Lisa Magin v. Department of Veterans Affairs ( 2022 )

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
LISA MAGIN, DOCKET NUMBER
Appellant, NY-1221-15-0069-W-1
v.
DEPARTMENT OF VETERANS DATE: December 2, 2022
AFFAIRS,
Agency.
THIS ORDER IS NONPRECEDENTIAL 1
James E. Carney, Buffalo, New York, for the appellant.
Sheila Q. Weimer, Esquire, Buffalo, New York, for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
Tristan L. Leavitt, Member
REMAND ORDER
¶1 The agency has filed a petition for review of the initial decision, which
granted the appellant’s request for corrective action in this individual right of
action (IRA) appeal. For the reasons discussed below, we GRANT the agency’s
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
petition for review, VACATE the initial decision, and REMAND the case to the
field office for further adjudication in accordance with this Remand Order.
DISCUSSION OF ARGUMENTS ON REVIEW
¶2 The appellant was a Medical Supply Technician at a n agency medical center
in Buffalo, New York, working in the Sterile Processing Service (SPS)
department. Initial Appeal File (IAF), Tab 18 at 15, Tab 56, Initial Decision (ID)
at 4. She alleged that, beginning in 2010, she reported to her managers that some
of her coworkers were not performing their work, and that medical equipment
was not being properly cleaned and maintained. E.g., IAF, Tab 3 at 5, Tab 11
at 6, Tab 36, Subtab C. According to the appellant, her coworkers retaliated
against her for making these reports by leaving her to work alone. IAF, Tab 11
at 6. She further alleged that in November 2011, one coworker hit her with his
shoulder, and in January 2012, another coworker swore at her during a workplace
dispute. IAF, Tab 36, Subtab C at 6-7. She stopped reporting to work 3 days
after the latter incident, citing work-related depression, anxiety, and panic
disorder. ID at 6; IAF, Tab 18 at 43-46, 53, 56-67.
¶3 Over the following months, the appellant requested a reasonable
accommodation and filed a claim for workers compensation benefits, both of
which were denied. ID at 6-7; IAF, Tab 18 at 41. She also filed equal
employment opportunity complaints, which appear to have challenged the denial
of her accommodation request and alleged racial harassment and d iscrimination
by her managers and coworkers. IAF, Tab 18 at 26, 27-29.
¶4 During the appellant’s absence, the agency appointed a new director of the
medical center. ID at 6. The new director reassigned and replaced the
appellant’s former supervisor and manager. ID at 7. The appellant’s new acting
manager proposed the appellant’s removal in January 2013 for excessive absence.
IAF, Tab 18 at 33-34. The director sustained the charge and removed the
appellant, effective March 2013. Id. at 22-23.
3
¶5 Following her removal, the appellant filed a whistleblower retaliation
complaint with the Office of Special Counsel (OSC). 2 IAF, Tab 3 at 11-15. After
closing its case, OSC notified the appellant of her Board appeal rights. IAF,
Tab 3 at 5, Tab 11 at 4-7. This IRA appeal followed. IAF, Tab 1.
¶6 The administrative judge held the appellant’s requested hearing and issued
an initial decision, granting corrective action. ID at 2. The agency has filed a
petition for review. Petition for Review (PFR) File, Tabs 1-2. The appellant has
filed a response. 3 PFR File, Tab 5. The agency has replied. PFR File, Tab 4.
The administrative judge must make new jurisdictional findings, specifically
identifying the disclosures and personnel actions that are properly before
the Board.
¶7 The Board has jurisdiction over an IRA appeal if the appellant exhausts her
administrative remedies before OSC and makes nonfrivolous allegations that:
(1) 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 (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). 4 5 U.S.C. §§ 1214(a)(3), 1221(e)(1). The Board has recently
2
In its decision to remove the appellant, the agency provided notice that she could file
an adverse action appeal with the Board or a whistleblower complaint with OSC, and
the preclusive effect of her choice. IAF, Tab 18 at 22-23. The appellant elected to file
a complaint with OSC. IAF, Tab 3 at 11-15.
3
In addition to her response to the agency’s petition for review, the appellant filed a
motion for consequential and other damages. PFR File, Tab 9. The agency has
responded to that motion. PFR File, Tabs 6, 8. In light of our disposition, we will not
address these matters at this time.
