Lisa Magin v. Department of Veterans Affairs

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

LISA MAGIN, DOCKET NUMBER

Appellant, NY-1221-15-0069-W-1

v.

DEPARTMENT OF VETERANS DATE: December 2, 2022

AFFAIRS,

Agency.

THIS ORDER IS NONPRECEDENTIAL 1

James E. Carney, Buffalo, New York, for the appellant.

Sheila Q. Weimer, Esquire, Buffalo, New York, for the agency.

BEFORE

Cathy A. Harris, Vice Chairman

Raymond A. Limon, Member

Tristan L. Leavitt, Member

REMAND ORDER

¶1 The agency has filed a petition for review of the initial decision, which

granted the appellant’s request for corrective action in this individual right of

action (IRA) appeal. For the reasons discussed below, we GRANT the agency’s

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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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).

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petition for review, VACATE the initial decision, and REMAND the case to the

field office for further adjudication in accordance with this Remand Order.

DISCUSSION OF ARGUMENTS ON REVIEW

¶2 The appellant was a Medical Supply Technician at a n agency medical center

in Buffalo, New York, working in the Sterile Processing Service (SPS)

department. Initial Appeal File (IAF), Tab 18 at 15, Tab 56, Initial Decision (ID)

at 4. She alleged that, beginning in 2010, she reported to her managers that some

of her coworkers were not performing their work, and that medical equipment

was not being properly cleaned and maintained. E.g., IAF, Tab 3 at 5, Tab 11

at 6, Tab 36, Subtab C. According to the appellant, her coworkers retaliated

against her for making these reports by leaving her to work alone. IAF, Tab 11

at 6. She further alleged that in November 2011, one coworker hit her with his

shoulder, and in January 2012, another coworker swore at her during a workplace

dispute. IAF, Tab 36, Subtab C at 6-7. She stopped reporting to work 3 days

after the latter incident, citing work-related depression, anxiety, and panic

disorder. ID at 6; IAF, Tab 18 at 43-46, 53, 56-67.

¶3 Over the following months, the appellant requested a reasonable

accommodation and filed a claim for workers compensation benefits, both of

which were denied. ID at 6-7; IAF, Tab 18 at 41. She also filed equal

employment opportunity complaints, which appear to have challenged the denial

of her accommodation request and alleged racial harassment and d iscrimination

by her managers and coworkers. IAF, Tab 18 at 26, 27-29.

¶4 During the appellant’s absence, the agency appointed a new director of the

medical center. ID at 6. The new director reassigned and replaced the

appellant’s former supervisor and manager. ID at 7. The appellant’s new acting

manager proposed the appellant’s removal in January 2013 for excessive absence.

IAF, Tab 18 at 33-34. The director sustained the charge and removed the

appellant, effective March 2013. Id. at 22-23.

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¶5 Following her removal, the appellant filed a whistleblower retaliation

complaint with the Office of Special Counsel (OSC). 2 IAF, Tab 3 at 11-15. After

closing its case, OSC notified the appellant of her Board appeal rights. IAF,

Tab 3 at 5, Tab 11 at 4-7. This IRA appeal followed. IAF, Tab 1.

¶6 The administrative judge held the appellant’s requested hearing and issued

an initial decision, granting corrective action. ID at 2. The agency has filed a

petition for review. Petition for Review (PFR) File, Tabs 1-2. The appellant has

filed a response. 3 PFR File, Tab 5. The agency has replied. PFR File, Tab 4.

The administrative judge must make new jurisdictional findings, specifically

identifying the disclosures and personnel actions that are properly before

the Board.

¶7 The Board has jurisdiction over an IRA appeal if the appellant exhausts her

administrative remedies before OSC and makes nonfrivolous allegations that:

(1) she made a protected 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 or fail to take a personnel action as defined by

5 U.S.C. § 2302(a). 4 5 U.S.C. §§ 1214(a)(3), 1221(e)(1). The Board has recently

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In its decision to remove the appellant, the agency provided notice that she could file

an adverse action appeal with the Board or a whistleblower complaint with OSC, and

the preclusive effect of her choice. IAF, Tab 18 at 22-23. The appellant elected to file

a complaint with OSC. IAF, Tab 3 at 11-15.

