Patricia E Giardina v. Department of the Navy ( 2024 )


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  •                         UNITED STATES OF AMERICA
    MERIT SYSTEMS PROTECTION BOARD
    PATRICIA ELLEN GIARDINA,                          DOCKET NUMBER
    Appellant,                          AT-1221-20-0813-W-1
    v.
    DEPARTMENT OF THE NAVY,                           DATE: August 2, 2024
    Agency.
    THIS FINAL ORDER IS NONPRECEDENTIAL 1
    Georgia A. Lawrence , Esquire, and Shaun Southworth , Esquire, Atlanta,
    Georgia, for the appellant.
    David Kendrick , Esquire, Panama City, Florida, for the agency.
    BEFORE
    Cathy A. Harris, Chairman
    Raymond A. Limon, Vice Chairman
    Henry J. Kerner, Member*
    *Member Kerner recused himself and
    did not participate in the adjudication of this appeal.
    FINAL ORDER
    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. On
    petition for review, the appellant argues that the administrative judge erred in
    1
    A nonprecedential order is one that the Board has determined does not add
    significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
    but such orders have no precedential value; the Board and administrative judges are not
    required to follow or distinguish them in any future decisions. In contrast, a
    precedential decision issued as an Opinion and Order has been identified by the Board
    as significantly contributing to the Board’s case law. See 
    5 C.F.R. § 1201.117
    (c).
    2
    finding that she failed to exhaust her administrative remedies before the Office of
    Special Counsel (OSC) or nonfrivolously allege that her disclosures were
    protected. Petition for Review (PFR) File, Tab 1 at 5-6. She also argues that she
    nonfrivolously alleged that her disclosures were a contributing factor in the
    personnel actions taken against her.    
    Id. at 7-8
    . 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 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 failed to nonfrivolously allege that she
    engaged in protected activity under 
    5 U.S.C. § 2302
    (b)(9)(A), we AFFIRM the
    initial decision.
    The Board may consider only those disclosures of information and
    personnel actions that the appellant raised before OSC. Mason v. Department of
    Homeland Security, 
    116 M.S.P.R. 135
    , ¶ 8 (2011).          The administrative judge
    properly found that the appellant failed to exhaust her administrative remedies
    regarding a 2012 equal employment opportunity (EEO) complaint, May 2019
    report to an agency official regarding a hiring selection, and July 2019 email to
    her supervisor objecting to workplace harassment.       Initial Appeal File, Tab 7,
    Initial Decision (ID) at 5-6.    Therefore, we need not address on review the
    appellant’s arguments that these disclosures were protected under 5 U.S.C.
    3
    § 2302(b)(8).   PFR File, Tab 1 at 5-6; see Clarke v. Department of Veterans
    Affairs, 
    121 M.S.P.R. 154
    , ¶ 16 (2014).
    The appellant has not challenged on review, and we see no reason to
    disturb, the administrative judge’s findings that she has not nonfrivolously
    alleged that the contents of her 2014 and 2019 EEO complaints, concerning
    claims of discrimination and reprisal for prior EEO activity, constituted protected
    disclosures of the types of wrongdoing set forth in section 2302(b)(8). ID at 6;
    PFR File, Tab 1 at 4-8.      After the issuance of the initial decision, the Board
    clarified that EEO activity is considered protected activity under 
    5 U.S.C. § 2302
    (b)(9)(A)(i) only when it seeks to remedy whistleblower reprisal under
    
    5 U.S.C. § 2302
    (b)(8).      Edwards v. Department of Labor, 
    2022 MSPB 9
    ,
    ¶¶ 24-25; Mudd v. Department of Veterans Affairs, 
    120 M.S.P.R. 365
    , ¶¶ 6-7
    (2013) (explaining that filing a grievance, which does not itself seek to remedy
    whistleblower reprisal, is not protected activity under the Whistleblower
    Protection Enhancement Act of 2012).          We clarify that the appellant has not
    nonfrivolously alleged that either her 2014 or 2019 EEO complaints concerned
    remedying a violation of 
    5 U.S.C. § 2302
    (b)(8), and, therefore, the Board lacks
    jurisdiction over these allegations as protected activity under section 2302(b)(9)
    (A). See Edwards, 
    2022 MSPB 9
    , ¶¶ 24-25; see also Young v. Merit Systems
    Protection Board, 
    961 F.3d 1323
    , 1329 (Fed. Cir. 2020) (explaining that the
    Board lacks jurisdiction in an IRA appeal over claims of reprisal for EEO activity
    protected under section 2302(b)(9)(A)(ii)).
    NOTICE OF APPEAL RIGHTS 2
    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
    2
    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.
    4
    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.
    (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
    5
    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
    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 .
    6
    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:
    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
    7
    competent jurisdiction. 3   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
    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.
    3
    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.
    8
    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.
    

Document Info

Docket Number: AT-1221-20-0813-W-1

Filed Date: 8/2/2024

Precedential Status: Non-Precedential

Modified Date: 8/5/2024