Opinion

Margaret Reed v. Department of Veterans Affairs

Court: Merit Systems Protection Board
Filed: Feb 24, 2023
Status: Unpublished
Cited by: 0 cases
Authority: More cited than 22.7%

The opinion

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

MARGARET M. REED, DOCKET NUMBER

Appellant, CH-1221-13-1557-B-1

DEPARTMENT OF VETERANS DATE: February 24, 2023

AFFAIRS,

Agency.

THIS FINAL ORDER IS NONPRECEDENTIAL 1

Margaret M. Reed, Jupiter, Florida, pro se.

Demetrious A. Harris, Esquire, Dayton, Ohio, for the agency.

BEFORE

Cathy A. Harris, Vice Chairman

Raymond A. Limon, Member

Tristan L. Leavitt, Member

FINAL ORDER

¶1 The appellant has filed a petition for review of the remand initial decision,

which denied her request for corrective action in this individual right of action

(IRA) appeal. Generally, we grant petitions such as this one only in the following

circumstances: the initial decision contains erroneous findings of material fact;

A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

the initial decision is based on an 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. 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 Assistant Chief of Human Resources at the agency’s Medical Center in

Dayton, Ohio, issued the appellant, a GS-12 Human Resources Specialist at the

same facility, an admonishment for disrespectful conduct. Reed v. Department of

Veterans Affairs, 122 M.S.P.R. 165, ¶ 4 (2015). The appellant grieved the

admonishment, but the agency denied her grievance. Id., ¶¶ 4-6. The appellant

then complained to the Medical Center Director that she had been admonished

without due process and that the agency failed to follow the admini strative

grievance procedures. Id., ¶¶ 7-8. Approximately 1 month later, the Chief

suspended the appellant for 3 days based on three complaints that he recently

received about the appellant from other agency officials. Id., ¶ 9.

¶3 The appellant filed a whistleblower reprisal complaint with the Office of

Special Counsel (OSC). Id., ¶ 10. OSC closed its file without taking corrective

action, and the appellant filed a Board appeal. Id. The administrative judge

issued an initial decision that dismissed the appeal for lack of jurisdiction on the

basis that the appellant failed to make a nonfrivolous allegation that she made a

protected disclosure. Id. The appellant petitioned for review, and the Board

affirmed the initial decision as modified, finding that, although the appellant

made a nonfrivolous allegation that she made a protected disclosure, she failed to

make a nonfrivolous allegation that her disclosure was a contributing factor in a

personnel action. Id., ¶¶ 2, 11, 15-25. The Board also found that the appellant

failed to make a nonfrivolous allegation that the agency perceived her as a

whistleblower. Id., ¶¶ 26-27.

¶4 The appellant appealed the Board’s decision to the U.S. Court of Appeals

for the Federal Circuit. Reed v. Merit Systems Protection Board, 611 F. App’x

719 (Fed. Cir. 2015). After reviewing the file, the Board determined that the

appellant had, in fact, made a nonfrivolous allegation that at least one of her

disclosures was a contributing factor in a personnel action. Id. At the Board’s

request, and with the appellant’s concurrence, the court vacated the Board’s

decision and remanded the appeal to the Board for further proceedings. Id. The

Board, in turn, remanded the appeal to the regional office for further adjudication.

Reed v. Department of Veterans Affairs, MSPB Docket No. CH-1221-13-1557-M-

1, Remand Order (Sept. 25, 2015).

¶5 In its Remand Order, the Board found that the appellant made nonfrivolous

allegations sufficient to establish jurisdiction over claims that she made protected

disclosures in email messages she sent on June 22 and July 26, 2012, and in an

August 29, 2012 meeting. Id., ¶¶ 6-8. The Board further found that, by virtue of

the knowledge/timing test, the appellant nonfrivolously alleged that those

disclosures were contributing factors in the four personnel actions 2 at issue in this

The appellant exhausted her administrative remedies before OSC regarding four

alleged personnel actions: (1) the proposed 3-day suspension; (2) the decision to

sustain the 3-day suspension; (3) the refusal to remove the admonishment from the

appellant’s personnel file; and (4) threats to discipline the appellant for meeting with

the Medical Center Director. Reed, 122 M.S.P.R. 165, ¶ 14 & n.7; Reed v. Department

of Veterans Affairs, MSPB Docket No. CH-1221-13-1557-B-1, Remand File, Tab 11

at 3 n.4.

