Debbie Walker v. Department of Defense ( 2024 )

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
DEBBIE LOU WALKER, DOCKET NUMBER
Appellant, NY-1221-22-0167-W-1
v.
DEPARTMENT OF DEFENSE, DATE: February 14, 2024
Agency.
THIS ORDER IS NONPRECEDENTIAL 1
James R. Walker , Byron, Georgia, for the appellant.
Ryan Devine , Esquire, Fort Gregg Adams, Virginia, 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,
VACATE the initial decision, FIND that the appellant established Board
jurisdiction over her appeal, and REMAND the case to New York Field Office for
further adjudication in accordance with this Remand Order.
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
BACKGROUND
¶2 The appellant works as a GS-13 Store Director of the Mitchel Field
Commissary at the Defense Commissary Agency (DCA). Initial Appeal File
(IAF), Tab 7 at 17, 30. On or about May 21, 2020, the appellant filed a complaint
with the Office of Special Counsel (OSC) alleging whistleblower reprisal. Id.
at 12-54. After OSC issued the appellant a letter notifying her that it was
terminating its investigation into her complaint, the appellant filed an IRA appeal
with the Board. IAF, Tabs 1, 3. The administrative judge issued a jurisdictional
order, notifying the appellant of the IRA jurisdictional standard, and providing
her with an opportunity to present evidence and argument establishing Board
jurisdiction over her IRA appeal. IAF, Tab 4.
¶3 The appellant responded to the administrative judge’s order, 2 alleging that
the agency retaliated against her because she disclosed that the Federal contractor
providing personnel support to the commissary was fraudulently billing the
agency in the amount of $1.275 million. IAF, Tabs 7 at 2-8, Tab 13 at 4-13.
Without holding a hearing, the administrative judge issued an initial decision
dismissing the appeal for lack of jurisdiction. IAF, Tab 20, Initial Decision (ID).
First, the administrative judge found that the appellant alleged two instances of
whistleblowing, specifically, an April 3, 2020 disclosure of “contractor
impropriety” and a May 21, 2020 OSC complaint. ID at 3. Then, the
administrative judge found that the appellant did not prove exhaustion as it
relates to the May 21, 2020 OSC complaint. ID at 3. Next, the administrative
judge found that, while the appellant proved exhaustion with regards to her
April 3, 2020 disclosure, she did not make a nonfrivolous allegation that she held
a reasonable belief that her disclosures evidenced agency wrongdoing because she
2
Although the appellant responded to the administrative judge’s initial jurisdictional
order, IAF, Tabs 7-8, the administrative judge issued a second jurisdictional order,
stating that the appellant’s response did not comply with her order, and directing the
appellant to provide a “concise list” of her allegations, IAF, Tab 9. The appellant
responded to the administrative judge’s second jurisdictional order. IAF, Tabs 13-14.
3
disclosed wrongdoing by a non-Federal entity. ID at 3-5. Concluding that the
April 3, 2020 disclosure was a “quintessential contractual issue,” the
administrative judge found that the appellant did not make a nonfrivolous
allegation that she made a protected disclosure. ID at 5.
¶4 The appellant has filed a petition for review, arguing, in part, that agency
personnel were implicated in her disclosures, and she reasonably believed her
disclosures evidenced agency wrongdoing. Petition for Review (PFR) File, Tab 1
at 4-5. The agency responded in opposition to the appellant’s petition for review.
PFR File, Tab 3.
DISCUSSION OF ARGUMENTS ON REVIEW
¶5 As an initial matter, the administrative judge did not capture the totality of
the appellant’s claims, incorrectly stating that the appellant alleged only two
instances of whistleblowing. ID at 3. Therefore, we must correct the framing of
the appellant’s allegations. The appellant asserted in her jurisdictional responses
that: (1) in November 2019, she disclosed to the Department of Defense
Inspector General (DOD IG) that the Federal contractor was fraudulently billing
the agency; (2) in December 2019, she disclosed to the DCA’s Inspector General
(IG) that the Federal contractor was fraudulently billing the agency; (3) in
January 2020, she disclosed to the agency’s contracting officer that the Federal
contractor was fraudulently billing the agency, (4) in February 2020, she
disclosed to her first-line supervisor that the Federal contractor was fraudulently
billing the agency; and (5) on April 3, 2020, she disclosed to her second-line
supervisor that the Federal contractor was fraudulently billing the agency. 3 IAF,
3
The appellant also alleged that she made disclosures to OSC, first on April 28, 2020,
and then by filing an OSC complaint on May 21, 2020, which is the complaint that
serves as the basis of this appeal. IAF, Tab 13 at 4. Regarding the April 28, 2020 OSC
disclosure, the appellant did not reference this disclosure in any other submission to the
Board or to OSC, nor has she claimed on review that she made a disclosure to OSC on
April 28, 2020. IAF, Tab 7 at 2-8, 12-54, Tab 13 at 4-13; PFR File, Tab 1 at 4-6.
