The opinion
UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
CAROLYN COVINGTON, DOCKET NUMBER
Appellant, AT-1221-18-0560-W-1
v.
DEPARTMENT OF VETERANS DATE: January 31, 2024
AFFAIRS,
Agency.
THIS ORDER IS NONPRECEDENTIAL 1
Carolyn Covington , Dillon, South Carolina, pro se.
Karla Dolby , Decatur, Georgia, for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
REMAND ORDER
The appellant has filed a petition for review of the initial decision, which
dismissed her individual right of action (IRA) appeal for lack of jurisdiction. For
the reasons discussed below, we GRANT the appellant’s petition for review,
REVERSE the initial decision, and REMAND the case to the Atlanta Regional
Office for further adjudication in accordance with this Remand Order.
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
BACKGROUND
On March 7, 2016, the appellant was appointed to a nursing position with
the agency at the William Jennings Bryan Dorn VA Medical Center in Columbia,
South Carolina. Initial Appeal File (IAF), Tab 2 at 4, 6. Pursuant to her
appointment authority, the appointment was subject to the completion of a 2-year
probationary period, at some point during which a Professional Standards Board
(PSB) would be convened to conduct a review of her conduct and make a
recommendation concerning her retention or separation from the agency. Id. at 4.
Following its required review of the appellant, id. at 30-33, the agency issued her
a notice of termination, stating that the PSB recommended that she be separated
during her probationary period, effective February 23, 2018, id. at 4.
Subsequently, the appellant filed a complaint with the Office of Special
Counsel (OSC), arguing that she was terminated in retaliation for filing an equal
employment opportunity (EEO) discrimination complaint, for disclosing to
management that patients were being burned by the use of an antibacterial soap
called “hibiclens,” and for seeking guidance from her local union about issues she
was having with management. Id. at 1. On June 6, 2018, OSC informed the
appellant that it was terminating its inquiry into her claims and that she had a
right to seek corrective action with the Board. Id.
On June 11, 2018, the appellant filed the instant IRA appeal with the
Board, arguing that her termination, among other things, was in retaliation for her
whistleblowing activity. IAF, Tabs 1-2. On September 17, 2018, the
administrative judge dismissed the appeal for lack of jurisdiction, finding that the
appellant failed to nonfrivolously allege that she made a protected disclosure or
engaged in protected activity under the Whistleblower Protection Act (WPA).
IAF, Tab 13, Initial Decision (ID) at 8-10. The appellant has filed a petition for
3
review, and the agency has responded. Petition for Review (PFR) File,
Tabs 1, 3. 2
DISCUSSION OF ARGUMENTS ON REVIEW
The appellant established jurisdiction over her IRA appeal.
The Board has jurisdiction over an IRA appeal if the appellant has
exhausted her administrative remedy before OSC and has made nonfrivolous
allegations that she made a protected disclosure under 5 U.S.C. § 2302(b)(8) or
engaged in protected activity under 5 U.S.C. § 2302(b)(9) and 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). 5 U.S.C.
§ 1221(e)(1); Yunus v. Department of Veterans Affairs, 242 F.3d 1367, 1371 (Fed.
Cir. 2001); Salerno v. Department of the Interior, 123 M.S.P.R. 230, ¶ 5 (2016).
A protected disclosure is a disclosure that an appellant reasonably believes
evidences a violation of any law, rule, or regulation, gross mismanagement, a
gross waste of funds, an abuse of authority, or a substantial and specific danger to
public health or safety. 5 U.S.C. § 2302(b)(8)(A); Chambers v. Department of
the Interior, 515 F.3d 1362, 1367 (Fed. Cir. 2008); Chavez v. Department of
Veterans Affairs, 120 M.S.P.R. 285, ¶ 18 (2013). A nonfrivolous allegation of a
2
Following the close of the record on review, the appellant submitted a motion to
submit an additional pleading. PFR File, Tab 6. In her motion, she provides a narrative
argument, asserting that she did not have access to any of the PSB files or results and
that the agency never witnessed her performing her duties, yet issued poor performance
evaluations. Id. at 7-8. She also raises a discrimination claim and references two
complaints related to this matter that were filed with the Equal Employment
Opportunity Commission in 2017 and 2018. Id. at 8-9. The Board generally does not
permit an additional pleading after the close of the record on review unless the party
demonstrates a need for such a pleading. See 5 C.F.R. § 1201.114(a)(5) (requiring that
a motion for leave to file an additional pleading on review “describe the nature of and
need for the pleading”). Although the appellant’s motion includes arguments related to
her appeal, she has not specifically identified what she wishes to submit. PFR File,
Tab 6. Further, given that we are remanding this appeal for further adjudication on the
merits, the appellant will have the opportunity to submit additional evidence and
argument when the record reopens below. Accordingly, we deny the appellant’s motion
to submit an additional pleading.
