Jaime Owens v. Department of Veterans Affairs ( 2024 )

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
JAIME OWENS, DOCKET NUMBER
Appellant, CH-1221-19-0309-W-1
v.
DEPARTMENT OF VETERANS DATE: March 14, 2024
AFFAIRS,
Agency.
THIS ORDER IS NONPRECEDENTIAL 1
Peter Reinhardt , Esquire, Menomonie, Wisconsin, for the appellant.
Jason F. Rudie , Minneapolis, Minnesota, 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 for lack of jurisdiction her request for corrective action in this
individual right of action (IRA) appeal. For the reasons discussed below, we
GRANT the appellant’s petition for review, VACATE the initial decision, and
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
REMAND the case to the Central Regional Office for further adjudication in
accordance with this Remand Order.
BACKGROUND
¶2 Effective July 23, 2017, the appellant was hired as a Nurse Practitioner
under the hiring authority of 38 U.S.C. § 7401(1). Initial Appeal File (IAF),
Tab 7 at 243. Her appointment was subject to the successful completion of a
2-year probationary period. Id. On August 27, 2018, the appellant disclosed to
the agency’s Office of the Inspector General (OIG) that a specific doctor who
worked at her clinic had called in sick on August 16, 2018, and then worked at a
non-VA hospital that day. IAF, Tab 6 at 4-7. On October 2, 2018, the appellant
received notice that a Nurse Professional Standards Board (NPSB) would be
convened on October 15, 2018, to conduct a summary review of her employment.
IAF, Tab 7 at 52-56. The notice stated that the Board was being convened to
review deficiencies in her conduct or performance regarding “inappropriate
behavior.” Id. at 55-56. On October 29, 2018, the NPSB completed its review
and recommended that the appellant be terminated from her position during her
probationary period. Id. at 33-35. The agency subsequently issued a letter dated
November 21, 2018, terminating the appellant, effective December 8, 2018.
Id. at 29-32.
¶3 On October 10, 2018, the appellant filed a complaint with the Office of
Special Counsel (OSC), in which she alleged that the agency had convened the
NPSB against her in retaliation for her protected disclosure or activity. IAF,
Tab 1 at 23-27. By a letter dated December 10, 2018, the agency stayed its
decision to terminate the appellant until January 4, 2019, apparently based on the
appellant’s pending complaint with OSC. Id. at 16, 19. On February 12, 2019,
OSC closed its investigation into the appellant’s complaint, id. at 22, and on
February 13, 2019, the agency lifted the stay on the appellant’s termination, and
terminated her, effective immediately, id. at 16.
3
¶4 The appellant timely filed the instant IRA appeal on April 18, 2019, and
requested a hearing. IAF, Tab 1 at 2. The administrative judge issued an
acknowledgment order and a jurisdictional order setting forth the elements and
burdens of establishing jurisdiction over an IRA appeal. IAF, Tabs 2-3.
The appellant filed a narrative response to the orders and filed a copy of the
complaint she submitted to OIG, and the agency filed its response file.
IAF, Tabs 4, 6, 7.
¶5 Without holding the appellant’s requested hearing, the administrative judge
issued an initial decision dismissing the appeal for lack of jurisdiction.
IAF, Tab 8, Initial Decision (ID). The administrative judge concluded that the
appellant had exhausted her administrative remedies with OSC regarding her
whistleblower reprisal claim. ID at 5. Turning to the content of the appellant’s
claim, the administrative judge determined that the appellant failed to meet her
burden of making a nonfrivolous allegation that she made a protected disclosure
under 5 U.S.C. § 2302(b)(8), when she disclosed to OIG that a doctor had
engaged in potential time and attendance fraud by calling in sick while working at
another hospital. ID at 6-7. Conversely, the administrative judge concluded that
the appellant had nonfrivolously alleged that she engaged in protected activity
under 5 U.S.C. § 2302(b)(9)(C) when she contacted OIG to complain about the
potential time and attendance fraud. ID at 7-8. Nevertheless, the administrative
judge concluded that the appellant failed to nonfrivolously allege that her
protected activity was a contributing factor in the agency’s decision to convene
the NPSB. ID at 8-9. Specifically, the administrative judge determined that the
appellant had not produced any evidence that the allegedly retaliating agency
officials were aware that the appellant had filed a complaint with OIG, and so the
appellant could not establish that her protected activity contributed to their
decision to recommend convening the NPSB. ID at 8-9. Consequently, the
administrative judge concluded that the appellant had failed to make the requisite
nonfrivolous allegation to establish jurisdiction over her IRA appeal
4
and dismissed the appeal accordingly. ID at 9. The appellant has timely filed a
petition for review, and the agency has not filed a response. Petition for Review
(PFR) File, Tab 1.
