Shirley Muhleisen v. Department of Veterans Affairs ( 2014 )

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
SHIRLEY MUHLEISEN, DOCKET NUMBER
Appellant, DE-1221-13-0345-W-1
v.
DEPARTMENT OF VETERANS DATE: November 10, 2014
AFFAIRS,
Agency.
THIS ORDER IS NONPRECEDENTIAL 1
Shirley Muhleisen, Marrero, Louisiana, pro se.
Aleksander D. Radich, Esquire, Cheyenne, Wyoming, for the agency.
BEFORE
Susan Tsui Grundmann, Chairman
Anne M. Wagner, Vice Chairman
Mark A. Robbins, Member
Member Robbins issuing a separate, dissenting opinion.
REMAND 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. For
the reasons discussed below, we GRANT the appellant’s petition for review IN
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
PART and REMAND the case to the field office for further adjudication of the
appellant’s alleged involuntary resignation in accordance with this Order.
DISCUSSION OF ARGUMENTS ON REVIEW
¶2 The appellant served as a Nurse with the agency in one of its facilities in
Denver, Colorado. Initial Appeal File (IAF), Tab 6 at 6. The appellant filed a
complaint of whistleblower reprisal with the Office of Special Counsel (OSC)
alleging that she made four protected disclosures and that, based on these
disclosures, she was forced to resign from her position in 1999 and was not
selected for another employment position with the agency in 2005. Id. at 8. 2 The
appellant filed the instant IRA appeal with the Board challenging her involuntary
resignation and her nonselection, and she also asserted that she encountered
difficulty accessing certain personnel documents following her resignation. IAF,
Tab 1.
¶3 The administrative judge issued a jurisdictional order apprising the
appellant of her burden to establish the Board’s jurisdiction over her IRA appeal,
see IAF, Tab 11, and, after considering both parties’ submissions, dismissed the
appeal for lack of jurisdiction, IAF, Tab 15 Initial Decision (ID) at 7-11. In his
initial decision, the administrative judge found that the appellant failed to
nonfrivolously allege that three of her disclosures were protected disclosures
under 5 U.S.C. § 2302(b)(8), ID at 7-9, and, as to her fourth disclosure, 3 the
2
During the proceedings below, the appellant referred to her decision to leave the
agency as both a resignation and a retirement. On petition for review, she has clarified
that at the end of September of 1999 she resigned from employment because of
allegedly intolerable working conditions based on the impression that she had sufficient
years of service to retire. Petition for Review (PFR) File, Tab 1 at 3. The test for
analyzing the voluntariness of either a resignation or a retirement under these
circumstances is the same. See, e.g., Heining v. General Services Administration,
68 M.S.P.R. 513, 519-20 (1995).
3
The administrative judge found that the appellant had sufficient personal knowledge
of the underlying facts of this disclosure to lead a reasonable person in her position to
conclude that she had disclosed a violation of law or a possible abuse of authority under
5 U.S.C. § 2302(b)(8). ID at 9.
3
administrative judge found that the appellant failed to nonfrivolously allege that
it was a contributing factor in either her 1999 involuntary resignation or her
nonselection in 2005, ID at 9-11. The appellant has filed a petition for review
challenging the initial decision. PFR File, Tab 1.
¶4 An appellant may establish the Board’s jurisdiction over an IRA appeal by
nonfrivolously alleging that: (1) she 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. Aquino v.
Department of Homeland Security, 121 M.S.P.R. 35, ¶ 9 (2014). To establish that
an appellant made a protected disclosure under 5 U.S.C. § 2302(b)(8), an
appellant need not prove that the matter disclosed actually established one of the
types of wrongdoing listed under section 2302(b)(8)(A); rather, she must show
that the matter disclosed was one which a reasonable person in her position would
believe evidenced any of the situations specified in 5 U.S.C. § 2302(b)(8).
Chavez v. Department of Veterans Affairs, 120 M.S.P.R. 285, ¶ 18 (2013).
