Kathleen Kaplan v. Department of the Air Force ( 2022 )

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
KATHLEEN MARY KAPLAN, DOCKET NUMBERS
Appellant, DC-1221-15-1065-W-1
DC-1221-16-0503-W-1
v.
DEPARTMENT OF THE AIR FORCE,
Agency. DATE: October 3, 2022
THIS ORDER IS NONPRECEDENTIAL 1
Kathleen Mary Kaplan, Arlington, Virginia, pro se.
Jeremiah Crowley, Joint Base Andrews, Maryland, for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
Tristan L. Leavitt, Member
REMAND ORDER
¶1 The appellant has filed petitions for review of the initial decisions, which
dismissed her individual right of action (IRA) appeals for lack of jurisdiction .
For the reasons discussed below, we GRANT the petitions 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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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 cases to the Washington Regional Office for further adjudication in
accordance with this Remand Order.
BACKGROUND
¶2 The appellant filed two IRA appeals—one on August 17, 2015, Kaplan v.
Department of the Air Force, MSPB Docket No. DC-1221-15-1065-W-1, Initial
Appeal File (1065 IAF), Tab 1, and one on April 14, 2016, Kaplan v. Department
of the Air Force, MSPB Docket No. DC-1221-16-0503-W-1, Initial Appeal File
(0503 IAF), Tab 1. In these appeals, the appellant alleged that the agency
subjected her to several personnel actions, including a reprimand, a suspension, a
negative contribution evaluation, and depriving her of fellowship opportunities, in
retaliation for disclosures concerning improper workplace relationship s, misuse
of Government funds, violation of hiring and appraisal rules, and physical threats
against her. 1065 IAF, Tab 6 at 21-33; 0503 IAF, Tab 7 at 12-30. The
administrative judge joined the appeals for processing. 2 1065 IAF, Tab 19 at 1.
¶3 The administrative judge found that the appellant exhausted her
administrative remedies with the Office of Special Counsel (OSC) and that she
made a nonfrivolous allegation that at least one of her disclosures was protected
and was a contributing factor in at least one personnel a ction. Id. He therefore
found that the appellant established jurisdiction over the joined appeals, and he
scheduled a hearing on the merits. 1065 IAF, Tab 19 at 1, Tab 27. The appeals
then were reassigned to another administrative judge. 1065 IAF, Tab 43.
¶4 Prior to the scheduled hearing, the administrative judge issued two separate
initial decisions dismissing the appeals of lack of jurisdiction. 1065 IAF, Tab 52 ,
Initial Decision (1065 ID); 0503 IAF, Tab 52, Initial Decision (0503 ID). In both
cases, the administrative judge found that the appellant failed to make a
2
Although the order states that the appeals were consolidated, we find that they were
joined. See 5 C.F.R. § 1201.36(a).
3
nonfrivolous allegation that any of her disclosures were protected. 1065 ID
at 7-10; 0503 ID at 7-12.
¶5 The appellant has filed identical petitions for review in both appeals.
Kaplan v. Department of the Air Force, MSPB Docket No. DC-1221-15-1065-
W-1, Petition for Review (1065 PFR) File, Tab 1; Kaplan v. Department of the
Air Force, MSPB Docket No. DC-1221-16-0503-W-1, Petition for Review (0503
PFR) File, Tab 1. She expresses confusion about whether the appeals remain
joined, and she objects to the dismissals for lack of jurisdiction on the basis that
the original administrative judge assigned to these appeals already found that she
met her jurisdictional burden. 1065 PFR File, Tab 1 at 1-12. She also disputes
the substance of the initial decisions. Id. at 12-33. The agency has filed
responses to the petitions for review, 1065 PFR File, Tab 4; 0503 PFR File,
Tab 4, and the appellant has filed replies to the agency’ s responses, 1065 PFR
File, Tab 5; 0503 PFR File, Tab 5. 3
3
After the close of the record on review, the appellant filed motions to disqualify the
administrative judge. 1065 PFR File, Tab 7; 0503 PFR File, Tab 7. We deny the
appellant’s motions as untimely. Under 5 C.F.R. § 1201.42(b), a party must file such a
motion as soon as she has reason to believe that there is a basis for disqualification. In
this case the appellant was aware of the alleged bias, conflict of interest, and improper
comments underlying her motions for disqualification before she filed her petitions for
review, 1065 PFR File, Tab 7 at 17; 0503 PFR File, Tab 7 at 17, yet she waited more
than a year after the close of the record to file her motion s for disqualification. The
delay was apparently due in part to the appellant’s decision to await the outcome of a
complaint that she filed against the administrative judge with the Utah State Bar Office
of Professional Conduct, Utah being the jurisdiction in which the administrative judge
is licensed to practice law. However, the Office of Professional Conduct determined
that there was insufficient evidence to establish that the administrative judge engaged in
misconduct or that he should otherwise have recused himself from the appellant’s case s.
