Terri v. Strickland-Donald v. Department of the Army ( 2015 )

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
TERRI V. STRICKLAND-DONALD, DOCKET NUMBER
Appellant, DE-1221-15-0132-W-1
v.
DEPARTMENT OF THE ARMY, DATE: December 31, 2015
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Janice L. Jackson, Leavenworth, Kansas, for the appellant.
Anne E. Hinkebein, Esquire, Fort Leavenworth, Kansas, for the agency.
BEFORE
Susan Tsui Grundmann, Chairman
Mark A. Robbins, Member
FINAL ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
denied her request for corrective action in this individual right of action (IRA)
appeal under the Whistleblower Protection Enhancement Act. Generally, we
grant petitions such as this one only when: the initial decision contains erroneous
findings of material fact; the initial decision is based on an erroneous
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
interpretation of statute or regulation 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. See
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, and based on the
following points and authorities, 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 and AFFIRM the initial decision,
which is now the Board’s final decision. 5 C.F.R. § 1201.113(b).
¶2 The appellant filed an IRA appeal with the Board regarding the agency’s
failure to reclassify her GS-11 Audiovisual Production Specialist position in the
Visual Information Support Center (VISC) at Camp Humphreys, South Korea, to
the GS-12 level and promote her accordingly. Initial Appeal File (IAF), Tab 1.
She requested a hearing. Id. at 3.
¶3 The appellant alleged that, sometime in late 2009 or early 2010, her
first-line supervisor, D.M., advised her that he believed her position description
needed to be updated to reflect additional duties she was performing, which
merited a GS-12 classification. IAF, Tab 7 at 10, Tab 27 at 12. In May 2010, a
Human Resources (HR) Specialist, D.G., in the Civilian Personnel Advisory
Center (CPAC) informed D.M. that the position did not meet the requirements to
be classified as a GS-12. IAF, Tab 7 at 74-75. In July 2010, the appellant
provided additional information in support of the reclassification request, and
D.G. later turned that information over to another HR Specialist, C.H., for further
review of the classification decision. Id. at 76-77, 79, 83. In August 2010, C.H.
advised the appellant that he agreed with D.G.’s determination that her position
did not warrant classification at the GS-12 level. Id. at 76-77.
 3
¶4 In September 2010, D.M. contacted another HR Specialist, J.G., again
attempting to have the appellant’s position description updated and her position
reclassified. Id. at 95-96. J.G. conducted a desk audit. See id. at 9, 12; see also
IAF, Tab 17 at 61.
¶5 J.G. left her position with CPAC by December 2010. IAF, Tab 1 at 23,
Tab 7 at 12; see April 9, 2015 Hearing Transcript (April 9 HT) at 121:9-14
(testimony of J.G.). D.M. did not supervise the appellant after November 2011,
and he also left Federal service in 2011. IAF, Tab 7 at 13, Tab 28 at 6; April 9
HT at 66:9 (testimony of D.M.). The appellant did not receive a promotion
before D.M. and J.G. departed. IAF, Tab 27 at 15, 23. The appellant asserted,
however, that J.G. approved the reclassification of her position to GS-12 on
December 8, 2010, as a result of the desk audit, and theorized that D.M.
subsequently “communicated somehow with the CPAC office to hold off on [her]
promotion” in retaliation for her protected disclosures. IAF, Tab 7 at 8-9, 12; see
IAF, Tab 17 at 59-60, Tab 27 at 15.
¶6 Having not received the promotion to which she believed she was entitled
as a result of the purported reclassification of her position to GS-12, the appellant
continued to raise the matter with various agency officials. Specifically, on
March 7, 2013, she forwarded her senior rater, M.C., 2 emails regarding the efforts
in 2010 to reclassify her position and promote her. IAF, Tab 7 at 82-83, 88-96.
According to the appellant, on March 11, 2013, M.C. instructed her to forward the
emails to her first-level supervisor, E.J., 3 so that E.J. could look into the issue.
IAF, Tab 27 at 21. She notified E.J. of the issue on March 11 and 12, 2013, and
E.J. stated that he would inquire with CPAC and let her know his findings. IAF,
2
M.C. was the appellant’s senior rater from February 2013 until July 2014. Compare
IAF, Tab 11 at 2, with IAF, Tab 12 at 5.
