Janet Callahan v. Department of Veterans Affairs ( 2023 )

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
JANET C. CALLAHAN, DOCKET NUMBER
Appellant, CH-1221-17-0152-W-2
v.
DEPARTMENT OF VETERANS DATE: December 28, 2023
AFFAIRS,
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Timothy A. Bridge , Esquire, Wellston, Michigan, for the appellant.
Stephanie Macht , Hines, Illinois, for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
FINAL ORDER
The appellant has filed a petition for review of the initial decision in this
individual right of action (IRA) appeal, which granted in part and denied in part
the appellant’s request for corrective action. Generally, we grant petitions such
as this one only in the following circumstances: the initial decision contains
erroneous findings of material fact; the initial decision is based on an erroneous
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
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
MODIFIED to vacate the administrative judge’s rationale for denying corrective
action for a “Letter of Expectations” and to find that we lack jurisdiction over
that claim, we AFFIRM the initial decision.
BACKGROUND
The following facts, as further detailed in the record and initial decision,
are undisputed. The appellant currently holds a GS-11 Social Worker position in
Dubuque, Iowa, but previously held the GS-13 position of Supervisory Social
Worker and Program Manager at the agency’s James A. Lovell Federal Health
Care Center (FHCC) in North Chicago, Illinois. Callahan v. Department of
Veterans Affairs, MSPB Docket No. CH-1221-17-0152-W-2, Refiled Appeal File
(RAF), Initial Decision (ID) at 2. 2
In the years leading up to the events giving rise to this appeal, the appellant
had a history of exceptional performance ratings. ID at 2. But in July 2015,
several employees came together to lodge complaints about the appellant. ID
at 3. In particular, one of her subordinates alleged that the appellant was
2
To accommodate the appellant’s medical needs, the administrative judge dismissed her
appeal, without prejudice, for automatic refiling at a later date. Hence, the two docket
numbers for this one appeal. Callahan v. Department of Veterans Affairs , MSPB
Docket No. CH-1221-17-0152-W-1, Initial Appeal File, Tab 60, Initial Decision.
3
interfering with her right to religious observation. Id. By September 2015, the
Acting Assistant Associate Director (AAD) of the FHCC, where the appellant was
employed, was actively investigating this equal employment opportunity (EEO)
complaint. ID at 3-4. The Acting AAD produced her initial findings to the
Director of the FHCC in October 2015, which she revised the following month.
ID at 4-6; Callahan v. Department of Veterans Affairs, MSPB Docket No. CH-
1221-17-0152-W-1, Initial Appeal File (IAF), Tab 12 at 81-82, Tab 49 at 4-17.
Most notably, those recommendations included unspecified “corrective action,”
assigning the appellant a mentor, requiring she undergo training, abolishing her
position, and reassigning her to a nonsupervisory position. ID at 4-6; IAF,
Tab 12 at 81, Tab 49 at 15-17. At that time, the Director agreed, but asked that
Human Resources be looped in to review for appropriateness. IAF, Tab 12
at 81-82.
Although the Acting AAD, the Director, and others contemplated
disciplining the appellant as a result of the investigatory findings, the agency had
not yet done so by December 2015, when a number of key events occurred. ID
at 4-7. During that month, the agency learned that the Social Work Executive
(SWE) would soon retire, so the Acting AAD solicited for applicants to take on
the role as a collateral duty. ID at 7; IAF, Tab 5 at 89. The appellant applied and
interviewed, but the panel ranked her third of the four candidates. ID at 7-8.
Also in December 2015, just days after her interview, the appellant engaged in
the disclosure and activity that is the subject of the instant reprisal claim. ID
at 8-9; IAF, Tab 5 at 87-88.
