Opinion

Billy Porter v. Department of Veterans Affairs

Court: Merit Systems Protection Board
Filed: Mar 14, 2024
Status: Unpublished
Cited by: 0 cases
Authority: More cited than 15.6%

The opinion

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

BILLY J. PORTER, JR., DOCKET NUMBER

Appellant, DA-1221-18-0172-W-1

DEPARTMENT OF VETERANS DATE: March 14, 2024

AFFAIRS,

Agency.

THIS FINAL ORDER IS NONPRECEDENTIAL 1

Billy J. Porter, Jr. , Cibolo, Texas, pro se.

Alyssa W. Silberman , Esquire, Jackson, Mississippi, 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

denied his request for corrective action in this 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

A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

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

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

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

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

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

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

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

considering the filings in this appeal, we conclude that 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 as

to the administrative judge’s analysis of the factors under Carr v. Social Security

Administration, 185 F.3d 1318, 1323 (Fed. Cir. 1999), we AFFIRM the initial

decision.

BACKGROUND

The appellant’s second-level supervisor suspended the appellant, a

Supervisory Contract Specialist, for 14 days based on his determination that the

appellant had violated the agency’s privacy policy when he accessed data that

contained his first-level supervisor’s Personally Identifiable Information (PII),

including her name, partial social security number, and time/attendance data, and

sent an unencrypted email with this data to agency officials, his attorney, and a

member of Congress. Initial Appeal File (IAF), Tab 14 at 4, 10-15. The

appellant contended that the information in the attachment disclosed fraudulent

behavior by his first-level supervisor concerning agency leave policy. IAF,

Tab 12 at 7. The appellant acknowledged that he had obtained this information

from the agency’s CLEVista K11 time and attendance system. Id. He appealed

the suspension and the administrative judge dismissed the appeal because the

Board lacks jurisdiction over a suspension of 14 days or less and the appellant did

not allege that he had filed a complaint or that he had exhausted his remedies

before the Office of Special Counsel (OSC). 2 Porter v. Department of Veterans

Affairs, MSPB Docket No. DA-3443-17-0497-I-1, Initial Decision (Nov. 13,

2017).

In this IRA appeal, the appellant alleged that he filed a complaint with

OSC. IAF, Tab 12 at 5-6. In a January 24, 2018 letter, OSC indicated that it had

closed its inquiry into his complaint, in which he had alleged that the agency

issued the 14-day suspension in reprisal for filing a union grievance and his email

forwarding documents with his first-level supervisor’s PII. Id. at 7-8. The

administrative judge determined that the appellant established jurisdiction over

his IRA appeal. IAF, Tab 29, Initial Decision (ID) at 3-4. After holding a

hearing, she found that the appellant established by preponderant evidence that he

made a protected disclosure that was a contributing factor to a personnel action,

by virtue of the knowledge/timing test. ID at 5-10. Nevertheless, she determined

that the agency demonstrated by clear and convincing evidence that it would have

issued the 14-day suspension in the absence of the appellant’s protected activity,

and she denied his request for corrective action. ID at 11-18.

In his petition for review, the appellant asserts that the agency violated the

Family and Medical Leave Act of 1993 when it denied his request for advanced

leave. Petition for Review (PFR) File, Tab 1 at 4. He argues that he was wrongly

accused of violating the agency’s leave policy, accuses his first-level supervisor

of submitting a false leave claim, and asserts that his second-level supervisor was

influenced by his first-level supervisor to permit her fraud while “get[ting] after”

the appellant. Id. The appellant also argues that he was justified in disclosing

the time and attendance information at issue to his attorney and congressional

representative because it supported his numerous pending equal employment

opportunity complaints. Id. at 4-5. He challenges the finding that he was not

authorized to access the information at issue and reiterates his claim that his

The appellant petitioned for review of that initial decision, and the Board denied his

petition for review. Porter v. Department of Veterans Affairs, MSPB Docket No. DA-

3443-17-0497-I-1, Final Order (May 23, 2023).

attorney and congressional representative had a “need to know” the information

he transmitted. Id. at 5. He includes correspondence with OSC and a response

from an agency Freedom of Information Act (FOIA) officer that the appellant

claims demonstrates that despite thousands of Privacy Act violations by agency

employees between January 1, 2016, and March 30, 2017, no one was suspended.

