Trinity Ingram-Jones v. Department of the Army ( 2023 )

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
TRINITY LYNN INGRAM-JONES, DOCKET NUMBERS
Appellant, AT-1221-14-0633-W-2
AT-1221-15-0313-W-1
v. AT-0752-15-0340-I-1
DEPARTMENT OF THE ARMY,
Agency.
DATE: February 23, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Joyce E. Kitchens, Esquire, Atlanta, Georgia, for the appellant.
Stuart A. Miller, Esquire, Locust Grove, Georgia, for the appellant.
Gedety Serralta, Esquire, and Jason B. Myers, Esquire, Washington, D.C.,
for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
Tristan L. Leavitt, Member
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
FINAL ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
denied her request for corrective action in these two joined individual right of
action (IRA) appeals and dismissed her involuntary resignation claim for lack of
jurisdiction. For the reasons set forth below, we GRANT the appellant’s
petition for review and AFFIRM the initial decision AS MODIFIED.
Specifically, we REVERSE the administrative judge’s finding that the alleged
changes to the appellant’s duties, responsibilities, and working conditions are not
covered by 5 U.S.C. § 2302(a)(2)(A)(xii). We FIND that the appellant
established a prima facie case of whistleblower reprisal because she proved that
her protected disclosures and protected activity were contributing factors to the
significant change in duties, responsibilities, and working conditions; FIND that
the agency failed to prove by clear and convincing evidence that it would have
taken the personnel actions even in the absence of the appellant’s protected
disclosures and protected activity; and GRANT the appellant corrective action.
BACKGROUND
¶2 The appellant was employed by the agency as a Nurse Specialist (Case
Manager), GS-0610-12, and was the Sexual Assault Medical Management
Program Manager at the Winn Army Community Hospital (WACH) in
Fort Stewart, Georgia. Ingram-Jones v. Department of the Army, MSPB Docket
No. AT-1221-14-0633-W-2, Appeal File (W-2 AF), Tab 12 at 46-47. From
July 2012 through April 2014, her first-line supervisor was R.M., and from
April 2014 until her resignation, her first-line supervisor was C.H. Hearing
Transcript (HT) at 8, 115-16 (testimony of R.M. and C.H.). The appellant’s
second-line supervisor was the WACH Commander. W-2 AF, Tab 12 at 9.
¶3 On September 14, 2013, a WACH employee requested the appellant’s
assistance to examine a 4-year-old child for signs of physical abuse. W-2 AF,
Tab 13 at 18-19. The appellant examined the child on September 16, 2013, and
3
she observed a right foot fracture and scars on his hands and leg, which she
believed were consistent with cigarette burns. Id. at 27. After the examination,
she contacted WACH’s Social Work Services (SWS), the primary point of contact
in child abuse cases that is responsible for intake, investigation, and case
management, W-2 AF, Tab 44 at 29, and offered to provide a report she had
prepared regarding the alleged abuse, including photographs and detailing the
injuries discovered from the examination, W-2 AF, Tab 43 at 44-45, 48. The case
proceeded to the Case Review Committee (CRC), which determines whether
concerns of child abuse under its purview warrant recommending Government
action. W-2 AF, Tab 44 at 29; HT at 396 (testimony of the appellant). The CRC
did not substantiate the case of physical abuse. W-2 AF, Tab 13 at 23-24. Soon
thereafter, the appellant learned that SWS representatives to CRC, in concert with
a representative from the state’s Department of Children and Family Services,
downplayed the evidence of abuse and the seriousness of the child’s foot injury.
Id. at 24. Further, she was told that the SWS employee to whom she had offered
her report with photographs falsely stated to the CRC that there were n o such
reports or photographs. Id.¶4 On November 6, 2013, the appellant emailed the Chief of Staff, 3rd Infantry
Division, informing him of her colleagues’ conduct. W-2 AF, Tab 32 at 5-18.
The next day, the appellant emailed the agency’s Inspector General (IG) repeating
her allegations. W-2 AF, Tab 13 at 16-37. She also informed R.M. of her
complaints to the Chief of Staff and the IG. Id. at 37-38.
¶5 As a result of these complaints, the Commanding General of the U.S. Army
Medical Command (MEDCOM) ordered an investigation pursuant to Army
Regulation 15-6 (15-6 investigation). W-2 AF, Tab 43 at 5-8. The investigating
officer issued a report that validated some of the appellant’s claims that SWS
understated the evidence of abuse to the CRC. Id. at 32-33. Specifically, the
report noted that SWS members failed to indicate that during a forensic interview
conducted by the appellant, the child stated that his father “burned him with a
4
white stick.” Id. The 15-6 investigation also revealed that multiple sources felt
that the appellant routinely exceeded her scope of practice by “dictating what
each organization should do in each case.” Id. at 34. The investigating officer
recommended that WACH leadership clearly define the roles and expectations of
all parties involved, including the appellant. Id. The WACH commander
delegated these instructions to R.M. to ensure that the recommendations be
carried out. Ingram-Jones v. Department of the Army, MSPB Docket
No. AT-1221-14-0633-W-1, Initial Appeal File (IAF), Tab 17 at 38-39.
¶6 Around the same time that the investigation began, the appellant alleged
that R.M. provided false information to the credentialing committee and
documented with the committee that the appellant was the subject of the 15 -6
investigation. IAF, Tab 5 at 22-23. Following the completion of the
investigative report, on January 10, 2014, R.M. convened a meeting with the
appellant, some of her colleagues, and C.H. to review the investigation’s results
and discuss its instructions. Id. at 86-88. In the appellant’s view, R.M. became
hostile with her, lectured her for going outside the chain of command with her
complaints, and embarrassed her in front of her colleagues. Id. at 32-35. The
appellant alleged that following the meeting, R.M. restricted her practice b y
prohibiting her from seeing pediatric nonsexual abuse patients. Id. at 33.
¶7 The appellant also alleged that, over the next several months, the agency
denied her training request for a forensic nursing conference, threatened to
suspend her credentials, and attempted to rewrite her position description.
W-2 AF, Tab 6 at 12-13, 23. She further alleged that the agency failed to
promote her from a GS-12 level to a GS-13 level and reduced her retention
incentive benefit. Id. at 25, 56. The appellant also noticed that over the course of
several months, many of her job duties changed. Id. at 11-26. She believed that
the agency reassigned her policy-writing duty to another employee and prohibited
her from arranging outside agreements with state-run facilities. Id. at 23-24, 57.
The agency also changed the training the appellant was conducting at WACH and
5
prohibited her from performing pediatric sexual assault evaluations. W-2 AF,
Tab 17 at 65, 106-09.
¶8 Throughout that time, the appellant filed two complaints with the Office of
Special Counsel (OSC) claiming that the agency’s actions were taken in
retaliation for her disclosures to the Chief of Staff, 3rd Infantry Division, and to
the IG. IAF, Tab 5 at 23; W-2 AF, Tab 6 at 6-21. OSC terminated its
investigations and notified the appellant of her right to seek corrective action
from the Board. IAF, Tab 5 at 16; W-2 AF, Tab 6 at 22-27. In January 2015, the
appellant informed the agency of her intent to resign. Ingram-Jones v.
Department of the Army, MSPB Docket No. AT-0752-15-0340-I-1, Initial Appeal
File (0340 IAF), Tab 6 at 16-18. 2 As a result of her OSC complaints and
resignation, the appellant filed two IRA appeals and an involuntary resignatio n
appeal with the Board. IAF, Tab 1; Ingram-Jones v. Department of the Army,
MSPB Docket No. AT-1221-15-0313-W-1, Initial Appeal File, Tab 1; 0340 IAF,
Tab 1. The administrative judge joined the three appeals. W-2 AF, Tab 3. After
holding a hearing, the administrative judge issued an initial decision denying
corrective action in both IRA appeals and dismissing the involuntary resignation
appeal for lack of jurisdiction. W-2 AF, Tab 50, Initial Decision (ID).
