The opinion
UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
ANA M. DELOSREYES, DOCKET NUMBER
Appellant, NY-1221-14-0379-W-1
v.
GENERAL SERVICES DATE: May 5, 2016
ADMINISTRATION,
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Lawrence Tomscha, New York, New York, for the appellant.
Nicole Ludwig, Esquire, New York, New York, 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
dismissed her individual right of action (IRA) appeal for lack of jurisdiction.
Generally, we grant petitions such as this one only when: the initial decision
contains erroneous findings of material fact; the initial decision is based on an
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
erroneous interpretation of statute or regulation or the erroneous application of
the law to the facts of the case; the administrative judge’s rulings during either
the course of the appeal or the initial decision were not consistent with required
procedures or involved an abuse of discretion, and the resulting error affected the
outcome of the case; or new and material evidence or legal argument is available
that, despite the petitioner’s due diligence, was not available when the record
closed. See title 5 of the Code of Federal Regulations, section 1201.115 (5 C.F.R.
§ 1201.115). After fully considering the filings in 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 and
AFFIRM the initial decision, which is now the Board’s final decision. 5 C.F.R.
§ 1201.113(b).
BACKGROUND
¶2 The appellant is employed as a Realty Specialist with the agency in
San Juan, Puerto Rico. Initial Appeal File (IAF), Tab 1 at 1, 8. In
September 2014, the appellant filed an IRA appeal, alleging that, in retaliation for
her testimony on behalf of a coworker, her supervisor issued her a letter of
performance concern, which the appellant contended was a threat to lower her
performance rating. IAF, Tab 1 at 6, Tab 5 at 4-5.
¶3 After issuing an order setting forth the requirements for establishing
jurisdiction over an IRA appeal, IAF Tab 3 at 2-6, and considering the appellant’s
response, IAF, Tab 5, the administrative judge dismissed the appeal for lack of
jurisdiction without holding the appellant’s requested hearing. IAF, Tab 8, Initial
Decision (ID). Relying on King v. Department of Health & Human
Services, 133 F.3d 1450, 1452‑53 (Fed. Cir. 1998), he found that the appellant
failed to raise a nonfrivolous allegation that the letter of performance concern was
a personnel action because the letter was akin to a progress report, was not an
official rating, did not contain any threats to lower the appellant’s performance
3
rating, and was of no consequence to the appellant’s continued employment. ID
at 4-5. He further found that the appellant’s subjective belief that the matters
discussed in the letter of performance concern could lead to a personnel action at
some time in the future did not satisfy her jurisdictional burden. ID at 5.
¶4 The appellant has filed a petition for review of the initial decision, and the
agency has responded in opposition. Petition for Review (PFR) File, Tabs 1, 3.
DISCUSSION OF ARGUMENTS ON REVIEW
¶5 To establish the Board’s jurisdiction over an IRA appeal, the appellant must
demonstrate that she exhausted her administrative remedies before the Office of
Special Counsel (OSC) and make nonfrivolous allegations that: (1) she made a
disclosure described under 5 U.S.C. § 2302(b)(8), or engaged in protected activity
described under 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D); and (2) the
disclosure or protected activity was a contributing factor in the agency’s decision
to take, fail to take, or threaten to take or fail to take a personnel action as
defined by 5 U.S.C. § 2302(a). 5 U.S.C. §§ 1214(a)(3), 1221(e)(1); Yunus v.
Department of Veterans Affairs, 242 F.3d 1367, 1371 (Fed. Cir. 2001); Linder v.
Department of Justice, 122 M.S.P.R. 14, ¶ 6 (2014). If the appellant establishes
Board jurisdiction over her IRA appeal by exhausting her remedies before OSC
and making the requisite nonfrivolous allegations, she has the right to a hearing
on the merits of her claim. Rusin v. Department of the Treasury, 92 M.S.P.R.
298, ¶ 20 (2002).
¶6 Here, the administrative judge found, and we agree, that the appellant
demonstrated that she exhausted her administrative remedies before OSC. ID
at 3; IAF Tab 1 at 10, Tab 5 at 11. We further agree with the administrative
judge that the dispositive issue in this appeal is whether the appellant raised a
4
nonfrivolous allegation that the letter of performance concern was a personnel
action or a threat to take a personnel action. 2 ID at 4-5.
¶7 The administrative judge correctly found that the letter of performance
concern was not a personnel action. ID at 4-5. As the administrative judge
discussed below, ID at 4-5, in King, 133 F.3d 1450, the U.S. Court of Appeals for
the Federal Circuit distinguished a progress review from a performance
evaluation and concluded that, unlike a performance evaluation, a progress review
is not a personnel action. 3 Id. at 1452-53; see 5 U.S.C. § 2302(a)(2)(A)(viii).