However, even if the appellant made a disclosure to OSC on April 28, 2020, there is no
evidence that she raised this claim to OSC, and thus, she did not prove exhaustion.
4
Tab 13 at 4-5. She also alleged that, in retaliation for her disclosures, the agency
(i) subjected her to a hostile work environment; (ii) failed to detail her as the
acting Store Director of another commissary; (iii) issued her an “unfair” award;
(iv) failed to select her for three vacant positions; and (v) issued her an unfair
performance review. Id. at 4-6.
¶6 Because the administrative judge did not accurately characterize the
appellant’s claims, she did not properly apply the IRA jurisdictional framework.
First, we address the issue of exhaustion, finding that the appellant exhausted
only a portion of her claims, specifically, that the agency retaliated against her for
her disclosures to the DOD IG, the DCA IG, and her first- and second-line
supervisors, by subjecting her to a hostile work environment, issuing her an
“unfair” award, and not selecting her for three positions. However, we find that
the appellant did not make a nonfrivolous allegation that the cumulative effect of
the agency’s actions constituted a significant change in her working conditions,
and therefore, her hostile work environment claim is not a covered personnel
action. Next, we find that, while the appellant nonfrivolously alleged that she
engaged in protected activity by making disclosures to the DOD and DCA IGs,
she did not make a nonfrivolous allegation that the protected activity was a
contributing factor in any personnel action. Nevertheless, because we find that
the appellant nonfrivolously alleged that she made protected disclosures to her
first- and second-line supervisors that were a contributing factor in the agency’s
personnel actions, we find that the Board has jurisdiction over this appeal.
The appellant proved exhaustion with respect to a portion of her claims.
¶7 We find that the appellant proved exhaustion only with respect to a portion
of the claims she set forth in her jurisdictional response. IAF, Tab 13 at 4-6. To
IAF, Tab 7 at 12-54. Regarding the appellant’s May 21, 2020 OSC complaint, it is
unclear whether the appellant is alleging that she was retaliated against for filing this
complaint. IAF, Tab 13 at 4-6. Nevertheless, we agree with the administrative judge
that the appellant did not prove that she exhausted her administrative remedies
regarding the May 21, 2020 OSC complaint, ID at 3, and the appellant does not
challenge this finding on review.
5
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. Skarada v. Department of Veterans Affairs,
2022 MSPB 17, ¶ 7; Chambers v. Department of Homeland Security, 2022 MSPB
8, ¶ 10. Generally, exhaustion can be demonstrated through the appellant’s 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. Skarada,
2022 MSPB 17, ¶ 7; Mason v. Department of Homeland Security , 116 M.S.P.R.
135, ¶ 8 (2011). Alternatively, exhaustion may be proven through other
sufficiently reliable evidence, such as an affidavit attesting that the appellant
raised with OSC the substance of the facts in her Board appeal. Skarada,
2022 MSPB 17, ¶ 7; Chambers, 2022 MSPB 8, ¶ 11. The appellant must prove
exhaustion with OSC by preponderant evidence, not just present nonfrivolous
allegations of exhaustion. Chambers, 2022 MSPB 8, ¶ 11.
¶8 The record contains a copy of the appellant’s May 21, 2020 OSC complaint,
a detailed narrative of her claims that she provided to OSC, and a copy of OSC’s
close-out letter. IAF, Tab 3, Tab 7 at 12-54. Based on our review of these
documents, we find that the appellant raised to OSC that she disclosed the Federal
contractor’s fraudulent billing to the DOD IG, the DCA’s IG, and her first- and
second-line supervisors. IAF, Tab 7 at 20, 30-39. Furthermore, of the personnel
actions alleged by the appellant in her jurisdictional response, OSC’s close-out
letter references the hostile work environment claim, the “unfair” award, and the
three nonselections. IAF, Tab 3. There is no evidence that the appellant raised
DCA’s failure to detail her or her performance evaluation to OSC. 4 IAF, Tab 7 at
12-54. Similarly, there is no evidence that the appellant alleged to OSC that she
4
On review, the appellant admits that she did not raise the performance evaluation to
OSC. PFR File, Tab 1 at 5.