¶5 Additionally, an appellant can satisfy the contributing factor element by
nonfrivolously alleging that the official taking the challenged personnel action
had either personal or constructive knowledge of the appellant’s disclosures and
that the personnel action occurred within a period of time such that a reasonable
person could conclude that the disclosure was a contributing factor in the
personnel action. Aquino, 121 M.S.P.R. 35, ¶ 19. Even if the appellant fails to
satisfy this standard, the Board will consider other evidence, such as that
pertaining to the strength or weakness of the agency’s reasons for taking the
personnel action, whether the whistleblowing was personally directed at the
proposing or deciding officials, and whether those individuals had a desire or
motive to retaliate against the appellant. Stiles v. Department of Homeland
Security, 116 M.S.P.R. 263, ¶ 24 (2011). If an appellant satisfies each of these
jurisdictional requirements, she has the right to a hearing on the merits of her
whistleblower reprisal claim, at which point she must prove each of the elements
4
of her claim by a preponderance of the evidence. Edwards v. Department of the
Air Force, 120 M.S.P.R. 307, ¶ 18 (2013).
¶6 We AFFIRM AS MODIFIED the administrative judge’s jurisdictional
dismissal of the appellant’s challenge to her nonselection in 2005. The
administrative judge found that the appellant failed to nonfrivolously allege that
three of her four disclosures were protected. ID at 7-8. However, we find that,
even if the appellant nonfrivolously alleged that she made protected disclosures,
she has failed to nonfrivolously allege that any of her disclosures served as a
contributing factor in the nonselection. The record reflects that the appellant
alleges she made a series of disclosures prior to her resignation in 1999. She also
contends that she was not selected for a job with the agency almost 6 years later,
based upon these disclosures. See IAF, Tab 6 at 8-9. We find that the appellant
has failed to nonfrivolously allege that any agency officials who were involved in
the 2005 hiring decision knew about her prior disclosures, see, e.g., ID at 9-10,
and we further find that the lapse in time between 1999 and 2005 is too great for
the appellant to demonstrate that her disclosures likely served as a contributing
factor in the agency’s hiring decision, 4 see Ingram v. Department of the
Army, 116 M.S.P.R. 525, ¶ 10 (2011) (finding that temporal nexus was satisfied
where 1 to 2 years existed between a disclosure and a personnel action). We
further agree with the administrative judge that the appellant has failed to
nonfrivolously allege that any of the individuals named or implicated in her
disclosures were involved in the agency’s 2005 hiring decision. We concur,
moreover, with the administrative judge’s finding that the appellant has otherwise
presented no evidence of any official’s desire or motive to retaliate against her by
4
In her response to the administrative judge’s jurisdictional order, the appellant also
alleged that she made disclosures to the President and several members of Congress in
2010 and 2011. IAF, Tab 12 at 5. Because these alleged disclosures post-date the
appellant’s nonselection for employment in 2005, and so they could not have been a
contributing factor in that action, they cannot support her assertion of whistleblower
reprisal.
5
not selecting her for a position of employment in 2005. ID at 10-11. Thus, the
administrative judge’s jurisdictional dismissal of the appellant’s IRA appeal of
her nonselection for a position of employment in 2005 is AFFIRMED AS
MODIFIED.
¶7 The administrative judge also explained in his initial decision that the
appellant was challenging several other agency actions, including her alleged
1999 involuntary resignation and difficulties she encountered in accessing her
personnel files and records after she left employment. ID at 1, 4 n.2. We agree
with the administrative judge that the appellant’s challenges to, inter alia, the
accessibility of her personnel records following her resignation, are not personnel
actions within the scope of the Whistleblower Protection Act (WPA). See Weed
v. Social Security Administration, 113 M.S.P.R. 221, ¶¶ 9-11 (2010); ID at 4 n.2.
¶8 We find, however, that the appellant has nonfrivolously alleged that one of
her protected disclosures was a contributing factor in her allegedly involuntary
resignation, and that remand of this claim to the administrative judge is necessary
for him to determine if the appellant can establish that her resignation from
employment was involuntary, thus making it a personnel action that could form
the basis of the appellant’s IRA appeal. See Lawley v. Department of the
Treasury, 84 M.S.P.R. 253, ¶ 8 (1999) (a constructive adverse action can be a
personnel action under the WPA. In his initial decision, the administrative judge
found that the appellant nonfrivolously alleged that she made a protected
disclosure to her supervisors concerning the agency’s practice of double-booking
patients for appointments and maintaining fake clinics. ID at 8. The
administrative judge found, however, that, although the appellant alleged she
made these disclosures to her immediate supervisor, she did not identify when she
made such disclosures, and he found that she therefore failed to nonfrivolously
allege that these disclosures were a contributing factor in her involuntary
resignation. ID at 10.