The appellant disclosed to several agency officials and the Office of
Inspector General (OIG) that the recruitment for, and appointment to, the SWE
vacancy as a collateral duty assignment violated a particular policy about that
position. ID at 8; IAF, Tab 5 at 87-88. She further alleged that the process was
improper because, inter alia, the departing SWE was involved in the selection of
his successor. ID at 8-9. The Acting AAD and Director expressed displeasure
4
about the appellant’s activity, calling it classic bullying and an attempt to ruin
reputations. Without making a selection, the agency solicited for applicants a
second time by way of an amended vacancy announcement. ID at 9-11; IAF,
Tab 5 at 90, Tab 37 at 41-42, 45-47,
The next month, January 2016, agency officials continued to consider
whether to impose any discipline on the appellant concerning the EEO complaint
of her subordinate. ID at 11. In particular, the Acting Associate Director (AD)
expressed some reservations and some disagreement with the Acting AAD’s
recommendations, particularly the recommendation to abolish the appellant’s
position. Id.; IAF, Tab 48 at 48-51. But consistent with some of the
recommendations he did agree with, the Acting AD issued the appellant a “Letter
of Expectations”—which generally acknowledged the ongoing investigation, set
expectations, and informed her of some steps to follow, such as mandatory
training and the assignment of a mentor. 3 ID at 11-12; IAF, Tab 5 at 106-07.
Soon thereafter, the appellant underwent a second interview, in concert with the
amended SWE announcement, where officials ranked her fourth of four
candidates. ID at 12; see IAF, Tab 50 at 52.
In March 2016, the Acting AD temporarily reassigned the appellant to a
nonsupervisory position—the one the appellant selected of the three the agency
offered her—pending the results of the ongoing EEO investigation. ID at 13;
IAF, Tab 5 at 117. The agency also changed course, once again, regarding the
SWE vacancy. ID at 14; IAF, Tab 6 at 106-07. Consistent with the appellant’s
complaint, the agency determined that the SWE role should be a full -time
supervisory position, rather than a collateral duty. ID at 14; IAF, Tab 50 at 57.
Accordingly, the agency conducted interviews a third time, in June 2016, after
which the panel ranked the appellant third of four candidates. ID at 14.
Ultimately, the agency selected the candidate who had consistently received the
3
The Acting AD also issued an “Expectations of Supervisors and Employees” letter to
the appellant, but that letter is of no significant relevance in this decision. ID at 11-12;
IAF, Tab 5 at 104.
5
top ranking in each of the three sets of interviews, i.e., the individual who had,
for years, served as the Acting SWE when the SWE was absent. ID at 7, 12, 14.
In September 2016, the appellant accepted a transfer to the GS -11 position
she currently holds in Dubuque. 4 ID at 15; IAF, Tab 44 at 33-34. But before
relocating to that position and facility, the agency proposed her removal for
conduct unbecoming a supervisor, relating to the results of the EEO investigation
that started the year before. ID at 14-15; IAF, Tab 10 at 4-5. With the proposal
pending, the appellant completed her transfer to Dubuque, and an official at her
new facility became the deciding official. ID at 15; IAF, Tab 9 at 283. In
January 2017, that official dismissed the charge and all specifications, finding
that no discipline was warranted. ID at 15.
After exhausting a complaint with the Office of Special Counsel (OSC),
see, e.g., IAF, Tab 5 at 73-86, the appellant filed the instant IRA appeal, IAF,
Tab 1. She asserted that her December 2015 disclosure regarding the SWE
vacancy was protected, as was her referral of the matter to OIG. E.g., IAF,
Tab 55 at 2; RAF, Tab 13 at 4. She further asserted that the agency engaged in
retaliatory activities, IAF, Tab 5 at 5-6, which she ultimately identified as the
following: (1) the February 2016 “Letter of Expectations”; (2) the March 2016
detail to a nonsupervisory position; (3) the SWE nonselection; and (4) the
proposed removal, IAF, Tab 55 at 2; RAF, Tab 13 at 4.
The administrative judge developed the record and held a 3-day hearing
before ordering corrective action for the proposed removal, but denying
corrective action for the other alleged personnel actions. ID at 2, 40-41. In doing
so, she first made a number of credibility findings. ID at 19-26. The
administrative judge then concluded that the appellant met her burden of proving
that she engaged in activity protected by 5 U.S.C. § 2302(b)(8) and (b)(9), and
4
While all the circumstances surrounding this transfer are not readily apparent to us,
and the appellant does argue that her decision to transfer was involuntary, there appears
to be no dispute that the appellant applied for and accepted this lower -graded position
in a different city. See ID at 2, 15, 40-41; IAF, Tab 44 at 33; PFR File, Tab 1 at 9-10.
6
that protected activity was a contributing factor in the alleged personnel actions.
ID at 29-33. Finally, the administrative judge found that the agency failed to
prove that it would have proposed the appellant’s removal in the absence of her
protected activity, ID at 33-35, but did prove that it would have taken each of the
other actions at issue, ID at 35-39.
