“The legal standard for establishing a constructive discharge is the same regardless of whether the discharge was allegedly in retaliation for whistleblowing or for filing a discrimination claim.”
How later courts described this case
- “The legal standard for establishing a constructive discharge is the same regardless of whether the discharge was allegedly in retaliation for whistleblowing or for filing a discrimination claim.”
Written by the judges who cited it.
The opinion
UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
JULIAN KASSNER, DOCKET NUMBER
Appellant, AT-1221-18-0276-W-1
v.
DEPARTMENT OF VETERANS DATE: May 15, 2024
AFFAIRS,
Agency.
THIS ORDER IS NONPRECEDENTIAL 1
Julian Kassner , Longwood, Florida, pro se.
Karen L. Mulcahy , Bay Pines, Florida, for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
REMAND ORDER
The appellant has filed a petition for review of the initial decision, which
dismissed his individual right of action (IRA) appeal for lack of jurisdiction. For
the reasons discussed below, we GRANT the appellant’s petition for review,
VACATE the initial decision, and REMAND this matter 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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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 February 21, 2018, the appellant, a former Chief Physician with the
agency’s Central Alabama Veterans Health Care System (CAVHCS), filed an IRA
appeal with the Board. Initial Appeal File (IAF), Tab 1, Tab 6 at 43. With his
initial submission, the appellant provided a December 18, 2017 close-out letter
from the Office of Special Counsel (OSC). IAF, Tab 1 at 61-62. In this letter,
OSC explained that it was closing its investigation into the appellant’s allegations
that the agency had taken a series of retaliatory actions against him, to include
ultimately removing him from his position, as a result of several protected
disclosures and activities. Id. The appellant requested a hearing on the matter.
Id. at 2.
The administrative judge issued an order informing the appellant of the
applicable jurisdictional burden for IRA appeals and ordering him to, among
other things, list the protected disclosures and activities that he was raising before
the Board, provide the dates on which he made the disclosures or engaged in the
activities, and identify the actions that the agency took, failed to take, or
threatened to take as a result of the disclosures/activities. IAF, Tab 3 at 1-8. In
response, the appellant submitted over 2,700 pages of documents.
IAF, Tab 4 at 1. The administrative judge rejected the appellant’s jurisdictional
response in its entirety, and he provided a date by which the appellant could
submit a revised response. Id. at 1-2. The appellant thereafter submitted four
responsive filings totaling over 200 pages. IAF, Tabs 6-9. The agency replied to
the appellant’s submissions. IAF, Tab 10.
The administrative judge issued an initial decision dismissing the matter
for lack of jurisdiction. IAF, Tab 11, Initial Decision (ID) at 1, 13. In so doing,
the administrative judge found that the appellant had “partially exhausted” his
administrative remedies with OSC. ID at 3. He thereafter identified nine
disclosures raised by the appellant, ID at 6-9, but concluded that the appellant had
failed to make a nonfrivolous allegation that he had made a protected disclosure
3
under 5 U.S.C. § 2302(b)(8) or engaged in protected activity, ID at 12-13. 2 In so
concluding, the administrative judge described the appellant’s filings as
“voluminous and labyrinthine,” and reasoned that all of the identified disclosures
were “particular to [the appellant]” and related to his “own perceived
mistreatment by the agency.” ID at 9-10. He also reasoned that the
Whistleblower Protection Act was “intended to protect a government employee
who risks his own personal job security for the advancement of the public good
by disclosing abuses by government personnel”; however, no such altruism was
perceptible from the appellant’s disclosures. ID at 10 (emphasis in original). He
also found that the appellant’s “generalized claims” amounted to mere pro forma
allegations and, accordingly, were insufficient to satisfy the nonfrivolous
allegation standard. ID at 11.
The appellant has filed a petition for review of the initial decision. Petition
for Review (PFR) File, Tab 1. The agency has not filed a response. In his
petition, the appellant challenges the administrative judge’s conclusion that he
failed to establish Board jurisdiction over the matter; specifically, he argues that
the administrative judge: (1) erred in finding that he had only “partially
exhausted” his administrative remedies with OSC; (2) improperly considered his
motives; (3) failed to consider all of his alleged disclosures; and (4) erred in
analyzing the nine disclosures addressed in the initial decision. Id. at 4-17.
ANALYSIS
To establish jurisdiction in a typical IRA appeal, an appellant must prove
by preponderant evidence 3 that he exhausted his administrative remedies before
OSC and make nonfrivolous allegations of the following: (1) he made a
disclosure described under 5 U.S.C. § 2302(b)(8) or engaged in a protected
2
Because the administrative judge so found, he did not address the contributing factor
or personnel action jurisdictional criteria.
3
Preponderant evidence is the degree of relevant evidence that a reasonable person,
considering the record as a whole, would accept as sufficient to find that a contested
fact is more likely to be true than untrue. 5 C.F.R. § 1201.4(q).
4
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).
Chambers v. Department of Homeland Security, 2022 MSPB 8, ¶¶ 11, 14. A
nonfrivolous allegation is an assertion that, if proven, could establish the matter
at issue. 5 C.F.R. § 1201.4(s); see Hessami v. Merit Systems Protection Board ,
979 F.3d 1362, 1369 (Fed. Cir. 2020) (“[W]hen evaluating the Board’s
jurisdiction over a whistleblower action, the question of whether the appellant has
non-frivolously alleged protected disclosures that contributed to a personnel
action must be determined based on whether the [appellant] alleged sufficient
factual matter, accepted as true, to state a claim that is plausible on its face.”).
Generally, the Board will consider an allegation nonfrivolous when, under oath or
penalty of perjury, an individual makes an allegation that is more than
conclusory, plausible on its face, and material to the legal issues in the appeal.
5 C.F.R. § 1201.4(s). Any doubt or ambiguity as to whether the appellant made
nonfrivolous jurisdictional allegations should be resolved in favor of finding
jurisdiction. Skarada v. Department of Veterans Affairs, 2022 MSPB 17, ¶ 6.
The appellant exhausted his administrative remedies with OSC.
The appellant argues that the administrative judge erred in concluding that
he only partially exhausted his administrative remedies. PFR File, Tab 1 at 8;
ID at 3. To this end, he avers that the administrative judge (1) failed to explain
his conclusion regarding partial exhaustion and (2) acknowledged that the
appellant had, in fact, fully exhausted his administrative remedies. PFR File,
Tab 1 at 8. We agree that the administrative judge’s conclusion regarding
exhaustion was unclear, and we find that the appellant exhausted his
administrative remedies with OSC.
Under 5 U.S.C. § 1214(a)(3), an employee is required to “seek corrective
action from [OSC] before seeking corrective action from the Board” through an
IRA appeal. The substantive requirements of exhaustion are met when
5
an appellant has provided OSC with a sufficient basis to pursue an investigation.
Chambers, 2022 MSPB 8, ¶ 10. An appellant may demonstrate exhaustion
through his initial OSC complaint, correspondence with OSC, or other
sufficiently reliable evidence, such as an affidavit or declaration attesting that the
appellant raised with OSC the substance of the facts in the Board appeal.
Id., ¶ 11.
