Toneisha Basil v. Department of the Navy ( 2023 )

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
TONEISHA M. BASIL, DOCKET NUMBER
Appellant, DC-1221-21-0633-W-1
v.
DEPARTMENT OF THE NAVY, DATE: March 23, 2023
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Toneisha M. Basil, Washington, D.C., pro se.
Jacob Smith, Washington, D.C., for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
Tristan L. Leavitt, Member 2
FINAL ORDER
¶1 The appellant has filed a petition for review of the initial decision,
which dismissed her individual right of action (IRA) appeal for lack of
jurisdiction. Generally, we grant petitions such as this one only in the following
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
Member Leavitt’s name is included in decisions on which the three -member Board
completed the voting process prior to his March 1, 2023 departure.
2
circumstances: the initial decision contains erroneous findings of material fact;
the initial decision is based on an erroneous interpretation of statute or regulation
or the erroneous application of the law to the facts of the case; the administrative
judge’s rulings during either the course of the appeal or the initial decision
were not consistent with required procedures or involved an abuse of discretion,
and the resulting error affected the outcome of the case; or new and material
evidence or legal argument is available that, despite the petitioner’s due
diligence, was not available when the record closed. Title 5 of the Code of
Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). After fully
considering the filings in this appeal, we conclude that the petitioner has not
established any basis under section 1201.115 for granting the petition for review.
Therefore, we DENY the petition for review. Except as expressly MODIFIE D
regarding the basis for concluding the Board lacks jurisdiction over the appeal ,
we AFFIRM the initial decision.
BACKGROUND
¶2 The appellant is employed as a GS-9 Government Information Specialist
with the agency’s Security Programs and Information Management Branch
within its Marine Corps’ Freedom of Information Act (FOIA) and Privacy
Programs. Initial Appeal File (IAF), Tab 4 at 94. According to the appellant, in
September and October 2020, she questioned her first-level supervisor, who was
the Freedom of Information Act/Privacy Act (FOIA/PA) Programs Manager, as
well as other agency officials, about whether FOIA exemptions were being
misapplied. Id. at 5-11, 22, 27-28, 97-104. Around October 2020, the appellant
also allegedly disclosed that her first-level supervisor was harassing her and
acting dismissively toward her. Id. at 95, 105-09, 213; Petition for Review
(PFR) File, Tab 1 at 26. 3 Lastly, she allegedly disclosed that “improprieties were
3
On review, the appellant submits a copy of the preliminary determination letter from
the Office of Special Counsel (OSC) that was not part of the record below. PFR File,
3
occurring regarding lunch breaks and related break policy interpretations.” PFR
File, Tab 1 at 26.
¶3 According to the appellant, as a result of these disclosures, she was
subjected to retaliation, including an October 20, 2020 letter of caution, an
October 2020 security investigation, a November 23, 2020 letter of reprimand, a
January 2021 revocation of her swipe access to enter her work space, and a
hostile work environment. IAF, Tab 4 at 11, 15, 19-20, 52, 94-96, 149-51,
198-203; PFR File, Tab 1 at 26-27.
¶4 The appellant filed a whistleblower reprisal complaint with the Office of
Special Counsel (OSC). IAF, Tab 4 at 249. OSC issued her a final determination
letter in July 2021, closing out its investigation into her complaint. Id. at 249-50.
The appellant, acting pro se, filed this IRA appeal with the Board. IAF, Tab 1
at 1, 4. The administrative judge issued an order setting forth the appellant’s
burden to establish jurisdiction over her IRA appeal, to which the appellant
responded. IAF, Tab 3, Tab 4 at 4-24.
