Davette Buchanan v. Department of Veterans Affairs

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

DAVETTE G. BUCHANAN, DOCKET NUMBER

Appellant, DC-1221-21-0390-W-1

v.

DEPARTMENT OF VETERANS DATE: August 3, 2022

AFFAIRS,

Agency.

THIS ORDER IS NONPRECEDENTIAL 1

Davette G. Buchanan, Black Mountain, North Carolina, pro se.

Erin Brady Rega, Winston Salem, North Carolina, for the agency.

BEFORE

Cathy A. Harris, Vice Chairman

Raymond A. Limon, Member

Tristan L. Leavitt, Member

REMAND 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. For

the reasons discussed below, we GRANT the appellant’s petition for review,

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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

VACATE the initial decision, and REMAND the case to the Washington Regional

Office for further adjudication in accordance with this Remand Order.

BACKGROUND

¶2 The appellant is a GS-7 Medical Instrument Technician at the Charles

George Veterans Affairs (VA) Medical Center in Asheville, North Carolina.

Initial Appeal File (IAF), Tab 1 at 1. She filed an IRA appeal with the Board and

requested a hearing. Id. at 1. In her initial filing, she alleged that she was

stabbed with a used hypodermic needle by a VA nurse in January 2018, the

agency and the VA police failed to conduct a proper investigation of the incident,

and agency employees mocked her and told her to get over it. Id. at 2. The

administrative judge issued two show cause orders , which notified the appellant

that the Board might not have jurisdiction over her appeal, informed her of her

jurisdictional burden, and directed her to file evidence and argument on the issue.

IAF, Tabs 3, 9.

¶3 After the record on jurisdiction closed, the administrative judge is sued an

initial decision dismissing the appeal for lack of jurisdiction without holding the

appellant’s requested hearing. IAF, Tab 1 at 1, Tab 15, Initial Decision (ID) at 1,

19. She determined that the appellant had exhausted with the Office of Special

Counsel (OSC) her claims that she made protected disclosures when she reported

the needle-stick incident and an alleged threat of gun violence by the same nurse

colleague who stabbed her with the used needle and that she engaged in protected

activity when she complained to the Office of the Inspector General (OIG) about

the needle-stick incident. ID at 7-8. The administrative judge also concluded

that the appellant had nonfrivolously alleged that she made disclosures that a

reasonable person in her position would believe evidenced a violation of law in

connection with these two events. ID at 9-10. Specifically, she found the

appellant’s allegation that a nurse intentionally stuck her with a needle disclosed

an assault and the appellant’s allegation that a nurse threatened her with gun

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violence disclosed a misdemeanor threat under North Carolina statute, N.C. Gen.

Stat. § 14-277.1. ID at 9-10; 5 U.S.C. § 2302(b)(8)(A)(i). Additionally, she

determined that the appellant had nonfrivolously alleged that she engaged in

protected activity when she filed a complaint with the OIG for the Department of

Health and Human Services (DHHS). ID at 10-11. In that complaint, the

appellant raised concerns about the agency’s response to the needle-stick

disclosure, arguing that the police investigation into the incident was inadequate

and that the agency endangered her safety by allowing the nurse who assaulted

her to remain employed with the agency. IAF, Tab 12 at 6-9.

¶4 Regarding the purported personnel actions, the administrative judge

concluded that the appellant exhausted with OSC the following allegations:

(1) she had been subjected to a hostile work environment, (2) her duties and

working conditions were changed, and (3) she had been denied a promised raise

or promotion. ID at 8, 15. Nevertheless, she determined that the appellant failed

to nonfrivolously allege facts sufficient to establish that any of these incidents

amounted to a personnel action. ID at 11-16. She also concluded that the

appellant neither exhausted her claim that she had been subjected to a negative

suitability determination nor nonfrivolously alleged she was subjected to such a

determination. ID at 8 & n.3. She found that the appellant, therefore, failed to

establish jurisdiction over her appeal.

