adopting and applying the Carr factors to a clear and convincing analysis
How later courts described this case
- adopting and applying the Carr factors to a clear and convincing analysis
- finding that the appellant’s criticisms “cast [the agency], and, by implication all of the responsible [agency] officials, in a highly critical light by calling into question the propriety and honesty of their official conduct”
Written by the judges who cited it.
The opinion
UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
DIANNE SCOTTEN, DOCKET NUMBER
Appellant, DE-1221-16-0087-W-1
v.
DEPARTMENT OF VETERANS DATE: August 23, 2023
AFFAIRS,
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Jill Gerdrum, Esquire, Missoula, Montana, for the appellant.
Melissa Lynn Binte Lolotai, Denver, Colorado, for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
FINAL ORDER
¶1 This case is before the Board on the agency’s petition for review and the
appellant’s cross petition for review of the initial decision, which ordered
corrective action in connection with the appellant’s individual right of action
(IRA) appeal. For the reasons discussed below, we GRANT the agency’s petition
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
for review and DENY the appellant’s cross petition for review. We MODIFY the
initial decision to find that 5 U.S.C. § 2302(f)(2) and its heightened standard does
not apply, to expand the analysis of the agency’s clear and convincing burden
regarding its decision to change the effective date of the appellant’s resignation ,
and to clarify that the appellant’s resignation is not a personnel action that may
serve as the basis for a whistleblower reprisal claim. Because the agency
established by clear and convincing evidence that it would have effected the
appellant’s resignation before her requested date even absent her protected
disclosure, the appellant is not entitled to relief in connection with that personnel
action. However, because the appellant remains entitled to corrective action
concerning her hostile work environment claim, we GRANT her relief on that
basis. We otherwise AFFIRM the initial decision.
BACKGROUND
¶2 Effective March 9, 2014, the agency appointed the appel lant to the
excepted-service position of Associate Chief of the In-Patient Care Service for its
Montana Healthcare System, subject to the completion of a “2 Year Probationary
Period.” 2 Initial Appeal File (IAF), Tab 12 at 101, Tab 22 at 9. She was one of
two Associate Chiefs reporting to the Associate Director, and six supervisory
nurse managers were to report directly to the appellant, along with other
nonsupervisory nurses. Hearing Compact Disc, May 23, 2016 (HCD I)
(testimony of the appellant). However, the Associate Director determined that,
initially, the nurse managers would report jointly to the appellant and her, and
that the appellant would gradually assume primary supervision over a period of
time. IAF, Tab 22 at 10. Early on, some of the nur se managers complained to the
2
All matters in this appeal, including issuance of the initial decision, took place prior to
enactment of the Department of Veterans Affairs Accountability and Whistleblower
Protection Act of 2017. Pub. L. No. 115-41, 131 Stat. 862. Thus, that statute is not
relevant to this appeal.
3
Associate Director about the way the appellant dealt with them, including how
she conducted meetings. Hearing Compact Disc, May 24, 2016 (HCD II)
(testimony of the Associate Director).
¶3 On April 25, 2014, a nurse manager asked the appellant to attend a meeting
of operating room staff regarding an incident related to surgical towel counts that
had occurred in connection with a procedure a few days earlier. IAF, Tab 22
at 10. Although the Associate Director and the nurse manager viewed the
incident as one of miscommunication among the operating room staff that could
have been handled internally, the appellant perceived it as a matter of patient
safety and reported it as such to the Patient Safety Program of the Quality
Management Department. HCD I (testimony of the appellant); HCD II (testimony
of the Associate Director). Both the Associate Director and the nurse manager
were upset with how the appellant handled the matter, believing that she acted
without full knowledge of the underlying facts and circumstances and the
operating room culture. HCD II (testimony of the Associate Director); IAF,
Tab 23 at 32-33.
¶4 After the appellant reported the towel count incident, she perceived that the
Associate Director’s attitude toward her changed in that she became hostile and
acted to undermine the appellant’s authority by directing her not to be involved
with operating room matters and not to attend daily operating room meetings.
HCD I (testimony of the appellant). Additionally, the nurse managers, who
reported to the appellant, met with the appellant to express their dissatisfaction
with how she handled the towel count incident and her management style, and to
indicate that, in the future, they would not directly report to her but inste ad would
report directly to the Associate Director. Id.; IAF, Tab 23 at 110-11. In the
appellant’s view, over the following months, the Associate Director continued to
undermine her during meetings, a behavior that did not go unnoticed by other
attendees. HCD I (testimony of the appellant); HCD I (testimony of the former
Respiratory Manager); Hearing Compact Disc, June 9, 2016, HCD III (testimony
4
of the Quality Manager). In addition, the Associate Director decided to delay the
appellant’s transition to supervising the operating room, in contrast to what she
had earlier indicated. HCD II (testimony of the Associate Director). And, on one
occasion, when the appellant was acting for the Associate Director who was out
of town, and a serious incident occurred in the operating room, the Associate
Director tasked a nurse manager, not the appellant, with preparing an action plan.
Id. Subsequently, based on a realignment of duties, the appellant was removed
from supervision of the four nurse managers. Id.
¶5 At around the same time, the Associate Director was becoming increasingly
dissatisfied with the appellant’s performance and, after a discussion with the head
of Human Resources, she proposed that the appellant accept a reassignment to a
nurse manager position in non-institutional care to which, in the Associate
Director’s view, the appellant might be better suited, but the appellant declined
the reassignment, which would have been a demotion. Id.; HCD I (testimony of
the appellant). The Associate Director then determined to extend the appellant’s
evaluation period for an additional 90 days, requiring twice-weekly meetings to
address the status of her assigned tasks. HCD II (testimony of the Asso ciate
Director); IAF, Tab 22 at 56-60. The Associate Director believed that the
extended evaluation period worked well, but the appellant disagreed. HCD II
(testimony of the Associate Director); HCD I (testimony of the appellant).