6
made a protected disclosure to the agency’s contracting officer in January 2020,
as she asserted in her jurisdictional response. IAF, Tab 7 at 12-54, Tab 13 at 4.
¶9 Accordingly, we find that the appellant proved exhaustion with respect to
the following: that she disclosed allegations of fraudulent billing by the Federal
contractor to (1) the DOD IG; (2) the DCA IG; (3) her first-line supervisor; and
(4) her second-line supervisor, and in retaliation, the agency (i) subjected her to a
hostile work environment; (ii) issued her an “unfair” award; and (iii) did not
select her for three vacant positions.
The appellant’s hostile work environment claim is not a covered personnel action
because the appellant did not make a nonfrivolous allegation that the cumulative
effect of the agency’s actions constituted a significant change in her working
conditions.
¶10 The administrative judge, before issuing the initial decision, issued an order
and findings on jurisdiction, “disallowing” the appellant’s claim of hostile work
environment because the appellant did not allege facts that would meet the legal
burden to allege a hostile work environment. IAF, Tab 17 at 3. Specifically, the
administrative judge stated that, to prevail on a hostile work environment claim,
the appellant must show that the complained-of conduct was objectively and
subjectively discriminatory, and was so severe or pervasive as to create a working
environment that a reasonable person would find hostile. Id. The administrative
judge concluded that the appellant’s allegations were “lacking.” Id.¶11 To the extent the administrative judge cited to case law interpreting
Title VII in defining a hostile work environment for purposes of this IRA appeal,
her reliance on this case law was in error. IAF, Tab 17 at 3 (citing Harris v.
Forklift Systems, Inc., 510 U.S. 17, 21-22 (1993) (explaining that under Title VII,
an employee may pursue a claim based on conduct that is both “severe or
pervasive enough to create . . . an environment that a reasonable person would
find hostile or abusive” and that the victim “subjectively perceive[d]” as
“abusive”)). Although the term “hostile work environment” has a particular
meaning in other contexts, the Board has clarified that allegations of a hostile
7
work environment may establish a personnel action in an IRA appeal only if they
meet the statutory criteria, i.e., constitute a “significant change in duties,
responsibilities, or working conditions” under 5 U.S.C. § 2302(a)(2)(A)(xii).
Skarada, 2022 MSPB 17, ¶ 16. 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 5 U.S.C. § 2302(a)(2)(A)(xii).
Skarada, 2022 MSPB 17, ¶ 16.
¶12 Although the administrative judge advised the parties of the Title VII
definition of hostile work environment, we find that the definition she used was
sufficient to advise the appellant of the need to identify the impact of the
agency’s actions on her workplace, as stated in Skarada. Specifically, the
administrative judge identified as factors relevant in determining whether agency
conduct rises to the level of actionable harassment as including the frequency and
severity of the conduct and whether it interferes with performance. IAF, Tab 17
at 3. Under these circumstances, we conclude that the administrative judge’s
error was not harmful. See As’Salaam v. U.S. Postal Service, 85 M.P.S.R.
76, ¶ 14 (2000) (finding harmless an administrative judge’s error in failing to
notify the appellant that his burden at the jurisdictional stage of his appeal was to
make nonfrivolous allegations when the undisputed facts made clear he could not
meet this burden).
¶13 We also agree with the administrative judge that the appellant’s allegations
do not amount to a nonfrivolous allegation of a significant change in her duties,
responsibilities, or working conditions. The appellant’s hostile work environment
claim includes the following allegations: denying her request to deep clean the
store, denying her request to telework when she had COVID-19, denying her
access to the commissary while she had COVID-19, requiring her to produce
three doctor’s notes to return to work after she had COVID-19, giving awards to
the employees who worked while she was on leave due to COVID-19, requiring
8
her to contact an employee on sick leave, defaming and slandering her to the
Command, and preventing her from filling vacant positions in the commissary
store. IAF, Tab 13 at 4-13. The appellant does not challenge the administrative
judge’s findings on review, nor has she explained how the listed actions impacted
her working conditions, duties, or responsibilities. IAF, Tab 7 at 2-8, Tab 13 at
4-13; PFR File, Tab 1 at 4-6. Accordingly, the appellant did not make a
nonfrivolous allegation that her hostile work environment claim is a covered
personnel action.
The appellant did not make a nonfrivolous allegation that her disclosures to the
DOD or DCA IGs were a contributing factor in the issuance of the award or the
three nonselections.