4
As detailed above, this case involves alleged disclosures that occurred prior to the
effective date of the Whistleblower Enhancement Protection Act of 2012 (WPEA), and
alleged personnel actions that occurred both before and after that date. See WPEA,
Pub. L. No. 112-199, § 202, 126 Stat. 1465, 1476 (indicating that the WPEA would take
effect 30 days after its enactment date of November 27, 2012). The Board has held
that, when the appellant’s protected disclosure or activity occurred before, but the
relevant personnel actions occurred after the December 27, 2012 effective date of the
WPEA, the WPEA should be applied because the agency knew of the pa rties’ rights,
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clarified the substantive requirements of exhaustion. Chambers v. Department of
Homeland Security, 2022 MSPB 8, ¶¶ 10-11. The requirements are met when an
appellant has provided OSC with sufficient basis to pursue an investigation. Id.¶8 Although the appellant submitted what appears to be her initial complaint to
OSC, it does not detail her alleged disclosures. IAF, Tab 3 at 11-15. The record
does, however, include notes dated April 2010 to January 2012, which the
appellant reportedly provided to OSC in concert with her complaint. IAF,
Tab 36, Subtab C; ID at 5. Many of those notes detail interpersonal conflicts she
had with coworkers in the SPS department, and some suggest that she may have
raised these and other issues with managers. IAF, Tab 36, Subtab C. The record
next includes OSC’s preliminary determination letter, which described the a lleged
disclosures before it as follows:
[Y]ou reported to [the SPS manager] that medical equipment was not
being thoroughly cleaned, employees were not wearing the
appropriate personal protective equipment, dental hand pieces were
not being properly sanitized, crash carts were not being stocked with
respiratory equipment, and other issues.
IAF, Tab 11 at 6. Through her representative, the appellant responded to this
preliminary determination letter from OSC, asserting that her disclosures began in
2010 and were ongoing. Id. at 8. She further alleged that her disclosures were
protected because they identified a “significant adverse effect on public health
and safety.” Id. at 9. In addition, she asserted that while OSC’s letter referred
only to disclosures to the SPS manager, the OSC and an inspector general “were
also made aware.” Id. at 8. OSC’s subsequent closeout letter does not further
describe the appellant’s disclosures, except to conclude that while she did make
disclosures to OSC and an inspector general, those disclosures occurred after her
removal. Id. at 4; IAF, Tab 26 at 45-48.
liabilities, and duties under the WPEA when it took, or failed to take, the personnel
actions. See Pridgen v. Office of Management & Budget, 2022 MSPB 31, ¶¶ 50-51. On
remand, the administrative judge should apply the law as appropriat e to each
personnel action.
5
¶9 In concert with this IRA appeal, the appellant has described her disclosures
in a number of ways. For example, in her initial pleading, she described her
disclosures as ones of “gross safety and health violations having significant effect
on public health and safety.” IAF, Tab 1 at 6. Later, she described her
disclosures as concerning “coworkers’ non-adherence to proper safety and health
procedures.” IAF, Tab 16 at 5. In yet another pleading, in which she responded
to an agency interrogatory asking that she identify and detail each disclosure, the
appellant presented somewhat different allegations, as follows:
Informed [her SPS manager and four other individuals at her medical
center] of problems in SPS such as black employees playing the
radio loudly on a racially biased station and not allowing anyone to
change the channel, loudly goldbricking, talking on the phone while
they were supposed to be working[,] their failure to use personal
protective equipment, improper sterilization techniques, non
attendance [sic] to proper cleaning techniques, leaving the work site
for hours on end, leaving complainant to take up the slack.
IAF, Tab 26 at 11-12, 33-34. 5
¶10 The record is similarly unclear regarding the personnel actions properly
before us. OSC’s preliminary determination and closeout letters identify the
appellant’s removal and an alleged hostile work environment. IAF, Tab 11 at 4-7.
However, the appellant’s interim response also may implicate other matters,
including an alleged failure to accommodate, retain, restore, transfer, or reassign
her. Id. at 15.
¶11 In the pleadings submitted throughout this IRA appeal, the appellant
initially referred to a hostile work environment, removal, and refusal to
accommodate or transfer. IAF, Tab 1 at 6. She later responded to the agency’s
5
It does not appear that the appellant alleged below that she was retaliated against for
protected activity. See Rebstock Consolidation v. Department of Homeland Security,
122 M.S.P.R. 661, ¶¶ 5-7 (2015) (discussing the WPEA’s expansion of the grounds
upon which an IRA appeal may be filed to include protected activity); ID at 10-11.
However, if she raised these issues below or asserts them on remand, the administrative
judge should adjudicate them consistent with this order.
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motion to dismiss by alleging that her disclosures were a contributing factor in
her removal, while also referring to reasonable accommodation, generally. IAF,
Tab 16 at 4-5.
¶12 The administrative judge issued an order finding that the Board had
jurisdiction over the instant appeal. IAF, Tab 9 at 1. However, she did not
identify the alleged disclosures and personnel actions that the appellant proved
she exhausted with OSC. She identified the personnel action at issue as the
appellant’s removal, but did not identify the alleged protected disclosures,
mention any other alleged personnel actions, or make findings as to whether the
appellant’s allegations were nonfrivolous. Id. at 1, 3. The initial decision
provides little clarity on these matters. ID at 10-13. For example, the
administrative judge reversed the appellant’s removal because she found that the
appellant’s absence was caused by her coworkers’ retaliatory harassment. ID
at 10-13 & n.3. Yet, there is no finding that the Board has jurisdiction over this
alleged harassment. ID at 2.
