Opinion

Patricia E Giardina v. Department of the Navy

Court: Merit Systems Protection Board
Filed: Aug 2, 2024
Status: Unpublished
Cited by: 0 cases
Authority: More cited than 30.4%

explaining that the Board lacks jurisdiction in an IRA appeal over claims of reprisal for EEO activity protected under section 2302(b)(9)(A)(ii)

How later courts described this case

explaining that the Board lacks jurisdiction in an IRA appeal over claims of reprisal for EEO activity protected under section 2302(b)(9)(A)(ii)

Written by the judges who cited it.

The opinion

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

PATRICIA ELLEN GIARDINA, DOCKET NUMBER

Appellant, AT-1221-20-0813-W-1

DEPARTMENT OF THE NAVY, DATE: August 2, 2024

Agency.

THIS FINAL ORDER IS NONPRECEDENTIAL 1

Georgia A. Lawrence , Esquire, and Shaun Southworth , Esquire, Atlanta,

Georgia, for the appellant.

David Kendrick , Esquire, Panama City, Florida, 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.

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. On

petition for review, the appellant argues that the administrative judge erred in

A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

finding that she failed to exhaust her administrative remedies before the Office of

Special Counsel (OSC) or nonfrivolously allege that her disclosures were

protected. Petition for Review (PFR) File, Tab 1 at 5-6. She also argues that she

nonfrivolously alleged that her disclosures were a contributing factor in the

personnel actions taken against her. Id. at 7-8. 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 failed to nonfrivolously allege that she

engaged in protected activity under 5 U.S.C. § 2302(b)(9)(A), we AFFIRM the

initial decision.

The Board may consider only those disclosures of information and

personnel actions that the appellant raised before OSC. Mason v. Department of

Homeland Security, 116 M.S.P.R. 135, ¶ 8 (2011). The administrative judge

properly found that the appellant failed to exhaust her administrative remedies

regarding a 2012 equal employment opportunity (EEO) complaint, May 2019

report to an agency official regarding a hiring selection, and July 2019 email to

her supervisor objecting to workplace harassment. Initial Appeal File, Tab 7,

Initial Decision (ID) at 5-6. Therefore, we need not address on review the

appellant’s arguments that these disclosures were protected under 5 U.S.C.

§ 2302(b)(8). PFR File, Tab 1 at 5-6; see Clarke v. Department of Veterans

Affairs, 121 M.S.P.R. 154, ¶ 16 (2014).

The appellant has not challenged on review, and we see no reason to

disturb, the administrative judge’s findings that she has not nonfrivolously

alleged that the contents of her 2014 and 2019 EEO complaints, concerning

claims of discrimination and reprisal for prior EEO activity, constituted protected

disclosures of the types of wrongdoing set forth in section 2302(b)(8). ID at 6;

PFR File, Tab 1 at 4-8. After the issuance of the initial decision, the Board

clarified that EEO activity is considered protected activity under 5 U.S.C.

§ 2302(b)(9)(A)(i) only when it seeks to remedy whistleblower reprisal under

5 U.S.C. § 2302(b)(8). Edwards v. Department of Labor, 2022 MSPB 9,

¶¶ 24-25; Mudd v. Department of Veterans Affairs, 120 M.S.P.R. 365, ¶¶ 6-7

(2013) (explaining that filing a grievance, which does not itself seek to remedy

whistleblower reprisal, is not protected activity under the Whistleblower

Protection Enhancement Act of 2012). We clarify that the appellant has not

nonfrivolously alleged that either her 2014 or 2019 EEO complaints concerned

remedying a violation of 5 U.S.C. § 2302(b)(8), and, therefore, the Board lacks

jurisdiction over these allegations as protected activity under section 2302(b)(9)

(A). See Edwards, 2022 MSPB 9, ¶¶ 24-25; see also Young v. Merit Systems

Protection Board, 961 F.3d 1323, 1329 (Fed. Cir. 2020) (explaining that the

Board lacks jurisdiction in an IRA appeal over claims of reprisal for EEO activity

protected under section 2302(b)(9)(A)(ii)).

NOTICE OF APPEAL RIGHTS 2

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

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.

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:

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. 3 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