Sonya Jones v. Department of Veterans Affairs

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

SONYA R. JONES, DOCKET NUMBER

Appellant, AT-1221-20-0649-W-1

v.

DEPARTMENT OF VETERANS DATE: August 15, 2024

AFFAIRS,

Agency.

THIS ORDER IS NONPRECEDENTIAL 1

Raymond Mitchell , Columbia, South Carolina, for the appellant.

Karla Brown Dolby , Esquire, Decatur, Georgia, for the agency.

Karen Rodgers , Esquire, Montgomery, Alabama, 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.

REMAND 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. For

1

A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

2

the reasons discussed below, we GRANT the appellant’s petition for review,

REVERSE the initial decision, and REMAND the case to the regional office for

further adjudication in accordance with this Remand Order.

BACKGROUND

On July 2, 2020, the appellant, a GS-9 Contract Specialist, filed an appeal

with the Board alleging that the agency had exhibited favoritism and denied her

the opportunity for a promotion as a result of her union affiliation. Initial Appeal

File (IAF), Tab 1 at 2-3. The appellant also alleged that the agency preselected

whom it hired based on personal relationships. Id. at 3. With her initial appeal

form, the appellant provided a May 4, 2020 close-out letter from the Office of

Special Counsel (OSC) wherein OSC indicated that it was closing its

investigation into the appellant’s allegations that, because of her union affiliation,

“job opportunities [were] limited, [she] received comments on [her] performance

review, and managers [had] made statements about the amount of time [she spent]

on union matters.” Id. at 8. The appellant requested a hearing on the matter. Id.

at 2.

The administrative judge issued a jurisdictional order wherein he explained

the circumstances under which the Board has jurisdiction to adjudicate IRA

appeals, and he ordered the appellant to file specific evidence and argument

regarding jurisdiction. IAF, Tab 3 at 1-8. In response, the appellant identified

her protected disclosure/activity as “[l]ocal [u]nion [r]epresentative” and

“[r]eported unethical/unfair labor practices by management to [third] parties.”

IAF, Tab 6 at 4. She identified the personnel action at issue as “[c]ontinue[d] to

overlook [the] appellant and manipulate the hiring process as well as the

promotion process which [did] not give her a fair opportunity to advance in her

career.” Id. at 4-5.

Without holding the appellant’s requested hearing, the administrative judge

issued an initial decision dismissing the appeal for lack of jurisdiction. IAF,

Tab 12, Initial Decision (ID) at 1, 10. The administrative judge concluded that

3

the appellant had failed to make a nonfrivolous allegation that she had either

made a protected disclosure or engaged in protected activity insofar as her

assertions related thereto were “impermissibly vague.” ID at 6-7, 9. In so

finding, he explained that the appellant’s mere union affiliation and/or status as a

union representative did not constitute protected activity under 5 U.S.C.

§ 2302(b)(9). ID at 9. He also concluded that the appellant had failed to make a

nonfrivolous allegation of a personnel action. ID at 7-9.

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

response. Petition for Review (PFR) File, Tabs 1, 3. The appellant provides

additional documents with her petition for review. PFR File, Tab 1 at 6-129.

DISCUSSION OF ARGUMENTS ON REVIEW

To establish jurisdiction in a typical IRA appeal, an appellant must show

by preponderant evidence 2 that she exhausted her remedies before OSC and make

nonfrivolous allegations of the following: (1) she made a disclosure described

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

5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D); and (2) the disclosure or protected

activity was a contributing factor in the agency’s decision to take or fail to take a

personnel action as defined by 5 U.S.C. § 2302(a). Corthell v. Department of

Homeland Security, 123 M.S.P.R. 417, ¶ 8 (2016), overruled on other grounds by

Requena v. Department of Homeland Security , 2022 MSPB 39. A nonfrivolous

allegation is an assertion that, if proven, could establish the matter at issue.

5 C.F.R. § 1201.4(s). The U.S. Court of Appeals for the Federal Circuit has

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

allegation of “sufficient factual matter, accepted as true, to state a claim that is

plausible on its face.” Hessami v. Merit Systems Protection Board, 979 F.3d

1362, 1364, 1369 (Fed. Cir. 2020).

2

Preponderant evidence is the degree of relevant evidence that a reasonable person,

considering the record as a whole, would accept as sufficient to find that a contested

fact is more likely to be true than untrue. 5 C.F.R. § 1201.4(q).