6
¶9 We agree with the administrative judge that the record below does not
identify when the appellant made these disclosures. Nevertheless, in her petition
for review, the appellant specifies that she made these disclosures to her
immediate supervisors in “early 1999” and that shortly thereafter her supervisors
increased their alleged retaliatory practices, thus causing her to leave employment
with the agency in September of that year. PFR File, Tab 1 at 25. Generally, the
Board will not consider a new argument on review absent a showing that it is
based on new and material evidence not previously available despite the party’s
due diligence. See Young v. U.S. Postal Service, 115 M.S.P.R. 424, ¶ 11 (2010).
Under the limited circumstances of this case, however, where the appellant is
proceeding pro se, 5 and her new arguments address whether she has made a
nonfrivolous allegation establishing an element of the Board’s IRA jurisdiction
over her appeal, we find it appropriate to consider the new argument for the first
time on petition for review. See, e.g., Hudson v. Department of Veterans
Affairs, 104 M.S.P.R. 283, ¶ 6 (2006) (the WPA is a remedial statute and should
be broadly construed); Smith v. Department of the Army, 80 M.S.P.R. 311, ¶ 7
(1998) (pro se pleadings not held to same standard as those submitted by
counsel). Based upon her allegations that she made her disclosures to her
supervisors in 1999 and that she thereafter endured an increased campaign of
harassment which led to her decision to resign, we find that the appellant has
nonfrivolously alleged that her protected disclosure was a contributing factor in
her alleged involuntary resignation. See Jessup v. Department of Homeland
Security, 107 M.S.P.R. 1, ¶ 10 (2007) (an appellant’s allegation that a supervisor
was aware of a protected disclosure is enough to satisfy the nonfrivolous
allegation standard for contributing factor).
¶10 Because, however, the appellant bases her IRA appeal on a constructive
adverse action, she must also nonfrivolously allege that her decision to resign was
5
The record reflects that the appellant was unrepresented in her proceedings before the
Board and OSC, specifically with regard to her whistleblower retaliation claims.
7
involuntary in order for it to be a personnel action that can be challenged in an
IRA appeal under the WPA. See Hosozawa v. Department of Veterans
Affairs, 113 M.S.P.R. 110, ¶ 5 (2010) (an employee must nonfrivolously allege
that her decision to resign was involuntary in order to establish Board jurisdiction
and an entitlement to a hearing); Lawley, 84 M.S.P.R. 253, ¶ 8 (constructive
adverse action can be personnel action under the WPA); 5 C.F.R. § 1209.4(a)(3)
(defining personnel action as an action appealable to the Board under chapter 75).
The administrative judge, however, did not reach in his initial decision the issue
of the voluntariness of the appellant’s decision to resign. We accordingly
REMAND the appeal to the administrative judge for further adjudication of this
issue. Upon remand, should the administrative judge find that the appellant has
nonfrivolously alleged that her decision to resign was involuntary, 6 the
administrative judge should hold a hearing on the appellant’s IRA appeal, at
which point she would have to prove by preponderant evidence each of the
elements of her claim, including whether her decision to resign was involuntary.
If the appellant establishes each of the elements of her claim by preponderant
evidence, she would be entitled to corrective action unless the agency can
demonstrate by clear and convincing evidence that it would have taken the same
challenged actions in the absence of the appellant’s whistleblowing activity. See
Aquino, 121 M.S.P.R. 35, ¶ 10 (articulating the standard of review for the merits
of an IRA appeal); Hosozawa, 113 M.S.P.R. 110, ¶ 5 (an appellant is entitled to a
hearing if she nonfrivolously alleges that her resignation was involuntary).
ORDER
¶11 For the reasons discussed above, we REMAND this case to the regional
6
On remand, the administrative judge should explain to the appellant the various ways
in which she could nonfrivolously allege that her decision to resign was involuntary.