The appellant has filed a petition for review. Callahan v. Department of
Veterans Affairs, MSPB Docket No. CH-1221-17-0152-W-2, Petition for Review
(PFR) File, Tab 1. The agency has filed a response, and the appellant has
replied. 5 PFR File, Tabs 3-4.
ANALYSIS
The administrative judge properly denied the appellant’s motion in limine.
Below, the appellant filed a motion in limine, asking that the administrative
judge preclude the agency from introducing evidence in support of her proposed
removal. IAF, Tab 54 at 4. She argued that because the deciding official did not
sustain the underlying specifications, charge, or removal, collateral estoppel
precluded the agency from attempting to establish reasons in support of the
proposed removal. Id. at 4-5. The administrative judge denied the motion. IAF,
Tab 55 at 3-4. The appellant later filed the motion a second time, with additional
arguments and references to res judicata. RAF, Tab 8 at 4-9. But the
5
After her reply, the appellant filed a motion to remand the appeal for an addendum
proceeding to determine damages, arguing that the lack of a quorum at the Board
unduly prejudices her right to due process. PFR File, Tab 5. That motion is denied. As
we explain below, in the section of this order entitled, “Notice to the Appellant
Regarding Your Right to Request Consequential and/or Compensatory Damages,” the
appellant may file a motion for such damages with the Central Regional Office. See
5 C.F.R. § 1201.204(e)(1) (recognizing that a motion for damages generally must be
filed with the regional or field office that issued the initial decision). Separately, we
note that the appellant’s motion refers to not only consequential and compensatory
damages, but also liquidated damages. PFR File, Tab 5 at 4-5. Liquidated damages are
not authorized in an IRA appeal such as this. See 5 C.F.R. §§ 1201.201(e), 1201.202(d)
(recognizing that the Board has the authority to award liquidated damages when an
agency willfully violates an appellant’s veterans’ preference rights under the Veterans
Employment Opportunities Act of 1998).
7
administrative judge denied the motion once more, along with a request for
interlocutory appeal. RAF, Tab 13 at 5-8.
On review, the appellant argues that the administrative judge’s denial of
her motion “constitute[d] an error of law which directly affected the outcome.”
PFR File, Tab 1 at 20-24. She relies on the principles of res judicata and
collateral estoppel. Id. As we explain below, her arguments on this point are
unavailing.
While the appellant summarily asserts that the denial of her motion directly
affected the outcome of her appeal, PFR File, Tab 1 at 20, that is neither apparent
nor explained in her petition. We note that the proposed removal was the only
personnel action for which the administrative judge ordered corrective action.
Thus, assuming any error by the administrative judge, the appellant failed to
prove that such error was harmful. See Panter v. Department of the Air Force,
22 M.S.P.R. 281, 282 (1984) (recognizing that an adjudicatory error that is not
prejudicial to a party’s substantive rights provides no basis for reversal of an
initial decision).
In any event, collateral estoppel is inapplicable here. Collateral estoppel,
or issue preclusion, is appropriate when: (1) the issue is identical to that involved
in the prior action; (2) the issue was actually litigated in the prior action; (3) the
determination on the issue in the prior action was necessary to the resulting
judgment; and (4) the party against whom the issue preclusion is sought had a full
and fair opportunity to litigate the issue in the prior action. McNeil v.
Department of Defense, 100 M.S.P.R. 146, ¶ 15 (2005). Here, the issue before
the agency’s deciding official was whether to remove the appellant for the
misconduct identified in her proposed removal. As discussed further below, the
issues before the Board include whether the agency would have proposed her
removal or taken other personnel actions leading up to her proposed removal in
the absence of the appellant’s protected activity. Those are not identical issues,
thereby failing to satisfy the first element of collateral estoppel. Moreover, the
8
agency’s decision to retain the appellant, rather than remove her, does not satisfy
the “actually litigated” element. Cf., Kavaliauskas v. Department of the
Treasury, 120 M.S.P.R. 509, ¶¶ 6-8 (2014) (explaining that a judicial
determination is necessary to satisfy the “actually litigated” requirement).