Here, in addition to OSC’s close-out letter, IAF, Tab 1 at 61-62, the
appellant provided the Board with a copy of both his OSC complaint and
correspondence that he submitted to OSC, id. at 25-60. These filings contain
sufficient allegations regarding the claims discussed herein such that we find that
the appellant provided OSC with a sufficient basis to pursue an investigation into
the same. See Chambers, 2022 MSPB 8, ¶¶ 10-11. Accordingly, we find that the
appellant has met his burden of proving by preponderant evidence that he
exhausted his administrative remedies with OSC.
The administrative judge improperly considered the appellant’s motives in his
analysis of the alleged disclosures.
The appellant challenges the administrative judge’s conclusion that,
because his disclosures sought to correct his own perceived mistreatment by
agency personnel, they could not constitute protected disclosures under the
statute. PFR File, Tab 1 at 8-10; ID at 10. We agree that, in analyzing the
alleged disclosures, the administrative judge improperly considered the
appellant’s motives.
A protected disclosure is one that an appellant reasonably believes
evidences any 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); Mudd v. Department of
Veterans Affairs, 120 M.S.P.R. 365, ¶ 5 & n.3 (2013). The proper test for
determining whether an appellant had a reasonable belief that his disclosures
were protected is whether a disinterested observer with knowledge of the
6
essential facts known to and readily ascertainable by the appellant could
reasonably conclude that the actions evidenced any of the conditions set forth in
5 U.S.C. § 2302(b)(8). Mudd, 120 M.S.P.R. 365, ¶ 5. Although an appellant’s
motive in making a disclosure may be relevant to the determination of a
reasonable belief, a disclosure is not excluded from protection based on the
appellant’s motive in making it. Ayers v. Department of the Army, 123 M.S.P.R.
11, ¶ 20 (2015); see 5 U.S.C. § 2302(f)(1)(C) (“A disclosure shall not be excluded
from subsection (b)(8) because . . . of the employee’s or applicant’s motive for
making the disclosure.”).
Accordingly, to the extent the administrative judge found that the
appellant’s disclosures were per se outside the scope of the Board’s jurisdiction
because they pertained only to his own alleged mistreatment, we disagree. ID
at 10. We analyze the appellant’s alleged disclosures having considered his
motives only insofar as they are relevant to whether he nonfrivolously alleged
that he reasonably believed that his disclosures were protected.
We consider the protected disclosures analyzed in the initial decision and those
that the appellant identifies on review.
The appellant argues that the administrative judge failed to address all of
his alleged protected disclosures. PFR File, Tab 1 at 4-6. In so arguing,
however, he identifies only some of the disclosures that the administrative judge
allegedly overlooked. To this end, his petition contains a list of several bullet
points describing disclosures that he believes the administrative judge did not
consider and thereafter states as follows: “[t]here are only some of examples
presented by [the appellant] in his response to the Jurisdictional Order, all of
which are incorporated herein.” Id. at 5-6 (grammar as in original). In essence,
the appellant requests that the Board refer to his filings before the administrative
judge to extract additional, unaddressed protected disclosures. Id. We decline to
do so.
7
An appellant is required to articulate claims with reasonable clarity; the
Board is not obligated to pore through a voluminous record to make sense of an
appellant’s allegations. Keefer v. Department of Agriculture, 92 M.S.P.R. 476,
¶ 18 n.2 (2002); 5 C.F.R. § 1201.114(b) (“A petition . . . for review . . . must be
supported by references to applicable laws or regulations and by specific
references to the record.”). Moreover, attempts to incorporate by reference
pleadings that were filed before an administrative judge do not satisfy 5 C.F.R.
§ 1201.115, which requires the petitioning party to set forth specific objections to
the initial decision. See, e.g., Semenov v. Department of Veterans Affairs,
2023 MSPB 16, ¶ 43 n.8. Accordingly, we consider the nine protected
disclosures addressed in the initial decision as well as the disclosures identified
by the appellant in his petition for review. 4
The appellant made nonfrivolous allegations of protected disclosures under
5 U.S.C. § 2302(b)(8).
Disclosures of alleged extortion by Dr. A
The appellant asserts that he made a protected disclosure regarding illegal
activity, i.e., extortion. PFR File, Tab 1 at 5, 10-12. In so asserting, he
references a September 30, 2016 email wherein he disclosed to agency officials
that another agency physician and his subordinate, referred to here as Dr. A, had
asked him to approve her “illegal” request for authorized absences and a
recommendation letter so that she could “pursue an executive MBA.” Id. at 5
(citing IAF, Tab 8 at 44-45); IAF, Tab 1 at 9-10. The appellant stated in this
email that Dr. A’s request “reasonably equate[d] to a demand for a benefit in
excess of $100,000.” IAF, Tab 8 at 45. He explained in the email that he had
denied Dr. A’s request, which had resulted in her exhibiting “subversive, passive
aggressive, and confrontational behavior, including making a direct threat that if
4
As indicated, the appellant provides a list of disclosures that he asserts “went
unaddressed by the [administrative judge].” PFR File, Tab 1 at 6. This list, however,
includes some of the disclosures that the administrative judge considered, in full or part,
in his initial decision. Id. at 5-6; ID at 6-9.
8
[the appellant] did not yield to her demands she would report purported
misconduct in relation to [his] already approved telework agreement.” Id.
at 44-45.
The appellant is not required to identify the particular statutory or
regulatory provision that the agency allegedly violated when his statements and
circumstances of those statements clearly implicate an identifiable law, rule, or
regulation. Mason v. Department of Homeland Security, 116 M.S.P.R. 135, ¶ 17
(2011). Rather, at the jurisdictional stage, he is only burdened with
nonfrivolously alleging that he reasonably believed that his disclosure evidenced
a violation of one of the circumstances described in 5 U.S.C. § 2302(b)(8). Id.
Further, the question of whether a disinterested observer with knowledge of the
essential facts known to and readily ascertainable by an employee could
reasonably conclude that an action evidenced a violation of law requires that we
consider concepts of criminal law from a layman’s perspective as well as in a
legal sense. Baldwin v. Department of Veterans Affairs, 113 M.S.P.R. 469, ¶ 18
(2010); see Mudd, 120 M.S.P.R. 365, ¶¶ 8-9 (considering the appellant’s lack of
special expertise in legal matters in assessing whether she nonfrivolously alleged
that she reasonably believed that the agency violated a law, rule, or regulation).
The lay definition of extortion is “the act or practice of extorting,” which,
in turn, is defined as “to obtain from a person by force, intimidation, or undue or
illegal power.” Extortion, Merriam-Webster, https://www.merriam-webster.com/
dictionary/extortion (last visited May 15, 2024); Extort, Merriam-Webster,
https://www.merriam-webster.com/dictionary/extort (last visited May 15, 2024).
The pertinent legal definition of extortion is “[t]he act or practice of obtaining
something or compelling some action by illegal means, as by force or coercion.”
Black’s Law Dictionary (10th ed. 2014). Alabama law 5 posits that, “[a] person
5
CAVHCS is located in Montgomery, Alabama. IAF, Tab 1 at 1. Thus, Alabama law
is applicable to this appeal. See, e.g., Baldwin, 113 M.S.P.R. 469, ¶¶ 18, 20 & n.2
(finding that the law of the state where the alleged criminal act occurred should be
applied in determining the reasonableness of an individual’s belief that he disclosed a
9
commits the crime of extortion if he knowingly obtains by threat control over the
property of another, with intent to deprive him of the property.” Preskitt v.