4
protected whistleblowing disclosure is an allegation of facts that, if proven,
would show that the appellant disclosed a matter that a reasonable person in her
position would believe evidenced one of the categories of wrongdoing specified
in 5 U.S.C. § 2302(b)(8)(A). Salerno, 123 M.S.P.R. 230, ¶ 6. A reasonable
belief exists if a disinterested observer with knowledge of the essential facts
known to and readily ascertainable by the appellant could reasonably conclude
that the actions of the Government evidence one of the categories of wrongdoing
listed in section 2302(b)(8)(A). Id. Once an appellant establishes jurisdiction
over her IRA appeal, she is entitled to a hearing on the merits of her claim.
Id. at 5.
The appellant nonfrivolously alleged that she made
protected disclosures.
It appears undisputed that the appellant exhausted her remedy with OSC.
IAF, Tab 2 at 1-3; ID at 8. At issue here is whether the appellant has
nonfrivolously alleged that she made a protected disclosure or engaged in
protected activity that was a contributing factor in at least one personnel action
taken against her. ID at 9-10; PFR File, Tab 1 at 6, 8-9, 17, 25-31. In the initial
decision, the administrative judge found that an individual’s filing of an EEO
complaint is not one of the forms of protected activity covered under the WPA by
5 U.S.C. § 2302(b)(8) or 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D). ID at 9.
He also found that the disclosure regarding the use of hibiclens was not a
protected disclosure because “there is no evidence in the record about how
common or serious the patient reactions” were. Id.
On review, the appellant appears to reassert her claim that her EEO
complaint constituted protected activity, and she contends that the disclosure
regarding the use of hibiclens constituted a protected disclosure, as did her
communication with her union regarding placement of a falsified proficiency
evaluation in the package submitted to the PSB. PFR File, Tab 1 at 8, 19, 14, 24,
26. Regarding the August 10, 2017 EEO complaint, we agree with the
5
administrative judge that this activity is not covered under the WPA. Although
the appellant’s EEO complaint does not appear to be included in the record, the
appellant has claimed, and OSC has stated, that it was based on claims of
discrimination. IAF, Tab 1 at 6; Tab 2 at 56. Such activity is not protected by
5 U.S.C. § 2302(b)(8) or (b)(9). Edwards v. Department of Labor, 2022 MSPB 9,
¶¶ 10, 21-23, aff’d, No. 2022-1967 (Fed Cir. July 7, 2023). 3
Regarding the appellant’s alleged disclosure concerning the agency’s use of
hibiclens, we disagree with the administrative judge’s conclusion that the
appellant failed to make a nonfrivolous allegation that this constituted a protected
disclosure. Given the nature of the appellant’s position and her disclosure, we
look at whether the appellant made a nonfrivolous allegation that she reasonably
believed that her disclosure evidenced a substantial and specific danger to public
health or safety. 5 U.S.C. § 2302(b)(8)(A)(ii). In determining whether a
disclosure evidenced a substantial and specific danger to public health or safety,
it is relevant for the Board to consider factors such as (1) the likelihood of harm
resulting from the danger; (2) the imminence of the potential harm; and (3) the
nature of the potential harm. Chambers, 515 F.3d at 1369; Parikh v. Department
of Veterans Affairs, 116 M.S.P.R. 197, ¶ 14 (2011).
Here, the appellant has alleged that the danger posed by the agency’s use of
a specific antibacterial soap had already resulted in harm. IAF, Tab 2 at 39.
3
The Board has held that engaging in EEO activity is considered protected activity
under 5 U.S.C. § 2302(b)(9)(A)(i) only when the complaint seeks to remedy
whistleblower reprisal under 5 U.S.C. § 2302(b)(8). 5 U.S.C. §§ 1221(a), 2302(b)(9)
(A); see Bishop v. Department of Agriculture, 2022 MSPB 28, ¶ 15; Edwards, 2022
MSPB 9, ¶¶ 21-24 (clarifying that the Whistleblower Enhancement Act, Pub. L. No.
