Anthony Gomez v. Department of Veterans Affairs

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

ANTHONY GOMEZ, DOCKET NUMBER

Appellant, NY-1221-17-0105-W-1

v.

DEPARTMENT OF VETERANS DATE: July 24, 2023

AFFAIRS,

Agency.

THIS ORDER IS NONPRECEDENTIAL 1

Alan E. Wolin, Esquire, Jericho, New York, for the appellant.

Michael J. Berger, Esquire, Brooklyn, New York, for the agency.

BEFORE

Cathy A. Harris, Vice Chairman

Raymond A. Limon, Member

REMAND ORDER

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

denied his request for corrective action in this individual right of action (IRA)

appeal. For the reasons discussed below, we GRANT the appellant’s petition for

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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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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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 most recently held the position of Deputy Facility Telehealth

Coordinator. Initial Appeal File (IAF), Tab 41 at 4, Tab 42 at 4. In or around

June 2016, he filed a complaint with the Office of Special Counsel (OSC),

alleging that the agency had engaged in a number of improprieties in retaliation

for protected whistleblowing activity. IAF, Tab 12 at 16-32. OSC closed the

complaint in January 2017, and this IRA appeal followed. IAF, Tab 1, Tab 12

at 33-46. The administrative judge found that the appellant met his jurisdictional

burden, then developed the record and held a hearing, but denied the appellant ’s

request for corrective action. IAF, Tab 58, Initial Decision (ID). She found that

the appellant failed to meet his burden of proving that he made protected

disclosures or otherwise engaged in protected activity. ID at 6 -11. The appellant

has filed a petition for review. Petition for Review (PFR) File, Tab 1. The

agency has filed a response. PFR File, Tab 3.

¶3 Under the Whistleblower Protection Enhancement Act of 2012 (WPEA), the

Board has jurisdiction over an IRA appeal if, after the appellant has e xhausted his

administrative remedies before OSC, he makes nonfrivolous allegations that:

(1) he 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)(2)(A). Salerno v. Department of the Interior, 123 M.S.P.R.

230, ¶ 5 (2016). Once an appellant establishes jurisdiction over his IRA appeal,

he is entitled to a hearing on the merits of his claim, which he must prove by

preponderant evidence. Id. If the appellant proves that his protected disclosure

or activity was a contributing factor in a personnel action taken against him, the

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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 or activity. Id.

The appellant failed to prove that he made a protected disclosure concerning the

hiring of an Administrative Officer.

¶4 The appellant alleged that he made a protected disclosure in a series of

meetings by expressing concerns to two individuals, the Associate Chief of Staff

of Ambulatory Care (ACSAC) and the Deputy Facility Telehealth Coordinator

(DFTC), about their plan for filling a position. E.g., IAF, Tab 12 at 5-8.

Specifically, he reportedly disclosed that they were improperl y trying to subvert

veteran hiring preferences in order to place the DFTC in an Administrative

Officer position. Id.

¶5 The administrative judge recognized that both of the alleged recipients

denied having any knowledge of the disclosure, denied that the mee tings ever

occurred, and denied that they concocted the plan described by the appellant. ID

at 7-8 (citing IAF, Tab 50, Hearing Compact Disc (HCD1) (testimony of the

DFTC), Tab 51, Hearing Compact Disc (HCD2) (testimony of the ACSAC)). She

also recognized that while the appellant presented contrary testimony, there was

no documentation or other corroborating evidence for either the disclosure or the

meetings he described. ID at 6-8.

¶6 Faced with the conflicting testimony, the administrative judge properly

analyzed witness credibility. ID at 8-9; see Hillen v. Department of the Army,

35 M.S.P.R. 453, 458 (1987) (describing how an administrative judge must

analyze witness credibility and providing a number of factors that may be

relevant in doing so). Most notably, the administrative judge found that the

DFTC and the ACSAC both testified in a straightforward, unequivocal, and

consistent manner, while the appellant’s testimony was vague, nonspecific, and

speculative. ID at 8. Based on factors that included demeanor, the administrative

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judge found the DFTC and the ACSAC credible, but found the appellant lacking

credibility. ID at 8-9.

¶7 On review, the appellant reiterates his allegations about meetings with the

ACSAC and the DFTC, their plan to subvert veteran hiring preferences, and his

disclosure about the same. For the most part, his arguments on this matter mirror

the ones he made below, without specifically addressing the administrative

judge’s findings. Compare PFR File, Tab 1 at 7-11, with IAF, Tab 12 at 5-8,

Tab 56 at 10-13. Those that remain amount to disagreement with the

administrative judge’s credibility determinations. PFR File, Tab 1 at 25-29. For

example, while the administrative judge found the appellant’s testimony about

this alleged disclosure vague and nonspecific, the appellant asserts that he and his

disclosure “were sufficiently specific and detailed.” Compare ID at 7, with PFR

File, Tab 1 at 25. We are not persuaded. The appellant has not identified any

substantive evidence in support of this alleged disclosure, nor has he presented

any basis for overturning the administrative judge’s well-reasoned credibility

findings regarding the same. See Weaver v. Department of the Navy, 2 M.S.P.R.

129, 133-34 (1980) (finding that mere disagreement with the administrative

judge’s findings and credibility determinations does not warrant full review of the

record by the Board), review denied, 669 F.2d 613 (9th Cir. 1982) (per curiam);

see also Haebe v. Department of Justice, 288 F.3d 1288, 1301 (Fed. Cir. 2002)

(recognizing that the Board must defer to an administrative judge’s credibility

findings if they are based on a witness’ demeanor and may only overturn them for

“sufficiently sound” reasons). The appellant has not presented, for example,

documentary evidence showing that he made this disclosure and the contrary

testimony of the DFTC and the ACSAC about the same was incorrect.