¶6 The appellant challenged the proposed demotion, filing an informal
grievance against the Associate Director and requesting mediation, claiming
retaliation and a hostile work environment based on her having filed the patient
safety report. IAF, Tab 22 at 11. Although the appellant subsequently withdrew
her request for mediation, she filed a formal grievance alleging retaliation for
making a protected disclosure. IAF, Tab 12 at 52. The Acting Director of the
facility, to whom the grievance was submitted, advised the appellant t hat, due to
the complexity of the issues, he was referring the grievance for review and
investigation by an examiner. IAF, Tab 23 at 117. When told that she would
5
have to continue working under the Associate Director’s supervision during this
time, the appellant stated that she could not do so as her anxiety level was high,
and that, if there were no other options, she would have to resign. HCD I
(testimony of the appellant).
¶7 On December 5, 2014, the appellant submitted her resignation, effective
December 27, 2014, based on the suggestion of the head of Human Resources that
she take leave until her last day, in accordance with his reading of a provision of
the agency Handbook. IAF, Tab 13 at 8, Tab 23 at 123; HCD I (testimony of the
appellant). However, the agency determined that the head of Human Resources
lacked the authority to grant the appellant leave and made the appellant’s
resignation effective December 5, 2014. HCD III (testimony of the Human
Resources Specialist); IAF, Tab 12 at 45. At that time, the appellant had a
pending offer of employment with the state of Montana, which she accepted.
HCD I (testimony of the appellant).
¶8 On January 21, 2015, the appellant filed a complaint with the Office of
Special Counsel (OSC) in which she alleged that, in retaliation for disclosing the
towel count incident to the Patient Safety Program, she experienced a significant
change in duties, was threatened with demotion, and was subjected to a hostile
work environment such that she felt compelled to resign. I AF, Tab 1 at 31-44.
When OSC closed its inquiry into her allegations, id. at 47, the appellant filed an
IRA appeal with the Board, id. at 1-12, and requested a hearing, id. at 2. Upon
review of the parties’ initial submissions, IAF, Tabs 6-7, 10, 13, 16, the
administrative judge determined that the appellant had established Board
jurisdiction over her IRA appeal in that she exhausted her remedies before OSC,
that, as to the towel count incident, she nonfrivolously alleged what she
reasonably believed was a substantial and specific danger to public health and
safety, and that she nonfrivolously alleged that her protected disclosure was a
contributing factor in the imposition of two covered personnel actions, a hostile
6
work environment and an involuntary resignation. IAF, Tab 17. Accordingly, the
administrative judge convened the requested hearing. IAF, Tabs 37 -38, 44.
¶9 Thereafter, the administrative judge issued an initial decision in which he
found that the appellant proved that she made a protected discl osure, even though
it was made in the normal course of her duties, because she satisfied her burden
under 5 U.S.C. § 2302(f)(2) by proving that the agency subjected her to a hostile
work environment in reprisal for her disclosure. IAF, Tab 45, Initial Decision
(ID) at 18 & n.7, 20-23. The administrative judge also found that the hostile
work environment the appellant experienced constituted a significant change in
duties, responsibilities, or working conditions, a personnel action under 5 U.S.C.
§ 2302(a)(2)(A)(xii), and that she was subjected to that hostile work environment
because of her protected disclosure. 3 ID at 20-23. The administrative judge then
found that the agency did not establish by clear and convincing evidence that it
would have subjected the appellant to certain of the changed working conditions
absent her protected disclosure. ID at 23-28. The administrative judge found that
the appellant did not establish that her resignation was involuntary in that the
hostile work environment to which she was subjected did not amount to a
constructive removal. ID at 28-30. Nevertheless, the administrative judge found
3
The administrative judge relied on the Board’s decision in Savage v. Department of
the Army, 122 M.S.P.R. 612, ¶ 23 (2015), overruled on other grounds by Pridgen v.
Office of Management and Budget, 2022 MSPB 31, ¶ 25, in finding that a hostile work
environment may constitute a covered personnel action under the whistleblower
protection statutes. ID at 20. The Board has clarified that allegations of a hostil e work
environment may establish a personnel action only if they meet the statutory criteria,
i.e., constitute a significant change in duties, responsibilities, or working conditions as
set forth in 5 U.S.C. § 2302(a)(2)(A). Skarada v. Department of Veterans Affairs,
2022 MSPB 17, ¶ 16. The administrative judge found that the appellant established that
she was not allowed to manage her staff and was removed from supervision, barred
from operating room department meetings, pulled from oversight responsibilities,
undermined, yelled at in front of her subordinates, and subjected to overt hostility by
the Associate Director. ID at 20-23. We agree with the administrative judge that the
cumulative effect of these actions constituted a significant change in the appellant’s
working conditions. See Skarada, 2022 MSPB 17, ¶ 18.
7
that the appellant’s otherwise voluntary resignation was rendered involuntary
when the agency unilaterally defined its terms, i.e., its effective date, without her
consent, even though the agency did not do so in retaliation for her protected
whistleblowing, because her resignation was inextricably tied to the hostile work
environment. ID at 31. Thus, the administrative judge granted the appellant’s
request for corrective action, ID at 2, 32-34, recognizing, however, that, because
she no longer worked for the agency and had relocated, it was unclear whether the
appellant wished to return to her former position with the agency, ID at 33.
Accordingly, the administrative judge directed the appellant to make known to the
agency her desire in that regard. 4 ID at 33 .
¶10 The agency has filed a petition for review. Petition for Review (PFR) File,
Tab 1. The appellant has responded to the petition for review and has filed a
cross petition for review. PFR File, Tab 3. The agency has replied to that
submission. PFR File, Tab 5.
ANALYSIS
¶11 For organizational purposes, we find it appropriate to start our analysis by
addressing the arguments—raised by the appellant in her cross petition for
review—that the administrative judge erred by finding that the appellant’s
disclosure was made in the normal course of her duties and, therefore, that the
higher evidentiary standard set forth in 5 U.S.C. § 2302(f)(2) was applicable.
PFR File, Tab 3 at 30; ID at 20. We then address whether the appellant
established that her protected disclosure was a contributing factor in the hostile
work environment and whether the agency proved by clear and convincing
evidence that it would have subjected the appellant to the same hostile work
environment absent her protected disclosure. Turning to the agency’s petition for
4
The administrative judge determined not to award interim relief in this case. ID at 34.
