Jeffrey L. Hamley v. Department of the Interior

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

2015 MSPB 23

Docket No. DE-1221-14-0041-W-1

Jeffrey L. Hamley,

Appellant,

v.

Department of the Interior,

Agency.

February 27, 2015

Jeffrey A. Dahl, Esquire, Albuquerque, New Mexico, for the appellant.

Joan D. Marsan, Esquire, Albuquerque, New Mexico, 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, which

dismissed his individual right of action (IRA) appeal as moot. For the reasons set

forth below, we DENY the petition for review and AFFIRM the initial decision.

BACKGROUND

¶2 On November 25, 2012, the appellant filed a complaint with the Office of

Special Counsel (OSC) alleging that the agency retaliated against him for his

whistleblowing activity. Initial Appeal File (IAF), Tab 5 at 14, 20-40.

Specifically, the appellant claimed that, as a result of his protected disclosures,

2

the agency: (1) temporarily assigned him to two consecutive 120-day details

beginning on October 23, 2011; (2) gave him an incorrect 2011 performance

appraisal; and (3) significantly changed his duties, responsibilities, or working

conditions when the agency did not allow him to assume the duties of his position

of record upon the expiration of the second 120-day detail on June 29, 2012. Id.

at 26-27, 36-37. At the conclusion of OSC’s investigation, the agency agreed to

provide the appellant with corrective action by returning him to his position of

record effective July 15, 2013, removing negative information from his 2011

performance appraisal, and reimbursing him for the attorney fees he incurred in

connection with his OSC complaint. IAF, Tab 1 at 6, Tab 8 at 5.

¶3 Thereafter, the appellant filed the present IRA appeal. IAF, Tab 1. During

the course of the proceedings below, the parties stipulated that the only issue for

adjudication in the appeal was whether the appellant was entitled to an award of

compensatory damages under section 107(b) of the Whistleblower Protection

Enhancement Act of 2012 (WPEA), Pub. L. No. 112–199, 126 Stat. 1465, 1469.

IAF, Tab 11 at 1. The appellant conceded that, under King v. Department of the

Air Force, 119 M.S.P.R. 663 (2013), he was not entitled to compensatory

damages for conduct occurring prior to the effective date of the WPEA, which

was December 27, 2012. IAF, Tab 13 at 4-5; see WPEA § 202, 126 Stat. at 1476

(codified at 5 U.S.C. § 1204 note). The appellant argued, however, that because

the agency did not return him to his position of record until July 15, 2013, he was

entitled to compensatory damages for the period of time after the effective date of

the WPEA through the date he returned to his position of record—that is, from

December 27, 2012, through July 15, 2013. IAF, Tab 13 at 5. He argued that the

significant change in his duties beginning on June 30, 2012, was not a discrete act

but rather a “continuing action” because he continued to perform those duties

until July 15, 2013. Id. at 8.

3

¶4 The administrative judge issued an initial decision based on the written

record dismissing the appeal as moot. 1 IAF, Tab 14, Initial Decision (ID) at 1.

He found that each of the personnel actions enumerated in 5 U.S.C.

§ 2302(a)(2)(A) is a discrete act that occurs when the agency decides to take or

fail to take the action and is immediately actionable. ID at 4-5. He additionally

found that a personnel action regarding a significant change in duties occurs

when the agency takes the act to change the duties and not on each day that the

employee performs those new duties. ID at 5. The administrative judge therefore

found, under King, that the appellant was not entitled to compensatory damages

because the conduct and actions at issue in the appeal (i.e., the making of

protected disclosures and the taking of personnel actions) preceded the WPEA’s

enactment and effective date. ID at 5-6. Consequently, the administrative judge

found that the appellant had received all of the relief that he could have received

if the matter had been adjudicated and he had prevailed. ID at 6-7. He therefore

dismissed the appeal as moot. ID at 7.

¶5 The appellant has filed a petition for review. Petition for Review (PFR)

File, Tab 1. The agency has filed a response in opposition, PFR File, Tab 3, to

which the appellant has replied, PFR File, Tab 4.

