Kari Fisher v. Department of the Treasury ( 2023 )

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
KARI FISHER, DOCKET NUMBER
Appellant, DC-1221-22-0004-W-1
v.
DEPARTMENT OF THE TREASURY, DATE: August 10, 2023
Agency.
THIS ORDER IS NONPRECEDENTIAL 1
Sabastian S. Piedmont, Esquire, Syracuse, New York, for the appellant.
Byron D. Smalley, Esquire, and Davina Minnix, Washington, D.C., for the
agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
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,
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
VACATE the initial decision, and REMAND the case to the Washington Regional
Office for further adjudication in accordance with this Remand Order.
BACKGROUND
¶2 The appellant is employed as a GS-14 2 Attorney in the agency’s Office of
Chief Counsel. Initial Appeal File (IAF), Tab 1 at 1; Tab 16 at 23-24. On
October 3, 2021, the appellant filed the instant IRA appeal alleging that she had
been subjected to several personnel actions in retaliation for her protected
whistleblowing disclosures and activities and requesting a hearing on her appeal.
IAF, Tab 1 at 1-4. With her initial appeal, the appellant provided a copy of a
close-out letter from the Office of Special Counsel (OSC) dated July 29, 2021.
Id. at 6-7.
¶3 The administrative judge issued an IRA Jurisdictional Order in which she
apprised the appellant of the applicable law and burden of proof requirements for
an IRA appeal and ordered her to submit evidence and argument establishing
Board jurisdiction. IAF, Tab 3 at 1-7. The administrative judge also directed the
appellant to file a statement detailing each of her alleged protected disclosures or
activities, numbered and in chronological order, and each personnel action she
was subjected to, also numbered and in chronological order, along with an
explanation for how she exhausted each specific claim with OSC. Id. at 7-9.
¶4 After the parties submitted their jurisdictional pleadings, IAF, Tabs 14-18,
the administrative judge issued an initial decision concluding that the appellant
failed to make a nonfrivolous allegation that she made a protected disclosure or
engaged in protected activity that was a contributing factor in the agency’s
decision to take a personnel action against her. IAF, Tab 21, Initial Decision (ID)
2
The appellant’s initial appeal identifies her position’s occupational series as “GS -9,”
and her grade as “14.” Initial Appeal File (IAF), Tab 1 at 1. Other pleadings make
clear that she currently occupies a GS-14 Attorney position with the agency. Petition
for Review File, Tab 1 at 6.
3
at 1-7. Specifically, the administrative judge acknowledged the appellant’s
allegations that she made numerous disclosures during the period from 2001
through 2017 but observed the appellant did not file her OSC complaint until
nearly 20 years after the first purported disclosure, in January 2021. ID at 4.
Noting the significant length of the delay, and crediting the agency’s argument
that it was prejudiced by the appellant’s delay in seeking corrective action, the
administrative judge concluded that the purported disclosures and retaliatory
personnel actions the appellant alleged she was subjected to during the period
from 2001 through 2017 were barred by the equitable doctrine of laches. ID
at 4-5.
¶5 Addressing the appellant’s alleged protected activities, the administrative
judge acknowledged that the appellant submitted a grievance under the agency’s
collective bargaining agreement in 2017, several equal employment opportunity
(EEO) complaints from 2017 through 2021, an Occupational Safety and Health
Administration (OSHA) complaint in 2021, a complaint with the Office of
Government Ethics in 2021, and a complaint to several U.S. Senators in
October 2021. ID at 6. However, she noted that the Board’s expanded IRA
jurisdiction under the Whistleblower Protection Enhancement Act of 20 12
(WPEA) covers claims arising under 5 U.S.C. § 2302(b)(9)(A)(i) (which concerns
protected activity seeking to remedy a violation of 5 U.S.C. § 2302(b)(8)), but not
those arising under 5 U.S.C. § 2302(b)(9)(A)(ii). ID at 6. Reviewing the
substance of the appellant’s complaints, the administrative judge concluded that
they did not concern remedying violations of section 2302(b)(8). ID at 6-7.
Consequently, she concluded that the appellant also failed to nonfrivolously
allege that she engaged in any protected activity and dismissed the appeal for lack
of jurisdiction. ID at 6-7.
¶6 The appellant has timely filed a petition for review of the initial decision,
arguing that the administrative judge erred in concluding that she failed to
nonfrivolously allege that she engaged in any protected activity that was a
4
contributing factor in any personnel action and in concluding that her protected
disclosures during the period from 2001 through 2017 were barred by the doctrine
of laches. Petition for Review (PFR) File, Tab 1 at 25-29. The agency has filed a
response in opposition to the petition for review. PFR File, Tab 4. The appellant
has filed a reply. PFR File, Tab 5.
DISCUSSION OF ARGUMENTS ON REVIEW
¶7 The Board has jurisdiction over an IRA appeal if the appellant has
exhausted her administrative remedies before OSC and makes nonfrivolous
allegations that: (1) she made a disclosure described under 5 U.S.C. § 2302(b)(8)
or engaged in 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. Salerno v.
Department of the Interior, 123 M.S.P.R. 230, ¶ 5 (2016). The Board generally
treats OSC exhaustion as a threshold determination before considering whether
the appellant’s claims constitute nonfrivolous allegations of protected disclosures
or protected activities. See Carney v. Department of Veterans Affairs,
121 M.S.P.R. 446, ¶¶ 4-5 (2014) (stating that the first element to Board
jurisdiction over an IRA appeal is exhaustion by the appellant of her
administrative remedies before OSC and that the next requirement is that she
nonfrivolously allege that she made a protected disclosure or engaged in
protected activity). Accordingly, we will first consider whether the appellant
exhausted her administrative remedy with OSC and, if that threshold requirement
is met, then consider whether she made nonfrivolous allegations that she made a
protected disclosure or engaged in a protected activity that was a contributing
factor to an agency personnel action. See Salerno, 123 M.S.P.R. 230, ¶ 5.
