Larry Coleman v. Department of the Navy ( 2024 )

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
LARRY B. COLEMAN JR., DOCKET NUMBER
Appellant, SF-1221-19-0510-W-1
v.
DEPARTMENT OF THE NAVY, DATE: July 5, 2024
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Larry B. Coleman Jr. , Oxnard, California, pro se.
Julianne Surane , Port Hueneme, California, for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
Henry J. Kerner, Member*
*Member Kerner did not participate in the adjudication of this appeal.
FINAL ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
dismissed his individual right of action (IRA) appeal for lack of jurisdiction.
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 interpretation of statute or regulation
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
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
find that the appellant exhausted additional disclosures and to apply the correct
standard for determining whether an alleged hostile work environment constitutes
a personnel action, we AFFIRM the initial decision.
BACKGROUND
¶2 At all times relevant to this appeal, the agency employed the appellant as a
Supervisory Technician, NT-0856-05, at the Naval Surface Warfare Center,
Port Hueneme Division, Port Hueneme, California. Initial Appeal File (IAF),
Tab 49 at 11. On April 8, 2019, the appellant filed a complaint with the Office of
Special Counsel (OSC), and supplemented his complaint in May 2019. IAF,
Tab 6 at 48-52, Tab 7 at 4-16. In the information that he submitted to OSC, the
appellant alleged that the agency placed him on administrative leave, suspended
his security clearance, suspended him indefinitely, and subjected him to a hostile
work environment in reprisal for disclosing wrongdoing in his December 11,
2015, March 2, 2019, and March 7, 2019 memoranda to management officials; for
reporting fuel spills on April 1 and 5, 2019; and for filing a complaint with the
agency’s Office of Inspector General (OIG). IAF, Tab 6 at 5, 48-52, Tab 7
at 4-16. On May 29, 2019, OSC closed its inquiry into the appellant’s complaint
and notified him of his right to file an appeal with the Board. IAF, Tab 6 at 5.
3
¶3 The appellant filed a timely IRA appeal. IAF, Tab 1. After the close of the
record on jurisdiction, the administrative judge issued an initial decision, without
holding a hearing, dismissing the appeal for lack of jurisdiction. IAF, Tab 53,
Initial Decision (ID) at 1, 9. She found that the appellant failed to make a
nonfrivolous allegation that the agency had taken or threatened to take a covered
personnel action against him. ID at 5-8. She did not consider the remaining
aspects of the appellant’s claim. ID at 5.
¶4 The appellant has filed a petition for review, consisting of his prehearing
submission and the agency’s response thereto from his separate indefinite
suspension appeal. 2 Petition for Review (PFR) File, Tab 1. On review, he raises
no specific challenge to the initial decision from this appeal. 3 Id. The agency has
filed a response to the appellant’s petition for review. PFR File, Tab 4.
DISCUSSION OF ARGUMENTS ON REVIEW
¶5 Although the appellant did not raise any specific challenges to the initial
decision, we nevertheless find it necessary to supplement the administrative
judge’s jurisdictional findings. The Board has jurisdiction over an IRA appeal if
the appellant has exhausted his administrative remedies before OSC and makes
nonfrivolous allegations that (1) he made a protected disclosure described under
5 U.S.C. § 2302(b)(8) or engaged in protected activity described under 5 U.S.C.
2
The Western Regional Office also docketed the appellant’s indefinite suspension as an
adverse action appeal, Coleman v. Department of the Navy, MSPB Docket No. SF-0752-
19-0509-I-1.
3
The documents the appellant submits on review were not included in the record below,
and the administrative judge did not consider them in reaching her decision to dismiss
this appeal for lack of jurisdiction. The issue of the Board’s jurisdiction is always
before the Board and may be raised by either party or sua sponte by the Board at any
time during a Board proceeding. Simnitt v. Department of Veterans Affairs,
113 M.S.P.R. 313, ¶ 5 (2010). However, the appellant has not explained how these
documents would affect the outcome of the appeal; therefore, we decline to consider
them. See Schoenig v. Department of Justice, 120 M.S.P.R. 318, ¶ 7 (2013)
(considering the appellant’s evidence of exhaustion submitted for the first time on
review only because it implicated the Board’s jurisdiction and warranted an outcome
different from that of the initial decision).
4
§ 2302(b)(9)(A)(i), (B), (C), or (D), and (2) the disclosure or protected activity
was a contributing factor in the agency’s decision to take or fail to take a
personnel action as defined by 5 U.S.C. § 2302(a)(2)(A). 4 Salerno v. Department
of the Interior, 123 M.S.P.R. 230, ¶ 5 (2016); see 5 U.S.C. §§ 1214(a)(3), 1221(e)
(1); Yunus v. Department of Veterans Affairs, 242 F.3d 1367, 1371 (Fed. Cir.
