Derek J. Farquhar v. Department of Veterans Affairs ( 2014 )

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
DEREK J. FARQUHAR, DOCKET NUMBER
Appellant, DE-1221-14-0164-W-1
v.
DEPARTMENT OF VETERANS DATE: August 13, 2014
AFFAIRS,
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Derek J. Farquhar, Leavenworth, Kansas, pro se.
Kristen F. Trainor, Esquire, Kansas City, Missouri, for the agency.
BEFORE
Susan Tsui Grundmann, Chairman
Anne M. Wagner, Vice Chairman
Mark A. Robbins, Member
FINAL ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
dismissed his individual right of action (IRA) appeal for lack of jurisdiction.
Generally, we grant petitions such as this one only when: the initial decision
contains erroneous findings of material fact; the initial decision is based on an
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
erroneous interpretation of statute or regulation or the erroneous application of
the law to the facts of the case; the 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. See
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, and based on the
following points and authorities, 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 and AFFIRM the initial decision,
which is now the Board’s final decision. 5 C.F.R. § 1201.113(b).
¶2 The appellant, a WS-2 Housekeeping Supervisor, filed an appeal with the
Board alleging that the agency harassed him and subjected him to a hostile work
environment because he reported “[g]ross mismanagement, a gross waste of
funds, an abuse of authority, or a substantial and specific danger to public health
& safety.” Initial Appeal File (IAF), Tab 1. He stated that he filed a
whistleblowing complaint with the Office of Special Counsel (OSC) and attached
a November 14, 2013 letter wherein OSC advised him that it had ended its inquiry
into his allegations and that he may have a right to seek corrective action from the
Board. Id. at 4, 6. He requested a hearing. Id. at 2.
¶3 The administrative judge issued a detailed jurisdictional order, informing
the appellant of his burden to establish jurisdiction by showing that he exhausted
his administrative remedies before OSC and making nonfrivolous allegations that:
(1) he engaged in whistleblowing activity by making a protected disclosure; and
(2) the disclosure was a contributing factor in the agency’s decision to take or fail
to take a personnel action against him. IAF, Tab 3; see Shibuya v. Department of
Agriculture, 119 M.S.P.R. 537, ¶ 25 (2013). He ordered the appellant to file
evidence and argument regarding jurisdiction, including identifying, inter alia,
3
the protected disclosures he made; the dates on which he made such disclosures;
and the actions the agency took, or failed or threatened to take as a result of his
disclosures. IAF, Tab 3 at 5.
¶4 The appellant did not respond to the administrative judge’s jurisdictional
order. The agency then moved to dismiss the appeal, asserting that the appellant
failed to allege sufficient facts in support of his claims that he made protected
disclosures and that the agency subjected him to a hostile work environment
because of his disclosures. IAF, Tab 5 at 4-5. The appellant did not respond to
the agency’s motion.
¶5 After the record closed on jurisdiction, the administrative judge granted the
agency’s motion to dismiss the appellant’s appeal for lack of jurisdiction. IAF,
Tab 7, Initial Decision (ID). Specifically, the administrative judge found that the
appellant failed to establish that he satisfied the exhaustion requirement because
he failed to identify the precise allegations he presented to OSC and also failed to
nonfrivolously allege that he made a protected disclosure and that his protected
disclosure was a contributing factor in the agency’s decision to take or fail to take
a personnel action. 2 ID.¶6 The appellant has filed a petition for review. Petition for Review (PFR)
File, Tab 1. He does not attach any evidence and argues that it was unnecessary
for him to respond to the administrative judge’s jurisdictional order because he
submitted all relevant information to the agency’s Administrative Investigation
Board in May 2013. Id.2
The administrative judge’s initial decision seems to conflate the questions of whether
the appellant exhausted his administrative remedies before OSC and whether he
nonfrivolously alleged that he made a protected disclosure, had a reasonable belief in
his protected disclosure, and that his protected disclosure was a contributing factor in a
personnel action taken against him. See ID at 4. To the extent that this constitutes
error, we discern no harm. See Panter v. Department of the Air Force,
22 M.S.P.R. 281, 282 (1984) (an adjudicatory error that is not prejudicial to a party’s
substantive rights provides no basis for reversal of an initial decision).
4
¶7 The November 2013 OSC letter indicates that the appellant claimed that he
made: (1) “allegations of misconduct at the Department of Veterans Affairs (VA)
Consolidated Mail Outpatient Pharmacy (CMOP), Leavenworth, Kansas, to an
Administrative Board on May 19, 2003”; and (2) “disclosures to [the] CMOP
Director . . . on July 8, 2010, and to the U.S. Occupational Safety and Health
Administration (OSHA), alleging the misuse of a pallet jack by [a] VA
employee.” IAF, Tab 1 at 6. Notwithstanding, we agree with the administrative
judge that the appellant has not identified the specific allegations he raised with
OSC as support for his whistleblower claim and that he failed to nonfrivolously
allege that he made a protected disclosure. Specifically, the appellant failed to
submit his OSC complaint or a letter from OSC detailing its findings. He also
failed, in the alternative, to file evidence or argument indicating the specific
“misconduct” he disclosed to the Administrative Board, why he believed the
pallet jack was being “misused,” 3 and whether he provided OSC with this
information. 4
¶8 Moreover, other than making a bare assertion that he was harassed and
subjected to a hostile work environment, the appellant has not identified any
3
Agency counsel submitted e-mail correspondence she had with the appellant regarding
his discovery responses, wherein he stated that he raised concern about “the operation
of pallet jacks and the Director of CMOP not enforcing the operation of said equipment
in a safe manner.” IAF, Tab 6 at 20. This does not explain, however, why he believed
pallet jacks were being operated in an unsafe manner. The agency also submitted an
August 2010 Incident Report documenting that another agency employee made
regarding the incident where an employee was almost injured by a pallet jack in July
2010. IAF, Tab 5 at 7. The Incident Report makes no mention of the appellant and,
thus, does not appear to concern any disclosure the appellant made. Id. We also note
that the Associate Director who prepared the Incident Report concluded that the
employee at issue “followed procedures while operating the pallet jack.” Id.4
In his petition for review, the appellant states that the agency should not subject
veterans to harassment. PFR File, Tab 1. To the extent that the appellant contends that
he made a protected disclosure regarding the manner in which the agency treats
veterans, he has not established that he raised this issue with OSC.