¶14 In addition to exhausting remedies with OSC, to establish Board jurisdiction
over an IRA appeal, an appellant must make nonfrivolous allegations that (1) she
made a protected whistleblowing disclosure under 5 U.S.C. § 2302(b)(8) or
engaged in protected whistleblowing activity under 5 U.S.C. § 2302(b)(9)(A)(i),
(B), (C), or (D); and (2) the disclosure or activity was a contributing factor in the
agency’s decision to take, or fail to take, or threaten to take, a personnel action as
defined by 5 U.S.C. § 2302(a)(2)(A). Chambers, 2022 MSPB 8, ¶ 14. Under the
broadly worded provision of 5 U.S.C. § 2302(b)(9)(C), any disclosure of
information to an IG is protected regardless of its content as long as such
disclosure is made in accordance with applicable provisions of law. Fisher v.
Department of the Interior, 2023 MSPB 11, ¶ 8. As the appellant alleged that she
made disclosures to the DOD and DCA IGs, we find that she nonfrivolously
alleged that she engaged in a protected activity under 5 U.S.C. § 2302(b)(9)(C).
¶15 Having determined that the appellant nonfrivolously alleged that she
engaged in a protected activity, we proceed to the question of whether she
nonfrivolously alleged that these protected activities were a contributing factor in
the agency’s personnel actions. To satisfy the contributing criterion, an appellant
only need raise a nonfrivolous allegation that the fact of, or the content of, the
9
protected disclosure was one factor that tended to affect the personnel action in
any way. Skarada, 2022 MSPB 17, ¶ 19. One way to establish this criterion is
the knowledge/timing test, under which an employee may nonfrivolously allege
that the disclosure 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 and that the personnel action occurred within a
period of time such that a reasonable person could conclude that the disclosure
was a contributing factor in the personnel action. Id. The Board has held that a
personnel action taken within approximately 1 to 2 years of the appellant’s
disclosures satisfies the knowledge/timing test. Id.¶16 With respect to her IG disclosures, the appellant does not satisfy the
knowledge/timing test. The appellant did not allege, in any submission to the
Board or OSC, that the individuals identified as responsible for the personnel
actions at issue had any knowledge of her contact with the DOD IG or DCA IG.
IAF, Tab 7 at 2-8, 12-54, Tab 13 at 4-13. Furthermore, the appellant has not
alleged that either IG investigated her claims or contacted any personnel related
to her disclosures. IAF, Tab 7 at 2-8, 12-54, Tab 13 at 4-13. Accordingly, we
find that the appellant does meet the knowledge prong of the
knowledge/timing test.
¶17 However, the Board has held that if an appellant has failed to satisfy the
knowledge/timing test, it will consider other evidence, such as evidence
pertaining to the strength or weakness of the agency’s reasons for taking the
personnel action, whether the whistleblowing was personally directed towards the
officials taking the action, and whether these individuals had a desire or motive to
retaliate against the appellant. Dorney v. Department of the Army, 117 M.S.P.R.
480, ¶ 15 (2012). Here, the appellant has not provided any evidence pertaining to
the strength or weakness of the agency’s reasons for taking the personnel actions,
nor has she explained whether the individuals responsible for taking the personnel
actions against her had a desire or motive to retaliate. Furthermore, the appellant
10
does not allege that she named her supervisors in her disclosures to the DOD IG
or the DCA IG, or that her whistleblowing was personally directed at them. IAF,
Tab 7 at 2-8, 12-54, Tab 13 at 4-13. Accordingly, we find that the appellant has
failed to nonfrivolously allege that her protected activities, i.e., her disclosures to
the DOD and DCA IGs, were a contributing factor in the agency’s personnel
actions.
The appellant made a nonfrivolous allegation that she made protected disclosures
to her first- and second-line supervisors that were a contributing factor in the
issuance of an unfair award and three nonselections.
¶18 The administrative judge found that the appellant failed to nonfrivolously
allege that her disclosures to her first- and second-line supervisors of wrongdoing
by a Federal contractor implicated the Government. ID at 4-5. We disagree and
further find that the appellant established Board jurisdiction because she
nonfrivolously alleged that her protected disclosures were a contributing factor in
the agency’s personnel actions. 5
¶19 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 her position would believe evidenced one of
the categories of wrongdoing specified in 5 U.S.C. § 2302(b)(8). Gabel v.
