The opinion
UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
DAVID J. MCCAULEY, DOCKET NUMBER
Appellant, CH-1221-14-0721-W-1
v.
DEPARTMENT OF VETERANS DATE: February 18, 2016
AFFAIRS,
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
David J. McCauley, Coral Springs, Florida, pro se.
Kimberly Negley, Esquire, St. Louis, Missouri, for the agency.
BEFORE
Susan Tsui Grundmann, Chairman
Mark A. Robbins, Member
FINAL ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
denied his request for corrective action. 2 After fully considering the filings in
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
A substantial portion of the appellant’s petition for review is devoted to a discussion
of his separate appeal alleging that he was not selected for a Medical Support Assistant
position in violation of the Veterans Employment Opportunities Act of 1998 (VEOA).
2
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. We dismiss the appeal in part for lack of jurisdiction and,
regarding the parts of the appeal over which we have jurisdiction, we deny the
appellant’s request for corrective action.
BACKGROUND
¶2 The agency hired the appellant as a GS-5 Clerk in the Beneficiary Travel
Office (BTO) in the Jefferson Barracks Division of the St. Louis Veterans Affairs
Medical Center (VAMC) in St. Louis, Missouri. Initial Appeal File (IAF), Tab 9.
The BTO reimburses veterans for travel costs incurred in coming to the VAMC
for service. Id. While the appellant was at the Jefferson Barracks, he wrote a
letter to the head of the agency alleging that the agency had not replaced a BTO
Clerk who had left the agency, and identifying ways that the BTO could operate
more efficiently. IAF, Tab 4, Exhibit (Ex.) 1. The appellant also provided
veterans coming to the BTO who were complaining about long wait times with
business-size envelopes addressed to the head of the agency so that they could
directly communicate their concerns about the wait times. IAF, Tab 1. Shortly
thereafter, the agency transferred the appellant to the BTO in the John Cochran
Division (Cochran) of the VAMC. Id.
¶3 In December 2012, the appellant voluntarily transferred from the position at
Cochran to a Medical Support Assistant (MSA) position in Bay Pines, Florida, to
help his brother who was recovering from a serious motor cycle accident. By the
The Board recently issued a decision on the appellant’s petition for review of the initial
decision in that case. In a nonprecedential order, the Board remanded the case to the
regional office for issuance of a jurisdictional notice, and, if the administrative judge
finds that the Board has jurisdiction, development of the record to determine whether,
through the agency’s reconstructed selection process, the appellant obtained all of the
relief he could have obtained had he prevailed on his VEOA claim before the Board.
McCauley v. Department of Veterans Affairs, MSPB Docket No. CH-3443-14-0099-I-3,
Final Order (July 8, 2015).
3
appellant’s admission, he transferred without assurance from the VAMC that he
could later return. Id. Sometime in 2013, the appellant attempted to return to the
VAMC, and was told that applying for vacant positions was the only way he
could return. IAF, Tab 9. The appellant applied for two vacancies, an MSA
position and a Gardener position, and he was not selected for either one.
¶4 The appellant filed an individual right of action (IRA) appeal alleging that
the agency transferred him to Cochran, failed to noncompetitively transfer him
back to the VAMC from Florida, and failed to select him for the MSA and
Gardener positions in violation of the Whistleblower Protection Act (WPA). He
asserted that the agency’s actions constituted retaliation for the following actions:
(1) sending his letter to the head of the agency; (2) providing veterans who were
complaining about long wait times with envelopes addressed to the head of the
agency so that they could directly communicate their concerns; (3) reporting that
his supervisor closed the BTO 15 minutes early; and (4) notifying the head of the
agency that he needed police protection when he closed the BTO because a
veteran had become violent when he was refused travel reimbursement. IAF,
Tabs 1, 8.
¶5 The appellant did not request a hearing. IAF, Tab 1. Based on the written
submissions of the parties, the administrative judge found the appellant showed
that he had exhausted administrative procedures before the Office of Special
Counsel (OSC). IAF, Tab 28, Initial Decision (ID) at 4-5. She also found that
the appellant could not have reasonably believed that the failure of the agency to
timely replace a BTO Clerk at the Jefferson Barracks was gross mismanagement.