¶9 The appellant has filed a petition for review. Petition for Review (PFR)
File, Tab 3. The agency has filed an opposition, to which the appellant has
replied. PFR File, Tabs 7-8.
2
The effective date of the appellant’s resignation was January 31, 2015. 0340 IAF,
Tab 6 at 16-18.
6
DISCUSSION OF ARGUMENTS ON REVIEW
The appellant proved that the agency took personnel actions under 5 U.S.C.
§ 2302(a)(2)(A).
¶10 When reviewing the merits of an IRA appeal, 3 the Board must determine
whether the appellant has established by preponderant evidence that s he made a
protected disclosure or engaged in a protected activity that was a contributing
factor in a personnel action taken against her. 5 U.S.C. § 1221(e)(1); Lu v.
Department of Homeland Security, 122 M.S.P.R. 335, ¶ 7 (2015). A
preponderance of the evidence is the degree of relevant evidence that a reasonable
person, considering the record as a whole, would accept as sufficient to find that a
contested fact is more likely to be true than untrue. 5 C.F.R. § 1201.4(q).
¶11 Under the Whistleblower Protection Act (WPA), a “personnel action” is
defined as an appointment; a promotion; an action under 5 U.S.C. chapter 75 or
other disciplinary or corrective action; a detail, transfer, or reassignment; a
reinstatement; a restoration; a reemployment; a performance evaluation under
5 U.S.C. chapter 43 or under Title 38; a decision about pay, benefits, or awards or
concerning education or training if the education or training reasonably may be
expected to lead to an appointment, promotion, performance evaluat ion, or other
action described in 5 U.S.C. § 2302(a)(2)(A); a decision to order psychiatric
testing or examination; the implementation or enforcement of any nondisclosure
policy, form, or agreement; and any other significant change in duties,
responsibilities, or working conditions. 5 U.S.C. § 2302(a)(2)(A); Skarada v.
Department of Veterans Affairs, 2022 MSPB 17, ¶ 14.
3
In the initial decision, the administrative judge determined that the appellant
established jurisdiction over her IRA appeals because she exhausted her administrative
remedy with OSC for both IRA appeals and nonfrivolously alleged the requisite
jurisdictional elements. ID at 22-23; see Bradley v. Department of Homeland Security,
123 M.S.P.R. 547, ¶ 6 (2016). We find no reason to disturb these findings, which
neither party challenges on review.
7
¶12 The appellant alleged that the agency took the following personnel actions
against her in reprisal for her disclosures: failed to promote her from a GS-12
position to a GS-13 position, decreased her retention incentive, suspended and
revoked her credentials, denied a training request, and proposed changing her
position description. W-2 AF, Tab 35 at 3-4. She also alleged that the agency
removed the following job duties: performing forensic pediatric sexual assault
evaluations; treating pediatric nonsexual abuse patients; policy writing;
conducting local training courses; negotiating memoranda of underst anding
(MOUs) and memoranda of agreement (MOAs); and collaborating with outside
agencies regarding the sexual assault patient population. Id. The administrative
judge found that the decreased retention incentive consti tuted a personnel action
under section 2302(a)(2)(A)(ix) because it was a decision concerning the
appellant’s pay. ID at 38-39. He also found that removing the appellant’s duty to
perform forensic pediatric sexual assault evaluations was a s ignificant enough
change in duties to constitute a personnel action under section 2302(a)(2)(A)(xii).
ID at 42-43. In conjunction, he found that C.H.’s failure to seek an exception to
ending WACH’s forensic pediatric sexual assault evaluations also constituted a
personnel action. ID at 43. The administrative judge found that none of the other
alleged actions constituted personnel actions under section 2302(a)(2)(A). ID
at 26-45.
¶13 On review, the appellant argues that the administrative judge erred in
finding that only two of the alleged agency actions constituted personnel actions
under section 2303(a)(2)(A). PFR File, Tab 3 at 15-31. We agree with the
administrative judge’s findings that the failure to promote, the proposed change
in her position description, and the suspension of her credentials do not constitute
personnel actions under section 2303(a)(2)(A). We also agree with the
administrative judge that the appellant failed to prove that the agency removed
her duty to draft MOUs and MOAs and to coordinate with outside organizations.
We will not disturb those findings here. However, we find that the administrative
8
judge erred in his analysis of the appellant’s change in duties. After our review
of the record, we find that the appellant proved that she suff ered a significant
change to her job duties, responsibilities, and working conditions and that such a
change constitutes a personnel action under section 2302(a)(2)(A)(xii). We
address each action in turn below.
Failure to Promote
¶14 Regarding the appellant’s failure to promote claim, she argues that in 2014,
all other nurse practitioners in the organization were promoted to GS -13 positions
but that C.H. created and planned to advertise a GS-13 position to which she
would have to apply. PFR File, Tab 3 at 15-16. C.H. stated that he was aware of
the appellant’s desire for more clinical work, W-2 AF, Tab 16 at 37, and he
testified that to accommodate that desire, he would need to increase her grade
from a GS-12 to a GS-13, HT at 132-33 (testimony of C.H.). He further testified
that he did not have the authority to promote the appellant from a GS-12 to a
GS-13, id., so he approached her with the idea that he would create a GS -13
position to which she could apply that allowed for more clinical time, W -2 AF,
Tab 16 at 37, 40. The appellant rejected C.H.’s proposition. Id. at 40.
¶15 In previous cases in which the Board has considered whether a failure to
promote was a personnel action under the WPA, the agency had announced a
vacancy and filled it with another individual or canceled the vacancy. See
Ruggieri v. Merit Systems Protection Board, 454 F.3d 1323, 1325-27 (Fed. Cir.
2006) (holding that, in the context of an appointment, the agency’s decision to
terminate the hiring process by canceling the vacancy announcement was
sufficient under the plain language of the statute to constitute a “fail[ur e] to
take . . . a personnel action”); Briley v. National Archives and Records
9
Administration, 71 M.S.P.R. 211, 221 (1996). 4 Here, there was no vacancy
announcement, and, although the agency intended to create one, it is undisputed
that the appellant rejected the opportunity to apply for the position. Under these
circumstances, we find there to be no personnel action.
¶16 To the extent that the appellant argues that she should have been promoted
because other nurses were promoted from a GS-12 to a GS-13, we find this
argument to be without merit. The administrative judge found that because there
was no vacancy at issue here, the appellant’s argument effectively constituted a
claim of a failure to reclassify from a GS-12 grade to a GS-13 grade. ID at 38.
To prove that a failure to reclassify the appellant’s position constitutes a
personnel action under section 2302(a)(2)(A), she must prove that comparable
positions had been reclassified elsewhere by the agency because of a change in
the classification standards or a classification error and that she would have met
the legal and qualification requirements for promotion. Briley, 71 M.S.P.R.
at 221-22.
¶17 We need not address whether the appellant would have met the legal and
qualification requirements for a promotion because her allegation is that other
nurse practitioners were promoted to the GS-13 grade—not that they were
reclassified. PFR File, Tab 3 at 15-16. Regardless, if she had alleged that the
other nurse practitioners were reclassified, she presented no evidence that they
were in a similar enough position or shared similar enough duties that such a
comparison would be relevant. Accordingly, we agree with the administrative
4
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, pursuant 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.
10
judge’s conclusion that the appellant failed to prove by preponderant evidence
that the agency’s actions or inactions regarding a promotion constitute a
personnel action under section 2302(a)(2)(A).