While the appellant argues that Board precedent supports her collateral
estoppel arguments, PFR File, Tab 1 at 21-22, it does not. The appellant cites
Payer v. Department of the Army, 19 M.S.P.R. 534, 536-38 (1984), but the Board
in that case affirmed, in part, the application of collateral estoppel to a prior
Board proceeding. The appellant then cited Trueheart v. Department of the Army,
15 M.S.P.R. 191 (1983). 6 But the Board neither mentioned nor applied the
doctrine of collateral estoppel in that case. Finally, the appellant unpersuasively
refers, without citation, to a decision by the Administrator of the Drug
Enforcement Administration concerning res judicata. PFR File, Tab 1 at 22-23.
That doctrine is different than collateral estoppel, but similarly inapplicable. See
generally Peartree v. U.S. Postal Service , 66 M.S.P.R. 332, 336-38 (1995)
(discussing both collateral estoppel and res judicata, and explaining that res
judicata applies when, as relevant here, there was a valid final judgment on the
merits).
We will not consider alleged personnel actions that the appellant failed to
properly raise below.
When the appellant first filed her appeal, the administrative judge issued a
jurisdictional order that, inter alia, asked the appellant to identify the alleged
retaliatory personnel actions. IAF, Tab 3 at 7. In both her initial pleading and
her response to the jurisdictional order, she listed seven such actions. IAF, Tab 1
at 11-12, Tab 5 at 5-6. We summarize them as (1) a December 2015 email from
the Director; (2) a January 2016 accusation of wrongdoing, which was an
apparent reference to the “Expectations of Supervisors and Employees” letter;
6
The appellant’s brief contains a typo in the citation to Trueheart, but it is evident to
which case she was referring. See PFR File, Tab 1 at 21.
9
(3) the February 2016 “Letter of Expectations”; (4) her February 2016
nonselection for the SWE vacancy; (5) the March 2016 detail to a nonsupervisory
position; (6) the October 2016 proposed removal; and (7) the forwarding of the
proposed removal to the facility to which the appellant transferred. IAF, Tab 1
at 11-12, Tab 5 at 5-6.
In a subsequent prehearing submission, the appellant pared down the
alleged retaliatory personnel actions. Rather than the seven previously identified,
she listed: (1) the February 2016 “Letter of Expectations”; (2) the removal of her
supervisory duties; (3) the March 2016 detail; (4) the SWE nonselection; and
(5) the October 2016 proposed removal. IAF, Tab 36 at 6-7.
After the appellant reduced the alleged personnel actions from seven to
five, the administrative judge held a prehearing conference and issued an order
summarizing the issues. IAF, Tab 55. That order identified four alleged
personnel actions: (1) the February 2016 “Letter of Expectations”; (2) the
March 2016 detail, effectively removing her supervisory responsibilities; (3) the
SWE nonselection; and (4) the October 2016 proposed removal. Id. at 2. In
short, the administrative judge identified the same five personnel actions the
appellant identified, combining the removal of supervisory duties and detail to a
nonsupervisory assignment into a single personnel action. Compare IAF, Tab 36
at 6-7, with IAF, Tab 55 at 2.
The administrative judge’s prehearing summary and order invited the
parties to identify any necessary corrections, and warned that if there were none,
the parties would be bound to the issues identified in the prehearing summary.
IAF, Tab 55 at 5. Although the parties responded with arguments about which of
the varying postings for the SWE vacancy were properly before the Board, the
appellant did not identify any additional alleged retaliatory personnel actions
beyond those identified in the prehearing summary. IAF, Tabs 56-57. In fact, the
appellant indicated that the administrative judge correctly identified the four
alleged personnel actions at issue. IAF, Tab 57 at 5. The administrative judge
10
later held another prehearing conference and issued another prehearing summary
with the same four personnel actions, to which the appellant again submitted no
corrections, despite having the opportunity to do so. RAF, Tab 13 at 4, 13.
On review, the appellant has listed the seven alleged retaliatory personnel
actions that she first identified, rather than the four adjudicated by the
administrative judge. PFR File, Tab 1 at 13-14. She then proceeds to discuss
additional alleged actions, including a hostile work environment, involuntary
relocation, and the underlying investigation that preceded her proposed removal.