¶5 Alternatively, the administrative judge determined that even assuming the

appellant made a nonfrivolous allegation that she was subjected to personnel

actions in connection with these claims, she failed to nonfrivolously allege that

her protected disclosures or activities were a contributing factor in the agency ’s

decision to take or not take these alleged actions, based on either the

knowledge/timing test or other evidence. ID at 16-18. Specifically, she found

that the appellant’s pleadings did not provide sufficient details concerning who

took the alleged actions against her and whether any such individuals were aware

of her disclosures or activities. ID at 16-17. Consequently, she concluded that,

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despite being provided two opportunities to do so, the appellant “failed to identify

any specific acting agency official or officials, what personnel actions they took,

failed to take or threatened to take and why the y did so,” and so, she failed to

establish that any of the appellant’s disclosures or activities were a contributing

factor in any of the challenged personnel actions. ID at 17-18.

¶6 The appellant has filed a petition for review and a supplement to her

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

filed a response in opposition to the petition for review. PFR File, Tab 4. The

appellant has not filed a reply.

DISCUSSION OF ARGUMENTS ON REVIEW

¶7 On review, the appellant argues that she would be able to establish her

claims if she were permitted a hearing and the ability to call witnesses and

reargues that the agency’s investigation into the needle-stick incident was

insufficient and flawed. PFR File, Tab 1 at 3-7. Additionally, she asserts that

she has newly discovered evidence in the form of emails from a former agency

employee showing that he contacted agency administrators and supervisors

several times on her behalf and told them about the hostile actions being taken

against the appellant, and she provides copies of those emails in her supplemental

petition for review. PFR File, Tab 1 at 3-4, Tab 2 at 2-8. The appellant also has

included an additional narrative statement setting forth a timeline of events

starting with the January 2018 needle-stick incident and the subsequent

investigation and running through June 2020, when she purportedly was denied a

title change and a corresponding pay increase. PFR File, Tab 2 at 9-12. In this

pleading, she also asserts that she was subjected to a negative suitability

determination when she was stabbed by the agency employee with the used

syringe. Id. at 9.

5

The administrative judge properly determined that the appellant nonfrivolously

alleged she made protected disclosures and engaged in protected activity and that

she exhausted those claims with OSC.

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

administrative remedies before OSC and makes nonfrivolous allegations th at

(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 or fail to take a personnel action as defined by 5 U.S.C.

§ 2302(a)(2)(A). Linder v. Department of Justice, 122 M.S.P.R. 14, ¶ 6 (2014).

¶9 The administrative judge concluded that the appellant made a nonfrivolous

allegation that she made protected disclosures that a nurse (1) stuck her with a

needle on January 28, 2018, and (2) threatened her with gun violence on

February 23, 2018. ID at 9-10; IAF, Tab 7 at 4, 10, Tab 12 at 7-9. The

administrative judge also concluded that the appellant made a nonfrivolous

allegation that she engaged in protected activity when she sent a complaint to the

OIG for DHHS detailing the needle-stick incident and her belief that the agency’s

investigation into the incident was inadequate. ID at 10-11; IAF, Tab 12 at 6-9.

She found the appellant exhausted these disclosures and activity. ID at 8. The

parties have not challenged these findings on review, and we discern no basis to

disturb them.

¶10 In the initial decision, the administrative judge interpreted the appellant ’s

pleadings to find that she had identified three purported personnel actions taken

against her: (1) she was subjected to a hostile work environment, (2) her duties

and working conditions were changed, and (3) she was not granted a raise she had

been promised. 2 ID at 11-16. She found the appellant exhausted these claims.

2

The appellant does not challenge the administrative judge’s determination that she

failed to meet her jurisdictional burden regarding an alleged suitability determination.

In fact, on review the appellant alleges that “[m]y negative suitability determina tion is

based on [the] misconduct [of the nurse who stuck the appellant with a needle and

6

ID at 7-8. The parties do not dispute the administrative judge’s exhaustion

finding on review, and we discern no basis for the Board to disturb it. The

administrative judge then found that the appellant failed to nonfrivolously allege

that her protected disclosures and activity were contributing factors in these

personnel actions. ID at 16-18. We turn now to consider those findings.

The appellant nonfrivolously alleged that she was denied a promised promotion

but still failed to nonfrivolously allege that her disclosure of the n eedle-stick

incident contributed to this personnel action.