4

For the reasons set forth herein, we disagree with the administrative

judge’s conclusion that the appellant failed to establish Board jurisdiction, and

we remand the matter for adjudication of the merits. Of note, the appellant

asserts on review that she “was not aware that she was required to present all

evidence while the [a]dministrative [j]udge was determining jurisdiction,” PFR

File, Tab 1 at 4, and she provides additional allegations and evidence, to include a

narrative statement, a witness statement, emails, and various correspondence with

OSC personnel, id. at 6-129. The Board generally will not consider evidence

submitted for the first time on review absent a showing that it was unavailable

before the record was closed despite the party’s due diligence, nor will it

generally consider an argument raised for the first time in a petition for review

absent a showing that it is based on new and material evidence not previously

available despite the party’s due diligence. Banks v. Department of the Air

Force, 4 M.S.P.R. 268, 271 (1980); Avansino v. U.S. Postal Service, 3 M.S.P.R.

211, 214 (1980). Because the appellant here fails to show that the new

evidence/argument that she provides was unavailable to her despite her due

diligence, we herein cite the same only insofar as it clarifies and provides context

for allegations that the appellant made before the administrative judge.

The appellant made a nonfrivolous allegation that she made a protected disclosure

under 5 U.S.C. § 2302(b)(8) and showed that she exhausted her administrative

remedies regarding this disclosure.

The appellant has averred that, in January 2020, she asked her supervisor

why a particular employee had been promoted to a GS-11 position even though

the agency had never posted a vacancy announcement for such a position. IAF,

Tab 6 at 5; PFR File, Tab 1 at 8. She alleged that she questioned agency

management personnel as to why she and other eligible employees had not been

permitted to compete for this position. IAF, Tab 1 at 3, Tab 6 at 5; PFR File,

Tab 1 at 8. The appellant explains that, after her supervisor failed to answer her

verbal and written inquiries, she contacted both the Acting Director/Deputy

5

Director of Contracting and the former Director of Contracting regarding this

issue. PFR File, Tab 1 at 8. She also explains that “after [she] continued

questioning the promotion to management and [the American Federation of

Government Employees (AFGE)]” it came to light that the selectee and the

Acting Director/Deputy Director of Contracting were acquaintances who had

attended the same church and, ultimately, the selectee’s promotion did not occur .

Id. at 9; IAF, Tab 6 at 5.

A protected disclosure is one that an appellant reasonably believes

evidences any 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 and safety. Mudd v. Department of Veterans Affairs, 120 M.S.P.R.

365, ¶ 5 & n.3 (2013). The proper test for determining whether an employee had

a reasonable belief that her disclosures were protected is whether a disinterested

observer with knowledge of the essential facts known to and readily ascertainable

by the employee could reasonably conclude that the actions evidenced any of the

conditions set forth in 5 U.S.C. § 2302(b)(8). Id., ¶ 5.

Here, we find that the appellant may reasonably have believed that, in

alerting management to the agency’s failure to advertise and/or permit

competition for a particular position, she had disclosed a violation of law, rule, or

regulation and/or an abuse of authority regarding the agency’s selection process.

See McDonnell v. Department of Agriculture , 108 M.S.P.R. 443, ¶¶ 10-13 (2008)

(finding that the appellant made a nonfrivolous allegation of statutory violations

of 5 U.S.C. § 2302(b)(6) and (b)(12) when she made a disclosure regarding hiring

and selection improprieties).

Thus, we conclude that the appellant has made a nonfrivolous allegation of

one protected disclosure under 5 U.S.C. § 2302(b)(8), i.e., her January 2020

disclosure regarding improprieties with an agency hiring decision. Moreover, we

find that she exhausted her administrative remedies regarding this disclosure

insofar as she provided an OSC Form-14 wherein she made specific allegations to

6

OSC regarding this disclosure. PFR File, Tab 1 at 101-02; see Mudd,

120 M.S.P.R. 365, ¶ 12 (explaining that an appellant can demonstrate exhaustion

by providing, among other things, her OSC complaint).

The appellant made a nonfrivolous allegation that she engaged in protected

activity under 5 U.S.C. § 2302(b)(9)(B) and showed that she exhausted her

administrative remedies regarding this activity.

