The opinion
UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
2014 MSPB 85
Docket No. CH-1221-13-1557-W-1
Margaret M. Reed,
Appellant,
v.
Department of Veterans Affairs,
Agency.
November 25, 2014
John R. Folkerth, Jr., Esquire, and Kenneth J. Heisele, Esquire, Dayton,
Ohio, for the appellant.
Demetrious A. Harris, Esquire, Dayton, Ohio, for the agency.
BEFORE
Susan Tsui Grundmann, Chairman
Anne M. Wagner, Vice Chairman
Mark A. Robbins, Member
OPINION AND ORDER
¶1 The appellant has filed a petition for review of the initial decision that
dismissed her individual right of action (IRA) appeal for lack of jurisdiction. For
the reasons discussed below, we GRANT the petition for review and REMAND
the case to the regional office for further adjudication in accordance with this
Opinion and Order.
BACKGROUND
¶2 In this whistleblower appeal, the appellant alleges that the agency took
various personnel actions, including a 3-day suspension, against her in retaliation
2
for disclosures that she made concerning violations of its procedures in the
handling of her administrative grievance. The facts, as the appellant alleges
them, are as follows.
¶3 The appellant is a Human Resources Specialist (Employee Relations) for
the agency. Initial Appeal File (IAF), Tab 5, Subtab 4A. On February 13, 2012,
the Assistant Chief of Human Resources issued the appellant an admonishment
for disrespectful conduct toward her supervisor. IAF, Tab 4 at 8-10 of 70. The
appellant filed an informal grievance, challenging the factual basis of the
admonishment. 1 Id. at 34-40 of 70. On April 9, 2012, the Assistant Chief denied
the grievance. Id. at 41 of 70.
¶4 On April 18, 2012, the appellant filed a formal grievance, again
challenging the factual basis for the admonishment. Id. at 42-49 of 70. On
May 14, 2012, the Chief of Human Resources denied the appellant’s formal
grievance and the appellant requested that a grievance examiner be appointed. Id.
at 51 of 70.
¶5 The agency appointed a grievance examiner, and on June 20, 2012, the
grievance examiner issued a memorandum to the Chief recommending that the
grievance be denied. Id. at 52 of 70. Citing the examiner’s findings and
recommendations, the Chief again informed the appellant that her grievance was
denied. 2 Id. at 53 of 70.
¶6 On June 22, 2012, the appellant emailed the Medical Center Director and
informed him of what she believed to be a “futile grievance process.” Id. at 54 of
1
The appellant filed this grievance under administrative—not negotiated—grievance
procedures. See IAF, Tab 4 at 63 of 70. The appellant is not part of a collective
bargaining unit because the nature of her position excludes coverage. IAF, Tab 5,
Subtab 2.
2
The Chief’s second grievance decision was dated June 28, 2012, but the appellant was
aware of the grievance examiner’s findings and recommendations on June 20, 2012, the
date they were issued. IAF, Tab 4 at 53-54 of 70.
3
70. She stated that the allegations underlying the admonishment were untrue and
that the agency should have conducted further fact finding. Id. The appellant
requested to meet with the Director to discuss the matter. Id. The Chief and the
Assistant Chief then threatened to discipline the appellant if she went through
with the meeting.
¶7 On July 26, 2012, the appellant sent an email to the Director and the Chief,
again complaining of the grievance process. 3 Id. at 56 of 70. She stated that
management ignored the factual disputes that she raised and failed to make any
additional factual inquiries as required by agency policy. Id. She stated that the
agency thereby violated her due process rights. Id. The appellant met with the
Director on August 29, 2012. Id. at 4, 58 of 70. She told the Director that the
admonishment itself was an unwarranted personnel action taken without due
process. Id. at 4 of 70. She also told the Director that, in retaliation for her filing
the grievance, the Chief and the Assistant Chief failed to follow the
administrative grievance procedures by denying her the opportunity for an oral
response and failing to conduct any fact finding, thus denying her due process in
the context of her grievance. Id.
