Jeffrey Luce v. Department of the Air Force ( 2024 )

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
JEFFREY R. LUCE, DOCKET NUMBER
Appellant, AT-1221-21-0594-W-1
v.
DEPARTMENT OF THE AIR FORCE, DATE: March 11, 2024
Agency.
THIS ORDER IS NONPRECEDENTIAL 1
Jeffrey R. Luce , Milton, Florida, pro se.
Holly Buchanan , Eglin Air Force Base, Florida, for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
REMAND ORDER
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. For
the reasons discussed below, we GRANT the appellant’s petition for review,
VACATE the initial decision, and REMAND the case to the Atlanta Regional
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
On June 24, 2019, the appellant received a term appointment not to exceed
June 24, 2024, to the position of GS-12 Airplane Pilot (Simulator Instructor).
Initial Appeal File (IAF), Tab 7 at 12. On January 5, 2020, the appellant’s
appointment was converted to a career-conditional appointment in the competitive
service, subject to a 2-year probationary period. 2 Id. at 15. The agency
terminated the appellant during his probationary period for unsatisfactory
conduct, effective February 17, 2021. Id. at 41-43; IAF, Tab 8 at 16. On April 8,
2021, the appellant filed a complaint with the Office of Special Counsel (OSC)
alleging that he was terminated during his probationary period and subjected to a
hostile work environment in retaliation for his April 6, 2020 disclosure of a
coworker’s inappropriate workplace behavior on that date, and communicating
grievances to his supervisor on May 27, 2020. IAF, Tab 9 at 36-54, 68-72. By
letter dated June 22, 2021, OSC informed the appellant that it had made a final
determination to close his file and that he had a right to file an IRA appeal with
the Board. Id. at 56-57.
On August 10, 2021, the appellant filed a Board appeal asserting, among
other things, that he disclosed and made complaints that his former supervisor
violated the law, engaged in gross mismanagement and an abuse of authority, and
wasted funds. IAF, Tab 1 at 5. The administrative judge provided the appellant
notice of his burdens and elements of proof for an IRA appeal and afforded him
the opportunity to submit evidence and argument establishing jurisdiction. IAF,
Tab 3. The appellant responded that he had made a protected disclosure to his
supervisor on April 6, 2020, regarding his coworker’s inappropriate outburst
while the appellant was instructing a class that day, and he had a meeting with his
2
On December 27, 2021, President Biden signed into law the National Defense
Authorization Act for Fiscal Year 2022, Pub. L. No. 117-81, 135 Stat. 1541. The
statute repealed the 2-year probationary period for Department of Defense appointments
made on or after December 31, 2022. Pub. L. No. 117-81, § 1106, 135 Stat. 1541,
1950. That statutory change has no effect on this case.
3
supervisor on May 27, 2020, to discuss multiple complaints about his work
situation, including his supervisor’s failure to act on his April 6, 2020 disclosure.
IAF, Tab 4 at 4-6, Tab 8 at 22-31.
Without holding the appellant’s requested hearing, the administrative judge
dismissed his IRA appeal for lack of jurisdiction. IAF, Tab 12, Initial Decision
(ID) at 1, 15. The administrative judge found that the appellant exhausted his
remedies before OSC concerning his April 6, 2020 and May 27, 2020 disclosures,
his termination, and a hostile work environment. ID at 7-11. The administrative
judge then found that the appellant failed to show that he made a nonfrivolous
allegation that he made a protected disclosure. ID at 11-15. She explained that a
disinterested observer would not reasonably conclude that the appellant’s
disclosures evidenced one or more of the categories of wrongdoing listed in
5 U.S.C. § 2302(b)(8). Id.The appellant has filed a petition for review of the initial decision. 3
Petition for Review (PFR) File, Tab 1. In his petition, he identifies for the first
time specific agency policies that were purportedly violated and reiterates many
of his arguments from below. Id. at 4-13. The agency has filed a response. PFR
File, Tab 3.