Lyons, 865 So. 2d 424, 429 (Ala. 2003) (emphasis omitted) (quoting Ala. Code
1975, § 13A-8-13). Under the Alabama Criminal Code, doing so by means of a
threat constitutes extortion in the second degree, a class C felony. Ala. Code.
1975 § 13A-8-15. In pertinent part, it is extortion by means of a “threat” to do an
act calculated to substantially harm another person’s career. Preskitt, 865 So. 2d
at 430 (citing Ala. Code 1975 § 13A-8-1(14)(k)). Attempted extortion in the
second degree is a class A misdemeanor under Alabama law. Id. (citing Ala.
Code. 1975 § 13-4-2(d)(4)).
Considering the appellant’s assertion that he was reporting “an explicit
threat to take action that would be harmful to my career, professional standing
and employment position,” we agree with his contention on review that he
nonfrivolously alleged that he reported what he could reasonably have believed
was extortion, which is a violation of law. 6 PFR File, Tab 1 at 11; see Lewis v.
Department of Commerce, 101 M.S.P.R. 6, ¶¶ 2, 11 (2005) (indicating that a
disclosure of a violation of criminal law is a disclosure of a violation of law, rule,
or regulation under the statute and finding that the appellant made a nonfrivolous
allegation of a protected disclosure when she reported that an agency employee
had assaulted her). Accordingly, we find that the appellant made a nonfrivolous
allegation of a protected disclosure under 5 U.S.C. § 2302(b)(8) via his
September 30, 2016 email. 7 To the extent that he also claimed below that he first
violation of criminal law).
6
Because we find this disclosure protected as an alleged violation of law, we need not
reach the appellant’s arguments that he reasonably believed his disclosure also
evidenced an abuse of authority and that Dr. A violated agency anti-harassment policy
or 18 U.S.C. § 1512, a statute that prohibits tampering with a witness, victim, or
informant. PFR File, Tab 1 at 5, 12-13.
7
The appellant does not challenge, and we discern no basis to disturb, the
administrative judge’s conclusion that he failed to establish Board jurisdiction over an
additional alleged disclosure that was also made on or about September 30, 2016, which
pertained to the agency bypassing “standard procedures and associated safeguards”
10
made this disclosure in August 2016, we similarly find that he met his
jurisdictional burden as to this earlier disclosure of the same information. IAF,
Tab 1 at 34.
October and November 2016 disclosures that Dr. A had a handgun
on Government property and that the agency failed to take any
action regarding the handgun
The appellant contends that, on October 5, 2016, he disclosed to agency
management that Dr. A kept a loaded handgun in her car while it was parked on
agency property. PFR File, Tab 1 at 13. He avers that her actions violated a law,
rule, or regulation and caused him to be concerned for his safety. 8 Id. Relatedly,
he alleges that he subsequently disclosed an “INTENTIONAL CHOICE by
management not to investigate [Dr. A] illegally having a gun on [F]ederal
property to expose [him] to workplace violence threats and harassment in
violation of the [Whistleblower Protection Enhancement Act of 2012 (WPEA)].”
Id. at 5 (capitalization as in original).
Regarding the latter disclosure, the appellant draws the Board’s attention to
a November 3, 2016 email that he sent to agency officials. Id. (citing IAF, Tab 7
at 11). In this email, the appellant stated that “[t]he issue of the gun” had
contributed to his emotional distress, and he asserted that agency officials’
related to a congressional inquiry involving the appellant. ID at 7; see El v. Department
of Commerce, 123 M.S.P.R. 76, ¶ 6 (2015) (explaining that vague, conclusory,
unsupported, and pro forma allegations of alleged wrongdoing do not meet the
nonfrivolous pleading standard needed to establish the Board’s IRA jurisdiction) , aff’d
per curiam, 663 F. App’x 921 (Fed. Cir. 2016).
8
The administrative judge analyzed the appellant’s October 5, 2016 disclosure in the
initial decision; however, he considered only whether the appellant had disclosed a
substantial and specific danger to public health or safety. ID at 12. Although the
appellant categorized this disclosure in such a manner, IAF, Tab 1 at 35, he was not
required to label the category of wrongdoing, Horton v. Department of Veterans
Affairs, 106 M.S.P.R. 234, ¶ 16 n.* (2007). Accordingly, we consider the appellant’s
assertion on review that he disclosed a violation of law, rule, or regulation on
October 5, 2016. PFR File, Tab 1 at 13. In light of our finding that he nonfrivolously
alleged he reasonably believed the agency violated a law, rule, or regulation, we do not
reach the issue of whether his disclosure could also be protected as a disclosure of a
substantial and specific danger to public health or safety.
11
suggestion that he “should have spoken to the employee who threatened [him]
about her gun and review VA policies surrounding firearms with her [was] so
shockingly inappropriate.” IAF, Tab 7 at 11. Although the appellant did not
identify any specific laws, rules, or regulations that he believed agency personnel
had violated, he was not required to do so; indeed, the nature of his allegations
clearly implicates wrongdoing under 5 U.S.C. § 2302(b)(8). See DiGiorgio v.
Department of the Navy, 84 M.S.P.R. 6, ¶ 14 (1999) (expressing that some
allegations of wrongdoing, such as theft of Government property or fraudulent
claims for pay, so obviously implicate a violation of law, rule, or regulation, that
an appellant need not identify any particular law, rule, or regulation). Further, a
reasonable person in the appellant’s position could reasonably believe that Dr. A
violated 5 C.F.R. § 1.218(a)(13). That provision prohibits the carrying of
firearms on agency property, and possessing firearms in violation of this
provision can result in a fine and imprisonment under 38 C.F.R. § 1.218(b)(37).
Accordingly, we find that the appellant made nonfrivolous allegations of
protected disclosures under 5 U.S.C. § 2302(b)(8) on October 5, 2016, and
November 3, 2016.
November and December 2016 disclosures regarding the ending of
the appellant’s telework agreement
The appellant asserts that he disclosed a violation of “MANY of the
[a]gency’s rules and regulations [relating to the agency’s termination of] his
telework agreement.” PFR File, Tab 1 at 5 (punctuation as in original). To this
end, he references emails dated November 21, 22, and 28, and December 21,
2016, which were sent to agency officials either by the appellant or by the
agency’s former Chief of Human Resources on the appellant’s behalf. Id. (citing
IAF, Tab 7 at 19-20, 22-23, 25-26, 29). The appellant avers that these emails
disclosed that (1) the agency had violated “VA Handbook 5011/28, Part II,
Chapter 3, paragraph 6.i” by failing to provide him with 2 weeks’ notice prior to
cancelling his telework agreement and (2) the notice of termination of his
12
telework agreement was fraudulent and amounted to an “illegal order” because it
listed an incorrect date, provided a false reason for the cessation of the
agreement, and was signed by an agency employee without signatory authority.
Id.