¶13 An initial decision must identify all material issues of fact and law,
summarize the evidence, resolve issues of credibility, and include the
administrative judge’s conclusions of law and her legal reasoning, as well as the
authorities on which that reasoning rests. Spithaler v. Office of Personnel
Management, 1 M.S.P.R. 587, 589 (1980). Because the administrative judge
failed to identify and fully analyze each of the appellant’s alleged disclosures and
personnel actions, we must remand this appeal. See, e.g., Mastrullo v.
Department of Labor, 123 M.S.P.R. 110, ¶ 14 (2015) (remanding for an
administrative judge to identify and analyze each of the appellant’s
alleged disclosures).
¶14 On remand, the administrative judge should issue an order directing the
appellant to identify each disclosure and personnel action at issue in this appeal.
See Keefer v. Department of Agriculture, 92 M.S.P.R. 476, ¶ 18 n.2 (2002)
(cautioning that an appellant who fails to articulate his claims with reasonable
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clarity and precision risks being found to have failed to meet his burden). The
order should direct the appellant to identify the nature of the disclosure or action,
when it occurred, and the individuals involved. The order also should direct the
appellant to prove she has met the requirements of exhaustion. The Board’s
jurisdiction is limited to those issues that have been previously raised with OSC.
Chambers, 2022 MSPB 8, ¶¶ 10-11. However, an appellant may give a more
detailed account of her whistleblowing activities before the Board than she did to
OSC. An appellant may demonstrate exhaustion through her initial OSC
complaint, evidence that she amended the original complaint, including but not
limited to OSC’s determination letter and other letters from OSC referencing any
amended allegations, and the appellant’s written responses to OSC referencing
the amended allegations. An appellant may also establish exhaustion through
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.¶15 In advising the appellant of her burden, the administrative judge should
include the standard for establishing a harassment claim articulated in Skarada v.
Department of Veterans Affairs, 2022 MSPB 17, ¶¶ 14-16. As we explained in
Skarada, only agency actions that, individually or collectively, have practical and
significant effects on the overall nature and quality of an employee’s working
conditions, duties, or responsibilities will be found to constitute a pers onnel
action under the Whistleblower Protection Act. Id.¶16 The administrative judge should then make jurisdictional determinations,
specifically identifying those disclosures and personnel actions that are within the
Board’s jurisdiction. See Keefer, 92 M.S.P.R. 476, ¶ 16 (remanding for further
adjudication when the administrative judge failed to specify which allegations of
protected disclosures and personnel actions he found were nonfrivolous and
whether the appellants exhausted their OSC remedy with respect to those
disclosures and actions).
8
For any alleged disclosures and personnel actions the administrative judge finds
to be within the Board’s jurisdiction, she must provide a complete analysis on
the merits.
¶17 After establishing the Board’s jurisdiction in an IRA appeal, an appellant
bears the burden of establishing a prima facie case of whistleblower retaliation by
proving by preponderant evidence that she made a protected disclosure that was a
contributing factor in a personnel action taken against her. 5 U.S.C. § 1221(e)(1);
Mattil v. Department of State, 118 M.S.P.R. 662, ¶ 11 (2012). If an appellant
makes out a prima facie case, the agency is given an opportunity to prove, by
clear and convincing evidence, that it would have taken the same personnel action
in the absence of the protected disclosure. 5 U.S.C. § 1221(e)(1)-(2); Mattil,
118 M.S.P.R. 662, ¶ 11.
¶18 In determining whether an agency has met this burden, the Board will
consider the following factors (“Carr factors”): (1) the strength of the agency’s
evidence in support of its action; (2) the existence and strength of any motive to
retaliate on the part of the agency officials who were involved in the decision;
and (3) any evidence that the agency takes similar actions against employees who
are not whistleblowers but who are otherwise similarly situated. Soto v.
Department of Veterans Affairs, 2022 MSPB 6, ¶ 11; see Carr v. Social Security
Administration, 185 F.3d 1318, 1323 (Fed. Cir. 1999). 6 The Board does not view
these factors as discrete elements, each of which the a gency must prove by clear
and convincing evidence, but rather weighs these factors together to determine
whether the evidence is clear and convincing as a whole. Alarid v. Department of
the Army, 122 M.S.P.R. 600, ¶ 14 (2015).
6
Historically, the Board has been bound by the precedent of the U.S. Court of Appeals
for the Federal Circuit on this issue. However, as a result of changes initiated by the
Whistleblower Protection Enhancement Act of 2012, Pub. L. No. 112-199, 126 Stat.