Id. at 6, 11-12. The agency has not responded to the appellant’s petition for

review.

DISCUSSION OF ARGUMENTS ON REVIEW

The administrative judge found that the appellant established jurisdiction

over his appeal and that he proved by preponderant evidence that he made a

protected disclosure that was a contributing factor in his proposed and actual

14-day suspension. ID at 4-8. The parties do not dispute these findings on

review, and we discern no reason to disturb them. The appellant’s arguments as

to the reasons for his disclosures and his assertions that his second-level

supervisor was influenced by his first-level supervisor do not, therefore, state a

basis for granting review. PFR File, Tab 1 at 4-5; see Nasuti v. Department of

State, 120 M.S.P.R. 588, ¶ 7 (2014) (explaining that an appellant may

demonstrate that a disclosure was a contributing factor by proving that the

official taking the action had constructive knowledge of the disclosure, even if

the official lacked actual knowledge).

The agency established by clear and convincing evidence that it would have

suspended the appellant in the absence of his protected disclosure.

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: The strength of

the agency’s evidence in support of its action; the existence and strength of any

motive to retaliate on the part of the agency officials who were involved in the

decision; and any evidence that the agency takes similar actions against

employees who are not whistleblowers but who are otherwise similarly situated.

Carr, 185 F.3d at 1323. The Board does not view the Carr factors as discrete

elements, each of which the agency must prove by clear and convincing evidence,

but rather weighs the factors together to determine whether the evidence is clear

and convincing as a whole. E.g., Mithen v. Department of Veterans Affairs,

122 M.S.P.R. 489, ¶ 36 (2015), aff’d per curiam, 652 F. App’x 971 (Fed. Cir.

2016). Crucial to this analysis, the Board must consider all of the evidence,

including that “which fairly detracts from [the] conclusion” that the agency met

its burden. Whitmore v. Department of Labor, 680 F.3d 1353, 1368, 1376 (Fed.

Cir. 2012).

The agency’s evidence in support of its decision is strong.

The first Carr factor is the strength of the agency’s evidence in support of

its decision. Carr, 185 F.3d at 1323. The administrative judge carefully

described the agency’s evidence concerning the appellant’s violation of its

PII, including the last four numbers of her social security number, despite his

extensive training and clear understanding of his duty to safeguard such

information. ID at 12-15. The appellant had general access to the agency’s time

and attendance system, and he conceded that he used it to access his supervisor’s

information, even though he had no supervisory role over her. ID at 12-13 (citing

testimony of the appellant). The appellant did not dispute that he disclosed the

information cited in the charges, but instead argued that it did not constitute

dissemination of PII. ID at 15. We disagree. The information transmitted

included part of his first-level supervisor’s social security number. The agency’s

Veterans Health Administration Handbook 1605.1 identifies information that is

referenced by an individual name or other “unique identifier” a confidential

information that generally may not be disclosed. IAF, Tab 14 at 18, 28-29, 135.

Further, the appellant admitted that he was familiar with the agency’s privacy

training. ID at 12-13. That training, which the administrative judge found that

the appellant understood, specifically indicates that PII includes an individual’s

name and social security number. IAF, Tab 14 at 29-30; ID at 13. Thus, we

agree with the administrative judge that the agency established that the appellant

violated its privacy policy. An agency’s proof of its charges is a factor weighing

in its favor. Shibuya v. Department of Agriculture, 119 M.S.P.R. 537, ¶ 36

(2013).

In his petition for review, the appellant asserts that he sent the documents

to his attorney and congressional representative to prove agency wrongdoing.

PFR File, Tab 1 at 5. He asserts that those individuals had a “need to know” the

information and argues that there are no set rules to make a “need to know”

determination. Id. However, the agency’s privacy rules identify several sources

of support to help employees comply with the pertinent regulations, including the

agency Privacy Officer and Information Security Officer. IAF, Tab 14 at 36-39.