¶8 On October 4, 2012, the Chief proposed to suspend the appellant for 3 days
based on complaints from three different agency officials who had sought the
appellant’s advice on various personnel matters. IAF, Tab 5, Subtab 4C. These
complaints were lodged on August 15, 2012, August 24, 2012, and October 1,
2012, respectively, and related that the appellant was unhelpful and rude. Id.,
Subtabs 4C-4F. After the appellant responded, IAF, Tab 4 at 9-13 of 17, on
October 26, 2012, the Chief issued a decision effecting the 3-day suspension,
IAF, Tab 5, Subtab 4B. In issuing this discipline, the Chief considered, among
3
Two other individuals were copied on the email. IAF, Tab 4 at 56 of 70. The record
does not indicate the positions of these individuals, and the appellant does not allege
that they had any role in any personnel actions against her.
4
other things, the appellant’s January 12, 2012 admonishment, which could have
been removed from her file 6 months after its issuance, but which the Assistant
Chief elected not to remove. IAF, Tab 4 at 9 of 70, 15 of 33, Tab 5, Subtab 4B at
1, Subtab 4C at 3.
¶9 The appellant filed a complaint with the Office of Special Counsel (OSC),
alleging that the 3-day suspension was in reprisal for her disclosures to the
Director. IAF, Tab 4 at 8-24 of 33. After OSC closed the appellant’s file without
taking corrective action, the appellant filed the instant IRA appeal and requested
a hearing. IAF, Tab 1 at 6, Tab 4 at 31-32 of 33. The parties submitted evidence
and argument on the jurisdictional issue, and the administrative judge issued an
initial decision dismissing the appeal for lack of jurisdiction. 4 IAF, Tab 16,
Initial Decision (ID). She found that the appellant failed to make a nonfrivolous
allegation that she made a protected disclosure and that the appellant’s grievance
itself was not protected activity covered under the Whistleblower Protection
Enhancement Act (WPEA). ID at 6-10.
¶10 The appellant has filed a petition for review, arguing that the
administrative judge erred in finding that her disclosures were not protected.
According to the appellant, they evidenced numerous abuses of authority and
violations of law and agency policy concerning the grievance process and the
underlying admonishment itself. Petition for Review (PFR) File, Tab 1. The
agency has responded in opposition to the petition for review, PFR File, Tab 3,
and the appellant has filed a reply to the agency’s response, PFR File, Tab 4.
4
The initial decision states that corrective action was denied, thus suggesting that the
disposition was on the merits. IAF, Tab 16, Initial Decision at 2, 10. However, the
substance of the decision makes clear that the administrative judge actually dismissed
the appeal for lack of jurisdiction.
5
ANALYSIS
¶11 Generally, to establish jurisdiction over an IRA appeal regarding activity
protected under 5 U.S.C. § 2302(b)(8), an appellant must prove that she
exhausted her administrative remedies before OSC and make nonfrivolous
allegations that (1) she engaged in whistleblowing activity by making a protected
disclosure under 5 U.S.C. § 2302(b)(8), and (2) the disclosure 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). Yunus v. Department of Veterans Affairs, 242 F.3d 1367,
1371 (Fed. Cir. 2001); Rusin v. Department of the Treasury, 92 M.S.P.R. 298,
¶ 12 (2002).
This appeal involves four personnel actions.
¶12 We find that the appellant identified alleged “personnel actions” that do not
fall within the protection of the WPEA. These include the denial of several
procedural protections during the grievance process and various actions and
procedures leading up to the 3-day suspension. IAF, Tab 4 at 5-6 of 70. As to
the alleged denials of procedural protections during the grievance process, the
appellant asserted that these were in retaliation for her filing the grievance. Id. at
5 of 70. We do not reach the issue of whether these allegations amount to
personnel actions because, as the administrative judge correctly found, the filing
of a grievance, which does not itself seek to remedy whistleblower reprisal, is not
a protected disclosure under the WPEA. 5 ID at 9-10; see Mudd v. Department of
Veterans Affairs, 120 M.S.P.R. 365, ¶¶ 6-7 (2013) (citing 5 U.S.C.