¶11 Regarding the appellant’s claim that she was not granted a promised

promotion, the administrative judge considered this claim as a potential personnel

action under 5 U.S.C. § 2302(a)(2)(A)(ix), regarding a “decision concerning pay,

benefits, or awards,” but determined that the appellant failed to provide any

explanation regarding the potential promotion or any evidence that a raise or

promotion was actually promised. ID at 15-16. Consequently, she determined

that the appellant had only provided “conclusory, vague, and unsupported

allegations” for a lack of a promised raise, and so she failed to make a

nonfrivolous allegation that she was denied a promised raise. ID at 16.

¶12 The appellant has provided some additional detail regarding this claim in

her petition for review, alleging that she lost the promotion position “and any

inclination of promotions” as a result of her coming forward regarding the

needle-stick incident. PFR File, Tab 1 at 5. She also provides a supplemental

pleading with an email dated January 18, 2019, from a doctor in the Cardiology

Department (the appellant’s department), proposing that the appellant’s title be

changed to “Head of Outpatient Holter and Ambulatory Electrocardiographic

Testing,” along with a response from another agency employee suggesting that

her title should be changed to “Administrative and Clinical Officer to

threatened her]” because the nurse was under the influence of “mind altering drugs.”

PFR File, Tab 2 at 9. We agree with the administrative judge that the appellant failed

to prove she exhausted this personnel action with OSC and failed to nonfrivolously

allege she was subjected to a suitability determination. ID at 8 & n.3.

7

Cardiovascular Stress Testing.” 3 PFR File, Tab 2 at 8. Finally, she states that she

was told that the promotion would include a “good raise and a new job title” and

that she deserved the promotion, and she identifies three individuals she believed

“would have input on” her new title. Id. at 11. Based on the additional evidence

the appellant has provided on review, we conclude that she nonfrivolously alleg ed

that she was subjected to a personnel action under section 2302(a)(2)(A)(ix)

regarding a decision concerning pay when she was denied a potential title change

and a resulting increase in pay.

¶13 Nevertheless, we still conclude that she failed to nonfrivolously allege that

her disclosure of the needle-stick incident and the inadequate investigation (the

only disclosure she alleges contributed to this personnel action) contributed to the

agency’s decision not to grant her the proposed title change and pay increase.

PFR File, Tab 1 at 4-5. To satisfy the contributing factor criterion, an appellant

need only raise a nonfrivolous allegation that the fact or content of her disclosure

or protected activity was one factor that tended to affect the personnel actio n in

any way. See Salerno v. Department of the Interior, 123 M.S.P.R. 230, ¶ 12

(2016). One way to establish this criterion is the knowledge/timing test, under

which an appellant may nonfrivolously allege that the disclosure or activity was a

contributing factor in a personnel action through circumstantial evidence, such as

evidence that the official taking the personnel action kn ew of the disclosure or

activity and that the personnel action occurred within a period of time such that a

reasonable person could conclude the disclosure or activity was a contributing

factor in the personnel action. 5 U.S.C. § 1221(e)(1); see Salerno, 123 M.S.P.R.

3

The Board will consider evidence submitted on review concerning jurisdiction, even if

the evidence was previously available, because jurisdiction may be raised at any time

during Board proceedings. Pirkkala v. Department of Justice, 123 M.S.P.R. 288, ¶ 5

(2016); Stoglin v. Department of the Air Force, 123 M.S.P.R. 163, ¶ 7 (2015), aff’d,

640 F. App’x 864 (Fed. Cir. 2016). Because the emails could bear on whether the

appellant met her jurisdictional burden of proving that she was subjected to a personnel

action in connection with the failure to promote her, we have considered them.

8

230, ¶ 13. The Board has held that a personnel action take n within approximately

1 to 2 years of an appellant’s disclosures satisfies the timing portion of the

knowledge/timing test; so, the approximately 1-year period between when the

appellant disclosed the needle-stick incident in January 2018 and when she was

promised but never received a potential promotion in January 2019 would meet

the timing portion of the test. IAF, Tab 12 at 2-3; PFR File, Tab 2 at 11; see

Skarada v. Department of Veterans Affairs, 2022 MSPB 17, ¶ 19 (observing that a

personnel action taken within approximately 1 to 2 years of the appellant ’s

disclosure satisfies the contributing factor knowledge/timing test) ; Mastrullo v.

