Rikkianisha Hunt-Hawe v. Department of Veterans Affairs ( 2024 )

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
RIKKIANISHA SANDRIKARENE DOCKET NUMBER
HUNT-HAWES, AT-1221-19-0013-W-1
Appellant,
v.
DATE: February 23, 2024
DEPARTMENT OF VETERANS
AFFAIRS,
Agency.
THIS ORDER IS NONPRECEDENTIAL 1
Christopher Hugh Bonk , Esquire, and Kevin L. Owen , Esquire, Silver
Spring, Maryland, for the appellant.
W. Robert Boulware , Esquire, Montgomery, Alabama, for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
REMAND ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
dismissed her individual right of action (IRA) appeal for lack of jurisdiction. For
the reasons discussed below, we GRANT the appellant’s petition for review,
1
A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
2
VACATE the initial decision, and REMAND the case to the regional office for
further adjudication in accordance with this Remand Order.
DISCUSSION OF ARGUMENTS ON REVIEW
The appellant’s petition for review is timely filed.
¶2 A petition for review generally must be filed within 35 days after the date of
the issuance of the initial decision or, if the party filing the petition shows that
the initial decision was received more than 5 days after it was issued, within
30 days after the party received the initial decision. 5 C.F.R. § 1201.114(e). The
initial decision was issued on December 7, 2018, and it was sent via postal
delivery to the address listed in the appellant’s initial appeal. Initial Appeal File
(IAF), Tab 1 at 2, Tab 7, Initial Decision (ID) at 1, Tab 8 at 1. After filing the
initial appeal, however, the appellant moved to a different address. Petition for
Review (PFR) File, Tab 1 at 4-5. Although the appellant had elected to e-file, she
did not receive electronic service of the initial decision. IAF, Tab 1 at 2, Tab 8 at
1. The appellant attests that she received the initial decision on January 22, 2019,
when it was forwarded to her new address. PFR File, Tab 1 at 16, Tab 3 at 2-4.
Because the initial decision was received more than 5 days after it was issued, the
30-day requirement in 5 C.F.R. § 1201.114(e) applies. Her February 22, 2019
petition for review was filed within 30 days of receipt of the initial decision, in
compliance with section 1201.114(e).
¶3 We have considered whether the appellant should be deemed to have
constructively received the initial decision at an earlier date because she did not
inform the Board of her address change. See 5 C.F.R. § 1201.26(a)(2) (stating
that parties are obligated to notify the Board of address changes). The Board’s
regulation at 5 C.F.R. § 1201.22(b)(3) explains that correspondence properly
addressed and sent to the appellant’s address via postal delivery is presumed to
have been duly delivered to the addressee. See Little v. U.S. Postal Service,
124 M.S.P.R. 183, ¶¶ 7-8 (2017); see also 5 C.F.R. § 1201.114(e)(3) (explaining
3
that the date the appellant receives the initial decision is determined according to
section 1201.22(b)(3)). The presumption of constructive receipt may be
overcome under the circumstances of a particular case. See 5 U.S.C.
§ 1201.22(b)(3). Under the circumstances of this case, we find that application of
the constructive receipt doctrine is inappropriate. The appellant registered as an
e-filer, IAF, Tab 1 at 2, and the Board’s regulations at the time provided that,
“[w]hen MSPB documents are issued, e-mail messages will be sent to e-filers that
notify them of the issuance and that contain links to the Repository where the
documents can be viewed and downloaded,” 5 C.F.R. § 1201.14(j)(1) (2019).
