Alesia Boelter v. Department of Veterans Affairs ( 2022 )

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
ALESIA D. BOELTER, DOCKET NUMBER
Appellant, AT-1221-21-0211-W-1
v.
DEPARTMENT OF VETERANS DATE: April 5, 2022
AFFAIRS,
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Alesia D. Boelter, Harlem, Georgia, pro se.
Karla Brown Dolby, Decatur, Georgia, for the agency.
BEFORE
Raymond A. Limon, Vice Chair
Tristan L. Leavitt, Member
FINAL ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
denied her request for corrective action in her individual right of action (IRA)
appeal on the grounds that she failed to show that she engaged in protected
activity or made protected disclosures, or that her purported disclosures or
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
activity were contributing factors in her probationary termination. Generally, we
grant petitions such as this one only in the following circumstances: the initial
decision contains erroneous findings of material fact; 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 to supplement the
administrative judge’s analysis of the appellant’s claim that she was retaliated
against for refusing to sign hiring forms, we AFFIRM the initial decision.
DISCUSSION OF ARGUMENTS ON REVIEW
¶2 The agency terminated the appellant on May 21, 2020, from her Human
Resources Assistant position during her probationar y period due to her failure to
comprehend the complexity of her work, which resulted in delays in the hiring
and onboarding of new employees. 2 Initial Appeal File (IAF), Tab 7 at 12-15.
Subsequent to her termination, the appellant filed a complaint with the Office of
Special Counsel (OSC) alleging that the agency terminated her, among other
2
The appellant’s petition for review of the initial decision in Boelter v. Department of
Veterans Affairs, MSPB Docket No. AT-315H-20-0568-I-1, which dismissed the
appellant’s appeal of her probationary termination for lack of jurisdiction, will be
addressed in a separate decision.
3
retaliatory acts, 3 for refusing to “sign off” on hiring forms that she had not
verified, namely form I-9 (U.S. Citizenship and Immigration Services
Employment Eligibility Verification) and Standard Form (SF) 61 (Appointment
Affidavits). IAF, Tab 1 at 19-21. She also argued that she was retaliated against
for refusing to attend employee luncheons during the COVID-19 pandemic and
for disclosing that employees failed to adhere to social distancing rules. Id.
at 24-25. On November 30, 2020, OSC issued a close-out letter ending its
inquiry into the appellant’s complaint and notifying the appellant that she may
file an IRA appeal with the Board. Id. at 11.
¶3 On January 28, 2021, the appellant filed the instant appeal, attaching a copy
of her OSC complaint and the November 30, 2020 OSC close-out letter. Id.
at 1-30. On her appeal form, the appellant reiterated that her termination was the
result of whistleblower retaliation, and indicated that she did not want a hearing. 4
Id. at 3-5, 7.
¶4 The administrative judge denied the appellant’s request for corrective
action, finding that, although she established jurisdiction over her appeal, she
failed to show that she refused to sign hiring forms that she had not verified or
that she disclosed concerns regarding failure to follow social distancing
3
The appellant also alleged she was harassed, denied training, and that her computer
work was sabotaged. IAF, Tab 1 at 20. Because the administrative judge correctly
found that the appellant failed to show that she engaged in protecte d activity or made
protected disclosures, IAF, Tab 20, Initial Decision (ID) at 6, it is unnecessary to
determine whether these actions constituted personnel actions under the whistleblower
protection statutes.
4
The appellant also claimed in her OSC complaint and during her Board appeal that the
agency committed prohibited discrimination by failing to provide her a reasonable
accommodation. IAF, Tab 1 at 22-23, Tab 18 at 10-12. Because the appellant’s
discrimination complaints do not constitute protected disclosures or activity falling
within the Board’s IRA jurisdiction, the Board lacks authority to review them. Young v.
Merit Systems Protection Board, 961 F.3d 1323, 1327 (Fed. Cir. 2020) (“[I]n an IRA
appeal to the Board, the Board’s review is limited to the merits of allegations of
violations of the Whistleblower Protection Act. Discrimination claims may not be
raised in that context.”).