Department of Labor, 123 M.S.P.R. 110, ¶ 21 (2015) (same).

¶14 Regarding the knowledge portion of the test, although the appellant has

provided some additional context regarding the potential promotion and the

discussions related thereto, she still has not identified any individual that she

believes was responsible for preventing the promotion from taking place; so, it is

unclear whether any of the agency officials allegedly responsible for denying the

potential promotion are the same individuals to whom the appellant alleges that

she disclosed the needle-stick incident. The Board will not infer knowledge of an

appellant’s protected disclosures and activities to any agency official based only

on a closeness in time between a disclosure or activity and a personnel action and

the appellant’s conclusory allegation that the action was retaliatory. See Kerrigan

v. Merit Systems Protection Board, 833 F.3d 1349, 1355 (Fed. Cir. 2016) (noting

that, even at the jurisdictional phase when the employee’s burden is significantly

lower than at the merits stage, it is not appropriate to infer knowledge on the part

of any agency officials based only on the closeness in timing and the appellant ’s

conclusory allegation that their actions were done in retaliation). Accordingly,

we conclude that the appellant’s allegation that the decision not to promote her

was in retaliation for her disclosure, without identifying any of the individuals

she believes were responsible for that decision, does not meet the nonfrivolous

pleading standard required to establish jurisdiction over her IRA appeal. See El

9

v. Department of Commerce, 123 M.S.P.R. 76, ¶ 6 (2015) (stating that vague,

conclusory, unsupported, and pro forma allegations of alleged wrongdoing do not

meet the nonfrivolous pleading standard needed to establish the Board ’s

jurisdiction over an IRA appeal), aff’d per curiam, 663 F. App’x 921 (Fed. Cir.

2016); Keefer v. Department of Agriculture, 82 M.S.P.R. 687, ¶ 10 (1999).

¶15 The knowledge/timing test is not the only way for an appellant to satisfy the

contributing factor element. 5 U.S.C. § 1221(e)(1); Dorney v Department of the

Army, 117 M.S.P.R. 480, ¶ 15 (2012). If the appellant fails to satisfy that test, the

Board must consider other evidence, such as that pertaining to the st rength or

weakness of the agency’s reasons for taking the personnel action, whether the

whistleblowing was personally directed at the proposing or deciding officials, and

whether those individuals had a desire or motive to retaliate against the appellant.

Dorney, 117 M.S.P.R. 480, ¶ 15.

¶16 For the same reasons discussed above, we also conclude that the appellant

failed to make a nonfrivolous allegation that the decision not to promote her was

in retaliation for her disclosure, even considering evidence other than

knowledge/timing evidence. Here, even if we are to take at face value the

appellant’s claim that she was promised a promotion that she subsequently never

received, her conclusory allegation that the decision not to promote her was in

retaliation for her disclosure, without more, makes it difficult to assess her claim.

The additional email the appellant provided on review identifies the name of the

proposed title change, but it does not provide any information regarding who was

responsible for determining whether to grant the title change, identify any

potential motive by any agency official for blocking the promotion, or offer an

explanation for when or why the title change never came to fruition. PFR File,

Tab 2 at 8. Accordingly, we conclude that she also failed to nonfrivolously allege

that the decision not to promote her was in retaliation for her protected

disclosures, based on nonknowledge/timing evidence, such as the strength or

10

weakness of the agency’s reasons for doing so or whether any agency official

involved in the decision had a motive to retaliate against the appellant.

The appellant failed to nonfrivolously allege that her protected activity of filing

an OIG complaint was a contributing factor in the agency’s decision to take any

of the challenged personnel actions.

¶17 The administrative judge found that the appellant failed to nonfrivolously

allege that her DHHS OIG complaint was a contributing factor in a personnel

action. ID at 17. We agree. The appellant did not allege her DHHS OIG

complaint was a contributing factor in the agency’s decision to take any of the

contested personnel actions based on either the knowledge/timing test or other

nonknowledge/timing evidence.

¶18 On review, the appellant states only that she asked for the OIG’s contact

information from a Human Resources (HR) official and that, after she mailed her

complaint to the provided contact (presumably, the DHHS OIG), she received a

letter back stating they did not handle situations like hers . PFR File, Tab 1 at 6.