The regulation further stated that “[p]aper copies of these documents will not
ordinarily be served on e-filers.” Id. Thus, the appellant may justifiably have
presumed that she would be receiving the documents electronically, as she had
requested, and a reasonable person may not have viewed updating her mailing
address as a priority. Accordingly, we find that constructive receipt should not
apply and the appellant’s petition for review is timely. See Buniff v. Department
of Agriculture, 79 M.S.P.R. 118, ¶ 5 (1998) (calculating the deadline for a
petition for review from the date the appellant received the initial decision when
the regional office sent the initial decision to an old address rather than the
appellant’s updated address of record); see also Blatt v. Department of the Army,
121 M.S.P.R. 473, ¶ 5 (2014) (finding that an appellant established good cause
for an untimely petition for review when the Board served the initial decision to
an outdated email account despite the fact that the administrative judge had
previously granted the appellant’s motion to convert to service by regular mail).
The Board has jurisdiction over the appellant’s IRA appeal, and we remand for a
hearing on the merits.
¶4 Having found that the appellant’s petition for review is timely, we now turn
to the administrative judge’s finding that the appellant failed to establish
jurisdiction over her IRA appeal. ID at 2-5. The Board has jurisdiction over an
IRA appeal if the appellant exhausts her administrative remedies before the
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Office of Special Counsel (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 as specified in 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 5 U.S.C.
§ 2302(a)(2)(A). McCray v. Department of the Army, 2023 MSPB 10, ¶ 11. Once
an appellant has established jurisdiction over her appeal, she is entitled to a
hearing on the merits, in which she will have the opportunity to prove her claim
by preponderant evidence. Salerno v. Department of the Interior, 123 M.S.P.R.
230, ¶ 5 (2016).
¶5 A nonfrivolous allegation of a protected 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). Salerno, 123 M.S.P.R. 230, ¶ 6.
To satisfy the contributing factor criterion at the jurisdictional stage, an appellant
need only raise a nonfrivolous allegation that the fact of, or content of, the
protected disclosure or activity was one factor that tended to affect the personnel
action in any way. Id., ¶ 13. Under the knowledge/timing test, an appellant may
nonfrivolously allege that the disclosure or activity was a contributing factor
through circumstantial evidence, such as evidence that the official who took the
personnel action knew of the disclosure or activity and that the personnel action
occurred within a period of time such that a reasonable person could conclude
that the disclosure or activity was a contributing factor in the personnel action.
See 5 U.S.C. § 1221(e)(1); Salerno, 123 M.S.P.R. 230, ¶ 13. In addition to the
knowledge/timing test, there are other possible ways for an appellant to satisfy
the contributing factor criterion. See Dorney v. Department of the Army,
117 M.S.P.R. 480, ¶¶ 14-15 (2012) (explaining that other evidence relevant to the
contributing factor criterion includes the strength or weakness of the agency’s
reasons for taking the personnel action, whether the whistleblowing was
5
personally directed at the proposing or deciding officials, and whether those
officials had a desire or motive to retaliate).
¶6 In the initial decision, the administrative judge found that the appellant
exhausted her administrative remedies before OSC. ID at 2. She found that the
appellant failed to make a nonfrivolous allegation that she made a protected
disclosure under 5 U.S.C. § 2302(b)(8). ID at 2-5. She did not discuss whether
the appellant nonfrivolous alleged that she engaged in protected activity under
section 2302(b)(9). Id. Because she found that the appellant failed to
nonfrivolously allege that she made a protected disclosure, she did not reach
contributing factor.
¶7 We agree with the administrative judge’s finding that the appellant
exhausted her remedies before OSC, ID at 2, and the parties have not challenged
this finding on review. As set forth below, we disagree with the administrative
judge’s remaining findings.
The appellant nonfrivolously alleged that she made protected disclosures and
engaged in protected activity under 5 U.S.C. § 2302(b)(8), (9).