2001).
The appellant exhausted additional alleged protected disclosures and activity.
¶6 The administrative judge found that the appellant exhausted his claims that
the agency placed him on administrative leave, suspended his security access,
suspended him indefinitely, and subjected him to a hostile work environment in
reprisal for disclosing a hostile work environment and harassment in his March 2,
2019, and March 7, 2019 memoranda to management officials. ID at 4-5. As the
administrative judge correctly explained, ID at 4, under 5 U.S.C. § 1214(a)(3), an
employee is required to exhaust his administrative remedies with OSC before
seeking corrective action from the Board in an IRA appeal, Mason v. Department
of Homeland Security, 116 M.S.P.R. 135, ¶ 8 (2011). The Board may consider
only those disclosures of information and personnel actions that the appellant
raised before OSC. Id. To satisfy the exhaustion requirement, an appellant must
provide to OSC a sufficient basis to pursue an investigation that might lead to
corrective action. Chambers v. Department of Homeland Security, 2022 MSPB 8,
¶ 10.
¶7 In addition to the alleged personnel actions and disclosures identified by the
administrative judge, ID at 4-5, the record reflects that the appellant notified OSC
that he disclosed a hostile work environment in December 2015 and fuel spills on
April 1 and April 5, 2019, and filed an OIG complaint, IAF, Tab 6 at 50, Tab 7
4
A nonfrivolous allegation is an assertion that, if proven, could establish the matter at
issue. 5 C.F.R. § 1201.4(s). An allegation generally will be considered nonfrivolous
when, under oath or penalty of perjury, an individual makes an allegation that is more
than conclusory, plausible on its face, and material to the legal issues in the appeal. Id.Whether allegations are nonfrivolous is determined based on the written record.
Bradley v. Department of Homeland Security, 123 M.S.P.R. 547, ¶ 6 (2016).
5
at 5-6, 11-12. Thus, we find that the appellant exhausted his OSC remedy
regarding these alleged protected disclosures and activity. 5
The appellant did not nonfrivolously allege a covered personnel action.
¶8 In finding that the appellant did not nonfrivolously allege a covered
personnel action, the administrative judge determined that the Board was
precluded from reviewing the agency’s security clearance determination and also
from considering the remaining alleged personnel actions because they were
inextricably intertwined with that determination. ID at 5-8. She nevertheless
proceeded to analyze the appellant’s hostile work environment claim and found
that he did not allege a hostile work environment rising to the level of a personnel
action. ID at 8.
¶9 The parties do not challenge the administrative judge’s finding that the
Board cannot review the suspension of the appellant’s security clearance, his
indefinite suspension, and his placement on administrative leave. ID at 5-8; IAF,
Tab 49 at 11-37. We discern no basis to disturb those findings. See Crosby v.
U.S. Postal Service, 74 M.S.P.R. 98, 106 (1997) (finding no reason to disturb the
administrative judge’s findings when she considered the evidence as a whole,
drew appropriate inferences, and made reasoned conclusions on issues of
credibility); Broughton v. Department of Health and Human Services,
33 M.S.P.R. 357, 359 (1987) (same).
5
The appellant submitted a substantial amount of evidence to the record below. IAF,
Tabs 6-48. Therein, he also alleged that he was not selected for positions and several
supervisors threatened to remove him as the Contracting Officer Representative and
from his position. IAF, Tab 6 at 69-71, Tab 43 at 6-7. A nonselection, threatened
removal, and significant change in duties are personnel actions. 5 U.S.C. § 2302(a)(2)
(A)(i), (ix), (xii). He also alleged that he made additional disclosures to management.
See, e.g., IAF, Tab 29 at 5, 11-12. However, other than his OSC complaint and
correspondence with the agency, IAF, Tab 6 at 48-52, Tab 7 at 4-16, there is no
indication that he submitted these documents to OSC or otherwise raised these
allegations with OSC. See Mason, 116 M.S.P.R. 135, ¶ 8; Schmittling v. Department of
the Army, 92 M.S.P.R. 572, ¶ 26 (2002) (stating that, in general, an appellant has not
exhausted his remedy with OSC when he did not raise before OSC the personnel action
he is appealing to the Board). Accordingly, the appellant has not proven that he
exhausted those additional claims, and we do not consider them.
