Samar Azawi v. Department of Veterans Affairs ( 2023 )

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
SAMAR AZAWI, DOCKET NUMBER
Appellant, SF-1221-16-0543-W-1
v.
DEPARTMENT OF VETERANS DATE: February 3, 2023
AFFAIRS,
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Samar Azawi, Newport Beach, California, pro se.
Joseph Manuel Briones, Los Angeles, California, for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
Tristan L. Leavitt, Member
FINAL ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
dismissed her individual right of action (IRA) appeal for lack of jurisdiction.
Generally, we grant petitions such as this one only in the following
circumstances: the initial decision contains erroneous findings of material fact;
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
the initial decision is based on an erroneous interpretation of statute or regulation
or the erroneous application of the law to the facts of the case; the administrative
judge’s rulings during either the course of the appeal or the initial decision
were not consistent with required procedures or involved an abuse of discretion,
and the resulting error affected the outcome of the case; or new and material
evidence or legal argument is available that, despite the petitioner’s due
diligence, was not available when the record closed. Title 5 of the Code of
Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). After fully
considering the filings in this appeal, we conclude that the petitioner has not
established any basis under section 1201.115 for granting the petition for review.
Therefore, we DENY the petition for review. Except as expressly MODIFIED by
this Final Order to also find that the appellant failed to nonfrivolously allege that
her disclosures to the Office of Inspector General (OIG), her complaint to the
Office of Special Counsel (OSC), and her report to the Secretary of the agency
(Secretary) were contributing factors in any personnel action, we AFFIRM the
initial decision.
¶2 The appellant was employed as a supervisory physician at the agency’s
Long Beach, California facility. Initial Appeal File (IAF), Tab 8 at 39. She filed
a Board appeal stating that, based upon false accusations, the agency reduced her
in pay, grade, or band, denied her a within-grade increase, temporarily reassigned
her, placed her into an absence without leave status, reprimanded her, and
downgraded her annual appraisal. IAF, Tab 1 at 2. She attached a closeout letter
from OSC that detailed her claims that she reported patient safety practices,
delays in patient care, clinical and nonclinical staff shortages, inappropriate use
of funds, prohibited personnel practices, harassment, unfair treatment, and
hostility. Id. at 8. The letter also mentioned her allegation of retaliation for
filing complaints with OSC, OIG, and the Secretary. Id. Further, the letter
detailed the appellant’s assertions that the following actions were taken against
her: (1) She was subjected to multiple investigations; (2) her colleagues made
3
false allegations against her; (3) her workload was increased; (4) her request to
hire additional staff was denied; (5) her supervisory and administrative duties as
the Chief of the Radiation-Oncology Department were removed; (6) she was
issued a Letter of Reprimand; (7) her last two performance evaluations were
lowered; (8) she was temporarily reassigned; and (9) her request for clinical
privileges was denied. Id.¶3 The administrative judge issued an order explaining that the Board
might not have jurisdiction over this IRA appeal, informing the appellant of her
jurisdictional burden, ordering her to submit a response regarding jurisdiction,
and providing the agency an opportunity to respond. IAF, Tab 3. The appellant
submitted a response, as did the agency. IAF, Tabs 6, 8. Subsequently, the
administrative judge issued an initial decision dismissing the appeal for lack of
jurisdiction because he found that the appellant failed to nonfrivolously allege
that she made a protected disclosure. IAF, Tab 9, Initial Decision (ID). The
appellant submitted a petition for review, and the agency responded in opposition
to the appellant’s petition. Petition for Review (PFR) Fil e, Tabs 3, 5.
¶4 On review, the appellant has furnished evidence that she asserts amounts to
a nonfrivolous allegation that she made a protected disclosure. PFR File, Tab 3.