ANALYSIS
To establish jurisdiction in a typical IRA appeal, an appellant must show
by preponderant evidence that he exhausted his remedies before OSC and make
nonfrivolous allegations of the following: (1) he made a disclosure described
3
With his petition for review, the appellant provides excerpts from an agency
investigation, Department of Defense guidance on the use of cloth face masks, his
termination notice and evidence apparently pertaining to the merits of his termination
(which mainly consist of emails). PFR File, Tab 1 at 15-146. Most of these documents
were already in the record before the administrative judge. IAF, Tab 4. To the extent
that the appellant has submitted new evidence, because we are remanding this matter,
the appellant may file relevant evidence on remand consistent with the Board’s
regulations and the administrative judge’s instructions.
4
under 5 U.S.C. § 2302(b)(8) or engaged in a 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 5 U.S.C. § 2302(a). Corthell v. Department of
Homeland Security, 123 M.S.P.R. 417, ¶ 8 (2016), overruled on other grounds by
Requena v. Department of Homeland Security, 2022 MSPB 39. The U.S. Court of
Appeals for the Federal Circuit has found that, in the context of an IRA appeal, a
nonfrivolous allegation is an allegation of “sufficient factual matter, accepted as
true, to state a claim that is plausible on its face.” Hessami v. Merit Systems
Protection Board, 979 F.3d 1362, 1364, 1369 (Fed. Cir. 2020); see Skarada v.
Department of Veterans Affairs, 2022 MSPB 17, ¶ 6 (stating that a nonfrivolous
allegation is an assertion that, if proven, could establish the matter at issue).
As noted, the appellant has raised new arguments in his petition for review.
The Board generally will not consider an argument raised for the first time in a
petition for review absent a showing that it is based on new and material evidence
not previously available despite the party’s due diligence. Clay v. Department of
the Army, 123 M.S.P.R. 245, ¶ 6 (2016). However, the Board may consider
evidence submitted for the first time on petition for review if it implicates the
Board’s jurisdiction and warrants an outcome different from that in the initial
decision. Schoenig v. Department of Justice, 120 M.S.P.R. 318, ¶ 7 (2013).
Thus, in assessing whether the appellant has made a nonfrivolous allegation of
jurisdiction over his IRA appeal, we will consider the arguments raised for the
first time in the appellant’s petition for review.
The administrative judge correctly found that the appellant exhausted his
administrative remedies before OSC for two disclosures and two
personnel actions.
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. Skarada, 2022 MSPB 17, ¶ 7. The Board has clarified the substantive
5
requirements of exhaustion. Id.; see Chambers v. Department of Homeland
Security, 2022 MSPB 8, ¶¶ 10-11. The requirements are met when an appellant
has provided OSC with sufficient basis to pursue an investigation. Skarada,
2022 MSPB 17, ¶ 7. The Board’s jurisdiction is limited to those issues that have
been previously raised with OSC. Id. However, nothing precludes an appellant
from providing more detailed information in his Board appeal than he did before
OSC. Id.The administrative judge found that the appellant exhausted his
administrative remedies with OSC with respect to his April 6 and May 27, 2020
disclosures and the personnel actions of his termination and a hostile work
environment. ID at 7-11. The parties do not challenge these findings on review,
and we discern no reason to disturb them. 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).
The appellant has made a nonfrivolous allegation that his April 6, 2020 disclosure
was protected.
A nonfrivolous allegation of a protected whistleblowing disclosure is an
allegation of fact that, if proven, would show that the appellant disclosed a matter
that a reasonable person in his position would believe evidenced one of the
categories of wrongdoing specified in 5 U.S.C. § 2302(b)(8). Skarada,
2022 MSPB 17, ¶ 12. The test to determine whether a putative 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
evidenced a violation of any 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.; see 5 U.S.C. § 2302(b)(8). Any doubt or ambiguity
6
as to whether an appellant raised a nonfrivolous allegation of a reasonable belief
should be resolved in favor of a finding that jurisdiction exists. Mudd v.
Department of Veterans Affairs, 120 M.S.P.R. 365, ¶ 8 (2013).
The gravamen of the first purported protected disclosure raised in the
appellant’s OSC complaint was that on April 6, 2020, he disclosed to his
supervisor that a coworker, who was unmasked and not maintaining social
distancing, confronted him in an unprofessional and disruptive manner about the
appellant not wearing a mask while making a presentation to a group of students
even though the appellant was socially distanced from the students. IAF, Tab 9
at 36-54, 68-72. The appellant also asserted that the agency was not in
compliance with unspecified guidance from the Secretary of Defense. Id.
at 70-71.
