John D. Evans v. Department of the Air Force ( 2014 )

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
JOHN D. EVANS, DOCKET NUMBER
Appellant, DA-1221-13-0422-W-1
v.
DEPARTMENT OF THE AIR FORCE, DATE: September 2, 2014
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
John D. Evans, Normal, Illinois, pro se.
Charles R. Vaith, Esquire, Randolph Air Force Base, Texas, 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
denied his request for corrective action in connection with his individual right of
action (IRA) appeal. Generally, we grant petitions such as this one only when:
the initial decision contains erroneous findings of material fact; the initial
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
decision is based on an erroneous interpretation of statute or regulation or the
erroneous application of the law to the facts of the case; the 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, formerly a GS-13 Educational Services Officer, filed an IRA
appeal, submitting a closure letter from the Office of Special Counsel (OSC).
Initial Appeal File (IAF), Tab 1. In the letter, OSC stated that it had terminated
its inquiry into the appellant’s complaint in which he alleged that the agency
retaliated against him for reporting violations of agency regulations by issuing
him an unwarranted Letter of Reprimand, failing to promote him, changing his
work duties, promoting another employee (R.G.) over him through a settlement
agreement, and subjecting him to disparate procedures when he made
work-related requests. Id. at 4. The appellant declined a hearing. Id. at 2.
¶3 In response to the administrative judge’s jurisdictional order, IAF, Tab 4,
the appellant described his disclosure as involving Air Force Instruction (AFI)
36-2605, which deals with the Air Force Military Personnel Testing System, IAF,
Tab 6, and he claimed that he disclosed that the agency had appointed certain
employees to perform Weighted Airman Promotion System testing without
appropriate security clearances, as required by AFI 36-2605, resulting in security
violations, id. at 3. He indicated, and provided evidence to show, that he
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disclosed this matter to various agency officials and other individuals, including
Senator Kay Bailey Hutchison, beginning in October 2009 and continuing through
August 2012. Id. at 1-2, 29-30. The appellant alleged that, in retaliation for his
disclosure, the agency improperly promoted R.G. over him in June 2011, and
forced him and his staff to participate in an external manpower study for
excessive overtime use and that, after he resigned on July 27, 2012, agency
officials misinformed the Texas Workforce Commission (TWC) that he quit his
job because he felt he was a victim of harassment, resulting in his being denied
unemployment benefits. Id. at 4, 59. The appellant stated that he filed his
complaint with OSC on November 13, 2012. Id. at 6.
¶4 The agency moved that the appeal be dismissed for lack of jurisdiction on
the basis that the appellant had filed an earlier IRA appeal involving the same
protected disclosure and that the administrative judge in that case had denied the
appellant’s request for corrective action. IAF, Tab 7; see Evans v. Department of
the Air Force, MSPB Docket No. DA-1221-12-0240-W-1, Initial Decision (June
22, 2012). 2 The administrative judge advised the appellant that she planned to
dismiss his current appeal on the basis of res judicata unless he showed that his
most recent OSC complaint involved allegations of retaliation for whistleblowing
that were not previously adjudicated. IAF, Tab 9; see Peartree v. U.S. Postal
Service, 66 M.S.P.R. 332, 337 (1995). In response, the appellant submitted a
number of emails he sent to OSC concerning the security violations, IAF, Tab 10
at 8-12, 13-17, the agency’s promotion of R.G. over him, id. at 32-33, the alleged
misinformation provided to the TWC, id. at 43-44, and the external manpower
study of excessive use of overtime in which he alleged he was forced to
participate, IAF, Tab 11 at 4-6.
¶5 The administrative judge ruled that the personnel actions addressed in the
appellant’s earlier IRA appeal were barred by res judicata. IAF, Tab 12. She
2
That decision became the Board’s final decision on July 27, 2012, when neither party
filed a petition for review.