§ 2302(b)(9)(A)(i)); see also 5 U.S.C. §§ 1221, 1214 (containing the codified
version of the statute at large cited in the Mudd decision as section 101(b)(1)(A)
of the WPEA). Concerning the several matters surrounding the appellant’s 3-day
5
We have reviewed both the formal and the informal grievances, and we find that they
do not contain allegations of whistleblower reprisal. IAF, Tab 4 at 34-40, 42-49 of 70.
6
suspension, we find that the actions that the appellant identifies related to the
Chief’s handling and consideration of her response do not amount to “personnel
actions” under 5 U.S.C. § 2302(a)(2)(A). IAF, Tab 4 at 6 of 70.
¶13 Nevertheless, we find that the appellant identified four alleged personnel
actions over which the Board might have jurisdiction in the context of this
appeal: (1) the proposed 3-day suspension, (2) the decision to sustain the 3-day
suspension, (3) the refusal to remove the admonishment from the appellant’s
personnel file, and (4) the threats to discipline the appellant for meeting with the
Director. Specifically, the proposed 3-day suspension and the 3-day suspension
itself constituted a threatened disciplinary action and a disciplinary action,
respectively. See 5 U.S.C. § 2302(a)(2)(iii). We also find that the Assistant
Chief’s alleged refusal to remove the admonishment from the appellant’s Official
Personnel File constituted a failure to take a personnel action under these
circumstances. The admonishment itself was a personnel action, Cochran v.
Department of Veterans Affairs, 67 M.S.P.R. 167, 174 (1995), and the letter of
admonishment indicated that it would remain in the appellant’s Official Personnel
File for 6 months or up to 2 years, depending on her future behavior and attitude,
IAF, Tab 4 at 9 of 70. The Assistant Chief’s decision to retain the admonishment
in the appellant’s file beyond 6 months could have, and did in fact have, an
adverse consequence in a future disciplinary action—the 3-day suspension. IAF,
Tab 5, Subtab 4B at 1, Subtab 4C at 3; cf. Johnson v. Department of Health &
Human Services, 93 M.S.P.R. 38, ¶ 16 (2002) (finding that an admonishment was
a personnel action, in part, because the agency could rely on it for penalty
enhancement in future discipline). Finally, we find that the appellant has made a
nonfrivolous allegation that the Chief and the Assistant Chief threatened her with
7
a personnel action on or about July 26, 2012, by threatening to discipline her for
meeting with the Director. 6 IAF, Tab 4 at 6 of 70, 15 of 33.
The appellant failed to nonfrivolously allege that she made a protected disclosure
that was a contributing factor in the decision to take a personnel action.
¶14 On review, the appellant has identified a large number of alleged
irregularities in the grievance process. These include that the Chief was not a
proper deciding official for the grievance, PFR File, Tab 1 at 7, 14, 25-26; the
grievance examiner was not properly qualified, id. at 7, 15-17, 25-28; the
appellant was not timely informed of the grievance examiner’s appointment, id. at
16-17; the agency failed to create a grievance file and an examiner’s final report,
id. at 16-17, 29; the informal grievance did not notify the appellant of her right to
file a formal grievance, id. at 13; and the Assistant Chief tried to dissuade the
appellant from filing a formal grievance, id. These allegations are not properly
before the Board because the appellant has not alleged that they were in reprisal
for any disclosure. An IRA appeal is not the appropriate forum to collaterally
attack the agency’s internal process for resolving discipline; the Board’s
jurisdiction is limited to adjudicating claims of whistleblower reprisal. See
McCarthy v. International Boundary & Water Commission, 116 M.S.P.R. 594,
¶ 27 (2011) (declining to consider the appellant’s arguments of constitutional and
statutory violations in connection with his termination in the context of an IRA
appeal), aff’d, 497 F. App’x 4 (Fed. Cir. 2012), cert. denied, 134 S. Ct. 386
(2013). Moreover, the appellant has raised these arguments for the first time on
review without explaining why she did not raise them below. See Avansino v.