The appellant indicated that, since 2011, she has served as the sole union

representative/union steward for her office. IAF, Tab 6 at 4; PFR File, Tab 1

at 14-15, 97. Documentation that she provides clarifies that her duties as union

steward include both (1) mediation and (2) “speak[ing] up when things are not in

accordance with [p]olicy” on behalf of agency employees. PFR File, Tab 1 at 18,

88. In her filings before the administrative judge, the appellant identified as a

protected activity “AFGE: incidents vary from 2017 — 2020,” IAF, Tab 6 at 4

(punctuation as in original), and, on review, in the context of discussing her union

affiliation, she clarifies that she made unspecified “informal and formal

complaints” on account of her “willingness to report unethical practices,” PFR

File, Tab 1 at 7, 15.

Performing certain union-related duties, such as filing grievances and

representing other employees in the grievance process, constitutes protected

activity under 5 U.S.C. § 2302(b)(9). Alarid v. Department of the Army,

122 M.S.P.R. 600, ¶ 10 (2015); see Carney v. Department of Veterans Affairs,

121 M.S.P.R. 446, ¶¶ 5-6 (2014) (concluding that an appellant engaged in

protected activity when he represented an agency employee during an informal

grievance proceeding). Here, we find that the appellant’s assertions are

sufficient, at the jurisdictional stage, to amount to a nonfrivolous allegation that

she “lawfully assist[ed]” individuals in “the exercise of any appeal, complaint, or

grievance right granted by any law, rule, or regulation.” See 5 U.S.C. § 2302(b)

(9)(B). 3 Indeed, assisting and/or representing other employees in the grievance

3

Although 5 U.S.C. § 1221(a) limits Board appeal rights under 5 U.S.C. § 2302(b)(9)

(A) to individuals who exercised appeal, complaint, or grievance rights under (i), with

7

process, informal or otherwise, are typical duties of a union steward. See

Hessami, 979 F.3d at 1369 n.5; see also Grimes v. Department of the Navy ,

96 M.S.P.R. 595, ¶ 12 (2004) (stating that any doubt or ambiguity as to whether

the appellant made nonfrivolous jurisdictional allegations should be resolved in

favor of affording the appellant a hearing).

Thus, we conclude that the appellant has made a nonfrivolous allegation

that she engaged in protected activity under 5 U.S.C. § 2302(b)(9)(B) insofar as

we interpret her assertions as allegations that, during her tenure as union steward,

she frequently assisted with complaints and/or grievances on behalf of other

agency employees. Insofar as the appellant provides both an OSC Form -14 and a

letter from OSC evincing that she raised this activity with OSC, we also find that

she showed by preponderant evidence that she exhausted her administrative

remedies regarding the same. PFR File, Tab 1 at 98-99, 127.

The appellant made nonfrivolous allegations of three personnel actions under

5 U.S.C. § 2302(a) and showed that she exhausted her administrative remedies

regarding the same.

The definition of “personnel action” includes a nonselection, i.e., an

agency’s failure to make “an appointment.” See 5 U.S.C. § 2302(a)(2)(A)(i).

Here, the appellant identifies three specific instances in which she was not

selected for a position with the agency. First, she alleges that, in January 2018,

agency management decided to promote a less-qualified candidate to a GS-11

position for which she had interviewed. PFR File, Tab 1 at 10. Second, the

appellant, who resides in Columbia, South Carolina, asserts that, in September

2019, the agency posted a vacancy announcement for another GS-11 position for

which she was qualified; however, the vacancy announcement did not list

Columbia, South Carolina, as one of the permissible geographical locations for

this position and, accordingly, the appellant did not apply. IAF, Tab 1 at 2; PFR

regard to remedying a violation of section 2302(b)(8), there is no such jurisdictional

restriction for individuals filing a Board appeal pursuant to 5 U.S.C. § 2302(b)(9)(B).

Carney, 121 M.S.P.R. 446, ¶ 6 n.3.

8

File, Tab 1 at 7-8, 28-30. She avers that the agency nonetheless hired a candidate

for its Columbia location from this vacancy announcement, i.e., that the agency

misleadingly advertised the position to purposefully dissuade her from applying.