Neither party has challenged that determination on review.
8
review, we address the agency’s argument that the administrative judge erred in
finding that the appellant’s disclosure was a contributing factor in the appellant’s
involuntary resignation. PFR File, Tab 1 at 7-11; ID at 28-31. Lastly, we turn
back to the appellant’s cross petition for review to address her argument that the
administrative judge erred in finding that, apart f rom the agency’s change to its
effective date, her resignation was voluntary and did not amount to a constructive
removal. PFR File, Tab 3 at 23-29; ID at 29-30.
The appellant was not required to meet the higher burden of proof under 5 U.S.C.
§ 2302(f)(2) to show that her disclosure was protected, and she established that
she made a protected disclosure under 5 U.S.C. § 2302(b)(8).
¶12 Under the Whistleblower Protection Enhancement Act of 2012 (WPEA),
Pub L. No. 112-199, 126 Stat. 1465, the Board has jurisdiction over an IRA
appeal if the appellant has exhausted her administrative remedies before OSC and
makes nonfrivolous allegations that (1) she 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). Bishop v. Department of
Agriculture, 2022 MSPB 28, ¶ 13; Salerno v. Department of the Interior,
123 M.S.P.R. 230, ¶ 5 (2016); see 5 U.S.C. §§ 1214(a)(3), 1221(e)(1); Yunus v.
Department of Veterans Affairs, 242 F.3d 1367, 1371 (Fed. Cir. 2001). Once an
appellant establishes jurisdiction over her IRA appeal, she is entitled to a hearing
on the merits of her claim, which she must prove by preponderant evidence.
Salerno, 123 M.S.P.R. 230, ¶ 5. If the appellant proves that her protected
disclosure or activity was a contributing factor in a personnel action taken against
her, the 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. Soto v. Department of Veterans Affairs,
2022 MSPB 6, ¶ 6; Salerno, 123 M.S.P.R. 230, ¶ 5; see 5 U.S.C. § 1221(e)(1)-(2).
9
¶13 Prior to the enactment of the WPEA in 2012, disclosures made in the
normal course of an employee’s duties were not protected. See, e.g., Huffman v.
Office of Personnel Management, 263 F.3d 1341, 1353-54 (Fed. Cir. 2001),
superseded by statute, WPEA, Pub. L. No. 112-199, § 101(b)(2)(C), 126 Stat.
1465, 1465-66. However, under a provision of the WPEA codified as 5 U.S.C.
§ 2302(f)(2), such disclosures are protected if the appellant shows that the agency
“took, failed to take, or threatened to take or fail to take a personnel action . . . in
reprisal for the disclosure.” Benton-Flores v. Department of Defense,
121 M.S.P.R. 428, ¶ 15 (2014). This provision imposed an “extra proof
requirement” for these types of disclosures such that an appellant to whom
5 U.S.C. § 2302(f)(2) applies must prove by preponderant evidence that the
agency took a personnel action because of the disclosure and did so with an
improper, retaliatory motive. 5 Salazar v. Department of Veterans Affairs,
2022 MSPB 42, ¶ 11.
¶14 In Day v. Department of Homeland Security, 119 M.S.P.R. 589, ¶ 18
(2013), the Board observed that the Whistleblower Protection Act (WPA)
definition of disclosure contained in 5 U.S.C. § 2302(b)(8) was ambiguous as to
whether disclosures made in the normal course of an employee’s duties were
protected. It found that the new provision at 5 U.S.C. § 2302(f)(2) enacted as
part of the WPEA clarified this ambiguity to provide that these types of
disclosures were covered under the WPA. Day, 119 M.S.P.R. 589, ¶¶ 18-26; see
Salazar, 2022 MSPB 42, ¶ 12. The version of 5 U.S.C. § 2302(f)(2) enacted as
part of the WPEA was the version in place when the events in this case occurred
5
As in this appeal, the determination of whether a disclosure made in the normal course
of duties is protected will often require factual findings best made after a more
complete development of the record. Accordingly, th e determination should be made as
part of an appellant’s prima facie case and not at the jurisdictional stage of an IRA
appeal.
10
and when the administrative judge issued his September 2016 initial decision.
See Salazar, 2022 MSPB 42, ¶ 12.
¶15 The National Defense Authorization Act for Fiscal Year 2018 (2018
NDAA), signed into law on December 12, 2017, amended 5 U.S.C. § 2302(f)(2)
to provide that disclosures “made during the normal course of duties of an
employee, the principal job function of whom is to regularly investigate and
disclose wrongdoing,” are protected if the employee demonstrates that the agency
“took, failed to take, or threatened to take or fail to take a personne l action” with
respect to that employee in reprisal for the disclosure. Pub. L. No. 115-91,
§ 1097(c)(1)(B)(ii), 131 Stat. 1283, 1618. As we held in Salazar, 2022 MSPB 42,
¶¶ 13-14, 22, the effect of this amendment is that 5 U.S.C. § 2302(f)(2) now
expressly applies only to an employee whose principal job function is to regularly
investigate and disclose wrongdoing, and that disclosures made in the normal
course of duties of an employee whose principal job function is not to regularly
investigate and disclose wrongdoing fall under the generally applicable 5 U.S.C.
§ 2302(b)(8), rather than 5 U.S.C. § 2302(f)(2). Further, as we also held in
Salazar, 2022 MSPB 42, ¶¶ 15-21, the 2018 NDAA’s amendment to 5 U.S.C.
§ 2302(f)(2), which clarified the prior version of that statute enacted in the
WPEA, applies retroactively to appeals pending at the time the statute was
enacted.
¶16 In requiring the appellant to meet the additional evidentiary bur den of
showing that the personnel actions taken were in retaliation for her April 25, 2014
report to the Patient Safety Program regarding the towel count incident, the
administrative judge found that the disclosure, otherwise protected under
section 2302(b)(8) as a substantial and specific danger to public health, was made
in the normal course of the appellant’s duties as an Associate Chief of Nursing
Services. ID at 20. The administrative judge found that it was a job requirement
that the appellant report such incidents that could impact patient safety. Id. The
appellant challenges this finding on review based on testimony by the Associate
11
Director that the appellant should have addressed the matter internally instead of
going to the Patient Safety Program. PFR File, Tab 3 at 30; see HCD II
(testimony of the Associate Director); ID at 20.