5
The appellant failed to establish that she exhausted her administrative remedies
with OSC regarding some of the challenged personnel actions.
¶8 To satisfy the exhaustion requirement of 5 U.S.C. § 1214(a)(3), an appellant
must have provided OSC with a sufficient basis to pursue an investigation into
her allegations of whistleblower reprisal. Chambers v. Department of Homeland
Security, 2022 MSPB 8, ¶ 10. Generally, exhaustion can be demonstrated through
the appellant’s initial OSC complaint, evidence the original complaint was
amended (including but not limited to OSC’s determination letter and other letters
from OSC referencing any amended allegations), and the appellant’s written
responses to OSC referencing the amended allegations. Mason v. Department of
Homeland Security, 116 M.S.P.R. 135, ¶ 8 (2011). Alternatively, exhaustion may
be proved through other sufficiently reliable evidence, such as an affidavit or
declaration attesting that the appellant raised with OSC the substance of the facts
in her appeal. Chambers, 2022 MSPB 8, ¶ 11. The purpose of requiring
an appellant to exhaust her remedies with OSC before filing an IRA appeal wit h
the Board is to give OSC “the opportunity to take corrective action before
involving the Board in the case.” Id. Thus, “the Board’s jurisdiction over an IRA
appeal . . . is . . . limited to those issues that have been previously raised with
OSC.” Id.¶9 In the initial decision, the administrative judge did not make any specific
findings concerning which of the appellant’s claims she exhausted with OSC, but
she appears to have implicitly concluded that the appellant exhausted all of the
claims contained in the appellant’s amended jurisdictional response. ID at 3;
IAF, Tab 16 at 4-16. That response contains a numbered chronological list of 27
disclosures during the period from October 2001 through April 2021, 1 3 protected
activities during the period from January 2016 through June 2021, and various
personnel actions the appellant was subjected to during the period from 2006
through 2021, including 45 specific vacancy announcements for which she
applied but was not selected. Id. at 7-16.
6
¶10 In a July 29, 2021 3 letter summarizing its investigation, OSC noted that it
sent the appellant a preliminary determination letter stating that it did not have
sufficient context to evaluate the over 800 emails the appellant submitted as a
part of her OSC complaint and requested that the appellant produce a timeline of
her allegations. IAF, Tab 16 at 51. The appellant eventually produced the
requested timeline and provided it to OSC, and OSC considered it in conducting
its investigation. Id. In a separate close-out letter also dated July 29, 2021, OSC
identified the protected disclosures and activities it investigated in connection
with the appellant’s complaint. IAF, Tab 1 at 6. The letter also identified
numerous personnel actions the appellant alleged the agency subjected her to
since 2008, including threatening discipline, undertaking efforts to have her
involuntarily committed or resign/retire from her position, negative performance
appraisals from 2017 through 2021, a letter of counseling, denied leave and
telework requests, and nonselections for positions. Id.
¶11 Importantly, in the close-out letter, OSC identified 37 specific positions for
which the appellant alleged she had applied but was not selected since 2008 ,
listed by the position vacancy announcement number and the year the position
was posted. Id. at 6 n.1. Most of the 37 vacancies OSC identified are the same
ones the appellant identified in the “Timeline of [prohibited personnel practices]
and Whistleblowing” document she provided in her amended jurisdictional
response. Compare id., with IAF, Tab 16 at 87-88, 103-04. However, the
following eight nonselection positions were included on the appellant’s timeline,
as numbered, but were not among those that OSC identified that it investigated as
a part of the appellant’s complaint: (7) CCSH-11-09 (Assistant to the Branch
Chief Detail – 2010); (10) Detail Positions (Two) with the ITA Front Office
3
The letter is dated July 29, 2020, but it is clear from the context that is a typographical
error and the letter should instead be dated July 29, 2021. See IAF, Tab 1 at 6-7
(identifying July 29, 2021, as the date OSC closed its investigation).
7
Executives (Announced January 28, 2021); (11) CCJD-21-28 (Assistant to the
Branch Chief Detail – 2021); (12) CCJD-21-139 (Assistant to the Branch
Chief Detail – 2021); (1) CCTW-07-77 (General Tax Attorney, PSI - 2006); (30)
CCJD-20-D57 (FO Tax Law Specialist – 2020); (31) CCJD-21-16 (B4 Senior
Counsel – 2021); (32) CCJD-21-37 (B4 and B5 STRs – 2021). Compare IAF,
Tab 1 at 6 n.1, with Tab 16 at 87-88, 103-04.
¶12 The appellant also did not identify her nonselection for those vacancy
announcements as retaliatory personnel actions in her OSC complaint , nor did she
provide any of the over 800 emails she apparently provided to OSC detailing her
complaints. IAF, Tab 16 at 19-49. Additionally, the appellant acknowledged that
she continued to update the timeline document after OSC issued its close out
letter, and the version of the timeline document she submitted to the record
includes references to events that took place well after she filed her initial
complaint with OSC, so it is unclear whether she raised with OSC all of the
claims she listed on the timeline below. IAF Tab 16 at 56 n.1, 79-84.
¶13 To establish Board jurisdiction over a claim, the appellant must prove
exhaustion with OSC by preponderant evidence, not just present a nonfrivolous
allegation of exhaustion. 5 C.F.R. § 1201.57(c)(1). Additionally, the exhaustion
requirement in 5 U.S.C. § 1214(a)(3) for an IRA appeal precludes the Board from
considering a personnel action that was not brought to OSC ’s attention. Mason,
116 M.S.P.R. 135, ¶ 8. Based on the record before us, we conclude that the
appellant exhausted her claims that she was subjected to the following personnel
actions identified in OSC’s close-out letter: a hostile work environment; threats
of reassignment and/or removal; denials of leave and telework requests; negative
performance appraisals from 2017 through 2021; a letter of counseling; and
nonselection for the 37 positions identified in OSC’s letter. IAF, Tab 1 at 6-7.