6
¶10 As to the appellant’s hostile work environment allegations, the
administrative judge did not identify any incidents underlying this claim. ID
at 7-8. We do so here, focusing on those occurring after his earliest alleged
disclosures on December 11, 2015. ID at 5-8. In summary, the appellant asserted
that his former first-level supervisor criticized his performance, “blamed” him for
the problems in his department, “scolded” him about his work on several
contracts, accused him of lying in his December 2015 memorandum to
management, advertised vacancies with duties similar to his, and failed to change
his position series to one consistent with his actual duties; that his current
first-level supervisor undermined his supervisory authority and, on March 6,
2019, sent him “threatening communications,” entered his office in an
“aggressive” and “threatening manner” and “threw an object” at him while he was
at his desk; and that his second-level supervisor criticized his performance and
relied on hostility and favoritism to manage the department. IAF, Tab 6 at 15-17,
18-24, 54, 69-71, 92-94, Tab 9 at 4-20, Tab 43 at 6-7, Tab 44 at 58-61. These
incidents do not appear to be intertwined with the agency’s security clearance
determination. Thus, to the extent that the administrative judge found that the
Board was precluded from reviewing these claims as an alleged personnel action,
we disagree.
¶11 As to her finding that the appellant did not nonfrivolously allege a hostile
work environment rising to the level of a personnel action, the administrative
judge did not set forth the standard she applied for analyzing this claim or the
reasoning behind her finding. Although we agree with the outcome, we modify
the initial decision to include this necessary analysis.
¶12 The Board has found that the creation of a hostile work environment may
constitute a personnel action under 5 U.S.C. § 2302(a)(2)(A)(xii) to the extent
that it represents a significant change in duties, responsibilities, or working
conditions. Skarada v. Department of Veterans Affairs, 2022 MSPB 17, ¶ 16. To
meet this standard, an agency’s actions must, individually or collectively, have
7
practical and significant effects on the overall nature and quality of an
employee’s working conditions, duties, or responsibilities. Id. In determining
whether a hostile work environment is present, the Board will consider the
totality of the circumstances, including agency actions that may not individually
rise to the level of a personnel action. Id., ¶ 18.
¶13 Upon review of the record, we find that the appellant failed to make
nonfrivolous allegations that, individually or collectively, amounted to a
significant change in his working conditions. See 5 U.S.C. § 2302(a)(2)(A)(xii);
see also Skarada, 2022 MSPB 17, ¶¶ 15-16. Even if true, the criticisms the
appellant received were work-related and do not appear significant enough to
meet this standard. See Brown v. U.S. Postal Service, 115 M.S.P.R. 609, ¶ 15
(2011) (explaining that an employee is not guaranteed a working environment
free of stress); cf. Skarada, 2022 MSPB 17, ¶ 18 (finding that the appellant
nonfrivolously alleged a significant change in working conditions when he
alleged, among other things, that his supervisors falsely accused him of violating
Federal law, subjected him to multiple investigations, yelled at him on several
occasions, and denied him the guidance and support necessary to successfully
perform his duties). The incidents described also do not appear to be of the
severity, either individually or collectively, that the Board has found to constitute
a hostile work environment. See Covarrubias v. Social Security Administration,
113 M.S.P.R. 583, ¶¶ 8, 15 n.4 (2010) (finding that the appellant nonfrivolously
alleged a significant change in working conditions when she alleged that her
supervisors harassed her about personal telephone calls, closely monitored her
whereabouts, followed her to the bathroom, and denied her an accommodation for
her spina bifida, which required her to self-catheterize), overruled on other
grounds by Colbert v. Department of Veterans Affairs, 121 M.S.P.R. 677, ¶ 12,
n.5 (2014). His other allegations of threats and hostility from his supervisors are
too vague to determine what practical effect their actions had on the appellant’s
working conditions. See, e.g., Zimmerman v. Department of Housing and Urban
8
Development, 61 M.S.P.R. 75, 79-80 (1994) (finding that allegations of
“continuing reprisal” and “threats” were too vague to constitute personnel
actions).
¶14 Accordingly, we agree with the administrative judge that the appellant did
not nonfrivolously allege that he experienced at least one personnel action. We
therefore agree with her decision not to consider the remaining elements of the
appellant’s reprisal claim and affirm the initial decision as modified.
NOTICE OF APPEAL RIGHTS 6
The initial decision, as supplemented by this Final Order, constitutes the
Boards final decision in this matter. 5 C.F.R. § 1201.113. You may obtain review
of this final decision. 5 U.S.C. § 7703(a)(1). By statute, the nature of your
claims determines the time limit for seeking such review and the appropriate
forum with which to file. 5 U.S.C. § 7703(b). Although we offer the following
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.
6
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.
9
(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.
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
10
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
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:
11
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. 7 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
7
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
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.
12
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.
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: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.