¶17 The appellant, a high-ranking supervisory nurse, viewed her disclosure of
the incident relating to the towel count as a “near miss” situation in which a
patient could have been put in jeopardy by the actions of careless staff. HT I
(testimony of the appellant); IAF, Tab 23 at 95. Regardless of whether t here were
other means to address the issue that her coworkers and supervisor would have
preferred that she used, her act of reporting to the Patient Safety Program a matter
that, in her professional view, could have jeopardized patient safety must
reasonably be considered as within the normal course of her duties. The
appellant’s duties included providing guidance and direction oversight for the
development, implementation, and maintenance of established standards of
nursing practice. IAF, Tab 12 at 35. We therefore agree with the administrative
judge’s finding that the appellant made her disclosure in the normal course of her
duties.
¶18 However, due to the 2018 NDAA’s clarifying amendment to 5 U.S.C.
§ 2302(f)(2) and our decision in Salazar, of which the administrative judge did
not have the benefit, we find that the appellant was not required to meet the
higher burden of proof that the personnel action was taken in reprisal for her
disclosure of the towel count incident to prove that her disclosure was protected
under 5 U.S.C. § 2302(b)(8). As Salazar, 2022 MSPB 42, ¶¶ 11, 13-14, made
clear, the “extra proof” requirement in 5 U.S.C. § 2302(f)(2) only applies to an
employee whose principal job function is to regularly investigate and disclose
wrongdoing. The appellant’s position description establishes that her principal
job function was to manage patient care and nursing services at an agency health
care system—as it included duties such as supervising patient care programs and
managing nursing personnel and resources—and was not to regularly investigate
and disclose wrongdoing. IAF, Tab 12 at 35-42. Therefore, the appellant’s
12
disclosures fall under the generally applicable 5 U.S.C. § 2302(b)(8), rather than
5 U.S.C. § 2302(f)(2). Because we agree with the administrative judge that the
appellant’s April 25, 2014 report to the Patient Safety and Risk Management
Department at her hospital of unaccounted for surgical towels which might have
been left inside a patient was a disclosure which the appellant reasonably
believed evidenced a substantial and specific danger to public health or safet y, ID
at 20, her disclosure was protected under 5 U.S.C. § 2302(b)(8)(A)(ii).
The appellant established that her protected disclosure was a contributing factor
in the hostile work environment personnel action.
¶19 Having proved that her disclosure was protected under 5 U.S.C.
§ 2302(b)(8), the appellant was required to prove that her protected disclosure
was a contributing factor in the agency subjecting her to a hostile work
environment. Soto, 2022 MSPB 6, ¶ 6; Scoggins v. Department of the Army,
123 M.S.P.R. 592, ¶ 21 (2016). The most common way for an appellant to prove
that a protected disclosure was a contributing factor in the agency’s taking of a
personnel action is the knowledge/timing test. Smith v. Department of the Army,
2022 MSPB 4, ¶ 19; Scoggins, 123 M.S.P.R. 592, ¶ 21. That test requires the
appellant to prove that the official taking the personnel action knew of the
whistleblowing disclosure and took the personnel action within a period of time
such that a reasonable person could conclude that the disclosure was a
contributing factor in the personnel action. Soto, 2022 MSPB 6, ¶ 6; Scoggins,
123 M.S.P.R. 592, ¶ 21. The Board has held that a personnel action taken within
1 to 2 years of the protected disclosures satisfies the timing prong of the
knowledge/timing test. Pridgen v. Office of Management and Budget,
2022 MSPB 31, ¶ 63. Once the appellant has satisfied the knowledge/timing test,
she has demonstrated that a protected disclosure was a contributing factor in a
personnel action, even if a complete analysis of all of the evidence would not
support such a finding. Gonzalez v. Department of Transportation, 109 M.S.P.R.
250, ¶ 20 (2008).
13
¶20 Here, without the benefit of the Board’s decisions in Skarada and Salazar,
the administrative judge found that the appellant proved by preponderant
evidence that she was subjected to a hostile work environment in reprisal for her
protected disclosure. ID at 20-23. That finding was based in part on the
appellant having satisfied the knowledge/timing test; that is, she established that
the Associate Director learned of her disclosure regarding the towel count
incident when the appellant told her that she had reported it to the Patient Safety
Program and that, almost immediately thereafter, the Associate Director’s attitude
toward her changed and became hostile. ID at 21-22. The administrative judge
also found that the Associate Director’s open hostility toward the appellant was
observed by others and that, a week after the disclosure, the Associate Director
undermined the appellant by taking the side of the nurse managers in their dispute
with the appellant regarding her management style. ID at 20 -22. In addition, the
administrative judge found that the timing of the appellant’s sudden exclusion
from any supervisory responsibilities in the operating room after making her
disclosure about the operating room incident was strong evidence that she was
removed from operating room supervision as a consequence of making that
disclosure. ID at 22. In so finding, the administrative judge found incredible the
Associate Director’s denial that that was the reason the appellant was removed
from supervisory duties relating to the operating room because the Associate
Director had provided inconsistent and inherently implausible explanations for
her actions. Id.; see Hillen v. Department of the Army, 35 M.S.P.R. 453, 458
(1987). 6
6
In Hillen, the Board held 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
14
¶21 The agency does not, in its petition for review, point to any countervailing
evidence on this issue, and does not challenge the administrative judge’s finding
that the appellant proved by preponderant evidence that her protected disclosure
was a contributing factor in the creation of a hostile work environment. PFR File,
Tab 1 at 7-11. After careful review of the record, we discern no reason to disturb
the administrative judge’s findings in this regard. Crosby v. U.S. Postal Service,
74 M.S.P.R. 98, 106 (1997) (finding that the Board will not disturb an
administrative judge’s findings when she considered the evidence as a w hole,
drew appropriate inferences, and made reasoned conclusions on issues of
credibility); Broughton v. Department of Health and Human Services,
33 M.S.P.R. 357, 359 (1987) (same).
The agency failed to prove by clear and convincing evidence that it would have
subjected the appellant to the same hostile work environment absent her protected
disclosure.