However, we conclude that the appellant failed to demonstrate that she exhausted
with OSC her claims that she was not selected for the following vacancy
announcements identified in her amended jurisdictional response, but not
8
included in OSC’s letter: (7) CCSH-11-09 (Assistant to the Branch Chief Detail –
2010); (10) Detail Positions (Two) with the ITA Front Office Executives
(Announced January 28, 2021); (11) CCJD-21-28 (Assistant to the Branch Chief
Detail – 2021); (12) CCJD-21-139 (Assistant to the Branch Chief Detail – 2021);
(1) CCTW-07-77 (General Tax Attorney, PSI - 2006); (30) CCJD-20-D57 (FO
Tax Law Specialist – 2020); (31) CCJD-21-16 (B4 Senior Counsel – 2021);
(32) CCJD-21-37 (B4 and B5 STRs – 2021).
¶14 Unlike the exhaustive review of all the personnel actions OSC investigated,
OSC’s letter does not specifically address all 27 alleged disclosures and 13
alleged protected activities during the period from October 2001 through
June 2021 that the appellant identified in her jurisdictional response, and instead
generally references a number of these claims and notes that the appellant’s
allegations spanned her “20-year career as an attorney at the IRS.” IAF, Tab 16
at 7-12, 51-54. Additionally, although the appellant’s complaint to OSC also
does not include an exhaustive list of these purported disclosures and activities, it
does identify a number of these claims and make reference to the fact that
additional details regarding the protected disclosures and activities were provided
to OSC in a supplemental document. Id. at 44-48. Thus, between the appellant’s
OSC complaint and OSC’s letter confirming that the appellant supplemented her
initial complaint with the timeline document that includes each of the claims
contained in her amended jurisdictional response, we find that the appellant
exhausted the 27 alleged disclosures and 13 alleged protected activities listed in
her amended jurisdictional response. 4 Id. at 7-12; see Chambers, 2022 MSPB 8,
¶ 11; Mason, 116 M.S.P.R. 135, ¶ 8.
4
We note that the administrative judge appears to have considered a letter dated
October 12, 2021, that the appellant sent to several U.S. Senators as a potential
protected disclosure or activity. ID at 6; IAF, Tab 11 at 11 -15. However, this letter is
dated after OSC issued its close-out letter on July 29, 2021, and so the appellant could
9
The administrative judge correctly determined that some of the appellant’s claims
are barred by the equitable doctrine of laches.
¶15 The appellant argues on review that the administrative judge erred in
concluding that her protected disclosures were barred by the doctrine of la ches.
PFR File, Tab 1 at 28-29. She argues that to invoke laches, the agency must
demonstrate both that the appellant’s delay was unreasonable and that it was
materially prejudiced by the appellant’s delay, and the agency cannot establish
either condition in this case. Id. at 28-29. Specifically, she argues that despite
the agency’s assertion that witnesses have retired or left the agency and thus are
unavailable, the fact that witnesses have retired does not, alone, establish that
they are unavailable. Id. at 28. She also asserts that the agency’s argument that it
would be prejudiced due to the unavailability of documents related to the
appellant’s claims is conclusory and the agency has not adequately demonstrated
that documents were actually lost and that it is prejudiced. Id. at 28-29. The
appellant further argues that her delay in filing the appeal was caused by her
belief and reassurances from agency management that the issues she disclosed
were being remedied. Id. Finally, she argues that laches is an equitable defense
and therefore it is premature to apply laches at the jurisdictional stage. Id. at 28.
¶16 The equitable defense of laches bars an action when an unreasonable delay
in bringing the action has prejudiced the party against whom the action is taken.
Johnson v. U.S. Postal Service, 121 M.S.P.R. 101, ¶ 6 (2014). The Board has
acknowledged that laches may apply as a defense in an IRA appeal and may be
applied before reaching the merits of the appeal. Brown v. Department of the Air
Force, 88 M.S.P.R. 22, ¶¶ 3, 7-10 (2001). The party asserting laches must prove
both unreasonable delay and prejudice. Johnson, 121 M.S.P.R. 101, ¶ 6. Under
laches, the mere fact that time has elapsed from the date a cause of action first
not have exhausted her administrative remedies for this claim. IAF, Tab 1 at 6-7,
Tab 11 at 11-15.
10
accrued is not sufficient to bar suit; rather, the delay must be unreasonable and
unexcused. Cornetta v. United States, 851 F.2d 1372, 1377-78 (Fed. Cir. 1988).
There are two types of prejudice that may stem from a delay in filing suit. Id.
at 1378. The first type, defense prejudice, concerns the Government’s ability to
mount a defense due to the loss of records, destruction of evidence, fading
memories, or unavailability of witnesses. Id. The second type, economic
prejudice, centers on consequences, primarily monetary, to the Government
should the appellant prevail. Id.¶17 In the initial decision, the administrative judge credited the agency’s
argument that it was prejudiced by the appellant’s unreasonable delay in
requesting corrective action because the appellant ’s disclosures span a more than
20 year period and many of the employees the appellant identified in connection
with her disclosures have long since retired or left the Federal Government and
are unavailable, and even if the agency were able to locate the individuals, it was
likely that their recollections of these events had faded. ID at 5. In making this
finding, however, the administrative judge did not distinguish between the
appellant’s older disclosures and retaliatory personnel actions and her more
recent claims.
¶18 Reviewing the appellant’s disclosures, we agree with the administrative
judge’s finding that Disclosures 1 through 11, dating to the period from 2001
through early 2014, are barred by laches. IAF, Tab 16 at 7 -9; ID at 4-5. The
most recent of those disclosures occurred at least 6 years before the appellant
filed her request for corrective action with OSC in January 2020. IAF, Tab 1 6
at 96; see Mercer v. Department of Health and Human Services, 82 M.S.P.R. 211,
¶ 11 (1999) (concluding that the length of the delay is, for purposes of applying
laches, based on the date of the last pertinent event in that case, which was when
OSC terminated its investigation and not when the appellant ’s Board appeal rights
first vested). The Board and the U.S. Court of Appeals for the Federal Circuit
have regularly found similar delays to be unreasonable and applied laches to bar
11
such claims. See Pepper v. United States, 794 F.2d 1571, 1573-74 (Fed. Cir.