The court found that not every agency action is a personnel action under the
Whistleblower Protection Act (WPA), the predecessor to the Whistleblower
Protection Enhancement Act (WPEA), and that, to constitute a personnel action,
an action must have practical consequences for an employee. King, 133 F.3d
at 1453. In distinguishing a progress report from a performance evaluation, the
court found that, while a performance evaluation is formal, judgmental,
consequential, and judges the quality of past work, a progress report is informal,
2
On review, the appellant contends that the administrative judge failed to address the
fact that she testified on behalf of a coworker. PFR File, Tab 1 at 4, 6. To the extent
that the appellant is arguing that the administrative judge erred in failing to make a
finding regarding whether her testimony was a protected activity under 5 U.S.C.
§ 2302(b)(9)(A)(i), (B), (C), or (D), we disagree. Once the administrative judge found
that the appellant failed to raise a nonfrivolous allegation that the agency took or
threatened to take a personnel action against her, the Board lacked jurisdiction over the
appeal, and the administrative judge was not required to address whether the appellant
engaged in protected activity. See Shivaee v. Department of the Navy, 74 M.S.P.R. 383,
387-89 (1997 (dismissing an IRA appeal on the ground that an appellant failed to raise
a nonfrivolous allegation of a personnel action, without addressing whether he had a
reasonable belief that the agency violated the law).
3
We have considered the appellant’s argument on review that her appeal is
distinguishable from King because she alleged that she engaged in protected activity
under 5 U.S.C. § 2302(b)(9), rather than made a protected disclosure under 5 U.S.C.
§ 2302(b)(8). PFR File, Tab 1 at 5. We find this argument unpersuasive. As with
5 U.S.C. § 2302(b)(8), 5 U.S.C. § 2302(b)(9) requires that the agency take, fail to take,
or threaten to take or fail to take a personnel action.
5
collaborative, nonconsequential, and somewhat prospective in nature, providing
an opportunity for future improvement. Id. at 1452.
¶8 We agree with the administrative judge that the letter of performance
concern at issue in the instant appeal is akin to the progress report addressed in
King. ID at 5. In the letter of performance concern, the appellant’s supervisor
informed her that her work product had been deteriorating over the past several
months, 4 provided examples of specific performance issues that the appellant had
experienced on projects, and identified areas in which the appellant needed to
improve her performance, including completing and billing her projects in a
timely manner, adequately responding to requests from customer agencies, and
arriving at meetings on time. IAF, Tab 5 at 10. The appellant’s supervisor stated
that she was available to help the appellant and requested (but did not order) that
they meet once every other week to discuss the appellant’s projects. Id. The
letter of performance concern was not an official rating and did not reference any
disciplinary or corrective action. Id. For these reasons, like the progress report
in King, the letter of performance concern was an informal and prospective
attempt to improve the appellant’s future performance, did not have practical
consequences for the appellant, and was not a personnel action. See King,
133 F.3d at 1452-53; see also Reeves v. Department of the Army, 101 M.S.P.R.
337, ¶ 11 n.* (2005) (finding that an appellant failed to raise a nonfrivolous
allegation that a memorandum of counseling was a personnel action when the
memorandum informed him of performance deficiencies and required corrective
actions, but did not threaten to take disciplinary action).
¶9 On review, the appellant reiterates her argument, raised below, that the
letter of performance concern was a threat to lower her performance rating. PFR
4
The appellant alleges that her supervisor issued the letter of performance concern
6 days after she testified on behalf of her coworker. IAF, Tab 5 at 4-5; PFR File, Tab 1
at 4-5. However, the letter of performance concern indicates that the appellant’s
alleged performance issues predated her testimony. IAF, Tab 5 at 10.
6
File, Tab 1 at 4-5; see IAF, Tab 5 at 4-5. We agree with the administrative judge
that the appellant failed to raise a nonfrivolous allegation that the letter of
performance concern was a threat to take a personnel action. 5 ID at 5.
¶10 The line between a counseling measure and a threat is not a bright one, and
the distinction between the two is very fact dependent. Koch v. Securities &
Exchange Commission, 48 F. App’x 778, 787 (Fed. Cir. 2002). 6 There may be
some instances in which a supervisor’s statements regarding an appellant’s
performance deficiencies raise a nonfrivolous allegation of a threatened personnel
action. See Mastrullo v. Department of Labor, 123 M.S.P.R. 110, ¶¶ 24-25
(2015) (finding that an appellant’s assertions regarding statements that his
supervisor made during a midterm progress review meeting raised a nonfrivolous
allegation of a threatened personnel action); see also Czarkowski v. Department
of the Navy, 87 M.S.P.R. 107, ¶¶ 20-21 (2000) (finding that an appellant raised a
nonfrivolous allegation that a memorandum outlining her performance
deficiencies was a performance improvement plan, when, among other things, it
stated that the appellant’s work was being realigned temporarily and that her
performance appraisal was being deferred). However, the administrative judge
correctly found that the letter of performance concern at issue here is not such an
instance. ID at 5.
