Cameron Nelson v. Department of Homeland Security ( 2024 )

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
CAMERON NELSON, DOCKET NUMBER
Appellant, AT-1221-22-0186-W-1
v.
DEPARTMENT OF HOMELAND DATE: April 5, 2024
SECURITY,
Agency.
THIS ORDER IS NONPRECEDENTIAL 1
Georgia A. Lawrence , Esquire, and Shaun C. Southworth , Esquire, Atlanta,
Georgia, for the appellant.
Alicia Ainsworth , Esquire, and Andrew Hass , Esquire, Washington, D.C.,
for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
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, FIND that the appellant established jurisdiction
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
over his claims, and REMAND the case to the Atlanta Regional Office for further
adjudication in accordance with this Remand Order.
BACKGROUND
The appellant was employed an Environmental Floodplain Specialist,
IC-11, with the agency’s Federal Emergency Management Agency (FEMA).
Initial Appeal File (IAF), Tab 11 at 4, 19. He was appointed to this position on
June 23, 2019, under the Stafford Disaster Relief and Emergency Assistance Act,
Pub. L. 93-288, 88 Stat. 143 (1974), which provides for temporary, emergency
appointments outside title 5. Id. at 22; IAF, Tab 9 at 38. On October 22, 2021,
the agency terminated the appellant based on the charges of conduct unbecoming,
which concerned his “surreptitious audio recording of another FEMA employee
without their knowledge or consent,” and unauthorized use of a travel charge
card. IAF, Tab 11 at 19-23.
At some point following his termination, the appellant filed a complaint
with the Office of Special Counsel (OSC) alleging that he was terminated because
of disclosures he made to the agency’s equal employment opportunity (EEO)
office and Office of Professional Responsibility (OPR). IAF, Tab 9 at 33-53.
By letter dated December 8, 2021, OSC closed its investigation into the
appellant’s complaint and informed him of his IRA appeal rights with the Board.
IAF, Tab 1 at 8.
The appellant filed a timely appeal with the Board. IAF, Tab 1.
In response to the administrative judge’s jurisdictional order explaining how the
appellant could establish jurisdiction over an IRA appeal, the appellant asserted
that on or around January 26, 2021, he told an EEO counselor that he was being
discriminated against based on his race (African American) and sex (male) and
retaliated against based on prior EEO activity. IAF, Tab 9 at 15. Specifically,
he alleged that he disclosed to an EEO counselor that his supervisor sought to
intimidate him by threatening to “let [him] go” unless his performance improved,
that he was verbally abused and intimidated by his supervisor, and that his
3
supervisor threatened to engage in potential witness tampering by “throw[ing]”
his weight around.” Id. at 7-8, 15-16. He also asserted that he filed a complaint
with the agency’s OPR regarding these matters. IAF, Tab 15 at 4.
The appellant’s pleadings generally suggest that he believes he was terminated as
a result of the harassment and his communication with the agency’s EEO and
OPR offices. IAF, Tabs 9, 15.
Without holding the appellant’s requested hearing, IAF, Tab 1 at 2,
the administrative judge issued an initial decision, IAF, Tab 16, Initial Decision
(ID) based on the written record. Without deciding whether the appellant proved
that he exhausted his administrative remedy with OSC, the administrative judge
found that the appellant failed to nonfrivolously allege that he made a protected
disclosure under 5 U.S.C. § 2302(b)(8). ID at 7-8. Accordingly, he dismissed the
appeal for lack of jurisdiction. ID at 8.
The appellant has filed a petition for review of the initial decision. Petition
for Review (PFR) File, Tab 1. He primarily argues the merits of his termination,
specifically with regard to the charge concerning the audio recordings of another
FEMA employee without their knowledge or consent. Id. at 7-8. He also
reiterates his claims of discrimination based on race and sex. Id. at 8, 14, 16.
With his petition for review, he includes emails relating to the audio recordings
and agency regulations/policies related to such activity, and a March 2020 FEMA
Records Disposition Schedule. 2 Id. at 18-257. The agency has responded to the
appellant’s petition for review. PFR File, Tab 3.