¶5 Following the appellant’s jurisdictional response, the administrative judge
issued an initial decision, dismissing the appeal for lack of jurisdiction. IAF,
Tab 5, Initial Decision (ID) at 1, 10. She did not make findings regarding the
appellant’s alleged disclosures. ID at 7 n.2, 10 n.3. Instead, she found that the
Board lacks jurisdiction over the alleged personnel actions. She determined that
the appellant exhausted her administrative remedies before OSC concerning the
letter of caution, security investigation, and letter of reprimand. ID at 6-7. She
also implicitly found that the appellant exhausted her OSC remedy regarding an
Tab 1 at 26-28. Generally, the Board will not consider evidence submitted for the first
time with a petition for review absent a showing that it was unavailable before the
record was closed despite the party’s due diligence. Avansino v. U.S. Postal Service,
3 M.S.P.R. 211, 214 (1980). Even though this document was available before the close
of record, the issue of jurisdiction is always before the Board and may be raised at any
time. Stoglin v. Department of the Air Force, 123 M.S.P.R. 163, ¶ 7 (2015), aff’d per
curiam, 640 F. App’x 864 (Fed. Cir. 2016). Thus, we will consider the OSC letter here
to the extent it impacts the Board’s jurisdiction over t his appeal.
4
alleged hostile work environment. ID at 7 & n.2. However, she found that the
letter of caution and security inquiry did not amount to personnel actions over
which the Board could exercise IRA jurisdiction. ID at 8-10. She also concluded
that the Board lacks jurisdiction over the appellant’s letter of reprimand because
she elected to file a grievance before filing an IRA appeal. ID at 7-8, 10. As to
the alleged hostile work environment, the administrative judge reasoned that the
appellant’s allegations were too conclusory, vague, or unsupported to amount to a
nonfrivolous allegation of a personnel action. ID at 7 n.2.
¶6 The appellant has filed a petition for review of the initial decision. PFR
File, Tab 1. 4 The agency has responded to the appellant’s petition. PFR File,
Tab 3. The appellant has replied to the agency’s response. PFR File, Tab 4.
DISCUSSION OF ARGUMENTS ON REVIEW
¶7 To establish jurisdiction in a typical IRA appeal, an appellant must show by
preponderant evidence that she exhausted her remedies before OSC and make
nonfrivolous allegations of the following: (1) she made a disclosure described
under 5 U.S.C. § 2302(b)(8) or engaged in a protected activity described under
5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D); and (2) the disclosure or protected
activity was a contributing factor in the agency’s decision to take or fail to take a
personnel action as defined by 5 U.S.C. § 2302(a). Corthell v. Department of
Homeland Security, 123 M.S.P.R. 417, ¶ 8 (2016). A nonfrivolous allegation is
an assertion that, if proven, could establish the matter at issue. 5 C.F.R.
§ 1201.4(s). The U.S. Court of Appeals for the Federal Circuit has found that, in
4
On review, the appellant also resubmitted documentation that was already part of the
record below. E.g., compare IAF, Tab 4 at 249-50, with PFR File, Tab 1 at 29-30;
compare IAF, Tab 3, with PFR File, Tab 1 at 31-39. Evidence that is already part of the
record is not new evidence that warrants granting review. Meier v. Department of the
Interior, 3 M.S.P.R. 247, 256 (1980); see 5 C.F.R. § 1201.115(d) (identifying new and
material evidence as a basis on which the Board may, in appropriate circumstances,
grant review). In any event, we have considered all of the evidence in the record that
relates to the Board’s jurisdiction, regardless of when it was submitted. See Stoglin,
123 M.S.P.R. 163, ¶ 7.
5
the context of an IRA appeal, a nonfrivolous allegation is an a llegation of
“sufficient factual matter, accepted as true, to state a claim that is plausible on its
face.” Hessami v. Merit Systems Protection Board, 979 F.3d 1362, 1364, 1369
(Fed. Cir. 2020).
¶8 The parties do not dispute the administrative judge’s findings regarding
exhaustion, and we discern no basis to disturb them here. 5 ID at 6-7 & n.2; IAF,
Tab 4 at 249-50. We agree with the administrative judge’s conclusion that the
appellant failed to establish Board jurisdiction. However, we disagree with her
finding that the appellant’s administrative grievance of her letter of reprimand
divested the Board of jurisdiction over that personnel action. Instead, as
discussed below, we conclude that the Board lacks jurisdiction over the instant
appeal because the appellant failed to nonfrivolously allege that she made a
protected disclosure.