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personnel action that resulted from his alleged protected disclosures. 5 In
particular, he has not identified any instances of harassment, or any incidents
forming the basis for his claim that he was subjected to a hostile work
environment. He has also failed to state when such actions occurred and explain
why he believes that they are related to his alleged protected disclosures.
Therefore, we agree with the administrative judge that the appellant also has not
met his burden to nonfrivolously allege that protected disclosures were a
contributing factor in any personnel actions taken against him.
¶9 Lastly, we clarify that the Merit Systems Protection Board is an entirely
different entity from both the Veterans Administration’s Administrative
Investigation Board and OSC. We do not have access to records the
Administrative Investigation Board may have that may be relevant to the
jurisdictional issue in this appeal; it was the appellant’s responsibility to submit
such evidence to us, which he failed to do. Moreover, that the appellant reported
information to the Administrative Investigation Board does not establish that he
provided the same information to OSC.
5
In his jurisdictional order, the administrative judge stated that the appellant must
nonfrivolously allege that he made his disclosures to “someone other than the alleged
wrongdoer,” and that a “disclosure made in the normal course of [one’s] job
responsibilities is not protected as whistleblowing.” IAF, Tab 3 at 3-4. This is
incorrect. The Whistleblower Protection Enhancement Act of 2012, Pub. L. No.
112-199, 126 Stat. 1465, which became effective in December 2012, provides
protection to both disclosures made in the course of an employee’s normal duties, and
disclosures made to the alleged wrongdoer. 5 U.S.C. §§ 2302(f)(1)(A), (f)(2); see also
Day v. Department of Homeland Security, 119 M.S.P.R. 589, ¶ 18 (2013). We discern
no harm, however, because the appellant has not identified with specificity any
personnel actions the agency took, failed to take, or threatened to take or fail to take
because of any protected disclosures he may have made. See Panter, 22 M.S.P.R.
at 282. Therefore, even assuming arguendo that the appellant made a protected
disclosure, we still would not have jurisdiction over this appeal.
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NOTICE TO THE APPELLANT REGARDING
YOUR FURTHER REVIEW RIGHTS
You have the right to request review of this final decision by the United
States Court of Appeals for the Federal Circuit.
The court must receive your request for review no later than 60 calendar
days after the date of this order. See 5 U.S.C. § 7703(b)(1)(A) (as rev. eff. Dec.
27, 2012). If you choose to file, be very careful to file on time. The court has
held that normally it does not have the authority to waive this statutory deadline
and that filings that do not comply with the deadline must be dismissed. See
Pinat v. Office of Personnel Management, 931 F.2d 1544 (Fed. Cir. 1991).
If you want to request review of the Board’s decision concerning your
claims of prohibited personnel practices under 5 U.S.C. § 2302(b)(8),
(b)(9)(A)(i), (b)(9)(B), (b)(9)(C), or (b)(9)(D), but you do not want to challenge
the Board’s disposition of any other claims of prohibited personnel practices, you
may request review of this final decision by the United States Court of Appeals
for the Federal Circuit or any court of appeals of competent jurisdiction. The
court of appeals must receive your petition for review within 60 days after the
date of this order. See 5 U.S.C. § 7703(b)(1)(B) (as rev. eff. Dec. 27, 2012). If
you choose to file, be very careful to file on time. You may choose to request
review of the Board’s decision in the United States Court of Appeals for the
Federal Circuit or any other court of appeals of competent jurisdiction, but not
both. Once you choose to seek review in one court of appeals, you may be
precluded from seeking review in any other court.
If you need further information about your right to appeal this decision to
court, you should refer to the federal law that gives you this right. It is found in
Title 5 of the United States Code, section 7703 (5 U.S.C. § 7703) (as rev. eff.
Dec. 27, 2012). You may read this law as well as other sections of the United
States Code, at our website, http://www.mspb.gov/appeals/uscode.htm.
Additional information about the United States Court of Appeals for the Federal
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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, and 11.
Additional information about other courts of appeals can be found at their
respective websites, which can be accessed
through http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx.
If you are interested in securing pro bono representation for an appeal to the
United States Court of Appeals for the Federal Circuit, you may visit our website
at http://www.mspb.gov/probono for a list of attorneys who have expressed
interest in providing pro bono representation for Merit Systems Protection Board
appellants before the Federal Circuit. The Merit Systems Protection Board
neither endorses the services provided by any attorney nor warrants that any
attorney will accept representation in a given case.
FOR THE BOARD: ______________________________
William D. Spencer
Clerk of the Board
Washington, D.C.