DISCUSSION OF ARGUMENTS ON REVIEW
To establish the Board’s jurisdiction over an IRA appeal, the appellant
must prove by preponderant evidence that he exhausted his administrative remedy
2
Because we are remanding this appeal for adjudication on the merits, we need not
determine the effect these documents have on the appellant’s petition for review. The
appellant may submit the documents relevant to his claims during adjudication on
remand.
4
before OSC and make 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
protected 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). Edwards v. Department of Labor, 2022 MSPB 9, ¶ 8; Salerno
v. Department of the Interior, 123 M.S.P.R. 230, ¶ 5 (2016).
As set forth above, the appellant has alleged that he disclosed to an EEO
counselor that he was discriminated against on the basis of race and sex,
specifically asserting that his supervisor told him he was going to “let [him] go”
if his performance did not improve, that he was verbally abused and intimidated,
and that his supervisor threatened to engage in witness tampering.
IAF, Tab 9 at 7-8, 14-16. He has also asserted that he similarly complained to the
agency’s OPR, IAF, Tab 15 at 4, and that he was terminated in reprisal for his
communications with the EEO and OPR offices, IAF, Tabs 9, 15.
The appellant exhausted his administrative remedy with OSC.
As noted above, in the initial decision, the administrative judge made no
findings regarding whether the appellant exhausted his administrative remedy
with OSC. ID at 7. However, exhaustion of claims with OSC is generally seen as
a threshold matter and, thus, will be addressed here first. See Carney
v. Department of Veterans Affairs, 121 M.S.P.R. 446, ¶ 4 (2014). To satisfy the
exhaustion requirement of 5 U.S.C. § 1214(a)(3), an appellant must have provided
OSC with a sufficient basis to pursue an investigation into his allegations of
whistleblower reprisal. Chambers v. Department of Homeland Security,
2022 MSPB 8, ¶ 10. Generally, exhaustion can be demonstrated through the
appellant’s OSC complaint, evidence the original complaint was amended
(including but not limited to OSC’s determination letter and other letters from
OSC referencing any amended allegations), and the appellant’s written responses
to OSC. Id., ¶ 11; Mason v. Department of Homeland Security, 116 M.S.P.R.
5
135, ¶ 8 (2011). Alternatively, exhaustion may be proven through other
sufficiently reliable evidence, such as an affidavit or declaration attesting that the
appellant raised with OSC the substance of the facts in his appeal. Chambers,
2022 MSPB 8, ¶ 11.
Here, the record includes the appellant’s OSC complaint, in which
he discussed his claims of discrimination and asserted that he disclosed to the
agency’s EEO office his claims that his supervisor told him he would be “let go”
if his performance did not improve and harassed and intimated him. IAF, Tab 9
at 44. He also stated to OSC that he contacted OPR with his complaints about his
supervisor. Id. The appellant further alleged in the OSC complaint that, in
reprisal for his disclosures to the EEO office and his complaint to OPR, he was
terminated. Id. at 40-46. Although the appellant’s alleged disclosure to the EEO
counselor concerning his supervisor’s threat to engage in witness tampering does
not specifically appear in the appellant’s OSC complaint or other correspondence
with OSC, the OSC complaint includes substantial discussions of alleged
instances of discrimination and reprisal that were brought to the agency’s EEO
counselor’s attention. Id. at 41-42. We find that such discussions adequately
provided OSC with a sufficient basis to pursue an investigation into his
allegations of whistleblower reprisal. See Chambers, 2022 MSPB 8, ¶ 10
(explaining that an appellant may give a more detailed account of their
whistleblowing activities before the Board than they did to OSC). Based on the
foregoing, we find that the appellant proved by preponderant evidence that he
exhausted his administrative remedy with OSC. As such, we turn to whether the
appellant nonfrivolously alleged that he made a protected disclosure or engaged
in protected activity that was a contributing factor to a personnel action.
The administrative judge correctly found that the appellant’s disclosures to the
EEO counselor are not within the Board’s IRA jurisdiction.
In the initial decision, the administrative judge observed that the “vast
majority” of the appellant’s disclosures to the EEO counselor allege “violations
6
of [t]itle VII for race discrimination, the creating of a hostile work environment
based on race, and reprisal for protected activity.” ID at 7. He stated that it is
well-settled that the Whistleblower Protection Enhancement Act (WPEA), Pub. L.