This evidence consists of the appellant’s correspondence from the period between
June 2008 and May 2015, including correspondence with OSC, OIG, the
Secretary, and Congress. Id. at 6-32. Under 5 C.F.R. § 1201.115(d), the Board
generally will not consider evidence submitted for the first time with the petition
for review absent a showing that it was unavailable before the record was closed
despite the party’s due diligence. Avansino v. U.S. Postal Service,
3 M.S.P.R. 211, 214 (1980). The appellant has not explained why this evidence,
all dated before she filed the instant appeal, was unavailable befor e the record
closed below. Accordingly, we will not consider it. See Thompson v. Department
of the Army, 122 M.S.P.R. 372, ¶ 16 (2015).
4
¶5 The Board has jurisdiction over an IRA appeal if the appellant exhausts her
administrative remedies before OSC and makes nonfrivolous allegations that she
made a protected disclosure described under 5 U.S.C. § 2302(b)(8) or engaged in
protected activity described under 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D),
and the disclosure or protected activity was a co ntributing factor in the agency’s
decision to take or fail to take a personnel action. Chambers v. Department of
Homeland Security, 2022 MSPB 8, ¶ 14; see also Hessami v. Merit Systems
Protection Board, 979 F.3d 1362, 1367 (Fed. Cir. 2020).. The Board’s
regulations define a nonfrivolous allegation as an assertion that, if proven, could
establish the matter at issue. 5 C.F.R. § 1201.4(s). 2 As the U.S. Court of Appeals
for the Federal Circuit recently put it: “[T]he question of whether the appellant
has non-frivolously alleged protected disclosures [or activities] that contributed
to a personnel action must be determined based on whether the employee alleged
sufficient factual matter, accepted as true, to state a claim that is plausible on its
face.” Hessami, 979 F.3d at 1364, 1369. 3 We find that the appellant has provided
no reason to disturb the administrative judge’s well-reasoned finding that she
failed to nonfrivolously allege that she made a protected disclosure. ID at 6-9;
5 C.F.R. § 1201.4(s).
2
The regulation further provides that an allegation generally will be considered
nonfrivolous when, under oath or penalty of perjury, an individual makes an allegation
that: (1) is more than conclusory; (2) is plausible on its face; and (3) is material to the
legal issues in the appeal. Id. Pro forma allegations are insufficient to meet the
nonfrivolous standard. Clark v. U.S. Postal Service, 123 M.S.P.R. 466, ¶ 6 (2016),
aff’d, 679 F. App’x 1006 (Fed. Cir. 2017), and overruled on other grounds by Cronin v.
U.S. Postal Service, 2022 MSPB 13, ¶ 20 n.11.
3
Historically, the Board has been bound by the precedent of the U.S. Court of Appeals
for the Federal Circuit on these types of whistleblower issues. However, pu rsuant to
the All Circuit Review Act, Pub. L. No. 115-195, 132 Stat. 1510, appellants may file
petitions for judicial review of Board decisions in whistleblower reprisal cases with any
circuit court of appeals of competent jurisdiction. See 5 U.S.C. § 7703(b)(1)(B).
Therefore, we must consider these issues with the view that the appellant may seek
review of this decision before any appropriate court of appeal.
5
¶6 We agree with the administrative judge that the appellant’s policy
disagreements about the agency’s failing to provide staffing and not reducing her
workload following a colleague’s retirement do not constitute a nonfrivolous
allegation of a protected disclosure. ID at 6-9; IAF, Tabs 1, 6. The
administrative judge correctly found that the appellant’s assertions—challenging
the agency’s decisions, such as not supplementing physician staffing,
misallocating support staff, and not reclassifying her patients, which required her
to carry a greater workload—did not amount to a nonfrivolous allegation of a
violation of a law, rule, or regulation. The appellant did not identify any specific
law, rule, or regulation to support her claim, and none is clearly implicated by the
disclosure, if indeed she made such a disclosure. See Langer v. Department of
the Treasury, 265 F.3d 1259, 1266 (Fed. Cir. 2001). Likewise, the administrative
judge properly determined that a reasonable person with k nowledge of the facts
known to and readily ascertainable by the appellant would not conclude that she
was disclosing such a violation. ID at 7; see Rebstock Consolidation v.