¶22 Because the appellant established a prima facie case that the Associate
Director retaliated against her for making a protected disclosure regarding the
towel count incident by subjecting her to a number of actions that collectively
amounted to a hostile work environment, the burden now shifts to the agency to
show by clear and convincing evidence that it would have subjected the appellant
to that same environment absent any whistleblowing. Soto, 2022 MSPB 6, ¶ 6;
Salerno, 123 M.S.P.R. 230, ¶ 5. In determining whether an agency has shown by
clear and convincing evidence that it would have taken the same personnel action
in the absence of whistleblowing, the Board will consider the following factors:
(1) the strength of the agency’s evidence in support of its action; (2) the existence
and strength of any motive to retaliate on the part of the agency officials who
were involved in the decision; and (3) any evidence that the agency takes similar
with other evidence; (6) the inherent improbability of the witness’s version of events;
and (7) the witness’s demeanor. 35 M.S.P.R. at 458.
15
actions against employees who are not whistleblowers but who are otherwise
similarly situated. Carr v. Social Security Administration, 185 F.3d 1318, 1323
(Fed. Cir. 1999); see Marcato v. Agency for International Development, 11 F.4th
781, 783-84, 786-90 (D.C. Cir. 2021) (adopting and applying the Carr factors to a
clear and convincing analysis); Duggan v. Department of Defense, 883 F.3d 842,
846-47 (9th Cir. 2018) (same); Soto, 2022 MSPB 6, ¶ 11. The Board considers
all the evidence, including evidence that detracts from the conclusion that the
agency met its burden. Soto, 2022 MSPB 6, ¶ 11; see Whitmore v. Department of
Labor, 680 F.3d 1353, 1368 (Fed. Cir. 2012).
¶23 In finding that the agency failed to meet its burden, the administrative judge
considered its claim that the difficulties the appellant had with her subordinates
were due to a lack of trust that she created by how she talked with them and how
she conducted meetings. ID at 24. The administrative judge found, however, that
such concerns did not plausibly justify the demeaning manner in which the
Associate Director treated the appellant and the removal of her supervisory
responsibilities. Id. Therefore, as to the first Carr factor, the administrative
judge concluded that the stated reasons for the ag ency’s actions were weak and he
was not persuaded that such a disproportionate response would have occurred in
the absence of a retaliatory motive. Id.
¶24 Regarding the second Carr factor, the administrative judge found that there
was persuasive evidence of a motive to retaliate on the part of officials involved
in certain of the actions taken by the agency that created a hostile work
environment for the appellant. 7 ID at 24-27. Besides the Associate Director’s
7
The administrative judge did, however, credit the Associate Director’s testimony that,
by late summer and fall of 2014, she did not believe that the appellant was meeting
expectations in certain nonsupervisory performance areas and so took actions to address
these perceived performance deficiencies, including proposing that the appellant accept
a voluntary demotion, delaying her performance appraisal when she declined the
demotion, and requesting that the meetings the appellant held with her staff be
documented. The administrative judge therefore credited as specific and
16
treatment of the appellant following her disclosure, the adminis trative judge
found, based on the testimony of a number of facility employees, that the
Associate Director had a tendency to retaliate against employees who reported
safety issues outside of the department and that she engendered a degree of fear
among them. Id. Even if the Associate Director was not directly implicated by
the appellant’s disclosure, the criticism reflected on her —in her capacity as the
Associate Director overseeing the nursing operations—can be sufficient to
establish a retaliatory motive. Whitmore, 680 F.3d at 1370-71 (finding that the
appellant’s criticisms “cast [the agency], and, by implication all of the
responsible [agency] officials, in a highly critical light by calling into question
the propriety and honesty of their official conduct”); Wilson v. Department of
Veterans Affairs, 2022 MSPB 7, ¶ 65 (stating that an appellant’s criticism that
reflects on an agency official in her capacity as a manager is sufficient to
establish a substantial retaliatory motive).
¶25 Regarding the third Carr factor, the administrative judge found that there
was credible evidence that the Associate Director took similar actions ag ainst
employees who were not whistleblowers. ID at 27-28. According to the
administrative judge, the record showed that the Associate Director generally was
abrasive toward those who did not, in her view, meet her high standards, and that
she could be vindictive. Id. Nevertheless, the administrative judge found that he
lacked a firm conviction that the hostile treatment of the appellant was caused by
the Associate Director’s high standards, given the suspicious timing and direct
straightforward the Associate Director’s testimony that she took these actions to
address the appellant’s deficiencies, not to retaliate against her for her protected
disclosure. ID at 24-25. In this regard, the administrative judge relied on Board case
law that finding a witness incredible on one matter does not preclude finding her
credible on another matter. Craft v. Department of Veterans Affairs, 78 M.S.P.R. 374,
380 (1988); ID at 25. Accordingly, the administrative judge determined that the
harassing conditions for which the appellant was due relief did not include the action s
taken by the Associate Director to address what she perceived to be legitimate
performance concerns. ID at 25.
17
evidence that she and others, including nurse managers, were upset with the
appellant for making the disclosure regarding the towel count incident. ID at 28.
¶26 After considering the totality of the evidence, the administrative judge
found that the agency did not meet its burden of proving by the very high
standard of clear and convincing evidence that it would have subjected the
appellant to a hostile work environment absent her protected disclosure. Id. The
agency does not challenge this finding on review, PFR File, Tab 1, and w e
discern no basis upon which to disturb it. We therefore agree with the
administrative judge that, as to this personnel action, the appellant established her
claim of retaliation for whistleblowing.
The appellant established that her disclosure was a con tributing factor in the
agency changing the effective date of her resignation.
