Sheryl Chapman v. Department of the Army ( 2023 )

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
SHERYL EVON CHAPMAN, DOCKET NUMBER
Appellant, DC-1221-17-0376-W-1
v.
DEPARTMENT OF THE ARMY, DATE: January 18, 2023
Agency.
THIS ORDER IS NONPRECEDENTIAL 1
Sheryl Evon Chapman, Jacksonville, Florida, pro se.
Judith A. Fishel, APO, APO/FPO Europe, for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
Tristan L. Leavitt, Member
REMAND 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. For
the reasons discussed below, we GRANT the appellant’s petition for review and
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
REMAND the case to the regional office for further adjudication in accordance
with this Remand Order.
DISCUSSION OF ARGUMENTS ON REVIEW
¶2 The appellant previously held a GS-13 Human Resources Specialist position
with the agency in Wiesbaden, Germany. Initial Appeal File (IAF), Tab 12 at 12.
In August 2016, the agency proposed her removal for (1) declining a Priority
Placement Program offer and (2) failure to abide by the terms of a rotational
agreement. Id. at 12-14. After receiving her response, the deciding official
upheld the removal, effective October 2016. Id. at 16-18.
¶3 On March 12, 2017, the appellant filed the instant appeal. IAF, Tab 1. The
administrative judge construed it as an IRA appeal and provided the
corresponding jurisdictional burden. IAF, Tab 3. He ordered the appellant to file
a statement, accompanied by evidence, listing the following: (1) her protected
disclosures or activities; (2) the dates she made the disclosures or engaged in the
activities; (3) the individuals to whom she made any disclosures; (4) why her
belief in the truth of any disclosures was reasonable; (5) the actions the agency
took or failed to take, or threatened to take or fail to take, against her because of
her disclosures or activities; (6) why she believed a disclosure or activity, or a
perception of such a disclosure or activity, was a contributing factor to the
actions; and (7) the date of her complaint to the Office of Special Counsel (OSC)
and the date that it notified her it was terminating its investigation of her
complaint, or if she had not received such notice, evidence that 120 days have
passed since she filed her complaint with OSC. Id. at 7.
¶4 Pursuant to the jurisdictional order, the appellant had until March 24, 2017,
to respond. Id. at 1, 7. Within that deadline, the appellant submitted several
pieces of correspondence with OSC. IAF, Tabs 7, 9-10. Several days after her
jurisdictional deadline, the appellant filed a narrative jurisdictional argument.
IAF, Tab 11. The agency submitted a timely response. Compare IAF, Tab 3 at 7,
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with IAF, Tab 5 at 3, Tab 8 at 1, Tab 12. Despite the administrative judge’s
instruction that the record on jurisdiction was then closed, IAF, Tab 3 at 7 -8, the
appellant filed a reply, IAF, Tab 13, which the administrative judge did not
consider, IAF, Tab 14, Initial Decision (ID) at 3.
¶5 Without holding the requested hearing, the administrative judge dismissed
the appellant’s IRA appeal. ID. The appellant has filed a petition for review.
Petition for Review (PFR) File, Tab 1. The agency has filed a response. PFR
File, Tab 3.
¶6 To establish jurisdiction in an IRA appeal, an appellant must show by
preponderant evidence that she exhausted her remedies before OSC, and make
nonfrivolous allegations that (1) she made a disclosure described under 5 U.S.C.
§ 2302(b)(8) or engaged in a 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). 2 Corthell v. Department of
Homeland Security, 123 M.S.P.R. 417, ¶ 8 (2016). A nonfrivolous allegation is
one that (1) is more than conclusory, (2) is plausible on its face, and (3) is
material to the legal issues in the appeal. 5 C.F.R. § 1201.4(s). In cases
involving multiple alleged protected disclosures and per sonnel actions, an
appellant establishes Board jurisdiction over her IRA appeal when she makes a
nonfrivolous allegation that at least one alleged personnel action was taken in
2
In the administrative judge’s jurisdictional order, he provided the complete
jurisdictional standard for an IRA appeal such as this, discussing both
section 2302(b)(8) and section 2302(b)(9). IAF, Tab 3 at 2-3. However, in the initial
decision, the administrative judge’s explanation of the Board’s jurisdictional limitations
referred only to disclosures protected under section 2302(b)(8), without acknowledging
that activities protected by section 2302(b)(9)(A)(i), (B), (C), or (D) may also fall
within the Board’s purview. ID at 3. On remand, the administrative judge should
ensure that he utilizes the complete jurisdictional standard, concerning both disclosures
protected by section 2302(b)(8) and activities protected by section 2302(b)(9)(A)(i),
(B), (C), or (D).
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reprisal for at least one alleged protected disclosure. Baldwin v. Department of
Veterans Affairs, 113 M.S.P.R. 469, ¶ 6 (2010).
The administrative judge improperly dismissed the appellant’s IRA appeal.