3
E.J. was the appellant’s first-line supervisor from February 2013 until April 2013.
IAF, Tab 44 at 10; see April 10, 2015 Hearing Transcript at 127:9-11 (testimony
of E.J.).
4
Tab 18 at 104-10. The appellant alleged that also on March 12, 2013, E.J. stated
that he had changed his mind and would not inquire with CPAC. IAF, Tab 27
at 21. She believes that M.C. and E.J. also obstructed the implementation of the
previously-approved reclassification. IAF, Tab 11 at 5.
¶7 Effective July 13, 2014, the appellant was placed through the Priority
Placement Program in the GS-9 position of Audiovisual Production Specialist at
Fort Leavenworth, Kansas, with pay retention. IAF, Tab 8 at 48, 50-58. She
believes that her first-line supervisor, D.C., and second-line supervisor, J.W., at
Fort Leavenworth also were involved in obstructing the implementation of the
previously-approved reclassification, and that their goal “was to help the
management officials at [Camp Humphreys] hide [her] GS-12 promotion.”
Compare IAF, Tab 11 at 5, with IAF, Tab 12 at 8-9. Ultimately, the appellant
never received the promotion she desired. IAF, Tab 27 at 15, 23.
¶8 The administrative judge found jurisdiction over the appellant’s claim that
the agency failed to reclassify her position and promote her to the GS-12 level
from October 2010 to present, in retaliation for the following protected
disclosures: (1) on March 2, 2011, the appellant emailed D.M. stating that two
employees complained to her that an email D.M. had sent them used a
“demeaning and intimidating” tone, and that she had personally experienced
D.M.’s “harsh and demeaning” communication style, which “created a hostile
working environment,” IAF, Tab 14 at 56; (2) in March 2013, the appellant
reported to the Inspector General (IG) that D.M. had abused his authority by
being abusive towards employees; 4 (3) in November 2011, the appellant reported
to D.M., M.C., and others, that the resource manager for Camp Humphreys was
improperly diverting funds from VISC to the rest of Camp Humphreys, IAF,
4
The appellant filed an equal employment opportunity (EEO) complaint in April 2011,
wherein she alleged that D.M. “yelled at and demeaned” her on several occasions and
that she had seen him behave similarly towards other employees. IAF, Tab 7 at 112-14.
It appears that she informed the IG of these allegations by submitting a copy of her
EEO complaint with her IG complaint. Id. at 7, 197.
5
Tab 7 at 125-42; (4) sometime after November 2012, 5 the appellant reported to
her then first-line supervisor, the Security Operations Manager, and the Chief of
Staff that two directorates were illegally meshed; and (5) in February 2013, the
appellant reported to M.C., E.J., and others, that Wi-Fi equipment was illegally
installed on Government computers at Camp Humphreys, IAF, Tab 7 at 189,
Tab 27 at 127-28; IAF, Tab 15. The administrative judge further found that the
appellant attributed retaliatory motive to D.M., E.J., M.C., D.C., and J.W. IAF,
Tab 11 at 4.
¶9 After holding a 4-day hearing, the administrative judge issued an initial
decision denying the appellant’s request for corrective action, finding that she
failed to make a prima facie case of whistleblower reprisal. IAF, Tab 45, Initial
Decision (ID). Specifically, he found that: (1) all critical agency decisions
relating to the appellant’s efforts to reclassify her position and receive a
promotion to GS-12 occurred in 2010, before her alleged protected disclosures;
(2) events occurring after 2010 to which the appellant cited were not concrete
personnel actions that could form the basis of a whistleblower retaliation claim;
and (3) therefore, the appellant did not establish by preponderant evidence that
her disclosures were a contributing factor in any agency decision related to not
promoting her to GS-12. ID.
