The opinion
UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
KAREN GRAHAM-BATTLE, DOCKET NUMBER
Appellant, AT-3443-21-0536-I-1
v.
DEPARTMENT OF VETERANS DATE: October 11, 2024
AFFAIRS,
Agency.
THIS ORDER IS NONPRECEDENTIAL 1
Bonnie Hunt , Goose Creek, South Carolina, for the appellant.
Joy Warner and Sophia E. Haynes , Esquire, Decatur, Georgia, for the
agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
Henry J. Kerner, Member
REMAND ORDER
The appellant has filed a petition for review of the initial decision, which
dismissed her appeal for lack of jurisdiction. For the reasons discussed below, we
GRANT the appellant’s petition for review, VACATE the initial decision, and
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
REMAND the case to the Atlanta Regional Office for further adjudication in
accordance with this Remand Order.
BACKGROUND
The appellant, a GS-9 Human Resources Specialist (Recruitment and
Placement) with the agency, filed an appeal alleging that the agency gave her a
negative performance evaluation rating resulting in her being denied a
within-grade increase (WIGI) and failed to properly investigate her complaints of
discrimination and harassment. Initial Appeal File (IAF), Tab 1 at 1, 15. She
requested a hearing on her appeal. Id. at 2.
The administrative judge issued an acknowledgement order advising the
appellant that the Board may not have jurisdiction over her claim that the agency
gave her a negative performance evaluation and set forth the limited
circumstances where the Board may have jurisdiction over such a claim. IAF,
Tab 2 at 2-3. Consequently, the administrative judge ordered the appellant to file
evidence or argument to establish why her appeal should not be dismissed for
lack of jurisdiction within 15 calendar days. Id. at 3-4. The appellant failed to
timely file a response to the jurisdictional order, and the agency subsequently
moved to dismiss the appeal on the basis that the Board lacked jurisdiction over
the appeal. IAF, Tab 4 at 4-5. The appellant’s attorney thereafter filed a motion
for an extension of time to file a jurisdictional response, IAF, Tab 5, and the
jurisdictional response, Tab 6. In her jurisdictional response, the appellant
argued that, because the negative performance evaluation directly led to her being
denied a WIGI and the increase in pay that would accompany the WIGI, and
because a denial of WIGI is an action appealable to the Board, the Board had
jurisdiction over her appeal. IAF, Tab 6 at 4-5. She also restated her claim that
her negative performance evaluation was the result of discrimination by her
supervisor. Id. at 4-6.
3
The administrative judge issued an initial decision based on the written
record, dismissing the appeal for lack jurisdiction. 2 IAF, Tab 7, Initial Decision
(ID) at 1, 3. He first determined that the Board generally lacks jurisdiction to
adjudicate the content of a performance evaluation, and the fact that the
appellant’s negative performance evaluation was used to justify the WIGI denial
did not convert the negative evaluation itself into an appealable action within the
Board’s jurisdiction. ID at 3. The administrative judge further found that in
order to directly challenge a WIGI denial to the Board the appellant must meet
the requirements identified in 5 C.F.R. § 531.410(d), which included first seeking
reconsideration of the WIGI denial with her employing agency, and it did not
appear that the appellant had done so. ID at 3. Finally, the administrative judge
concluded that the appellant had not identified any other argument that might
bring her performance evaluation within the Board’s jurisdiction. ID at 3.
Consequently, the administrative judge dismissed the appeal without holding the
appellant’s requested hearing, concluding that she failed to meet her burden of
making a nonfrivolous allegation of Board jurisdiction. ID at 3.
The appellant filed a timely petition for review. Petition for Review (PFR)
File, Tab 1. The agency filed a response in opposition to the petition for review,
and the appellant has not filed a reply. PFR File, Tab 3.
DISCUSSION OF ARGUMENTS ON REVIEW
On review, the appellant restates her claims that the agency failed to
properly investigate her complaints of discrimination and harassment, that the
negative performance evaluation was the product of discrimination, and that the
Board has jurisdiction over her claim that she was denied a WIGI. PFR File,
Tab 1 at 4-6. She also provides copies of her 2020 annual performance
evaluation and a July 29, 2020 performance counseling memo, both of which
2
In so doing, the administrative judge granted the appellant’s untimely motion for an
extension of time to file the jurisdictional response and fully considered the
jurisdictional response. IAF, Tab 7, Initial Decision (ID) at 2.