The appellant failed to prove that his grievance is activity protected and within

the purview of this IRA appeal.

¶8 Aside from the disclosure described above, the appellant asserted that there

was a time during which he was temporarily detailed to the Lead Facility

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Telehealth Coordinator (FTC) position and, as a result, he filed a grievance

regarding his pay during that temporary detail. E.g., IAF, Tab 12 at 8-9. That

grievance alleged that the agency violated a particular union contract provision by

failing to pay him at a higher rate during the detail assignment. IAF, Tab 11,

Subtab 4 at 30-31. The grievance was ultimately denied by an arbitrator. Id.

at 1-18.

¶9 While the appellant presented his grievance as additional protected act ivity,

the administrative judge concluded that it fell outside the Board’s purview in this

IRA appeal. ID at 9-10. She correctly recognized that the WPEA extended the

Board’s jurisdiction over IRA appeals to claims of reprisal for filing a grievance

only if that grievance sought to remedy whistleblower reprisal under 5 U.S.C.

§ 2302(b)(8). Mudd v. Department of Veterans Affairs, 120 M.S.P.R. 365, ¶ 7

(2013). In other words, the administrative judge correctly determined that the

Board cannot address allegations that the agency retaliated against the appellant

for his grievance in this IRA appeal because that grievance did not seek to

remedy whistleblower reprisal.

¶10 On review, the appellant reasserts that he filed the aforementioned

grievance, and he summarily argues that both the grievance and his associated

testimony were protected activity. PFR File, Tab 1 at 11-12, 27. However, he

has not presented any basis for us to reach a conclusion different from the

administrative judge. He has not shown that his grievance sought to remedy a

violation of section 2302(b)(8), so he has not shown that it falls within the

Board’s jurisdiction over IRA appeals.

Remand is required for the administrative judge to address another alleged

disclosure.

¶11 Below, the administrative judge issued an order explaining the Board’s

limited jurisdiction. IAF, Tab 3. That detailed order directed the appellant to file

a statement, accompanied by evidence, listing the following: (1) his protected

disclosures or activities; (2) the dates he made the disclosures or engaged in the

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activities; (3) the individuals to whom he made any disclosures; (4) why his belief

in the truth of any disclosures was reasonable; (5) the actions the agency took or

failed to take, or threatened to take or fail to take, against him because of his

disclosures or activities; (6) why he believes a disclosure or activity, or a

perception of such a disclosure or activity, was a contributing factor to the

actions; and (7) the date of his complaint to OSC and the date that it notified him

it was terminating its investigation of his complaint, or if he had not received

such notice, evidence that 120 days have passed since he filed his complaint with

OSC. Id. at 7.

¶12 Rather than clearly listing the requested information, the a ppellant’s

representative responded with a narrative that is somewhat difficult to follow.

IAF, Tab 12 at 4-13. Nevertheless, within both that narrative and the

accompanying OSC correspondence, there is an allegation that the appellant had

discussions with the ACSAC and the Deputy Chief of Ambulatory Services about

his temporary detail to the Lead FTC position. Id. at 9-10, 30-31. According to

the appellant, he “was very vocal in claiming that management was acting

improperly by continuing the Lead FTC position as a Title 38 position and in

refusing to convert it to a Title 5 position, at [his] great disadvantage.” Id.

at 9-10, 30. Concerning this matter, the appellant further alleged that he

“certainly opined that management was acting in violation of regulation and

policy and were abusing their authority and engaging in mismanagement.” Id.

at 10, 30.

¶13 It appears that neither the agency nor the administrative judge recognized

this allegation as another potential disclosure. See, e.g., IAF, Tabs 14-15, 57.

The confusion is understandable, because the appellant seems to have

simultaneously alleged that the agency’s actions surrounding the Lead FTC

position amounted to reprisal for the alleged disclosures and activities discussed

above, and that it was the basis of an additional disclosure. Nevertheless, the

appellant did continue to pursue the matter, as demonstrated by his reiterating the

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same alleged disclosure in his prehearing submission and post -hearing

summation. IAF, Tab 42 at 6-7, Tab 56 at 14-15. The appellant has raised the

matter again on review. PFR File, Tab 1 at 12-13, 27-28.

¶14 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 did

not address this additional alleged disclosure, we find it appropriate to remand the

appeal for further adjudication. 2 See Mastrullo v. Department of Labor,

123 M.S.P.R. 110, ¶ 14 (2015) (remanding an IRA appeal for further adjudication

when the initial decision failed to address each of the disclosures exhausted

before OSC).

¶15 On remand, the administrative judge should permit the parties to submit

additional argument and determine whether the submission of additional evidence

(including additional hearing testimony) is necessary. See Ryan v. Department of

the Air Force, 117 M.S.P.R. 362, ¶¶ 9-10, 15 (2012) (instructing an

administrative judge to determine whether the submission of ad ditional evidence,

such as hearing testimony, was necessary on remand after he failed to adjudicate

all of the alleged personnel actions). In her remand initial decision, the

administrative judge may incorporate her prior findings concerning the

Administrative Officer disclosure and grievance activity. See supra ¶¶ 4-10. The

remand initial decision must, however, also address the alleged Lead FTC

disclosure. See supra ¶¶ 12-13.

2

In light of our findings, it would be premature for us to consider the appellant’s

arguments concerning the contributing factor requirement or the agency’s burden, if he

were to present a prima facie case of reprisal. PFR File, Tab 1 at 13-20, 29.

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ORDER

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

further adjudication in accordance with this Remand Order. 3

FOR THE BOARD: /s/ for

Jennifer Everling

Acting Clerk of the Board

Washington, D.C.

3

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.