Opinion

Donna Traylor v. Department of the Army

Court: Merit Systems Protection Board
Filed: Feb 28, 2024
Status: Unpublished
Cited by: 0 cases
Authority: More cited than 15.4%

The opinion

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

DONNA E. TRAYLOR, DOCKET NUMBER

Appellant, DA-1221-17-0164-W-1

DEPARTMENT OF THE ARMY, DATE: February 28, 2024

Agency.

THIS FINAL ORDER IS NONPRECEDENTIAL 1

Donna E. Traylor , Lawton, Oklahoma, pro se.

Lisa R. Bloom , Fort Sill, Oklahoma, for the agency.

BEFORE

Cathy A. Harris, Vice Chairman

Raymond A. Limon, Member

FINAL ORDER

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

dismissed for lack of jurisdiction her individual right of action (IRA) appeal.

Generally, we grant petitions such as this one only in the following

circumstances: the initial decision contains erroneous findings of material fact;

the initial decision is based on an erroneous interpretation of statute or regulation

or the erroneous application of the law to the facts of the case; the administrative

A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

judge’s rulings during either the course of the appeal or the initial decision

were not consistent with required procedures or involved an abuse of discretion,

and the resulting error affected the outcome of the case; or new and material

evidence or legal argument is available that, despite the petitioner’s due

diligence, was not available when the record closed. Title 5 of the Code of

Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). After fully

considering the filings in this appeal, we conclude that the petitioner has not

established any basis under section 1201.115 for granting the petition for review.

Therefore, we DENY the petition for review. Except as expressly MODIFIED by

this Final Order to address the appellant’s arguments on review and find that she

made a nonfrivolous allegation that she engaged in protected activity by

disclosing information to an Inspector General (IG), we AFFIRM the initial

decision, which is now the Board’s final decision. 5 C.F.R. § 1201.113(b).

BACKGROUND

The appellant filed a timely IRA appeal alleging that her former employer,

the Department of the Army, issued her a Letter of Reprimand, scheduled a

mental health appointment for her, and subjected her to a hostile and toxic work

environment, in retaliation for making protected disclosures to the IG on or about

February 23-24, 2016, and the Information Technology (IT) staff on February 22,

2016. 2 Initial Appeal File (IAF), Tab 1 at 3, 13-14, 17, 22; Tab 5 at 2; Tab 10

at 1-3; Tab 18, Initial Decision (ID) at 3-4. The “protected” information that she

allegedly disclosed to the IT staff was that someone had illegally accessed her

Government email account when she was not at work. IAF, Tab 1 at 3, 10; Tab

10 at 1. The appellant described the rule and regulation that were violated as

Agency Rule 25-2 and the Fort Sill Cyber Readiness Tip Card. IAF, Tab 5 at 1.

The appellant stated on her appeal form that she resigned from her position on

August 8, 2016, although she was working for the agency as a Secretary when the

alleged retaliation occurred. IAF, Tab 1 at 5, Tab 9 at 7.

The appellant did not provide copies of either rule or regulation that the agency

allegedly violated.

The appellant further alleged that she disclosed “the access issue” to the IG

in an attempt to get assistance in obtaining computer access logs from her

agency’s IT office. IAF, Tab 1 at 13; Tab 10 at 1-2. With her appeal form, she

attached her February 29, 2016 Letter of Reprimand, a separate letter issued by

the agency on the same date offering her a medical examination, the subsequent

whistleblowing complaint that she filed with the Office of Special Counsel

(OSC), and the December 29, 2016 letter issued by OSC terminating its

investigation of her complaint and notifying her that she could seek corrective

action from the Board. IAF, Tab 1 at 10-27.

The administrative judge issued a show cause order informing the appellant

of her burden to establish jurisdiction over her claims as an IRA appeal. IAF,

Tab 3. After the appellant and the agency responded to the order, the

administrative judge issued an initial decision dismissing the appeal for lack of

jurisdiction without holding the hearing that the appellant requested. IAF, Tabs 1

at 2; 5, 7, 9-11, 13; ID at 1 & n.1. In reaching her decision, the administrative

judge found that the appellant had exhausted her administrative remedy with OSC

and nonfrivolously alleged that her February 29, 2016 Letter of Reprimand and

referral to a mental health examination were personnel actions within the meaning

of 5 U.S.C. § 2302(a)(2). ID at 7, 9-10. However, the administrative judge found

that the appellant failed to make nonfrivolous allegations of facts which

demonstrated that she disclosed information that she reasonably believed

evidenced a violation of law, rule, or regulation, or an abuse of authority. ID

at 9-10.

The appellant has filed a petition for review in which she disputes the

administrative judge’s finding that she failed to nonfrivolously allege that she

made a protected disclosure that was a contributing factor in the agency’s

issuance of her Letter of Reprimand and referral for a mental health examination.