PFR File, Tab 1 at 7-8. Last, as discussed above, the appellant alleges that, in

December 2019, she learned that another employee was being promoted to a GS-

11 position despite the agency never advertising this promotional opportunity;

however, following her purported disclosures regarding the agency’s selection

process, the employee ultimately did not receive the promotion. IAF, Tab 6 at 5;

PFR File, Tab 1 at 8-9, 33-39. We find that, through these assertions, the

appellant has made nonfrivolous allegations of three nonselections, i.e., three

personnel actions under 5 U.S.C. § 2302(a)(2)(A)(i). See Ruggieri v. Merit

Systems Protection Board, 454 F.3d 1323, 1326 (Fed. Cir. 2006) (explaining that

a nonselection is a cognizable personnel action even when the agency does not

select another candidate to fill the subject position); see also Weed v. Social

Security Administration, 113 M.S.P.R. 221, ¶¶ 4, 13-17 (2010) (concluding that

an agency’s purported use of “a particular selection process as part of a scheme

that would deny a whistleblower an opportunity to seek [an] appointment”

constituted a nonfrivolous allegation of a nonselection). Moreover, insofar as the

appellant provided an OSC Form-14 and a close-out letter evincing that she raised

with OSC the agency’s purported efforts to hamper her promotion to a GS-11

position, we find that she has exhausted her administrative remedies regarding the

same. IAF, Tab 1 at 8; PFR File, Tab 1 at 97-102, 107.

The appellant has satisfied the contributing factor jurisdictional criterion

regarding her protected activity under 5 U.S.C. § 2302(b)(9)(B) only.

To satisfy the contributing factor criterion at the jurisdictional stage, an

appellant need only raise a nonfrivolous allegation that the fact of, or content of,

the protected disclosure or activity was one factor that tended to affect the

personnel action in any way. See Salerno v. Department of the Interior,

123 M.S.P.R. 230, ¶ 13 (2016). One way that an appellant may satisfy this

9

criterion is through circumstantial evidence, such as evidence that the official

taking the personnel actions at issue knew of the appellant’s protected disclosure/

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

reasonable person could conclude that the protected disclosure/activity was a

contributing factor in the personnel actions at issue. 5 U.S.C. § 1221(e)(1)(A)-

(B); Salerno, 123 M.S.P.R. 230, ¶ 13.

Here, although we find that the appellant made a nonfrivolous allegation of

a protected disclosure under 5 U.S.C. § 2302(b)(8), insofar as all of the personnel

actions at issue predated this January 2020 disclosure, the appellant’s disclosure

could not have contributed to the same. See El v. Department of Commerce,

123 M.S.P.R. 76, ¶ 10 (2015) (explaining that because the subject personnel

action predated the disclosure, there was no way that the disclosure could have

contributed to the personnel action), aff’d, 663 F. App’x 921 (Fed. Cir. 2016).

Regarding her 5 U.S.C. § 2302(b)(9)(B) activity, however, the appellant has

indicated that she has continually represented agency employees in her capacity

as union steward from 2011 to the present. IAF, Tab 6 at 4; PFR File, Tab 1

at 14-15. Indeed, her filings clarify that, in April 2018, agency leadership was

notified that she had been “granted 50% official time for union representation.”

PFR File, Tab 1 at 12-13, 79-89. Insofar as the appellant has alleged (1) a close

temporal proximity between this ostensibly ongoing protected activity and the

personnel actions at issue and (2) that agency management had knowledge of the

same, we find that she has satisfied the contributing factor jurisdictional criterion

regarding her 5 U.S.C. § 2302(b)(9)(B) protected activity.

Accordingly, we find that the appellant made a nonfrivolous allegation that

her protected activity contributed to her three nonselections and, therefore, that

she is entitled to her requested hearing and a decision on the merits of her appeal.

IAF, Tab 1 at 2; see Salerno, 123 M.S.P.R. 230, ¶ 5. Prior to conducting a

hearing, the administrative judge shall afford the parties a reasonable opportunity

to complete discovery and order the parties to submit any other evidence that he

10

deems necessary to adjudicate the merits of this appeal. Lewis v. Department of

Defense, 123 M.S.P.R. 255, ¶ 14 (2016).

ORDER

For the reasons discussed above, we remand this case to the regional office

for further adjudication in accordance with this Remand Order.

FOR THE BOARD: ______________________________

Gina K. Grippando

Clerk of the Board

Washington, D.C.