The administrative judge erred in finding the app ellant failed to nonfrivolously
allege that she suffered a personnel action.
¶9 Although not directly addressed by the administrative judge, w e find that
the appellant nonfrivolously alleged that her letter of reprimand is a personnel
action. IAF, Tab 4 at 149-51; see Horton v. Department of Veterans Affairs,
106 M.S.P.R. 234, ¶ 18 (2007) (stating that a letter of reprimand is a personnel
action). The appellant’s supervisor indicated that the letter was considered “a
first offense should subsequent discipline need to be imposed” and it would
remain in the appellant’s Official Personnel File for 2 years. 6 IAF, Tab 4
at 150-51. The administrative judge determined that the Board lacks jurisdiction
over the reprimand because the appellant elected to grieve it. ID at 7-8. The
appellant disagrees, arguing that her grievance was not filed pursuant to a
5
To the extent the appellant argues on review that the administrative judge imp roperly
found she failed to exhaust her OSC remedy, she is mistaken. PFR File, Tab 1 at 4-6.
6
The 2-year period was later reduced to 6 months during the administrative grievance
process. IAF, Tab 4 at 204-06.
6
negotiated grievance process and, therefore, it did not preclude Board
jurisdiction. PFR File, Tab 1 at 6-7. We agree with the appellant.
¶10 Under 5 U.S.C. § 7121(g), an individual who is covered by a collective
bargaining agreement and who believes that she has suffered reprisal for making
protected disclosures may elect not more than one of the following three
remedies: (1) a direct appeal to the Board under 5 U.S.C. § 7701; (2) a grievance
filed pursuant to the provisions of the negotiated grievance procedure; or (3) the
procedures for seeking corrective action from OSC followed by an IRA appeal.
Sherman v. Department of Homeland Security, 122 M.S.P.R. 644, ¶ 12 (2015);
Shannon v. Department of Homeland Security, 100 M.S.P.R. 629, ¶ 15 (2005).
Whichever remedy is sought first is deemed an election of that procedure and
precludes pursuing the matter in either of the other two fora. Sherman,
122 M.S.P.R. 644, ¶ 12.
¶11 In the instant appeal, the appellant sought to “challenge the OSC’s
determination dated . . . July 31, 2021.” IAF, Tab 1 at 4. Thus, she did not file a
direct appeal with the Board. In any event, she has not alleged she suffered an
appealable action that might be the subject of a Board appeal under 5 U.S.C.
§ 7701. Thus, even if she had filed a direct appeal, it would not be a binding
election to pursue that option. See Shannon, 100 M.S.P.R. 629, ¶ 17 (determining
that if an appellant elects to directly appeal a matter to the Board over which it
does not have appellate jurisdiction, such an appeal is not a binding election of
remedy). The remaining election options are filing either a grievance or an OSC
complaint followed by a Board appeal.
¶12 Here, the appellant filed an administrative grievance over her letter of
reprimand, which was governed by Civilian Marine Corps Order 12771.3,
Civilian Marine Administrative Grievance System (MCO 12771.3) (Mar. 28,
7
2013). 7 IAF, Tab 4 at 149-51, 204. This internal grievance process does not
cover matters that can be raised through a negotiated grievance procedure.
MCO 12771.3 at 2. There is also no indication in the record that the appellant is
covered by a collective bargaining agreement. Thus, by filing the administrative
grievance, the appellant did not elect a remedy pursuant to 5 U.S.C. § 7121(g)
that would preclude Board jurisdiction over this appeal. See Mason v.
Department of Homeland Security, 116 M.S.P.R. 135, ¶ 3 n.1 (2011) (finding that
the fact that the appellant filed grievances of personnel actions did not preclude
Board IRA jurisdiction over those actions when the grievances were not filed
pursuant to a collective bargaining agreement); Garrison v. Department of
Defense, 101 M.S.P.R. 229, ¶ 16 (2006) (same). Thus, we disagree with the
administrative judge that the appellant’s grievance divests the Board of
jurisdiction over the letter of reprimand. The appellant met her jurisdictio nal
burden as to this personnel action.