ANALYSIS
¶6 To establish Board jurisdiction over an IRA appeal, the appellant must
exhaust her administrative remedies before OSC and make nonfrivolous
allegations that (1) she made a whistleblowing disclosure 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, fail to take, or threaten to
take a personnel action as defined by 5 U.S.C. § 2302(a). Yunus v. Department of
Veterans Affairs, 242 F.3d 1367, 1371 (Fed. Cir. 2001); Salerno v. Department of
the Interior, 123 M.S.P.R. 230, ¶ 5 (2016). A nonfrivolous allegation is an
assertion that, if proven, could establish the matter at issue. Bradley v.
Department of Homeland Security, 123 M.S.P.R. 547, ¶ 6 (2016); 5 C.F.R.
§ 1201.4(s). Whether allegations are nonfrivolous is determined on the basis of
the written record. Bradley, 123 M.S.P.R. 547, ¶ 6. Any doubt or ambiguity as
to whether the appellant made nonfrivolous jurisdictional allegations should be
resolved in favor of finding jurisdiction. Id.¶7 Once an appellant establishes jurisdiction over her IRA appeal, she is
entitled to a hearing on the merits of her claim, which she must prove by
preponderant evidence. 2 Salerno, 123 M.S.P.R. 230, ¶ 5. If the appellant proves
that her protected disclosure or activity was a contributing factor in a personnel
action taken against her, 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. Id.2
Preponderant evidence is that degree of relevant evidence a reasonable person,
considering the record as a whole, would accept as sufficient to find a contested fact is
more likely to be true than untrue. 5 C.F.R. § 1201.4(q).
5
¶8 On review, the appellant challenges the administrative judge’s finding that
she did not make a nonfrivolous allegation that she made a protected disclosure
under 5 U.S.C. § 2302(b)(8). PFR File, Tab 1 at 5-6. She also argues that she
nonfrivolously alleged that her protected activity under 5 U.S.C. § 2302(b)(9)(C)
of contacting the agency’s OIG was a contributing factor in the agency’s decision
to terminate her, and therefore, the administrative judge erred by dismissing her
appeal for lack of jurisdiction. Id. at 6-8.
¶9 Regarding the latter claim, the administrative judge considered whether the
appellant’s complaint to OIG constituted protected activity under 5 U.S.C.
§ 2302(b)(9)(C), which describes as protected activity, “cooperating with or
disclosing information to the Inspector General (or any other component
responsible for internal investigation or review) of an agency, or the Special
Counsel, in accordance with applicable provisions of law,” and concluded that the
appellant’s disclosures to OIG constituted protected activity under this provision.
ID at 7-8. We find no error in this determination. See Fisher v. Department of
the Interior, 2023 MSPB 11, ¶ 8 (concluding that disclosures of information to an
agency’s OIG are protected regardless of their content, as long as such
disclosures are made “in accordance with applicable provisions of law”).
¶10 The administrative judge next considered whether the appellant’s protected
activity was a contributing factor in the agency’s decision to terminate her.
The administrative judge concluded that, because the appellant had not provided
any evidence that either of the individuals who initiated the investigation that led
to her termination had any knowledge of her disclosure to OIG, she could not
meet her burden of making a nonfrivolous allegation that her protected activity
was a contributing factor in the agency’s decision to terminate her. ID at 8.
In determining that the appellant failed to nonfrivolously allege contributing
factor, the administrative judge considered the “knowledge/timing” test, by which
the Board considers whether an appellant has demonstrated that the official who
took the contested personnel action learned of the protected activity within a
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period of time such that a reasonable person could conclude that the protected
activity was a contributing factor in the personnel action. Id. (citing Mason v.
Department of Homeland Security, 116 M.S.P.R. 135, ¶ 26 (2011)).
Concluding that the appellant failed to meet her burden under the
knowledge/timing test, the administrative judge acknowledged that the appellant
gave OIG permission to disclose her name to agency management but noted that
her release form specified that OIG could not release her written complaint or any
other personally identifying information to agency managers. ID at 9; IAF, Tab 6
at 7. Based on this fact, and the fact that the appellant did not allege that OIG
interviewed either of the agency officials who purportedly retaliated against her,
the administrative judge concluded that there was no evidence in the record
establishing that the responsible agency officials were aware of the appellant’s
protected activity. ID at 9.
¶11 However, the Board has determined that an appellant also may satisfy the
knowledge prong of the knowledge/timing test by proving that the official taking
the action had constructive knowledge of the protected disclosure, even if the
official lacked actual knowledge. Nasuti v. Department of State, 120 M.S.P.R.