4
requirements, and therefore failed to prove by preponderant evidence that she
made protected disclosures or engaged in protected act ivity. IAF, Tab 20, Initial
Decision (ID) at 2, 4-6. The administrative judge then found, applying the
knowledge/timing test, that even if the appellant did make protected disclosures
or engage in protected activity, she failed to show that such disclosu res or
activity contributed to the alleged personnel actions because she did not show
that the responsible officials knew of the disclosures or activity. ID at 7-8.
¶5 The appellant filed a petition for review in which she, among other
arguments, repeats her retaliation claim, argues that the administrative judge
erred in finding that the employee luncheons she refused to attend were not
mandatory and that form I-9 did not require a human resources representative’s
signature, and suggests that a timely request for an unidentified extension
was not granted. 5 Petition for Review (PFR) File, Tab 3. 6 She also notes that a
February 2020 email in the record below demonstrates her refusal to sign off on
hiring forms. Id. at 4. The agency filed a response. PFR File, Tab 4.
5
Nothing in the record shows that the administrative judge denied any timely extension
request by the appellant. Though on April 8, 2021, the appellant requested a delay of
the close of record conference set for April 14, 2021, she was ultimately able to attend.
IAF, Tab 10 at 2, Tab 11 at 1. On April 14, 2021, the administrative judge granted the
appellant’s request for a 30-day suspension of case processing to give her additional
time to prepare, allowed the appellant to reopen discovery d uring the suspension period,
and postponed the close of record date from April 23 to June 11, 2021. IAF, Tab 8 at 1,
Tab 11 at 4. On June 9, 2021, the appellant requested another extension in order to
receive and respond to discovery from the agency and gather witness testimony. IAF,
Tab 15 at 2-3, 10-11. The administrative judge granted this additional request, and
considered in the initial decision three submissions the appellant filed after the close of
record date. ID at 3 n.5.
6
In PFR File, Tab 3, the appellant corrected format errors in PFR File, Tab 1. We are
considering the corrected pleading as the appellant’s petition for review.
5
The evidence showing the appellant’s statements and actions related to signing
hiring forms, which the administrative judge failed to consider, do not establish
that the appellant engaged in protected activity or made protected disclosures.
¶6 Under the Whistleblower Protection Enhancement Act of 2012, the Board
has jurisdiction over an IRA appeal if the appellant has exhausted her
administrative remedies before the 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). Salerno v. Department of the Interior, 123 M.S.P.R. 230,
¶ 5 (2016); see 5 U.S.C. §§ 1214(a)(3), 1221(e)(1). Once an appellant
establishes jurisdiction over her IRA appeal, she must prove the merits of her
claim by preponderant evidence. Salerno, 123 M.S.P.R. 230, ¶ 5.
¶7 The appellant’s reprisal allegations potentially implicate 5 U.S.C.
§ 2302(b)(8) and (b)(9)(D). A disclosure is protected under 5 U.S.C.
§ 2302(b)(8) if the individual reasonably believes that the information being
disclosed evidences a violation of 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. Linder v. Department of Justice, 122 M.S.P.R. 14,
¶ 12 (2014). The standard for evaluating the reasonableness of the belief is
whether a disinterested observer with knowledge of the essential facts known to
and readily ascertainable to the employee could reasonably conclude that the
agency actions evidence one of these types of wrongdoing. Id. Moreover, the
disclosures must be specific and detailed, and not a vague allegation of
wrongdoing. Id., ¶ 14. Meanwhile, 5 U.S.C. § 2302(b)(9)(D) protects
employees from retaliation for “refusing to obey an order that would require the
individual to violate a law, rule or regulation.”