However, she found that, because he made it known to high-level managers that
he had complained to the head of the agency, he established that he was perceived
as a whistleblower, and, as such, his letter to the head of the agency constituted a
protected disclosure under 5 U.S.C. § 2302(b)(8). ID at 7-9. Additionally, she
found that the appellant’s providing envelopes to assist veterans with informing
the head of the agency of their frustrations with long wait times was a protected
4
activity under 5 U.S.C. § 2302(b)(9)(B) of the Whistleblower Protection
Enhancement Act (WPEA), a provision that defines a protected activity as
lawfully assisting any individual in the exercise of any appeal right granted by
any law, rule, or regulation. ID at 7-9.
¶6 The administrative judge further found that transfers and nonselections are
personnel actions, and that, under the knowledge/timing test, the appellant
established that his disclosures were a contributing factor to his transfer. ID
at 9-11. However, she found that, because the appellant failed to show that the
agency officials who denied the appellant’s transfer from Florida to St. Louis and
did not select him for the MSA and Gardener positions were aware of his
disclosures, he failed to show that his disclosures were a contributing factor in
those personnel actions. ID at 11-13. Finally, the administrative judge found that
the agency established by clear and convincing evidence that it would have
reassigned the appellant absent the perception of him as a whistleblower because
his reassignment was voluntary. ID at 14-17.
ANALYSIS
¶7 Before addressing the merits of an IRA appeal, the Board first must
determine whether all its jurisdictional requirements have been met.
Schmittling v. Department of the Army, 219 F.3d 1332, 1337 (Fed. Cir. 2000).
Moreover, the issue of Board jurisdiction is always before the Board and may be
raised at any time. Ney v. Department of Commerce, 115 M.S.P.R. 204, ¶ 7
(2010). 3 Thus, notwithstanding the administrative judge’s reaching the merits of
the appeal, we find we must make a jurisdictional determination regarding the
appellant’s IRA appeal. Further, the agency filed a motion to dismiss the appeal
3
Attached to the appellant’s petition for review are a number of documents, most of
which are already in the record, and those that are not were available before the close of
the record. We have not considered these documents except as they relate to the issue
of Board jurisdiction. See Meier v. Department of the Interior, 3 M.S.P.R. 247, 256
(1980); Avansino v. U.S. Postal Service, 3 M.S.P.R. 211, 214 (1980).
5
for lack of jurisdiction. IAF, Tab 7. The administrative judge did not rule on the
motion, and made no jurisdictional findings.
¶8 Generally, to establish jurisdiction over an IRA appeal regarding activity
protected under 5 U.S.C. § 2302(b)(8), an appellant must prove that he exhausted
his administrative remedies before OSC and make nonfrivolous allegations that:
(1) he 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). 4
The appellant exhausted his administrative remedies regarding only some of
his disclosures.
¶9 Under 5 U.S.C. § 1214(a)(3), an employee is required to “seek corrective
action from [OSC] before seeking corrective action from the Board” through an
IRA appeal. To satisfy this requirement, an appellant must articulate to OSC the
basis for his request for corrective action “with reasonable clarity and precision.”
Ellison v. Merit Systems Protection Board, 7 F.3d 1031, 1037 (Fed. Cir. 1993);
see Ward v. Merit Systems Protection Board, 981 F.2d 521, 526 (Fed. Cir. 1992).
Although an appellant may add further detail to his claims before the Board, see
Briley v. National Archives & Records Administration, 236 F.3d 1373, 1378 (Fed.
Cir. 2001), he first must make a reasonably clear and precise claim with OSC,
see, e.g., Mintzmyer v. Department of the Interior, 84 F.3d 419, 422 (Fed.
Cir. 1996).
¶10 As noted, the appellant’s alleged protected disclosures are writing a letter to
the head of the agency, providing veterans who were complaining about long wait
4
The administrative judge’s show cause order set forth the necessary jurisdictional
elements of an IRA appeal under the WPA and the WPEA, including the elements
required to establish that the appellant was perceived as a whistleblower. IAF, Tab 3.