U.S. Postal Service, 3 M.S.P.R. 211, 214 (1980) (the Board will generally not
consider evidence submitted for the first time with the petition for review absent
6
We find that the appellant exhausted her administrative remedies with respect to these
alleged personnel actions. IAF, Tab 4 at 15, 20-22 of 33.
8
a showing that it was unavailable before the record was closed despite the party’s
due diligence).
¶15 In response to the administrative judge’s jurisdictional order, the appellant
identified the following disclosures: (1) the June 22, 2012 email to the Director
complaining about the grievance process and requesting an in-person meeting,
with a follow-up email of June 25, 2012, containing grievance-related documents,
IAF, Tab 4 at 3-4, 54 of 70; (2) a July 24, 2012 email to the Director requesting
to meet with him about the grievance process, id. at 4, 55 of 70; (3) a July 26,
2012 email to the Director complaining about the grievance process and
informing him that the appellant still wished to meet with him, id. at 4, 56 of 70;
(4) an August 7, 2012 email to the Assistant Chief informing her that the
appellant had a meeting scheduled with the Director, id. at 4, 58 of 70; (5) the
August 29, 2012 meeting with the Director complaining about the admonishment
and the grievance process, id., at 4 of 70; and (6) the October 9, 2012 complaint
to OSC, id. at 4 of 70, 8-24 of 33.
¶16 Regarding the June 22, 2012 email to the Director, the appellant contends
that her email disclosed that the Assistant Chief and the Chief of Human
Resources had repeatedly failed to follow VA Handbook 5021. IAF, Tab 4 at 4
of 70. We find that the appellant made a nonfrivolous allegation that she
reasonably believed that her email disclosed information that evidenced a
violation of law, rule, or regulation. See Czarkowski v. Department of the
Navy, 87 M.S.P.R. 107, ¶ 11 (2000). Accordingly, we find that the appellant has
made a nonfrivolous allegation that her June 22, 2012 email to the Director
constituted a protected disclosure. However, the appellant has failed to
nonfrivolously allege that this disclosure was a contributing factor in her 3-day
suspension because she has not alleged that the Chief or the Assistant Chief, who
were responsible for the alleged personnel actions described above, knew about
the email or its contents. IAF, Tab 4 at 4, 54 of 70.
9
¶17 Regarding the July 24, 2012 email, we find that the appellant failed to
nonfrivolously allege that this was a protected disclosure because it did not
disclose any information. Id. at 55 of 70. It was merely a request to meet with
the Director. Id.
¶18 Regarding the July 26, 2012 email, the appellant alleged that the agency
deprived her of due process in the context of her grievance because it failed to
address the factual dispute that she raised and failed to conduct a proper factual
inquiry. Id. We agree with the administrative judge that the appellant has failed
to make a nonfrivolous allegation that she reasonably believed that the agency’s
assessment of the evidence constituted a violation of agency rule, an abuse of
authority, or any other type of wrongdoing under 5 U.S.C. § 2302(b)(8)(A). ID at
7-9. Contrary to the appellant’s assertions, the formal grievance decisions, one
by the Chief and the other by the grievance examiner, both made specific findings
that the charges were “fully supported by the evidence.” IAF, Tab 4 at 51-53 of
70. The agency’s assessment of the evidence is lacking in detail, and the
appellant may disagree with its conclusion, but we find that her assertion that the
factual dispute was never acknowledged is patently incorrect. PFR File, Tab 1 at
6, 12, 24-25, 27.
¶19 We also agree with the administrative judge that the appellant has failed to
identify any rule that would require the agency to conduct any further fact finding
investigation beyond the evidence that the appellant and management had already
submitted. ID at 7-8. We have reviewed the relevant excerpt of VA Handbook
5021, and we find that it provides for a preliminary inquiry but states that further
investigation “may be warranted” depending on the nature and seriousness of the
incident. IAF, Tab 4 at 64 of 70. We therefore cannot agree with the appellant
that the agency somehow violated this portion of VA Handbook 5021. PFR File,
Tab 1 at 5-6, 10-11, 14. For these reasons, we agree with the administrative
judge that the appellant failed to make a nonfrivolous allegation that she
10
reasonably believed that this disclosure evidenced an abuse of discretion or a
violation of law, rule, or regulation. ID at 7-9.