¶8 Before the administrative judge, the appellant submitted a copy of her OSC
complaint and correspondence with OSC. IAF, Tab 2. On review, she has
clarified the alleged whistleblowing raised before OSC as follows: (1) on an
unspecified date, she reported to the Office of Inspector General (OIG), via
hotline and during an in-person visit, that an agency employee sexually abused a
patient; (2) on or around November 5, 2017, she reported to an agency employee
that the agency’s infection control procedures were deficient, including her
observations of unsanitary conditions, hospital-acquired patient infection and
death, the sale of expired food and medications to patients, and roach
infestations; (3) in or around November 2017, she reported to “disruptive
behavior, bullying, intimidation, and allegations of a hostile work environment”
to “a variety of [a]gency personnel”; (4) on an unspecified date, the appellant
reported to the OIG and OSC, among others, that a supervisor sexually harassed
6
her; (5) in or around January 2018, she reported to agency privacy officers that
agency staff improperly accessed her medical records; and (6) on or around
August 2018, the appellant reported to the OIG criminal activity by agency
employees, including stolen equipment and use of Government resources for
personal gain. PFR File, Tab 1 at 6-10 (citing IAF, Tab 2 at 12-34).
¶9 We find that allegations 1, 4, and 6, 2 concerning reports made to the OIG
and OSC, constitute nonfrivolous allegations of protected activity under 5 U.S.C.
§ 2302(b)(9)(C). 3 IAF, Tab 2 at 16, 28-29; PFR File, Tab 1 at 7-8; see Fisher v.
Department of the Interior, 2023 MSPB 11, ¶ 8 (finding that, under the broadly
worded provision of 5 U.S.C. § 2302(b)(9)(C), any disclosure of information to
the OIG or OSC is protected, regardless of its content, as long as such disclosure
is made in accordance with applicable provisions of law).
¶10 As to allegation 2, we find that the appellant has nonfrivolously alleged that
she made a protected disclosure under 5 U.S.C. § 2302(b)(8)(A)(ii) when she
reported to an agency employee that the infection control procedures at the
medical center were deficient, including her observations of unsanitary
conditions, hospital-acquired patient infection and death, the sale of expired food
and medications to patients, and roach infestations. IAF, Tab 2 at 18, 23-24, 55;
PFR File, Tab 1 at 7. The appellant has alleged that some of her concerns were
2
Concerning allegations 1 and 4, the appellant has not identified the date that she made
her purported disclosures to the OIG and OSC. IAF, Tab 2 at 16-17; PFR File, Tab 1
at 7. She appears to allege that she made disclosures to the OIG from November 2017
through 2018. IAF, Tab 2 at 16, 59. Effective December 12, 2017, 5 U.S.C. § 2302(b)
(9)(C) was amended pursuant to the National Defense Authorization Act for Fiscal Year
2018, Pub. L. No. 115-91, 131 Stat. 1283 (2017), to expand whistleblower protection
for disclosures made to “any [ ] component responsible for internal investigation or
review.” The amendment does not affect our analysis because the appellant has alleged
that she made disclosures to the OIG and OSC, which would be protected under either
version of the law, regardless of the date of the disclosures.
3
On review, the appellant argues that allegation 4 is protected under 5 U.S.C. § 2302(b)
(8). PFR File, Tab 1 at 10-11. We disagree. See Edwards v. Department of Labor,
2022 MSPB 9, ¶¶ 10-20 (concluding that disclosures about discrimination prohibited by
Title VII are excluded from protection under 5 U.S.C. § 2302(b)(8)), aff’d, No. 22-1967
(Fed. Cir. July 7, 2023).
7
substantiated in a June 2018 OIG report and that an agency study concluded that a
veteran admitted to the facility where the appellant worked had a 40% increased
chance of dying as compared to another Veterans Affairs medical center. IAF,
Tab 2 at 18. A disinterested observer with knowledge of the essential facts
known to and readily ascertainable by the appellant, in her role as Infection
Control Nurse, could find that such conditions in a hospital setting constitutes a
substantial and specific danger to public health or safety. See Miller v.
Department of Homeland Security, 111 M.S.P.R. 312, ¶¶ 5-6 (2009) (holding that
a disclosure regarding danger to the public must be both substantial and specific
to be protected and, normally, disclosure of an imminent event is protected).
