Jessica Oetzel v. Department of the Navy ( 2024 )

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
JESSICA L. OETZEL, DOCKET NUMBER
Appellant, DC-1221-21-0518-W-1
v.
DEPARTMENT OF THE NAVY, DATE: February 29, 2024
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Neil C. Bonney , Esquire, Virginia Beach, Virginia, for the appellant.
William Fuller Stoddard , Esquire, and Debra Mosley Evans , Portsmouth,
Virginia, for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
FINAL ORDER
The appellant has filed a petition for review of the initial decision,
which denied corrective action in her Individual Right of Action appeal .
Generally, we grant petitions such as this one only in the following
circumstances: the initial decision contains erroneous findings of material fact;
the initial decision is based on an erroneous interpretation of statute or regulation
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
or the erroneous application of the law to the facts of the case; the administrative
judge’s rulings during either the course of the appeal or the initial decision
were not consistent with required procedures or involved an abuse of discretion,
and the resulting error affected the outcome of the case; or new and material
evidence or legal argument is available that, despite the petitioner’s due
diligence, was not available when the record closed. Title 5 of the Code of
Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). After fully
considering the filings in this appeal, we conclude that the petitioner has not
established any basis under section 1201.115 for granting the petition for review.
Therefore, we DENY the petition for review. Except to MODIFY the
administrative judge’s analysis of the second of the factors set forth in Carr v.
Social Security Administration, 185 F.3d 1318, 1323 (Fed. Cir. 1999),
we AFFIRM the initial decision.
DISCUSSION OF ARGUMENTS ON REVIEW
In denying the appellant’s request for corrective action, the administrative
judge found that the appellant’s report of a missed inspection on a propeller shaft
constituted a protected disclosure of a violation of an agency rule or regulation,
and that the appellant established that her disclosure was a contributing factor in
a personnel action, i.e., her transfer to a different project. Initial Appeal File
(IAF), Tab 28, Initial Decision (ID) at 3-7. Nevertheless, the administrative
judge found, pursuant to an analysis of the Carr factors, that the agency proved
by clear and convincing evidence that it would have transferred the appellant
absent her disclosure. Specifically, the administrative judge found that there was
strong evidence in support of the appellant’s transfer, that the officials who
transferred the appellant were not motivated by retaliation, and that the agency
also transferred similarly situated individuals who were not whistleblowers. ID
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at 8-11. On review, the appellant challenges the administrative judge’s findings
regarding each of the Carr factors. 2 Petition for Review File, Tab 1.
We find that the appellant’s claims on review regarding the administrative
judge’s analysis of the first and third Carr factors do not warrant disturbing the
initial decision. However, we modify the administrative judge’s analysis of the
second Carr factor to find that the evidence shows that one of the two officials
responsible for the appellant’s transfer, the welding shop Surface Craft Director,
had a motive to retaliate against the appellant due to her disclosure.
The administrative judge failed to acknowledge in the initial decision that
the Surface Craft Director was the appellant’s third-level supervisor at the time of
her disclosure and was also responsible for welding operations on propeller shafts
at the shipyard. IAF, Tab 18 at 67, Tab 26, Hearing Recording (HR) (testimony
of the Surface Craft Director). The administrative judge also failed to credit
undisputed documentary evidence and witness testimony establishing that the
missed inspection which the appellant disclosed required 104 man hours of work
—excluding lifting and transporting the shaft—to remedy, and delayed
refurbishing operations on the shaft by approximately 1 week. IAF, Tab 11
at 20-23; HR (testimony of the Mechanical Engineer). It is fair to infer that the
appellant’s disclosure of the welding shop’s failure to adhere to proper procedure,
as well as the consequences of that failure, reflected poorly on the Surface Craft
Director in his capacity as manager of shaft welding and thus established some
retaliatory motive on his part. See Carr, 185 F.3d at 1322-23 (finding motive to
retaliate based on criticisms of the management of the office for which the acting
official had responsibility); Chavez v. Department of Veterans Affairs,
2
In determining whether an agency has shown by clear and convincing evidence that it
would have taken the same personnel action in the absence of whistleblowing, the
Board will consider the following factors: (1) the strength of the agency’s evidence in
support of its action; (2) the existence and strength of any motive to retaliate on the part
of the agency officials who were involved in the decision; and (3) any evidence that the
agency takes similar actions against employees who are not whistleblowers but who are
otherwise similarly situated. Carr, 185 F.3d at 1323.
4
120 M.S.P.R. 285, ¶ 33 (2013) (finding that an appellant’s criticisms reflecting on
her managers’ capacities as managers and employees was sufficient to establish a
substantial retaliatory motive).
Nevertheless, considering the totality of the evidence relevant to the Carr
factors, the agency still proved by clear and convincing evidence that it would
have taken the same action absent the appellant’s disclosure. On balance,
the Surface Craft Director’s inferred motive to retaliate does not outweigh the
strength of the agency’s reasons for transferring the appellant—particularly her
expertise at reviewing welding documentation—as well as of the agency’s
evidence of its routine transfer of welding shop work leaders who were not
whistleblowers. HR (testimony of the Surface Craft Director, testimony of the
Submarine Director). In sum, the appellant’s claims on review thus do not justify
disturbing the administrative judge’s conclusion that she is not entitled to
corrective action.
NOTICE OF APPEAL RIGHTS 3
The initial decision, as supplemented by this Final Order, constitutes the
Board’s final decision in this matter. 5 C.F.R. § 1201.113. You may obtain
review of this final decision. 5 U.S.C. § 7703(a)(1). By statute, the nature of
your claims determines the time limit for seeking such review and the appropriate
forum with which to file. 5 U.S.C. § 7703(b). Although we offer the following
summary of available appeal rights, the Merit Systems Protection Board does not
provide legal advice on which option is most appropriate for your situation and
the rights described below do not represent a statement of how courts will rule
regarding which cases fall within their jurisdiction. If you wish to seek review of
this final decision, you should immediately review the law applicable to your
claims and carefully follow all filing time limits and requirements. Failure to file
3
Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.
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within the applicable time limit may result in the dismissal of your case by your
chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
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(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision—including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board, 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court-appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
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Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction. 4 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
4
The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510.
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If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.