Threatened Changes to Position Description
¶18 The appellant also alleges, as a separate personnel action, that C.H.
threatened to change her position description when he created the tentative
position description for the GS-13 position. PFR File, Tab 3 at 28; HT at 428-30
(testimony of the appellant). At the hearing, C.H. testified that WACH needed
more medical providers for its clinics, so he and R.M. decided to rewrite the
appellant’s position description to include more clinical time and have a
discussion with her about whether she found it acceptable. HT at 132-33
(testimony of C.H.). The record shows that C.H. already was aware that the
appellant wanted more clinical time, and he was trying to facilitate that request,
W-2 AF, Tab 16 at 37, but he acknowledged that the new position description
would lessen the amount of time the appellant spent on sexual assault cases, HT
at 136-37 (testimony of C.H.). Because the appellant was not receptive to the
new position description, however, C.H. did not pursue it any further, and no
changes were made to her current position description. HT at 180 (testimony of
C.H.), 498-99 (testimony of the appellant); W-2 AF, Tab 16 at 74-75.
¶19 The administrative judge found that C.H.’s act of offering a new position
description for the appellant’s review did not qualify as a personnel action
because she was not required to compete for the position, and therefore, it did not
constitute a “threat.” ID at 45; 5 U.S.C. § 2302(b)(8). On review, the appellant
highlights several conversations between herself, C.H., and other employees
regarding the tentative position description. PFR File, Tab 3 at 25-28. We have
reviewed these conversations and find that they do not change the outcome
arrived at by the administrative judge. Although the Board has held that the term
“threaten” in section 2302 should be interpreted broadly, Campo v. Department of
the Army, 93 M.S.P.R. 1, ¶ 5 (2002), the ultimate decision on whether C.H. would
11
pursue the new position description was left to the appellant. C.H. forwarded the
new position description to the appellant “to gauge her interest,” W-2 AF, Tab 16
at 63, and when she objected, he no longer pursued it, HT at 180 (testimony of
C.H). Even considering the broad interpretation afforded the term “threaten,” we
agree with the administrative judge’s finding that these actions do not constitute a
personnel action under section 2302(a)(2)(A).
Suspended Credentials
¶20 Regarding the appellant’s suspended credentials claim, she alleges that C.H.
conducted an internet search of her name and discovered that she had been
arrested on a domestic violence charge in July 2012. PFR File, Tab 3 at 17-18;
HT 449-50 (testimony of the appellant). She claims that she immediately
provided him with documentation showing that the arrest was in error and that
she was actually the victim of the domestic incident in question. W-2 AF, Tab 17
at 189-96. She asserts that C.H. nevertheless arranged for pediatric evaluations,
which were normally performed by the appellant, to be performed at another
hospital until the issue of the arrest and its effect on the appellant’s credentials
could be worked out. Id. at 189-90. The appellant argues that these actions
resulted in the suspension of her credentials. PFR File, Tab 3 at 17-18.
¶21 At the hearing, C.H. testified that he typed the appellant’s name into a
search engine after unsuccessfully attempting to view an internet link she sent
him regarding her qualifications. HT at 146 (testimony of C.H.). He testified
that the internet search produced an arrest history naming the appellant. Id. He
further testified that a human resources official recommended holding the
appellant’s credentials in abeyance until the matter could be investigated but that
the appellant provided him with the paperwork proving that the arrest was in
error. HT at 152-55 (testimony of C.H.). C.H. testified that, because these events
occurred over the weekend, he never signed the paperwork that would have
formally actuated the abeyance. HT at 156 (testimony of C.H.). The
administrative judge found that the appellant did not meaningfully rebut this
12
testimony, and, therefore, found that there was no suspension of the appellant’s
credentials. ID at 39-40.
¶22 On review, the appellant’s argument seems to focus more on the internet
search than the alleged suspended credentials. PFR File, Tab 3 at 17-18. She
argues that the search was unwarranted because C.H. had access to her
credentialing file, which included two of her background checks, and that the
administrative judge erred in finding nothing improper about the sear ch. 5 Id.; ID
at 56. We find the appellant’s arguments unpersuasive, as she did not contest
C.H.’s claim that her credentials were never actually put in abeyance or
suspended. Further, even if the internet search was improper, the appellant has
failed to show that this action constitutes a personnel action under
section 2302(a)(2)(A). Accordingly, we agree with the administrative judge’s
finding that the appellant failed to prove that the agency suspended
her credentials.
Negotiating MOUs and MOAs and Collaborating with Outside Agencies
¶23 The appellant also alleges that the agency removed or reassigned her duties
of negotiating MOUs and MOAs for sexual assault patients and collaborating
with outside agencies regarding the sexual assault patient population. W-2 AF,
Tab 12 at 49-50. The administrative judge found that the appellant did not
present sufficient evidence to prove that these duties were significant or that they
were actually removed from her responsibilities. ID at 43. We have thoroughly
reviewed the record, which appears to show disagreement and confusion between
the agency and the appellant concerning the status of these duties and the
5
The administrative judge’s findings regarding the appropri ateness of the internet
search were in relation to his analysis of the appellant’s involuntary resignation claim.
ID at 51, 56. Because the same facts surrounding these allegations apply to both the
appellant’s IRA claims and her involuntary resignation claim, we find the
administrative judge’s findings to be relevant in both instances.
13
appellant’s performance of them, W-2 AF, Tab 17 at 132-34, Tab 18 at 56, and
agree with the administrative judge’s conclusions. Therefore, we find that the
appellant has failed to prove that these alleged actions constituted a
personnel action.
Denial of Training Request
¶24 The appellant also alleges that the agency subjected her to a personnel
action when it denied her a training request. PFR File, Tab 10 at 10. Although it
is undisputed that the agency denied the training request, the Board has held that ,
within the meaning of the WPA, a decision concerning training qualifies as a
“personnel action” only if the training reasonably may be expected to lead to an
appointment, a promotion, a performance evaluation, or some other action
described in 5 U.S.C. § 2302(a)(2)(A). Mason v. Department of Homeland
Security, 116 M.S.P.R. 135, ¶ 28 (2011). The administrative judge considered
this argument below and found that the appellant failed to provide any meaningful
evidence or argument that the denied training would reasonably have been
expected to lead to any of the actions outlined in section 2302(a)(2)(A). ID
at 40-41. We have reviewed the record, and we agree. Therefore, we find that
the appellant’s training denial does not constitute a personnel action.
Decrease in Retention Incentive
¶25 The appellant has asserted that the agency decreased her retention incentive
from 20% to 15%, a claim undisputed by the agency. In the initial decision, the
administrative judge found that this affected the appellant’s pay and awards and,
thus, constituted a personnel action pursuant to 5 U.S.C. § 2302(a)(2)(A)(ix). ID
at 38-39. Neither party has disputed this ruling on review, a nd we find no reason
to disturb it.
Significant Change in Duties, Responsibilities, or Working Conditions
¶26 The appellant also alleged that she experienced a significant change in
duties, responsibilities, or working conditions as contemplated by
14
section 2302(a)(2)(A)(xii). 6 W-2 AF, Tab 35 at 3-4. She alleged that after she
made her disclosures in November 2013, the agency prohibited her from treating
pediatric nonsexual abuse patients and ultimately from performing forensic
pediatric sexual assault evaluations. Id. She also alleges that the agency
assigned her policy-writing duties to other employees and ended the local trainin g
sessions she conducted. Id.¶27 The administrative judge considered each duty separately, and he found that
the only significant change in duty that constituted a personnel action under
section 2302(a)(2)(A) was removing her duty to perform forensic pediatric sexual
assault evaluations. ID at 42-43. He found that limiting the appellant from
seeing pediatric nonsexual abuse patients did not constitute a significant change
in duty because it was not her duty in the first instance. ID at 26-37. He also
found that none of the other alleged change in duties, standing alone, constituted
a “significant change in duties, responsibilities, or working conditions” as
contemplated by section 2302(a)(2)(A)(xii). ID at 41-45.