¶20 In any event, we also find that the appellant failed to nonfrivolously allege
that the July 26, 2012 email was a contributing factor in any personnel actions
taken against the appellant. 7 The Chief was one of the recipients of this
disclosure. IAF, Tab 4 at 56 of 70. Therefore, he was undoubtedly aware of it.
The appellant, however, has not alleged that the Assistant Chief was aware of this
disclosure. Thus, the appellant has failed to meet her jurisdictional burden with
respect to it.
¶21 Regarding the August 7, 2012 email to the Assistant Chief, we find that the
appellant failed to nonfrivolously allege that this was a protected disclosure
because the only information contained in that email is the fact that the appellant
had a meeting scheduled with the Director. IAF, Tab 4 at 58 of 70. This email
did not disclose wrongdoing of any sort.
¶22 Regarding the August 29, 2013 meeting with the Director, the appellant
contends that she disclosed during the meeting agency violations of VA
Handbook 5021. IAF, Tab 4 at 4 of 70. We find that the appellant made a
nonfrivolous allegation that she reasonably believed that these disclosures
evidenced a violation of law, rule, or regulation. See Czarkowski, 87 M.S.P.R.
107, ¶ 11. In any event, she has failed to make a nonfrivolous allegation that they
7
We note that the WPEA instructs that a denial of a request for corrective action on the
basis that the agency established its affirmative defense may only be made “after a
finding that a protected disclosure was a contributing factor.” 5 U.S.C. § 1221(e)(2);
see Clarke v. Department of Veterans Affairs, 121 M.S.P.R. 154, ¶ 19 n.10 (2014);
Belyakov v. Department of Health & Human Services, 120 M.S.P.R. 326, ¶ 7 n.3 (2013).
Nothing in the WPEA, however, precludes the Board from considering, at the
jurisdictional stage, whether the appellant made a nonfrivolous allegation that the
disclosure was a contributing factor in the agency’s decision to take or fail to take a
personnel action, even in the absence of a finding that she made a nonfrivolous
allegation that the disclosure was protected.
11
were a contributing factor in the personnel actions at issue. She has not alleged
that either the Chief or the Assistant Chief were aware of what transpired during
the meeting or of any particular disclosures that the appellant might have made.
¶23 Regarding the appellant’s October 9, 2012 complaint to OSC, we find that
the appellant made a nonfrivolous allegation that her complaint was protected
by 5 U.S.C. § 2302(b)(8)(B)(i). Prior to the enactment of the WPEA, that section
stated, in pertinent part, that it is a prohibited personnel practice to take or fail to
take, or threaten to take or fail to take, a personnel action concerning any
employee “because of . . . any disclosure to the Special Counsel” of information
that the employee reasonably believes evidences “a violation of any law, rule, or
regulation.” 8 5 U.S.C. § 2302(b)(8)(B)(i)(2011); Colbert v. Department of
Veterans Affairs, 121 M.S.P.R. 677, ¶ 8 (2014). In her complaint to OSC, the
appellant disclosed alleged agency violations of VA Handbook 5021. IAF, Tab 4
at 8-24 of 33. We find that the appellant has made a nonfrivolous allegation that
she reasonably believed that she disclosed a violation of a law, rule, or regulation
to OSC. See Colbert, 121 M.S.P.R. 677, ¶ 8.