ANALYSIS

¶6 On review, the appellant continues to argue that the significant change in

his duties that began on June 30, 2012, was not a discrete act but rather

“continuing conduct” because he continued to perform those duties until July 15,

2013. PFR File, Tab 1 at 7-10 (citing National Railroad Passenger Corporation

v. Morgan, 536 U.S. 101, 115 (2002)). In advancing this argument, the appellant

appears to argue that he is entitled to compensatory damages based on the

1

Although the appellant initially requested a hearing, IAF, Tab 1 at 2, he later withdrew

his request, IAF, Tab 11 at 1.

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continuing violation doctrine of liability. For the following reasons, we find that

the continuing violation doctrine is inapplicable in this context.

¶7 In Morgan, the Supreme Court held that discrete discriminatory or

retaliatory acts are not actionable if an employee failed to timely file charges

regarding such acts with the Equal Employment Opportunity Commission as

required by Title VII of the Civil Rights Act of 1964 as amended (Title VII). 2

Morgan, 536 U.S. at 113-15. In so finding, the Court expressly rejected the view

that related discrete acts occurring outside the statutory filing period could be

deemed actionable if those discrete acts were part of a continuing violation. Id.

at 114-15. For hostile work environment claims, however, the Court found that,

as long as one of the acts comprising the claim occurred within the appropriate

statute of limitations, all of the related acts comprising the claim could be

actionable, even if those acts took place outside of the statutory time period. Id.

at 115-17. The Court reasoned that hostile work environment claims are different

from discrete acts because, by their nature, they involve repeated conduct, a

single incident of which may not be actionable on its own. Id. at 115. Here, the

appellant claims that he is entitled to compensatory damages because the

significant change in his duties that occurred prior to the WPEA’s enactment was

not a discrete act but part of a continuing violation that extended through the date

of the enactment. PFR File, Tab 1 at 7-10.

¶8 In the present appeal, however, there is no issue regarding a statute of

limitations. Under the WPEA, unlike under Title VII, there is no deadline for an

appellant to file an administrative complaint that is associated with the date of the

alleged retaliatory act. Compare 5 U.S.C. § 1214(a) (setting forth the procedures

for filing a complaint of whistleblower retaliation with OSC), with 29 C.F.R.

2

The Court also recognized, however, that its ru ling did not preclude the application of

equitable doctrines that could toll or preclude application of the time lim it in such

cases. Morgan, 536 U.S. at 113.

5

§ 1614.105 (setting forth the procedures for filing an informal complaint under

Title VII). Rather, the deadline to file before the Board attaches once OSC issues

its closure letter, after which date the appellant has 65 days to file his appeal with

the Board, or, if no closure letter was issued, any time after the expiration of 120

days after seeking corrective action from OSC. 5 U.S.C. § 1214(a)(3); 5 C.F.R.

§ 1209.5(a). Here, there is no dispute that the appellant timely filed his IRA

appeal with the Board upon his receipt of OSC’s closure letter. IAF, Tab 1 at 1,

9. Accordingly, the continuing violation doctrine is inapplicable in this appeal

because the doctrine relates to a determination regarding the timeliness of a claim

rather than the availability of damages associated with that claim, as the appellant

appears to assert. 3 See Morgan, 536 U.S. at 119-20.

¶9 We note that the Lilly Ledbetter Fair Pay Act of 2009 (the Act), Pub. L.

No. 111-2, 123 Stat. 5, 4 does not compel a different result. The Act does not

contain any provisions relevant to an agency’s liability, an appellant’s rights, or

the availability of damages under the Whistleblower Protection Act (WPA) or the

WPEA. Nor do we find any provisions in the WPA or the WPEA that could be

interpreted as contemplating a continuing violation theory of liability.

¶10 In any event, even if we were to recognize that the principles underlying the

continuing violation theory of liability could be applied to expand the scope of

damages under the WPEA as the appellant requests, he would not prevail on the

3

As the Court noted, explicit limitations on damages available under Title VII,

including compensatory damages, punitive damages, and back pay, are found elsewhere

in the statute. Morgan, 536 U.S. at 119-20.

4

The Act, which applies to all claims of discrimination in compensation under Title

VII, the Age Discrim ination in Employment Act of 1967, and Title I and Section 503 of

the Americans with Disabilities Act of 1990 and Sections 501 and 504 of the

Rehabilitation Act pending on or after the effective date of the Act (January 29, 2009),

clarifies that a discriminatory compensation decision occurs each time compensation is

paid pursuant to the discriminatory decision.