1986) (stating that a 6-year delay was inexcusable in concluding that the claim
was barred by laches); Brown, 88 M.S.P.R. 22, ¶¶ 3, 8-10 (2001) (finding a 6-year
delay to be unreasonable and applying the doctrine of laches to bar an IRA
appeal); but see Social Security Administration v. Carr, 78 M.S.P.R. 313, 330
(1998) (finding that a 3 1/2-year delay was not unreasonable based on the specific
facts of that case), aff’d, 185 F.3d 1318 (Fed. Cir. 1999); Special Counsel v.
Santella, 65 M.S.P.R. 452, 465–66 (1994) (finding that OSC’s 3-year delay in
bringing a disciplinary action was not unreasonable).
¶19 Additionally, the agency has offered specific arguments to support its
assertion that it is prejudiced by the appellant’s delay, noting that the subjects of
most of the early disclosures have either long since retired or left the agency, and
in some instances have left the country. IAF, Tab 15 at 8. The agency also notes
on review that the appellant did not first file any grievance or EEO complaint
until August 2017, and so prior to that date the agency would not have been on
notice that it needed to flag and retain files in anticipation of potential litigation.
PFR File, Tab 4 at 12-13. Conversely, the appellant has not offered any
reasonable explanation for her lengthy delay, stating only that she was relying on
assurances from agency management that the issues disclosed were being
remedied. PFR File, Tab 1 at 29.
¶20 As the appellant correctly notes, a witnesses’ retirement does not, alone,
establish her unavailability for the purposes of establishing prejudice. PFR File,
Tab 6 at 10-11; see Pueschel v. Department of Transportation, 113 M.S.P.R. 422,
¶ 8 (2010). However, the unavailability of many of the potential witnesses,
coupled with the likely loss of relevant documents and records, and the likelihood
of faded memories related to these events is sufficient to establish that the agency
would be prejudiced by the appellant’s significant and unexplained delay.
Johnson, 121 M.S.P.R. 101, ¶ 9 (finding that the unavailability of some relevant
witnesses, coupled with the loss of documents that could refresh their
12
recollections of events, was sufficient to establish prejudice against the agency
based on the appellant’s 8-year delay in filing her appeal); cf. Hoover v.
Department of the Navy, 957 F.2d 861, 862-64 (Fed. Cir. 1992) (declining to
apply laches despite a 5-year delay in filing a petition for enforcement, where the
agency failed to submit sufficient specific evidence to support its assertion of
prejudice).
¶21 The same is true of the nonselections that occurred prior to 201 7. In its
jurisdictional response, the agency produced a sworn declaration from the Branch
Chief of the Classification and Benefits Branch attesting to the agency ’s
document retention policy. IAF, Tab 15 at 27-29. As outlined in the policy, the
agency destroys records related to job vacancies, including applications, resumes,
vacancy candidate lists and ratings, certificates of eligibles, interview records and
notes, job offer acceptances/declinations, and more within 2 years after the
vacancy is closed by a hire or nonselection. Id. at 27-28. The agency also
destroys excepted service appointment records for filling permanent or temporary
vacancies within 5 years after a candidate enters on duty, is no longer under
consideration, or declines an offer. Id. at 28-29. Consequently, despite the
appellant’s assertion otherwise, the agency has produced sufficient evidence
demonstrating that it is no longer in possession of many of the relevant records
related to the nonselections that occurred prior to 2017, and so the agency has
also demonstrated that it would be prejudiced by the appellant ’s delay in seeking
corrective action related to these claims. See Johnson, 121 M.S.P.R. 101, ¶¶ 4,
8-9 (agreeing with the administrative judge’s finding that the appellant’s claims
were barred by laches based, in part, on the agency’s uncontested assertion that it
was prejudiced because the relevant documents were likely destroyed pursuant to
the agency’s 5-year document retention policy).
¶22 In sum, we agree with the administrative judge that the agency has
produced sufficient evidence to demonstrate that it would be unreasonably
prejudiced by the appellant’s significant unexplained delay in seeking corrective
13
action related to Disclosures 1 through 11, encompassing the period from
October 2001 through early 2014, and so those claims are b arred by the doctrine
of laches. IAF, Tab 16 at 7-9. However, we conclude that the administrative
judge erred in finding that Disclosures 12 through 27, encompassing the period
from August 2014 through April 2021, were also barred by laches. IAF, Tab 16
at 9-10. The agency also established that it would be unreasonably prejudiced by
the appellant’s unexplained delay in seeking corrective action related to the
following nonselection personnel actions, as numbered in the appellant ’s
amended response: (1) CCNH-15-55 (Assistant to the Branch Chief Detail –
2015); (3) CCVL-16-50 (Assistant to the Branch Chief Detail – 2016); (4) Detail
Position of Technical Advisor, Office of the Special Counsel, National Taxpayer
Advocate (Announced February 3, 2014); (5) Detail Position of Technical
Advisor, Office of the Special Counsel, National Taxpayer Advocate (Announced
August 14, 2014); (6) Detail Positions (Two) with the Division Counsel, Wage &
Investment (Announced July 15, 2014); (8) CCLO-08-90 (Assistant to the Branch
Chief Detail – 2008); (2) CCCM-ERB-12-64 (B1 Branch Chief - 2012); (3)
CCJL-ERB-13-55 (Special Counsel, Litigation - 2013); (4) CCJL-ERB-13-72 (B2
Senior Counsel - 2013); (5) CCNF-ERB-15-23 (B5 STR - 2015); (6) CCCM-
ERB-14-36 (B6 Senior Counsel - 2014); (7) GS-ERB-10-51 (B2 STR – 2010); (8)
CCCM-ERB-16-20 (B2 Branch Chief – 2016); (9) CCCM-ERB-16-46/52
[announced twice] (B1 STR – 2016); (10) & (11) GS-ERB-09-24 (B5 & B7 STR
– 2009); (12) CCNF-ERB-16-08 (B5 STR – 2015); (13) GS-ERB-10-34 (B6 STR
– 2010); (14) & (15) CCNF-ERB-15-13 (2 Special Counsels – 2015); (16)