¶27 As noted, the administrative judge found that the appellant established that
her resignation was involuntary. ID at 28-30. He found that she did not show
that the hostile work environment to which she was subjected would have
compelled a reasonable person to leave the workplace, even though the situation
was difficult and caused her a high level of discomfort and anxiety and concern
for her professional reputation. Id. However, he found that the resignation was
rendered involuntary because the agency unilaterally made it effective prior to the
date the appellant had selected to resign. ID at 31.
¶28 The administrative judge then specifically found that the evidence did not
show that the agency processed the appellant’s resignation on a date she did not
agree to in reprisal for her protected disclosure. Id. He found that, while the
Human Resources Specialist discussed the effective date with the Associate
Director, there was no evidence that the Associate Director took issue with the
appellant’s use of leave in advance of her resignation because of the appellant’s
protected disclosure. Id. Rather, the administrative judge found, based on the
Associate Director’s testimony, that she took issue with the head of Human
Resources possibly usurping her authority to grant or deny leave for her staff and
18
that she would have wanted the appellant to return to work so that there could be
an appropriate transition of responsibilities. Id. The administrative judge
similarly found no retaliatory intent on the Human Resources Specialist’s part in
unilaterally changing the date of the appellant’s resignation. Id.
¶29 The agency challenges on review the administrative judge’s ultimate
finding regarding the appellant’s alleged involuntary resignation. PFR File,
Tab 1 at 7-11. Specifically, the agency argues that, having found a lack of
retaliatory motive for changing the appellant’s resignation date, the
administrative judge was required to further find that the appellant failed to
establish that her disclosure was a contributing factor in her involuntary
resignation, and that the administrative judge abused his discretion in finding that
the appellant met her burden by showing only that her resigna tion was
“inextricably tied” to the hostile work environment she suffered. Id. at 10-11; ID
at 31.
¶30 We disagree with the agency’s claim that the administrative judge was
required to find that the appellant failed to establish that her disclosure was a
contributing factor in the agency’s change to her resignation date. The appellant
claims that the Associate Director and the Human Resources Specialist were the
agency officials responsible for unilaterally effecting her resignation in advance
of the date she had selected—the action the administrative judge found rendered
her otherwise voluntary resignation involuntary. PFR File, Tab 3 at 20 ; ID at 31.
Even though there is no evidence that the Human Resources Specialist was aware
of the appellant’s disclosure, the Associate Director learned of the appellant’s
disclosure very shortly after the appellant made it on April 25, 2014, ID at 21-22,
and the effective date of the appellant’s resignation was changed from
December 27 to December 5, 2014, within approximately 7 months of the
protected disclosure, ID at 17. Because the Board has held that personnel actions
taken within 1 to 2 years of a protected disclosure or activity satisfy the timing
prong of the knowledge/timing test, Pridgen, 2022 MSPB 31, ¶ 63, the appellant
19
satisfied the knowledge/timing test based on the Associate Director’s knowledge
and the proximity in time between the protected disclosure and the personnel
action. Therefore, the appellant established contributing factor regarding this
claim.
The agency proved by clear and convincing evidence that it would have changed
the effective date of the appellant’s resignation absent her protected disclosure.
¶31 After a careful review of the record, we find that the agency carried its
burden of showing by clear and convincing evidence that it would have taken the
same action in the absence of the appellant’s disclosure. Regarding the first of
the Carr factors set forth above, there is strong evidence supporting the agency’s
reason for changing the effective date of the appellant’s resignation, specifically,
VA Handbook 5011/18, part III, chapter 3, which provides that “[t]here is no
authority to grant annual leave immediately prior to separation when it is known
in advance that the employee is to be separate d, except ‘where exigencies of the
service require such action (34 Comp. Gen. 61).’” IAF, Tab 12 at 108. The
Comptroller General decision cited in the agency’s handbook supports the
proposition that annual leave should generally not be granted to an empl oyee
immediately prior to the employee’s separation from the agency. Acting
Comptroller General Weitzel to Louis F. Thompson, Department of State ,
34 Comp. Gen 61 (1954). Thus, because the agency was acting consistently with
established agency policy and a Comptroller General decision, we find that the
first Carr factor strongly supports the agency.
¶32 Regarding the second Carr factor, the appellant’s disclosure clearly was not
directed at the Human Resources Specialist, and although the Associate Director
was not directly implicated by the disclosure, it arguably reflected on her in her
capacity as Associate Director, which could be sufficient to establish a retaliatory
motive. Whitmore, 680 F.3d at 1370-71; Wilson, 2022 MSPB 7, ¶ 65. However,
any such inference is outweighed by the administrative judge’s specific findings,
made after hearing the testimony, that there was no retaliatory intent on the part
20
of either the Associate Director or the Human Resources Specialist in changing
the effective date of the appellant’s resignation. ID at 3 1. The Board must defer
to an administrative judge’s credibility determinations when they are based,
explicitly or implicitly, on observing the demeanor of witnesses testifying at a
hearing; the Board may overturn such determinations only when it has
“sufficiently sound” reasons for doing so. Haebe v. Department of Justice,
288 F.3d 1288, 1301 (Fed. Cir. 2002). The appellant has not presented such
sufficiently sound reasons here and thus we defer to the administrative judge’s
credibility finding. Thus, we find that the second Carr factor also weighs in the
agency’s favor.
¶33 Finally, regarding the third Carr factor, the agency presented no evidence
that it took similar personnel actions against similarly situated employees who
had not made disclosures. While the agency does not have an affirmative burden
to produce evidence concerning each and every Carr factor, “the absence of any
evidence relating to Carr factor three can effectively remove that factor from the
analysis,” but the failure to produce such evidence if it exists “may be at the
agency’s peril,” and “may well cause the agency to fail to prove its case overall.”
Whitmore, 680 F.3d at 1374-75; Soto, 2022 MSPB 6, ¶ 18. Moreover, because it
is the agency’s burden of proof, when the agency fails to introduce relevant
comparator evidence, the third Carr factor cannot weigh in favor of the agency.
Smith v. General Services Administration, 930 F.3d 1359, 1367 (Fed. Cir. 2019);
Siler v. Environmental Protection Agency, 908 F.3d 1291, 1299 (Fed. Cir. 2018);
Soto, 2022 MSPB 6, ¶ 18. Here, based on the lack of evidence regarding how
other employees were treated and the lack of evidence that no comparators exist,
we find that the third Carr factor cuts slightly in favor of the appellant.