PFR File, Tab 1 at 14-17, 19-20. To the extent that the appellant is suggesting we
should find that these amounted to additional retaliatory personnel actions for the
Board to consider and order corrective action, we will not do so because she
failed to properly raise them below. See Crowe v. Small Business Administration,
53 M.S.P.R. 631, 634-35 (1992) (explaining that an issue is not properly before
the Board when it is not included in the administrative judge’s memorandum
summarizing the prehearing conference, which states that no other issues will be
considered, unless either party objects); see also Durr v. Department of Veterans
Affairs, 119 M.S.P.R. 195, ¶ 16 n.2 (2013) (applying this principle in the context
of a new theory of alleged whistleblower retaliation that was not among the issues
considered before the administrative judge, even if that theory had been
exhausted before OSC).
We modify the initial decision to find that the Board lacks jurisdiction over the
appellant’s Letter of Expectations.
Under the Whistleblower Protection Enhancement Act of 2012 (WPEA),
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 protected 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 as defined by
11
5 U.S.C. § 2302(a). Salerno v. Department of the Interior, 123 M.S.P.R. 230, ¶ 5
(2016). Once an appellant establishes jurisdiction over her IRA appeal, she is
entitled to a hearing on the merits of her claim, which she must prove by
preponderant evidence. Id. If the appellant proves that her protected disclosure
or activity was a contributing factor in a personnel action taken against her, the
agency is given an opportunity to prove, by clear and convincing evidence, that it
would have taken the same personnel action in the absence of the protected
disclosure. Id. (citing 5 U.S.C. § 1221(e)(1)-(2)).
The administrative judge found that the appellant presented a prima facie
case of reprisal for her first alleged personnel action—the Letter of Expectations
—without deciding whether that Letter of Expectations constituted a covered
personnel action under 5 U.S.C. § 2302(a)(2)(A). ID at 31-32, 37 n.10. We find
that the appellant failed to meet her jurisdictional burden regarding the Letter of
Expectations because she failed to nonfrivolously allege that it constitutes a
cognizable personnel action. Accordingly, we vacate the administrative judge’s
findings to the extent that they assumed that the Letter of Expectations was a
covered personnel action and shifted the burden to the agency regarding that
matter. 7 ID at 37-39 & n.10; see Schmittling v. Department of the Army,
219 F.3d 1332, 1337 (Fed. Cir. 2000) (finding that the Board may not decide the
merits of an IRA appeal if it lacks jurisdiction).
In reaching this conclusion, we recognize that a personnel action includes
disciplinary or corrective action. 5 U.S.C. § 2302(a)(2)(A)(iii). An agency may
not threaten to take such action in reprisal for whistleblowing. 5 U.S.C.
§ 2302(b)(8). Campo v. Department of the Army, 93 M.S.P.R. 1, ¶ 5 (2002). The
appellant’s Letter of Expectations contained no such threat. In short, the Letter
of Expectations indicated that the only subordinate who filed an EEO complaint
7
Because we find that the appellant failed to prove that the Letter of Expectations was a
covered personnel action, we need not address her arguments concerning whether the
agency proved that it would have issued the letter in the absence of her protected
activity. See PFR File, Tab 1 at 27.
12
against the appellant would be temporarily assigned outside her chain of
command for administrative matters; instructed the appellant to cease any
behavior that could be misconstrued as discriminatory or retaliatory and to
complete at least four training requirements over the following 6 months;
assigned her a mentor with whom she would have regular meetings; and indicated
that she should explore options to enhance communication and she would have
bi-weekly progress meetings with her direct supervisor. IAF, Tab 5 at 106-07.
The Letter of Expectations did not conclude that the appellant had engaged in
wrongdoing, nor did it warn of potential consequences. Id.; see Campo,
93 M.S.P.R. 1, ¶¶ 6-8 (finding that the Board had jurisdiction over a
memorandum of warning when, inter alia, the memorandum asserted that the
employee had already been insubordinate and threatened that additional
insubordination would result in her being charged, disciplined, and possibly
removed). Under these circumstances, we find no basis for determining that the
appellant established jurisdiction over the Letter of Expectations as a threatened
disciplinary or corrective action within the meaning of section 2302.
Section 2302 also defines a “personnel action” to include, inter alia, “any
[] significant change in duties, responsibilities, or working conditions.” 5 U.S.C.