¶10 The appellant has filed a petition for review. Petition for Review (PFR)
File, Tab 1. She disputes that she failed to establish a prima facie case of
whistleblower reprisal. 6 Id. She argues that the administrative judge applied an
5
It is unclear exactly when the appellant made this disclosure, but it appears to have
occurred in February or March 2013. IAF, Tab 14 at 26-31. The memorandum
directing the allegedly illegal meshing of two directorates was issued on November 14,
2012. IAF, Tab 7 at 148.
6
As to the administrative judge’s finding that the events occurring after 2010 did not
constitute concrete personnel actions, the appellant states that she was subjected to
retaliation when the agency: (1) forced her to work under an incorrect position
description from 2008 to 2014; (2) did not issue her a performance appraisal in 2011 or
2014; (3) did not compensate her for working overtime from 2009 through 2012;
6
incorrect jurisdictional standard. 7 Id. She also argues that the administrative
judge erred in denying several of her witnesses, and she raises numerous
arguments regarding the administrative judge’s conduct of the hearing and his
evaluation of various witnesses’ testimony. 8 Id. The agency filed a response in
opposition, to which the appellant replied. PFR File, Tabs 4-5.
¶11 To make a prima facie case of whistleblower reprisal, an appellant must
prove by preponderant evidence that she made a protected disclosure that was a
contributing factor in a personnel action taken against her. Lu v. Department of
(4) issued a memorandum in May 2011, stating that she was relieved of certain duties,
IAF, Tab 7 at 116, but nonetheless continued requiring her to perform those duties;
(5) removed her as the Visual Information Manager/Supervisor in November 2012,
while she was out on extended leave; and (6) reassigned her from April 2013 to
July 2014, and from October 2014 to present. PFR File, Tab 1 at 21. The appellant
plainly stated below that “the sole retaliatory personnel action at issue” in this appeal is
the agency’s “failure to officially grade [her] as a GS-12.” IAF, Tab 14 at 6. Thus, she
is precluded from now raising additional personnel actions. See Banks v. Department of
the Air Force, 4 M.S.P.R. 268, 271 (1980) (finding that the Board will generally not
consider an argument raised for the first time in a petition for review absent a showing
that it is based on new and material evidence not previously available despite the
party’s due diligence).
7
We find that the administrative judge relied upon, and informed the appellant of, the
correct jurisdictional standard. IAF, Tab 3, Tab 15 at 1; see Carney v. Department of
Veterans Affairs, 121 M.S.P.R. 446, ¶¶ 4-7 (2014); Rusin v. Department of the
Treasury, 92 M.S.P.R. 298, ¶ 12 (2002). The appellant’s argument to the contrary is
without merit. It appears that she may be conflating the jurisdictional standard with the
standard for establishing a prima facie case of whistleblower reprisal.
8
The appellant also contends that: (1) her position description was incorrect and the
agency was required by statute to correct it; (2) the agency failed to comply with the
requirement to ensure that she was working under an accurate position description;
(3) because the agency failed to correct her position description, she was underpaid at
the wrong grade level for several years; and (4) the HR Specialists involved in the
reclassification efforts did not possess the skills needed to accurately classify her
position. PFR File, Tab 1 at 10-11, 22-23. To the extent that the appellant is
suggesting that the administrative judge erred in failing to address the merits of her
arguments that her position was improperly classified and that she was entitled to a
promotion, we discern no error. In an IRA appeal, the Board lacks authority to
adjudicate the merits of the underlying personnel action. Lu v. Department of
Homeland Security, 122 M.S.P.R. 335, ¶ 7 (2015). Rather, its jurisdiction is limited to
adjudicating the whistleblower allegations. Id.
7
Homeland Security, 122 M.S.P.R.335, ¶ 7 (2015). 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). For the following reasons, we agree with
the administrative judge that the appellant failed to meet this burden.
¶12 The appellant presented no evidence that it was determined in late 2010 that
her position was properly classified at the GS-12 level and, accordingly, there
also is no support for her assertion that various management officials have acted
over several years to thwart the processing of a reclassification that never
occurred. 9 To the contrary, the record evidence belies the appellant’s assertions.
By August 2010, both D.G. and C.H. had determined that her position was
correctly classified as a GS-11. IAF, Tab 7 at 74-77. As to the appellant’s claim
that J.G. approved the reclassification, the record does not contain the results of
the desk audit, any document indicating that a promotion to GS-12 was requested
or effected, an updated position description reflecting a GS-12 classification, or
any other documentation that would support this claim.
¶13 The appellant relies on two Standard Form (SF) 50s documenting her
conversion to a career-conditional appointment effective November 10, 2010, 10
which are virtually identical, except that one has an approval date of
November 10, 2010, whereas the other has an approval date of December 8, 2010.