In his petition for review, the appellant clarifies that the April 6, 2020
incident violated agency instructions, directives, and guidance regarding bullying,
harassment, and COVID-19 safety protocols. PFR File, Tab 1 at 4-6. He
provides specific legal citations to those documents, including Department of
Defense Instruction (DODI) 1020.03, Air Force Policy Directive (AFPD) 36-27,
and the Secretary of Defense’s April 5, 2020 guidance on the use of cloth face
coverings. Id. Although the appellant did not submit the first two documents
into the record before the Board, they are readily available on the internet, and
accordingly we take official notice of them. 4 5 C.F.R. § 1201.64 (providing that
the Board may take official notice of matters that can be verified); see Graves v.
Department of Veterans Affairs, 123 M.S.P.R. 434, ¶ 19 n. 3 (2016) (finding that
the Board may take official notice of documents that are publicly available on the
internet).
4
DODI 1020.03 may be located on the internet at this address:
https://www.esd.whs.mil/Portals/54/Documents/DD/issuances/dodi/102003p.pdf (last
visited Mar. 11, 2024). The Policy Directive may be located at https://static.e-
publishing.af.mil/production/1/af_a1/publication/afpd36-27/afpd36-27.pdf (last visited
Mar. 11, 2024).
7
DODI 1020.03, Harassment Prevention and Response in the Armed Forces,
provides that the agency does not tolerate harassment and specifies that the
prohibition includes bullying and intimidation. DODI 1020.03, §§ 1.2, 3.1. A
review of the entire instruction indicates that it is applicable to members of the
armed forces and not civilian employees, such as the individual the appellant
complained about on April 6, 2020. Id., § 1.1. However, the fact that the
instruction only applies to members of the armed forces is not detrimental to the
appellant’s claim, as the Board will consider the appellant’s position and
experience when determining whether an appellant held a reasonable belief. See
Scott v. Department of Justice, 69 M.S.P.R. 211, 237-38 (1995), aff’d, 99 F.3d
1160 (Fed. Cir. 1996) (Table) (explaining that the appellant’s position as a
supervisor and experience as a law enforcement officer placed him in a position
to form a belief that documentary evidence had been altered). Thus, the pertinent
issue is the essential facts known to or readily ascertainable by the appellant in
consideration of his experience and position. In this case, the appellant does not
have any known expertise in statutory or regulatory interpretation, nor does he
work in a profession in which he may be expected to have such experience.
Therefore, the intricacies and nuances of the agency’s various instructions may
not have been known or understood by him. Moreover, the instruction he cites
directly references a separate instruction that applies to civilian employees.
DODI 1020.03, § 1.1b. Thus, under the circumstances, we find that the appellant
made a nonfrivolous allegation that he reasonably believed that he disclosed a
violation of an agency instruction.
The appellant also states in his petition for review that AFPD 36-27, ¶ 3.1
states that “[u]nlawful harassment in any context is a violation of Air Force
policy,” and that commanders, managers, and supervisors have a duty to maintain
a workplace free of unlawful discrimination and harassment. PFR File, Tab 1
at 5-6. The appellant also asserts that other provisions of the agency Policy
Directive were violated, such as a provision specifying that unlawful harassment
8
includes creating an intimidating, hostile work environment. Id.; AFPD, ¶ 3.2.1.
That provision, however, states that its application is limited to actions based on
characteristics set forth in another part of the directive, which identifies
characteristics such as race, color, sex, national origin, religion, or sexual
orientation. AFPD 36-27, ¶¶ 1.1, 3.2.1. As the appellant has not asserted that the
action against him was based on any of those characteristics, the provisions are
not applicable in his situation. As noted, however, the appellant is not a lawyer,
nor does he have any known expertise in statutory or regulatory interpretation,
and therefore, the intricacies and nuances of the agency’s various directives may
not have been known or understood by him. Thus, under the circumstances, we
find that the appellant made a nonfrivolous allegation that he reasonably believed
that he disclosed a violation of an agency directive.
