial decision denying her request for

corrective action as modified herein. We vacate the administrative judge’s

dismissal of the request for corrective action, as dismissal is inappropriate where

the appeal is denied on the merits. See ID at 30.

NOTICE OF APPEAL RIGHTS 11

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. 12 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