PFR File, Tab 1 at 12-13; see IAF, Tab 8 at 111, Tab 33 at 15. She apparently
9
In Boughton v. Department of Agriculture, 94 M.S.P.R. 347, ¶¶ 2, 8, 10-11 (2003), the
Board found the appellant’s assertion that the agency failed to upgrade his position
following a desk audit that recommended such action constituted a nonfrivolous
allegation of a personnel action. We find Boughton distinguishable from the instant
case because, here, there is no evidence that the desk audit resulted in a
recommendation to upgrade her position to GS-12.
10
The appellant received a Veterans’ Recruitment Appointment to her Audiovisual
Production Specialist position on November 10, 2008. IAF, Tab 8 at 116. Employees
appointed under this authority must be converted to a career-conditional or career
appointment after satisfactorily completing 2 years of substantially continuous service.
See 5 C.F.R. § 307.103.
8
believes that the conversion action was approved on November 10, 2010, and that
the latter SF-50 is fraudulent and was actually for her GS-12 promotion. PFR
File, Tab 1 at 13-14. However, again, the record evidence belies this claim.
¶14 Neither SF-50 documents that a promotion was effected or cancelled. Data
from the agency’s Request for Personnel Action tracking system indicates that the
agency requested a retroactive conversion action on November 28, 2010, and J.G.
approved it on December 8, 2010. IAF, Tab 32 at 8-12. J.G. testified that the
December 8 action was a conversion action and denied that it was for a
promotion. April 9 HT at 138:16-141:5 (testimony of J.G.). Consistent with this
evidence, an agency Employee Relations Specialist, M.S., testified that the
agency’s internal electronic personnel program maintains SF-50s bearing the
actual approval date of an action but, when transferring documents electronically
to an employee’s Official Personnel Folder, the internal program automatically
changes the approval date to the effective date if the approval date did not
precede the effective date. April 10, 2015 Hearing Transcript at 45:20-47:10
(testimony of M.S.). The administrative judge found M.S. credible on this point.
ID at 13; see Haebe v. Department of Justice, 288 F.3d 1288, 1301 (Fed. Cir.
2002) (finding that 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). In sum, we find that the appellant’s speculation that one SF-50
contains fraudulent information, which is unsupported by any evidence, does not
constitute preponderant evidence.
¶15 Assuming arguendo that the position was reclassified, the appellant did not
allege that any of the HR Specialists involved in processing the reclassification
request had any knowledge of her protected disclosures. We recognize that even
if the individual responsible for the alleged personnel action does not have actual
knowledge of the protected disclosure, an appellant may establish that the
9
protected disclosure was a contributing factor in the personnel action if she can
show that an individual with actual knowledge of that disclosure influenced the
individual accused of taking the retaliatory action. Dorney v. Department of the
Army, 117 M.S.P.R. 480, ¶ 11 (2012). However, the appellant’s unsupported
speculation that D.M. “somehow” thwarted the alleged position upgrade, and that
various management officials continued to cover up the upgrade for years
thereafter, also does not constitute preponderant evidence.
¶16 In any event, the protected disclosures alleged in this appeal all occurred in
March 2011 or thereafter. 11 Thus, the agency’s failure to upgrade the appellant’s
position and promote her beginning in December 2010, cannot have been due to
those disclosures. 12 See Johnson v. Department of Justice, 104 M.S.P.R. 624,
¶ 26 (2007) (determining that disclosures made after the personnel actions at
issue cannot have been contributing factors in those personnel actions and do not
support a nonfrivolous allegation that the disclosures were contributing factors in
the personnel actions). Notably, following J.G.’s alleged processing of the GS-12
promotion after the desk audit, which the appellant asserts occurred on
December 8, 2010, IAF, Tab 17 at 59-60, the appellant continued to be a GS-11
for nearly 3 months before the first protected disclosure alleged in this appeal. 13
11
The appellant asserts on review that her protected disclosures began in
September 2010. PFR File, Tab 1 at 11-12. She asserted below that the retaliation
began in October 2010. IAF, Tab 27 at 14. The administrative judge considered the
pre-March 2011 disclosures, but found that the appellant did not properly exhaust them
with the Office of Special Counsel. IAF, Tab 11 at 3, Tab 15 at 1-3. On review, the
appellant does not identify any error with this jurisdictional finding. PFR File, Tab 1.