¶13 The appellant has also raised challenges to the administrative judge’s
findings that the appellant failed to nonfrivolously allege that she suffered
personnel actions when she received a letter of caution and was subjected to an
investigation. PFR File, Tab 1 at 9-20; ID at 7 n.2, 8-10. Further, she appears to
re-raise her claim that her first-level supervisor harassed her in retaliation for her
disclosures. PFR File, Tab 1 at 10, 18-19. In cases involving multiple alleged
protected disclosures and multiple alleged personnel actions, when the appellant
makes a nonfrivolous allegation that at least one alleged personnel action was
taken in retaliation for at least one alleged protected disclosure, she establishes
7
Although the parties did not provide a copy of MCO 12771.3, we take
administrative notice of its contents, which are available online at
https://www.marines.mil/Portals/1/Publications/MCO%2012771.3.pdf . 5 C.F.R.
§ 1201.64 (providing that an administrative judge may take official notice of matters of
common knowledge or matters that can be verified); see Hessami, 979 F.3d at 1369 n.5
(acknowledging that at the jurisdictional stage in an IRA appeal, the Board may
consider matters subject to judicial notice) (citation omitted).
8
the Board’s jurisdiction over her IRA appeal. Horton, 106 M.S.P.R. 234, ¶ 14.
Therefore, we find it unnecessary to address these other alleged personnel
actions. Instead, as discussed below, we find that the Board lacks jurisdiction
because the appellant failed to nonfrivolously allege that she made a
protected disclosure.
The appellant failed to nonfrivolously allege that she made a protected disclosure
regarding possible misapplication of FOIA exemptions.
¶14 Because the administrative judge determined that the appellant did not
suffer a personnel action, she did not analyze whether the appellant made
nonfrivolous allegations of a protected disclosure. ID at 10 n.3. Therefore, we
address this issue here.
¶15 A protected disclosure is one that an appellant reasonably believes
evidences any violation of any law, rule, or regulation, gross mismanagement, a
gross waste of funds, an abuse of authority, or a substantial and specifi c danger to
public health or safety. 5 U.S.C. § 2302(b)(8); Mudd v. Department of Veterans
Affairs, 120 M.S.P.R. 365, ¶ 5 & n.3 (2013). The proper test for determining
whether an employee had a reasonable belief that her disclosures we re protected
is whether a disinterested observer in her position with knowledge of the essential
facts known to and readily ascertainable by the employee could reasonably
conclude that the actions evidenced any of the conditions set forth in 5 U.S.C.
§ 2302(b)(8). Mudd, 120 M.S.P.R. 365, ¶¶ 5, 8. Any doubt or ambiguity as to
whether an appellant raised a nonfrivolous allegation of a reasonable belief
should be resolved in favor of a finding that jurisdiction exists. Id., ¶ 9.
Communications concerning policy decisions that lawfully exercise discretionary
authority are not protected whistleblowing unless the employee reasonably
believes that the disclosure evidences one of the categories of wrongdoing listed
in section 2302(b)(8). 5 U.S.C. § 2302(a)(2)(D); Webb v. Department of the
9
Interior, 122 M.S.P.R. 248, ¶ 8 n.6 (2015); O’Donnell v. Merit Systems
Protection Board, 561 F. App’x 926 (Fed. Cir. 2014). 8
¶16 The appellant alleges that she disclosed an error in which FOIA exemption
the agency should invoke in withholding an agency climate survey that was the
subject of a FOIA request. IAF, Tab 4 at 27. As background, FOIA requires the
disclosure of certain Government records and information unless they fall under
one of nine exemptions. 5 U.S.C. § 552(a)-(b); Department of Justice Guide
to the FOIA (DOJ Guide), Introduction at 1, 6 (Feb. 14, 2020),
https://www.justice.gov/oip/page/file/1248371/download. The appellant
disagreed with the agency’s use of two of those exemptions, commonly known as
exemptions 4 and 5. Exemption 4 applies to “trade secrets and commercial or
financial information obtained from a person and privileged or confidential.”