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In addition to her response to the agency’s petition for review, the appellant filed a

motion for consequential and other damages. PFR File, Tab 9. The agency has

responded to that motion. PFR File, Tabs 6, 8. In light of our disposition, we will not

address these matters at this time.

4

As detailed above, this case involves alleged disclosures that occurred prior to the

effective date of the Whistleblower Enhancement Protection Act of 2012 (WPEA), and

alleged personnel actions that occurred both before and after that date. See WPEA,

Pub. L. No. 112-199, § 202, 126 Stat. 1465, 1476 (indicating that the WPEA would take

effect 30 days after its enactment date of November 27, 2012). The Board has held

that, when the appellant’s protected disclosure or activity occurred before, but the

relevant personnel actions occurred after the December 27, 2012 effective date of the

WPEA, the WPEA should be applied because the agency knew of the pa rties’ rights,

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clarified the substantive requirements of exhaustion. Chambers v. Department of

Homeland Security, 2022 MSPB 8, ¶¶ 10-11. The requirements are met when an

appellant has provided OSC with sufficient basis to pursue an investigation. Id.

¶8 Although the appellant submitted what appears to be her initial complaint to

OSC, it does not detail her alleged disclosures. IAF, Tab 3 at 11-15. The record

does, however, include notes dated April 2010 to January 2012, which the

appellant reportedly provided to OSC in concert with her complaint. IAF,

Tab 36, Subtab C; ID at 5. Many of those notes detail interpersonal conflicts she

had with coworkers in the SPS department, and some suggest that she may have

raised these and other issues with managers. IAF, Tab 36, Subtab C. The record

next includes OSC’s preliminary determination letter, which described the a lleged

disclosures before it as follows:

[Y]ou reported to [the SPS manager] that medical equipment was not

being thoroughly cleaned, employees were not wearing the

appropriate personal protective equipment, dental hand pieces were

not being properly sanitized, crash carts were not being stocked with

respiratory equipment, and other issues.

IAF, Tab 11 at 6. Through her representative, the appellant responded to this

preliminary determination letter from OSC, asserting that her disclosures began in

2010 and were ongoing. Id. at 8. She further alleged that her disclosures were

protected because they identified a “significant adverse effect on public health

and safety.” Id. at 9. In addition, she asserted that while OSC’s letter referred

only to disclosures to the SPS manager, the OSC and an inspector general “were

also made aware.” Id. at 8. OSC’s subsequent closeout letter does not further

describe the appellant’s disclosures, except to conclude that while she did make

disclosures to OSC and an inspector general, those disclosures occurred after her

removal. Id. at 4; IAF, Tab 26 at 45-48.

liabilities, and duties under the WPEA when it took, or failed to take, the personnel

actions. See Pridgen v. Office of Management & Budget, 2022 MSPB 31, ¶¶ 50-51. On

remand, the administrative judge should apply the law as appropriat e to each

personnel action.

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¶9 In concert with this IRA appeal, the appellant has described her disclosures

in a number of ways. For example, in her initial pleading, she described her

disclosures as ones of “gross safety and health violations having significant effect

on public health and safety.” IAF, Tab 1 at 6. Later, she described her

disclosures as concerning “coworkers’ non-adherence to proper safety and health

procedures.” IAF, Tab 16 at 5. In yet another pleading, in which she responded

to an agency interrogatory asking that she identify and detail each disclosure, the

appellant presented somewhat different allegations, as follows:

Informed [her SPS manager and four other individuals at her medical

center] of problems in SPS such as black employees playing the

radio loudly on a racially biased station and not allowing anyone to

change the channel, loudly goldbricking, talking on the phone while

they were supposed to be working[,] their failure to use personal

protective equipment, improper sterilization techniques, non

attendance [sic] to proper cleaning techniques, leaving the work site

for hours on end, leaving complainant to take up the slack.