1465, extended for 3 years in the All Circuit Review Extension Act, Pub. L.
No. 113-170, 128 Stat. 1894, and eventually made permanent in 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).
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¶19 Although the administrative judge found that the appellant met her burden
of establishing a prima facie case of whistleblower reprisal, generally, she
improperly did so in summary fashion. ID at 10-11. The administrative judge
did not, for example, specify which disclosures were protected, delineate the
category of protected disclosure, or explain how the appellant met her burden.
Id.; see 5 U.S.C. § 2302(b)(8) (providing that a disclosure is protected if an
individual reasonably believes that it evidences a 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). She also failed to
adequately explain the contributing factor element. She concluded that the
appellant proved this element through the knowledge/timing test, at least with
respect to her removal. See ID at 10-11. However, in doing so, she found that
the deciding official knew that the appellant previously had complained to her
SPS manager, generally; the administrative judge did not, for example, specify
whether the deciding official’s knowledge of complaints included knowledge of
protected disclosures. Id.¶20 On remand, if the administrative judge finds jurisdiction, then she must
explain in her remand initial decision how the appellant met, or did not meet , her
burden to prove her prima facie case.
¶21 The administrative judge’s findings similarly lack specificity concerning
the agency’s burden. ID at 11-12. For the first Carr factor, i.e., the strength of
the agency’s evidence in support of its action, the administrative judge seemed to
rely entirely on a finding that, as to the appellant’s removal, the deciding official
altogether failed to consider the connection between her absence and hostility she
reportedly faced from coworkers. ID at 12. She did so without explanation or
citation and despite evidence to the contrary, including the agency’s notes from
the appellant’s oral reply, the appellant’s written reply, and the deciding official’s
detailed penalty analysis. ID at 9; IAF, Tab 18 at 24-28.
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¶22 For the second Carr factor, i.e., the existence and strength of any motive to
retaliate on the part of the agency officials who were involved in the decision, the
administrative judge found that the proposing and deciding officials had no
motive to retaliate because the disclosures did no t negatively reflect on them. ID
at 12. The administrative judge should consider the motive of the agency
generally, not merely the motive of the individual managers. Wilson v
Department of Veterans Affairs, 2022 MSPB 7, ¶ 65 (addressing the second Carr
factor to find that the appellant’s disclosures generally put higher -level
management officials in a critical light by disclosing probl ems for which they
were responsible); Smith v. Department of the Army, 2022 MSPB 4, ¶¶ 28-29
(addressing the second Carr factor to find that the misconduct the appellant
disclosed was egregious and generated negative publicity, thereby reflecting
poorly on the agency’s general institutional interests). Moreover, she did not
fully discuss other considerations, such as whether any other individual that did
have a motive to retaliate influenced their decisions . ID at 12. Nevertheless, the
alleged harassment by the appellant’s coworkers cannot shield her from the
consequences of her misconduct, and the administrative judge erred to the extent
that she inferred retaliatory motive from the agency’s failure to take t his alleged
harassment into account to mitigate the penalty of removal. ID at 11-12; see
Carr, 185 F.3d at 1324, 1326 (declining to consider the allegedly false reports of
misconduct by an employee’s coworkers, who were subjects of her disclosures, in
weighing the motive to retaliate on the part of the officials who removed her).
¶23 For the third Carr factor, i.e., any evidence that the agency takes similar
actions against employees who are not whistleblowers but who are otherwise
similarly situated, the administrative judge recognized that the agency had
removed other employees for excessive absences. ID at 12. However, she seems
to altogether dismiss this evidence, rather than account for any differences,
because those instances did not involve an alleged hostile work environ ment.
Id.; cf. Mattil v. Department of State, 118 M.S.P.R. 662, 675 (2012). To the
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extent that the agency has not accounted for the differences in the kinds and
degrees of conduct and otherwise explained the context of its comparator
evidence, it is taking a risk in failing to provide such information . The Board
has previously adopted the reasoning of the U.S. Court of Appeals for the
Federal Circuit that “the failure to produce such evidence if it exists ‘may be at
the agency’s peril,’ and ‘may well cause the agency to fail to prove its case
overall.’” Smith, 2022 MSPB 4, ¶ 30 (quoting Whitmore, 680 F.3d at 1374).
¶24 On remand, if the administrative judge again finds that the appellant met
her burden of establishing a prima facie case of whistleblower reprisal, the
remand initial decision must provide complete findings regarding the agen cy’s
burden. Spithaler, 1 M.S.P.R. at 589.
ORDER
¶25 For the reasons discussed above, we remand this case to the field office for
further adjudication in accordance with this Remand Order. To the extent
necessary, the administrative judge should permit the parties to supplement the
record with additional argument, evidence, and testimony before issuing a
new decision.
FOR THE BOARD: /s/ for
Jennifer Everling
Acting Clerk of the Board
Washington, D.C.