§ 2302(a)(2)(A)(xii); Skarada v. Department of Veterans Affairs, 2022 MSPB 17,
¶ 14. Although 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. But again, we find no basis for determining
that the appellant established jurisdiction over the Letter of Expectations within
the meaning of section 2302. She did not nonfrivolously allege that the Letter of
Expectations, or the actions it contemplated, did or would have had a practical
13
and significant effect on the overall nature and quality of her working conditions,
duties, or responsibilities.
The appellant is entitled to corrective action for her proposed removal but no
other alleged personnel actions.
When an appellant establishes jurisdiction over her IRA appeal, she is
entitled to a hearing where she must establish a prima facie case of reprisal.
Supra ¶ 22. If she does so, the agency is given an opportunity to prove, by clear
and convincing evidence, that it would have taken the same personnel action in
the absence of the protected disclosure or activity. Id.
To determine whether an agency has shown by clear and convincing
evidence that it would have taken the same personnel action in the absence of
protected activity, the Board generally will consider the following factors:
(1) the strength of the agency’s evidence in support of its action; (2) the existence
and strength of any motive to retaliate on the part of the agency’s officials who
were involved in the decision; and (3) any evidence that the agency takes similar
actions against employees who did not engage in protected activity but who are
otherwise similarly situated. See Carr v. Social Security Administration,
185 F.3d 1318, 1323 (Fed. Cir. 1999). The Board must consider all pertinent
record evidence in making this determination. Whitmore v. Department of Labor,
680 F.3d 1353, 1368 (Fed. Cir. 2012). The Board does not view these factors as
discrete elements, each of which the agency must prove by clear and convincing
evidence. Phillips v. Department of Transportation, 113 M.S.P.R. 73, ¶ 11
(2010). Rather, the Board will weigh the factors together to determine if the
evidence is clear and convincing as a whole. Id.The administrative judge found that the appellant met her burden of
presenting a prima facie case of reprisal for each of the four alleged personnel
actions before us—the Letter of Expectations, the nonsupervisory detail, the SWE
nonselection, and the proposed removal. ID at 29-33. She then found that the
agency failed to prove that it would have proposed the appellant’s removal in the
14
absence of her protected activity—a protected disclosure and her complaint to
OIG—but did prove that it would have taken the other actions at issue, ID
at 33-39.
We discern no basis for disturbing the initial decision and ordering
corrective action for anything other than the appellant’s proposed removal.
The proposed removal
Although neither party has disputed the administrative judge’s finding that
the agency failed to prove it would have proposed the appellant’s removal absent
her protected activity, we make the following observations to the extent that they
are relevant for purposes of those personnel actions that are disputed. First, the
administrative judge recognized that nonwhistleblowers implicated in the EEO
complaint and investigation appeared to receive favorable treatment when
compared to the appellant, because they were not disciplined. ID at 33-34.
Second, she recognized that two individuals in particular—the Acting AAD and
the Director—had a strong motive to retaliate against the appellant, because her
protected activity directly challenged their decision-making, while the Acting AD
and others were at least aware of the protected activity. ID at 9-10, 21, 34, 39;
see, e.g., IAF, Tab 5 at 102-03, Tab 37 at 46-47. To illustrate the point, the
record includes emails in which the Director called the appellant’s disclosure
unfounded and concerning, and asked why the appellant would “want to ruin [his]
reputation.” IAF, Tab 5 at 102-03. Emails from the Acting AAD called the
appellant’s disclosure a “false allegation” and “classic bullying.” IAF, Tab 37
at 45-46.
The appellant’s nonsupervisory detail assignment
Turning to the nonsupervisory detail, to which the agency assigned the
appellant “pending the outcome of an ongoing investigation” into the allegations
of discrimination against her, the administrative judge determined that despite the
aforementioned motive to retaliate, the evidence in support of the detail
15
assignment was also strong, and the agency met its burden. ID at 37-39; see IAF,
Tab 5 at 117. She recognized that because of the EEO complaint against the
appellant, the agency had a responsibility to investigate the matter. ID at 37.
And based on the early results of that investigation, the Acting AAD
recommended that the appellant be reassigned to a nonsupervisory position, to
which the Director agreed, but requested Human Resources review for
appropriateness before proceeding. ID at 6, 37-38; see IAF, Tab 12 at 81-82.