See, e.g., Heining, 68 M.S.P.R. at 519-20.
8
9
office for further adjudication of the appellant’s challenge to her involuntary
resignation in accordance with this Remand Order.
FOR THE BOARD: ______________________________
William D. Spencer
Clerk of the Board
Washington, D.C.
DISSENTING OPINION OF MEMBER MARK A. ROBBINS
in
Shirley Muhleisen v. Department of Veterans Affairs
MSPB Docket No. DE-1221-13-0345-W-1
¶1 I respectfully dissent. I disagree with the decision to remand this appeal to
the field office. Generally, the Board will not consider “new” evidence submitted
for the first time with a petition for review absent a showing that it was
unavailable before the record closed despite the party’s due diligence. 5 C.F.R.
§ 1201.115; see Avansino v. U.S. Postal Service, 3 M.S.P.R. 211, 214 (1980).
For the Board to consider evidence submitted on petition for review, it also must
be material. 5 C.F.R. § 1201.115. To be material, the evidence must be of
sufficient weight to warrant an outcome different from that of the initial decision.
Russo v. Veterans Administration, 3 M.S.P.R. 345, 349 (1980).
¶2 Here, the appellant, for the first time on review, supplies purportedly “new
and material” information about a protected disclosure she made, which she
did not provide below. The Remand Order, on page 6, states that “under the
limited circumstances of this case” (emphasis supplied), the Board will consider
the appellant’s ostensibly new argument that she made a disclosure or disclosures
to her supervisors in “early 1999,” based on two reasons: (1) the appellant is
appearing pro se; and (2) she is raising “new allegations [that] address whether
she has made a nonfrivolous allegation establishing an element of the Board’s
jurisdiction” over her individual right of action (IRA) appeal.
¶3 First, the record does not support that the appellant is, or always has been,
pro se. For instance, between 2000 and at least until 2005, the appellant
indicated that she “had retained counsel.” Initial Appeal File (IAF), Tab 1
at 12-13, Tab 6 at 9, 11 (in her original complaint to the Office of Special
Counsel (OSC), she wrote that “I had to hire an attorney . . . to confront [the
agency] with their [taking various actions] because I exercised my civil rights.”).
2
The appellant also explicitly stated that the union promised to assist her to some
degree with her Board appeal. IAF, Tab 4 at 1 (“I am hoping that I might have
a . . . union representative accompany me to a hearing, have spoken to them about
this and they are agreeable.”). In addition, even assuming that the appellant is
appearing pro se, I cannot agree with the theory that a well-educated Registered
Nurse with a Bachelor of Science Degree and a Master’s Degree in Nursing, see
IAF, Tab 1 at 19, is not sufficiently intelligent to comprehend and follow the
repeated instructions she received on appeal about how to establish
Board jurisdiction.
¶4 I also am concerned that the Remand Order suggests that pro se status now
equals “a limited circumstance” in which the Board will accept new evidence or
argument for the first time on petition for review. This would be contrary to our
regulations and veer off course from decades of our precedent.
¶5 Second, I believe the Remand Order conflates the “materiality” standard
with the “new” standard set forth in § 1201.115. At the outset, I agree that the
appellant’s “new allegations [that] address whether she has made a nonfrivolous
allegation establishing an element of the Board’s IRA jurisdiction over her
appeal” would be material. Yet, I cannot agree that the allegations are “new,”
given that the appellant missed several opportunities to produce this evidence
earlier on appeal. Specifically, the record reflects that the appellant easily could
have raised this argument either during the preliminary status conference on
August 13, 2013, see IAF, Tab 7, in reply to the administrative judge’s detailed
instructions to her about her need to prove IRA jurisdiction, as contained in the
August 14, 2013 jurisdictional show cause order, see IAF, Tab 11, or in answer to
the agency’s statements about jurisdiction in its narrative response to the appeal,
see IAF, Tab 13. In light of these factors, I disagree with the characterization of
these allegations on review as “new.”
3
¶6 As a result, I would find that the argument raised by the appellant here on
review, although material, is not new, and so would not remand to the field office
on that basis.
______________________________
Mark A. Robbins
Member