Petition for Review File (PFR) File, Tab 1 at 1. The appellant also alleges that

the administrative judge abused her discretion and denied the appellant due

process by failing to consider evidence and unfairly ruling against the appellant

on discovery issues and other requests that she made on appeal. Id. at 1-3. The

appellant resubmits certain documents that were a part of the record below. Id.

at 4-11; IAF, Tab 7 at 4-6; Tabs 8, 12. The agency has not filed a response to the

appellant’s petition.

DISCUSSION OF ARGUMENTS ON REVIEW

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 whistleblowing 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. 3 5 U.S.C. §§ 1214(a)(3), 1221(e)(1); Yunus v. Department of

Veterans Affairs, 242 F.3d 1367, 1371 (Fed. Cir. 2001); Mason v. Department of

Homeland Security, 116 M.S.P.R. 135, ¶ 7 (2011). Under the Whistleblower

Protection Enhancement Act of 2012, vague, conclusory, unsupported, and pro

forma allegations of alleged wrongdoing do not meet the nonfrivolous pleading

standard needed to establish the Board’s jurisdiction over an IRA appeal. See,

e.g., Linder v. Department of Justice, 122 M.S.P.R. 14, ¶ 14 (2014) (concluding

that to establish jurisdiction over an IRA appeal, an appellant must make a

specific and detailed allegation of wrongdoing, rather than a vague one); 5 C.F.R.

§§ 1201.4(s) (a nonfrivolous allegation must be more than conclusory), 1201.57.

The administrative judge in this appeal found, among other things, that the

appellant had exhausted her remedies with OSC, but that the disclosures she made

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.

to the agency’s IT staff were lacking in adequate specificity to constitute a

nonfrivolous allegation of a protected disclosure. ID at 3-5, 8-9. For the reasons

discussed below, we find that the appellant’s arguments on review present no

basis for disturbing the initial decision dismissing this appeal for lack of

jurisdiction.

The appellant has not made a nonfrivolous allegation that she engaged in

whistleblowing activity.

On review, the appellant does not dispute the administrative judge’s finding

that the disclosures she made to the agency’s IT staff and agency management,

concerning her work email being accessed by an unknown person, did not satisfy

the Board’s nonfrivolous pleading standard. Neither party has challenged this

finding, and we decline to disturb it on review. The appellant argues instead that

she met the nonfrivolous pleading standard based on her disclosure to the IG.

PFR File, Tab 1 at 1-2. In her initial decision, the administrative judge did not

address the appellant’s disclosure to the IG. Thus, we consider it now.

In her OSC complaint, the appellant indicated that, on February 24, 2016,

she “[r]eported [the] access issue to [the] IG in [an] attempt to receive access logs

from [the] local IT office.” IAF, Tab 1 at 13. She did not submit a copy of her

IG complaint with her Board appeal but she alleged that her disclosure to the IG,

in addition to her disclosures to the agency’s IT staff, was a contributing factor in

the personnel actions taken against her. IAF, Tab 10 at 1. Regarding the contents

of her disclosure to the IG, the appellant alleged only that she contacted the IG

for assistance with obtaining the access logs for her computer “because [she]

knew the IG had the authority to retrieve [those] logs straight from the Defense

Information Systems Agency.” 4 PFR File, Tab 10 at 1.

The appellant explained that the agency’s Network Enterprise Center (NEC)

investigated her claim that someone accessed her work email account on February 16,

2016, reviewed her computer access logs, and reported that no one had accessed her

computer. PFR File, Tab 10 at 1. The appellant asserted that she sought assistance

from the IG in obtaining the access logs from NEC for review by the agency’s IT staff.

Id.

A protected disclosure includes “any disclosure . . . to the Inspector

General of an agency . . . of information which the employee . . . reasonably

believes evidences” any violation of any law, rule, or regulation, or 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)(B). The test

of a reasonable belief is whether a disinterested observer with knowledge of the

essential facts known to and readily ascertainable by the employee could

reasonably conclude that the actions evidenced one of the types of wrongdoing

listed above. Ayers v. Department of the Army, 123 M.S.P.R. 11, ¶ 13 (2015).

The appellant’s alleged disclosure to the IG refers only to her identifying

an “access issue” and requesting assistance in obtaining her computer access logs

for review. We find that a reasonable person in the appellant’s position would

not have believed her allegations evidenced any situation specified in 5 U.S.C.