1065 PFR File, Tab 7 at 12-13; 0503 PFR File, Tab 7 at 12-13. Hence, this evidence
provides no support for the appellant’s motions and no basis for the Board to consider
her untimely filings under 5 C.F.R. § 1201.114(k). Moreover, we note that the
appellant waited an additional 7 months to file her motion s after the Office of
Professional Conduct issued its letter.
4
ANALYSIS
¶6 Based on how these appeals were processed below, it is not clear whether
they remain joined for processing. There does not appear to have been an order
to undo the joinder action, yet the appeals were dismissed in separate initial
decisions. To clarify matters at this stage of the proceedings, we JOIN these
appeals. The parties should continue to follow the instructions in the original
joinder order and file all of their submissions under the lead docket number until
further notice. 1065 IAF, Tab 19 at 1.
¶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 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). Linder v. Department of Justice, 122 M.S.P.R. 14, ¶ 6 (2014).
Although the administrative judge originally assigned to these appeals found th at
the appellant met her jurisdictional burden, there is no procedural rule to prevent
that order from being reconsidered and reversed. See, e.g., Van Lancker v.
Department of Justice, 119 M.S.P.R. 514, ¶ 3 (2013); Williams v. Defense
Logistics Agency, 34 M.S.P.R. 54, 57-58 (1987). Nevertheless, for the reasons set
forth below, we find that the appellant has, in fact established jurisdiction over
her appeals.
¶8 Specifically, the initial jurisdictional ruling was that the appellant made a
nonfrivolous allegation that she disclosed an abuse of authority when she reported
to multiple agency officials that her supervisor had an “unprofessional
relationship” with one of his subordinates and was allowing her to misuse travel
funds and work less time than she was reporting on her time cards. 1065 IAF,
Tab 6 at 24-25, Tab 19 at 1. However, the ruling in the initial decision was that
the appellant failed to make a nonfrivolous allegation that she reasonably
5
believed this disclosure evidenced gross mismanagement or a gross waste of
funds. 1065 ID at 8-9; 0503 ID at 8-9. The administrative judge does not appear
to have considered whether the appellant’s disclosure might have evidenced an
abuse of authority, as the first administrative judge found. 1065 ID at 8 -9;
1065 IAF, Tab 19 at 1. Based on our review of the record, we agree with the
initial ruling. An “abuse of authority” is an arbitrary or capricious exercise of
power by a Federal official or employee that adversely affects the rights of any
person or that results in personal gain or advantage to himself or to preferred
other persons. Herman v. Department of Justice, 115 M.S.P.R. 386, ¶ 11 (2011).
We find that the supervisor’s actions as the appellant describes them—
preferential treatment of a subordinate based not on merit but on a personal
relationship—could fall within this definition. 1065 IAF, Tab 6 at 24-25; see
Sirgo v. Department of Justice, 66 M.S.P.R. 261, 267 (1995). We also find that
the appellant made a nonfrivolous allegation that she reasonably beli eved her
disclosure evidenced violations of a law, rule, or regulation concerning time and
attendance reporting and use of Government travel funds.