¶11 As to allegation 3, the appellant alleges that she reported disruptive
behavior and “bullying, intimidation, hostile work environment, and
whistleblower retaliation” to various agency personnel. IAF, Tab 2 at 53-54. The
appellant has not provided any further context to this allegation either before the
administrative judge or on review. Id.; PFR File, Tab 1 at 9. We find that this
vague and nonspecific allegation is insufficient to constitute a nonfrivolous
allegation of a protected disclosure. See Gabel v. Department of Veterans Affairs,
2023 MSPB 4, ¶¶ 6-7 (explaining that disclosures must be specific and detailed,
not vague allegations of wrongdoing).
¶12 Turning to allegation 5, the appellant alleges that she disclosed to
agency privacy officers that agency staff mishandled her medical records.
IAF, Tab 2 at 27; PFR File, Tab 1 at 8. Specifically, she alleges that she “noticed
that staff had accessed my medical records when they had no involvement in my
care” and the “access did not coincide with appointments [ ] or care visits.”
IAF, Tab 2 at 27. Federal laws such as the Health Insurance Portability and
Accountability Act ensure that patient health information is properly protected by
medical facilities. There is no evidence that the appellant is an expert in the
nuances of privacy law. We find that, under these circumstances and given the
information ascertainable by the appellant, a reasonable person could believe that
8
agency staff violated a law, rule, or regulation by improperly accessing medical
records. We therefore find that she has nonfrivolously alleged that she made a
protected disclosure pursuant to 5 U.S.C. § 2302(b)(8)(A)(i).
The appellant has nonfrivolously alleged that her protected disclosures or activity
were contributing factors in the alleged personnel actions.
¶13 The appellant alleges that, because of her protected whistleblowing, the
agency subjected her to a disciplinary written counseling, denial of a promotion
and training, an involuntary transfer, and termination during her probationary
period. IAF, Tab 2 at 15-45; PFR File, Tab 1 at 12. We find that she had made a
nonfrivolous allegation that she was subjected to personnel actions covered by
5 U.S.C. § 2302(a)(2)(A). See Skarada v. Department of Veterans Affairs,
2022 MSPB 17, ¶ 14; see also Campo v. Department of the Army, 93 M.S.P.R. 1,
¶¶ 7-8 (2002) (holding that a counseling memorandum can constitute a personnel
action if it warns of future discipline).
¶14 As to contributing factor, the appellant asserts that she meets the
knowledge/timing test. PFR File, Tab 1 at 12-13. She has asserted that the
Medical Director, D.D., and agency employee, M.H., were aware of her protected
disclosures and OIG activity pursuant to their roles in responding to the
appellant’s OIG complaints. IAF, Tab 2 at 16-17. She has alleged that D.D. and
M.H. were involved in the written counseling, denial of promotion and training,
and involuntary transfer. Id. at 20-21. The record evidence reflects that the
Medical Director, D.D., was involved in the decision to terminate the appellant’s
employment. Id. at 71-72. As to the timing prong, it appears that the appellant
began engaging in protected whistleblowing in or around November 2017 and was
subjected to various alleged personnel actions thereafter, culminating in her
September 2018 removal. Id. at 64, 71-72. The Board has found that personnel
actions taken within approximately 1 to 2 years of the appellant’s disclosures
satisfy the knowledge/timing test. See Mastrullo v. Department of Labor,
123 M.S.P.R. 110, ¶ 21 (2015). We therefore find that the appellant has
9
nonfrivolously alleged under the knowledge/timing test that her protected
whistleblowing was a contributing factor to the personnel actions and that she has
established jurisdiction over her IRA appeal.
ORDER
¶15 For the reasons discussed above, we remand this case to the regional office
for further adjudication in accordance with this Remand Order. On remand, the
administrative judge shall adjudicate this appeal on the merits, including holding
the hearing requested by the appellant. She shall address the appellant’s claim
that her whistleblowing allegations numbered 1, 2, 4, 5, and 6, above, were a
contributing factor in the various personnel actions listed herein.
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.