¶7 Although the administrative judge described the initial decision as a
dismissal for lack of jurisdiction, we find that the decision is, in essence, a
dismissal for failure to prosecute. The administrative judge found that the
appellant proved the exhaustion requirement of 5 U.S.C. § 1214(a)(3) but failed
to meet the remaining portion of her jurisdictional burden —nonfrivolous
allegations of protected disclosures or activities that were a contributing fa ctor in
the decision to take or fail to take a personnel action. ID at 3 -7. However, in
reaching that conclusion, the administrative judge explained that the appellant
failed to comply with the specific requirements of his order, listed above, and
instead presented only vague and conclusory assertions, unaccompanied by
affidavit or other evidence. ID at 6-7; supra ¶ 3. More notably, the
administrative judge relied only on the appellant’s deficient narrative response,
without considering any of the allegations described in her correspondence with
OSC. ID at 6-7.
¶8 The administrative judge was correct to note that the appellant did not
comply with the instructions in his jurisdictional order. Compare IAF, Tab 3 at 7,
with IAF, Tab 11 at 4-5. The appellant’s narrative response essentially recites the
jurisdictional standard for this IRA appeal and asserts that she met that standard,
without complying with the administrative judge’s specific instructions or
providing any substantive explanation. IAF, Tab 11 at 4-5. However, that single
failure does not warrant a dismissal for failure to prosecute. Compare Toombs v.
Department of the Army, 69 M.S.P.R. 78, 81 (1995) (recognizing that an
administrative judge should not dismiss for failure to prosecute based on an
appellant’s failure to comply with a single order), with Heckman v. Department of
the Interior, 106 M.S.P.R. 210, ¶ 16 (2007) (affirming a dismissal for failure to
prosecute when the appellant failed to comply with multiple orders and warnings
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over a period of more than 2 months). Therefore, we find that it was improper for
the administrative judge to dismiss the appellant’s appeal, without considering
her OSC submissions to determine whether they satisfied her jurisdictional
burden. See Spithaler v. Office of Personnel Management, 1 M.S.P.R. 587, 589
(1980) (recognizing that an initial decision must, inter alia, summarize the
evidence and identify all material issues of fact and law).
On remand, the appellant must comply with the administrative judge’s order and
meet her jurisdictional burden.
¶9 OSC’s January 2017 closeout letter provides the most succinct explanation
of the allegations before it. IAF, Tab 7 at 2-3. The closeout letter described the
appellant’s alleged protected disclosures or activities as follows:
[Y]ou alleged retaliation for disclosing that your supervisors were
violating agency regulations concerning the approval and
documentation of overseas tour extensions, that the Deputy Chief of
Staff did not have the authority to approve exceptions to bypass
selections of candidates entitled to military spouse preference . . .,
and filing complaints with the Office of Inspector G eneral . . . . In
addition, you declined to provide false data on overseas tour
extensions to command leadership and develop a Staff Action
Summary . . . for approval of overseas tour extensions that was
inconsistent with controlling Department of Defense . . . regulations.
Id. at 2. OSC’s closeout described the alleged retaliatory activities as follows:
You asserted that your duties, responsibilities, and working
conditions were changed in retaliation. For example, you were
assigned GS-7 grade level duties, you were denied computer access
and attendance at meetings, you experienced issues with your work
station, and several of your emails were deleted. You further alleged
that you were not approved to attend training, your overseas tour was
not extended, you were not selected for a Human Resources . . .
Specialist position, your request for Voluntary Early Retirement
Authority . . . /Voluntary Separation Incentive Payment . . . was
denied, and you were removed from your position.
Id.¶10 While the aforementioned explanation provides some pertinent details, it
does not include others. For example, it does not clearly explain to whom the
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appellant made her disclosures, who was aware of those disclosures or other
activities that might be protected, and whether or to what extent those individuals
may have been involved in the alleged retaliatory personnel actions. Although we
reviewed the documents submitted by the appellant in search of those details, that
correspondence is difficult to follow. For example, the appellant repeatedly
refers to individuals and agency components by abbreviation, such as “G1” and
“HDQA,” without clearly identifying who or what they are or how they may have
contributed to any alleged personnel actions. E.g., IAF, Tab 10 at 6. Moreover,
it appears that the appellant may have intended to pursue only some of the
allegations presented to OSC in the instant appeal. For example, in her OSC
complaint, the appellant appears to have attributed the alleged retaliation to six
agency officials, including her immediate supervisor and the proposing official to
her removal. IAF, Tab 9 at 7, Tab 12 at 12-14. By contrast, in her petition for
review, the appellant appears to attribute the alleged retaliation to only one
individual, whose role in any alleged personnel action is less clear. PFR File,
Tab 1 at 4.
¶11 Because the appellant failed to comply with the adminis trative judge’s
order, it remains unclear what allegations the appellant intends to pursue in the
instant IRA appeal and whether those allegations are within the Board’s
jurisdiction. IAF, Tab 3 at 7. On remand, the administrative judge should
provide the appellant with a second opportunity to comply with his order and
satisfy her jurisdictional burden. The order should warn of the potential
consequences for failing to comply. See generally Morris v. Department of the
Navy, 123 M.S.P.R. 662, ¶ 11 (2016) (discussing the Board’s regulations
pertaining to a party’s failure to comply with an order or failure to prosecute).
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ORDER
¶12 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: /s/ for
Jennifer Everling
Acting Clerk of the Board
Washington, D.C.