IRA appeal. Id., ¶ 9; see 5 U.S.C. § 1221(e)(1) (providing that an employee may

demonstrate that a disclosure was a contributing factor in a personnel action by

showing that the official taking the action knew of the disclosure and that the

action occurred within a period of time such that a reasonable person could

conclude that the disclosure was a contributing factor); see also Linder v.

Department of Justice, 122 M.S.P.R. 14, ¶ 17 (2014) (finding that an interval of

approximately 4 months satisfied the timing prong of the knowledge/timing test).

¶6 After holding a 2-day hearing, the administrative judge denied the

appellant’s request for corrective action, finding that she did not prove by

preponderant evidence that her disclosures were protected. Reed v. Department

of Veterans Affairs, MSPB Docket No. CH-1221-13-1557-B-1, Remand File (RF),

Tab 51, Remand Initial Decision at 14 (RID). Regarding the appellant’s June 22,

2012 email message, in which she complained about the disposition of her formal

grievance, the administrative judge found that the appellant failed to demonstrate

by preponderant evidence that a reasonable person in her position would believe

that the information she disclosed evidenced an abuse of authority, a violation of

law, rule, or regulation, or gross mismanagement. RID at 8 -13. Concerning the

appellant’s July 26, 2012 email message and her August 29, 2012 meeting with

the Director, in which the appellant raised essentially the same contentions

regarding the grievance process, the administrative judge similarly found that a

reasonable person in the appellant’s position would not believe that the

information she disclosed evidenced wrongdoing as set forth in 5 U.S.C.

§ 2302(b)(8). RID at 12-13.

¶7 Thus, because she found that the appellant failed to establish by

preponderant evidence that her disclosures were protected, the administrative

judge found that the appellant failed to meet her burden of proving the merits of

her IRA appeal and consequently denied her request for corrective action. RID

at 14-15. In her petition for review of the remand initial decision, the appellant

provides an exhaustive review of the evidence and contends that the record, as

well as the parties’ joint stipulations, 3 indicate that her disclosures were protected

and a contributing factor in the personnel actions at issue . Reed v. Department of

Veterans Affairs, MSPB Docket No. CH-1221-13-1557-B-1, Remand Petition for

Review (RPFR) File, Tab 1 at 4. The appellant also challenges the administrative

judge’s ruling to deny one of her requested witnesses and accuses the

administrative judge of “bias and careless workmanship.” Id. at 5, 30-31. The

agency responds in opposition to the appellant’s petition for review, and the

appellant provides a reply to the agency’s response. 4 RPFR File, Tabs 3-4.

DISCUSSION OF ARGUMENTS ON REVIEW

¶8 The Board has jurisdiction over an IRA appeal if the a ppellant has

exhausted her administrative remedies before OSC and makes nonfrivolous

allegations that: (1) she engaged in whistleblowing activity by making a

protected disclosure, and (2) the disclosure was a contributing factor in the

agency’s decision to take or fail to take a personnel action. Hugenberg v.

Department of Commerce, 120 M.S.P.R. 381, ¶ 9 (2013). In an IRA appeal, the

standard for establishing subject matter jurisdiction and the right to a hearing is

Regarding the appellant’s contention that the parties’ joint stipulations indicate that

her disclosures were protected, RPFR File, Tab 1 at 4, the pleading that she designated

below as “Joint Stipulations” does not bear the signature of the agency’s representative,

nor does it otherwise indicate that both parties agreed to the statement in the appellant’s

pleading, RF, Tab 29. Moreover, the appellant fails to point out where in the record the

agency indicated its assent to her purported stipulations. In any event, the parties could

not stipulate to the legal conclusion that the appellant’s disclosures were protected.

See, e.g., Wilson v. Department of Homeland Security, 122 M.S.P.R. 262, ¶ 11 (2015)

(holding that parties may not stipulate to legal conclusions).