¶28 When determining whether an appellant has suffered a “significant change
in duties, responsibilities, or working conditions,” the Board consider s the alleged
agency actions both collectively and individually. Skarada, 2022 MSPB 17, ¶ 16;
see also Holderfield v. Merit Systems Protection Board, 326 F.3d 1207, 1209-10
(Fed. Cir. 2003). Although it may be questionable whether any actions, standing
6
In the appellant’s initial IRA appeal, she alleged that she suffered from a hostile work
environment. IAF, Tab 4 at 4. The administrative judge did not include a hostile work
environment claim in his summary of the issues, W-2 AF, Tab 35 at 3-4, and the
appellant does not appear to have objected to that summary, id. at 1. The initial
decision does not include a discussion of a hostile work environment claim, and only in
the appellant’s reply to the agency’s response to her petition for review, not in her
initial petition, does she raise the issue of a hostile work environment again. PFR File,
Tab 8 at 3-4. Nonetheless, we will consider the appellant’s claims here as they relate to
her working conditions. See Savage v. Department of the Army, 122 M.S.P.R. 612, ¶ 23
(2015), overruled in part by Pridgen v. Office of Management and Budget, 2022 MSPB
31, ¶¶ 23-25.
15
alone, amount to a “significant change in duties, responsibilities or working
conditions,” the alleged changes may nevertheless constitute a personnel action
under section 2302(a)(2)(A)(xii) if considered collectively. Here, we find that the
administrative judge erred by failing to consider collectively the alleged changes
in the appellant’s duties. Thus, the relevant inquiry on review is whether the
appellant’s allegations, collectively, constitute a “significant change in duti es,
responsibilities, or working conditions.”
¶29 The Board has held that a significant change in duties should be const rued
broadly. Ingram v. Department of the Army, 116 M.S.P.R. 525, ¶ 4 (2011).
Additionally, after issuance of the initial decision , the Board issued its decision in
Skarada, 2022 MSPB 17, wherein it further interpreted the meaning of the
statutory language, “significant change in duties, responsibilities, or working
conditions,” and held that to constitute a “significant change” under
section 2302(a)(2)(A)(xii), an agency action must have a significant impact on the
overall nature or quality of an employee’s working conditions, responsibilities, or
duties. Skarada, 2022 MSPB 17, ¶ 15. After our thorough review of the record,
we find that the appellant experienced a change in her duties, responsibilities, and
working conditions and that change had a significant impact on the nature of her
duties and responsibilities, and on the quality of her working conditions.
Therefore, we find that the appellant suffered a personnel action under
section 2302(a)(2)(A)(xii).
¶30 Regarding the appellant’s duty to treat pediatric nonsexual abuse patients,
she testified that after making her disclosures, R.M. prohibited her from seeing
any pediatric nonsexual abuse patients and that 4 months later, her new
supervisor, C.H., permitted her to see those patients only after seeking approval.
HT at 418, 488 (testimony of the appellant). Several months later, C.H. again
instructed the appellant to refrain from seeing pediatric nonsexual abuse patients.
W-2 AF, Tab 17 at 57. The appellant further testified that this limitation
decreased the total number of patients she saw and that the decrease was a
16
significant change from previous years. HT at 480, 487-89 (testimony of the
appellant). She also testified that limiting her ability to see those patients could
impact her credentials, which she was required to maintain to hold her position.
HT at 425-26, 429 (testimony of the appellant).
¶31 Discussing this alleged change in duty in isolation, the administrative judge
provided an 11-page analysis ultimately concluding that treating pediatric
nonsexual abuse patients was not the appellant’s duty in the first instance because
it was not included in her position description nor was it assigned or instructed by
a supervisor. ID at 26-37. We disagree. The Board has held that when a
question is raised regarding the nature and character of the duties performed and a
review of the position description may be inadequate, it will consider all factors
having a bearing upon the totality of the circumstances concerning the duties
performed. Lara v Department of Homeland Security, 101 M.S.P.R. 190,
¶ 9 (2006).
¶32 Here, the appellant’s position description outlines duties related to “sexual
assault and abuse.” W-2 AF, Tab 12 at 47. The appellant testified that this
language implies duties related to sexual assault and general physical abuse. HT
at 479-80 (testimony of the appellant). Testimony from agency officials seems to
support this interpretation. The Chief of Pediatrics testified that one could not be
a sexual abuse expert without seeing physical abuse, that sexual abuse is physical
abuse, and that differentiating between the two would be very difficult. HT
at 228 (testimony of S.B.). A WACH pediatrician testified it was “normal
business” to consult with the appellant on pediatric nonsexual abuse cases
because she was the “local child abuse expert.” HT at 344-45 (testimony of
A.M.). R.M. testified that he would expect the appellant to have the same role in
any type of abuse case as any other pediatric provider. HT at 55-56 (testimony of
R.M.). C.H.’s 2014 evaluation of the appellant and his corresponding testimony
also reference the appellant’s duties related to “abuse and sexual assault
patients.” W-2 AF, Tab 12 at 16; HT at 120-21 (testimony of C.H.).
17
¶33 Moreover, it is undisputed that both R.M. and C.H. were aware that the
appellant was performing this duty, and R.M. praised her for her willingness to go
“out of her own lane.” W-2 AF, Tab 12 at 10; HT at 31, 50, 415-16 (testimony of
R.M. and the appellant). Although the administrative judge found this comment
to be in reference to the Chief of Staff, 3rd Infantry Division, and the IG issues,
we discern no basis for that finding, as R.M. testified that h e wrote the comments
on October 31, 2013—a week before the appellant made her disclosures. HT
at 29, 31-33 (testimony of R.M.); W-2 AF, Tab 13 at 16-38. Accordingly, we
reverse the administrative judge’s findings and hold that treating pediatric
nonsexual abuse patients was a part of the appellant’s duties and responsibilities
and that, even standing alone, the circumstances outlined above demonstrate a
“significant change in duties, responsibilities, or working conditions” under
section 2302(a)(2)(A)(xii).
¶34 Regarding forensic pediatric sexual assault evaluations, W-2 AF, Tab 12
at 50, the appellant testified that this duty comprised approximately 50% of her
job and “was a huge part of [her] whole life” before the agency eliminated it, HT
at 421, 514 (testimony of the appellant). The administrative judge found that
eliminating this duty, and C.H’s failure to seek an exception to the cessation,
constituted personnel actions independent of any other apparent change in duties.
ID at 43. We agree, and we find no reason to disturb these findings. Regarding
her role in policy drafting, W-2 AF, Tab 12 at 9, 47, the appellant testified that
sexual assault was a prevalent issue in the Army, and prior to her disclosures, she
was “constantly trying to keep up” with the guida nce from the Department of
Defense in writing policy, but after her disclosures, others were asked to write
and update policy, HT at 418-20 (testimony of the appellant); W-2 AF, Tab 17
18
at 29-30. 7 The administrative judge found that a change in duties
“unquestionably occurred,” but that on its own, it did not rise to the level of
“significant.” ID at 42. Regarding the training instruction, the appellant testified
that she provided “award winning” training programs, W-2 AF, Tab 12 at 9, 50;
HT at 432, 507 (testimony of the appellant), which took up a significant amount
of her time, but after her disclosures, she was no longer permitted to provide the
training, HT at 507 (testimony of the appellant). The administrative judge made
no finding on whether this constituted a personnel action and only found that the
appellant’s disclosures were not a contributing factor to the agency’s removing
this duty. ID at 44-45. Regarding general working conditions, supra ¶ 26 & n.6,
the appellant testified that implementing these changes occurred “behind her
back,” that her supervisors “started acting like they didn’t know who [she] was,”
and that they would not respond to her concerns. HT at 432-33 (testimony of the
appellant). She further testified that the significant change in duties led others to
believe she was no longer in charge of the sexual assault program at WACH. HT
at 516 (testimony of the appellant).