¶34 Considering the totality of the evidence, we find that the agency proved by
clear and convincing evidence that it would have taken the same action abse nt the
appellant’s disclosure. In particular, we note the strength of the agency’s reasons
for changing the effective date of the appellant’s resignation. Even in the absence
21
of the administrative judge’s credibility finding of a lack of retaliatory intent, th e
second Carr factor, which would then slightly favor the appellant, and the third
Carr factor would be insufficient to outweigh the first factor. Thus, in sum, the
appellant is not entitled to corrective action under the whistleblower protection
statutes regarding the agency changing the effective date of her resignation.
Other than the period during which the agency unilaterally changed the effective
date of the appellant’s resignation, the resignation was voluntary and thus did not
constitute a personnel action under the whistleblower protection statutes.
¶35 Finally, we address the appellant’s argument in her cross petition for review
that the administrative judge erred in finding that, apart from the 22-day period
that the agency unilaterally changed the effective date of her resignation, the
appellant’s resignation was voluntary. PFR File, Tab 3 at 23-29; ID at 28-30. As
discussed below, we are not persuaded by the appellant’s argument.
¶36 To establish the Board’s jurisdiction over a claim of reprisal for
whistleblowing, the appellant must establish, inter alia, that she was subjected to
a “personnel action” under 5 U.S.C. § 2302(a)(2)(A). Jay v. Department of the
Navy, 90 M.S.P.R. 635, ¶ 12 (2001), aff’d, 51 F. App’x 4 (Fed. Cir. 2002). A
voluntary action does not constitute a “personnel action” under 5 U.S.C.
§ 2302(a)(2)(A). Id. However, the Board does have jurisdiction over an IRA
appeal by an employee whose retirement or resignation was involuntary.
Mintzmyer v. Department of the Interior, 84 F.3d 419, 423 (Fed. Cir. 1996);
Lawley v. Department of the Treasury, 84 M.S.P.R. 253, ¶ 8 (1999). The legal
standard for establishing an involuntary retirement or resignation, i.e., a
constructive removal, is the same in an IRA appeal as in the case of an otherwise
appealable action. Jay, 90 M.S.P.R. 635, ¶ 13.
¶37 A decision to resign or retire is presumed to be voluntary. Shoaf v.
Department of Agriculture, 260 F.3d 1336, 1340 (Fed. Cir. 2001). The Board has
held that one way an employee can overcome the presumption of voluntariness of
a retirement or resignation is to show that her working conditions were so
22
difficult that a reasonable person in the employee’s position would have felt
compelled to resign or retire. Searcy v. Department of Commerce, 114 M.S.P.R.
281, ¶ 12 (2010); Ragland v. Department of the Army, 84 M.S.P.R. 58, ¶ 9 (1999).
Dissatisfaction with work assignments, feeling unfairly criticized, or difficult or
unpleasant working conditions are generally not so intolerable as to compel a
reasonable person to resign. Miller v. Department of Defense, 85 M.S.P.R. 310,
¶ 32 (2000). The Board evaluates the voluntariness of a resignation or retirement
based on whether the totality of the circumstances support s the conclusion that
the employee was effectively deprived of free choice in the matter. Heining v.
General Services Administration, 68 M.S.P.R. 513, 519-20 (1995).
¶38 The administrative judge based his conclusion that the appellant’s decision
to resign was voluntary, despite the difficult conditions she worked under, on
findings that: (1) the appellant was not under threat of removal or other adverse
action at the time of her resignation; (2) the appellant offered a 1 -month notice
with her resignation as a professional courtesy, which a person who was
compelled to resign could not have extended; (3) the Associate Director had valid
performance concerns that justified certain of her actions, including her offer to
the appellant of an opportunity to accept a voluntary demotion and her increased
monitoring of the appellant’s performance; and (4) the appellant withdrew her
grievance related to the Associate Director’s retaliation for her disclosure. ID
at 29-30. The appellant challenges each of these findings in her cross petition for
review, specifically arguing that she subjectively believed she was going to be
demoted or fired, that she did not agree to continue to work under the Associate
Director despite her 1-month notice, that the Associate Director’s performance
concerns were not legitimate but pretext for whistleblower reprisal, and that she
did not in fact withdraw her grievance. PFR File, Tab 3 at 25 -29.
¶39 We agree that the appellant failed to establish that her decision to resign
was involuntary and note reasons in addition to those relied upon by the
administrative judge. The appellant testified at the hearing that, at the time she
23
filed her formal grievance alleging whistleblower reprisal on November 21, 2014,
she “wanted to work it out” and had no intention of leaving the agency. HCD I
(testimony of the appellant). The appellant discussed her purchase of a
condominium close to her workplace and plans to retire with her husband in the
area as reasons for wanting to stay with the agency. Id. The appellant also
testified that she was contacted by the state of Montana abo ut a position at the
end of October 2014, and told her point of contact there when she was offered the
position on November 28, 2014, that she needed until December 5 to “make up
[her] mind.” Id. She testified that she wanted to give the agency the oppor tunity
to respond to her grievance, believed that the agency would do so by December 5,
2014, and did not intend to make up her mind before that point. Id. Then, during
a meeting on December 4, 2014, the Acting Director told the appellant that an
outside investigator would be appointed to investigate her grievance and that he
did not know when the investigation would be completed. 8 Id. The appellant
stated that she was told she would need to return to work under the Associate
Director in the meantime, at which point she informed the Acting Director and
head of Human Resources that she would resign. Id. The appellant also testified
that she was afraid that the Associate Director intended to fire her because of the
hostile work environment and because the Associate Director had begun taking
notes of their meetings in November 2014, and that she was concerned that if she
was fired, she would not be able to obtain another job in nursing administration or
management in Montana. Id.
¶40 On balance, the totality of the circumstances supports the administrative
judge’s conclusion that the appellant’s decision to resign was indeed voluntary.