In her reply to the agency’s response, the appellant argues that the agency’s response

was untimely filed. RPFR File, Tab 4 at 4-5. The record reflects that the agency’s

response was due on September 24, 2016, and that the agency filed it at 9:57 a.m. on

September 25, 2016. RPFR File, Tab 2 at 1, Tab 4. As the appellant correctly points

out, the Board’s regulations require that such late-filed pleadings be accompanied by a

motion showing good cause for the untimely filing. RPFR File, Tab 4 at 5; 5 C.F.R.

§ 1201.114(g). Because the agency failed to submit the required motion, we have n ot

considered its response.

an assertion of a nonfrivolous claim, while the standard for establishing a prima

facie case is that of preponderant evidence. MaGowan v. Environmental

Protection Agency, 119 M.S.P.R. 9, ¶ 5 (2012).

¶9 The essence of the administrative judge’s analysis in this appeal is her

finding that a reasonable person in the appellant’s position as a Human Resources

Specialist would not have believed that the information she disclosed evidence d

an abuse of authority, gross mismanagement, or a violation of a law, rule, or

regulation. RID at 10-13. The proper test for determining whether an employee

had a reasonable belief that her disclosures revealed misconduct prohibited under

the Whistleblower Protection Act (WPA) is this: could a disinterested observer

with knowledge of the essential facts known to and readily ascertainable by the

employee reasonably conclude that the actions of the Government evidence

wrongdoing as defined by the WPA? 5 Mudd v. Department of Veterans Affairs,

120 M.S.P.R. 365, ¶ 5 (2013). We agree with the administrative judge that the

appellant failed to establish by preponderant evidence that she made a protected

disclosure.

¶10 The administrative judge found that the appellant’s June 22, 2012 email, in

which she contended that the agency’s case in support of the letter of

admonishment was “based on dishonest evidence,” did not contain any protected

disclosures. The email did not disclose an abuse of authority. RID at 9-10.

“Abuse of authority” occurs when there is 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.” Mc Corcle v. Department of Agriculture, 98 M.S.P.R. 363, ¶ 24

(2005) (quoting Embree v. Department of the Treasury, 70 M.S.P.R. 79, 85

Because all relevant facts in this appeal occurred prior to December 27, 2012, the

WPA, as clarified by the Whistleblower Protection Enhancement Act of 2012 (WPEA),

applies to the appellant’s claims. See generally Day v. Department of Homeland

Security, 119 M.S.P.R. 589, ¶¶ 3, 7-26 (2013) (discussing the effective date of the

WPEA, as well as its retroactivity).

(1995)). The administrative judge found that the agency’s record documented the

appellant’s disrespectful behavior towards her supervisor, amply demonstrating

that she had engaged in the cited misconduct. RID at 9-10. The administrative

judge further found no evidence that the supervisor admonished the appellant for

personal gain or to adversely affect anyone’s rights, consequently finding that the

appellant failed to establish by preponderant evidence that she reasonably

believed that her disclosure evidenced an abuse of authority. RID at 10.

¶11 The administrative judge also found that the June 22, 2012 email did not

disclose a violation of law, rule, or regulation because the appellant failed to

show that the agency was required by its own rules to conduct any further fact

finding regarding her grievance or to allow her to present her grievance orally,

and the record did not reflect that the agency had denied her any required

procedural protections. RID at 10-11. The administrative judge further found

that the appellant’s June 22, 2012 email message did not disclose gross

mismanagement but instead reflected her conclusory disagreement with the

agency’s adjudication of her grievance. RID at 11 -12. Because the appellant’s

July 26 and August 29, 2012 disclosures involved the same alleged wrongdoing

as her June 22 disclosure, the administrative judge found that they also were not

protected. RID at 12-13.

¶12 On review, the appellant argues that the administrative judge based her

findings on the evidence in the file supporting her admonishment, which she

contends “has no bearing on the disclosures at issue within this case.” RPFR

File, Tab 1 at 17-18. We disagree. The appellant’s arguments all revolve around

her basic contention that the misconduct on which the agency based the letter of

admonishment simply did not happen. In her own words, she “essentially

disclosed that she had received an unfounded admonishment based on dishonest

evidence and that this issue had been ignored and unaddressed within her

grievances.” Id. at 11. The administrative judge determined otherwise, f inding

that not only did the appellant’s own statements support the agency’s decision to

issue the letter of admonishment, but even the most favorable evidence to the

appellant corroborated the agency’s version of the events at issue. RID at 9-10.