112-199, 126 Stat. 1465 (2012), did not expand the scope of section 2302(b)(8) to
include Title VII claims). The appellant’s own claims show that this is not the case
here. Further, to the extent that the appellant’s claims could fall under 5 U.S.C.
§ 2302(b)(9)(C) as a disclosure to an agency component responsible for internal
investigation or review, that provision did not become law until December 12, 2017,
postdating any personnel actions at issue in this appeal except for the termination
decision itself. National Defense Authorization Act of 2018, Pub. L. No. 115-91
§ 1097(c)(1), 131 Stat. 1283, 1618 (2017). That provision is not retroactive. Edwards,
2022 MSPB 9, ¶¶ 29-34.
6
Specifically, the appellant alleged that at least seven veterans in her unit suffered
burns as a result of the agency’s use of hibiclens and that several other units
faced the same problems. Id. Further, the fact that the witnessed dangers are
alleged to be limited to patients in the agency’s facilities does not prevent the
dangers from being substantial and specific to public health or safety. See
Wojcicki v. Department of the Air Force, 72 M.S.P.R. 628, 634 (1996) (finding
that a danger may be substantial and specific even though the perceived danger
was to a limited number of Government personnel and not to the general public at
large). Based on the foregoing, we find that the appellant nonfrivolously alleged
that she reasonably believed that her disclosure evidenced a substantial and
specific danger to public health or safety, and therefore, nonfrivolously alleged
that she made a protected disclosure. As such, we reverse the administrative
judge’s finding that the appellant’s claims could not constitute a nonfrivolous
allegation of a protected disclosure because “there is no evidence in the record
about how common or serious the patient reactions to hibiclens were.” ID at 9.
See Rusin v. Department of the Treasury, 92 M.S.P.R. 298, ¶ 17 (2002) (stating
that it is well established that the WPA is a remedial statute intended to improve
protections for Federal employees and, as such, it should be broadly construed in
favor of those whom it was meant to protect).
The administrative judge did not address the appellant’s contention that she
made a protected disclosure when she sought guidance in January 2018 from her
union because her supervisor had placed a falsified proficiency evaluation in the
package provided to the PSB. 4 IAF, Tab 2 at 35, 38; PFR File, Tab 1 at 8-10,
14-15, 20. The appellant alleges that the evaluation recited accusations against
her made by other employees, she had never been given an opportunity to address
the accusations, and her supervisor falsely claimed that she had provided the
appellant with multiple opportunities to sign the document but the appellant had
4
The appellant does not allege that she filed a grievance over the matter, so she did not
engage in protected activity as defined in 5 U.S.C. § 2302(9)(A)(i).
7
declined. PFR File, Tab 1 at 17, 20. We find that the appellant has made a
nonfrivolous allegation that she reasonably believed she was disclosing an abuse
of authority when she informed her union that her manager had placed the
proficiency evaluation in a file provided to a PSB without ever showing the
evaluation to the appellant or allowing her an opportunity to address the
accusations in it or sign it. See Wheeler v. Department of Veterans Affairs ,
88 M.S.P.R. 236, 241, ¶ 13 (2001) (holding that an abuse of authority occurs
when there is an arbitrary or capricious exercise of power by a Federal official or
employee that adversely affects the rights of any person or that results in personal
gain or advantage to himself or to preferred other persons).
The appellant nonfrivolously alleged that the agency took three
personnel actions against her.
The administrative judge appears to have considered only the appellant’s
termination as a personnel action. ID at 8-10. However, the appellant alleged in
her pleadings below that, in addition to her termination, in or around late
July/early August 2017, the agency also reassigned her to a position as a nurse
educator for the nursing service orientation and 1 month later detailed her to
another position. IAF, Tab 2 at 43-44; Tab 10 at 16, 24, 27, 44. Both of these
allegations were properly exhausted before OSC, IAF, Tab 2 at 1, and are
recognized as personnel actions under 5 U.S.C. § 2303(a)(2)(A)(iv).
Accordingly, we find that the appellant nonfrivolously alleged that the agency
took three personnel actions against her—a termination, a detail, and a
reassignment. 5
5
On review, the appellant also seems to assert that the agency took several other
personnel actions against her, including subjecting her to a hostile work environment,
stopping her pay and benefits 2 weeks prior to the effective date of her termination, not
allowing her to participate in interdisciplinary teams, failing to provide her with a fair
and sufficient orientation, failing to sufficiently question her during her probationary
conduct proceeding, and falsifying proficiency reports. PFR File, Tab 1 at 8, 13, 15,
22-23, 27. However, the appellant has failed to show that any of these allegations were
exhausted before OSC. We, therefore, are without jurisdiction to consider them. See
McCarthy v. Merit Systems Protection Board, 809 F.3d 1365, 1375 (Fed. Cir. 2016)
8
The appellant nonfrivolously alleged that the protected disclosure
regarding hibiclens was a contributing factor in all three personnel
actions.