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were included in the record below. Id. at 7-16; see IAF, Tab 6 at 7-16.
Additionally, she provides a copy of a memo dated March 17, 2021, notifying her
of the denial of her WIGI based on her “unacceptable” performance rating for the
2020 performance year. PFR File, Tab 1 at 17-18. The memo informs the
appellant of her right to request reconsideration of the denial to the Chief Human
Resources Officer within 15 calendar days of receipt of the notice. Id. at 17.
Finally, she provides a copy of a letter addressed to the Chief Human Resources
Officer dated March 25, 2021, requesting reconsideration of the WIGI denial
decision. Id. at 19.
We remand this appeal for a new determination as to whether the appellant
established jurisdiction over her appeal challenging her denial of a WIGI.
A permanent employee on the General Schedule who is paid at less than the
maximum rate of the grade of her position is entitled to a WIGI if her
performance is at an acceptable level of competence, she has completed the
required waiting period, and she has not received an equivalent increase in pay
from any cause during that period. 5 U.S.C. § 5335(a); 5 C.F.R. § 531.404;
Oulianova v. Pension Benefit Guaranty Corporation, 120 M.S.P.R. 22, ¶ 6
(2013). If an agency determines that an employee is not performing at an
acceptable level of competence and withholds a WIGI, the employee is entitled to
“an opportunity for reconsideration . . . within [her] agency under uniform
procedures prescribed by the Office of Personnel Management.” 5 U.S.C.
§ 5335(c). If the determination to withhold the WIGI is affirmed on
reconsideration, the employee is entitled to appeal the denial to the Board. Id.
Accordingly, the Board can exercise jurisdiction over the agency’s
withholding of an appellant’s WIGI only if the agency affirmed its initial decision
on reconsideration or has unreasonably refused to act on a request for
reconsideration. Hunt v. Department of Veterans Affairs, 88 M.S.P.R. 365, ¶¶ 6,
7 n.1 (2001), overruled on other grounds by Brookins v. Department of the
Interior, 2023 MSPB 3; Priselac v. Department of the Navy, 77 M.S.P.R. 332,
5
335 (1998). Pursuant to 5 C.F.R. § 531.410(a)(1), an employee must seek
reconsideration of a denial of a WIGI in writing within 15 days of receiving the
decision. The Board lacks jurisdiction over an appeal of the denial of a WIGI
where the appellant failed to timely seek reconsideration of the denial by the
agency in accordance with the agency’s requirements. See Goines v. Merit
Systems Protection Board, 258 F.3d 1289, 1292 (Fed. Cir. 2001); see also
Priselac, 77 M.S.P.R. at 335. Finally, in a Board appeal under 5 U.S.C. § 5335,
the agency bears the burden of proof, and its WIGI denial may be sustained only
if it is supported by substantial evidence. 3 5 C.F.R. § 1201.56(b)(1)(i).
Additionally, an appellant must receive explicit information on what is
required to establish an appealable jurisdictional issue. Burgess v. Merit Systems
Protection Board, 758 F.2d 641, 643 44 (Fed. Cir. 1985). This includes not only
advising an appellant of her burden of proof, but also explaining how she can
show that she satisfied that burden. Mason v. Department of Homeland Security,
116 M.S.P.R. 135, ¶ 9 (2011). Thus, in the instant case the appellant should have
received explicit information as to how to establish jurisdiction over her claim
that she was improperly denied a WIGI. Although the appellant identified that
she had been denied a WIGI in her initial appeal and jurisdictional response, see
IAF, Tab 1 at 15; Tab 6 at 4, the administrative judge failed to provide adequate
notice regarding the jurisdictional elements of an appeal of a WIGI denial in the
acknowledgment order, and did not issue a show cause order or an order on
jurisdiction identifying the jurisdictional elements for this claim, see IAF, Tab 2.
An administrative judge’s failure to provide an appellant with proper
Burgess notice can be cured if the agency’s pleadings contain the notice that was
lacking in the order, or if the initial decision itself puts the appellant on notice of
what she must do to establish jurisdiction, thus affording her the opportunity to
3
Substantial evidence is defined as “[t]he degree of relevant evidence that a reasonable
person, considering the record as a whole, might accept as adequate to support a
conclusion, even though other reasonable persons might disagree.” 5 C.F.R.