6
times with envelopes addressed to the head of the agency so that they could
directly communicate their concerns, reporting that his supervisor closed the BTO
15 minutes early, and notifying the head of the agency that he needed police
protection when he closed the BTO because a veteran had become violent when
he was refused travel reimbursement.
¶11 The appellant submitted a copy of the complaint that he filed with OSC and
a copy of OSC’s letter notifying him that he may seek corrective action from the
Board. IAF, Tabs 1, 4 at 11. 5 In his complaint, he states that, in the fall of 2012,
he directed veterans to complain to the head of the agency regarding issues that
impacted their travel pay reimbursement. IAF, Tab 4 at 15-16. He also states
that he had alerted the head of the agency about his transfer and nonselections.
Id. at 16. OSC’s letter to the appellant identifies his alleged protected activity as
sending a letter to the head of the agency concerning reimbursement policies and
lack of staffing of the BTO, and directing veterans to complain to the head of the
agency about travel pay reimbursement issues. IAF, Tab 1.
¶12 The appellant’s submissions to OSC mention neither reporting that his
supervisor closed the BTO 15 minutes early, nor notifying the head of the agency
that he needed police protection when he closed the BTO because a veteran had
become violent. Thus, we find that the appellant exhausted his administrative
remedies before OSC only regarding writing a letter to the head of the agency and
suggesting to veterans that they complain to the head of the agency about long
wait times in the BTO.
5
The administrative judge mistakenly stated in the initial decision that the appellant
did not submit a copy of his OSC complaint. ID at 5 n.3. The administrative judge’s
error is of no legal consequence, however, because it did not adversely affect the
appellant’s substantive rights. See Karapinka v. Department of Energy, 6 M.S.P.R.
124, 127 (1981).
7
The appellant failed to make a nonfrivolous allegation that writing his letter to
the agency head was a protected activity.
¶13 We first address whether the appellant made a nonfrivolous allegation that
his letter to the head of the agency is a disclosure protected by
section 2302(b)(8). A protected disclosure is a disclosure of information that an
appellant reasonably believes evidences a 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 or safety. Schoenig v.
Department of Justice, 120 M.S.P.R. 318, ¶8 (2013) (citing 5 U.S.C.
§ 2302(b)(8)). At the jurisdictional stage, the appellant only is burdened with
making a nonfrivolous allegation that he reasonably believed that his disclosure
evidenced a violation of one of the circumstances described in 5 U.S.C.
§ 2302(b)(8). Id. The proper test for determining whether an employee had a
reasonable belief that his disclosure was 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 a violation
of one of the other conditions set forth in 5 U.S.C. § 2302(b)(8). Id.
¶14 In his September 24, 2012 letter to the head of the agency, the appellant
notes that generally the BTO is staffed with two clerks, that one of the clerks had
recently resigned, and states that, as the only clerk in the office, he cannot get
time off to visit his brother in Florida who was seriously hurt in a motorcycle
accident. IAF, Tab 7, Ex. 1. He also states that veterans are experiencing long
wait times in the BTO and have expressed their concerns about the lack of
staffing in that office. Id. He further identifies ways that he believes that the
BTO could change to operate with one clerk. Id. Neither the appellant’s letter to
the head of the agency nor his complaint filed with OSC identifies any category
of disclosure found in section 2302(b)(8). Id.; IAF, Tab 4. In his response to the
administrative judge’s jurisdictional order, the appellant, for the first time, uses
8
the phrase “gross mismanagement” by his manager at the VAMC to characterize
his disclosure. IAF, Tab 4 at 5.
¶15 The Board has held, however, that it will not require, as a basis for its
jurisdiction, that an appellant in an IRA appeal correctly label, in a whistleblower
reprisal complaint to OSC, a category of wrongdoing under 5 U.S.C. § 2302(b)(8)
that might be implicated by a particular set of factual allegations. Pulcini v.