There is no evidence that the appellant sought any such guidance before he

transmitted the PII.

The administrative judge recounted the appellant’s testimony that he had

general access to the agency’s time and attendance system in his role as a

supervisor. ID at 12-13. However, the appellant acknowledged that approving

his supervisor’s leave requests was not part of his official duties. Id. Thus, we

agree with the administrative judge that the appellant lacked any official reason

to access the time and attendance data he sent in the unencrypted email. ID at 15.

We also agree with the administrative judge that it was unnecessary for the

appellant to access and disseminate his supervisor’s information to further his

allegations because any individual charged with investigating them would have

legitimate access to the information. ID at 16-17. Therefore, the appellant could

have raised his concerns without violating privacy rules. Thus, we disagree with

the appellant’s assertion that it was necessary for him to access and disseminate

the PII. PFR File, Tab 1 at 5. The agency’s evidence in support of its decision to

suspend the appellant for 14 days is therefore strong, especially considering the

appellant’s lack of any legitimate justification for his actions.

The agency officials involved had little motivation to retaliate.

The administrative judge found that the appellant’s second-level supervisor

suspended the appellant because of his violation of the agency’s privacy policy,

described above. ID at 17. She found that he had no apparent retaliatory motive,

citing his inquiry to the agency’s Privacy Officer, who determined that the

appellant had violated agency policy. ID at 13-14, 17. On review, the appellant

alleges that the deciding official overlooked his first-level supervisor’s leave

fraud because they were working together to harass him, but he offers no support

for his assertion. PFR File, Tab 1 at 4.

To the extent that the administrative judge found no evidence of retaliatory

motive by the appellant’s second-level supervisor, we modify that finding.

“Those responsible for the agency’s performance overall may be motivated to

retaliate even if they are not directly implicated in the disclosures, as the

criticism reflects on them in their capacity as managers and employees.”

Whitmore, 680 F.3d at 1370. Such criticism is sufficient to establish a substantial

retaliatory motive. Chavez v. Department of Veterans Affairs, 120 M.S.P.R. 285,

¶ 33 (2013). In this case, the appellant’s disclosures concerned functions, i.e.,

time and attendance, over which his second-level supervisor had control. Thus,

he may have had some retaliatory motive.

In the grievance concerning his proposed suspension, the appellant wrote

that he sent the email containing PII because another agency official had

“questioned my integrity on following the leave policy.” IAF, Tab 10 at 51.

According to the appellant, the official accused him of improperly requesting

back-dated leave. Id. He claimed that he had followed correct leave policy and

submitted his leave in advance, but argued that his supervisor, who was

responsible for approving his leave, had submitted a leave request after she had

already taken it. Id. Nonetheless, the appellant failed to offer any evidence that

his supervisor’s leave use was improper. At most, the data he provided

demonstrated that the supervisor requested leave in advance of attending a

funeral, but submitted formal leave requests after a dental appointment and to

check on her daughter who may have been bitten at school. IAF, Tab 14 at 252.

Absent specific evidence of wrongdoing, we assume any delay in requesting leave

was because the need for leave was unanticipated. We agree with the

administrative judge that the second-level supervisor’s credible denial of

retaliatory motive and request for guidance indicates that any retaliatory motive

was not strong. ID at 14, 17; see Runstrom v. Department of Veterans Affairs ,

123 M.S.P.R. 169, ¶ 17 (2016) (finding that the fact that an employee was

accused of wrongdoing did not reflect negatively on his supervisor when agency

officials looked into the appellant’s allegations and, within a few days of the

appellant’s disclosure, found no wrongdoing). The Board must give deference to

an administrative judge’s credibility determinations when they are based,

explicitly or implicitly, on the observation of 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 offers no such reasons on

review.

Thus, the appellant offers no concrete reason to discount the administrative

judge’s finding that the second-level supervisor’s motivation in disciplining the

appellant was his violation of agency policy and not his disclosure. The official

was not the subject of the appellant’s disclosure, and the record does not show

that he would suffer any negative consequences because of it. He had no reason

to suppress the appellant’s contentions, and we therefore find that the record

shows a lack of retaliatory motive.