¶24 The appellant, however, has again failed to make a nonfrivolous allegation
that this disclosure was a contributing factor to any of the personnel actions at
issue. The OSC complaint postdates the threatened discipline for meeting with
the Director, the failure to remove the admonishment from the appellant’s
Official Personnel File, and the proposed suspension. IAF, Tab 4 at 8, 15 of 33,
Tab 5, Subtab 4C at 1. Therefore, it could not have been a contributing factor in
these actions. See Johnson v. Department of Justice, 104 M.S.P.R. 624, ¶ 26
8
The WPEA went into effect on December 27, 2012, after the appellant’s October 9,
2012 complaint to OSC. Colbert v. Department of Veterans Affairs, 121 M.S.P.R. 677,
¶ 6 (2014). The only change that the WPEA made to 5 U.S.C. § 2302(b)(8)(B)(i) is that
it struck “a violation” and inserted “any violation (other than a violation of this
section).” Colbert, 121 M.S.P.R. 677, ¶ 8 n.3. We have considered this amendment
and find that it does not change the result in this case. See id.
12
(2007). The only personnel action to which this disclosure could possibly have
been a contributing factor was the October 26, 2012 suspension decision. IAF,
Tab 4B at 1. However, the appellant has not alleged that the Chief was aware of
her OSC complaint at the time he rendered his decision; therefore, there is no
basis for the Board to conclude that this disclosure was a contributing factor.
This appeal is remanded for the appellant to have an opportunity to make a
nonfrivolous allegation that she was perceived as a whistleblower.
¶25 Under certain circumstances, an appellant can establish jurisdiction over an
IRA appeal without making a nonfrivolous allegation that she made a protected
disclosure. Specifically, an individual who is perceived as a whistleblower is still
entitled to the whistleblower protections, even if she has not made protected
disclosures. King v. Department of the Army, 116 M.S.P.R. 689, ¶ 6 (2011);
Special Counsel v. Department of the Navy, 46 M.S.P.R. 274, 278-80 (1990). For
the following reasons, we find that the appellant’s submissions below warrant an
analysis under this theory.
¶26 Although there is no indication that the Chief or the Assistant Chief were
aware of any specific disclosures that the appellant might have made during her
August 29, 2012 meeting with the Director, the appellant alleged that they were
very resistant to the notion that she should have such a meeting, even to the point
of threatening to discipline her for it. IAF, Tab 4 at 15 of 33. She further
claimed that these threats were contrary to the Director’s “open door policy.” Id.
at 14 of 33. Absent from the appellant’s allegations, however, is any indication
that the opposition to her meeting with the Director was due to the Chief’s and
Assistant Chief’s perception that the appellant was going to make protected
disclosures during that meeting, or if it was due to some other reason. See
King, 116 M.S.P.R. 689, ¶ 8 (in cases involving perceived whistleblowing, the
Board will focus its analysis on the agency’s perceptions, i.e., whether the agency
officials involved in the personnel actions at issue believed that the appellant
made or intended to make disclosures that evidenced the type of wrongdoing
13
listed under 5 U.S.C. § 2302(b)(8)). Therefore, the appellant has not yet made a
nonfrivolous allegation that the agency perceived her as a whistleblower or that
this perception was a contributing factor in a personnel action.
¶27 Nevertheless, the administrative judge did not give the appellant explicit
notice of how to establish jurisdiction over an IRA appeal as a perceived
whistleblower, and the defect was not corrected by the agency’s submissions or
by the initial decision. See Burgess v. Merit Systems Protection Board, 758 F.2d
641, 643-44 (Fed. Cir. 1985); King, 116 M.S.P.R. 689, ¶ 11. Because the nature
of the appellant’s claim below suggested that she may be attempting to argue that
she was a perceived whistleblower, and because she has not received notice of
how to establish jurisdiction under such a theory, we find it appropriate to
remand this appeal for the appellant to receive such notice and for further
development of the record on this issue. 9 On remand, the administrative judge
may adopt in her new initial decision her prior findings related to the appellant’s
claim that she was retaliated against for actual whistleblowing activity.
ORDER
¶28 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:
______________________________
William D. Spencer
Clerk of the Board
Washington, D.C.
9
We find that the appellant’s allegations to OSC were sufficient to satisfy the
exhaustion requirement for this issue. IAF, Tab 4 at 14-16 of 33.