Department of Homeland Security, 122 M.S.P.R. 661, ¶ 12 (2015) (holding that
vague, conclusory, and unsupported allegations do not satisfy the Board’s
nonfrivolous pleading standard); Sinko v. Department of Agriculture,
102 M.S.P.R. 116, ¶ 17 (2006). The Board has found that when, as here, an
alleged whistleblower is expressing disagreement with fairly debatable policy
decisions, or decisions plainly within managerial discretion, her disclosures
do not fall within those defined as protected under 5 U.S.C. § 2302(b)(8). Cf.
O’Donnell v. Department of Agriculture, 120 M.S.P.R. 94, ¶ 14 (2013) (holding
that the appellant’s alleged protected disclosure was “exactly the type of fairly
debatable policy dispute that does not constitute whistleblowing”), aff’d,
561 F.App’x 926 (Fed. Cir. 2014).
¶7 Similarly, we agree with the administrative judge that the appellant’s
challenges regarding personnel and management decisions, including her
assertion that her heavy workload would lead to exhaustion, thereby endangering
6
patient safety, do not rise to the level of a nonfrivolous allegation of an abuse of
authority or gross mismanagement. ID at 7-8; see Webb v. Department of the
Interior, 122 M.S.P.R. 248, ¶ 10 n.3 (2015) (stating that an employee discloses an
abuse of authority when he alleges that a Federal official has arbitrarily or
capriciously exercised power that has adversely affected the rights of any person
or has resulted in personal gain or advantage to himself or to preferred other
persons); Francis v. Department of the Air Force, 120 M.S.P.R. 138, ¶ 12 (2013)
(stating that gross mismanagement means a management action or inaction that
creates a substantial risk of significant adverse impact upon the agency’s ability
to accomplish its mission and finding that the appellant’s mere disagreement with
job-related issues concerning training deficiencies did not constitute a
nonfrivolous allegation of gross mismanagement).
¶8 We also agree that the appellant did not nonfrivolously allege that she
disclosed a gross waste of funds because her argument that the agency sh ould
have hired additional part-time or fee-for-service physicians does not address
more than a debatable expenditure. ID at 8-9; see MaGowan v. Environmental
Protection Agency, 119 M.S.P.R. 9, ¶ 7 (2012) (stating that a gross waste of funds
is a more than debatable expenditure that is significantly out of proportion to the
benefit reasonably expected to accrue to the Government); IAF, Tab 6 at 11-15.
Regarding the last category of protected disclosures, the administrative judge
properly found that the appellant did not nonfrivolously allege that she disclosed
a substantial and specific danger to public health or safety. ID at 8. The
appellant asserted that, after her colleague’s retirement, her increased workload
and requirement to be available for a greater amount of time could have placed
her patients in danger. However, she also stated that the clinic was able to
properly serve patients because of her excellent performance. IAF, Tab 6
at 16-20. Thus, given the appellant’s contradictory statements, we find that this
assertion is too speculative to constitute a nonfrivolous allegation of a protected
7
disclosure. See Chambers v. Department of the Interior, 515 F.3d 1362, 1369
(Fed. Cir. 2008).
¶9 Next, we agree with the administrative judge that the appellant did not
nonfrivolously allege that when she filed her equal employment opportunity
(EEO) complaints, she participated in protected activity over which MSPB has
jurisdiction. ID at 6; IAF, Tab 8 at 19-22. Pursuant to 5 U.S.C. § 1221(a), MSPB
only has IRA jurisdiction over equal employment opportunity (EEO) activity
covered by 5 U.S.C. § 2302(b)(9)(A)(i), not (b)(9)(A)(ii). Under 5 U.S.C.