She expresses her belief that the HR official intentionally gave her the wrong

contact information. Id. The appellant has not provided any additional

information regarding her OIG complaint or alleged that any official responsible

for any of the purported personnel actions, or any other agency management

official, was aware of the complaint.

¶19 As such, the appellant has not produced any evidence by which she might

be able make a connection between her protected activity and any of the

challenged personnel actions. See, e.g., Sherman v. Department of Homeland

Security, 122 M.S.P.R. 644, ¶ 9 n.5 (2015) (finding that the appellant’s assertion

that his first- and second-line supervisors were likely among the many people

who knew of his disclosure amounted to conjecture unsupported by any record

evidence and, thus, did not amount to a nonfrivolous allegation); Jones v.

Department of the Treasury, 99 M.S.P.R. 479, ¶ 8 (2005) (finding that an

appellant’s insinuation that an individual might have known of his prior

11

whistleblowing activity amounted to unsubstantiated speculation, not a

nonfrivolous allegation of jurisdiction); 5 C.F.R. § 1201.4(s) (defining a

nonfrivolous allegation generally as an allegation that is more than conclusory) .

¶20 Thus, even if the appellant established that she engaged in protected activity

when she filed a complaint with the OIG for DHHS that was subsequently

forwarded to her own agency’s OIG, we nevertheless conclude that she failed to

make a nonfrivolous allegation that it was a contributing factor in any of the

challenged personnel actions based on either the knowledge/timing test or

nonknowledge/timing evidence.

The appellant nonfrivolously alleged that she was subjected to a hostile work

environment in retaliation for her disclosure of the needle -stick incident and the

gun violence threat.

¶21 We turn now to the issue of whether the appellant nonfrivolously alleged

that she suffered a personnel action when she was subjected to a hostile work

environment, in light of additional details and documentation the appellant has

provided on review. The administrative judge considered as separate, alleged

personnel actions the appellant’s claims that (1) she was subjected to a hostile

work environment, and (2) her duties and working conditions were changed . We

find that this interpretation is an overly narrow view of the appellant’s

allegations.

¶22 Although the appellant has not challenged the administrative judge’s

characterization of these personnel actions on review, we conclude that there is

no basis to distinguish a “hostile work environment” from a change in duties and

working conditions. Both of these terms are different ways of framing the

personnel action identified in 5 U.S.C. § 2302(a)(2)(A)(xii) as any “significant

change in duties, responsibilities, or working conditions. ” Skarada, 2022 MSPB

17, ¶¶ 14-16. By parsing the hostile work environment claim into two, separate

personnel actions, the administrative judge may have unintentionally diminished

the seriousness of the appellant’s claims. See Hamley v. Department of the

12

Interior, 122 M.S.P.R. 290, ¶ 7 (2015) (observing, in the title VII context, that

hostile work environment claims are different from discrete acts of discrimination

or retaliation because, by their nature, they involve repeated conduct, a single

incident of which may not be actionable on its own).

¶23 On review, the appellant reasserts that actions by various agency officials

amounted to a hostile work environment that continued until at least June 2020.

PFR File, Tab 1 at 3-7, Tab 2 at 9-12. Taking the appellant’s pleadings below

and on review together, and treating her hostile work environment claim as one,

rather than two, personnel actions, the appellant’s allegations appear quite

serious. IAF, Tab 7 at 7-9, Tab 12 at 8-9, 44-46; PFR File, Tab 2 at 9-12.

¶24 To prevail on an allegation concerning a hostile work environment,

an employee must show that the complained-of conduct was severe or pervasive

enough to create a working environment that a reasonable person would find

hostile or abusive. See, e.g., Godesky v. Department of Health & Human

Services, 101 M.S.P.R. 280, ¶ 14 n.* (2006) (finding that an appellant’s

allegations did not establish hostile work environment discrimina tion under title

VII because he did not show that the complained-of conduct was sufficiently

severe or pervasive to create an objectively hostile or abusive work environment);

see also Burlington Industries, Inc. v. Ellerth, 524 U.S. 742, 754 (1998) (finding

that a hostile work environment under title VII requires a showing of severe or

pervasive conduct). In determining whether an appellant has b een subjected to a

hostile work environment sufficient to rise to the level of a personnel action, the

Board must consider the alleged agency actions both collectively and

individually. Skarada, 2022 MSPB 17, ¶ 16.