IAF, Tab 26 at 11-12, 33-34. 5

¶10 The record is similarly unclear regarding the personnel actions properly

before us. OSC’s preliminary determination and closeout letters identify the

appellant’s removal and an alleged hostile work environment. IAF, Tab 11 at 4-7.

However, the appellant’s interim response also may implicate other matters,

including an alleged failure to accommodate, retain, restore, transfer, or reassign

her. Id. at 15.

¶11 In the pleadings submitted throughout this IRA appeal, the appellant

initially referred to a hostile work environment, removal, and refusal to

accommodate or transfer. IAF, Tab 1 at 6. She later responded to the agency’s

5

It does not appear that the appellant alleged below that she was retaliated against for

protected activity. See Rebstock Consolidation v. Department of Homeland Security,

122 M.S.P.R. 661, ¶¶ 5-7 (2015) (discussing the WPEA’s expansion of the grounds

upon which an IRA appeal may be filed to include protected activity); ID at 10-11.

However, if she raised these issues below or asserts them on remand, the administrative

judge should adjudicate them consistent with this order.

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motion to dismiss by alleging that her disclosures were a contributing factor in

her removal, while also referring to reasonable accommodation, generally. IAF,

Tab 16 at 4-5.

¶12 The administrative judge issued an order finding that the Board had

jurisdiction over the instant appeal. IAF, Tab 9 at 1. However, she did not

identify the alleged disclosures and personnel actions that the appellant proved

she exhausted with OSC. She identified the personnel action at issue as the

appellant’s removal, but did not identify the alleged protected disclosures,

mention any other alleged personnel actions, or make findings as to whether the

appellant’s allegations were nonfrivolous. Id. at 1, 3. The initial decision

provides little clarity on these matters. ID at 10-13. For example, the

administrative judge reversed the appellant’s removal because she found that the

appellant’s absence was caused by her coworkers’ retaliatory harassment. ID

at 10-13 & n.3. Yet, there is no finding that the Board has jurisdiction over this

alleged harassment. ID at 2.

¶13 An initial decision must identify all material issues of fact and law,

summarize the evidence, resolve issues of credibility, and include the

administrative judge’s conclusions of law and her legal reasoning, as well as the

authorities on which that reasoning rests. Spithaler v. Office of Personnel

Management, 1 M.S.P.R. 587, 589 (1980). Because the administrative judge

failed to identify and fully analyze each of the appellant’s alleged disclosures and

personnel actions, we must remand this appeal. See, e.g., Mastrullo v.

Department of Labor, 123 M.S.P.R. 110, ¶ 14 (2015) (remanding for an

administrative judge to identify and analyze each of the appellant’s

alleged disclosures).

¶14 On remand, the administrative judge should issue an order directing the

appellant to identify each disclosure and personnel action at issue in this appeal.

See Keefer v. Department of Agriculture, 92 M.S.P.R. 476, ¶ 18 n.2 (2002)

(cautioning that an appellant who fails to articulate his claims with reasonable

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clarity and precision risks being found to have failed to meet his burden). The

order should direct the appellant to identify the nature of the disclosure or action,

when it occurred, and the individuals involved. The order also should direct the

appellant to prove she has met the requirements of exhaustion. The Board’s

jurisdiction is limited to those issues that have been previously raised with OSC.

Chambers, 2022 MSPB 8, ¶¶ 10-11. However, an appellant may give a more

detailed account of her whistleblowing activities before the Board than she did to

OSC. An appellant may demonstrate exhaustion through her initial OSC

complaint, evidence that she amended the original complaint, including but not

limited to OSC’s determination letter and other letters from OSC referencing any

amended allegations, and the appellant’s written responses to OSC referencing

the amended allegations. An appellant may also establish exhaustion through

other sufficiently reliable evidence, such as an affidavit or declaration attesting

that the appellant raised with OSC the substance of the facts in the Board

appeal. Id.