5 U.S.C. § 552(b)(4). FOIA exemption 5 generally applies, in relevant part, to
“inter-agency or intra-agency memorandums or letters that would not be available
by law to a party other than an agency in litigation with the agency.” 5 U.S.C.
§ 552(b)(5).
¶17 The appellant’s duties included reviewing and responding to FOIA/PA
requests, including determining whether any exemptions applied to the
information and records being requested. IAF, Tab 4 at 27-28, 85-87, 142. She
alleged below that, on September 16, October 21, and November 2, 2020, she
emailed her first-level supervisor and other managers, questioning whether FOIA
exemptions were being misapplied. IAF, Tab 4 at 6-11, 27-28, 41-44, 97, 99-101.
She also exhausted, at a minimum, her September 16 and November 2, 2020
8
The Board may follow nonprecedential Federal Circuit decisions that it finds
persuasive, as we do here. Dean v. Office of Personnel Management, 115 M.S.P.R.
157, ¶ 14 (2010).
10
FOIA disclosures with OSC. 9 IAF, Tab 4 at 236, 238-39, 249; PFR File, Tab 1
at 26.
¶18 The appellant’s colleagues and first-level supervisor advised her that she
should cite to exemptions 5 and 6, rather than to exemption 4, when explaining
why the agency was not releasing the climate survey. IAF, Tab 4 at 29-31. The
appellant alleged she disclosed to her first-level supervisor and other agency
officials that, in essence, exemption 4, which covers commercial information,
“had enough coverage” to permit withholding the requested climate survey. Id.
at 100. She also disagreed with her supervisor that exemption 5 applied to certain
portions of the survey, reasoning that exemption 5 concerned “letters or
memoranda” and therefore did not include findings, reports, or surveys such as
the climate survey. Id. at 28, 100. She has not alleged that she disclosed that the
agency wrongfully withheld or intended to withhold information it was required
to disclose under FOIA. Id. at 27-28, 99-100.
¶19 The DOJ Guide makes clear that FOIA exemptions “describe specific
categories of information that are protected from disclosure, and generally they
are discretionary, not mandatory, in nature.” DOJ Guide, Introduction at 6. The
language of FOIA is consistent with this interpretation, as it provides that
agencies “shall make available to the public” certain information but that this
mandate “does not apply” to information subject to an exemption. 5 U.S.C.
§ 552(a)-(b); see Chrysler Corp. v. Brown, 441 U.S. 281, 290-94 (1979) (finding
that the “language, logic, and history” of FOIA does not require an agency to
withhold information that could be the subject of an exemption) . FOIA does not
9
Although the appellant has not provided evidence that she specifically raised with
OSC her October 21, 2020 disclosure, we find that by exhausting her September and
November 2020 disclosures, she provided OSC with sufficient basis to pursue an
investigation into her intervening alleged disclosure of the same wrongdoing. See
Chambers v. Department of Homeland Security, 2022 MSPB 8, ¶ 10 (explaining that the
substantive requirements of exhaustion are met when an appellant has provided OSC
with sufficient basis to pursue an investigation) (citations omitted).
11
require that an agency withhold information pursuant to an exemption. Brown,
441 U.S. at 291-93. To establish jurisdiction over her FOIA disclosure, the
appellant must nonfrivolously allege that she reasonably believed it evidenced
wrongdoing under 5 U.S.C. § 2302(b)(8). 5 U.S.C. § 2302(a)(2)(D).
¶20 There is no indication in the record that the appellant is a lawyer. There are
also several references in the record to the appellant being a “new hire” starting
in approximately August 2020 and reflecting that she was in the process of
learning how to respond to FOIA requests. IAF, Tab 4 at 22, 134, 150, 231-32.