¶35 After careful consideration, we find that the appellant has demonstrated
that, collectively, these changes had a significant impact on the overall nature or
quality of her responsibilities, duties, and working conditions. See Skarada,
2022 MSPB 17, ¶ 15. Many of these changes directly relate to the essence of the
appellant’s position not only as the Sexual Assault Medical Management Program
Manager, W-2 AF, Tab 12 at 46-47, but also as a nurse practitioner, id. at 53, and,
thus, had an impact on the overall nature of her duties and responsibilities.
Accordingly, we find that the significant changes in the appellant’s duties,
7
The appellant testified that she still had input in the policy but was no longer writing
it. HT at 509 (testimony of the appellant).
19
responsibilities, and working conditions constitute a personnel action under
section 2302(a)(2)(A)(xii).
The appellant made protected disclosures and engaged in protected activity.
¶36 Having narrowed the scope of what personnel actions the appellant proved,
we now turn to the question of whether she proved by preponderant evidence that
she made protected disclosures under 5 U.S.C. § 2302(b)(8) or engaged in
protected activity under 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D). 5 U.S.C.
§ 1221(e)(1); Corthell v. Department of Homeland Security, 123 M.S.P.R. 417,
¶ 8 (2016). To establish that she made a protected disclosure, the appellant must
show that she reasonably believed that the conduct being disclosed evidenced a
violation of any law, rule or regulation, gross mismanagement, a gross waste o f
funds, an abuse of authority, or a substantial and specific danger to public health
or safety. 5 U.S.C. § 2302(b)(8)(A); Chavez v. Department of Veterans Affairs,
120 M.S.P.R. 285, ¶ 18 (2013). The administrative judge found that the appellant
reasonably believed that her allegations about the improper handling of the child
abuse case were accurate and that those disclosures evidenced an allegation of an
abuse of authority. ID at 25. Thus, he found that the appellant made protected
disclosures under section 2302(b)(8). Neither party has challenged this finding
on review, and we find no reason to disturb it.
¶37 Although the administrative judge considered whether the appellant made a
protected disclosure, he failed to consider whether the appellant engaged in
protected activity. ID at 23-25. Among the activities contemplated by
section 2302(b)(9) is “cooperating with or disclosing information to the Inspector
General, . . . or the Special Counsel, in accordance with applicable provisions of
law.” 5 U.S.C. § 2302(b)(9)(C). Here, there is no dispute that the appellant
disclosed information to the IG when she filed her complaint in November 2013
expressing her concerns over the CRC and SWS. Therefore, we find that the
appellant engaged in protected activity under section 2302(b)(9)(C), and we
modify the initial decision in that regard.
20
The appellant’s protected disclosures and protected activity were contributing
factors in the significant change in her duties, responsibilities, and
working conditions.
¶38 Having found that the significant change in the appellant’s duties,
responsibilities, and working conditions and the reduction in her retention
incentive constituted personnel actions under 5 U.S.C. § 2302(a)(2)(A), we next
consider whether the appellant’s protected disclosures and protected activity were
contributing factors to these actions. 5 U.S.C. § 1221(e)(1); Lu, 122 M.S.P.R.
335, ¶ 7. The most common way for an appellant to prove that a protected
disclosure was a contributing factor in the agency’s taking of a personnel action
is the knowledge/timing test. Scoggins v. Department of the Army, 123 M.S.P.R.
592, ¶ 21 (2016). That test requires the appellant to prove that the agency official
taking the personnel action knew of the whistleblowing disclosure or protected
activity and took the personnel action within a period of time such that a
reasonable person could conclude that the disclosure or activity was a
contributing factor to the personnel action. Id. Once the appellant has satisfied
the knowledge/timing test, she has demonstrated that a protected disclosure or
protected activity was a contributing factor in the personnel action, even if a
complete analysis of all of the evidence would not support such a finding.
Gonzalez v. Department of Transportation, 109 M.S.P.R. 250, ¶ 20 (2008).
¶39 Regarding the reduction in the appellant’s retention incentive from 20% to
15%, the administrative judge found that C.H. only had the authority to approve a
15% retention incentive and that only MEDCOM headquarters could approve a
20% retention incentive, which C.H. recommended. ID at 46-47. Thus, the
administrative judge found that the appellant failed to establish who was
responsible for taking the action and that she, therefore, failed to establish that
her protected disclosures or protected activity were a contributing factor to the
reduced retention incentive. Id. On review, the appellant argues that WACH, and
specifically C.H., intentionally failed to comply with MEDCOM headquarters’
21
requests to forward the information required to grant the request of th e 20%
retention incentive. PFR File, Tab 3 at 16. We have reviewed the record and
have found no evidence proving that C.H. contributed to or was the source of
WACH’s failure to comply with requests from MEDCOM headquarters to
forward the required information. 8 Therefore, we agree with the administrative
judge’s conclusion that the appellant failed to prove that her protected disclosures
and protected activity were contributing factors to the decreased
retention incentive.
¶40 We now turn to whether the appellant’s protected disclosures and protected
activity were a contributing factor to the significant change in her duties,
responsibilities, and working conditions. Regarding the restriction on the
appellant’s ability to see pediatric nonsexual abuse patients, the record shows that
R.M. became aware of the appellant’s protected disclosures in November 2013,
HT at 22 (testimony of R.M.), and that he restricted the appellant from seeing
those patients between January 2014 and April 2014, W-2 AF, Tab 17 at 17, 20,
22; HT at 48-51, 76 (testimony of R.M). Because R.M. knew of the appellant’s
disclosures and took the agency action within 2 months of becoming aware of the
disclosures, we find that this satisfies the knowledge/timing test. See Scoggins,
123 M.S.P.R. 592, ¶ 25 (finding that a personnel action that occurs within 2 years
of the appellant’s disclosure satisfies the timing component of the
knowledge/timing test).
8
The appellant argues that on one of the forms relevant to the retention incentive, C.H.
wrote “yes” to the question of whether there were “candidates available in the market
who, with minimal training, cost, or disruption of mission, could perform the full range
of duties of the position at the level performed by the employee,” and that his response
would effectively eliminate the appellant’s chance to receive a 20% retention incentive.
PFR File, Tab 3 at 16-17; W-2 AF, Tab 18 at 18. This argument, however, is
unpersuasive because C.H. ultimately recommended a 20% retention incentive.
W-2 AF, Tab 18 at 18.
22
¶41 After R.M.’s departure in April 2014, C.H. became the appellant’s
supervisor. HT at 115-16 (testimony of C.H.). He testified that he first became
aware of the disclosures at the January 2014 meeting. Id. at 175-76. He informed
the appellant sometime around April or May of 2014 that he would permit her to
see pediatric nonsexual abuse patients if she cleared it with him first, HT
at 200-01, 488-89 (testimony of C.H. and the appellant), then fully restricted the
duty again in August 2014, W-2 AF, Tab 17 at 57. Because C.H. had knowledge
of the appellant’s disclosures and took his actions within 7 months of becoming
aware of the disclosures, we find that this satisfies the knowledge/timing test.
See Scoggins, 123 M.S.P.R. 592, ¶ 25.