§ 2302(b)(8). Accordingly, we find that the appellant did not make a

nonfrivolous allegation that she made a protected disclosure to the IG that could

have served as a contributing factor in the alleged personnel actions. See Luecht

v. Department of the Navy, 87 M.S.P.R. 297, ¶ 12 (2000) (concluding that the

appellant’s statement that he met with the agency IG to report “on-going fraud in

[Resource Sharing] contracts” lacked the detail necessary to constitute a

nonfrivolous allegation of a violation of law, rule, or regulation, gross

mismanagement, gross waste of funds, abuse of authority, or danger to public

health or safety).

The appellant made a nonfrivolous allegation that she engaged in protected

activity by disclosing information to the IG.

Under 5 U.S.C. § 2302(b)(9)(C), however, an employee engages in

protected activity when she discloses information to the IG in accordance with

applicable provisions of law. We find that the appellant made a nonfrivolous

allegation that she engaged in protected activity by disclosing information to the

IG. IAF, Tab 1 at 13, Tab 10 at 1-2; see Fisher v. Department of the Interior,

2023 MSPB 11, ¶ 8 (finding that the appellant’s disclosure to the Office of

Inspector General constituted protected activity under 5 U.S.C. § 2302(b)(9)(C)).

Accordingly, we must determine whether the appellant has made a nonfrivolous

allegation that her protected activity was a contributing factor in the agency’s

decision to issue her a Letter of Reprimand or refer her for a mental health

examination.

The appellant did not make a nonfrivolous allegation that her protected activity

was a contributing factor in a personnel action taken against her.

To establish the Board’s jurisdiction, an appellant also must nonfrivolously

allege that her protected activity was a contributing factor in the decision to take

or fail to take, or threaten to take or fail to take, a personnel action against her.

Yunus, 242 F.3d at 1371. To satisfy the contributing factor criterion at the

jurisdictional stage of the case, the appellant need only raise a nonfrivolous

allegation that the fact of, or the content of, her protected activity was one factor

that tended to affect a personnel action in any way. Sherman v. Department of

Homeland Security, 122 M.S.P.R. 644, ¶ 8 (2015). One way to establish this

criterion is the knowledge/timing test, under which an employee may

nonfrivolously allege that the protected activity was a contributing factor in a

personnel action through circumstantial evidence, such as evidence that the

official who took the personnel action knew of the protected activity, and that the

personnel action occurred within a period of time such that a reasonable person

could conclude that the protected activity was a contributing factor in the

personnel action. 5 U.S.C. § 1221(e)(1); Sherman, 122 M.S.P.R. 644, ¶ 8.

There are other ways to allege contributing factor as well. The Board will

consider any relevant evidence on the contributing factor question, including the

strength or weakness of the agency’s reasons for taking the personnel action,

whether the whistleblowing or activity was personally directed at the proposing

or deciding official, and whether those individuals had a desire or motive to

retaliate. Powers v. Department of the Navy, 97 M.S.P.R. 554, ¶ 22 (2004). The

whistleblower also may show that the official accused of taking retaliatory action

had imputed knowledge of the protected disclosure or activity by showing that

individuals with actual knowledge of it influenced the official’s action. Weed v.

Social Security Administration, 113 M.S.P.R. 221, ¶ 22 (2010).

Here, the appellant does not allege that the agency official who issued her

February 29, 2016 Letter of Reprimand and Offer of Medical Examination had

any knowledge that she made a disclosure to the IG on February 24, 2016, or was

influenced by any individuals who did have knowledge of her protected activity.

Nor does she allege that the information she disclosed to the IG was personally

directed at the individuals involved in the alleged personnel actions, or allege any

other facts to show they had a potential motive to retaliate for her protected

activity. Although the appellant addresses the strength of the agency’s evidence

supporting her Letter of Reprimand, claiming that one incident included by the

agency in her Letter of Reprimand was not justified, PFR File, Tab 1 at 2, she

does not allege any facts casting doubt on the numerous other incidents specified

by the agency as the reasons for her reprimand, see IAF, Tab 1 at 23-25. 5 We

therefore find that the appellant’s vague, conclusory, unsupported allegation that

her protected activity in disclosing information to the IG was a contributing

factor in the personnel actions taken against her does not meet the nonfrivolous

pleading standard. PFR File, Tab 1 at 1-2; IAF, Tab 10 at 1-2; see Rebstock

Consolidation v. Department of Homeland Security , 122 M.S.P.R. 661, ¶ 12

(2015). Accordingly, we find that a reasonable person could not conclude that

the disclosure was a contributing factor in the alleged personnel actions. We

therefore affirm the administrative judge’s decision to dismiss this IRA appeal for

lack of jurisdiction.

The appellant does not allege any facts to establish a connection between her protected

activity and the agency’s decision to offer her a medical examination at the Army’s

occupational health clinic.

The appellant’s remaining arguments on review do not warrant a different

outcome.