These factors favor a finding that the reasonable person in her position could
believe that the misapplication of FOIA exemptions violated the statute . See
Mudd, 120 M.S.P.R. 365, ¶ 9 (2013) (considering an appellant’s lack of expertise
and experience in legal matters in finding that she made a nonfrivolous allegation
that the agency violated various laws, rules, and regulations). However, the
appellant indicated that, upon starting in her new position, she read the DOJ
Guide for “roughly three weeks . . . with a fine highlighter.” IAF, Tab 4 at 7, 99,
236. She then relied on the DOJ Guide both in her disclosures and in her
pleadings as the basis for her belief that FOIA exemptions were being misapplied.
Id. at 9, 100. Because the appellant both stated and demonstrated her familiarity
with the DOJ Guide, we find that she failed to nonfrivolously allege that a
reasonable person in her position could have believed the agency violated the law
by exercising its discretion to elect which exemptions to cite.
¶21 Similarly, in O’Donnell, the court concluded that a Federal employee
could not reasonably believe that his supervisor’s determination that a landowner
was not eligible for Government assistance was a violation of the Conservation
Reserve Program law. O’Donnell, 561 F. App’x at 930. The court reasoned that
the law granted discretionary authority to the agency, and the appellant’s
supervisor was in charge of exercising that discretion. Id. Here, as in the case of
the law at issue in O’Donnell, agencies generally have discretion to apply FOIA
exemptions, provided they do not withhold information they are required to
12
release under FOIA. Further, as the appellant acknowledged, her supervisor had
the authority to determine whether to exercise that discretion. IAF, Tab 4 at 8,
28, 94, 98. Therefore, we find the appellant could not have reasonably believed
that the agency’s choice to rely on what she personally viewed as the incorrect
FOIA exemption was a violation of law.
¶22 Lastly, the appellant’s claim that in making her disclosure she primarily
sought clarification from her supervisor about how the FOIA exemptions are
applied further supports our finding that she did not reasonably believe that her
disclosure evidenced the misconduct listed in section 2302(b)(8). IAF, Tab 4
at 9, 27-28; Webb, 122 M.S.P.R. 248, ¶¶ 11-12 (finding that an appellant’s emails
to agency officials requesting clarification as to whether a proposed policy ran
afoul of agency regulations did not constitute a disclosure of a violation of law,
rule, or regulation). Thus, we find that the appellant failed to nonfrivolously
allege that her communications about the agency’s misapplication of FOIA
exemptions were protected disclosures.
The appellant failed to nonfrivolously allege that she made a protected disclosure
of harassment by her first-level supervisor.
¶23 On review, it is unclear whether the appellant re-raises her October 2020
disclosures of supervisory harassment. However, she attaches her October 20,
2020 letter of caution, which reflects that she accused her supervisor of
“borderline harassment and intimidation” earlier that month. PFR File, Tab 1
at 42. Interpreting this pro se appellant’s petition for review in the light most
favorable to her, we read her submission as re -raising this alleged disclosure. See
Patterson v. U.S. Postal Service, 71 M.S.P.R. 332, 335 (1996), aff’d per curiam,
106 F.3d 425 (Fed. Cir. 1997) (Table). Because the administrative judge did not
reach the issue of whether this disclosure was protected, we do so here.
¶24 The appellant alleged below that around October 2020, she disclosed that
her first-level supervisor was harassing her by mistreating her, yelling at her, and
acting dismissively toward her, which she claimed constituted an abuse of
13
authority. IAF, Tab 4 at 95, 105-09, 213, 225, 249; PFR File, Tab 1 at 26. The
record reflects that in an October 1, 2020 email, the appellant told her first-level
supervisor that she “notice[d] quite a few perceived eye-rolls from [her]” and
“felt that [the appellant’s] voice was not being heard, but dismissed,” when
giving her opinion during a meeting with her first-level supervisor the previous
day. IAF, Tab 4 at 105, 108. On or about October 8, 2020, when directed by her
supervisor to remove a personal quote from her official email signature block,
the appellant emailed her supervisor that “this is not a dictatorship” and that she
considered the incident “borderline harassment and intimidation.” Id. at 95.