¶9 We further find that the appellant made a nonfrivolous allegation under the
knowledge/timing test of 5 U.S.C. § 1221(e), that this disclosure was a
contributing factor in a formal reprimand—a personnel action under 5 U.S.C.
§ 2302(a)(2)(A)(iii). See Rice v. Department of Agriculture, 97 M.S.P.R. 501,
¶ 15 (2004). Specifically, the appellant alleged that she made this disclosure to
her supervisor on August 7, 2012, and that her supervisor issued her a reprimand
on October 23, 2013. 1065 IAF, Tab 6 at 23, 25, Tab 7 at 81; see Peterson v.
Department of Veterans Affairs, 116 M.S.P.R. 113, ¶ 16 (2011) (finding that
personnel actions taken within 1 to 2 years of the protected disclosure satisfy the
timing prong of the knowledge/timing test). Finally, we find that the appellant
exhausted her administrative remedies on this issue before OSC. 1065 IAF, Tab 1
at 56-57, Tab 7 at 8, 12. We therefore agree with the initial ruling that the
appellant has established jurisdiction over her appeals. IAF, Tab 19 at 1.
6
¶10 The appellant has raised numerous other disclosures in these appeals—as
many as 18 others—although there appears to be some overlap among the claims
raised in the two appeals. 1065 IAF, Tab 6 at 22-33; 0503 IAF, Tab 7 at 12-30.
The administrative judge found that the appellant failed to make a nonfrivolous
allegation that any of these other disclosures were protected because they did not
concern gross mismanagement or a gross waste of funds. 4 1065 ID at 7-9;
0503 ID at 8-9. Again, the administrative judge does not appear to have
considered whether any of these other disclosures might have evidenced any other
category of danger or wrongdoing under 5 U.S.C. § 2302(b)(8). On remand, the
administrative judge should conduct an individualized analysis, as appropriate,
for each of these other disclosures to determine whether any of them might be
protected as evidencing a violation of law, rule, or regulation, an abuse of
authority, or a substantial and specific danger to public health and safety. See
Horton v. Department of Veterans Affairs, 106 M.S.P.R. 234, ¶ 16 n.* (2007)
(determining that the Board does not require, as a basis for its jurisdiction, that an
appellant in an IRA appeal correctly label a category of wrongdoing under the
Whistleblower Protection Act (WPA)). Furthermore, to the extent that any of the
appellant’s disclosures were to the agency’s Inspector General or to OSC, the
administrative judge should consider whether they are protected under 5 U.S.C.
§ 2302(b)(9)(C).
¶11 The administrative judge made some more specific findings regarding two
of the appellant’s disclosures. Specifically, he found that the appellant’s
disclosure concerning the legality of an agency performance appraisal process
was not protected under the WPA because she made it in the context of judicial
review proceedings of an Equal Employment Opportunity Commission decision.
4
The administrative judge relied, in part, on case law stating that gross mismanagement
must include an element of blatancy. 1065 ID at 8; 0503 ID at 8. This case law has
been explicitly overruled. White v. Department of the Air Force, 391 F.3d 1377, 1383
(Fed. Cir. 2004).
7
0503 IAF, Tab 7 at 23; 0503 ID at 10-11. He also found that the appellant failed
to make a nonfrivolous allegation that her disclosure concerning the conduct of an
agency attorney was not protected under the WPA because she made it in the
context of equal employment opportunity proceedings. 0503 IAF, Tab 7 at 29;
0503 ID at 11. We agree. See Serrao v. Merit Systems Protection Board, 95 F.3d
1569, 1576 (1996); Fisher v. Department of Defense, 52 M.S.P.R. 470, 473
(1992). We therefore affirm the administrative judge’s finding that the appellant
failed to make a nonfrivolous allegation that either of these two disclosures were
protected. 5
ORDER
¶12 For the reasons discussed above, we remand these cases to the Washington
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.
5
The administrative judge also found that the appellant failed to make a nonfrivolous
allegation that either of these two disclosures wer e a contributing factor in any
personnel action. 0503 ID at 11. In light of our finding that these disclosures were not
protected, we decline to reach the issue of contributing factor.