We now consider whether the appellant nonfrivolously alleged that her
disclosure regarding hibiclens was a contributing factor in the personnel actions
she alleges were retaliatory. Salerno, 123 M.S.P.R. 230, ¶ 5.
In the initial decision, the administrative judge found that “even if the
hibiclens issue constituted a protected disclosure . . . the jurisdictional test for
contributing factor is nonetheless unsatisfied” because the appellant failed to
allege that she believed that it was a contributing factor in any later personnel
action against her and because it is unclear whether the PSB or deciding official
was aware of it. ID at 9-10. We disagree.
An appellant may make a nonfrivolous allegation that a disclosure was a
contributing factor in a personnel action by alleging circumstantial evidence, such
as evidence that the official taking the personnel action knew of the disclosure,
and that the personnel action occurred within a period of time such that a
reasonable person could conclude that the disclosure was a contributing factor in
the personnel action. Johnson v. Department of Defense, 95 M.S.P.R. 192, ¶ 8
(2003), aff’d, 97 F. App’x 325 (Fed. Cir. 2004). First, the appellant meets the
timing part of this knowledge and timing test because the detail and reassignment
occurred within 6-7 months of the January 12, 2017 hibiclens disclosure, and the
termination occurred approximately 13 months after the disclosure. IAF, Tab 2
at 4; Tab 10 at 10-11, 24, 44; see Mastrullo v. Department of Labor,
123 M.S.P.R. 110, ¶ 21 (2015) (stating that a personnel action that occurs within
1 to 2 years of the protected disclosures satisfies the knowledge/timing test).
Second, although the appellant does not allege that the official who issued
the termination decision or the PSB, which established the basis for the
termination, were aware of her disclosure, she does allege that her supervisor
(finding that the Board is without jurisdiction to consider claims not exhausted with
OSC).
9
influenced the PSB proceeding against the appellant’s favor and that she had
actual knowledge of the disclosure. IAF, Tab 2 at 34, 56-58, 61; Tab 10 at 8.
Specifically, the appellant alleges, in both her pleadings below and again on
review, that her supervisor made her the “point of contact” on the hibiclens issue,
and was, therefore, aware of the disclosure. IAF, Tab 2 at 39; PFR File, Tab 1
at 24. She also alleges that her supervisor was the agency official who provided
the evidentiary file to the PSB which contained accusations of misconduct
reported by other employees and at least three falsified proficiency reports, and
who “regulated” the PSB process. IAF, Tab 2 at 56-58; Tab 10 at 8, 14; PFR
File, Tab 1 at 4, 8, 10, 16. This amounts to an allegation that the agency decision
makers either knew of the disclosure via the appellant’s supervisor, or were
influenced by the supervisor, who allegedly knew of the disclosure. See Jessup v.
Department of Homeland Security, 107 M.S.P.R. 1, ¶ 10 (2007). Because the
appellant’s burden at this stage is only to make a nonfrivolous claim, the
allegation of knowledge or constructive knowledge is sufficient to meet that low
standard. See id.
Furthermore, the appellant alleges that the same supervisor who had actual
knowledge of the disclosure, see supra p.8, was directly involved in the
July/August 2017 reassignment and detail. IAF, Tab 2 at 43-44. Moreover, the
reassignment and detail occurred approximately 7 or 8 months after the appellant
made the hibiclens disclosure. Thus, we find that the appellant has also made a
nonfrivolous allegation that the disclosure was a contributing factor in these
personnel actions.
The appellant nonfrivolously alleged that her disclosure regarding
the proficiency evaluation was a contributing factor in
the termination.
Now we must determine whether the appellant has made a nonfrivolous
allegation that her second disclosure was a contributing factor in the personnel
actions. First, she alleges that her disclosure to the union regarding the falsified
10
proficiency evaluation occurred in January 2018, which was after the
reassignment and detail, so the communication could not have been a contributing
factor in those actions. See Orr v. Department of the Treasury, 83 M.S.P.R. 117,
124 (1999) (holding that when the personnel action occurred before the protected
disclosures the disclosures could not have been a contributing factor in the
action), aff’d, 232 F.3d 912 (Fed. Cir. 2000).