¶13 We agree with the administrative judge. The appellant’s insistence that the

agency fabricated the evidence in support of her admonishment is not supported

by the record. Id. Her contentions regarding the agency’s grievance process also

lack credibility. For example, we agree with the administrative judge that the

appellant failed to establish that the agency was required to conduct further fact

finding as the relevant agency policy only states that further fact finding may be

warranted, not that it is required. RID at 11; Reed v. Department of Veterans

Affairs, MSPB Docket No. CH-1221-13-1557-W-1, Initial Appeal File, Tab 4

at 64 of 70. Similarly, the appellant’s insistence on review that the Director is the

only person authorized to settle her grievance is unsupported in the record. 6

RPFR File, Tab 1 at 7; RF, Tab 13 at 177-94. Moreover, an employee’s

disagreement with an agency ruling or adjudication does not constitute a

protected disclosure, even if that ruling was legally incorrect. See O’Donnell v.

Department of Agriculture, 120 M.S.P.R. 94, ¶ 15 (2013), aff’d, 561 F. App’x 926

(Fed. Cir. 2014). Thus, we find that the administrative judge correctly denied the

appellant’s request for corrective action.

¶14 The appellant challenges the administrative judge’s denial of one of her

proffered witnesses. RPFR File, Tab 1 at 30-31. On review, the appellant

contends that the witness could have spoken as to the appellant’s reasonable

belief in her purported whistleblowing disclosures. Id. By contrast, in her

prehearing submissions, she asserted that the witness generally would testify in

The agency’s handbook does indicate that the facility Director will be the deciding

official in a grievance filed by a Title 38 employee, which the handbook identifies as

“physicians, podiatrists, chiropractors, optometrists, nurses, nurse anesthetists,

physician assistants, expanded-function dental auxiliaries [appointed under 38 U.S.C.

§ 7401(1) and part-time registered nurses, including those with an intermittent duty

basis, appointed under 38 U.S.C. § 7405(a)(1)(A)].” RF, Tab 13 at 195-96. As a

Human Resources Specialist, the appellant is not a Title 38 employee, and these

procedures do not apply to her.

support of the appellant’s contentions, show that certain individuals in the

organization did not like the appellant, and discuss an August 2012 email

message advising employees to use the chain of command. RF, Tab 8 at 38. The

record reflects that the administrative judge rejected the witness as immaterial.

RF, Tab 11 at 7. The administrative judge has wide discretion under 5 C.F.R.

§ 1201.41(b)(8), (10) to exclude witnesses when it has not been shown that their

testimony would be relevant, material, and nonrepetitious. Franco v. U.S. Postal

Service, 27 M.S.P.R. 322, 325 (1985). The appellant has failed to show that the

administrative judge abused her considerable discretion in this regard.

¶15 Finally, we reject the appellant’s contentions of bias on the part of the

administrative judge. RPFR File, Tab 1 at 31. In making a claim of bias or

prejudice against an administrative judge, a party must overcome the presumption

of honesty and integrity that accompanies administrative adjudicators . Oliver v.

Department of Transportation, 1 M.S.P.R. 382, 386 (1980). An administrative

judge’s conduct during the course of a Board proceeding warrants a new

adjudication only if the administrative judge’s comments or actions evidence “a

deep-seated favoritism or antagonism that would make fair judgment impossible. ”

Bieber v. Department of the Army, 287 F.3d 1358, 1362-63 (Fed. Cir. 2002)

(quoting Liteky v. United States, 510 U.S. 540, 555 (1994)). The appellant’s

allegations of bias fail to make this required showing.

¶16 Accordingly, we affirm the remand initial decision, finding that the

administrative judge properly denied the appellant’s request for corrective action.

NOTICE OF APPEAL RIGHTS 7

You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By

statute, the nature of your claims determines the time limit for seeking such

Since the issuance of the initial decision in this matter, the Board may have updated

the notice of review rights included in final decisions. As indicated in the notice, the

Board cannot advise which option is most appropriate in any matter.

review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).