§ 1201.4(p). It is a lower standard of proof than preponderant evidence. Id.
6
meet her jurisdictional burden in the petition for review. Mapstone v. Department
of the Interior, 106 M.S.P.R. 691, ¶ 9 (2007), modified on other grounds by
Mapstone v. Department of the Interior, 110 M.S.P.R. 122, ¶ 7 (2008). Here, the
agency’s submission also did not set out the appellant’s jurisdiction burden for
her WIGI denial claim. IAF, Tab 4.
In the initial decision, the administrative judge provided some information
regarding the appellant’s jurisdictional burden for her WIGI denial claim, noting
that the appellant “must file an appeal concerning the WIGI denial in accordance
with the requirements of 5 CFR § 531.410(d),” which includes the requirement
that she “first seek[] reconsideration of the WIGI denial from the appellant’s
employing agency,” and concluded that the appellant failed to do so. ID at 3.
However, this notice was still insufficient. It did not explicitly inform the
appellant that she was required to show that she had sought reconsideration of the
agency’s WIGI denial within 15 days of the agency’s initial determination, nor
did the decision explain that the Board may exercise jurisdiction over the
agency’s withholding of a WIGI where the agency unreasonably refused to act on
a request for reconsideration. Hunt, 88 M.S.P.R. 365, ¶ 6; Priselac, 77 M.S.P.R.
at 335. Consequently, the appellant was not on notice of what was required of
her to establish Board jurisdiction over her claim that she was improperly denied
a WIGI. See Burgess, 758 F.2d at 643-44.
With her petition for review, the appellant has now provided some evidence
indicating that she timely requested reconsideration of the agency’s decision to
withhold a WIGI. PFR File, Tab 1 at 17-19. Both of the relevant documents are
dated prior to the date the initial decision was issued in this case, and thus would
not ordinarily qualify as new evidence. See id.; ID at 1; Okello v. Office of
Personnel Management, 112 M.S.P.R. 563, ¶ 10 (2009) (noting that under
5 C.F.R. § 1201.115(d), the Board generally will not consider evidence submitted
for the first time with a petition for review absent a showing that it is both new
and material). Nevertheless, because the issue of jurisdiction is always before the
7
Board and may be raised at any time and the appellant was not put on notice
below of all of the requirements to establish jurisdiction over an appeal of a WIGI
denial, we have considered the two documents. Stoglin v. Department of the Air
Force, 123 M.S.P.R. 163, ¶ 7 (2015), aff’d, 640 F. App’x 864 (Fed. Cir. 2016).
Based on the March 17, 2021 memo notifying the appellant of the denial of
her WIGI based on her “unacceptable” performance rating for the 2020
performance year and the March 25, 2017 letter addressed to the Chief Human
Resources Officer in which she requested reconsideration of that WIGI denial, we
find that the appellant made a timely reconsideration request. What remains
unclear, however, is whether the agency affirmed its decision denying the
appellant a WIGI on reconsideration, and if so, when it issued any reconsideration
decision, and whether the appellant’s Board appeal is timely. See 5 U.S.C.
§ 5335(c); Goines, 258 F.3d at 1292; 5 C.F.R. §§ 531.410(d), 1201.3(a)(8).
Accordingly, we remand this appeal so that the administrative judge can provide
the requisite Burgess notice to the appellant regarding her WIGI denial claim.
After providing such notice, the administrative judge should permit the parties to
supplement the record regarding the issue of Board jurisdiction over the
appellant’s WIGI denial claim, as well as the timeliness of her appeal, and should
issue a new jurisdictional determination. 4
4
If the administrative judge determines that the appellant met her burden of proving
Board jurisdiction over her appeal challenging her WIGI denial, he should consider the
appellant’s allegation that the WIGI denial was based on discrimination in the context
of analyzing that claim. See 5 U.S.C. § 7701(c)(2)(b) (noting that the Board will
reverse an adverse action if it is based on a prohibited personnel practice, including
unlawful discrimination).
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ORDER
For the reasons discussed above, we REMAND this case to the Atlanta
Regional Office for further adjudication in accordance with this Remand Order.
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.