CCCM-ERB-16-11 (Special Counsel – 2016); (17) CCNF-ERB-15-33 (B7 Senior
Counsel – 2015); (18) CCCM-ERB-16-27 (B5 Senior Counsel – 2016). IAF,
Tab 16 at 14-15. Each of these vacancies was announced at least 5 years ago, and
the agency has indicated that the relevant documents for the vacancies were
destroyed in conformity with its document retention policy. See Johnson,
121 M.S.P.R. 101, ¶¶ 4, 8-9.
14
The appellant made nonfrivolous allegations that she made at least one protected
disclosure or engaged in at least one protected activity and was subjected to at
least one covered personnel action.
The appellant nonfrivolously alleged that the agency took at least one
personnel action against her.
¶23 In cases such as this one, when the appellant has alleged multiple personnel
actions, the Board has jurisdiction when the appellant exhausts her administrative
remedies before OSC and makes a nonfrivolous allegation that at least one
alleged personnel action was taken in reprisal for at least one alleged protected
disclosure. Usharauli v. Department of Health and Human Services,
116 M.S.P.R. 383, ¶ 19 (2011). As previously discussed, the appellant exhausted
her administrative remedies before OSC and is not barred by laches from raising
the following personnel actions taken against her in reprisal for her protected
disclosures or activities: she was threatened with discipline, including
reassignment or removal; she received lowered performance appraisals from 2017
through 2021; she was issued a letter of counseling; her leave and telework
requests were denied; and the agency failed to select her for the identified
positions advertised after 2017. See supra ¶ 22.
¶24 Regarding the appellant’s claim that she was threatened with reassignment
or removal, it is well established that a threatened personnel action is a covered
personnel action under the WPEA. IAF, Tab 16 at 79 (noting that she was
threatened with termination following a written counseling in October 2019, and
again threatened with termination in January 2020); see Rebstock Consolidation
v. Department of Homeland Security, 122 M.S.P.R. 661, ¶ 10 (2015) (explaining
that the term “threaten” in 5 U.S.C. § 2302 should be interpreted broadly and can
encompass warnings of possible future discipline). A negative performance
evaluation is also a personnel action for purposes of an IRA appeal. 5 U.S.C.
§ 2302(a)(2)(A)(viii); IAF, Tab 16 at 76, 78-79, 80 (stating that she was issued
derogatory performance reviews in 2017-2020).
15
¶25 Additionally, a counseling memorandum can constitute a threatened
personnel action when it warns of future discipline. IAF, Tab 16 at 79 (noting
that the appellant was counseled verbally and in writing and was threatened with
termination in October 2019); see Campo v. Department of the Army, 93 M.S.P.R.
1, ¶¶ 7-8 (2002). A denial of annual leave can constitute a decision concerning
benefits, and thus constitute a personnel action for purposes of an IRA appeal.
IAF, Tab 16 at 79 (noting that in January 2020, the appellant was denied
advanced annual and medical leave); see Marren v. Department of Justice,
50 M.S.P.R. 369, 373 (1991). A cancelation of a telework agreement can
constitute a personnel action under 5 U.S.C. § 2302(a)(2)(A)(xii) to the extent
that it represents a significant change in working conditions . IAF, Tab 16 at 79
(noting that in October 2019, management altered the appellant’s ability to
telework); see Rumsey v. Department of Justice, 120 M.S.P.R. 259, ¶ 23 (2013).
A nonselection is also a personnel action for the purposes of an IRA appeal. IAF,
Tab 16 at 14-15 (identifying the list of positions the appellant was not selected
for in retaliation for her protected disclosures and activities); see Ruggieri v.
Merit Systems Protection Board, 454 F.3d 1323, 1327 (Fed. Cir. 2006).
¶26 Finally, a “hostile work environment” may establish a personnel action in
an IRA appeal only if it meets the statutory criteria under 5 U.S.C.
§ 2302(a)(2)(A), i.e., constitutes a significant change in duties, responsibilities,
or working conditions. See Skarada v. Department of Veterans Affairs,
2022 MSPB 17, ¶¶ 16-18. Although the Board has held that the “significant
change” personnel action should be interpreted broadly to include harassment and
discrimination that could have a chilling effect on whistleblowing or otherwise
undermine the merit system, only agency actions that, individually or
collectively, have practical and significant effects on the overall nature and
quality of an employee’s working conditions, duties, or responsibilities will be
found to constitute a personnel action covered by section 2302(a)(2)(A)(xii). Id,
¶ 16. In determining whether a hostile work environment is present, the Board
16
will consider the totality of the circumstances, including agency actions that may
not individually rise to the level of a personnel action. Id., ¶ 18. In Skarada, the
Board found that an appellant nonfrivolously alleged he was subjected to a
personnel action when an agency excluded him from meetings and conversations,
subjected him to multiple investigations, accused him of fabricating data violating
the Privacy Act, refused his request for a review of his position for possible
upgrade, yelled at him on three occasions, and failed to provide him the support
and guidance needed to successfully perform his duties. Id., ¶ 18.
¶27 Here, the appellant has provided an extensive list of wrongful actions she
alleges were undertaken by the agency from 2014 onward that she claims amount
to a hostile work environment, including, for example, the following: she was
recorded, listened to on phone lines, and spied on at the worksite; other
employees used her timesheets; she was consistently subjected to harassment,
gossip, and false rumors about her physical characteristics and features; she was
falsely accused of being in sexual relationships with agency supervisors; she was
accused of being “crazy”; she was sexually harassed and stared at; she was
professionally sabotaged; she was mocked and intimidated; she was accused of
holding certain political views; and she was subjected to unnecessary background
investigations. IAF, Tab 16 at 9-10, 69-70, 73-74, 79, 88-93.