¶15 In advising the appellant of her burden, the administrative judge should

include the standard for establishing a harassment claim articulated in Skarada v.

Department of Veterans Affairs, 2022 MSPB 17, ¶¶ 14-16. As we explained in

Skarada, only agency actions that, individually or collectively, have practical and

significant effects on the overall nature and quality of an employee’s working

conditions, duties, or responsibilities will be found to constitute a pers onnel

action under the Whistleblower Protection Act. Id.

¶16 The administrative judge should then make jurisdictional determinations,

specifically identifying those disclosures and personnel actions that are within the

Board’s jurisdiction. See Keefer, 92 M.S.P.R. 476, ¶ 16 (remanding for further

adjudication when the administrative judge failed to specify which allegations of

protected disclosures and personnel actions he found were nonfrivolous and

whether the appellants exhausted their OSC remedy with respect to those

disclosures and actions).

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For any alleged disclosures and personnel actions the administrative judge finds

to be within the Board’s jurisdiction, she must provide a complete analysis on

the merits.

¶17 After establishing the Board’s jurisdiction in an IRA appeal, an appellant

bears the burden of establishing a prima facie case of whistleblower retaliation by

proving by preponderant evidence that she made a protected disclosure that was a

contributing factor in a personnel action taken against her. 5 U.S.C. § 1221(e)(1);

Mattil v. Department of State, 118 M.S.P.R. 662, ¶ 11 (2012). If an appellant

makes out a prima facie case, the agency is given an opportunity to prove, by

clear and convincing evidence, that it would have taken the same personnel action

in the absence of the protected disclosure. 5 U.S.C. § 1221(e)(1)-(2); Mattil,

118 M.S.P.R. 662, ¶ 11.

¶18 In determining whether an agency has met this burden, the Board will

consider the following factors (“Carr factors”): (1) the strength of the agency’s

evidence in support of its action; (2) the existence and strength of any motive to

retaliate on the part of the agency officials who were involved in the decision;

and (3) any evidence that the agency takes similar actions against employees who

are not whistleblowers but who are otherwise similarly situated. Soto v.

Department of Veterans Affairs, 2022 MSPB 6, ¶ 11; see Carr v. Social Security

Administration, 185 F.3d 1318, 1323 (Fed. Cir. 1999). 6 The Board does not view

these factors as discrete elements, each of which the a gency must prove by clear

and convincing evidence, but rather weighs these factors together to determine

whether the evidence is clear and convincing as a whole. Alarid v. Department of

the Army, 122 M.S.P.R. 600, ¶ 14 (2015).

6

Historically, the Board has been bound by the precedent of the U.S. Court of Appeals

for the Federal Circuit on this issue. However, as a result of changes initiated by the

Whistleblower Protection Enhancement Act of 2012, Pub. L. No. 112-199, 126 Stat.

1465, extended for 3 years in the All Circuit Review Extension Act, Pub. L.

No. 113-170, 128 Stat. 1894, and eventually made permanent in the All Circuit Review

Act, Pub. L. No. 115-195, 132 Stat. 1510, appellants may file petitions for judicial

review of Board decisions in whistleblower reprisal cases with any circuit court of

appeals of competent jurisdiction. See 5 U.S.C. § 7703(b)(1)(B).

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¶19 Although the administrative judge found that the appellant met her burden

of establishing a prima facie case of whistleblower reprisal, generally, she

improperly did so in summary fashion. ID at 10-11. The administrative judge

did not, for example, specify which disclosures were protected, delineate the

category of protected disclosure, or explain how the appellant met her burden.

Id.; see 5 U.S.C. § 2302(b)(8) (providing that a disclosure is protected if an

individual reasonably believes that it 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). She also failed to

adequately explain the contributing factor element. She concluded that the

appellant proved this element through the knowledge/timing test, at least with

respect to her removal. See ID at 10-11. However, in doing so, she found that

the deciding official knew that the appellant previously had complained to her

SPS manager, generally; the administrative judge did not, for example, specify

whether the deciding official’s knowledge of complaints included knowledge of

protected disclosures. Id.