4
found that the matter of the agency’s allegedly providing incorrect information to
the TWC, resulting in the appellant’s being denied unemployment compensation,
was not a personnel action because it did not involve a decision made by the
agency. The administrative judge ordered the appellant to submit further
information concerning his failure to be promoted, the agency’s promoting R.G.
over him, the change of his work duties, his being subjected to disparate
procedures when making work-related requests, and his being forced to
participate in an external manpower study of excessive overtime use. Id. The
appellant made several further submissions. IAF, Tabs 13, 15.
¶6 Thereafter, the administrative judge determined that the issue to be resolved
was whether the agency retaliated against the appellant by promoting R.G. to a
position over him because he disclosed to various people on various occasions
that agency officials were violating AFI 36-2605 by allowing individuals without
the proper security clearance to conduct certain testing and failing to disclose this
violation. 3 IAF, Tab 16.
¶7 In her initial decision based on the written record, the administrative judge
denied the appellant’s request for corrective action. IAF, Tab 21, Initial Decision
(ID) at 1, 15. After repeating her earlier rulings, 4 ID at 6-9, the administrative
3
The administrative judge noted that the appellant had earlier indicated that he was not,
in fact, claiming that he was denied a promotion in retaliation for protected
whistleblowing. The administrative judge confirmed her earlier ruling concerning the
issues barred by res judicata, and she found that, although the appellant raised before
OSC issues regarding the change of his work duties, his being subjected to disparate
procedures when making work-related requests, and his being forced to participate in an
external manpower study on excessive overtime use, he failed to show that he provided
OSC with a sufficient basis to pursue an investigation which might lead to corrective
action regarding those claims and that therefore the Board lacked jurisdiction over
them. IAF, Tab 16.
4
The administrative judge acknowledged that the basis for the denial of corrective
action in the appellant’s earlier IRA appeal, that his disclosures were made in the
normal performance of his duties and were therefore not protected, was an
interpretation of the Whistleblower Protection Act which has since been abrogated by
the Whistleblower Protection Enhancement Act. See Day v. Department of Homeland
Security, 119 M.S.P.R. 589, ¶ 18 (2013). The administrative judge found, however, that
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judge found that the appellant did establish the Board’s jurisdiction over his
claim that R.G. was given a promotion over him in retaliation for his
whistleblowing. The administrative judge found that the appellant’s disclosure
regarding the agency’s violation of AFI 36-2605 was protected and that it was a
contributing factor in the agency’s promoting R.G. over him because agency
officials were aware of the appellant’s disclosure before the agency entered into a
settlement agreement with R.G., which had the effect of making her the
appellant’s supervisor. ID at 9-10. The administrative judge found, however,
that the agency showed by clear and convincing evidence that it would have
placed R.G. in that position, even absent the appellant’s protected disclosure. ID
at 10-15.
¶8 The appellant has filed a petition for review, Petition for Review (PFR)
File, Tab 1, the agency has filed a response, PFR File, Tab 5, and the appellant
has submitted a reply thereto. 5 PFR File, Tab 7.
¶9 An employee or a former employee like the appellant may seek corrective
action under the Whistleblower Protection Act concerning any “personnel action”
taken or proposed to be taken against him as a result of a prohibited personnel
practice described in 5 U.S.C. § 2302(b)(8). 5 U.S.C. § 1221(a); Mattil v.
Department of State, 118 M.S.P.R. 662, ¶ 14 (2012). In an IRA appeal, after
establishing the Board’s jurisdiction, the appellant must then establish a prima
the res judicata consequences of the earlier initial, and now final, decision are
unaffected by the subsequent change in the law. ID at 7 n.1; see Federated Department
Stores, Inc. v. Moitie, 452 U.S. 394, 398 (1981).
5
With his reply, the appellant has submitted evidence which he asks the Board to
consider. PFR File, Tab 7. A copy of the appellant’s residential lease is not material to
the dispositive issues in his appeal. See Russo v. Veterans Administration, 3 M.S.P.R.