Although we offer the following summary of available appeal rights, the Merit

Systems Protection Board does not provide legal advice on which option is most

appropriate for your situation and the rights described b elow do not represent a

statement of how courts will rule regarding which cases fall within their

jurisdiction. If you wish to seek review of this final decision, you should

immediately review the law applicable to your claims and carefully follow all

filing time limits and requirements. Failure to file within the applicable time

limit may result in the dismissal of your case by your chosen forum.

Please read carefully each of the three main possible choices of review

below to decide which one applies to your particular case. If you have questions

about whether a particular forum is the appropriate one to review your case, you

should contact that forum for more information.

(1) Judicial review in general. As a general rule, an appellant seeking

judicial review of a final Board order must file a petition for review with the U.S.

Court of Appeals for the Federal Circuit, which must be received by the court

within 60 calendar days of the date of issuance of this decision. 5 U.S.C.

§ 7703(b)(1)(A).

If you submit a petition for review to the U.S. Court of Appeals for the

Federal Circuit, you must submit your petition to the court at the

following address:

U.S. Court of Appeals

for the Federal Circuit

717 Madison Place, N.W.

Washington, D.C. 20439

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, 10, and 11.

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

Board neither endorses the services provided by any attorney nor warrants that

any attorney will accept representation in a given case.

(2) Judicial or EEOC review of cases involving a claim of

discrimination. This option applies to you only if you have claimed that you

were affected by an action that is appealable to the Board and tha t such action

was based, in whole or in part, on unlawful discrimination. If so, you may obtain

judicial review of this decision—including a disposition of your discrimination

claims—by filing a civil action with an appropriate U.S. district court ( not the

U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you

receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems

Protection Board, 582 U.S. ____ , 137 S. Ct. 1975 (2017). If you have a

representative in this case, and your representative receives this decision before

you do, then you must file with the district court no later than 30 calendar days

after your representative receives this decision. If the action involves a claim of

discrimination based on race, color, religion, sex, national origin, or a disabling

condition, you may be entitled to representation by a court-appointed lawyer and

to waiver of any requirement of prepayment of fees, costs, or other security. See

42 U.S.C. § 2000e-5(f) and 29 U.S.C. § 794a.

Contact information for U.S. district courts can be found at their resp ective

websites, which can be accessed through the link below:

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

Alternatively, you may request review by the Equal Employm ent

Opportunity Commission (EEOC) of your discrimination claims only, excluding

all other issues. 5 U.S.C. § 7702(b)(1). You must file any such request with the

EEOC’s Office of Federal Operations within 30 calendar days after you receive

this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,

and your representative receives this decision before you do, then you must file

with the EEOC no later than 30 calendar days after your representative receives

this decision.

If you submit a request for review to the EEOC by regular U.S. mail, the

address of the EEOC is:

Office of Federal Operations

Equal Employment Opportunity Commission

P.O. Box 77960

Washington, D.C. 20013

If you submit a request for review to the EEOC via commercial delivery or

by a method requiring a signature, it must be addressed to:

Office of Federal Operations

Equal Employment Opportunity Commission

131 M Street, N.E.

Suite 5SW12G

Washington, D.C. 20507

(3) Judicial review pursuant to the Whistleblower Protection

Enhancement Act of 2012. This option applies to you only if you have raised

claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or

other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).

If so, and your judicial petition for review “raises no challenge to the Board’s

disposition of allegations of a prohibited personnel practice described in section

2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),

(B), (C), or (D),” then you may file a petition for judicial review either with the

U.S. Court of Appeals for the Federal Circuit or any court of appeals of

competent jurisdiction. 8 The court of appeals must receive your petition for

The original statutory provision that provided for judicial review of certain

whistleblower claims by any court of appeals of competent jurisdiction expired on

December 27, 2017. The All Circuit Review Act, signed into law by the President on

review within 60 days of the date of issuance of this decision. 5 U.S.C.

§ 7703(b)(1)(B).

If you submit a petition for judicial review to the U.S. Court of Appeals for

the Federal Circuit, you must submit your petition to the court at the