¶25 The Board has found that undermining the supervisory authority of an

employee may constitute a significant change in duties, responsibilities, and

working conditions. McDonnell v. Department of Agriculture, 108 M.S.P.R. 443,

¶ 23 (2008). Further, the Board also has found that an appellant nonfrivolously

alleged he was subjected to a personnel action when an agency excluded him

13

from meetings and conversations, subjected him to multiple investigations,

accused him of fabricating data violating the Privacy Act, refused his request for

a review of his position for possible upgrade, yelled at him on three occasions,

and failed to provide him the support and guidance needed to successfully

perform his duties. Skarada, 2022 MSPB 17, ¶ 18.

¶26 The appellant, here, alleges that after a nurse threatened her with gun

violence on February 23, 2018, the agency immediately placed her department on

lockdown, and on February 26, 2018, an agency official called all department

staff to a meeting to discuss the situation. IAF, Tab 7 at 8; PFR File, Tab 2 at 9.

However, an individual she identifies as the “Lead in Cardio,” whom the

appellant alleges was a friend of the nurse that threatened her, refused to go to the

meeting, stating to the appellant in front of others , “all this shit is your fault.”

IAF, Tab 7 at 8, 10, Tab 12 at 57-59; PFR File, Tab 2 at 9. Despite a continuing

instruction that the department was to be kept locked, this same individual

“continued to unlock the doors,” causing the appellant and her coworkers to fear

that the nurse who threatened the appellant would “come in the clinic and shoot

us all.” PFR File, Tab 2 at 9-10. On one occasion, after the appellant locked the

doors after the Cardio Lead entered the department on March 2, 2018, the Cardio

Lead allegedly responded, “you are the stupidest bitch I have ever seen, if you

hadn’t of [sic] reported [the nurse] for the needle stick, none of this would be

happening.” PFR File, Tab 2 at 10. Not until February 19, 2019, almost a year

after the agency put in place the requirement of locking the appellant’s

department, did the department install a door with a code lock, apparently

resolving the concerns caused by the Cardio Lead leaving the door unlocked.

PFR File, Tab 2 at 11.

¶27 Further, the appellant reported that “every few days” the Cardio Lead

continued to call her a “bitch and other things,” through May 2018. IAF, Tab 7 at

8, Tab 12 at 8. According to the appellant, despite the agency’s awareness of the

Cardio Lead’s hostility, it did not take sufficient action to correct the situation.

14

PFR File, Tab 2 at 10. While a doctor expressed to the appellant that he was

frustrated by the lack of action from hospital administration, the Director of

Nursing told the appellant to “get over it, let it go, no one died,” and laughed. Id.

For the first time on review, the appellant also provides emails the former Chief

of Cardiology sent to the Chief of Medicine and the VA Chief of Police

expressing concerns about the “toxic environment” in the Cardiology department

and the alleged “behind the back, behind the scenes” campaign against the

appellant. PFR File, Tab 1 at 3-4, Tab 2 at 2-5.

¶28 In sum, as described by the appellant, after a threat to her life by a

coworker, for almost a year the agency allowed another coworker to undermine

security efforts designed to protect her from the threat, made light of the incident,

and permitted her to be insulted on a regular basis for reporting the threat. The

appellant’s allegations here are at least as serious as those in McDonnell and

Skarada and rise to the level of a nonfrivolous allegation of hostile working

environment sufficient to constitute a significant change in her duties or working

conditions. See Skarada, 2022 MSPB 17, ¶¶ 15-18.

¶29 Having determined that the appellant nonfrivolously alleged that she was

subjected to a personnel action in connection with her hostile work environment

claim, we must now consider whether she nonfrivolously alleged that her

protected disclosures of the needle-stick incident and the gun violence threat were