¶28 Based on the existing record, we find that the appellant’s contentions
regarding her hostile work environment claim, if accepted as true, collectively
amount to a nonfrivolous allegation of a significant change in working conditions.
See Skarada, 2022 MSPB 17, ¶ 18; see also Sistek v. Department of Veterans
Affairs, 955 F.3d 948, 955 (Fed. Cir. 2020) (noting that retaliatory investigations
are not personnel actions in and of themselves, but such investigations may
contribute towards “a significant change in working conditions” that can arise to
the level of a personnel action); Spivey v. Department of Justice, 2022 MSPB 24,
¶ 10; Covarrubias v. Social Security Administration, 113 M.S.P.R. 583, ¶¶ 8, 15
n.4 (2010) (finding that the appellant made a nonfrivolous allegation of a
17
significant change in working conditions when she alleged, among other things,
that her supervisors harassed her and closely monitored her whereabouts, to
include following her to the bathroom), overruled on other grounds by Colbert v.
Department of Veterans Affairs, 121 M.S.P.R. 677, ¶ 12 n.5 (2014).
¶29 In summary, after careful review, we conclude that the appellant
nonfrivolously alleged that she was subjected to the following personnel actions:
(1) threats of discipline, including reassignment or removal; (2) lowered
performance appraisals from 2017 through 2021; (3) a letter of counseling;
(4) denial of leave; (5) denial of telework; (6) a significant change in her working
conditions; and (7) nonselection for the following positions as numbered in her
amended jurisdictional response: (2) CCVL-17-09 (Assistant to the Branch Chief
Detail – 2017); (9) CCKM-19-65 (Assistant to the Branch Chief Detail – 2019);
(1) CCCM-ERB-17-21 (B7 STR - 2017); 19) CCCM-ERB-18-06 (B3 Branch
Chief - 2018); (20) CCCM-ERB-18-46 (B4 Branch Chief – 2018); (21) & (22)
CCCM-ERB-18-38 (2 Special Counsels – 2018); (23), (24) & (25) CCCM-ERB-
18-39 (B1, B2, & B3 STR – 2018); (26), (27) & (28) CCCM-ERB-18-53 (B1, B2,
and B7 Senior Counsels – 2018); (29) CCCM-ERB-18-78 (B4 STR – 2018). As
to the appellant’s remaining nonselection claims, as previously noted, the
appellant either failed to exhaust them or they are barred by laches. Supra
¶¶ 13, 22.
The appellant failed to nonfrivolously allege that she made a protected
disclosure or engaged in protected activity in connection with Disclosures
16, 17, 18, 19, 20, 21, and 24, and Protected Activities 7, 8, and 9.
¶30 A nonfrivolous allegation of a protected whistleblowing disclosure is an
allegation of facts that, if proven, would show that the appellant disclosed a
matter that a reasonable person in his position would believe evidenced one of the
categories of wrongdoing specified in 5 U.S.C. § 2302(b)(8). Salerno,
123 M.S.P.R. 230, ¶ 6. The test to determine whether a putative whistleblower
has a reasonable belief in the disclosure is an objective one: whether a
18
disinterested observer with knowledge of the essential facts known to and readily
ascertainable by the employee could reasonably conclude that the actions of the
agency evidenced a violation of law, rule, or regulation, gross mismanagement, a
gross waste of funds, an abuse of authority, or a substantial and specific danger to
public health or safety. Id.¶31 The remaining disclosures that are not barred by the doctrin e of laches are
Disclosures 12 through 27. IAF, Tab 16 at 9-10, 69-84. Disclosures 18, 19, 20,
21, and 24 concern EEO complaints the appellant filed during the period from
December 2017 through February 2021. IAF, Tab 16 at 10, 75 -78, 80-81. The
Board recently reaffirmed that filing an EEO complaint is a matter relating solely
to discrimination and is not protected by 5 U.S.C. § 2302(b)(8). Edwards v.
Department of Labor, 2022 MSPB 9, ¶¶ 10-13, 20, 22-23, aff’d, No. 2022-1967,
2023 WL 4398002 (Fed. Cir. July 7, 2023); see Williams v. Department of
Defense, 46 M.S.P.R. 549, 554 (1991). Further, there is no indication in the
record that the substance of her EEO complaints sought to remedy a violation of
5 U.S.C. § 2302(b)(8). The appellant did not provide copies of the EEO
complaints or a detailed description of the contents of the complaints below, and
what little information she did provide about the complaints indicates that they do
not concern remedying a violation of whistleblower reprisal under 5 U.S.C.
§ 2302(b)(8).
¶32 Instead, the EEO complaints, as described by the appellant, concerned her
personal objections to various employment matters, such as lowered performance
ratings, reduced credit hours and telework opportunities, and denied promotions .
IAF, Tab 16 at 75-78, 80-81, 85-86. Consequently, the appellant has failed to
nonfrivolously allege that she made a protected disclosure or engaged in
protected activity in connection with these claims. Cf. Mudd v. Department of
Veterans Affairs, 120 M.S.P.R. 365, ¶ 7 (2013) (recognizing that under the
WPEA, the Board’s jurisdiction in IRA appeals was expanded to cover claims of
19
reprisal for EEO complaints in which the appellant sought to remedy
whistleblower reprisal).
¶33 Similarly, Protected Activities 7, 8, and 9 concern step 1 and step 2
grievances the appellant filed related to lowered performance ratings ,
discrimination, and her nonselection for a position. IAF, Tab 16 at 11, 75, 84.