Social Security Administration, 83 M.S.P.R. 685, ¶ 8 (1999), aff’d, 250 F.3d 758
(Fed. Cir. 2000). Thus, we must examine the appellant’s allegations to determine
the appropriate whistleblower category. See id. For the reasons discussed below,
we find that the applicable (b)(8) categories are “abuse of authority” and
“gross mismanagement.”
¶16 The Board has defined abuse of authority as “an arbitrary or capricious
exercise of power by a Federal official or employee that adversely affects the
rights of any person or that results in personal gain or advantage to himself or to
preferred other persons.” Id., ¶ 9. The Board has stated that there is no
de minimis standard for abuse of authority. Id.
¶17 Gross mismanagement means a management action or inaction that creates a
substantial risk of significant adverse impact upon the agency’s ability to
accomplish its mission. Embree v. Department of the Treasury, 70 M.S.P.R. 79,
85 (1996). It requires “more than de minimis wrongdoing or negligence,” and
“does not include management decisions which are merely debatable,” nor does it
“mean action or inaction which constitutes simple negligence or wrongdoing.”
Id. “There must be an element of blatancy.” Id. Thus, the appellant has a higher
burden of proof because of the standard applied to allegations of gross
mismanagement. See id.; see also Smith v. Department of the Army, 80 M.S.P.R.
311, ¶ 8 (1998).
¶18 The letter that the appellant wrote to the head of the agency is dated
September 24, 2012. IAF, Tab 7, Ex. 1. In the letter, the appellant’s disclosure is
that, as of the date of the letter, the agency had not hired a replacement for an
9
employee who resigned earlier from his position in the BTO and that this caused
long lines of veterans seeking travel reimbursement. Although the appellant
does not give the exact date that this employee left the BTO, he indicates that the
employee gave his 30-days’ notice sometime after June 22, 2012. Id. Thus, the
longest time interval that the BTO operated with one clerk by the date of the
appellant’s letter would have been from July 23 to August 24, 2012, an interval of
only 2 months. We find that failure to fill a position for 2 months is not in and of
itself an arbitrary and capricious exercise of authority, and the appellant has
alleged no additional facts that, if proven, would show that the failure was
arbitrary and capricious. See Pulcini, 83 M.S.P.R. 685, ¶ 8. Consequently, we
find that the appellant’s disclosure fails to rise to a nonfrivolous allegation of an
abuse of authority. Additionally, we find that a failure to fill a vacancy for
2 months is merely a debatable management decision, or at most inaction that
constitutes simple negligence. See Embree, 70 M.S.P.R. at 85. Therefore, we
likewise find that the appellant’s disclosure fails to rise to the level of a
nonfrivolous allegation of gross mismanagement.
The appellant failed to make a nonfrivolous allegation that he was perceived as
a whistleblower.
¶19 Because the appellant’s letter was known to his managers, including the
Associate Director of the VAMC, we also have considered whether the appellant
made a nonfrivolous allegation that he was perceived as a whistleblower. One
who is perceived as a whistleblower is entitled to the protection of the WPA, even
if he has not made protected disclosures. Juffer v. U.S. Information
Agency, 80 M.S.P.R. 81, ¶ 12 (1998).
¶20 The Board has found that a variety of fact patterns can support a finding
that an individual was perceived as a whistleblower. In Mausser v. Department of
the Army, 63 M.S.P.R. 41, 44 (1994), the appellant compiled a list of “waste,
fraud, and abuse,” “safety issues,” and violations of “government regulations”
that he observed at the agency, with the intention of disclosing the list to the
10
Inspector General after he completed his probationary period. Although the
appellant never actually disclosed the list and was therefore not a whistleblower
when the agency terminated him, the Board found that the agency may have
perceived him as a whistleblower to the extent that the agency knew about the list
and his intention to disclose it. Mausser, 63 M.S.P.R. at 44. In Thompson v.
Farm Credit Administration, 51 M.S.P.R. 569, 581 (1991), the appellant
disagreed with the agency Chairman’s public position on the agency’s financial
condition, and he expressed his disagreement to various agency officials,
including the Chairman himself. Although the appellant did not actually disclose
his disagreement or the bases thereof to anyone outside the agency, and although
he did not intend for the expression of his disagreement to constitute a
whistleblowing disclosure, the Chairman still perceived the appellant as a
whistleblower because he believed the appellant to be “a dangerous proponent of
a view that could prove embarrassing—possibly evidencing mismanagement and
abuse of discretion.” Id. In Holloway v. Department of the Interior, 82 M.S.P.R.
