Michael McFarland v. Department of Veterans Affairs ( 2024 )

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
MICHAEL J. MCFARLAND, DOCKET NUMBER
Appellant, CH-1221-19-0172-W-1
v.
DEPARTMENT OF VETERANS DATE: March 14, 2024
AFFAIRS,
Agency.
THIS ORDER IS NONPRECEDENTIAL 1
Michael J. McFarland , Elyria, Ohio, pro se.
Amber Groghan , Esquire, and Nick Pasquarella , Esquire, Akron, Ohio, 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 due
to his failure to exhaust administrative remedies. For the reasons discussed
below, we GRANT the appellant’s petition for review, VACATE the initial
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
decision, and REMAND the case to the Central Regional Office for further
adjudication in accordance with this Remand Order.
BACKGROUND
On February 25, 2015, the agency proposed to remove the appellant from
his Advanced Medical Support Assistant position based on a charge of
inappropriate access of patient medical records. Initial Appeal File (IAF), Tab 15
at 68-70. After the agency indicated that it sustained the reasons set forth in the
notice of proposed removal, the appellant signed a last chance agreement on or
about May 28, 2015, providing that the agency would hold its removal decision in
abeyance for 1 year from the date the agreement was signed, so long as, among
other things, the appellant demonstrated acceptable conduct and performance. Id.
at 66-67. In exchange, the appellant “agree[d] to waive all administrative and/or
negotiated grievance and appeal rights, including but not limited to the [agency]
grievance procedures, negotiated grievance procedures, Merit Systems Protection
Board, and the [equal employment opportunity (EEO)] complaint process.” Id.
at 66. In early 2016, the agency determined that the appellant violated the last
change agreement, and on April 1, 2016, it effected his removal. IAF, Tab 1 at 8,
Tab 15 at 30-32. The appellant filed an EEO complaint after he was removed,
and the parties entered into a settlement agreement on July 1, 2016. IAF, Tab 18
at 48.
On June 28, 2018, the appellant filed a complaint with the Office of Special
Counsel (OSC). Petition for Review (PFR) File, Tab 7 at 20-30. He alleged that
his removal and other personnel actions were taken in retaliation for
whistleblowing disclosures that he made in October 2014. Id. at 23-28. His
whistleblowing disclosures concerned a Physician Assistant, also known as a
Provider, who allegedly (1) improperly revealed to him confidential medical
information about a patient and was biased against the patient, and (2) abused her
authority by making a biased decision to indicate that the patient should be denied
3
the benefits he sought. Id. at 23-24. OSC closed its investigation into the
appellant’s complaint. IAF, Tab 1 at 7. This IRA appeal followed. IAF, Tab 1.
The appellant did not request a hearing. Id. at 5.
The administrative judge issued an order on jurisdiction and proof
requirements, informing the parties of their respective burdens in an IRA appeal,
and ordering the appellant to file evidence and argument establishing the Board’s
jurisdiction over his appeal. IAF, Tab 3. The administrative judge initially found
that the appellant “arguably” established jurisdiction. IAF, Tab 12 at 1.
However, in her initial decision based on the written record, the administrative
judge found that the appellant failed to establish that he exhausted his
administrative remedies. IAF, Tab 19, Initial Decision (ID). She therefore
dismissed the IRA appeal for lack of jurisdiction. ID.On petition for review, for the first time, the appellant submits a copy of
his OSC complaint, along with some of his correspondence with OSC. PFR File,
Tab 1 at 6-9. The agency has filed a response opposing the petition, and the
appellant has filed a reply to the response. PFR File, Tabs 4-5.
The Office of the Clerk of the Board issued an order for the appellant to
resubmit his OSC complaint because it was illegible in the hard-copy file and the
electronic version appeared to be incomplete, and it provided the agency an
opportunity to reply to the appellant’s response. PFR File, Tab 6. In his
response, the appellant resubmitted a complete and legible copy of his OSC
complaint, along with numerous other documents. PFR File, Tabs 7-8. The
agency responded by requesting that all of the appellant’s submitted documents,
except for the OSC complaint, be stricken from the record. PFR File, Tab 9. The
appellant subsequently explained that he submitted other documents that were
also previously erroneously uploaded or incomplete. PFR File, Tab 10. The
4
agency filed a motion requesting that the Board strike the appellant’s response. 2
PFR File, Tab 11.
DISCUSSION OF ARGUMENTS ON REVIEW
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. § 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). 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). Once an appellant establishes jurisdiction over his IRA appeal, he is
entitled to a hearing on the merits of his claim, which he must prove by
preponderant evidence. Salerno, 123 M.S.P.R. 230, ¶ 5. If the appellant proves
by preponderant evidence that his protected disclosure or activity was a
contributing factor in a personnel action taken against him, the agency is given an
opportunity to prove, by clear and convincing evidence, that it would have taken
the same personnel action in the absence of the protected disclosure or activity.
Id.; see 5 U.S.C. § 1221(e)(1)-(2).
The appellant exhausted his administrative remedies regarding his assertion that
the agency retaliated against him for making whistleblowing disclosures.