Notably, she also failed to file any disagreement with the administrative judge’s
jurisdictional findings below, despite being afforded the opportunity to do so. IAF,
Tab 15 at 4. We therefore discern no error.
12
The record is unclear regarding whether any relevant agency employees were aware
of the appellant’s 2013 IG complaint and, if so, how and when they became aware of it.
13
The appellant claimed that J.G. stated it would take 30 to 60 days for her promotion
to GS-12 to take effect. IAF, Tab 7 at 12. If this were true, then the action should have
been effective by February 8, 2011, but it never happened. Considering that the first
protected disclosure at issue in this appeal did not occur until March 2011, we find that
10
That the agency stood firm in its decision following the appellant’s protected
disclosures is not evidence of whistleblower reprisal. Cf. Dean v. Department of
the Army, 57 M.S.P.R. 296, 303 (1993) (persisting in discipline decided upon
before learning of protected disclosures does not, by itself, transform the
discipline into a prohibited personnel practice).
¶17 If the appellant is alleging that the agency ignored her repeated requests to
reassess the classification of her position in retaliation for her protected
disclosures, we find that this does not constitute a personnel action. See Mattil v.
Department of State, 118 M.S.P.R. 662, ¶ 20 (2012) (explaining that the failure to
provide a valid position description is not a personnel action); see also Askew v.
Department of the Army, 88 M.S.P.R. 674, ¶ 24 (2001) (finding that the alleged
denial of a desk audit is not a personnel action).
¶18 Based on the foregoing, we affirm the denial of the appellant’s request for
corrective action because she failed to make a prima facie case of whistleblower
reprisal. As such, we need not reach her remaining arguments.
NOTICE TO THE APPELLANT REGARDING
YOUR FURTHER REVIEW RIGHTS
You have the right to request review of this final decision by the U.S. Court
of Appeals for the Federal Circuit.
The court must receive your request for review no later than 60 calendar
days after the date of this order. See 5 U.S.C. § 7703(b)(1)(A) (as rev. eff.
Dec. 27, 2012). If you choose to file, be very careful to file on time. The court
has held that normally it does not have the authority to waive this statutory
deadline and that filings that do not comply with the deadline must be dismissed.
See Pinat v. Office of Personnel Management, 931 F.2d 1544 (Fed. Cir. 1991).
this further belies the appellant’s claim that D.M. somehow interfered with the
processing of that action because of her whistleblowing activity.
11
If you want to request review of the Board’s decision concerning your
claims of prohibited personnel practices under 5 U.S.C. § 2302(b)(8),
(b)(9)(A)(i), (b)(9)(B), (b)(9)(C), or (b)(9)(D), but you do not want to challenge
the Board’s disposition of any other claims of prohibited personnel practices, you
may request review of this final decision by the U.S. Court of Appeals for the
Federal Circuit or any court of appeals of competent jurisdiction. The court of
appeals must receive your petition for review within 60 days after the date of this
order. See 5 U.S.C. § 7703(b)(1)(B) (as rev. eff. Dec. 27, 2012). If you choose
to file, be very careful to file on time. You may choose to request review of the
Board’s decision in the U.S. Court of Appeals for the Federal Circuit or any other
court of appeals of competent jurisdiction, but not both. Once you choose to seek
review in one court of appeals, you may be precluded from seeking review in any
other court.
If you need further information about your right to appeal this decision to
court, you should refer to the Federal law that gives you this right. It is found in
title 5 of the U.S. Code, section 7703 (5 U.S.C. § 7703) (as rev. eff. Dec. 27,
2012). You may read this law as well as other sections of the U.S. Code, at our
website, http://www.mspb.gov/appeals/uscode.htm. 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, and 11. Additional information about
other courts of appeals can be found at their respective websites, which can be
accessed through http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx.
If you are interested in securing pro bono representation for your 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 Merit Systems Protection Board neither endorses the services
12
provided by any attorney nor warrants that any attorney will accept representation
in a given case.
FOR THE BOARD: ______________________________
William D. Spencer
Clerk of the Board
Washington, D.C.