Most notably, this occurred in November 2015, prior to the appellant’s protected
activity and any motive to retaliate, notwithstanding that the appellant’s actual
reassignment to the nonsupervisory detail occurred after her protected activity
and once these officials had a strong motive to retaliate. 8 ID at 37-38; IAF, Tab 5
at 87-88.
While the appellant highlighted that her detail to the nonsupervisory
position was not effectuated until after her protected activity, the administrative
judge found the delay inconsequential. She concluded that the delay between
approval and effectuation—with the appellant’s protected activity falling in
between—was reasonably explained by the deliberation of relevant parties and
other circumstances at hand, rather than some change in circumstance attributable
to parties’ retaliatory motive. ID at 38-39. Most significantly, placing the
appellant in the nonsupervisory detail was far less pressing until just days before
8
We considered whether this timing requires that we overturn the administrative
judge’s findings regarding the nonsupervisory detail assignment and the contributing
factor requirement, but find that it does not. See generally Sherman v. Department of
Homeland Security, 122 M.S.P.R. 644, ¶ 9 (2015) (finding that an appellant presented
nonfrivolous allegations that his protected activity was a contributing factor in his
performance appraisal when relevant officials learned of that protected activity after
first issuing the performance appraisal, but before completing the performance appraisal
months later). While the Acting AAD and Director did not yet have a motive to
retaliate when they first recommended removing the appellant’s supervisory duties, they
did have a motive to retaliate throughout much of the subsequent deliberations with
other relevant parties about the same, including the Acting AD, who placed the
appellant in the nonsupervisory detail. See, e.g., IAF, Tab 5 at 117, Tab 48 at 48-51,
Tab 50 at 37.
16
the agency did so because the appellant’s subordinate who filed the EEO
complaint against the appellant was on maternity leave from November 2015 to
March 2016. ID at 6, 13, 39.
We find the appellant’s arguments on review unpersuasive and decline to
disturb the administrative judge’s findings regarding the detail.
Social Work Executive nonselection
The administrative judge recognized that several officials knew of the
appellant’s protected activity but two in particular—the Acting AAD and the
Director—had a strong motive to retaliate against her. ID at 9-10, 21, 34, 39; see,
e.g., IAF, Tab 5 at 102-03, Tab 37 at 46-47. The former solicited for the SWE
vacancy and was otherwise involved in the associated announcements, while the
latter was the selecting official for the SWE vacancy. See ID at 7, 36; see also,
e.g., IAF, Tab 5 at 89-90, Tab 38 at 14-15. Yet, the administrative judge
concluded that the agency met its burden of proving that the appellant’s
nonselection would have occurred in the absence of her protected activity. ID
at 35-36.
The administrative judge noted that because the SWE vacancy was posted
three different times to account for multiple changes to the announcement, there
were three different interview panels. ID at 36. She recognized that with each,
including one that convened prior to the appellant’s protected activity, the panel
ranked the same individual first, while ranking the appellant either third or fourth.
Id. The selecting official simply followed the recommendation of the interview
panels, selecting that top-ranked individual for the SWE position over the
appellant and others. Id. The administrative judge further noted that two
individuals—one from each of the interview panels that convened after the
appellant’s protected activity—testified regarding the reasons for their rankings,
and the administrative judge found their testimony credible. ID at 25, 36. As
previously discussed, the candidate they consistently ranked first had served as
the acting SWE over the years prior. ID at 7; see, e.g., IAF, Tab 9 at 101-03.
17
Here, the administrative judge found that the agency met its burden that it
would have taken the same action in the absence of the appellant’s protected
activity. On review, the appellant has not presented any persuasive argument to
the contrary. She has not, for example, directed us to any evidence supporting
her selection over the candidate who was selected and consistently ranked the
highest of all candidates, both before and after the appellant’s protected activity.
In fact, the appellant’s arguments on review neither discuss nor reference either
her own qualifications or those of the selected candidate.
The administrative judge did not err by failing to implement the referral provision
of 5 U.S.C. § 1221(f)(3).
Section 1221(f)(3) of Title 5 of the U.S. Code provides as follows: “[i]f,
based on evidence presented to it under this section, the [Board] determines that
there is reason to believe that a current employee may have committed a
prohibited personnel practice, the Board shall refer the matter to [OSC]” for
appropriate action. 5 U.S.C. § 1221(f)(3). On review, the appellant argues that
the administrative judge failed to comply with that provision. PFR File, Tab 1
at 17-18. We disagree.