contributing factors in the creation of the hostile work environment. Skarada,

2022 MSPB 17, ¶¶ 16, 19. As previously noted, the appellant disclosed the

needle-stick incident to agency officials in January 2018 and the gun violence

threat in February 2018, and she alleges that the events that caused the hostile

work environment began shortly thereafter in late January 2018 and co ntinued

until at least February 2019, when the agency finally addressed her concerns

regarding the gun threat and inadequate security. IAF, Tab 7 at 7-8, 10, Tab 12

at 50-54, 57-59; PFR File, Tab 2 at 9-11. Thus, the appellant has met the timing

15

prong of the knowledge/timing test. Skarada, 2022 MSPB 17, ¶ 19; Mastrullo,

123 M.S.P.R. 110, ¶ 21.

¶30 Regarding the knowledge portion of the test, although the appellant does

not clearly identify which of the management officials to whom she disclosed the

needle-stick and gun threat incidents were within her supervisory chain, she does

allege that she disclosed the needle-stick incident to several supervisors within

her department, including the Chief of Cardiology, the Cardiology Supervisor,

and the Nurse Supervisor, and she provides copies of VA Police incident reports

reflecting the same. IAF, Tab 12 at 2, 13, 20-31. She also appears to allege that

higher-level managers, including the Acting Director of the facility, the Director

of Nursing, and the Nursing Supervisor, were all aware of the gun threat incident

disclosure. IAF, Tab 7 at 10, Tab 10 at 2-3; PFR File, Tab 2 at 9-10. Similarly,

she alleges that high-level agency supervisors, including the Chief Doctor and

Nurse Supervisor of her department and the Chief of Medicine for her hospital,

were aware of at least some of the incidents that contributed to the hostile work

environment, including the repeated verbal harassment by the “Lead in Cardio”

and management’s failure to enforce the door locking safety protocols, and that

management nevertheless failed to adequately address her concerns or, in some

cases, laughed them off. IAF, Tab 12 at 48-51, 54, 57-59; PFR File, Tab 2 at 2-7,

9-12 (stating that the Director of Nursing laughed at the appellant when

she complained about harassment by the” Lead in Cardio” and that another doctor

informed her that management was aware of the harassment but would not do

anything about it).

¶31 Based on the foregoing, we conclude that, under the knowledge/timing test,

the appellant has made a nonfrivolous allegation that her January 2018

disclosures concerning the needle-stick incident, and the related investigation,

and the February 2018 gun violence threat, were a contributing factor in the

hostile work environment that agency management permitted, unabated, from

January 2018 onward, resulting in a significant change in the appellant’s duties,

16

responsibilities, and working conditions. See Skarada, 2022 MSPB 17, ¶ 19. To

the extent the appellant has raised what appear to be additional incidents in

support of her hostile work environment claim on review, e.g., PFR File, Tab 2

at 12, the administrative judge should address on remand the issue of the Board’s

jurisdiction over those incidents and, if appropriate, the merits.

The appeal must be remanded for adjudication on the merits.

¶32 In summary, because the appellant proved that she exhausted her

administrative remedies as set forth above and made a nonfrivolous allegation

that she made protected disclosures in connection with the needle-stick incident

and the gun violence threat that were a contributing factor in the creation of the

hostile work environment, she has established jurisdiction over her appeal and is

entitled to the merits hearing that she requested. IAF, Tab 1 at 1; see Herman v.

Department of Justice, 115 M.S.P.R. 386, ¶¶ 6-8 (2011). On remand, the

administrative judge shall afford the appellant an opportunity to prove by

preponderant evidence that the January 2018 needle-stick and February 2018 gun

threat disclosures were a contributing factor in a hostile work environment. See

Runstrom v. Department of Veterans Affairs, 123 M.S.P.R. 169, ¶ 12 (2016). If

the administrative judge finds that the appellant proved her case in chief, she

must determine whether the agency has proved by clear and convincing evidence

that it would have taken these same personnel actions even in the absence of the

appellant’s disclosures. See id.; 5 U.S.C. § 1221(e). Because the appellant has

requested a hearing, she is entitled to one. See Graves v. Department of Veterans

Affairs, 123 M.S.P.R. 434, ¶ 22 (2016) (explaining that while an appellant is not

entitled to a jurisdictional hearing in an IRA appeal, he is entitled to a hearing on

the merits once he establishes jurisdiction).

17

ORDER

¶33 For the reasons discussed above, we remand this case to the Washington

Regional Office for further adjudication in accordance with this Remand Order.

FOR THE BOARD: /s/ for

Jennifer Everling

Acting Clerk of the Board

Washington, D.C.