Then, in a November 5, 2020 email, the appellant accused her supervisor of
“ignor[ing] [her] feelings” and “dismiss[ing]” her “voice and concerns” by
requiring the presence of the appellant’s team lead at a meeting to review the
appellant’s cases, over the appellant’s objections. Id. at 119, 218. She also
discussed this disclosure and that she “objected to how [her] ‘voice’ and
concerns were being publicly dismissed and silenced” in her response to OSC’s
preliminary determination. Id. at 218. The appellant further alleged to OSC that
she had “raised concerns before of how [her first-level supervisor] . . . has
abused and mistreated [her]” and “yelled and interrupted [her] . . . on numerous
occasions.” Id. at 213. The appellant appears to have exhausted this disclosure
with OSC.
¶25 To constitute a nonfrivolous allegation, the allegation must be, as relevant
here, more than conclusory. 5 C.F.R. § 1201.4(s)(1). A nonconclusory allegation
of wrongdoing is one that sets forth specific facts that describe a facially
plausible series of events. See Hessami, 979 F.3d at 1369-70 (explaining that the
petitioner met the nonfrivolous pleading standard because, as relevant here, she
“set forth specific facts supporting [her] beliefs of wrongdoing”); Linder v.
Department of Justice, 122 M.S.P.R. 14, ¶ 14 (2014) (explaining that a disclosure
of wrongdoing cannot be vague, but rather must be specific and detailed) . To the
extent that the appellant generally accuses her supervisor of ignoring her concerns
14
and yelling at, interrupting, harassing, intimidating, or dismissing her, these
allegations fail to provide any specifics from which we can conclude a reasonable
person would believe the actions involved constitute wrongdoing.
¶26 The appellant’s assertion that she objected to her team lead being included
in a case review meeting on one occasion is more specific. IAF, Tab 4 at 119.
Supervisory harassment may amount to an abuse of authority. Ayers v.
Department of the Army, 123 M.S.P.R. 11, ¶ 14 (2015). However, a reasonable
person in the appellant’s position, an employee admittedly learning her new
duties from, among others, her team lead, could not believe that having her team
lead attend a case review meeting was an abuse of discretion, gross
mismanagement, or any other wrongdoing within the scope of whistleblower
reprisal statutes. The statutory protection for whistleblowers is not a weapon in
arguments over policy or a shield for insubordinate conduct. Webb,
122 M.S.P.R. 248, ¶ 8. The Board has found an employee’s disagreement over
job-related issues is insufficient to amount to a protected disclosure. Francis v.
Department of the Air Force, 120 M.S.P.R. 138, ¶ 12 (2013); see Mc Corcle v.
Department of Agriculture, 98 M.S.P.R. 363, ¶ 22 (2005) (finding that an
appellant’s disclosure of his disagreement with the agency’s decision to assign
him clerical and other duties, allegedly wasting his ti me and expertise, failed to
amount to a nonfrivolous allegation of gross mismanagement). Thus, we find
that the appellant failed to nonfrivolously allege that she reasonably believed she
was disclosing harassment that evidenced wrongdoing under 5 U.S.C.
§ 2302(b)(8).
The appellant failed to nonfrivolously allege that her remaining disclosure
regarding lunch and other breaks was protected.
¶27 According to OSC’s preliminary determination letter, the appellant also
alleged in her OSC complaint that she disclosed that “ improprieties were
occurring regarding lunch breaks and related break policy interpretations. ” PFR
File, Tab 1 at 26; IAF, Tab 4 at 233. It is not entirely clear if the appellant
15
sought to raise this alleged disclosure below. However, we address it on review
because it is contained in OSC’s preliminary determination letter, which she
submitted for the first time on review. PFR File, Tab 1 at 26.