6
¶8 In finding that the appellant failed to prove that she refused to sign hiring
forms she did not verify, the administrative judge failed to consider two items of
evidence. One was a February 27, 2020 email from the appellant’s supervisor
memorializing two meetings pertaining to the appellant’s performance. IAF,
Tab 7 at 34-35. In the email, the supervisor explained the agency system for
processing I-9s, which had human resources personnel documenting a new
employee’s identification on I-9s to verify the new employee’s citizenship, and
forwarding those I-9s to other employees to input information into USA Staffing,
a hiring software application. Id. at 35, 88. In recounting a conversation
between herself and the appellant about this system, the supervisor’s email
stated: “[w]e discussed your refusal to complete the I-9, you express[ed] that
you were uncomfortable [accepting] information from your co-workers when
[new employee orientation] was held in an alternate location . . . unless the
co-worker signed the I-9 . . . .” Id. at 35. The email stated that the supervisor
told the appellant that she did not understand the appellant’s reasoning, as the
requested steps had been agreed upon by all the other HR assistants “as a team
effort to get the work done.” Id. 7 The supervisor then stated in the email that
the “topic lasted for awhile [sic],” as the appellant explained she could not be
certain that the information she was given by other human resources personnel
was accurate, and thus reiterated that she wouldn’t enter the information into
USA Staffing unless the employee who received the documentation from the new
employee signed the I-9. Id. According to the supervisor’s email, this portion of
the conversation ended with the supervisor insisting to the appellant that the
appellant was responsible for completing onboarding of new employees (i.e.
completing the I-9) in her “service area” and ensuring all her information was
7
This same supervisor provided a declaration in which she said the decision to alter the
process had been made in February 2020, the same month as the meetings regarding the
appellant’s performance. Yet the supervisor averred that the appellant did not disclose
the she refused to sign the I-9 or SF-61.
7
consistent and accurate. Id. According to a later declaration from the
supervisor, communication about this issue continued between them until at least
March 26, 2020, with the supervisor reiterating that it was the appellant’s
responsibility to “ensure . . . documents were completed accurately and timely,”
the same issue over which the appellant raised the objection . IAF, Tab 16
at 23-24. The other piece of evidence the administrative judge failed to consider
was an affidavit of the appellant’s coworker in which, in response to an
interrogatory asking whether the appellant spoke with the coworker between
January and April 2020, about not wanting to sign off on documents that she
“did not witness,” such as I-9s and SF-61s, that are “required to witness [sic]
during orientation,” the coworker responded “[y]es. We did discuss this.” IAF,
Tab 16 at 137.
¶9 Together, this evidence establishes that the appellant told her supervisor
that she was uncomfortable accepting information about new employees
contained on I-9s when her coworkers had not signed the forms; that she was
refusing to enter information from I-9s into USA Staffing unless her coworkers
signed them; that she did not want to sign off on documents, including I-9s and
SF-61s, that she did not witness; and that her concerns were due her uncertainty
that information she was being asked to affirm was accurate. Nevertheless, we
cannot conclude that her expressions of concern amounted to a disclosure of any
potential violation of one of the types of wrongdoing set forth in 5 U.S.C.
§ 2302(b)(8). There is no record of her specifying any law, rule, or regulation
she believed was violated. See Heining v. General Services Administration,
61 M.S.P.R. 539, 554-55 (1994) (finding an employee’s expressions of
disagreement with her supervisors’ directions that did not disclose violations of a
specific law, rule, or regulation did not constitute protected disclosures);
Padilla v. Department of the Air Force, 55 M.S.P.R. 540, 543-44 (1992) (finding
an employee’s allegations did not constitute whistleblowing when, among other
factors, they were vague and failed to set forth any specific law, rule, or
8
regulation she believed was violated). Although there is no requirement that an
appellant correctly label the category of wrongdoing in a disclosure under
5 U.S.C. § 2302(b)(8), Linder, 122 M.S.P.R. 14, ¶ 14, the available evidence
indicates the appellant’s concerns were based on her uncertainty that information
she was given in I-9s was accurate. IAF, Tab 7 at 35.
¶10 If disclosure of wrongdoing was indeed the appellant’s intent in making
these statements, her manner of communicating that intent was, as demonstrated
by her supervisor’s failure to understand her “logic,” fatally vague. Id.; see El v.