As of late 2016, agency Handbook 5011/28 stated that management could
modify a telework agreement “no sooner than two weeks after the employee is
notified.” IAF, Tab 7 at 19-20; Department of Veterans Affairs, VA Handbook
5011, Hours of Duty and Leave at 67 (Dec. 14, 2018),
https://www.va.gov/vapubs/search_action.cfm?dType=2 (last visited May 15,
2024); see Golden v. Department of Veterans Affairs , 2023 MSPB 19, ¶ 7 n. 5
(taking official notice of a U.S. Army publication that was readily available to the
public on the internet). We conclude that the appellant made a nonfrivolous
allegation that he reasonably believed that these emails disclosed a violation of
law, rule, or regulation. 9 As to the Human Resources Chief’s disclosure of the
same information, the Board has found that an agency employee is protected
against reprisal for protected disclosures another employee made on his behalf.
Burrowes v. Department of the Interior, 54 M.S.P.R. 547, 551 (1992).
Accordingly, we find that the appellant made a nonfrivolous allegation of a
protected disclosure under 5 U.S.C. § 2302(b)(8) via emails sent in November and
December 2016.
November 28, 2016 disclosure of whistleblower reprisal
The appellant contends that he disclosed “[m]uch harassment in violation
of the WPEA by management.” PFR File, Tab 1 at 5. In this regard, he
seemingly asserts that both he and the Human Resources Chief disclosed in
November 28, 2016 emails that the agency had engaged in retaliatory actions, to
9
The appellant also alleges that he disclosed a “[v]iolation of a legal directive signed
by the Network Director.” PFR File, Tab 1 at 5 (citing IAF, Tab 7 at 24, 30). The
appellant’s allegations in this regard are again based on the agency’s failure to follow
internal rules regarding the cancellation of his telework agreement during the same
timeframe. Id.
13
include threatening to place him in an absent without leave (AWOL) status for
periods when he was teleworking. Id.; IAF, Tab 1 at 51, Tab 7 at 18-21. The
appellant avers that his harassment-related disclosures pertained to “an
ADMITTED effort by leadership to ‘get’ [him] immediately after the disclosures
‘even if he sneezed wrong,’ showing a reasonable belief in retaliation in violation
of the WPEA.” PFR File, Tab 1 at 5 (capitalization as in original). In essence,
the appellant alleges that both he and the Human Resources Chief disclosed that
the agency was violating Federal whistleblower retaliation law.
In her November 28, 2016 email, the Human Resources Chief makes
reference to the agency terminating the appellant’s telework agreement on
September 30, 2016, and she requests that agency management “stop threatening
him or trying to intimidate him with placing him on an AWOL status.”
IAF, Tab 7 at 19-20 (grammar as in original). She also states that placing the
appellant in an AWOL status “could be seen as a retaliatory action.” Id. at 20. In
his November 28, 2016 email, the appellant makes reference to “a pattern of
ongoing harassment” since September 30, 2016. Id. at 21. Insofar as the
appellant disclosed Dr. A’s alleged extortion attempt on this date, IAF, Tab 8
at 44-45, we find that the appellant nonfrivolously alleged that he reasonably
believed that the November 28, 2016 emails disclosed a violation of Federal
whistleblower retaliation law, see Mudd, 120 M.S.P.R. 365, ¶ 9. Accordingly, we
find that the appellant made nonfrivolous allegations of a protected disclosure
under 5 U.S.C. § 2302(b)(8) via the November 28, 2016 emails.
December 2016 and January 2017 disclosures regarding medical
and privacy concerns
The appellant contends that he made a disclosure regarding the following:
(1) a violation of the Rehabilitation Act of 1973; (2) “an illegal Employee
Assistance Program (EAP) referral”; (3) a Privacy Act violation; and (4) the
CAVHCS Chief of Staff improperly accessing the appellant’s credentialing file.
PFR File, Tab 1 at 6, 14-15. The Board’s IRA jurisdiction does not extend to
14
claims of reprisal for complaining of practices made unlawful by the
Rehabilitation Act. See McCray v. Department of the Army, 2023 MSPB 10,
¶¶ 20-22. Thus, to the extent the appellant alleges that he disclosed a violation of
the Rehabilitation Act, his allegations necessarily fall outside the scope of the
Board’s IRA jurisdiction.
The appellant also alleges that he disclosed a violation of the Privacy Act
and agency rules and regulations when he reported that the Chief of Staff had
unlawfully accessed his credentialing file/documents and thereafter utilized the
information obtained to refer him to EAP. PFR File, Tab 1 at 14-15. To this
end, in a December 5, 2016 email, the appellant informed agency personnel that
his “confidential credentialing file was deliberately accessed to obtain personal
information to provide to EAP against [his] wishes and without [his] consent.”
IAF, Tab 7 at 37. We find that the appellant has made a nonfrivolous allegation
that he reasonably believed that he had disclosed a violation of the Privacy Act.
See Herman v. Department of Justice, 115 M.S.P.R. 386, ¶ 10 (2011) (concluding
that an appellant nonfrivolously alleged that he reasonably believed that the
agency had violated the Privacy Act, reasoning that although the agency may not
have committed an actual violation, there was no indication that the appellant’s
job duties required him to be familiar with the intricacies of the Privacy Act).
At the jurisdictional stage, we also find that the appellant made a
nonfrivolous allegation of a protected disclosure with regards to his involuntary
EAP referral. An EAP is “a voluntary, work-based program that offers free and
confidential assessments, short-term counseling, referrals, and follow-up services
to employees who have personal and/or work-related problems.” U.S. Office of
Personnel Management, Employee Assistance Program, Questions and Answers,
https://www.opm.gov/frequently-asked-questions/work-life-faq/employee-
assistance-program-eap/ (last visited May 15, 2024). Each Federal agency
administers its own EAP. Id. The appellant referenced emails dated December 8,
2016, and January 12, 2017, wherein he both questioned why he had been
15
involuntarily referred to EAP and expressed his belief that involuntary referrals
are illegal. PFR File, Tab 1 at 5; IAF, Tab 7 at 34-35, 38; see Mudd,
120 M.S.P.R. 365, ¶ 9. Accordingly, we find that the appellant made a
nonfrivolous allegation of protected disclosures under 5 U.S.C. § 2302(b)(8) via
his December 5 and 8, 2016, and January 12, 2017, emails.
January 18, 2017 disclosure that the appellant was charged leave
without pay (LWOP) for times he was working
The appellant contends that he disclosed that he had been placed on LWOP
in violation of laws, rules, and regulations. PFR File, Tab 1 at 5, 16. In support
of this contention, he references a January 18, 2017 email that he sent to an
agency management official and the Human Resources Chief wherein
he disclosed that he had been “falsely listed as LWOP” in late November 2016
when he was teleworking. 10 Id. at 5 (citing IAF, Tab 8 at 4). The appellant stated
in the email that he was uncertain as to why he still had not been compensated for
this time, and he requested that the “pay issue be correct[ed].” IAF, Tab 8 at 4.
The genesis of his assertions was his disagreement with the agency’s
rescission of his telework agreement. IAF, Tab 6 at 8, 29, 41, Tab 8 at 8. The
appellant disagreed with the validity of these agency actions, and therefore
worked from home. IAF, Tab 8 at 4. An employee generally is required to
comply with an agency order, even when he may have substantial reason to
question it, while taking steps to challenge its validity through whatever channels
are appropriate. Pedeleose v. Department of Defense, 110 M.S.P.R. 508, ¶ 16,
aff’d per curiam, 343 F. App’x 605 (Fed. Cir. 2009). Further, while it is a
protected activity under 5 U.S.C. § 2302(b)(9)(D) to “refus[e] to obey an order
that would require the individual to violate a law, rule, or regulation,” the
10
The appellant also asserts that he made a similar disclosure via email on July 7, 2017;
however, in his July 7, 2017 email, the appellant asserted that the agency’s improper
actions concerning his pay stemmed from disability discrimination. PFR File, Tab 1
at 16; IAF, Tab 8 at 40-41. Accordingly, this alleged disclosure falls outside the scope
of the Board’s IRA jurisdiction. See McCray, 2023 MSPB 10, ¶ 22.