435, ¶ 15 (1999), a local newspaper reported that the appellant had disclosed
“fraud, waste and abuse” at his employing agency but did not discuss the
particulars of the disclosures. The appellant alleged that his supervisor was
aware of the newspaper article and took personnel actions against him because of
it. Id. Therefore, the Board found in that case that even absent a showing that
the appellant made any protected disclosures, he made a nonfrivolous allegation
that his supervisor perceived him as a whistleblower because the supervisor was
aware of the newspaper article labeling him as such. Id.
¶21 Although the cases discussed above arose from widely different factual
circumstances, they share a common element, i.e., that agency officials appeared
to believe that the appellants engaged or intended to engage in whistleblowing
activity. Thus, the analysis of whether an appellant was actually a whistleblower
is different from the analysis of whether an appellant was perceived as a
whistleblower. In cases falling under the former category, the Board will focus
11
its analysis on the appellant’s perceptions and the disclosures themselves, i.e.,
whether he reasonably believed that his disclosures evidenced the type of
wrongdoing listed under 5 U.S.C. § 2302(b)(8). See, e.g., Parikh v. Department
of Veterans Affairs, 116 M.S.P.R. 197, ¶¶ 15-18, 22-23 (2011); Rzucidlo v.
Department of the Army, 101 M.S.P.R. 616, ¶¶ 17-18 (2006). In cases falling
under the latter category, 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 listed under 5 U.S.C. § 2302(b)(8). See, e.g.,
Mausser, 63 M.S.P.R. at 44; Thompson, 51 M.S.P.R. at 581-82. In those cases,
the issue of whether the appellant actually made protected disclosures is
immaterial; the issue of whether the agency perceived the appellant as a
whistleblower will essentially stand in for that portion of the Board’s analysis in
both the jurisdictional and merits stages of the appeal.
¶22 Therefore, to establish jurisdiction over an IRA appeal alleging that the
agency retaliated against an appellant based on its perception that he was a
whistleblower, he must show that he exhausted his remedies before OSC, and
make a nonfrivolous allegation that the agency perceived him as a whistleblower,
and that the agency’s perception was a contributing factor in its decision to take
or not take the personnel action at issue. King v. Department of
Army, 116 M.S.P.R. 689, ¶ 6 (2011).
¶23 Here, the appellant stated in his OSC complaint that he was “called on the
carpet” by the VAMC Assistant Director after he wrote the letter to the head of
the agency. IAF, Tab 4 at 15. Under the circumstances where this allegedly
being “called on the carpet” occurred before any alleged retaliatory action, we
find that the appellant’s OSC complaint contained an allegation that he was
perceived as a whistleblower, and thus he exhausted his administrative remedies
as to this allegation.
12
¶24 However, as noted above, the appellant’s letter fails to characterize the
situation as falling under any of the (b)(8) categories. Thus, the circumstances
here are unlike those in Mausser, 63 M.S.P.R. at 44, where the employee headed
his list with a (b)(8) category “safety.” Further, the appellant failed to allege that
the VAMC Assistant Director identified that the appellant’s letter related to any
(b)(8) category. In fact, contrary to the assertion in the appellant’s OSC
complaint that he was “called on the carpet,” he stated in his first response to the
agency’s motion to dismiss for lack of jurisdiction that the Assistant Director
“did indicate that I was not in trouble for the letter.” 6 IAF, Tab 4 at 6. Therefore,
the circumstances here are unlike those in Thompson, 51 M.S.P.R. at 584, where
an agency official identified the employee’s disagreement with agency action as
possibly implicating a (b)(8) category. Additionally, there is no outside reference
to the appellant that characterized the situations mentioned in his letter to the
head of the agency as any (b)(8) category. So, the circumstances here are unlike
the situation in Holloway, 82 M.S.P.R. 433, ¶ 5, where a newspaper reported that
the employee disclosed a (b)(8) category.