¶42 Regarding removing policy writing from the appellant’s duties, the record
shows that the WACH Commander directed C.H. to have a particular policy
rewritten. W-2 AF, Tab 17 at 30. C.H. indicated in an email to the appellant that
the WACH Commander directed him to “hand off the writing of this policy.” Id.
at 32. In June 2014, C.H. delegated the duty to somebody in the Emergency
Department. Id. Concerning C.H., we have already found that he had knowledge
of the appellant’s disclosures. Supra ¶ 41. Concerning the WACH Commander,
the appellant has contended that he had knowledge of her disclosures, IAF, Tab 4
at 5, and the agency has not disputed her contention. Further, the WACH
Commander is the agency official who communicated the results of the 15 -6
investigation to R.M., who discussed them at the January 2014 meeting. HT at 32
(testimony of R.M.); W-2 AF, Tab 15 at 23-24. Based on the foregoing, we find
that the WACH Commander knew of the appellant’s disclosures. Because these
agency officials took this action within 5 months of learning of the disclosures,
we find that the appellant has satisfied the knowledge/timing test on this i ssue.
See Scoggins, 123 M.S.P.R. 592, ¶ 25.
¶43 Regarding removing the duty to perform forensic pediatric sexual assault
evaluations, the administrative judge considered whether the appellant’s
disclosures were a contributing factor to this action. ID at 42-43, 47. He found
23
that the Deputy Commanding General of MEDCOM made the decision to end
forensic pediatric sexual assault evaluations in November or December 2014. Id.;
W-2 AF, Tab 28 at 36. The administrative judge also found that the Deputy
Commanding General was aware of the appellant’s protected disclosures and
protected activity because she was the agency official who ordered WACH to
initiate the 15-6 investigation that was prompted by the appellant’s protected
disclosures and activity. ID at 47; W-2 AF, Tab 43 at 5-8. Thus, the
administrative judge found that because she ended the appellant’s duty to perform
forensic pediatric sexual assault evaluations within 1 year of becoming aware of
the appellant’s disclosures, the appellant met the knowledge/timing test. ID
at 47. The administrative judge also found that the appellant met the
knowledge/timing test for C.H.’s declining to seek an exception to ceasing this
duty because his inaction occurred within 1 year of becoming aware of the
disclosures. Id. Neither party disputes these findings on review, and we find no
reason to disturb them.
¶44 Regarding removing the appellant’s duty to conduct the local training, we
find that there is insufficient evidence to determine who made the decision to take
this action. The record contains various emails between the appellant and an
agency official, wherein both attempted to identify who was responsible for the
decision. W-2 AF, Tab 17 at 79-87. The record also includes an email from C.H.
to the appellant confirming that all Sexual Assault Medical Forensics Examiners
training “courses from this point forward will be central. I received email
confirmation today.” Id. at 73. Nowhere does C.H. reference from whom he
received the confirmation, nor has the appellant identified th e person responsible
for the decision. Because the appellant has not proven who made the decision to
remove this duty, she has failed to meet her burden of proof as to this action.
¶45 On the whole, and notwithstanding our finding regarding the local traini ng,
we find that the appellant has met her burden of proving that her disclosures and
24
protected activity were a contributing factor to the significant change in her
duties, responsibilities, and working conditions.
The agency failed to prove by clear and convincing evidence that it would have
taken the same actions in the absence of the protected disclosures and
protected activity.
¶46 Because the appellant established a prima case of whistleblower reprisal, we
turn to the question of whether the agency pro ved by clear and convincing
evidence that it would have taken the same actions in the absence of the protected
disclosures. Lu, 122 M.S.P.R. 335, ¶ 7. Clear and convincing evidence is that
measure or degree of proof that produces in the mind of the trier of fact a firm
belief as to the allegations sought to be established; it is a higher standard than
the “preponderance of the evidence” standard. Sutton v. Department of Justice,
94 M.S.P.R. 4, ¶ 18 (2003), aff’d, 97 F. App’x 322 (Fed. Cir. 2004); 5 C.F.R.
§ 1209.4(e).
¶47 In determining whether an agency has shown by clear and convincing
evidence that it would have taken the same personnel action in the absence of the
whistleblowing, the Board will consider all of the relevant factors, including the
following (Carr factors): the strength of the agency’s evidence in support of it s
action; the existence and strength of any motive to retaliate on the part of the
agency officials who were involved in the decision; and 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 also Carr v. Social Security Administration, 185 F.3d
1318, 1323 (Fed. Cir. 1999). The Board does not view these factors as discrete
elements, each of which the agency 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. Lu, 122 M.S.P.R. 335, ¶ 7. The Board must
consider all the evidence, including evidence that detracts from the conclusion
25
that the agency met its burden. Soto, 2022 MSPB 6, ¶ 11; see also Whitmore v.
Department of Labor, 680 F.3d 1353, 1368 (Fed. Cir. 2012).
Restriction on the Appellant from Treating Pediatric Nonsexual
Abuse Patients
¶48 In examining the strength of the evidence in support of the agency’s action
to restrict the appellant from treating pediatric nonsexual abuse patients, we find
the agency’s evidence to be weak. At the hearing, R.M. testified that when he
limited the appellant from seeing pediatric nonsexual abuse patients, he was
following instructions from higher officials as a result of the 15 -6 investigation.
HT at 30, 80-82 (testimony of R.M.). However, the investigative report simply
made recommendations and stated that “[l]eadership needs to clearly define the
rules and expectations of all parties when a case occurs.” W -2 AF, Tab 43 at 34.
It did not require R.M. to remove this duty; he could have formally incorporated
the duty, which the appellant was already performing prior to her disclosures, into
her position description. Further, the 15-6 investigative report upon which R.M.
relied was the direct product of the appellant’s protec ted disclosures and
protected activity.
¶49 After R.M.’s departure, C.H. initially permitted the appellant to treat
pediatric nonsexual abuse patients only after seeking his approval, but restricted
the duty again in August 2014. HT at 200-01, 488-89 (testimony of C.H. and the
appellant); W-2 AF, Tab 17 at 57. He emailed the appellant telling her to “hold
off” on seeing this classification of patients because, despite being credentialed to
see pediatric patients, her position description did not include those duties.
W-2 AF, Tab 17 at 57. We find C.H.’s explanation for restricting this duty to be
weak. The appellant’s job description had not changed in the time period
surrounding her disclosures, and the agency does not dispute that the appellant
performed these duties prior to making her disclosures. Thus, to rely on the
position description as the sole reason to restrict a duty previously permitted prior
to the appellant’s disclosures is suspect, at best, and does not provide sufficient
26
support to justify the agency action. Accordingly, we find this factor favors
the appellant.
¶50 In examining the existence and strength of the evidence of the agency
officials’ motive to retaliate, we find the evidence to be strong, particularly
regarding R.M. The record is replete with evidence that R.M. was upset with the
appellant for making her disclosures outside of her chain of command. Several
witnesses testified that during the January 2014 meeting, R.M. expressed his
frustration with the appellant for making her disclosures in the manner in which
she made them. HT at 26, 126-27, 231, 270-71, 414-15 (testimony of R.M., C.H.,
S.B., and the appellant). Regarding C.H., at the time the appellant made her
disclosures, he was not her supervisor, and the disclosures do not implicate any
wrongdoing on his part. However, we have found that those responsible for the
agency’s performance overall may well be motivated to retaliate even if they are
not directly implicated by the disclosures, as the criticism reflects on them in
their capacities as managers and employees. Wilson v. Department of Veterans
Affairs, 2022 MSPB 7, ¶ 65; Smith v. Department of the Army, 2022 MSPB 4,
¶¶ 28-29. Thus, we find that C.H. may have had a slight motive to retaliate. In
any event, because we find the evidence of R.M.’s retaliatory motives to be
strong, we find that this factor also favors the appellant.
¶51 Next, we examine any evidence that the agency takes similar actions against
employees who are not whistleblowers but who are otherwise similarly situated.