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facts of this case. The administrative judge properly found that the significant

change in the appellant’s duties was a discrete act occurring on June 30, 2012,

and the appellant has provided no basis to disturb this finding. ID at 5-6;

see 5 U.S.C. § 2302(a)(2)(A)(iv), (xii); see also Morgan, 536 U.S. at 114.

Significantly, the appellant has failed to allege that the agency took any

retaliatory action against him after the effective date of the WPEA. Rather, he

contends that his continued performance of the changed duties through the

effective date of the WPEA should constitute a continuing violation to receive the

protections of the WPEA. PFR File, Tab 1 at 7-10. His continued performance

of the changed duties, however, is a consequence of the June 30, 2012 discrete

act, and we find that these consequences do not constitute separate acts of reprisal

or render the June 30, 2012 violation “continuing” under the WPEA. See Bosley

v. Merit Systems Protection Board, 162 F.3d 665, 667 (Fed. Cir. 1998) (holding

that the appellant could not bring a WPA claim under a continuing violation

theory regarding the denial of his quality step increase that occurred prior to the

enactment of the WPA even though he continued to suffer the effects of the

denial with each paycheck).

¶11 Because the administrative judge properly found that the conduct and

actions at issue in this appeal all took place before the effective date of the

WPEA, an award of compensatory damages would have an impermissible

retroactive effect. ID at 5-6; see King, 119 M.S.P.R. 663, ¶ 10. Accordingly,

having received all of the relief that he could have received if the matter had been

adjudicated and he had prevailed, we agree with the administrative judge’s

finding that the appeal is moot. ID at 6-7 (citing Ryan v. Department of the Air

Force, 117 M.S.P.R. 362, ¶ 9 (2012)).

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ORDER

¶12 This is the final decision of the Merit Systems Protection Board in this

appeal. Title 5 of the Code of Federal Regulations, section 1201.113(c) (5 C.F.R.

§ 1201.113(c)).

NOTICE TO THE APPELLANT REGARDING

YOUR FURTHER REVIEW RIGHTS

You have the right to request review of this final decision by the United

States Court of Appeals for the Federal Circuit.

The court must receive your request for review no later than 60 calendar

days after the date of this order. See 5 U.S.C. § 7703(b)(1)(A) (as rev. eff. Dec.

27, 2012). If you choose to file, be very careful to file on time. The court has

held that normally it does not have the authority to waive this statutory deadline

and that filings that do not comply with the deadline must be dismissed. See

Pinat v. Office of Personnel Management, 931 F.2d 1544 (Fed. Cir. 1991).

If you want to request review of the Board’s decision concerning your

claims of prohibited personnel practices under 5 U.S.C. § 2302(b)(8),

(b)(9)(A)(i), (b)(9)(B), (b)(9)(C), or (b)(9)(D), but you do not want to challenge

the Board’s disposition of any other claims of prohibited personnel practices, you

may request the United States Court of Appeals for the Federal Circuit or any

court of appeals of competent jurisdiction to review this final decision. The court

of appeals must receive your petition for review within 60 days after the date of

this order. See 5 U.S.C. § 7703(b)(1)(B) (as rev. eff. Dec. 27, 2012). If you

choose to file, be very careful to file on time. You may choose to request review

of the Board’s decision in the United States Court of Appeals for the Federal

Circuit or any other court of appeals of competent jurisdiction, but not both.

Once you choose to seek review in one court of appeals, you may be precluded

from seeking review in any other court.

If you need further information about your right to appeal this decision to

court, you should refer to the federal law that gives you this right. It is found in

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Title 5 of the United States Code, section 7703 (5 U.S.C. § 7703) (as rev. eff.

Dec. 27, 2012). You may read this law as well as other sections of the United

States Code, at our website, http://www.mspb.gov/appeals/uscode/htm.

Additional information about the United States 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, and 11.

Additional information about other courts of appeals can be found at their

respective websites, which can be accessed

through http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx.

If you are interested in securing pro bono representation for an appeal to

the United States Court of Appeals for the Federal Circuit, you may visit our

website at http://www.mspb.gov/probono for a list of attorneys who have

expressed interest in providing pro bono representation for Merit Systems

Protection Board appellants before the Federal Circuit. The Merit Systems

Protection Board neither endorses the services provided by any attorney nor

warrants that any attorney will accept representation in a given case.

FOR THE BOARD:

______________________________

William D. Spencer

Clerk of the Board

Washington, D.C.