No. 112-199, 126 Stat. 1465 (2012) is “not the proper vehicle for redress of [t]itle
VII violations.” Id. Nonetheless, he further concluded that the appellant’s
disclosures to the agency’s EEO counselor lacked specificity, were too
conclusory, and did not evidence a category of wrongdoing as set forth in
5 U.S.C. § 2302(b)(8). 3 ID at 7-8. As such, he found that the appellant failed to
nonfrivolously allege that he made a protected disclosure under the WPEA.
ID at 8.
Regarding the administrative judge’s initial discussion—that the WPEA is
not the proper vehicle for allegations of violations of title VII—the Board
recently discussed this principle in Edwards v. Department of Labor, 2022 MSPB
9. In Edwards, the Board reiterated that the Federal courts and the Board have
found that the Whistleblower Protection Act (WPA), Pub. L. No. 101-12, 103Stat. 16 (1989), does not extend to claims of discrimination and reprisal arising
under title VII. Id., ¶¶ 10-17. The Board further stated that, although the WPEA
expanded the scope of whistleblower protection, such expansion did not include
title VII-related claims and that such claims remain outside of the Board’s IRA
jurisdiction. Id., ¶ 22. It also acknowledged that redress for violations of title
VII, including discrimination and retaliation, is enforced by the Equal
Employment Opportunity Commission. Id., ¶ 23.
Here, the appellant’s allegations are undisputedly based on claims of
discrimination based on race and sex and retaliation based on prior EEO activity.
IAF, Tab 9 at 7-8, 14-20, 27. Although the appellant argues on review that,
3
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 v. Department of Veterans Affairs ,
2022 MSPB 17, ¶ 12.
7
due to the nature of his appointment, his only avenue of recourse was through the
agency’s EEO office, PFR File, Tab 1 at 5, he has not retracted his claim that
he disclosed to the EEO counselor allegations of discrimination and reprisal
arising under title VII. Indeed, in his petition for review, he reiterates his claim
that he was discriminated against based on race and age. Id. at 8, 14, 16.
Accordingly, we agree with the administrative judge that the Board lacks
jurisdiction in this IRA appeal over the appellant’s claims arising under title VII,
which include all of his disclosures to the agency’s EEO counselor. 4
See Edwards, 2022 MSPB 9, ¶¶ 10-17, 21-23.
The appellant nonfrivolously alleged that he engaged in protected activity under
5 U.S.C. § 2302(b)(9).
In the initial decision, the administrative judge acknowledged that the
appellant filed a complaint with OPR, but he did not address whether this
complaint constituted protected activity under the WPEA. ID at 5, 8. Thus,
we do so here. Under 5 U.S.C. § 2302(b)(9)(C), disclosing information to a
component responsible for internal investigation or review constitutes protected
activity. It appears undisputed that OPR qualifies as such a component.
4
In the initial decision, the administrative judge considered the appellant’s allegation
that he disclosed to the agency’s EEO counselor that his supervisor threatened to
engage in witness tampering. ID at 8. Specifically, the administrative judge considered
whether this constituted a nonfrivolous allegation of an abuse of authority under
5 U.S.C. § 2302(b)(8), which could form the basis of a nonfrivolous allegation of a
protected disclosure and, thus, establish Board jurisdiction if other elements are also
met. Ultimately, the administrative judge found that the allegation was too conclusory
to constitute a nonfrivolous allegation. Id. We need not determine whether this finding
is correct because the allegation is that the threat to engage in witness tampering is
related to alleged discrimination and reprisal for prior EEO activity, IAF, Tab 9
at 14-20, which takes the allegation outside of the Board’s jurisdiction in an IRA
appeal. See Edwards, 2022 MSPB 9, ¶¶ 10-17, 21-23; Wilson v. Department of
Veterans Affairs, 2022 MSPB 7, ¶ 12 (including claims of retaliation with claims of
discrimination as alleged violations of the EEO statutes when both relate to EEO
matters). Similarly, we make no findings regarding the administrative judge’s
additional discussion of the appellant’s disclosures to the EEO counselor because his
finding regarding the exclusion of EEO matters from IRA jurisdiction is dispositive.