¶28 This alleged disclosure appears to have arisen out of an instruction from the
appellant’s supervisor to the appellant in the October 20, 2020 letter of caution
that the appellant “conform [her] emails and correspondence to standard
language for such communications.” PFR File, Tab 1 at 26; IAF, Tab 4 at 94,
233. As examples, the appellant’s supervisor noted that the appellant had
resisted a prior instruction to cease using the word “humbly” in her
correspondence. Id. at 95. The letter also reflected that the appellant had
responded to her supervisor instructing her to remove a personal quote from her
signature block that “[she] would remove it from some emails but not all
emails.” Id.¶29 In an October 21, 2020 email to the Head of the Security Programs and
Information Management Branch and another agency official, the appellant
asserted that, when it came to writing emails, she had a right to “express [her]
thoughts . . . [i]f it is not germane to the FOIA/PA office, or while [she was] on
[her] lunch period, . . . as [she] see[s] fit.” IAF, Tab 4 at 99. Assuming we have
correctly interpreted this alleged disclosure, it is apparent that the supervisor’s
instruction was directed at agency communications to “requesters [and] record
holders.” Id. at 94-95. We discern no basis for a reasonable person in the
appellant’s position to believe that her supervisor was referring to personal
communications. Further, we find that no reasonable person in the appellant’s
position could reasonably believe that her supervisor’s instructions regarding the
ministerial details of official communications evidenced agency wrongdoing.
See Francis, 120 M.S.P.R. 138, ¶ 12; Mc Corcle, 98 M.S.P.R. 363, ¶ 22.
¶30 Because the appellant has failed to raise a nonfrivolous allegation that
she made a protected disclosure, it is unnecessary to determine whether she raised
a nonfrivolous allegation that her disclosures were a contributing factor in a
16
personnel action. See Schmittling v. Department of the Army, 219 F.3d 1332,
1336-67 (Fed. Cir. 2000) (observing that the Board may find it lacks jurisdiction
over an IRA appeal if any one of the jurisdictional prerequisites are not met).
Therefore, we find that this IRA appeal must be dismissed for lack
of jurisdiction. 10
NOTICE OF APPEAL RIGHTS 11
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
10
On review, the appellant makes a new disclosure regarding the misapplication of a
FOIA exemption and alleges for the first time that, in retaliation for the instant Board
appeal, her first-level supervisor subjected her to another personnel action, i.e. , a
September 17, 2021 letter of caution. PFR File, Tab 1 at 20-23, 44-48, 52. However,
these incidents occurred after OSC issued its July 31, 2021 close-out letter. IAF, Tab 4
at 249-50. The appellant has not alleged or submitted evidence that she has exhausted
her administrative remedies with OSC with respect to these matters, and therefore she
has not met her jurisdictional burden.
The appellant also appears to argue that the administrative judge was biased against her
because she rushed to dismiss the appeal without addressing many arguments the
appellant raised, she did not thoroughly examine the appellant’s evidence, and she
insinuated that the appellant did not have permission to have a Bluetooth radio in her
office. PFR File, Tab 1 at 4, 10, 22-23. The lack of permission for the Bluetooth radio
was a concern in the alleged security investigation that the appellant alleged was a
personnel action. IAF, Tab 4 at 52, 246. There is a presumption of honesty and
integrity on the part of administrative judges that can only be overcome by a substantial
showing of personal bias, and the Board will not infer bias based on an administrative
judge’s case-related rulings. Vaughn v. Department of the Treasury, 119 M.S.P.R. 605,
¶ 18 (2013). We find that the appellant’s arguments regarding the speed and
thoroughness with which the administrative judge handled her claims, and any findings
she made regarding the Bluetooth radio, fail to overcome this presumption of honesty
and integrity.
11
Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.
17
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 dismis sal of your case by your
chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general. As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
18
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
discrimination based on race, color, religion, sex, national origin, or a disabling
condition, you may be entitled to representation by a court-appointed lawyer and
to waiver of any requirement of prepayment of fees, costs, or other security. See
42 U.S.C. § 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx.
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues. 5 U.S.C. § 7702(b)(1). You must file any such request with the
19
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
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. 12 The court of appeals must receive your
12
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
20
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 co urt 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
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.
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.
21
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.