None of the appellant’s grievances concerned remedying a violation of
whistleblower reprisal under 5 U.S.C. § 2302(b)(8), and so the Board lacks IRA
jurisdiction over these activities. See Young v. Merit Systems Protection Board,
961 F.3d 1323, 1329 (Fed. Cir. 2020) (stating that “[s]ection 2302(b)(9)(A)(ii),
which is not included in the list of prohibited personnel practices for which the
Board can issue corrective action, covers retaliation for exercising any appeal,
complaint, or grievance right other than one seeking to remedy a violation of
section 2302(b)(8)[,] [r]etaliation for filing those other types of complaints is
remediable through different mechanisms, and not by an IRA appeal to the
Board”); Mudd, 120 M.S.P.R. 365, ¶ 7. Accordingly, we conclude that the
appellant failed to nonfrivolously allege that the Board has jurisdiction over these
grievances. 5
5
The appellant identifies Disclosures 16 and 17 as her filing of union grievance s on
these same issues. IAF, Tab 16 at 10. Accordingly, we need not separately consider
these claims.
20
The appellant made a nonfrivolous allegation of a protected disclosure in
connection with Protected Activity 3. 6
¶34 For Protected Activity 3, the appellant alleges that in 2016, she reported to
her manager that a secretary in her branch made an unauthorized disclosure of
taxpayer information. IAF, Tab 16 at 11, 73. The appellant also alleged that she
was obligated to disclose the unauthorized disclosure of taxpayer information.
Under section 6103(a) of the Internal Revenue Code (IRC), 26 U.S.C. § 6103(a),
it is unlawful for any officer or employee of the United States to willfully
disclose taxpayer information to any unauthorized person, and violators can be
subject to criminal penalties. I.R.C. § 6103; see Payne v. United States, 289 F.3d
377, 378-79 (5th Cir. 2002); United States v. Chemical Bank, 593 F.2d 451, 457
(2d Cir. 1979). Additionally, section 7431 of the IRC, 26 U.S.C. §§ 7431(a)-(c),
authorizes affected taxpayers to bring a civil action for damages based on the
unlawful disclosure of taxpayer information. I.R.C. § 7431; see Lampert v.
United States, 854 F.2d 335, 336 (9th Cir. 1988). Therefore, the appellant could
have reasonably believed that she was disclosing a violation of law in connection
with her reporting of an agency secretary’s purportedly unlawful disclosure of
taxpayer information. See Schlosser v. Department of the Interior, 75 M.S.P.R.
15, 21 (1997) (concluding that an appellant could establish a reasonable belief
that he made a protected disclosure by showing that he was familiar with the
alleged illegal conduct and was therefore in a position to form such belief, and
6
As previously discussed, the appellant demonstrated that she exhausted this disclosure
with OSC. Supra ¶ 14. We recognize that the appellant identified this disclosure as a
protected activity. IAF, Tab 16 at 11. To the extent she was asserting that her
disclosure was protected under 5 U.S.C. § 2302(b)(9)(C) as a disclosure to an agency
“component responsible for internal investigation or review,” we disagree. Congress
expanded protected activities to include such disclosures in December 2017; however,
that expansion is not retroactive. Edwards, 2022 MSPB 9, ¶¶ 29-33. In any event, we
find, as discussed here, that the appellant nonfrivolously alleged that she made a
protected disclosure. For the sake of consistency with the appellant’s designation, we
have continued to refer to her disclosure as “Protected Activity 3.”
21
that his belief was shared by other similarly situated employees). Consequently,
we conclude that the appellant nonfrivolously alleged that Protected Activity 3 is
a disclosure protected under 5 U.S.C. § 2302(b)(8)(A)(i). See Hupka v.
Department of Defense, 74 M.S.P.R. 406, 410-11 (1997) (concluding that a
disclosure of a potential Privacy Act violation can constitute a protected
disclosure); Zygmunt v. Department of Health and Human Services, 61 M.S.P.R.
379, 382 (1994) (same).
The appellant nonfrivolously alleged that Protected Activity 3 was a contributing
factor in the agency’s decision to take a personnel action.
¶35 To satisfy the contributing factor criterion at the jurisdictional stage, an
appellant need only raise a nonfrivolous allegation that the fact or content of her
disclosure or protected activity was one factor that te nded to affect the personnel
action in any way. See Salerno, 123 M.S.P.R. 230, ¶ 12. Whether the appellant’s
allegations can be proven on the merits is not part of the jurisdictional inquiry.
Lane v. Department of Homeland Security, 115 M.S.P.R. 342, ¶ 12 (2010).
¶36 One way to establish this criterion is the knowledge/timing test, under
which an appellant may nonfrivolously allege that the disclosure or activity was a
contributing factor in a personnel action through circumstantial evidence, such as
evidence that the official taking the personnel action knew of the disclosure or
activity, and that the personnel action occurred within a period of time such that a
reasonable person could conclude that the disclosure or activity was a
contributing factor in the personnel action. 5 U.S.C. § 1221(e)(1); see Salerno,
123 M.S.P.R. 230, ¶ 13. With regard to the knowledge prong of this test, an
appellant may establish, for jurisdictional purposes, that a disclosure or activity
was a contributing factor in a personnel action by nonfrivolously alleging that the
official taking the personnel action had actual or constructive knowledge of the
disclosure or activity. See Wells v. Department of Homeland Security,
102 M.S.P.R. 36, ¶ 8 (2006). Regarding the timing portion of the test, the Board
has held that a personnel action taken within approximately 1 to 2 years of an
22
appellant’s disclosures satisfies the timing prong. See Skarada, 2022 MSPB 17,
¶ 19 (observing that a personnel action taken within approximately 1 to 2 years of
the appellant’s disclosure satisfies the timing factor of the knowledge/timing
test); Mastrullo v. Department of Labor, 123 M.S.P.R. 110, ¶ 21 (2015) (same).
Additionally, for the timing prong the relevant inquiry is the time between when
the agency official taking the action had actual or constructive knowledge of the
disclosure or activity—not necessarily the date of the disclosure or activity
itself—and the time that the action was taken. See Wells, 102 M.S.P.R. 36, ¶ 8.