Department of Commerce, 123 M.S.P.R. 76, ¶ 8 (2015) (finding that an
employee’s disclosures pertaining to delays in reimbursing his travel expenses
only vaguely alleged wrongdoing and thus failed to nonfrivolously allege a
violation of law, rule, or regulation), aff’d, 663 F. App’x 921 (Fed. Cir. 2016).
The appellant therefore failed to prove that she made a protected disclosure
under 5 U.S.C. § 2302(b)(8) in her discussions with her supervisor or coworkers
about the processing of I-9s.
¶11 A more difficult question is whether the appellant’s refusals to sign hiring
forms or otherwise participate in the agency system for processing hiring forms
constituted protected activity under 5 U.S.C. § 2302(b)(9)(D)which prohibits
personnel actions taken against an employee because of the employee’s refusal to
obey an order that would require her to violate a law, rule, or regulation . The
supervisor’s own language described the appellant’s “refusal to complete the
I-9.” IAF, Tab 7 at 34-35. It appears that the supervisor reiterated multiple
times to the appellant that she was responsible to ensure the I -9 was completed.
IAF, Tab 7 at 35, Tab 16 at 23-24. Nevertheless, the appellant has not shown
that she received and disobeyed a direct order to complete an I-9. Additionally,
the appellant has not argued before MSPB that signing the hiring forms or
otherwise participating in the agency system for processing hiring forms would
have violated a law, rule, or regulation.
9
¶12 Accordingly, although the administrative judge erred by failing to consider
evidence of the appellant’s statements regarding signing hiring forms, he
correctly found that the appellant failed to show she engaged in protected
activity or made protected disclosures, and his error did not affect the outcome
of the appeal.
The appellant provides no basis for disturbing the administrative judge’s findings
on her claim of retaliation for disclosing failures to adhere to social distancing
rules and refusals to attend luncheons during the pandemic.
¶13 Regarding the appellant’s claims of retaliation for disclosing that employees
were not adhering to social distancing rules and for her refusal to attend
luncheons and other gatherings during the pandemic, the administrative judge’s
findings are correct and should not be disturbed. ID at 6. There is no evidence
to show that the appellant made any disclosures or engaged in any activity
related to coworkers failing to maintain social distancing or improperly gathering
during the pandemic, that would qualify as protected under 5 U.S.C.
§ 2302(b)(8) or (9). According to the appellant’s supervisor, the appellant did
express to her in the initial stages of the pandemic that she “wanted to be in an
office by herself and return to the conference room,” IAF, Tab 16 at 26, but that
is the appellant’s only communication on these subjects established by the
evidence and we discern no basis to find such a statement protected under
5 U.S.C. § 2302(b)(8). Further, to the extent that the luncheons during the
pandemic could constitute a claim that the appellant was being ordered to engage
in illegal conduct, the appellant’s supervisor stated in a declaration that all
luncheons were voluntary, id. at 26-27, which the appellant offered no evidence
to refute. Thus, there was no “order” that the appellant refused to obey in not
attending the luncheons, removing any such refusals from the purview of
5 U.S.C. § 2302(b)(9)(D). 8
8
Finally, we recognize the deficiency of the administrative judge’s contributing factor
analysis because it was limited to an application of the knowledge/timing test. ID
10
NOTICE OF APPEAL RIGHTS 9
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
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 applicable 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.
at 7-8. The Board has held that if an administrative judge determines that an appellant
has failed to show contributing factor through the knowledge/timing test, he shall
consider other evidence, such as evidence pertaining to the str ength or weakness of the
agency’s reasons for taking the personnel action, whether the whistleblowing was
personally directed at the proposing or deciding offici als, and whether these individuals
had a desire or motive to retaliate against the appellant. Dorney v. Department of the
Army, 117 M.S.P.R. 480, ¶ 15 (2012). However, because we concur with the
administrative judge’s finding that the appellant failed to establish protected disclosures
or activity, ID at 6, this deficiency does not affect the outcome of the appeal.
9
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.
11
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 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 o ur 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
12
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.
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
13
(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
of appeals of competent jurisdiction. 10 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 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, 10, and 11.
10
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.
14
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.
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.