To satisfy the exhaustion requirement of 5 U.S.C. § 1214(a)(3), 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. The purpose of this exhaustion requirement is to give OSC
2
Although the appellant did not obtain leave from the Office of the Clerk of the Board
before filing his response, PFR File, Tab 10; see 5 C.F.R. § 1201.114(a)(5), for the
reasons discussed in this Remand Order, we nevertheless accept the pleading into the
record. We also deny the agency’s motion to strike.
5
“the opportunity to take corrective action before involving the Board in the case.”
Ward v. Merit Systems Protection Board, 981 F.2d 521, 526 (Fed. Cir. 1992).
In his OSC complaint, the appellant stated that, in October 2014, a patient
and a Provider had a dispute about the patient’s medical claim. 3 PFR File, Tab 7
at 23-24. The Provider allegedly told the appellant that the patient was a “jerk
with mental issues, that he was trying to screw the government over by claiming a
fertility issue, [and] that he had [a sexually transmitted disease].” Id. at 24. The
appellant then told his supervisor and the chief of his department about this
dispute, he stated that he believed the Provider was biased and violated
confidentiality provisions, and he asked that the patient be reexamined by
someone else. Id. This conversation appears to be his first disclosure.
After the Provider learned that the patient had complained about her, she
amended her notes about the patient’s medical claim and told “the decision
makers to not overturn her decision.” Id. Approximately 1 week after his first
disclosure, the appellant told the patient and his chief’s supervisor about both the
Provider’s prior statement and her amendment to her notes, which he believed
was an abuse of power. Id. We construe his statements to the patient and his
chief’s supervisor as his second disclosure.
The appellant further informed OSC that, in the aftermath of his
disclosures, he was (i) subjected to an investigation, (ii) placed on a detail with
different duties, (iii) forced to sign a last chance agreement in lieu of removal,
(iv) demoted, (v) reassigned to a different city, and (vi) removed. Id. at 24-26.
He also noted that, following his removal, the parties signed a settlement
agreement to resolve his EEO complaint, and the agency breached the agreement
by failing to change his Standard Form 50 to reflect that he had resigned, id.
at 26. This allegation of agency breach appears to be an additional allegation of a
personnel action. Based on the foregoing, we find that the appellant has
3
Although the appellant has filed this evidence for the first time on petition for review,
we find it appropriate to consider it under the circumstances. See 5 C.F.R.
§ 1201.115(e).
6
exhausted his administrative remedies with OSC regarding his two disclosures
and these various actions.
The record is insufficiently developed for us to determine the effect, if any, of the
parties’ last chance agreement and the EEO settlement agreement on the
appellant’s ability to pursue this IRA appeal.
In its correspondence with the appellant, OSC indicated that it lacked the
authority to review his claims because he had waived his appeal rights, to include
an OSC complaint, when he signed the last chance agreement, and he had waived
all future complaint and appeal rights based on actions that occurred prior to
June 6, 2016, in his EEO settlement agreement. PFR File, Tab 1 at 7. The
parties’ last chance agreement is in the record, IAF, Tab 15 at 66-67, but the EEO
settlement agreement is not.
Additionally, on April 6, 2018, the agency’s Office of Resolution
Management (ORM) found that the agency breached the EEO settlement
agreement. IAF, Tab 18 at 48-53. The appellant was advised by ORM that he
could elect to have his EEO complaint reinstated, but that if he did so, the parties
would be returned to the status quo ante, i.e., the conditions that were present
prior to the settlement agreement. Id. at 50-51. We cannot determine, based on
the current record, whether the appellant elected to reinstate his EEO complaint,
or what, if anything, may have occurred after ORM’s finding of agency breach.
Additionally, as noted above, the EEO settlement agreement is not in the record.
Moreover, it does not appear that the parties were directed to brief potentially
dispositive issues, below, such as the scope and enforceability of the appeal rights
waiver contained in the last chance and EEO settlement agreements.
Accordingly, we remand the appeal for the parties to submit the EEO settlement
agreement and provide evidence and argument regarding these issues. 4 See, e.g.,
4
If, on remand, the administrative judge determines that the IRA appeal should proceed
in whole or in part, she should evaluate whether the appellant has met his burden to
make a nonfrivolous allegation that he made a whistleblowing disclosure or engaged in
protected activity that was a contributing factor in the agency’s decision to take a
personnel action against him. In determining whether the appellant met this burden, the
7
Branch v. Department of the Army, 110 M.S.P.R. 663, ¶ 10 (2009) (noting that
the Board does not have jurisdiction over an action taken pursuant to a last
chance agreement in which an appellant waives his right to appeal to the Board
and outlining when a waiver of appeal rights may be unenforceable).
ORDER
For the reasons discussed above, we remand this appeal to the Central
Regional Office for further adjudication in accordance with this Remand Order.
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.
administrative judge should consider the Board’s decisions in Spivey v. Department of
Justice, 2022 MSPB 24, ¶¶ 10-15, and Skarada v. Department of Veterans Affairs,
2022 MSPB 17, ¶ 18, holding that a nonfrivolous allegation of an investigation and
claim of a hostile work environment, respectively, are personnel actions.