588, ¶ 7 (2014). An appellant may establish constructive knowledge by showing
that an individual with actual knowledge of the disclosure influenced the official
accused of taking the retaliatory action. Id. The administrative judge did not
specifically consider whether either of the allegedly retaliating agency officials
had constructive knowledge of the appellant’s protected activity.
¶12 Although the administrative judge determined that there was no evidence
that either of the allegedly retaliating agency officials was aware that the
appellant filed a complaint with OIG, as the appellant correctly notes, the doctor
who was the subject of the appellant’s disclosure to OIG (and who was also one
of the individuals the appellant alleged retaliated against her by convening the
NPSB) appeared to suggest that he was aware of the content of the appellant’s
allegations to OIG, in his letter requesting the convening of the NPSB. PFR File,
7
Tab 1 at 7-8; see IAF, Tab 7 at 85-86 (alleging that the appellant had “targeted”
him and had “claimed unsubstantiated, unethical, and personal allegations of
which she has no knowledge,” in a memorandum dated September 10, 2018, after
the appellant’s disclosure to OIG, but before the convening of the NPSB). The
record also reflects that the NPSB members who recommended the appellant’s
termination were also aware of her disclosure to OIG, since they specifically
reference the content of her OIG disclosure in the termination recommendation.
See IAF, Tab 7 at 33 (“Ms. Owens has been noted to talk about other staff
members when they are not present. Examples include; certain staff sleep on the
job; certain staff call in sick and work elsewhere . . . . These accusations were
unfounded.”) (emphasis added).
¶13 Based on the fact that the agency official who recommended convening the
NPSB and the NPSB members who recommended that the appellant be removed
were all aware of the appellant’s OIG disclosure at the time they took the relevant
actions, we conclude that the appellant has provided sufficient evidence that the
allegedly retaliating agency officials had constructive knowledge of her protected
activity. Accordingly, we conclude that the appellant has met her burden of
making a nonfrivolous allegation of Board jurisdiction over her IRA appeal, and
we remand the appeal for a hearing on the merits of her claim. On remand, the
appellant will have the opportunity to prove, by a preponderance of the evidence,
that her protected activity was a contributing factor in the agency’s decision to
terminate her. See Scoggins v. Department of the Army, 123 M.S.P.R. 592, ¶ 21
(2016).
¶14 The Board has held that the knowledge/timing test is not the only way for
an appellant to satisfy the contributing factor element. 5 U.S.C. § 1221(e)(1);
see Stiles v. Department of Homeland Security, 116 M.S.P.R. 263, ¶ 24 (2011).
If an appellant fails to satisfy the knowledge/timing test, the Board must consider
other evidence, such as evidence pertaining to the strength or weakness of the
agency’s reasons for taking the personnel action, whether the whistleblowing was
8
personally directed at the proposing or deciding officials, and whether these
individuals had a desire or motive to retaliate against the appellant. Dorney v.
Department of the Army, 117 M.S.P.R. 480, ¶ 15 (2012); Stiles, 116 M.S.P.R.
263, ¶ 24. Although the administrative judge identified in her jurisdictional order
the ways to show that a protected activity was a contributing factor in a personnel
action other than through knowledge/timing evidence, in the initial decision she
did not evaluate any of the other methods for doing so beyond the
knowledge/timing test. IAF, Tab 3 at 4-5; ID at 8-9.
¶15 Here, the fact that the allegedly retaliating agency official and the NPSB
members were apparently all aware of the appellant’s OIG disclosures prior to
making their respective recommendations could be relevant to the
non-knowledge/timing methods for establishing contributing factor, such as the
strength or weakness of the agency’s reasons for terminating the appellant,
whether the whistleblowing was personally directed at the proposing or deciding
officials, and whether he had a desire or motive to retaliate against the appellant.
See Dorney, 117 M.S.P.R. 480, ¶ 15; Stiles, 116 M.S.P.R. 263, ¶ 24. On remand,
if the administrative judge determines that the appellant failed to meet her burden
of proving contributing factor based on the knowledge/timing test,
the administrative judge should also consider these non-knowledge/timing
methods for proving contributing factor.
¶16 Finally, because we conclude that the appellant met her burden of making a
nonfrivolous allegation of Board jurisdiction regarding her claim that she engaged
in protected activity under 5 U.S.C. § 2302(b)(9)(C) when she contacted OIG, we
need not address the administrative judge’s finding that the appellant failed to
nonfrivolously allege that she made a protected disclosure under 5 U.S.C.
§ 2302(b)(8). ID at 7.
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ORDER
¶17 For the reasons discussed above, we vacate the initial decision and remand
this case to the Central Regional Office for the hearing the appellant requested
and for further adjudication in accordance with this Remand Order. 3
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.
3
In the remand initial decision, the administrative judge may reincorporate prior
findings as appropriate, consistent with this Remand Order.