¶25 Thus, we find that the appellant failed to make a nonfrivolous allegation
that any agency officials involved believed that the appellant made or intended to
make disclosures that evidenced the type of wrongdoing listed under 5 U.S.C.
§ 2302(b)(8). See, e.g., Mausser, 63 M.S.P.R. at 44; Thompson, 51 M.S.P.R.
at 581–82.
6
The administrative judge mistakenly refers to the appellant’s statements in his
submissions as unsworn. See, e.g., ID at 16. The appellant’s submissions were e-filed.
With each document that is e-filed, the question is asked “Do you declare, under
penalty of perjury, that the facts stated in this pleading are true and correct.” IAF,
Tab 3, Tab 8 at 3. Thus, all of the statements that the appellant made asserting facts
that he knew from his personal knowledge and that he e-filed are sworn statements. We
find that the administrative judge’s error does not affect the outcome of this case. In
any event, we have considered the statements as sworn in making our decision.
13
The appellant made a nonfrivolous allegation that the agency retaliated against
him for activity protected under the WPEA.
¶26 Section 101(b)(1)(A) of the WPEA amended 5 U.S.C. § 1221(a) to provide
that an employee, former employee, or applicant for employment may seek
corrective action from the Board regarding any personnel action taken, or
proposed to be taken, against such employee, former employee, or applicant for
employment, as a result of a prohibited personnel practice described in 5 U.S.C.
§ 2302(b)(9)(A)(i), (B), (C), or (D). See Hooker v. Department of Veterans
Affairs, 120 M.S.P.R. 629, ¶ 9 (2014) (discussing the scope of the WPEA
amendments to title 5). Thus, to establish jurisdiction over an IRA appeal
regarding activity protected under 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D),
an appellant must prove that he exhausted his administrative remedies before
OSC and make nonfrivolous allegations that: (1) he engaged in activity protected
by 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D); and (2) the 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).
¶27 Here, as noted, the appellant exhausted his administrative remedies
regarding his assertion that the agency retaliated against him for suggesting to
veterans that they complain to the head of the agency about long wait times in the
BTO. Further, as explained below, we find that the appellant made a
nonfrivolous allegation that his distribution of envelopes addressed to the head of
the agency was activity protected by section 2302(b)(9)(B) and that his protected
activity was a contributing factor to the agency’s failure to noncompetitively
transfer him back to the VAMC from Florida, and failure to select him for the
MSA and Gardener positions.
¶28 Section 2302(b)(9)(B) makes it unlawful for an individual to take, fail to
take, or threaten to take a personnel action because of the employee “testifying
for or otherwise lawfully assisting any individual in the exercise of any right
referred to in [5 U.S.C. § 2302(b)(8)(A)](i) or (ii).” 5 U.S.C. § 2302(b)(9)(B).
14
Section 2302(b)(9)(B) also bars reprisal for assisting another individual in the
exercise of any appeal, complaint, or grievance right granted by law, rule, or
regulation, and such a proceeding need not concern remedying a violation of
whistleblower reprisal under section 2302(b)(8). See Carney v. Department of
Veterans Affairs, 121 M.S.P.R. 446, ¶ 6 n.3 (2014). For example, performing
union-related duties, such as filing grievances and representing other employees
in the grievance process, are protected activities under section 2302(b)(9). See
Alarid v. Department of the Army, 122 M.S.P.R. 600, ¶ 10 (2015). Also, under
the WPEA, the Board has jurisdiction over claims of retaliation for lawfully
assisting a coworker in a grievance proceeding granted by law, rule, or regulation,
even outside of the context of union-related duties.
¶29 Title 38 of the Code of Federal Regulations, section 17.33(g) provides for
patient grievances. Specifically, it provides that:
[e]ach patient has the right to present grievances with respect to
perceived infringement of the rights described in this section or
concerning any other matter on behalf of himself, herself or others,
to staff members at the facility in which the patient is receiving care,
other Department of Veterans Affairs officials, government officials,
members of Congress or any other person without fear or reprisal.