¶11 The letter of performance concern does not mention the appellant’s
performance evaluation, does not state that the appellant’s supervisor intended to
5
On review, the appellant argues that the administrative judge did not address “the
threat.” PFR File, Tab 1 at 4. To the contrary, the administrative judge considered the
appellant’s argument that the letter of performance concern was a threat to lower her
performance rating and found the argument unpersuasive. ID at 5. Specifically, he
found that the letter of performance concern did not contain any threats to lower the
appellant’s performance rating and that the appellant’s subjective belief that the matters
discussed in the letter could lead to a personnel action at some time in the future did not
satisfy her jurisdictional burden. ID at 5.
6
The Board may rely on an unpublished Federal Circuit decision when, as here, it finds
the court’s reasoning persuasive. Mauldin v. U.S. Postal Service, 115 M.S.P.R. 513,
¶ 12 (2011).
7
lower her performance rating, or discuss any proposed corrective or disciplinary
action in response to her performance deficiencies. Cf. Campo v. Department of
the Army, 93 M.S.P.R. 1, ¶¶ 7-8 (2002) (explaining that a memorandum of
warning was a threat to take a personnel action when it stated that an appellant
would be subject to disciplinary action, including removal, if she continued to
make unfounded allegations, the substance of which comprised her alleged
protected disclosures); Special Counsel v. Hathaway, 49 M.S.P.R. 595, 608-09
(1991) (finding a threatened personnel action when an employee was informed
that he should not expect the highly satisfactory performance rating that he had
received the prior year), recons. denied, 52 M.S.P.R. 375, aff’d 981 F.2d 1237
(Fed. Cir. 1992).
¶12 The letter of performance concern does state that, despite being given
assistance with her assignments, the appellant “continue[d] to have difficulty
meeting the criteria established in [her] critical elements,” and, as discussed
previously, provides examples of the appellant’s performance deficiencies. IAF,
Tab 5 at 10. To the extent that the appellant contends that these statements raise
a nonfrivolous allegation of an implicit threat that she would receive a lower
performance rating, we disagree.
¶13 It is a truism for any employee that poor performance may result in a low or
unsatisfactory performance rating. However, not all general statements setting
forth performance expectations and the consequences of failing to meet those
expectations or counseling measures directed at particular employees constitute
threats to take a personnel action. Koch, 48 F. App’x at 787 (“A wide range of
agency rules, directives, and counseling measures contain the message, implicit
or explicit, that failure to follow those directives or to meet expectations may
have adverse consequences, including possible discharge. . . . [N]ot all such
general statements . . . constitute actionable ‘threats’ to take adverse action within
the meaning of the Whistleblower Protection Act.”). Indeed, in King, the court
found that Congress did not intend for the WPA to create an IRA appeal for every
8
interim comment made in the workplace, written or otherwise, about the need for
improvement. 7 133 F.3d at 1453.
¶14 Here, the appellant failed to raise a nonfrivolous allegation that the letter of
performance concern was a threatened personnel action, as opposed to an effort to
assist her in bringing her performance to an acceptable level. See Special
Counsel v. Spears, 75 M.S.P.R. 639, 669 (1997) (finding that a “mid point”
counseling memorandum informing an employee that she was failing two of her
critical elements was part of a process designed to assist her to bring her
performance to an acceptable level, rather than a threatened personnel action).
¶15 In sum, for the reasons set forth above, we conclude that the administrative
judge properly dismissed the IRA appeal for lack of jurisdiction because the
appellant failed to raise a nonfrivolous allegation that the letter of performance
concern was a personnel action or a threat to take a personnel action. ID at 1,
4-5; see McCarty v. Environmental Protection Agency, 105 M.S.P.R. 74, ¶ 7
(2007) (finding that the Board is required to first determine whether all
jurisdictional requirements have been met before addressing the merits of an
IRA appeal).
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.
7
On review, the appellant contends that the administrative judge failed to consider that
the WPEA amended the WPA. PFR File, Tab 1 at 5. However, the WPEA did not alter
the jurisdictional requirement of an actual or threatened personnel action, nor did it
effectuate any change to the definition of a personnel action material to the outcome of
this appeal. See Pub. L. No. 112–199, 126 Stat. 1465 (Nov. 27, 2012). Certainly, none
of the amendments in the WPEA indicate that Congress intended to create an IRA
appeal from every interim comment made about the need to improve an employee’s
performance. See King, 133 F.3d at 1453.
9
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 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 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 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.
10
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
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.