16
appellant’s failure to report to work does not fit within this category. His
allegation is that the ending of his telework agreement violated agency policy, not
that his working in the office was unlawful. Further, the appellant has not
claimed that he advised the agency that he was working during periods he did not
come into work and therefore was deemed LWOP. We find that a reasonable
person in the appellant’s position would not believe the agency engaged in
wrongdoing by failing to pay him for periods when he failed to report to the
office as instructed, even if he questioned the validity of the instruction.
February 3, 2017 perceived protected activity of filing an OSC
complaint
The appellant avers that he made a protected disclosure on February 3,
2017, when he informed agency personnel that he believed that he had been the
victim of whistleblower retaliation and that he had retained legal counsel “who
[would] be addressing this issue through [OSC].” PFR File, Tab 1 at 6 (citing
IAF, Tab 8 at 9). We surmise that, in asserting that he told the agency that he
was planning to report whistleblower reprisal to OSC, the appellant is alleging
that the agency perceived that he had engaged in protected activity under 5 U.S.C.
§ 2302(b)(9)(C). See Fisher v. Department of the Interior, 2023 MSPB 11, ¶ 8
(explaining that under the broadly worded provision of 5 U.S.C. § 2302(b)(9)(C),
disclosures of information to OSC are protected regardless of their content, as
long as such disclosures are made “in accordance with applicable provisions of
law”). An appellant may pursue an IRA appeal on the theory that an agency
retaliated against him for its perception that he engaged in activity protected
under 5 U.S.C. § 2302(b)(9)(C). Corthell v. Department of Homeland Security,
123 M.S.P.R. 417, ¶ 12 (2016), overruled on other grounds by Requena v.
Department of Homeland Security, 2022 MSPB 39, ¶ 14; see Rumsey v.
Department of Justice, 120 M.S.P.R. 259, ¶ 7 (2013) (recognizing that one who is
perceived as a whistleblower is entitled to protection under whistleblower reprisal
statutes even if she has not made protected disclosures) . We find that the
17
appellant has nonfrivolously alleged that the agency perceived him to have
engaged in such protected activity. 11
February 10, 2017 disclosures of regarding patient care
The appellant alleges that he disclosed “[v]iolations of the patient standard
of care, CAVHCS Staff Bylaws, and Code of Conduct and Patient Safety caused
by management’s insistence that [the appellant] continue to perform his job even
though they PROHIBITED him from ‘communicat[ing] with anyone in the
Imaging Department, access[ing] information systems, or enter[ing] the Imaging
Department even if doing so is necessary for quality patient care’ or EVEN IF IT
WAS NEEDED TO RESPOND TO AN EMERGENCY.” 12 PFR File, Tab 1 at 5
(capitalization as in original). To support this allegation, the appellant references
two February 10, 2017 emails. Id. (citing IAF, Tab 8 at 6-8). In these emails, the
appellant informed agency officials that restrictions placed on him were
“incompatible with the practice of clinical radiology in accordance with generally
accepted standards of care.” IAF, Tab 8 at 7.
As background, on February 2, 2017, 8 days prior to the appellant sending
this email, the agency temporarily reassigned him to perform staff radiologist
duties due to a pending investigation. Id. at 5. The agency instructed him “to
refrain from any involvement with management of the CAVHCS Imaging Service,
11
The appellant relatedly asserts that, “in response to his termination,” he told agency
personnel that he had gone to OSC. PFR File, Tab 1 at 16. However, because all of the
alleged personnel actions at issue predate this alleged disclosure, this assertion is
unavailing. See El, 123 M.S.P.R. 76, ¶ 10 (explaining that, because the subject
personnel action predated the appellant’s protected disclosure, the disclosure could not
have contributed to the personnel action).
12
As pointed out by the appellant on review, the administrative judge largely
categorized this disclosure as having pertained largely to the appellant’s “work
location.” PFR File, Tab 1 at 15; ID at 8-9, 10, 11 n.3. Indeed, the record suggests
that, during this same timeframe, the appellant also disclosed that the agency had
relocated him to a “small, hot room with no work assignments.” IAF, Tab 1 at 61. We
find that the appellant’s assertions regarding his relocation are more appropriately
analyzed as an alleged personnel action. See 5 U.S.C. § 2302(a)(2)(A)(xii) (defining as
a personnel action “any other significant change in duties, responsibilities, or working
conditions”). We have done so below.
18
to include contacting employees, [and] entering any CAVHCS imaging areas”
while the investigation was pending. Id.
The appellant asserted, among other things, that the agency’s limitation of
his interaction with other medical personnel disregarded “the principals [sic] of
interaction necessary to maintain a culture of patient safety.” Id. He also
asserted that, per the agency’s restrictions, “if a patient had a heart attack and [he
was] in a position to respond and administer CPR, [he] should refrain from doing
so if the patient [was] in the Imaging Department.” Id. When a patient requires
immediate treatment or careful monitoring, harm may result directly from delays
in providing such treatment and monitoring; the occurrence of harm is not
dependent on a series of unlikely events. Chavez v. Department of Veterans
Affairs, 120 M.S.P.R. 285, ¶ 20 (2013). Although the emails that the appellant
references indicate that the appellant may have been questioning or seeking to
clarify the contours of the agency’s restrictions, id. at 6-8, we find, at the
jurisdictional stage, that the appellant’s assertions are sufficient to constitute a
nonfrivolous allegation that he reasonably believed that he had disclosed a
violation of law or a substantial and specific danger to public health or safety, see
Skarada, 2022 MSPB 17, ¶ 6; Parikh v. Department of Veterans Affairs,
116 M.S.P.R. 197, ¶¶ 12, 15-23 (2011) (concluding, as relevant here, that
disclosures of alleged delays in providing urgent patient care were protected).
February 16, 2017 disclosure of workplace bullying
The appellant alleges that he disclosed violations of the agency’s “Policy
Statement for the Prevention of Workplace Bullying.” PFR File, Tab 1 at 5. To
this end, he references a February 16, 2017 email wherein he informed the
Director of CAVHCS that agency personnel had violated this policy statement,
which she had signed. Id.; IAF, Tab 8 at 15-17. In this email, the appellant
conveyed, among other things, that he had been subjected to “coordinated social
and physical exclusion from work-related activities,” to include being told that he
“may not enter any Imaging Department area or communicate with any employee
19
in the Imaging Department.” IAF, Tab 8 at 16. These allegations appear to
pertain, at least in part, to the previously discussed communication restrictions
placed on the appellant on or about February 2, 2017. Id. at 5.
