The opinion
UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
MARIO R. VALENZUELA, DOCKET NUMBER
Appellant, SF-1221-17-0541-W-1
v.
DEPARTMENT OF HOMELAND DATE: June 2, 2023
SECURITY,
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
David L. Ross, Esquire, Beverly Hills, California, for the appellant.
David Malone, Long Beach, California, 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
dismissed his individual right of action appeal for lack of jurisdiction because he
failed to nonfrivolously allege that he disclosed a substantial and specific danger
to health and safety, and even assuming that he did, he failed to nonfrivolously
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
allege that any of the individuals involved in the alleged retaliatory personnel
actions were aware of such a disclosure. Generally, we grant petitions such as
this one only in the following circumstances: the initial decision contains
erroneous findings of 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 t he 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 petition for review, the appellant disputes the administrative judge’s
finding that he failed to nonfrivolously allege that his disclosure in January 2014
regarding a portal alert system malfunction at the Los Angeles International
Airport amounted to a disclosure of a substantial and specific danger to public
health or safety. Petition for Review (PFR) File, Tab 1 at 5, 11-13. 2 In support
2
He also argues that the administrative judge erred in failing to consider his filing of an
equal employment opportunity (EEO) complaint as a protected disclosure under
5 U.S.C. § 2302(b)(8), in addition to protected activity under section 2302(b)(9).
PFR File, Tab 1 at 5-6, 12-13. Such an argument, however, is unavailing. An alleged
disclosure based on a violation of Title VII does not amount to a protected disclosure
because disclosures that are limited to EEO matters that are covered under 5 U.S.C.
§ 2302(b)(1) and (b)(9) are excluded from coverage under section 2302(b)(8). See
Edwards v. Department of Labor, 2022 MSPB 9, ¶¶ 10-17 (clarifying the Board’s
precedent that opposing practices made unlawful by Title VII does not constitute a
protected disclosure under section 2302(b)(8)); see also Redschlag v. Department of the
Army, 89 M.S.P.R. 589, ¶ 84 (2001) (holding that purported disclosures that involve
alleged discrimination or reprisal for engaging in activities protected by Title VII, even
if made outside of the grievance or EEO processes, do not constitute protected
3
of his argument, he summarily states that he disclosed “national safety concerns
involving deficiencies in the inspection of potentially dangerous cargo, especially
where the alarm system triggering notification of potential radioactive material or
explosives was malfunctioning.” Id. at 11. However, he fails to explain the
nature or details of what he disclosed, or how it amounted to a disclosure of
substantial and specific danger, or identify any error in the administrative judge’s
description or analysis of his alleged disclosure. Regardless, even assuming that
it amounted to a protected disclosure, the appellant does not challenge the
administrative judge’s findings that he failed to nonfrivolously allege that it was a
contributing factor in any of the agency’s alleged retaliatory personnel actions.
Although he asserts generally that the administrative judge erred in finding that
his whistleblowing was not a contributing factor in the agency’s actions, he has
not identified any specific error in the administrative judge’s analysis. Thus, he
has not established any basis for reversing the initial decision.
¶3 The appellant also disputes the administrative judge’s finding that he failed
to nonfrivolously allege that his resignation was involuntary and amounted to a
constructive removal. 3 PFR File, Tab 1 at 6, 14-15. In support of his claim that
he involuntarily resigned, the appellant argued below that he “would not have
resigned but for the charges against him which were manufactured and the threat
of termination which the [a]gency initially carried out by its letter of termination
effective January 20, 2016, the EXACT day that he could first retire.” Initial
Appeal File (IAF), Tab 4 at 12. The administrative judge found that the appellant
failed to nonfrivolously allege that the agency lacked reas onable grounds to
terminate him. IAF, Tab 7, Initial Decision (ID) at 15-16. In particular, she
found that the agency reasonably required him to undergo a fitness-for-duty
whistleblower activity under section 2302(b)(8) because they pertain to matters of
discrimination covered by section 2302(b)(1)(A)).
3
Although the appellant refers to his claim as an involuntary resignation, it appears that
he may be alleging that he involuntarily retired. PFR File, Tab 1 at 8.
4
examination after he presented medical documentation indicating that he had
certain limitations, and as a result of its determination that he was not fit for duty,
the agency was left with little alternative but to propose the appellant’s removal
for medical inability to perform his job duties. ID at 16. She also found that,
prior to issuing the proposed removal, the agency provided the appellant with an
opportunity to be reassigned to another position within his medical restrictions,
but he refused to engage in the process. Id.
¶4 On review, the appellant does not dispute these findings . Rather, he
contends that the administrative judge erred in finding that he resigned in lieu of
being terminated instead of considering his claim that he resigned due to
harassment. PFR File, Tab 1 at 14-15. He argues that the hostile work
environment and harassment were the main reasons he was forced to resign. Id.
at 15. However, the administrative judge also considered the totality of the
circumstances, including all of the agency’s alleged retaliatory actions in moving
the appellant to the day shift, seeking disciplinary action before the Disciplinary
Review Board, and subjecting him to a fitness-for-duty exam, but found that such
actions did not render the appellant’s working conditions so intolerable that a
reasonable person would have felt compelled to resign. ID at 15-16. Thus, the
appellant’s arguments amount to mere disagreement with the administrative
judge’s findings and do not provide a basis for reversal. See, e.g., Crosby v.
U.S. Postal Service, 74 M.S.P.R. 98, 105-06 (1997) (finding no reason to disturb
the administrative judge’s findings when she considered the evidence as a whole,
drew appropriate inferences, and made reasoned conclusions); Broughton v.
Department of Health and Human Services, 33 M.S.P.R. 357, 359 (1987) (same).
5
NOTICE OF APPEAL RIGHTS 4
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 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:
4
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.
6
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.uscour ts.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. 420 (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
7
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 Board’s
8
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. 5 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
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.
5
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
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195,
132 Stat. 1510.
9
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx.
FOR THE BOARD: /s/ for
Jennifer Everling
Acting Clerk of the Board
Washington, D.C.