On review, the appellant argues that the administrative judge abused her

discretion and deprived her of due process by: (1) failing to consider an

unspecified statement provided by the appellant; (2) granting the agency

additional time to file a pleading on appeal over her objection; (3) denying the

appellant’s motion to compel discovery; and (4) giving the agency an unfair

advantage “because the Agency had a responsibility to attach a Certificate of

Service . . . to [her] letter [and] to the Board[’]s as [well]” and the agency did not

address issues outlined in the unspecified letter as the basis for dismissing her

appeal. PFR File, Tab 1 at 2-3.

The appellant’s arguments, however, do not change our determination that

the Board lacks jurisdiction over this appeal. The appellant does not identify the

document that the administrative judge allegedly failed to consider. Accordingly,

she has not shown how the alleged error prejudiced her substantive rights. See

Karapinka v. Department of Energy, 6 M.S.P.R. 124, 127 (1981). Moreover, an

administrative judge’s failure to mention all of the evidence of record does not

mean that she did not consider it in reaching her decision. Marques v.

Department of Health and Human Services, 22 M.S.P.R. 129, 132 (1984), aff’d,

776 F.2d 1062 (Fed. Cir. 1985) (Table).

The remaining decisions challenged by the appellant fall within the

administrative judge’s broad scope of authority and discretion to control the

proceedings before her, and we find no reversible error here. Miller v. Federal

Deposit Insurance Corporation, 121 M.S.P.R. 88, ¶¶ 19-20 (2014), aff’d,

818 F.3d 1361 (Fed. Cir. 2016). For example, the administrative judge denied the

appellant’s motion to compel because her motion did not comply with the

discovery procedures of 5 C.F.R. § 1201.73(c). IAF, Tabs 14, 17 at 2-3. The

appellant does not dispute this finding on review.

Finally, to the extent that the appellant is claiming adjudicatory bias on

review, there is a presumption of honesty and integrity on the part of

administrative judges, and the Board will not infer bias based on an

administrative judge’s case-related rulings. See Vaughn v. Department of the

Treasury, 119 M.S.P.R. 605, ¶ 18 (2013). An administrative judge’s conduct

during the course of a Board proceeding warrants a new adjudication only if the

administrative judge’s comments or actions evidence a deep-seated favoritism or

antagonism that would make fair judgment impossible. Id. We find that the

appellant’s broad, general allegation of bias on review is not sufficient to rebut

the presumption of the administrative judge’s honesty and integrity. Accordingly,

we affirm the initial decision dismissing this IRA appeal for lack of jurisdiction.

NOTICE OF APPEAL RIGHTS 6

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 file

within the applicable time limit may result in the dismissal of your case by your

chosen forum.

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.

Please read carefully each of the three main possible choices of review

below to decide which one applies to your particular case. If you have questions

about whether a particular forum is the appropriate one to review your case, you

should contact that forum for more information.

(1) Judicial review in general . As a general rule, an appellant seeking

judicial review of a final Board order must file a petition for review with the U.S.

Court of Appeals for the Federal Circuit, which must be received by the court

within 60 calendar days of the date of issuance of this decision. 5 U.S.C.

§ 7703(b)(1)(A).

If you submit a petition for review to the U.S. Court of Appeals for the

Federal Circuit, you must submit your petition to the court at the

following address:

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,

and your representative receives this decision before you do, then you must file

with the district court no later than 30 calendar days after your representative

receives this decision. If the action involves a claim of discrimination based on

race, color, religion, sex, national origin, or a disabling condition, you may be

entitled to representation by a court-appointed lawyer and to waiver of any

requirement of prepayment of fees, costs, or other security. See 42 U.S.C.

§ 2000e-5(f) and 29 U.S.C. § 794a.

Contact information for U.S. district courts can be found at their respective

websites, which can be accessed through the link below:

http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .

Alternatively, you may request review by the Equal Employment

Opportunity Commission (EEOC) of your discrimination claims only, excluding

all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the

EEOC’s Office of Federal Operations within 30 calendar days after you receive

this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,

and your representative receives this decision before you do, then you must file

with the EEOC no later than 30 calendar days after your representative receives

this decision.

If you submit a request for review to the EEOC by regular U.S. mail, the

address of the EEOC is:

Office of Federal Operations

Equal Employment Opportunity Commission

P.O. Box 77960

Washington, D.C. 20013

If you submit a request for review to the EEOC via commercial delivery or

by a method requiring a signature, it must be addressed to:

Office of Federal Operations

Equal Employment Opportunity Commission

131 M Street, N.E.

Suite 5SW12G

Washington, D.C. 20507

(3) Judicial review pursuant to the Whistleblower Protection

Enhancement Act of 2012 . This option applies to you only if you have raised

claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or

other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).

If so, and your judicial petition for review “raises no challenge to the 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. 7 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).

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.

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