ID at 7-8.
8
The appellant alleged that he was directed to OPR because it was the “component
responsible for internal investigation or review.” PFR File, Tab 1 at 6.
The agency similarly described OPR as the entity that “investigates employee
misconduct allegations.” IAF, Tab 11 at 6. To the extent the appellant’s OPR
complaint included matters relating to his allegations of violations of title VII,
the Board has found that activity qualifying as protected under section 2302(b)(9)
(C) is protected “regardless of its content.” Pridgen v. Office of Management
and Budget, 2022 MSPB 31, ¶ 62. Based on the foregoing, we find that the
appellant nonfrivolously alleged that he filed a complaint with a component
responsible for internal investigations, and thus, that he nonfrivolously alleged
that he engaged in protected activity under 5 U.S.C. § 2302(b)(9)(C).
The appellant has nonfrivolously alleged that his OPR complaint was a
contributing factor in his termination.
As previously noted, to establish jurisdiction, an appellant must
nonfrivolously allege that he made a protected disclosure or engaged in protected
activity that was a contributing factor in a personnel action. Edwards,
2022 MSPB 9, ¶ 8. The appellant has alleged that he was terminated in reprisal
for his protected activity, and a termination is a qualifying personnel action under
5 U.S.C. § 2302(a)(2)(A)(iii).
To satisfy the contributing factor criterion at the jurisdictional stage,
the appellant only need raise a nonfrivolous allegation that the fact of, or content
of, the protected disclosure was one factor that tended to affect the personnel
action in any way. Skarada v. Department of Veterans Affairs, 2022 MSPB 17, ¶
19. 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 taking the personnel action knew of the disclosure and that the
personnel action occurred within a period of time such that a reasonable person
could conclude that the disclosure was a contributing factor in the personnel
9
action. Id. The Board has held that a personnel action taken within
approximately 1 to 2 years of the appellant’s disclosure or activity satisfies the
knowledge/timing test. Id.Here, it is undisputed that the Deputy Cadre Coordinator (DCC)
Program Manager issued the notice terminating the appellant’s appointment.
IAF, Tab 11 at 19. The appellant generally refers to his complaint to OPR in the
same context as his disclosures to EEO, regarding both as “disclosures,” and
he has alleged that the DCC Program Manager was aware of his disclosures.
IAF, Tab 9 at 9, Tab 15 at 4. Such allegations satisfy the knowledge prong of the
knowledge/timing test.
Regarding the timing prong, the appellant does not allege specifically
when the DCC Program Manager became aware of his OPR complaint.
IAF, Tabs 1, 9, 15. However, he alleged that he filed the OPR complaint on
February 2, 2021, and he was subsequently terminated less than 1 year later on
October 22, 2021. IAF, Tab 11 at 19, 22; Tab 15 at 4. Generally, we construe
allegations liberally in favor of finding jurisdiction, given the minimal showing
required to meet the nonfrivolous standard. See Skarada, 2022 MSPB 17, ¶ 6
(stating that any doubt or ambiguity as to whether the appellant made a
nonfrivolous jurisdictional allegation should be resolved in favor of finding
jurisdiction); Jessup v. Department of Homeland Security, 107 M.S.P.R. 1, ¶ 10
(2007) (observing that the appellant’s burden of making a nonfrivolous allegation
is low and requires only a minimal sufficient showing). Here, we reasonably
construe the appellant’s claim that the DCC Program Manager was aware of his
February 2021 OPR complaint to at least allege that she became aware of it
within 1 year of issuing the notice terminating the appellant in October of 2021.
Such an allegation satisfies the timing prong of the knowledge/timing test.
Skarada, 2022 MSPB 17, ¶ 19. Thus, we find that the appellant satisfied both
prongs of the knowledge/timing test. Accordingly, we find that the appellant
nonfrivolously alleged that he engaged in protected activity that was a
10
contributing factor in a personnel action, and that he, therefore, established the
Board’s jurisdiction over his appeal.
ORDER
For the reasons discussed above, we 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
When issuing the remand initial decision, the administrative judge should incorporate
the findings and discussions here regarding exhaustion and the appellant’s disclosures
to the agency’s EEO office.