345, 349 (1980). A copy of a February 3, 2011 letter from the appellant to Senator
Hutchison is part of the record below, IAF, Tab 10 at 6, and therefore is not new
evidence, see Meier v. Department of the Interior, 3 M.S.P.R. 247, 256 (1980). And, a
copy of the agency’s April 4, 2011 reply to that letter is also not new evidence because
the appellant has not shown that it was unavailable before the record was closed despite
his due diligence. See Avansino v. U.S. Postal Service, 3 M.S.P.R. 211, 214 (1980).
6
facie case of whistleblower retaliation by proving by preponderant evidence that
he made a protected disclosure that was a contributing factor in a personnel action
taken against him. Mattil, 118 M.S.P.R. 662, ¶ 11.
¶10 As noted, the administrative judge found that the appellant made a protected
disclosure regarding AFI 36-2605 and that the disclosure was a contributing
factor in the agency’s promoting R.G. into a position supervising him. ID
at 9-10. On review, the appellant argues that the administrative judge failed to
consider considerable evidence he submitted showing that the agency did not
comply with AFI 36-2605 and that various agency officials falsely stated in their
affidavits that they did not violate any security regulations and/or were unaware
of any violations. PFR File, Tab 1 at 1-3. In assessing whether disclosures are
protected, however, an appellant is not required to prove that the alleged
misconduct actually occurred. The test for protected status is not the truth of the
matter disclosed but whether it was reasonable believed. Shannon v. Department
of Veterans Affairs, 121 M.S.P.R. 221, ¶ 28 (2014); see Special Counsel v.
Spears, 75 M.S.P.R. 639, 654 (1997). In finding that the appellant’s disclosure
was protected, the administrative judge necessarily found that a disinterested
observer with knowledge of the essential facts known to and readily ascertainable
by the appellant could reasonably conclude that, by allowing individuals without
the proper security clearance to conduct certain testing, the agency violated AFI
36-2605 and that this evidenced a violation of law, rule, or regulation. See
Shibuya v. Department of Agriculture, 119 M.S.P.R. 537, ¶ 27 (2013). The
appellant was not required to prove, and the administrative judge was not
required to find, an actual violation.
¶11 The administrative judge then addressed whether the agency proved by clear
and convincing evidence that it would have promoted R.G. to a position over the
appellant, even absent his protected disclosures. ID at 10-15; see Shibuya,
119 M.S.P.R. 537, ¶ 32. In this regard, she first considered whether the agency
had a legitimate reason for its action. She found that, in 2010, R.G. successfully
7
challenged the agency’s action reducing her in grade by means of reduction in
force, that the Board found that she was entitled to bump into the appellant’s
position, IAF, Tab 19, Agency Exhibit (Ex.) 5 (R.G. v. Department of the Air
Force, MSPB Docket No. DA-0351-11-0033-I-1, Initial Decision (Feb. 17,
2011)), and that the agency thereafter settled her compliance appeal by placing
her in the vacant position of Force Development Flight Chief, GS-12, IAF,
Tab 19, Agency Ex. 4, a position to which the appellant, although a GS-13,
reported, IAF, Tab 19, Agency Ex. 3. ID at 10-14. The administrative judge
relied on the sworn declaration of Lieutenant Colonel E.B., Squadron
Commander, who signed the settlement agreement in R.G.’s case on behalf of the
agency, in which he stated that his decision to agree to her placement to avoid
any further liability or judgments against the agency was based on the advice of
his servicing legal and civilian personnel office. IAF, Tab 19, Agency Ex. 2.
E.B. stated, moreover, that he did not consider the impact R.G.’s placement
would have on the appellant or his disclosure regarding AFI 36-2605. Id. Further
finding that, according to an organizational chart, the prior Flight Chief was also
a GS-12 and also the appellant’s supervisor, and notwithstanding his claim that
the agency’s action was improper, the administrative judge concluded that the
agency showed by clear and convincing evidence that it had legitimate reasons to
enter into the settlement agreement with R.G. making her a GS-12 Flight Chief.