Regarding the Secretary of Defense’s April 5, 2020 COVID guidance, that
document provides that agency personnel should wear a mask when they cannot
maintain a 6-foot distance from coworkers. PFR File, Tab 1 at 37. According to
the appellant, he disclosed that his coworker violated this policy when he walked
through the appellant’s assembled class without wearing a mask and without
maintaining proper distancing. Thus, the appellant nonfrivolously alleged a
disclosure of a violation of agency guidance concerning safety protocols intended
to protect against transmission of COVID..
Finally, we conclude that the appellant’s disclosure of alleged violations of
the above instruction, directive, and guidance constituted nonfrivolous allegations
that the agency violated rules, and therefore the disclosure falls within the ambit
of 5 U.S.C. § 2302(b)(8). See Rusin v. Department of the Treasury, 92 M.S.P.R.
298, ¶¶ 15-17 (2002) (finding that a determination of whether something is a
“rule” cannot be based merely on its title and noting that the Whistleblower
Protection Act is a remedial statute that must be broadly construed).
9
The appellant’s May 27, 2020 disclosures during the meeting with his supervisor
were protected under 5 U.S.C. § 2302(b)(8).
Throughout his appeal, the appellant refers to his May 27, 2020 meeting
with his supervisor as his grievance. E.g., IAF, Tabs 4-6, 8-11; PFR File, Tab 1
at 8-13. The exercise of a grievance right granted by any law, rule, or regulation
is protected if certain conditions are met under 5 U.S.C. § 2302(b)(9)(A). As the
administrative judge found, however, there is no evidence that the appellant filed
a grievance pursuant to a collective bargaining agreement or an agency
administrative grievance process. ID at 8 n.7. Instead, the appellant met with his
supervisor to discuss various workplace issues. Such a meeting does not
constitute the exercise of a grievance right granted by any law, rule, or regulation.
The appellant points to nothing on review showing that the administrative judge
erred in this regard.
Furthermore, even if the appellant did exercise a grievance right granted by
any law, rule, or regulation, the appellant failed to present a nonfrivolous
allegation of Board jurisdiction for another reason. Under 5 U.S.C. § 2302(b)(9)
(A), it is a protected activity to exercise “any appeal, complaint, or grievance
right granted by any law, rule, or regulation—(i) with regard to remedying a
violation of [5 U.S.C. § 2302(b)(8)]; or (ii) other than with regard to remedying a
violation of [5 U.S.C. § 2302(b)(8)].” However, of the two provisions, an
employee or applicant for employment may seek corrective action from the Board
only for protected activity under 5 U.S.C. § 2302(b)(9)(A)(i). 5 U.S.C. § 1221(a);
Edwards v. Department of Labor, 2022 MSPB 9, ¶ 24, aff’d, No. 2022-1967, 2023
WL 4398002 (Fed. Cir. July 7, 2023); Mudd v. Department of Veterans Affairs,
120 M.S.P.R. 365, ¶ 7 (2013). As explained above, in his May 27, 2020 meeting
with his supervisor, the appellant complained about various workplace issues,
but, even if the meeting did constitute the exercise of a grievance right, he does
not allege that he was seeking to remedy a violation of 5 U.S.C. § 2302(b)(8).
10
Thus, the May 27, 2020 meeting was not protected as the exercise of a grievance
right. See Edwards, 2022 MSPB 9, ¶ 25.
Nevertheless, the appellant’s statements during that meeting may be
protected under 5 U.S.C. § 2302(b)(8). The appellant alleged that he was the
victim of harassment and/or a hostile work environment and that during the
May 27, 2020 meeting he reiterated the April 6 incident discussed above, and
disclosed various workplace issues, many of which involved what he deemed to
be unfair treatment by his supervisor. IAF, Tab 9 at 44-48, 56, 68-72; PFR File,
Tab 1 at 8-9. Thus, the appellant made an allegation of harassment and/or a
hostile work environment supported by specific examples. Accordingly, we find
that he made a nonfrivolous allegation that he made a protected disclosure during
the May 27, 2020 meeting with his supervisor. See Ayers v. Department of Army,
123 M.S.P.R. 11, ¶ 14 (2015) (holding that allegations of a pattern of harassment
by a supervisor may be a disclosure of an abuse of authority).
The appellant’s probationary termination and the creation of a hostile work
environment are covered personnel actions.