At the jurisdictional stage, we accept as true the appellant’s implicit
allegations that the restrictions placed on him were unwarranted, as well as his
assertions that the agency’s restrictions constituted coordinated social and
physical exclusion, i.e., bullying. See Hessami, 979 F.3d at 1369. Because the
appellant, via his February 16, 2017 email, identified a specific, established
agency policy statement and explained why he believed agency personnel had
violated the same, we find that he made a nonfrivolous allegation that he
reasonably believed that he had disclosed a violation of law, rule, or regulation
under 5 U.S.C. § 2302(b)(8). See Mudd, 120 M.S.P.R. 365, ¶ 9.
March through June 2017 harassment complaints
The appellant does not discernably raise any arguments regarding what the
administrative judge categorized as disclosures (8) and (9) in the initial decision,
which were allegedly made by the appellant beginning in March 2017. ID at 9.
In the initial decision, the administrative judge collectively described these two
disclosures as follows:
In March 2017, you contacted the VA’s Harassment Prevention
Program. Through June 2017, you also repeated and updated your
disclosures to various VA personnel, alleging the VA wrongfully
denied you a reasonable accommodation; harassed you; made another
wrongful EAP referral; made an unwanted call to your wife; illegally
accessed your personnel records; and failed to address the issues you
raised.
Id. (quoting IAF, Tab 1 at 62).
Although the above allegations are not particularly detailed, they
nonetheless assert that the appellant contacted the “VA’s Harassment Prevention
Program,” IAF, Tab 1 at 62. Disclosures of information to any agency component
“responsible for internal investigation or review” are protected activity under
5 U.S.C. § 2302(b)(9)(C) regardless of their content, as long as such disclosures
20
are made “in accordance with applicable provisions of law.” See Fisher,
2023 MSPB 11, ¶ 8. The agency’s website explains that the Harassment
Prevention Program (HPP), among other things, provides “centralized tracking,
monitoring and reporting processes to proactively respond to allegations of
harassment.” U.S. Department of Veterans Affairs, Office of Resolution
Management, Diversity & Inclusion (ORMDI), HPP,
https://www.va.gov/ORMDI/HPP.asp (last visited May 15, 2024); see Hessami,
979 F.3d at 1369 & n.5 (explaining that the Board may consider “matters of
public record” in determining whether an appellant nonfrivolously alleged she
made protected disclosures (citation omitted)). The website also indicates that
the agency formed the HPP in response to a mandate “to establish enterprise -wide
anti-harassment policies and procedures to ensure allegations of harassment
receive a prompt, thorough, and impartial investigation.”
https://www.va.gov/ORMDI/HPP.asp (emphasis added). The agency specifies
that harassment need not be “accompanied by an EEO basis” to fall within its
HPP. Id.
The Board’s IRA jurisdiction does not extend to claims of reprisal for
opposing practices made unlawful by either Title VII, Edwards v. Department of
Labor, 2022 MSPB 9, ¶¶ 10-23, aff’d, No. 2022-1967, 2023 WL 4398002 (Fed.
Cir. July 7, 2023), or the Rehabilitation Act, McCray, 2023 MSPB 10, ¶¶ 19-22.
Nor does the Board’s jurisdiction extend to claims of reprisal for filing EEO
complaints on one’s own behalf that do not seek to remedy whistleblower
reprisal, id., ¶¶ 23-30; Edwards, 2022 MSPB 9, ¶¶ 24-25. There is some evidence
in the file that the appellant’s March through June 2017 harassment complaints
may have been limited to matters arising under EEO law. IAF, Tab 6 at 40.
However, we find that, at the jurisdictional stage, the appellant has made a
nonfrivolous allegation that he engaged in protected activity under 5 U.S.C.
21
§ 2302(b)(9)(C) through his contact with HPP, and that the parties may develop
this issue on remand. 13
October 11, 2017 disclosure of falsification of Government records
Lastly, the appellant avers that he disclosed the falsification of Government
records. PFR File, Tab 1 at 6. To this end, he cites a page of an October 11,
2017 letter that his attorney sent on his behalf to the agency’s Professional
Standards Board. Id. (citing IAF, Tab 6 at 44, 53). This October 11, 2017 letter
states that, on October 4, 2016, the Human Resources Chief completed an
incident report concerning various improper agency actions; however, 1 week
after she completed this report, the appellant’s supervisor accessed and
“materially altered” the report to (1) change the name of a physician who had
treated the appellant and (2) falsely indicate that it was the appellant who had
changed the name of the physician. IAF, Tab 6 at 53-54. Deliberate falsification
of a Government document is prohibited by 18 U.S.C. § 1001(a)(3). Therefore,
we find that the appellant made nonfrivolous allegations that he made a protected
disclosure under 5 U.S.C. § 2302(b)(8) on October 11, 2017. See DiGiorgio,
84 M.S.P.R. 6, ¶ 14.
The appellant made nonfrivolous allegations of personnel actions.
In addition to the above-discussed disclosures and activities, the appellant
alleged that the agency took several retaliatory personnel actions against him. To
this end, he alleged that the agency wrongfully denied him incentive pay. IAF,
13
In support of his claim that he established jurisdiction over some of his alleged
protected disclosures, the appellant also states as follows in his petition: “[s]ee also the
fact that OAWP launched an investigation into these [disclosed] legal violations.” PFR
File, Tab 1 at 10. “OAWP” is the Department of Veterans Affairs Office of
Accountability and Whistleblower Protection, an agency component that, among other
things, “investigates . . . [a]llegations of whistleblower retaliation against VA
supervisors.” https://www.va.gov/accountability/ (last visited May 15, 2024). The
appellant does not claim that he contacted OAWP, or say when he made such a contact.
Therefore, he has failed to make a nonfrivolous allegation of Board jurisdiction. On
remand, he may seek to establish jurisdiction over his claim, if any, that he engaged in a
protected activity under 5 U.S.C. § 2302(b)(9)(C) by filing a complaint with OAWP.
22
Tab 1 at 52. Specifically, he asserted that, as part of a recruitment incentive, the
agency had agreed to provide him with “an additional 20% of his salary for
[2] years” but never did so, even after a September 2016 audit confirmed that he
was entitled to the payment. Id. As relevant here, the definition of “personnel
action” includes “a decision concerning pay, benefits, or awards.” 5 U.S.C.
§ 2302(a)(2)(A)(ix). Insofar as the appellant asserted that the agency rendered an
unfavorable incentive pay decision, we find that he made nonfrivolous allegations
of a personnel action under this provision.
The appellant alleged that the agency forced him to step down as Chief of
Imaging in October 2016. IAF, Tab 1 at 48. In this regard, he asserted that an
agency physician, acting on behalf of CAVHCS, informed him that he could be a
“tele-radiology provider,” i.e., that he could telework, only if he “step[ped] down
as the Chief of Imaging.” Id. He averred that he accepted the agency’s offer
because it met the needs of his family and he “was essentially forced to take it.”
Id. Included in the definition of “personnel action” is “a detail, transfer, or
reassignment.” 5 U.S.C. § 2302(a)(2)(A)(iv). To the extent the appellant alleged
that he was subjected to a reassignment under 5 U.S.C. § 2302(a)(2)(A)(iv), we
find his allegation unavailing. 14 Indeed, the appellant did not allege that an
agency employee reassigned or threatened to reassign him; rather, he alleged that,
presented with unpleasant options, he elected to relinquish being Chief. IAF,
Tab 1 at 48; see 5 U.S.C. § 2302(b)(8)-(9) (describing it as unlawful for an
employee to “take or fail to take, or threaten to take or fail to take, a personnel
action . . . because of” a protected disclosure or activity). Accordingly, we find
14
As indicated herein, the appellant did not discernably allege that this change in
position resulted in a loss of pay or grade; accordingly, we construe his allegation as
pertaining to a reassignment, as opposed to a demotion. See Onasch v. Department of
Transportation, 63 M.S.P.R. 158, 162 (1994) (employing the definition at 5 C.F.R.
§ 210.102(b)(12), i.e., “a change of an employee, while serving continuously within the
same agency, from one position to another without promotion or demotion,” to
determine whether an appellant was reassigned for purposes of 5 U.S.C. § 2302(a)(2)
(A)(iv)).
23
that the appellant’s assertions do not amount to a nonfrivolous allegation of a
personnel action under 5 U.S.C. § 2302(a)(2)(A)(iv).
Also included in the relevant definition of “personnel action” is “an action
under chapter 75 of this title or other disciplinary or corrective action.”
5 U.S.C. § 2302(a)(2)(A)(iii). To the extent the appellant, through his allegations
regarding stepping down as Chief, sought to raise a constructive demotion claim,
his allegations are unavailing. The Board has held that an alleged constructive
removal may constitute a personnel action for purposes of an IRA appeal.
Colbert v. Department of Veterans Affairs, 121 M.S.P.R. 677, ¶ 12 & n.5 (2014);
see Mintzmyer v. Department of the Interior, 84 F.3d 419, 423 (Fed. Cir. 1996)
(“The legal standard for establishing a constructive discharge is the same
regardless of whether the discharge was allegedly in retaliation for
whistleblowing or for filing a discrimination claim.”). By analogy, a
nonfrivolous allegation of a constructive demotion may be a personnel action
under 5 U.S.C. § 2302(a)(2)(A)(iii). Here, the appellant did not allege that his
reassignment resulted in a reduction in grade or a reduction in pay . IAF, Tab 8
at 34; see Loggins v. U.S. Postal Service, 112 M.S.P.R. 471, ¶ 10 (2009)
(explaining that, for a reassignment to fall within the Board’s chapter 75
jurisdiction, it must result in a reduction in grade or a reduction in pay).
Accordingly, we find that the appellant failed to make a nonfrivolous allegation
of a personnel action regarding his apparent reassignment.
The appellant claimed that his supervisor did not allow him to attend “a
required VA training activity” in February 2017. IAF, Tab 1 at 53, 59. A
decision concerning training may constitute a personnel action under the statute.
See 5 U.S.C. § 2302(a)(2)(A)(ix). However, such a decision qualifies as a
personnel action only if it “may reasonably be expected to lead to an
appointment, promotion, performance evaluation, or other [personnel] action [as
described in 5 U.S.C. § 2302(a)(2)(A).]” Id. Thus, the plain wording of the
statute explicates that not all denials of training opportunities are covered
24
personnel actions. Id.; see Simone v. Department of the Treasury, 105 M.S.P.R.
120, ¶ 9 (2007) (explaining that there must be, at a minimum, a moderate
probability that the training would have resulted in some type of personnel
action); see also Shivaee v. Department of the Navy, 74 M.S.P.R. 383, 387 (1997)
(same). Here, the appellant did not allege that the training would potentially lead
to an appointment, promotion, or a performance evaluation. Further, although he
said the training was “required,” he did not identify the nature of the training or
state that it was necessary for his continued employment. Thus, we find that his
allegation regarding training does not amount to a nonfrivolous allegation of a
personnel action under the statute.
The appellant alleged that he was subjected to both harassment and a
hostile work environment. IAF, Tab 1 at 31. He asserted, among other things,
that the following incidents occurred during his tenure at CAVHCS: (1) the
agency cancelled his telework agreement; (2) his immediate supervisor materially
altered an incident report relating to his job-induced emotional distress;
(3) agency management began documenting his conduct and performance
deficiencies; (4) agency management involuntary referred him to EAP; (5) he was
excluded from discussions and communications on a broad range of topics;
(6) the agency failed to respond to his concerns regarding Dr. A bringing a gun
onto agency premises; (7) the agency removed the Human Resources Chief, who
had reported improper agency actions on his behalf; (8) the agency threatened to
report him as AWOL; (9) the agency deliberately delayed his receipt of wages;
and (10) he was relocated to a small, hot room located 40 miles away from his
official primary duty station and not permitted to communicate with any Imaging
Department employees. Id. at 45-53. As relevant to these allegations, the
definition of “personnel action” includes “any . . . significant change in duties,
responsibilities, or working conditions.” 5 U.S.C. § 2302(a)(2)(A)(xii). The
Board has found that, although “significant change” should be interpreted broadly
to include harassment and discrimination that could have a chilling effect on
25
whistleblowing or otherwise undermine the merit system, only agency actions
that, individually or collectively, have practical consequence for an appellant
constitute a personnel action covered by section 2302(a)(2)(A)(xii). Skarada,
2022 MSPB 17, ¶¶ 15-16. To this end, the agency actions must have practical
and significant effects on the overall nature and quality of the appellant’s
working conditions, duties, or responsibilities. Id. Here, we find that the
appellant’s allegations collectively amount to a nonfrivolous allegation of a
significant change in his working conditions. See id., ¶¶ 17-18 (concluding that
the appellant made a nonfrivolous allegation that the agency had subjected him to
a significant change in duties, responsibilities, or working conditions when he
alleged, among other things, that supervisory personnel both directed him to stop
attending leadership meetings and performing certain extra duties and subjected
him to multiple investigations). 15 Thus, the appellant has made a nonfrivolous
allegation of a personnel action under 5 U.S.C. § 2302(a)(2)(A)(xii).
15
The appellant also alleged that he became the target of an agency investigation on
February 2, 2017, when he was temporarily reassigned. IAF, Tab 1 at 52-53. An
investigation into an allegation of misconduct is not a personnel action per se. Spivey v.
Department of Justice, 2022 MSPB 24, ¶ 10 (citing Sistek v. Department of Veterans
Affairs, 955 F.3d 948, 955 (Fed. Cir. 2020)). It is proper to consider evidence regarding
an investigation if it is so closely related to an alleged personnel action that it would
have been a pretext for gathering information to retaliate for whistleblowing. Id. The
appellant generally alleges that this investigation was accompanied by some of the other
incidents that constitute his harassment claim, such as his assignment to an isolated
room. IAF, Tab 1 at 52-53. However, he has not claimed that it resulted in a personal
action or that the manner in which he or others were questioned during the investigation
significantly changed his duties, responsibilities, or working conditions. Id. In
particular, we note that the appellant’s termination letter references an investigation that
began in or around September 2017, 7 months after the investigation the appellant
raises in his appeal. IAF, Tab 6 at 43. Accordingly, he has not established Board
jurisdiction over the alleged investigation. See Spivey, 2022 MSPB 24, ¶¶ 12-13
(finding that the appellant failed to nonfrivolously allege that an investigation was a
personnel action when it did not result in any proposal of disciplinary or corrective
action, the appellant’s detail, transfer, or reassignment, or any other personnel action
identified in 5 U.S.C. § 2302(a)(2)(A), and the appellant did not allege that the
investigation had any practical or significant effects on the overall nature and quality of
her working conditions, duties, or responsibilities).
26
Lastly, the appellant alleged that, on October 23, 2017, the agency removed
him from his position during his probationary period. IAF, Tab 1 at 56, 62, Tab 6
at 43. The appellant’s termination letter indicates that he was appointed under
the authority of 38 U.S.C. § 7401(1) and subject to a 2-year probationary period.
IAF, Tab 6 at 43. As stated, the definition of “personnel action” includes “an
action under chapter 75 of this title or other disciplinary or corrective action.”
5 U.S.C. § 2302(a)(2)(A)(iii). An agency physician appointed under the authority
of 38 U.S.C. § 7401(1) may bring an IRA appeal alleging that termination was
retaliatory. Hawker v. Department of Veterans Affairs, 123 M.S.P.R. 62, ¶ 2 n.1
(2015). We find that the appellant made a nonfrivolous allegation of a personnel
action under 5 U.S.C. § 2302(a)(2)(A)(iii) regarding his termination.
Accordingly, we find that the appellant made nonfrivolous allegations of
the following three personnel actions: (1) the denial or withholding of his
recruitment incentive pay; (2) a significant change in duties, responsibilities, or
working conditions; and (3) his termination.
The appellant satisfied the contributing factor jurisdictional criterion and is
entitled to a hearing on the merits.
An appellant’s protected activity is a contributing factor if it in any way
affects an agency’s decision to take, or fail to take, a personnel action. See
Dorney v. Department of the Army, 117 M.S.P.R. 480, ¶ 14 (2012). One way to
establish contributing factor is the knowledge/timing test. Wadhwa v.
Department of Veterans Affairs, 110 M.S.P.R. 615, ¶ 12, aff’d per curiam, 353 F.
App’x 435 (Fed. Cir. 2009). Under this test, an appellant can prove the
contributing factor element through evidence that the official taking the personnel
action knew of the appellant’s protected activity or disclosure and that the
personnel action occurred within a period of time such that a reasonable person
could conclude that the activity or disclosure was a contributing factor in the
personnel action. 5 U.S.C. § 1221(e)(1); see Wadhwa, 110 M.S.P.R. 615, ¶ 12.
27
Here, the appellant alleged that agency leadership was collectively aware of
his disclosures and activities. IAF, Tab 1 at 40, 47. To this end, he alleged that
“[t]he entirety of illegal, unethical, and despicable acts committed over a many
month period and continuing to present [was] so extreme it could have only
occur[ed] with the full cooperation of CAVHCS’ leadership.” Id. at 47.
Moreover, it is undisputed that the appellant worked at CAVHCS for less than
2 years. IAF, Tab 6 at 43. Accordingly, we find that the appellant made
nonfrivolous allegations that, if proven, would satisfy the contributing factor
criterion via the knowledge/timing test. 16 See Wadhwa, 110 M.S.P.R. 615, ¶ 12
(explaining that, if an appellant satisfies the knowledge/timing test, the appellant
has demonstrated that a protected disclosure was a contributing factor in a
personnel action); see also Mastrullo v. Department of Labor , 123 M.S.P.R. 110,
¶ 21 (2015) (explaining that the Board has held that a personnel action taken
within approximately 1 to 2 years of a protected disclosure satisfies the
knowledge/timing test).
Accordingly, we find that the appellant made nonfrivolous allegations of
protected disclosures under 5 U.S.C. § 2302(b)(8) and protected activity under
5 U.S.C. § 2302(b)(9)(C), which contributed to the following: (1) the denial or
withholding of recruitment incentive pay; (2) a significant change in duties,
responsibilities, or working conditions; and (3) his termination. Once an
appellant establishes jurisdiction over his IRA appeal, he is entitled to a hearing
on the merits of his claim, which he must prove by preponderant evidence.
16
Some of the allegations giving rise to the appellant’s claim of a significant change in
duties, responsibilities, or working conditions predate some of his alleged disclosures;
thus, the disclosures could not have contributed to those elements of this personnel
action. See El, 123 M.S.P.R. 76, ¶ 10 (explaining that, because the subject personnel
action predated the appellant’s protected disclosure, the disclosure could not have
contributed to the personnel action). For instance, the appellant’s December 5, 2016
Privacy Act-related disclosure could not have contributed to cancellation of his
telework agreement, which occurred in September/October 2016. IAF, Tab 7 at 19,
36-37. At the merits stage of the proceeding, the administrative judge should be
mindful of these timing issues.
28
Salerno v. Department of the Interior, 123 M.S.P.R. 230, ¶ 5 (2016). Thus, we
find that the appellant is entitled to his requested hearing and a decision on these
claims. IAF, Tab 1 at 2. If the appellant proves that a protected disclosure or
activity was a contributing factor in a personnel action taken against him, he is
entitled to corrective action unless the agency proves by clear and convincing
evidence that it would have taken the same personnel actions in the absence of the
protected disclosure. 5 U.S.C. § 1221(e); Salerno, 123 M.S.P.R. 230, ¶ 5.
The administrative judge should permit the parties to engage in discovery on
remand.
The appellant also asserts that the administrative judge “err[ed] by making
fact determinations . . . without the benefit of a developed record where discovery
was allowed.” PFR File, Tab 1 at 16. To the extent the appellant argues that the
administrative judge erred by making a jurisdictional determination before the
parties had engaged in discovery, his argument is unavailing.
An administrative judge has broad discretion in ruling on discovery
matters, and the Board will not find reversible error in such rulings absent an
abuse of discretion. Dieter v. Department of Veterans Affairs, 2022 MSPB 32,
¶ 25. The administrative judge advised the parties that they could initiate
discovery within 30 days of the February 26, 2018 Acknowledgment Order. IAF,
Tab 2 at 3. On the same date, he informed the parties that the record on
jurisdiction would also close in 30 days. IAF, Tab 3 at 8. A party does not need
the Board’s approval to engage in discovery, and the Board generally only
becomes involved in discovery matters if a party files a motion to compel. King
v. Department of the Navy, 98 M.S.P.R. 547, ¶ 10 (2005), aff’d per curiam, 167 F.
App’x 191 (Fed. Cir. 2006); see 5 C.F.R. § 1201.71 (explaining that parties are
expected to start and complete discovery with a minimum of Board intervention).
The appellant does not allege that he initiated a timely discovery request, and he
did not file a motion to extend the discovery period below. Therefore, we discern
no abuse of discretion by the administrative judge.
29
In any event, given that we find jurisdiction and are remanding the appeal,
any inability to conduct discovery on the jurisdictional issue has not harmed the
appellant’s substantive rights. White v. Government Printing Office,
108 M.S.P.R. 355, ¶ 9 (2008) (explaining that the Board will not find reversible
error in an administrative judge’s discovery rulings absent an abuse of discretion
that prejudiced the appellant’s substantive rights). Prior to holding a hearing, the
administrative judge shall afford the parties an opportunity to conduct discovery
and order the parties to submit any other evidence that he deems necessary to
adjudicate the merits of this appeal. See Lewis v. Department of Defense,
123 M.S.P.R. 255, ¶ 14 (2016).
ORDER
For the reasons discussed above, we remand this case to the regional office
for further adjudication in accordance with this Remand Order.
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.