The Board refers matters to OSC pursuant to section 1221(f)(3) after a
decision has become final. See 5 C.F.R. § 1201.113(f). Therefore, had the
appellant not filed a petition for review, the initial decision would have become
final in July 2018, and the matter would have then been referred to OSC. See ID
at 42. But because the appellant did file a petition for review, the initial decision
did not become final at that time. Instead, the instant final order renders the
matter ripe, and the Board will now fulfill its obligation under section 1221(f)(3).
ORDER
We ORDER the agency to purge all copies of the appellant’s proposed
removal from agency records. See Kerr v. National Endowment for the Arts,
18
726 F.2d 730 (Fed. Cir. 1984). The agency must complete this action no later
than 20 days after the date of this decision.
We further ORDER the agency to tell the appellant promptly in writing
when it believes it has fully carried out the Board’s Order and of the actions it has
taken to carry out the Board’s Order. The appellant, if not notified, should ask
the agency about its progress. See 5 C.F.R. § 1201.181(b).
No later than 30 days after the agency tells the appellant that it has fully
carried out the Board’s Order, the appellant may file a petition for enforcement
with the office that issued the initial decision on this appeal if the appellant
believes that the agency did not fully carry out the Board’s Order. The petition
should contain specific reasons why the appellant believes that the agency has not
fully carried out the Board’s Order, and should include the dates and results of
any communications with the agency. 5 C.F.R. § 1201.182(a).
NOTICE TO THE APPELLANT REGARDING
YOUR RIGHT TO REQUEST
ATTORNEY FEES AND COSTS
You may be entitled to be paid by the agency for your reasonable attorney
fees and costs. To be paid, you must meet the requirements set forth at Title 5 of
the United States Code (5 U.S.C.), sections 7701(g), 1221(g), or 1214(g). The
regulations may be found at 5 C.F.R. §§ 1201.201, 1201.202, and 1201.203. If
you believe you meet these requirements, you must file a motion for attorney fees
and costs WITHIN 60 CALENDAR DAYS OF THE DATE OF THIS DECISION.
You must file your motion for attorney fees and costs with the office that issued
the initial decision on your appeal.
NOTICE TO THE APPELLANT REGARDING
YOUR RIGHT TO REQUEST CONSEQUENTIAL AND/OR
COMPENSATORY DAMAGES
You may be entitled to be paid by the agency for your consequential
damages, including medical costs incurred, travel expenses, and any other
19
reasonable and foreseeable consequential damages. To be paid, you must meet
the requirements set out at 5 U.S.C. §§ 1214(g) or 1221(g). The regulations may
be found at 5 C.F.R. §§ 1201.201, 1201.202 and 1201.204.
In addition, the Whistleblower Protection Enhancement Act of 2012
authorized the award of compensatory damages including interest, reasonable
expert witness fees, and costs, 5 U.S.C. § 1214(g)(2), which you may be entitled
to receive.
If you believe you are entitled to these damages, you must file a motion for
consequential damages and/or compensatory damages WITHIN 60 CALENDAR
DAYS OF THE DATE OF THIS DECISION. You must file your motion with the
office that issued the initial decision on your appeal.
NOTICE TO THE PARTIES
A copy of the decision will be referred to the Special Counsel “to
investigate and take appropriate action under [5 U.S.C.] section 1215,” based on
the determination that “there is reason to believe that a current employee may
have committed a prohibited personnel practice” under 5 U.S.C. § 2302(b)(8) or
section 2302(b)(9)(A)(i), (B), (C), or (D). 5 U.S.C. § 1221(f)(3). Please note that
while any Special Counsel investigation related to this decision is pending, “no
disciplinary action shall be taken against any employee for any alleged prohibited
activity under investigation or for any related activity without the approval of the
Special Counsel.” 5 U.S.C. § 1214(f).
NOTICE OF APPEAL RIGHTS 9
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
9
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.
20
forum with which to file. 5 U.S.C. § 7703(b). Although we offer the following
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 dismissal 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.
21
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. 420 (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
22
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. 10 The court of appeals must receive your petition for
10
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
July 7, 2018, permanently allows appellants to file petitions for judicial review of
23
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 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.
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.
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.
24
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: ______________________________
Jennifer Everling
Acting Clerk of the Board
Washington, D.C.