Having found that the appellant made nonfrivolous allegations of protected
disclosures, we now consider whether the appellant similarly alleged personnel
actions covered by the whistleblower protection statutes. As noted, the appellant
raised two personnel actions, a probationary termination and the creation of a
hostile work environment. Regarding his termination, such an action is clearly
covered. Lane v. Department of Homeland Security, 115 M.S.P.R. 342, ¶¶ 2-3,
13 (2010) (finding that an individual who was terminated during his probationary
period was subjected to a covered personnel action); Sirgo v. Department of
Justice, 66 M.S.P.R. 261, 267 (1995) (stating that a probationary termination is a
personnel action).
Regarding a hostile work environment claim, in Skarada, 2022 MSPB 17,
¶ 16, the Board explained that, although the term “hostile work environment” has
a particular meaning in other contexts, in a civil service law context the term
11
means a significant change in duties, responsibilities, or working conditions. The
Board further explained that, although “significant change” 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.In the instant case, the appellant alleged various actions that followed his
spring 2020 protected disclosures, such as denying sick leave requests, assigning
him a disproportionate amount of work, excluding him from work-related
communications, failing to provide training and to assign him a mentor, and
over-scrutinizing his work. IAF, Tab 8 at 20-32, Tab 9 at 36-54. Although none
of these allegations standing alone would definitively constitute a covered
personnel action, we find that the appellant has made a nonfrivolous allegation
that the cumulative effect of these actions constituted a significant change in his
working conditions. Skarada, 2022 MSPB 17, ¶¶ 15-16.
The appellant nonfrivolously alleged that his protected disclosures were a
contributing factor in the personnel actions.
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. Salerno v. Department of the Interior, 123 M.S.P.R.
230, ¶ 13 (2016). 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 who took the personnel action knew of the disclosure
and that the personnel action occurred within a period of time such that a
12
reasonable person could conclude that the disclosure was a contributing factor in
the personnel action. Id.Here, the appellant alleged that he made disclosures directly to his
supervisor regarding purported wrongdoing on April 6 and May 27, 2020, and his
supervisor made the initial determination to terminate him during his
probationary period and was responsible for making his work environment
hostile. IAF, Tab 9 at 44-46, 48-49, 63-66. Thus, the appellant’s allegations
satisfy the knowledge prong of the test. With respect to the timing prong, the
decision on the appellant’s termination occurred in January and February 2021,
less than 1 year after the appellant’s disclosures, and the appellant described that
his work environment was hostile in the months following his May 27, 2020
disclosures. IAF, Tab 4 at 4-6, Tab 8 at 22-31, Tab 9 at 46, 58-66. The Board
has held that a personnel action taken within approximately 1 to 2 years of the
appellant’s disclosure satisfies the timing component of the knowledge/timing
test. Mastrullo v. Department of Labor, 123 M.S.P.R. 110, ¶ 21 (2015).
Accordingly, we find that he has met the timing prong of the knowledge/timing
test with respect to both of his disclosures.
We remand this appeal to the Atlanta Regional Office.
Based on the foregoing, we find that the appellant nonfrivolously alleged
that his April 6 and May 27, 2020 disclosures were a contributing factor in the
agency’s personnel actions and he has established Board jurisdiction over his IRA
appeal. Accordingly, we remand the appeal to the regional office, where the
appellant is entitled to a hearing on the merits, in which he must prove his claims
by preponderant evidence. 5 U.S.C. § 1221(e)(1); Salerno, 123 M.S.P.R. 230,
¶ 5; Lu v. Department of Homeland Security, 122 M.S.P.R. 335, ¶ 7 (2015). If the
appellant meets his burden of proving that his protected disclosure was a
contributing factor in the agency’s personnel actions, the agency shall have the
opportunity to prove, by clear and convincing evidence, that it would have taken
the same personnel actions in the absence of the protected activity. 5 U.S.C.
13
§ 1221(e)(2); Lu, 122 M.S.P.R. 335, ¶ 7; see Carr v. Social Security
Administration, 185 F.3d 1318, 1322-23 (Fed. Cir. 1999).
ORDER
For the reasons discussed above, we grant the appellant’s petition for
review, vacate the initial decision, and remand this case to the Atlanta Regional
Office for further adjudication in accordance with this Remand Order. 5
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.
5
In the remand initial decision, the administrative judge may reincorporate prior
findings as appropriate, consistent with this Remand Order.