§ 2302(b)(9)(A)(i), it is a prohibited personnel practice to “take or fail to take, or
threaten to take or fail to take, any personnel action against any employee . . .
because of . . . the exercise of any appeal, complaint, or grievance right granted
by any law, rule, or regulation . . . with regard to remedying a violation of
[section 2302(b)(8)].” Section 2302(b)(9)(A)(ii) applies to the exercise of such
rights other than with regard to remedying a violation of (b)(8). Thus, MSPB
only has jurisdiction over an appellant’s EEO complaint in an IRA when the
complaint seeks to remedy whistleblower reprisal under 5 U.S.C. § 2302(b)(8).
Bishop v. Department of Agriculture, 2022 MSPB 28, ¶ 16; Edwards v.
Department of Labor, 2022 MSPB 9, ¶ 10.
¶10 Here, the EEO complaint contained in the record details the appellant’s
allegations that she was subjected to a hostile work environment in reprisal for
her prior EEO activity. IAF, Tab 8 at 17-22. Because this complaint is limited to
the appellant’s claims of EEO reprisal and she has not otherwise described the
details of her EEO activity, the administrative judge correctly determined that the
appellant’s EEO complaints were not covered by 5 U.S.C. § 2302(b)(9)(A)(i).
See Bishop, 2022 MSPB 28, ¶ 16; Mudd v. Department of Veterans Affairs,
120 M.S.P.R. 365, ¶¶ 6-7 (2013).
¶11 Finally, we modify the initial decision to find that, in addition to failing to
nonfrivolously allege that she made a protected disclosure, the appellant did not
nonfrivolously allege that she participated in protected activity that was a
8
contributing factor to any personnel action. The appellant alleged that the agency
retaliated against her for filing complaints with OSC, OIG, and the Secretary.
IAF, Tab 1 at 8. Assuming that these activities are protected under 5 U.S.C.
§ 2302(b)(9)(A), and (C), the appellant must nonfrivolously allege that they were
one factor that tended to affect an agency’s personnel action in any way. Salerno
v. Department of the Interior, 123 M.S.P.R. 230, ¶ 13 (2016). One way to
establish this criterion is the knowledge/timing test, under which an employee
may nonfrivolously allege that the activity was a contributing factor in a
personnel action through circumstantial evidence, such as evidence that the
official who took the personnel action knew of the activity and that the personnel
action occurred within a period of time such that a reasonable person could
conclude that the activity was a contributing factor in the personnel action. Id.Here, the appellant has not submitted evidence in support of an assertion that
agency officials knew about her alleged protected activities. She has not
otherwise presented evidence that her activities were a contributing factor in the
agency’s decision to take a personnel action against her. See Stile v. Department
of Homeland Security, 116 M.S.P.R. 263, ¶ 24 (2011) (stating that the
knowledge/timing test is not the only way for an appellant to satisfy the
contributing factor standard). Accordingly, we find that the appellant has not
nonfrivolously alleged that her protected activities were a contributing factor in
the agency’s decision to take a personnel action against her. 4
NOTICE OF APPEAL RIGHTS 5
The initial decision, as supplemented by this Final Order, constitutes the
Board’s final decision in this matter. 5 C.F.R. § 1201.113. You may obtain
4
We have reviewed the relevant legislation enacted during the pendency of this appeal
and have concluded that it does not affect the outcome of the appeal.
5
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.
9
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 applicabl e to your
claims and carefully follow all filing time limits and requirements. Failure to file
within the applicable time limit may result in the dismissal of your case by your
chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general. As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
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 partic ular
10
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. ____ , 137 S. Ct. 1975 (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.
11
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
12
of appeals of competent jurisdiction. 6 The court of appeals must receive your
petition for review within 60 days of the date of issuance of this decision.
5 U.S.C. § 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
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 Fed eral
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.
6
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.
13
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx.
FOR THE BOARD: /s/ for
Jennifer Everling
Acting Clerk of the Board
Washington, D.C.