The agency has not identified other employees who primarily performed forensic
pediatric sexual assault exams, but are credentialed to, and occasionally did,
consult with staff on pediatric nonsexual abuse patients. Nonetheless, we find
that the relevant inquiry of potential similarly situated employees should be
viewed from a different perspective. Because it appears undisputed that the
agency took this action as a result of the 15-6 investigation, we look to other
employees affected by the report but who did not engage in whistleblowing
activity. The agency has failed to identify any of these employees or to
27
demonstrate that they also experienced a significant change in duties. Because it
is the agency’s burden of proof, when the agency fails to introduce relevant
comparator evidence, the third Carr factor is effectively removed from
consideration, although it cannot weigh in favor of the agency. Soto, 2022 MSPB
6, ¶ 18; see also Rickel v. Department of the Navy, 31 F.4th 1358, 1365-66 (Fed.
Cir. 2022) (“The lack of evidence on the third Carr factor appears neutral[.]”)
(internal citation omitted). We find that this factor is neutral. See Siler v.
Environmental Protection Agency, 908 F.3d 1291, 1299 (Fed. Cir. 2018) (holding
that in the absence of relevant comparator evidence, the third Carr factor cannot
favor the agency).
¶52 Weighing the Carr factors against one another and as a whole, we find that
the agency has failed to prove by clear and convincing evidence that it would
have restricted the appellant’s ability to treat pediatric nonsexual abuse patients
in the absence of the appellant’s protected disclosures and protected activity,
particularly because in that absence, the 15-6 investigation would not
have occurred.
Removal of the Appellant’s Duty to Write Policy
¶53 In examining the strength of the agency’s evidence to reassign the duty of
policy writing to another employee, we find the agency’s evidence to be weak.
C.H. testified that the appellant wrote the original agency policy on handling
sexual assaults from a forensic and medical perspective, but the WACH
Commander ordered it to be rewritten because it was outdated. HT at 196-97
(testimony of C.H.). The record shows that the WACH Commander asked C.H. to
“hand off the writing of this policy.” W-2 AF, Tab 17 at 32. C.H. further
testified that he had “no idea how it became assigned or why [another] person was
chosen,” but immediately thereafter testified that the person chosen was the
“crossover” between “ambulatory nurse care . . . and the physician side.” HT
at 197 (testimony of C.H.). He testified that the appellant was not involved in
rewriting the policy but was consulted afterward. HT at 198 (testimony of C.H.).
28
The WACH Commander did not testify, and C.H. offered no explanation for why
the appellant, who he admitted was an expert on the subje ct matter, HT at 123
(testimony of C.H.), was not asked to update the policy that she had previously
written and that directly relates to her job duties. That the appellant was later
consulted regarding the draft policy helps the agency’s case to a degree , HT
at 197-98 (testimony of C.H.), but we ultimately conclude that this factor weighs
more in the appellant’s favor.
¶54 In examining the existence and strength of the evidence of the agency
officials’ motive to retaliate, we find the evidence to be mixed. We previously
found that there was little record evidence that C.H. had a motive to retaliate.
However, the appellant has asserted that C.H. told her that the WACH
Commander was angry when he learned of the appellant’s protected disclosures
and protected activity and that he felt “blindsided” when he was called by the
Commanding General to explain a situation of which he felt he had no
knowledge. IAF, Tab 5 at 22. The agency does not appear to have rebutted this
assertion. Notwithstanding the lack of evidence of C.H.’s motive to retaliate, we
find that this factor favors the appellant because the WACH Commander was the
agency official ultimately responsible for this action, and we find that there is
clear evidence that he had a motive to retaliate.
¶55 In examining the third Carr factor, we refer to our previous analysis and
emphasize that the agency has failed to identify any other employees discussed in
the 15-6 investigative report who were not whistleblowers but also suffered a
change in job duties as a result of the report. As previously noted, we find this
factor is neutral. See Siler, 908 F.3d at 1299.
¶56 In weighing the Carr factors against one another and as a whole, we find
that the agency has failed to prove by clear and convincing evidence that it would
have reassigned the appellant’s policy-writing duty in the absence of her
protected disclosures and protected activity.
29
Removal of the Appellant’s Duty to Perform Forensic Pediatric Sexual
Assault Evaluations
¶57 Because the administrative judge found that the appellant’s protected
disclosures were a contributing factor to the agency’s decision to remove the
appellant’s duty to perform forensic pediatric sexual assault evaluations, ID at 47,
he also considered whether the agency proved by clear and convincing evidence
that it would have taken the same action even in the absence of the appellant’s
disclosures, ID at 49-51. After a brief analysis of the Carr factors, the
administrative judge found that the agency met its burden. Id. We agree.
Regarding the strength of the agency’s evidence in support of its action, the
record shows that the Deputy Commanding General of MEDC OM issued a
memorandum on December 11, 2014, ordering all USA MEDCOM facilities to
cease performing these exams, citing a low volume of relevant cases. W-2 AF,
Tab 28 at 36. The memorandum also indicates that extensions or exceptions to
the new policy could be sought. Id. It appears undisputed that C.H. initially
attempted to pursue an exception but was informed that WACH’s case numbers
were too low to justify an exception. W-2 AF, Tab 29 at 5-6. Although, as the
administrative judge pointed out, the agency failed to present any statistical or
numerical evidence to support its decision regarding the removal of this duty, ID
at 49, we find the agency’s evidence in support of this action to be
reasonably strong.
¶58 In considering the strength of the evidence of the agency officials’ motive
to retaliate, we reiterate our finding that the evidence of C.H.’s motive to retaliate
is weak. Regarding the Deputy Commanding General of MEDCOM, the
administrative judge found that she was “too removed organizationall y . . . and
physically . . . to be meaningfully embarrassed by the appellant’s disclosures.”
ID at 50. Yet as noted above, those responsible for the agency’s performance
overall may well be motivated to retaliate even if they are not directly implicated
by the disclosures, and even if they do not know the whistleblower personally, as
30
the criticism reflects on them in their capacities as managers and employees.
Wilson, 2022 MSPB 7, ¶ 65; Smith, 2022 MSPB 4, ¶¶ 28-29. Because the Deputy
Commanding General of MEDCOM can be considered to be responsible for the
agency’s overall performance, which includes SWS’s and CRC’s performance,
and because she was the agency official who ordered the 15 -6 investigation, we
find that this factor cuts slightly in favor of the appellant.
¶59 Regarding any evidence that the agency takes similar actions against
employees who are not whistleblowers but who are otherwise similarly situated,
the administrative judge appropriately noted that the Deputy Commanding
General’s policy memorandum applied to all medical treatment facilities in the
United States. ID at 50; W-2 AF, Tab 28 at 36. Because the removal of this duty
was a part of a broader policy change applicable to all agency employees, we find
that this factor favors the agency.
¶60 After our own weighing of the Carr factors, we agree with the
administrative judge that the agency proved by clear and convincing evidence that
it would have removed this duty from the appellant even in the absence of her
protected disclosures and protected activity.
¶61 In sum, we find that the agency met its burden with respect to the removal
of the appellant’s duty to perform forensic pediatric sexual assault evaluations,
but failed to meet its burden with respect to the restriction on the appellant’s
ability to treat pediatric nonsexual abuse patients and the removal of her duty to
write policy. Accordingly, we find that the appellant established her claim of
retaliation for whistleblowing and that corrective action is warranted.
The administrative judge did not err in finding that the appellant failed to
establish that her resignation was involuntary.
¶62 The appellant also alleges that she involuntarily resigned. 0340 IAF, Tab 1
at 7. Generally, the Board lacks authority to review an employee’s decision to
resign or retire because such actions are presumed to be voluntary. Vitale v.