ID at 12-14.
¶12 The administrative judge next considered whether agency officials involved
in the decision were motivated to retaliate against the appellant. She considered
E.B.’s sworn declaration that he did not consider the appellant’s disclosures
regarding AFI 36-2605 when he entered into the agreement resolving R.G.’s
appeal because that matter was addressed prior to his taking over the Command
and resolved soon thereafter. ID at 13; IAF, Tab 19, Agency Ex. 2. She found
that a specific email from E.B. did not show a motive to retaliate, but rather that,
on its face, it showed only E.B.’s acknowledgement of the investigation into the
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testing issue and his assertion that he and his Command would “stand by to
support whatever the investigation needs.” See ID at 14; IAF, Tab 20 at 9. The
appellant argues on review that E.B. lied in his declaration because the
investigation took place after he became Commander. PFR File, Tab 1 at 5. The
appellant also claims that the administrative judge failed to consider an affidavit
he submitted from a coworker, which, he alleges, shows clear evidence of
retaliation. Id. In the affidavit, J.J., Guidance Counselor, states that the appellant
resigned his position because agency officials violated Program Action Directive
07-11, which governs the authority and responsibility of work sections and
personnel as directed by the agency. IAF, Tab 10 at 50-51. J.J. states that the
appellant notified various officials of the violations but that he was undermined
in his efforts. Id. Beyond his own statement, the appellant has failed to show
how either E.B.’s declaration and email, or J.J.’s affidavit, evidences retaliation
against him for his disclosure regarding AFI 36-2605. The administrative judge’s
failure to mention all of the evidence of record does not mean that she did not
consider it in reaching her decision. See Marques v. Department of Health &
Human Services, 22 M.S.P.R. 129, 132 (1984), aff’d, 776 F.2d 1062 (Fed. Cir.
1985) (Table). In any event, the appellant has not shown that the administrative
judge’s failure to consider J.J.’s affidavit was prejudicial to his rights. See
Panter v. Department of the Air Force, 22 M.S.P.R. 281, 282 (1984).
¶13 Finally, the administrative judge found that neither party submitted any
evidence that the agency took similar actions against any other employees. ID
at 14. The appellant has not challenged this statement and we find no basis to
disturb it.
¶14 Having considered all the pertinent evidence in the record, the
administrative judge concluded that the agency showed by clear and convincing
evidence that it would have placed R.G. in the position it did, even if the
appellant had not engaged in whistleblowing. ID at 14-15; see Whitmore v.
Department of Labor, 680 F.3d 1353, 1368 (Fed. Cir. 2012); Carr v. Social
9
Security Administration, 185 F.3d 1318, 1323 (Fed. Cir. 1999). Based on the
appellant’s arguments on review, we discern no reason to reweigh the evidence or
substitute our assessment of the record for that of the administrative judge. 6 See
Crosby v. U.S. Postal Service, 74 M.S.P.R. 98, 105-06 (1997).
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
6
The appellant argues on review that the agency retaliated against him by not changing
his supervisors in July 2010, November 2010, and June 2011. PFR File, Tab 1 at 7.
This alleged personnel action was not included among the issues to be adjudicated in
this appeal as set forth in the administrative judge’s August 15, 2013 summary of her
rulings during the close of the record conference. IAF, Tab 16. In that summary, the
administrative judge advised the parties that any objections to her summary must be
received by August 27, 2013. Id. The appellant responded but did not raise an issue
regarding the agency’s alleged failure to change his supervisors. IAF, Tab 18. His
failure to object to the administrative judge’s ruling below precludes his doing so on
petition for review. See Tarpley v. U.S. Postal Service, 37 M.S.P.R. 579, 581 (1988).
10
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
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
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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.