Opinion

Tonie Greve v. Department of Health and Human Services

Court: Merit Systems Protection Board
Filed: May 4, 2023
Status: Unpublished
Cited by: 0 cases
Authority: More cited than 23.2%

The opinion

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

TONIE M. GREVE, DOCKET NUMBER

Appellant, DE-1221-15-0540-W-1

DEPARTMENT OF HEALTH AND DATE: May 4, 2023

HUMAN SERVICES,

Agency.

THIS FINAL ORDER IS NONPRECEDENTIAL 1

Tonie M. Greve, Mesa, Arizona, pro se.

Carol Liang, Esquire, and Margaret Cordova, Denver, Colorado, for the

agency.

BEFORE

Cathy A. Harris, Vice Chairman

Raymond A. Limon, Member

FINAL ORDER

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

denied her request for corrective action in connection with her 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

A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

material fact; 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).

¶2 On review, the appellant, a GS-9 Clinical Nurse, first attempts to parse out

the reasons for which she was removed, arguing, for instance, that regarding

charge 1, she did not, in fact, violate the Health Insurance Portability and

Accountability Act (HIPAA) because scheduling appointments was part of her

official duties as a Clinical Nurse, and because using the computer was how she

carried out those duties. Petition for Review (PFR) File, Tab 1 at 1-2. However,

this is an IRA appeal, not a removal appeal. Therefore, the agency is not required

to prove its charges by preponderant evidence; rather, the only merits issues

before the Board are whether the appellant has demonstrated that whistleblowing

or other protected activity was a contributing factor in one or more personnel

actions and, if so, whether the agency has demonstrated by clear and convincing

evidence that it would have taken the same personnel action(s) in the absence of

the whistleblowing or other protected activity. Agoranos v. Department of

Justice, 119 M.S.P.R. 498, ¶ 18 n.7 (2013); 5 C.F.R. § 1209.2(c). It is true that

the agency’s charges, specifically, the strength of the evidence in support of

them, are a consideration for the agency under its burden to show that it would

have taken the action even in the absence of the appellant’s whistleblowing. Carr

v. Social Security Administration, 185 F.3d 1318, 1323 (Fed. Cir. 1999). But

even if the appellant’s claim regarding HIPAA is true, it overlooks the fact that

the individuals for whom she scheduled appointments, after accessing their heal th

records on her Government computer, were her family members, and that doing

so is prohibited by a provision on Ethical Conduct in the Indian Health Manual.

Initial Appeal File (IAF), Tab 30 at 19. In addressing the agency’s burden in this

regard, the administrative judge carefully weighed all the evidence, Whitmore v.

Department of Labor, 680 F.3d 1353, 1368 (Fed. Cir. 2012); IAF, Tab 50, Initial

Decision (ID) at 19-22, but found, relying on the criteria set forth by the Board in

Hillen v. Department of the Army, 35 M.S.P.R. 453, 458 (1987), 2 that the

agency’s evidence was more credible than the appellant’s, ID at 22 -26, and that

the agency’s evidence in support of charge 1 was strong, ID at 17-27. Under the

circumstances, the appellant has not shown that, based on her interpretation of

HIPAA, the administrative judge erred in his consideration of charge 1.

¶3 Similarly, on review, the appellant attempts to explain her intentions as to

charge 4 in which the agency alleged that she violated the IT Rules of Behavior

when she improperly responded “to all” to an email sent by the Acting Clinical

Director, rather than just responding to the sender. PFR File, Tab 1 at 2. To the

extent the appellant is suggesting that her response constituted a protected

disclosure for which the Acting Clinical Director retaliated against her, id. at 3,

the administrative judge found that she had not exhausted her remedy bef ore the

Office of Special Counsel as to that purported disclosure and had not, therefore ,

In Hillen, the Board found that, to resolve credibility issues, an administrative judge

must identify the factual questions in dispute, summarize the evidence on each disputed

question, state which version he believes, and explain in detail why he found the chosen

version more credible, considering such factors as: (1) the witness’s opportunity and

capacity to observe the event or act in question; (2) the witness’s character; (3) any

prior inconsistent statement by the witness; (4) a witness’s bias, or lack of bias; (5) the

contradiction of the witness’s version of events by other evidence or its consistency

with other evidence; (6) the inherent improbability of the witness’s version of events;

and (7) the witness’s demeanor. Hillen, 35 M.S.P.R. at 458.

established the Board’s jurisdiction over it, 3 ID at 29; IAF, Tab 35 at 3. The

appellant has not taken exception to the administrative judge’s finding on

exhaustion. Further, as noted above, while the agency is not required to prove the

charges in an IRA appeal, 5 C.F.R. § 1209.2(c), the Board must consider the

strength of its evidence in support of its charges under its burden to show that it

would have taken the same action in the absence of the appellant’s

whistleblowing. Carr, 185 F.3d at 1323. Regarding charges 4 and 5, in which

the agency alleged that the appellant took an inappropriate tone in her response to

the email, the administrative judge thoroughly reviewed the parties’ evidence,

Whitmore, 680 F.3d at 1368, finding that the email that the appellant improperly

distributed widely was disrespectful, and concluding that the agency’s evidenc e

in support of charges 4 and 5 was strong. ID at 27 -30. Under the circumstances,

we find that the appellant has not shown that the administrative judge erred in his

consideration of charges 4 and 5. The appellant also has provided no basis for

disturbing the administrative judge’s thorough and well-reasoned findings as to

the remaining Carr factors, and we agree with the administrative judge that the

agency met its burden. 4

¶4 The appellant also argues on review that the deciding official violated her

due process rights, alleging that he “never reviewed any documents” and “did not

review [her] response letter.” PFR File, Tab 1 at 2. Although the record does not

appear to support the appellant’s claim, a claim of denial of due process may not,

in fact, be raised in an IRA appeal. Corthell v. Department of Homeland

Security, 123 M.S.P.R. 417, ¶ 16 (2016); 5 C.F.R. § 1209.2(c).

Despite his finding on exhaustion, the administrative judge afforded the appellant the

opportunity at hearing to explain how she reasonably believed she was disclosing

wrongdoing in her email, but he found that she failed to establish that claim. ID

at 29-30.

We have reviewed the relevant legislation enacted during the pendency of this appeal

and have concluded that it does not affect the outcome of the appeal.

NOTICE OF APPEAL RIGHTS 5

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

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 below 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 appl icable 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 wi th 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:

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.

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 that 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 respective

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 Employment

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 Boar d’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. 6 The court of appeals must receive your

petition for 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