38 C.F.R. § 17.33(g). The appellant gave the envelopes to the veterans
experiencing long wait times in the BTO so that they could express their
frustration to the head of the agency, consistent with the grievance rights
provided in section 17.33(g). Therefore, we find that he made a nonfrivolous
allegation that he was assisting patients with a grievance right granted by law,
rule, or regulation.
¶30 The WPEA was signed into law on November 27, 2012, and it had an
effective date of December 27, 2012. King v. Department of the
Air Force, 119 M.S.P.R. 663, ¶ 3 (2013). The appellant’s alleged protected
disclosure and alleged protected activity occurred prior to the effective date of the
WPEA. Further, his transfer to Cochran occurred on December 6, 2012, prior to
15
the effective date of the WPEA, and the Board does not have jurisdiction to
determine whether the transfer constituted retaliation for activity protected under
the WPEA. However, the agency’s failure to noncompetitively transfer the
appellant back to the VAMC from Florida, and failure to select him for the MSA
and Gardener positions occurred in 2013, after the effective date of the WPEA
and the Board has jurisdiction to determine whether these actions constituted
retaliation for activity protected by the WPEA.
¶31 Each of the agency actions taken regarding the appellant after the effective
date of the WPEA are personnel actions within the meaning of the WPEA.
See 5 U.S.C. § 2302(a)(2)(A). Additionally, the appellant made a nonfrivolous
allegation that his protected activity was a contributing factor in the personnel
actions. One way to establish this criterion is the knowledge/timing test, under
which an employee may nonfrivolously allege that the protected activity was a
contributing factor in a personnel action through circumstantial evidence, such as
evidence that the official who took the personnel action knew of the protected
activity, and that the personnel action occurred within a period of time such that a
reasonable person could conclude that the disclosure was a contributing factor in
the personnel action. See Mason v. Department of Homeland
Security, 116 M.S.P.R. 135, ¶ 26 (2011). In his response to the administrative
judge’s Order on Jurisdiction, the appellant stated that he believed that the
official responsible for each of these personnel actions took the action in reprisal
for the appellant’s protected activity. IAF, Tab 4 at 4. The appellant’s protected
activity occurred in September 2012, and the agency took the personnel actions at
issue here within a year of the protected activity. The Board has held that
personnel actions that were alleged to have begun within 1 year of the disclosures
satisfy the “timing” component of the knowledge/timing test. See Mudd v.
Department of Veterans Affairs, 120 M.S.P.R. 365, ¶ 10 (2013).
16
The appellant failed to prove by preponderant evidence that his protected activity
was a contributing factor to the agency’s failure to noncompetitively transfer him
back from Florida and to his nonselections for the MSA and Gardener positions.
¶32 Although we find that the appellant has made a nonfrivolous allegation of
retaliation for protected activity establishing jurisdiction over his IRA appeal
under the WPEA, he has failed to establish a prima facie case. Only if the
appellant makes out a prima facie case of reprisal for protected activity must the
agency be given an opportunity to prove, by clear and convincing evidence, the
affirmative defense that it would have taken the same personnel action in the
absence of the protected activity. See 5 U.S.C. § 1221(e)(2); Schnell v.
Department of the Army, 114 M.S.P.R. 83, ¶ 18 (2010). To establish a prima
facie case under the WPEA, the appellant must prove, by preponderant evidence,
that he engaged in protected activity and that the activity was a contributing
factor in a personnel action against him. See 5 U.S.C. § 1221(e)(1); Chambers v.
Department of the Interior, 116 M.S.P.R. 17, ¶ 12 (2011).