Even considering the hostile work environment to which the agency subjected
her, the appellant’s testimony that she “wanted to work it out,” had no intention
8
The appointment of an outside investigator suggests to us that the agency took the
appellant’s allegations seriously.
24
of resigning when she filed her formal grievance on November 21, 2014, and that
she did not make up her mind to resign until December 4—by which point she
had received the offer of a position with the state of Montana, id.—strongly
indicates that her decision to resign was based on a rational calculation of the
benefits and drawbacks of alternative courses of action, i.e., was a product not of
coercion but of choice. That the appellant’s decision to resign also stemmed from
her concerns about her diminished reemployment prospects if she was in fact
removed further supports this conclusion.
¶41 Finally, it is evident from the appellant’s testimony that the immediate
cause of her fear of being removed was the Associate Director’s documentation of
their meetings beginning in November 2014, which the administrative judge
found, based on his assessment of the Associate Director’s credibility during the
hearing, was a response to the appellant’s credible performance issues and did not
constitute whistleblower reprisal. ID at 24-25. Even if the Associate Director’s
notetaking at meetings with the appellant made continuation in the job so
subjectively unpleasant for the appellant that she felt she had no realistic option
but to leave, it was a measure which we agree the Associate Director was
authorized to adopt and is therefore not a valid basis upon w hich the appellant
could prevail on a constructive discharge claim. 9 See Staats v. U.S. Postal
Service, 99 F.3d 1120, 1124 (Fed. Cir. 1996).
¶42 The appellant therefore failed to establish that her decision to resign was
involuntary. Consequently, unlike the agency’s denial of the appellant’s request
for annual leave prior to her resignation, which was the basis for its change to her
resignation date and constituted a personnel action under 5 U.S.C.
§ 2302(a)(2)(A)(ix) as “a decision concerning . . . benefits,” Marren v.
Department of Justice, 50 M.S.P.R. 369, 373 (1991), her separation pursuant to
9
It is not uncommon for supervisors and managers to take notes during a meeting with
an employee and we fail to see how doing so is improper.
25
her voluntary decision to resign—apart from the agency’s denial of her request
for terminal leave—did not constitute a personnel action under 5 U.S.C.
§ 2302(a)(2)(A), and the Board lacks jurisdiction over her distinct claim that her
involuntary resignation based on intolerable working conditions constituted
whistleblower reprisal. See Comito v. Department of the Army, 90 M.S.P.R. 58,
¶ 13 (2001) (finding that the Board lacked jurisdiction over an appellant’s
allegation that an agency coerced her resignation in retaliation for protected
disclosures because she failed to establish that she was forced to resign because
of intolerable working conditions); Shelly v. Department of the Treasury,
75 M.S.P.R. 411, 413-14 (1997) (finding that a separation pursuant to a voluntary
resignation is not a personnel action and that because an appellant did not show
that his resignation was involuntary, his IRA appeal was not within the Board’s
jurisdiction).
ORDER
¶43 Because the appellant is no longer employed by the agency, no meanin gful
corrective action can be ordered regarding the finding that the agency committed
a prohibited personnel practice when it created a hostile work environment by
significantly changing her duties, responsibilities, and working conditions in
reprisal for her protected disclosure. 10
NOTICE TO THE APPELLANT REGARDING
YOUR RIGHT TO REQUEST
ATTORNEY FEES AND COSTS
You may be entitled to be paid by the agency for your reasonable attorney
fees and costs. To be paid, you must meet the requirements set forth at t itle 5 of
10
Nonetheless, as further described below, the appellant may be entitled to
consequential and compensatory damages as well as attorne y fees. If the appellant
decides to file motions to that effect, separate addendum proceedings may be
commenced to adjudicate such requests. See 5 C.F.R. § 1201.204(d)(1)-(e)(1).
26
the United States Code (5 U.S.C.), sections 7701(g), 1221(g), or 1214(g). The
regulations may be found at 5 C.F.R. §§ 1201.201, 1202.202, and 1201.203. If
you believe you meet these requirements, you must file a motion for attorney fees
and costs WITHIN 60 CALENDAR DAYS OF THE DATE OF THIS DECISION.
You must file your motion for attorney fees and costs with the office that issued
the initial decision on your appeal.
NOTICE TO THE APPELLANT REGARDING
YOUR RIGHT TO REQUEST CONSEQUENTIAL AND/OR
COMPENSATORY DAMAGES
You may be entitled to be paid by the agency for your consequential
damages, including medical costs incurred, travel expenses, and any other
reasonable and foreseeable consequential damages. To be paid, you must meet
the requirements set out at 5 U.S.C. §§ 1214(g) or 1221(g). The regulations may
be found at 5 C.F.R. §§ 1201.201, 1201.202 and 1201.204.
In addition, the Whistleblower Protection Enhancement Act of 2012
authorized the award of compensatory damages including interest, reasonable
expert witness fees, and costs, 5 U.S.C. §§ 1214(g)(2), 1221(g)(1)(A)(ii), which
you may be entitled to receive.
If you believe you are entitled to these damages, you must file a motion for
consequential damages and/or compensatory damages WITHIN 60 CALENDAR
DAYS OF THE DATE OF THIS DECISION. You must file your motion with the
office that issued the initial decision on your appeal.
NOTICE TO THE PARTIES
A copy of the decision will be referred to the Special Counsel “to
investigate and take appropriate action under [5 U.S.C.] section 1215,” based on
the determination that “there is reason to believe that a current employee may
have committed a prohibited personnel practice” under 5 U.S.C. § 2302(b)(8) or
section 2302(b)(9)(A)(i), (B), (C), or (D). 5 U.S.C. § 1221(f)(3). Please note
27
that while any Special Counsel investigation related to this decision is pending,
“no disciplinary action shall be taken against any employee for any alleged
prohibited activity under investigation or for any related activity without the
approval of the Special Counsel.” 5 U.S.C. § 1214(f).
NOTICE OF APPEAL RIGHTS 11
The initial decision, as supplemented by this Final Order, constitutes the
Board’s final decision in this matter. 5 C.F.R. § 1201.113. 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 f ile
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.
11
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.
28
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 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,
29
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
30
(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. 12 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.
12
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.
31
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.
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.