Department of Veterans Affairs, 2023 MSPB 4, ¶ 6. The test to determine
whether a whistleblower has a reasonable belief in the disclosure is an objective
one: whether a 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 evidence 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. A disclosure of
wrongdoing committed by a non-Federal Government entity may be protected
only when the Government’s interests and good name are implicated in the
5
The statutory definition of a personnel action expressly includes the personnel actions
at issue, i.e., nonselections and awards. 5 U.S.C. § 2302(a)(2)(A)(i)-(ii), (ix).
11
alleged wrongdoing, and the employee shows that she reasonably believed that
the information she disclosed evidenced that wrongdoing. Covington v.
Department of the Interior, 2023 MSPB 5, ¶ 20.
¶20 Contrary to the administrative judge’s findings, ID at 3-5, we conclude that
the appellant’s disclosure necessarily implicates agency wrongdoing. The
appellant alleged that she disclosed to her first-line supervisor in February 2020
and her second-line supervisor on April 3, 2020, that the Federal contractor was
fraudulently billing the agency at least $1.275 million annually for work that it
did not perform. IAF, Tab 13 at 4-5. The appellant’s allegations, if true, could
constitute a gross waste of funds, which is defined as a more than debatable
expenditure that is significantly out of proportion to the benefit reasonably
expected to accrue to the Government. See Smith v. Department of the Army,
80 M.S.P.R. 311, ¶ 8 (1998) (so defining a gross waste of funds). The appellant
alleged that the $1.275 million was a relatively large amount given the small size
of the store. 6 IAF, Tab 13 at 5. She further alleged that an acting Store
Director’s lack of oversight permitted the fraudulent overcharging. Id. at 4, 9.
While lacking in detail, we find that the allegations are sufficient to suggest that
the Government enabled a contractor to charge for services that the Government
did not receive and thus that the payment for these services was disproportionate
to the benefit accrued. Therefore, the appellant nonfrivolously alleged that she
made a protected disclosure.
¶21 We also find that the appellant nonfrivolously alleged that these protected
disclosures were a contributing factor in the issuance of the “unfair” award and
the three nonselections, because the appellant made the protected disclosures to
her first- and second-line supervisors, i.e., the individuals responsible for the
6
The Board does not require, as a basis for its jurisdiction, that an appellant in an IRA
appeal correctly label a category of wrongdoing. El v. Department of Commerce,
123 M.S.P.R. 76, ¶ 11 (2015), aff’d, 663 F. App’x 921 (Fed. Cir. 2016). Therefore, we
need not consider here whether the appellant’s allegations might constitute another
category of wrongdoing, such as gross mismanagement. The administrative judge
should consider this issue on remand at the merits stage of this appeal.
12
personnel actions, and the personnel actions occurred within 1 to 2 years of her
protected disclosures. See Skarada, 2022 MSPB 17, ¶ 19 (finding that an
appellant satisfies the contributing factor standard if she meets the
knowledge/timing test).
The appellant made a nonfrivolous allegation of Board jurisdiction and is entitled
to a hearing.
¶22 In conclusion, we find that the appellant nonfrivolously alleged that she
made protected disclosures that were a contributing factor in certain personnel
actions. Therefore, the appellant has established Board jurisdiction over her
appeal, and she is entitled to a hearing on the merits. Graves v. Department of
Veterans Affairs, 123 M.S.P.R. 434, ¶ 22 (2016) (explaining that an appellant is
entitled to a hearing on the merits once she establishes Board jurisdiction over her
IRA appeal). On remand, the administrative judge shall schedule the hearing the
appellant requested and afford her an opportunity to prove by preponderant
evidence that she made protected disclosures to her first- and second-line
supervisors that were a contributing factor in the issuance of the unfair award and
the three nonselections. IAF, Tab 1 at 2; see Skarada, 2022 MSPB 17, ¶ 22
(explaining that, when reviewing the merits of an IRA appeal, the Board must
determine whether the appellant established by preponderant evidence that he
made a protected disclosure that was a contributing factor in the agency’s
personnel action). If the administrative judge finds that the appellant proved her
prima face case of whistleblower reprisal, the administrative judge must then
determine whether the agency has proved by clear and convincing evidence that it
would have taken the same personnel actions notwithstanding the appellant’s
protected disclosures. See Turner v. Department of Agriculture, 2023 MSPB 25,
¶ 12 (explaining that if an appellant proves that a protected disclosure or activity
was a contributing factor in a personnel action by preponderant evidence, the
agency is given an opportunity to prove by clear and convincing evidence that it
13
would have taken the same personnel action absent the protected disclosure or
activity).
ORDER
¶23 For the reasons discussed above, we remand this case to the New York Field
Office for further adjudication in accordance with this Remand Order.
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.