¶33 The agency does not dispute that the appellant distributed envelopes
addressed to the head of the agency to veterans, directing them to complain to the
head of the agency about travel pay reimbursement issues. Therefore, we find
that the appellant established by preponderant evidence that he engaged in
protected activity. However, the appellant failed to prove by preponderant
evidence that his protected activity was a contributing factor in the personnel
actions taken against him. The agency submitted affidavits from the officials that
the appellant alleges retaliated against him by disallowing his transfer back to the
VAMC from Florida and who did not select him for the MSA and Gardener
positions. IAF, Tab 9 at 5-13. Each official stated that he had no knowledge of
the appellant’s protected activity when he took the personnel action involving the
appellant. The appellant did not rebut these affidavits, and thus, we find that he
failed to establish by preponderant evidence the knowledge prong of the
knowledge/timing test regarding the agency’s failure to transfer/reassign him
17
back to the VAMC from Florida, and the agency’s failure to select him for the
MSA and Gardener positions.
¶34 The official involved in the agency’s decision not to transfer the appellant
from Florida averred that he first heard of the appellant when he called in 2013
requesting a reassignment/transfer to the VAMC from the Florida VAMC. Id.
at 6. The official stated further that, at that time, he had not heard about any of
the appellant’s protected activity. Id. He stated that he informed the appellant
that the VAMC did not have an active reassignment/transfer program, and
encouraged the appellant to apply for vacancies at the VAMC. Id. He stated that
the decision not to transfer/reassign the appellant back to the VAMC had nothing
to do with his protected activity. Id. Rather, the official stated that it had been a
longstanding practice of the VAMC not to transfer/reassign employees back to the
VAMC and it had declined to do so in other cases as well. Id.
¶35 The official who did not select the appellant for the MSA position stated in
an affidavit that he had no knowledge of the appellant’s protected activity when
he made the selection for the MSA position. Id. at 10. Similarly, the official who
did not select the appellant for the Gardener position stated in an affidavit that he
received no information about the appellant other than his application and
résumé, which did not include anything about the appellant’s protected activity.
Id. at 13.
¶36 Based on our review of the evidence, we conclude that, although the
appellant exhausted his remedies with OSC regarding his disclosure in a letter to
the head of the agency that the BTO failed to fill a clerk vacancy, he failed to
make a nonfrivolous allegation that his disclosure was protected under the WPA.
We also conclude that the appellant failed to make a nonfrivolous allegation that
he was perceived as a whistleblower, even though the fact that he wrote the letter
to the head of the agency was known to his manager. Accordingly, we dismiss
the appeal for lack of jurisdiction regarding these claims.
18
¶37 We also conclude that the appellant exhausted his remedies with OSC
regarding his activity of distributing envelopes to patients so that they could
complain about long wait times in the BTO, and he made a nonfrivolous
allegation that he had a reasonable belief that this activity is protected activity
under the WPEA. 7 However, for the reasons set forth above, we find that the
appellant failed to make a prima facie case that the agency refused his request to
noncompetitively transfer him back to the VAMC from Florida, and did not select
him for the MSA and Gardener positions, in retaliation for his activity protected
under 5 U.S.C. § 2302(b)(9)(B). Accordingly, we deny the appellant’s request for
corrective action under the WPEA as to these personnel actions.
NOTICE TO THE APPELLANT REGARDING
YOUR FURTHER REVIEW RIGHTS
You have the right to request review of this final decision by the U.S.
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).
7
In a footnote in the initial decision, the administrative judge ruled on the appellant’s
motion to compel the agency to produce copies of documents that he signed asking to
be moved to Cochran. ID at 4 n.1; see IAF, Tab 14. She found, based on the agency’s
responses, that the agency had no documents responsive to the appellant’s request.
Because we do not need to reach the issue of whether the appellant’s move to Cochran
was voluntary, we need not determine whether the administrative judge’s discovery
ruling was an abuse of discretion. See Vaughn v. Department of the Treasury,
119 M.S.P.R. 605, ¶ 15 (2013) (finding that an administrative judge has broad
discretion in ruling on discovery matters and, absent an abuse of discretion, the Board
will not find reversible error in such rulings).
19
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 review of this final decision by the U.S. Court of Appeals for the
Federal Circuit or any court of appeals of competent jurisdiction. 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 U.S. 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
title 5 of the U.S. 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 U.S. Code, at our
website, http://www.mspb.gov/appeals/uscode.htm. 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, and 11. Additional information about
other courts of appeals can be found at their respective websites, which can be
accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx.
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
20
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.