¶37 The appellant alleged that immediately after she disclosed the potential
unauthorized disclosure of taxpayer information to her manager, the manager and
her “co-worker friends” retaliated against her by subjecting her to a hostile work
environment, including by sexually harassing her, spying on her, monitoring her,
and misusing their official positions by holding case files that she needed in order
to perform her duties for extended periods of time. IAF, Tab 16 at 73; see
Skarada, 2022 MSPB 17, ¶ 18; Covarrubias, 113 M.S.P.R. 583, ¶¶ 8, 15 n.4.
Based on the foregoing, we conclude that the appellant has nonfrivolously alleged
that at least one protected disclosure or protected activity was a contributing
factor in the creation of a hostile work environment that constituted a significant
change in her working conditions.
We remand the appeal for the administrative judge to further develop the record
and make new findings on the issue of jurisdiction.
¶38 As previously discussed, the administrative judge erred by determining that
all of the appellant’s purported disclosures and personnel actions during the
period from 2001 through 2017 were barred by laches—even those that occurred
within 6 years of the date the appellant filed her co mplaint with OSC. Supra
¶ 22. We also determined that the appellant failed to nonfrivolously allege that
Disclosures 16, 17, 18, 19, 20, 21, and 24, and Protected Activities 7, 8, and 9,
are within the Board’s IRA jurisdiction. Supra ¶¶ 30-33. However, because the
administrative judge dismissed all of the appellant’s disclosures as barred by
23
laches, including those that occurred after 2014, she did not make any findings
concerning whether the appellant nonfrivolously alleged that she made a
protected disclosure with respect to any of the remaining claims. Further,
although the administrative judge generally determined that the appellant’s 2017
grievance, 2017 through 2021 EEO complaints, 2021 complaint to OSHA, and
2021 complaint to the OGE were not protected activities because they did not
concern remedying a violation of whistleblower reprisal under 5 U.S.C.
§ 2302(b)(8), the analysis of these claims was cursory and did not offer any
details about the nature of the appellant’s specific claims in each complaint or
address the individual claims with any degree of specificity. 7 ID at 6-7; IAF,
Tab 16 at 19-49, 69-84.
¶39 Based on our review of the record, we have concluded that the appellant
nonfrivolously alleged that she made at least one protected disclosures with
respect to Protected Activity 3 and nonfrivolously alleged that she was subjected
to at least one personnel action when she was subjected to a retaliatory hostile
work environment that caused a significant change in her working conditions. 8
The Board’s ordinary practice is to make a jurisdictional finding in an IRA appeal
based on the parties’ written submissions. See Spencer v. Department of the
7
Additionally, a number of these complaints appear to concern disclosures of
information under 5 U.S.C. § 2302(b)(8) as opposed to appeals, complaints, or
grievances under 5 U.S.C. § 2302(b)(9). See 5 U.S.C. §§ 2302(b)(8) (identifying
categories of “disclosures” of information protected under that section), 2302(b)(9)
(identifying types of activities protected under that section).
8
Due to how complex and numerous the appellant’s claims are, our discussion here is
limited to addressing our ultimate inquiry which is whether she has established
jurisdiction over her claims; that is, whether she has nonfrivolously alleged that at least
one protected disclosure or activity was a contributing factor in at least one personnel
action. See Skarada, 2022 MSPB 17, ¶ 13 (explaining that, in cases when an appellant
has alleged multiple personnel actions, the Board has jurisdiction over the appeal when
the appellant exhausts her administrative remedy and makes a nonfrivolous allegation
that at least one alleged personnel action was taken in reprisal for at least one alleged
protected disclosure).
24
Navy, 327 F.3d 1354, 1356 (Fed. Cir. 2003); Shope v. Department of the Navy,
106 M.S.P.R. 590, ¶ 5 (2007). In certain circumstances, however, the Board has
remanded the appeal for the administrative judge to further develop the record on
the issue of jurisdiction and to issue a new jurisdictional finding. See Wilcox v.
International Boundary and Water Commission, 103 M.S.P.R. 73, ¶¶ 15-16;
Wells, 102 M.S.P.R. 36, ¶¶ 4, 9-10.
¶40 Additionally, an initial decision must identify all material issues of fact and
law, summarize the evidence, resolve issues of credibility, and include the
administrative judge’s conclusions of law and her legal reasoning, as well as the
authorities on which that reasoning rests. Spithaler v. Office of Personnel
Management, 1 M.S.P.R. 587, 589 (1980). Given the extensive nature of the
appellant’s claims and the fact that the administrative judge’s laches findings
precluded a full review of the allegations the appellant exhausted with OSC, we
remand the appeal for the administrative judge to make new jurisdictional
findings. On remand the administrative judge shall make new findings
concerning whether the appellant nonfrivolously alleged that she made a
protected disclosure or engaged in protected activity in connection with the
following claims that are not bared by laches, as identified in the appellant’s
amended jurisdictional response: Disclosures 12, 13, 14, 15, 22, 23, 25, 26, and
27, and Protected Activities 1, 2, 4, 5, 6, 10, 11, 12, 13. The administrative judge
shall subsequently make findings concerning whether the appellant
nonfrivolously alleged that these disclosures or activities were a contributing
factor in the agency’s decision to take, fail to take, or threaten to take any of the
previously identified personnel actions. Yunus v. Department of Veterans Affairs,
242 F.3d 1367, 1371 (Fed. Cir. 2001); Salerno, 123 M.S.P.R. 230, ¶ 5. If the
administrative judge determines that the appellant established Board jurisdiction
over her IRA appeal, she is entitled to a hearing on the merits of her claim, which
she must prove by preponderant evidence. Salerno, 123 M.S.P.R. 230, ¶ 5. If the
appellant proves by preponderant evidence that a protected disclosure or activity
25
was a contributing factor in one of the personnel actions, the administrative judge
shall order corrective action unless the agency proves by clear and convincing
evidence that it would have taken the same actions absent the protected activity .
Id.; see 5 U.S.C. § 1221(e).
ORDER
¶41 For the reasons discussed above, we remand this case to the Washington
Regional office for further adjudication in accordance with this Remand Order.
FOR THE BOARD: /s/ for
Jennifer Everling
Acting Clerk of the Board
Washington, D.C.