Further, while it is difficult to determine definitively from this record, it
does not appear that the appellant is alleging that the individuals involved in, or
who influenced, the termination had any direct knowledge of her communication
with the union. Nonetheless, in assessing whether a disclosure was a contributing
factor in a personnel action, the Board may consider other relevant evidence,
including but not limited to, the strength or weakness of the agency’s reasons for
taking the personnel action(s), whether the whistleblowing disclosure and/or
protected activity was directed at the responsible agency officials, and whether
the responsible agency officials had a desire or motive to retaliate against the
appellant. Pridgen v. Office of Management and Budget, 2022 MSPB 31, ¶ 65;
Powers v. Department of the Navy, 69 M.S.P.R. 150, 156 (1995).
Considering these factors, we find that, based on the current state of the
record, it is not possible to meaningfully evaluate the strength of the evidence
supporting the PSB recommendation to terminate the appellant or the termination
action itself. However, the appellant’s disclosure regarding the falsified
proficiency evaluation targeted the supervisor who provided the evidentiary file
to the PSB, and that file contained the accusations of misconduct reported by
other employees as well as the falsified proficiency report at issue. Therefore this
disclosure was directed at an individual who the appellant alleges had significant
influence over the process leading up to the termination, and who would have had
a motive to retaliate against the appellant. Accordingly, weighing the allegations
relevant to these factors, we find that the appellant has met her burden to make a
11
nonfrivolous allegation that the disclosure to the union was a contributing factor
in her termination.
The Board does not have jurisdiction to consider the appellant’s due process and
harmful procedural error claims or to consider the merits of her termination.
On review, the appellant argues that the agency violated her due process
rights because it did not provide her with a sufficient opportunity to provide her
version of events at the PSB hearing. 6 PFR File, Tab 1 at 5-8, 10-18. This claim
includes her many assertions, among others, that she was not cross-examined on
the alleged misconduct before the PSB, that she did not have access to the PSB
file until shortly before the hearing, that 97% of the information that her
supervisor provided to the PSB was not witnessed by the supervisor, and that the
PSB did not fully review her evidence file. Id. at 4-7, 18.
The appellant also appears to argue on review that the agency engaged in
harmful procedural error. Id. at 15, 22, 24. Specifically, she alleges that the PSB
should have been comprised of outside employees of the agency from a different
location, but it was not. Id. at 15. She also alleges that the agency was supposed
to place a self-generated proficiency document into her personnel folder, which
would have gone to the PSB, but it did not. Id. at 23. She also alleges that the
agency was required to assist her in completing a satisfactory orientation, and it
did not. Id. at 24. However, the Board is without jurisdiction to consider due
process and harmful procedural error claims in an IRA appeal. See Parikh,
116 M.S.P.R. 197, ¶ 34 (finding that the Board lacks jurisdiction over an
allegation of a due process violation raised in an IRA appeal under 5 U.S.C.
§ 1221); see Salerno, 123 M.S.P.R. 230, ¶ 15 (finding that the Board did not have
jurisdiction to consider an appellant’s harmful procedural error claim directed at
6
The appellant appears to also allege that the agency violated her constitutional right of
equal protection; however, she does not provide any basis for this assertion, but rather
she discusses it exclusively within the context of her due process claims. PFR File,
Tab 1 at 4-7, 14-18, 31. As such, we have considered these assertions as a single claim.
12
the conduct of the OSC because the instant action before the Board was an IRA
appeal).
The appellant also spends a significant portion of her petition for review
arguing the underlying merits of the PSB proceeding and subsequent termination.
PFR File, Tab 1 at 19-31. The Board is also without jurisdiction to consider these
claims. See Geyer v. Department of Justice, 70 M.S.P.R. 682, 687 (1996) (stating
that the Board lacks the authority in an IRA appeal to adjudicate the merits of an
underlying personnel action and is limited to adjudicating the whistleblower
allegations), aff’d, 116 F.3d 1497 (Fed. Cir. 1997) (Table).
Because we find that the appellant has established jurisdiction, we remand
the appeal for a hearing on the merits. See Salerno, 123 M.S.P.R. 230, ¶ 5.
ORDER
For the reasons discussed above, we REMAND this case to the Atlanta
Regional Office for further adjudication in accordance with this Remand Order.
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.