The third Carr factor does not indicate reprisal.

Regarding Carr factor 3, the administrative judge found that the appellant

failed to present evidence regarding any similarly situated employees who were

not whistleblowers and were treated more favorably. ID at 17. In analyzing the

third Carr factor, however, the administrative judge appeared to place the burden

of proof on the appellant. ID at 17-18. The agency bears the burden of

persuasion on the Carr factors. Miller v. Department of Justice, 842 F.3d 1252,

1267, 1262 (Fed. Cir. 2016). The agency did not present any specific evidence in

support of the third Carr factor.

Our reviewing court has indicated that “Carr does not impose an

affirmative burden on the agency to produce evidence with respect to each of the

Carr factors to weigh them individually in the agency’s favor.” Whitmore,

680 F.3d at 1374. Further, “the absence of any evidence relating to Carr factor 3

can effectively remove that factor from the analysis.” Id. However, our

reviewing court has observed that “the Government’s failure to produce evidence

on this factor ‘may be at the agency’s peril’ considering the Government’s

advantage in accessing this type of evidence.” Miller, 842 F.3d at 1262 (quoting

Whitmore, 680 F.3d at 1374).

On review, the appellant includes email correspondence with OSC dated

January 24 and 25, 2018. PFR File, Tab 1 at 6-9. Under 5 C.F.R. § 1201.115, the

Board will not consider evidence submitted for the first time with the petition for

review absent a showing that it was unavailable before the record was closed

despite the party’s due diligence. Avansino v. U.S. Postal Service, 3 M.S.P.R.

211, 214 (1980). The record closed at the end of the July 19, 2018 hearing. IAF,

Tab 26 at 4-5; 5 C.F.R. § 1201.59(a). The appellant failed to address whether this

evidence was unavailable before the close of the record despite his due diligence,

so we have not considered it. Moreover, the evidence shows no reason to disturb

the administrative judge’s findings. PFR File, Tab 1 at 6-9.

The appellant also provides a response he received from the agency on a

FOIA request concerning violations of the Privacy Act between January 1, 2016,

and March 30, 2017. PFR File, Tab 1 at 11-12. Although the FOIA response is

dated after the close of the record, making the material new, we note that the

response indicates that the appellant did not make his request until July 25, 2018,

which was also after the record closed, reflecting a lack of diligence on his part.

Nevertheless, the FOIA response does not identify any individuals who violated

the Privacy Act, much less any who committed the misconduct documented in

this action. PFR File, Tab 1 at 11-12. Instead, it reports that the agency made

5,983 offers of Credit Protection Services (CPS) during that time period to

persons whose full or partial social security numbers may have been revealed and

305 CPS offers related to the disclosure of individuals’ dates of birth. Id. The

response indicates that the agency had no records regarding the suspension of any

personnel who violated the Privacy Act, not that no such discipline was issued.

Id. Noticeably, the agency did not identify the appellant’s suspension, which was

issued during this timeframe. IAF, Tab 14 at 4.

Thus, even if we were to consider the appellant’s new evidence, it does not

establish that the agency treats similarly situated individuals who are not

whistleblowers differently. The Board will not grant a petition for review based

on new evidence absent a showing that it is of sufficient weight to warrant an

outcome different from that of the initial decision. Russo v. Veterans

Administration, 3 M.S.P.R. 345, 349 (1980). Moreover, the totality of the

agency’s evidence in support of the first and second Carr factors is strong, and

more than make up for any dearth of evidence on the third Carr factor.

Therefore, to the extent the administrative judge erred in assigning the burden of

proof as to Carr factors 2 and 3 to the appellant, the error did not prejudice his

substantive rights. Panter v. Department of the Air Force, 22 M.S.P.R. 281, 282

(1984) (finding that an adjudicatory error that is not prejudicial to a party’s

substantive rights provides no basis for reversal of an initial decision) .

NOTICE OF APPEAL RIGHTS 3

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.

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:

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.

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. 4 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: