Opinion

Kuauhtemoc Rodriguez v. Department of Veterans Affairs

Court: Merit Systems Protection Board
Filed: May 30, 2024
Status: Unpublished
Cited by: 0 cases
Authority: More cited than 16.2%

The opinion

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

KUAUHTEMOC I. RODRIGUEZ, DOCKET NUMBER

Appellant, DE-1221-19-0016-W-3

DEPARTMENT OF VETERANS DATE: May 30, 2024

AFFAIRS,

Agency.

THIS FINAL ORDER IS NONPRECEDENTIAL 1

Tom Devine , Esquire, Jack Kolar , Esquire, Elizabeth Paukstis , Esquire, and

Don Aplin , Esquire, Washington, D.C., for the appellant.

Alfred Steinmetz , Esquire, Washington, D.C., for the agency.

Maxine N. Romero , Esquire, Phoenix, Arizona, for the agency.

BEFORE

Cathy A. Harris, Chairman

Raymond A. Limon, Vice Chairman

FINAL ORDER

¶1 The appellant has filed a petition for review and the agency has filed a cross

petition for review of the initial decision, which granted in part and denied in part

the appellant’s request for corrective action in this individual right of action

(IRA) appeal. The appellant initially presented approximately 40 alleged

A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

whistleblowing disclosures or activities spanning July 2014 to April 2017, and

even more alleged retaliatory personnel actions over roughly the same period for

consideration. Rodriguez v. Department of Veterans Affairs, MSPB Docket No.

DE-1221-19-0016-W-3, Refiled Appeal File, Tab 96, Initial Decision (ID) at 5-9.

He eventually withdrew most of the alleged personnel actions to narrow the issues

for adjudication. ID at 19-20. Of those which remained, the administrative judge

found that the appellant met his jurisdictional burden for 36 alleged disclosures or

activities, ID at 12-16, and 13 alleged personnel actions, ID at 18-20.

¶2 On the merits, the administrative judge found that the appellant met his

burden of proving that 32 of his disclosures or activities were protected,

ID at 54-56, and that his whistleblowing was a contributing factor in 5 personnel

actions, ID at 121-22. The administrative judge then found that the agency

proved that it would have taken some but not all those same personnel actions in

the absence of the appellant’s whistleblowing. In particular, he found that the

agency did not meet its burden regarding a “fully successful” rating in the

appellant’s fiscal year (FY) 2016 performance evaluation, ID at 126-29, and

another “fully successful” rating in the appellant’s FY 2017 performance

evaluation, ID at 129-33. Conversely, the administrative judge found that the

agency did meet its burden regarding an April 2016 denial of temporary

promotion, ID at 133-40, an April 2016 denial of detail assignment, ID at 140-47,

and a March 2017 proposed reprimand, ID at 147-53.

¶3 On petition for review, the appellant argues that the agency did not meet its

burden of rebutting his prima facie case of whistleblower reprisal regarding the

April 2016 denial of temporary promotion, the April 2016 denial of detail

assignment, Rodriguez v. Department of Veterans Affairs, MSPB Docket

No. DE-1221-19-0016-W-3, Petition for Review (PFR) File, Tab 3 at 8-27, or the

March 2017 proposed reprimand, id. at 27-28. 2 He also argues that the Board

Many of the appellant’s arguments on review are based on assertions that the

administrative judge ignored or overlooked important evidence. E.g., PFR File, Tab 3

at 10, 12, 15. But an administrative judge’s failure to mention all of the evidence of

should remand his claim of a retaliatory hostile work environment for further

adjudication. Id. at 6-7 n.1 (citing ID at 105-07). The appellant does not

challenge any of the administrative judge’s other findings about jurisdiction or

the merits.

¶4 In its cross petition, the agency argues that the appellant’s IRA appeal was

untimely filed and that the administrative judge erred by applying equitable

tolling. PFR File, Tab 8 at 5-6. The agency does not otherwise challenge the

initial decision or the administrative judge’s partial grant of corrective action.

¶5 Generally, we grant petitions such as these 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

record does not mean that he did not consider it in reaching his 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). Many other arguments concern the motive to

retaliate for his protected disclosures and activities. E.g., PFR File, Tab 3 at 17-28. On

that point, the U.S. Court of Appeals for the Federal Circuit (Federal Circuit) has

cautioned against taking too narrow a view of the motive to retaliate for whistleblowing

and has explained that “[t]hose responsible for the agency’s performance overall may

well be motivated to retaliate even if they are not directly implicated by the disclosures,

and even if they do not know the whistleblower personally, as the criticism reflects on

them in their capacities as managers and employees.” Whitmore v. Department of

Labor, 680 F.3d 1353, 1370 (Fed. Cir. 2012). Similarly, the court has instructed the

Board not to limit its consideration of a motive to retaliate to the appellant’s

supervisors, but to examine whether a retaliatory motive could be imputed more broadly

to other officials or entities involved in the decision and that, while there may not be a

personal motive to retaliate, it is error not to consider whether the agency decision

makers had a “professional retaliatory motive” because the appellant’s disclosures

“implicated the capabilities, performance, and veracity of [agency] managers and

employees.” Robinson v. Department of Veterans Affairs, 923 F.3d 1004, 1019 (Fed.

Cir. 2019); Miller v. Department of Justice, 842 F.3d 1252, 1261-62 (Fed. Cir. 2016).

However, although the Federal Circuit has directed the Board to consider the possibility

of a professional retaliatory motive, it has not mandated that we find such motive in

every whistleblower appeal. For instance, in Robinson, after taking into consideration

the administrative judge’s demeanor-based credibility determinations, the court agreed

with the administrative judge that there was no retaliatory motive, either professional or

personal, and found that this factor weighed in favor of the agency. Robinson, 923 F.3d

at 1019-20. Having reviewed all the appellant’s arguments, along with the evidence he

has referenced throughout his petition, we are not persuaded that the administrative

judge ignored evidence or otherwise erred in his analysis.

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 neither party has

established any basis under section 1201.115 for granting the petition or cross

petition for review. Therefore, we DENY the petition for review and the cross

petition for review and AFFIRM the initial decision, which is now the Board’s

final decision. 5 C.F.R. § 1201.113(b).

ORDER

¶6 Consistent with the administrative judge’s order, we ORDER the agency to

CANCEL the appellant’s FY 2016 and FY 2017 performance evaluations and

provide the appellant with new FY 2016 and FY 2017 performance evaluations by

individuals who are untainted by retaliatory bias, based solely on his performance

during those fiscal years, and adhering to the agency’s performance management

policies, which were in effect at the relevant time. Further, in the event either or

both the appellant’s ratings are increased, we ORDER the agency to provide him

with any associated bonus and any other award, monetary or otherwise, he would

have been entitled to receive. See Kerr v. National Endowment for the Arts ,

726 F.2d 730 (Fed. Cir. 1984). The agency must complete these actions no later

than 20 days after the date of this decision.

¶7 We further ORDER the agency to tell the appellant promptly in writing

when it believes it has fully carried out the Board’s Order and of the actions it has

taken to carry out the Board’s Order. The appellant, if not notified, should ask

the agency about its progress. See 5 C.F.R. § 1201.181(b).

¶8 No later than 30 days after the agency tells the appellant that it has fully

carried out the Board’s Order, the appellant may file a petition for enforcement

with the office that issued the initial decision on this appeal if the appellant

believes that the agency did not fully carry out the Board’s Order. The petition

should contain specific reasons why the appellant believes that the agency has not

fully carried out the Board’s Order, and should include the dates and results of

any communications with the agency. 5 C.F.R. § 1201.182(a).

NOTICE TO THE APPELLANT REGARDING

YOUR RIGHT TO REQUEST

ATTORNEY FEES AND COSTS

You may be entitled to be paid by the agency for your reasonable attorney

fees and costs. To be paid, you must meet the requirements set forth at Title 5 of

the United States Code (5 U.S.C.), sections 7701(g), 1221(g), or 1214(g). The

regulations may be found at 5 C.F.R. §§ 1201.201, 1201.202, and 1201.203. If

you believe you meet these requirements, you must file a motion for attorney fees

and costs WITHIN 60 CALENDAR DAYS OF THE DATE OF THIS DECISION.

You must file your motion for attorney fees and costs with the office that issued

the initial decision on your appeal.

NOTICE TO THE APPELLANT REGARDING

YOUR RIGHT TO REQUEST CONSEQUENTIAL AND/OR

COMPENSATORY DAMAGES

You may be entitled to be paid by the agency for your consequential

damages, including medical costs incurred, travel expenses, and any other

reasonable and foreseeable consequential damages. To be paid, you must meet

the requirements set out at 5 U.S.C. §§ 1214(g) or 1221(g). The regulations may

be found at 5 C.F.R. §§ 1201.201, 1201.202 and 1201.204.

In addition, the Whistleblower Protection Enhancement Act of 2012

authorized the award of compensatory damages including interest, reasonable

expert witness fees, and costs, 5 U.S.C. § 1214(g)(2), which you may be entitled

to receive.

If you believe you are entitled to these damages, you must file a motion for

consequential damages and/or compensatory damages WITHIN 60 CALENDAR

DAYS OF THE DATE OF THIS DECISION. You must file your motion with the

office that issued the initial decision on your appeal.

NOTICE TO THE PARTIES

A copy of the decision will be referred to the Special Counsel “to

investigate and take appropriate action under [5 U.S.C.] section 1215,” based on

the determination that “there is reason to believe that a current employee may

have committed a prohibited personnel practice” under 5 U.S.C. § 2302(b)(8) or

section 2302(b)(9)(A)(i), (B), (C), or (D). 5 U.S.C. § 1221(f)(3). Please note that

while any Special Counsel investigation related to this decision is pending, “no

disciplinary action shall be taken against any employee for any alleged prohibited

activity under investigation or for any related activity without the approval of the

Special Counsel.” 5 U.S.C. § 1214(f).

NOTICE OF APPEAL RIGHTS 3

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

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.

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:

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).

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