¶20 On remand, if the administrative judge finds jurisdiction, then she must

explain in her remand initial decision how the appellant met, or did not meet , her

burden to prove her prima facie case.

¶21 The administrative judge’s findings similarly lack specificity concerning

the agency’s burden. ID at 11-12. For the first Carr factor, i.e., the strength of

the agency’s evidence in support of its action, the administrative judge seemed to

rely entirely on a finding that, as to the appellant’s removal, the deciding official

altogether failed to consider the connection between her absence and hostility she

reportedly faced from coworkers. ID at 12. She did so without explanation or

citation and despite evidence to the contrary, including the agency’s notes from

the appellant’s oral reply, the appellant’s written reply, and the deciding official’s

detailed penalty analysis. ID at 9; IAF, Tab 18 at 24-28.

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¶22 For the second Carr factor, i.e., the existence and strength of any motive to

retaliate on the part of the agency officials who were involved in the decision, the

administrative judge found that the proposing and deciding officials had no

motive to retaliate because the disclosures did no t negatively reflect on them. ID

at 12. The administrative judge should consider the motive of the agency

generally, not merely the motive of the individual managers. Wilson v

Department of Veterans Affairs, 2022 MSPB 7, ¶ 65 (addressing the second Carr

factor to find that the appellant’s disclosures generally put higher -level

management officials in a critical light by disclosing probl ems for which they

were responsible); Smith v. Department of the Army, 2022 MSPB 4, ¶¶ 28-29

(addressing the second Carr factor to find that the misconduct the appellant

disclosed was egregious and generated negative publicity, thereby reflecting

poorly on the agency’s general institutional interests). Moreover, she did not

fully discuss other considerations, such as whether any other individual that did

have a motive to retaliate influenced their decisions . ID at 12. Nevertheless, the

alleged harassment by the appellant’s coworkers cannot shield her from the

consequences of her misconduct, and the administrative judge erred to the extent

that she inferred retaliatory motive from the agency’s failure to take t his alleged

harassment into account to mitigate the penalty of removal. ID at 11-12; see

Carr, 185 F.3d at 1324, 1326 (declining to consider the allegedly false reports of

misconduct by an employee’s coworkers, who were subjects of her disclosures, in

weighing the motive to retaliate on the part of the officials who removed her).

¶23 For the third Carr factor, i.e., any evidence that the agency takes similar

actions against employees who are not whistleblowers but who are otherwise

similarly situated, the administrative judge recognized that the agency had

removed other employees for excessive absences. ID at 12. However, she seems

to altogether dismiss this evidence, rather than account for any differences,

because those instances did not involve an alleged hostile work environ ment.

Id.; cf. Mattil v. Department of State, 118 M.S.P.R. 662, 675 (2012). To the

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extent that the agency has not accounted for the differences in the kinds and

degrees of conduct and otherwise explained the context of its comparator

evidence, it is taking a risk in failing to provide such information . The Board

has previously adopted the reasoning of the U.S. Court of Appeals for the

Federal Circuit that “the failure to produce such evidence if it exists ‘may be at

the agency’s peril,’ and ‘may well cause the agency to fail to prove its case

overall.’” Smith, 2022 MSPB 4, ¶ 30 (quoting Whitmore, 680 F.3d at 1374).

¶24 On remand, if the administrative judge again finds that the appellant met

her burden of establishing a prima facie case of whistleblower reprisal, the

remand initial decision must provide complete findings regarding the agen cy’s

burden. Spithaler, 1 M.S.P.R. at 589.

ORDER

¶25 For the reasons discussed above, we remand this case to the field office for

further adjudication in accordance with this Remand Order. To the extent

necessary, the administrative judge should permit the parties to supplement the

record with additional argument, evidence, and testimony before issuing a

new decision.

FOR THE BOARD: /s/ for

Jennifer Everling

Acting Clerk of the Board

Washington, D.C.