Department of Veterans Affairs, 107 M.S.P.R. 501, ¶ 19 (2007). However, if an
31
agency coerced the employee’s decision in a manner that deprived her of freedom
of choice, the Board will take jurisdiction over the matter as a constructive
removal. Brown v. U.S. Postal Service, 115 M.S.P.R. 609, ¶ 9, aff’d, 469 F.
App’x 852 (Fed. Cir. 2011). The appellant alleges that she inv oluntarily resigned
due to the working conditions created by the personnel actions discussed in her
IRA appeals and additional actions unrelated to the IRA appeals. 0340 IAF,
Tab 5. In cases such as this, the Board will look to whether the employer
engaged in actions that made working conditions so difficult o r unpleasant that a
reasonable person in that employee’s position would have felt compelled to
resign. Vitale, 107 M.S.P.R. 501, ¶ 20.
¶63 The administrative judge considered this claim and found the appellant
failed to prove that the agency took some of the alleged actions and that when she
did prove that the agency took some of the actions, she ultimately failed to prove
that they created working conditions so difficult or unpleasant that a reasonable
person would have felt compelled to resign. ID at 52-63. On review, the
appellant seems to allege inconsistencies in C.H.’s hearing testimony concerning
the appellant’s performance, but she has not offered any specific argument or
evidence that demonstrates error in the administrative judge’s findings. PFR File,
Tab 3 at 31-32; 5 C.F.R. § 1201.115(a)(2). We have reviewed the record, and we
have not found any error in the administrative judge’s findings.
¶64 Nonetheless, because we have reversed some of the initial decision’s
findings regarding the reprisal claims, and those claims are partially intertwined
with the appellant’s involuntary resignation claim, further consideration of the
latter claim is appropriate. See Diefenderfer v. Department of Transportation,
108 M.S.P.R. 651, ¶¶ 35-37 (2008). Although the appellant has established for
the purpose of her whistleblower reprisal appeals that she was subjected to a
significant change in duties, responsibilities, and working conditions under
section 2302, such a conclusion does not necessarily fulfill the appellant’s burden
of proving that these conditions were so difficult or unpleasant that she felt
32
compelled to resign. The appellant still must independently prove these factors,
and her reprisal claims may be addressed only insofar as they relate to the
question of involuntariness. Martinez v. Department of the Interior, 88 M.S.P.R.
169, ¶ 13 (2001).
We find that the appellant has failed to show that her working conditions were so
difficult or unpleasant that a reasonable person in her positi on would have felt
compelled to resign.
¶65 Although we have found that the appellant suffered a significant change in
her duties, responsibilities, and working conditions, the Board has held that the
fact that an employee is faced with an inherently unpleasant situation or that her
choices are limited to unpleasant alternatives does not make her decision to resign
involuntary. Lawson v. U.S. Postal Service, 68 M.S.P.R. 345, 350 (1995). Here,
the appellant already had begun seeking redress on her retaliation claims and
could have waited for the outcome of her IRA appeals to determine if resignation
was necessary. See Axsom v. Department of Veterans Affairs, 110 M.S.P.R. 605,
¶ 17 (2009). Instead, the appellant opted to resign prior to adjudicati ng her
retaliation claims. Based on the foregoing, we find that the appellant has failed to
prove by preponderant evidence that her resignation was involuntary.
The administrative judge did not err in reopening the record to accept
supplemental closing arguments but not additional evidence after he requested
that the agency submit an unredacted copy of the 15-6 investigative report.
¶66 After the hearing, the administrative judge ordered the agency to submit an
unredacted copy of the 15-6 investigative report. W-2 AF, Tab 39. The agency
submitted it, W-2 AF, Tabs 43-44, and the appellant filed a motion to reopen the
record for the limited purpose of supplementing her closing argument, W-2 AF,
Tab 45. The administrative judge reopened the record for the limited purpose
requested by the appellant, W-2 AF, Tab 46, and both parties submitted
supplemental closing arguments, W-2 AF, Tabs 47-48. On review, the appellant
argues that she should have been permitted to take additional testimony, rather
than simply submitting a supplemental closing argument. PFR File, Tab 3 at 4-5.
33
The appellant’s argument is unpersuasive. The administrative judge reopened the
record for the purpose requested by the appellant herself; if she wished to request
leave to take additional testimony, she could have done so at the time.
Additionally, the appellant was afforded two opportunities to address the
substance of the unredacted report: first, in her motion to reopen the record and,
second, in her supplemental closing argument. W-2 AF, Tabs 45, 47.
Accordingly, we find no error in the administrative judge’s conduct. 9 See
5 C.F.R. § 1201.41(b).
In light of the appellant’s voluntary resignation, the Board is limited in the relief
that can be provided relating to the personnel actions at issue.
¶67 As set forth above, we find that corrective action is warranted. H owever,
due to the appellant’s voluntary resignation, we find that the Board is limited in
the relief that can be provided relating to any personnel action at issue in the IRA
appeals. The appellant may, nonetheless, be entitled to consequential and/or
compensatory damages.
NOTICE TO THE APPELLANT REGARDING
YOUR RIGHT TO REQUEST
ATTORNEY FEES AND COSTS
You may be entitled to be paid by the agency for your reasonab le attorney
fees and costs. To be paid, you must meet the requirements set forth at title 5 of
the United States Code (5 U.S.C.), sections 7701(g), 1221(g), or 1214(g). The
regulations may be found at 5 C.F.R. §§ 1201.201, 1201.202, and 1201.203. If
you believe you meet these requirements, you must file a motion for attorney fees
and costs WITHIN 60 CALENDAR DAYS OF THE DATE OF THIS DECISION.
You must file your motion for attorney fees and costs with the office that issued
the initial decision on your appeal.
9
We have reviewed the relevant legislation enacted during the pen dency of this appeal
and have concluded that it does not affect the outcome of the appeal.
34
NOTICE TO THE APPELLANT REGARDING
YOUR RIGHT TO REQUEST CONSEQUENTIAL AND/OR
COMPENSATORY DAMAGES
You may be entitled to be paid by the agency for your consequential
damages, including medical costs incurred, travel expenses, and any other
reasonable and foreseeable consequential damages. To be paid, you must meet
the requirements set out at 5 U.S.C. §§ 1214(g) or 1221(g). The regulations may
be found at 5 C.F.R. §§ 1201.201, 1201.202 and 1201.204.
In addition, the Whistleblower Protection Enhancement Act of 2012
authorized the award of compensatory damages including interest, reasonable
expert witness fees, and costs, 5 U.S.C. § 1214(g)(2), which you may be entitled
to receive.
If you believe you are entitled to these damages, you must file a motion for
consequential damages and/or compensatory damages WITHIN 60 CALENDAR
DAYS OF THE DATE OF THIS DECISION. You must file your motion with the
office that issued the initial decision on your appeal.
NOTICE TO THE PARTIES
A copy of the decision will be referred to the Special Counsel “to
investigate and take appropriate action under [5 U.S.C.] section 1215,” based on
the determination that “there is reason to believe that a current employee may
have committed a prohibited personnel practice” under 5 U.S.C. § 2302(b)(8) or
section 2302(b)(9)(A)(i), (B), (C), or (D). 5 U.S.C. § 1221(f)(3). Please note
that while any Special Counsel investigation related to this decision is pending,
“no disciplinary action shall be taken against any employee for any alleged
prohibited activity under investigation or for any related activity without the
approval of the Special Counsel.” 5 U.S.C. § 1214(f).
35
NOTICE OF APPEAL RIGHTS 10
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 yo ur 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).
10
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 t he notice, the
Board cannot advise which option is most appropriate in any matter.
36
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
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
37
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 th eir 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
(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
38
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. 11 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.
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
11
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.
39
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.