Jocelyn Doyle v. Department of Veterans Affairs ( 2024 )

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
JOCELYN LISA DOYLE, DOCKET NUMBER
Appellant, PH-1221-18-0012-X-1
v.
DEPARTMENT OF VETERANS DATE: April 15, 2024
AFFAIRS,
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Jocelyn Lisa Doyle , Boonsboro, Maryland, pro se.
Timothy O’Boyle , Hampton, Virginia, for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
FINAL ORDER
In a May 31, 2022 compliance initial decision, the administrative judge
found the agency in partial noncompliance with the Board’s final decision in the
underlying appeal to the extent the agency failed to prove that it removed all
references to the retaliatory reassignments from the appellant’s Official Personnel
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
File (OPF). Doyle v. Department of Veterans Affairs, MSPB Docket No.
PH-1221-18-0012-C-1, Compliance File (CF), Tab 6, Compliance Initial Decision
(CID). For the reasons discussed below, we now find the agency in compliance
and DISMISS the appellant’s petition for enforcement.
DISCUSSION OF ARGUMENTS AND EVIDENCE ON COMPLIANCE
On December 14, 2021, the administrative judge issued a remand initial
decision in the appellant’s individual right of action appeal finding that the
agency retaliated against her for protected whistleblowing when it (1) convened
an Administrative Investigation Board (AIB) to investigate the appellant’s
conduct; (2) temporarily reassigned her during the AIB from her GS-6 Dental
Assistant position to the mailroom (Logistics Service) effective February 7, 2017,
and to the library (Employee Learning Resources Service) effective April 4,
2017; and (3) permanently reassigned her to the Advanced Medical Support
Assistant position effective September 3, 2017. Doyle v. Department of Veterans
Affairs, MSPB Docket No. PH-1221-18-0012-M-1, Remand File, Tab 18, Remand
Initial Decision (RID). Accordingly, he granted in part her request for corrective
action and ordered the agency to cancel the reassignments, expunge any
documentation regarding the reassignments and AIB from the appellant’s OPF
and other agency records systems, and pay the appellant any monies or other
awards owed as a result of the retaliatory actions. RID at 6. The remand initial
decision became the final decision of the Board on January 18, 2022, after neither
party filed an administrative petition for review. RID at 8.
On March 19, 2022, the appellant filed a petition for enforcement of the
December 14, 2021 remand initial decision, requesting a “clean record” and a
change to her performance appraisal. CF, Tab 1. In the May 31, 2022
compliance initial decision, the administrative judge found that the appellant’s
request to expunge records from her OPF that were unrelated to the retaliatory
reassignments and to change to her performance evaluation were outside the
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scope of this compliance matter. CID at 6. However, he found the agency in
partial noncompliance to the extent it had not shown that all references to the
retaliatory reassignments had been removed from the appellant’s OPF, including
references contained in the “Additional Comments/Information” section of her
fiscal year (FY) 2017 performance appraisal. CID at 6-7. Thus, the
administrative judge granted the appellant’s petition for enforcement in part and
ordered the agency to (1) submit evidence showing that it had removed all
references to the retaliatory reassignments from the appellant’s OPF and/or other
personnel files; and (2) submit evidence showing that it had placed an FY 2017
performance appraisal in the appellant’s OPF, or other applicable personnel file,
that did not include any reference to the reassignments or any attachments that
reference the reassignments. 2 CID at 8.
On June 27, 2022, the agency submitted its first statement of compliance to
the Board. Doyle v. Department of Veterans Affairs, MSPB Docket No. PH-1221-
18-0012-X-1, Compliance Referral File (CRF), Tab 1. As evidence of
compliance, the agency provided a declaration signed under penalty of perjury
from a Supervisory Human Resources Specialist (HR Specialist) attesting that she
had reviewed the appellant’s electronic OPF (eOPF) and confirmed that it did not
contain any Standard Form 50 (SF-50) reflecting the appellant’s temporary
reassignment to Logistics Service or to any other reassignment made during the
AIB. Id. at 7-8. She also attested that the appellant’s eOPF did not contain the
2
In the compliance initial decision, the administrative judge informed the agency that,
if it decided to take the actions required by the decision, it must submit to the Clerk of
the Board, within the time limit for filing a petition for review under 5 C.F.R.
§ 1201.114(e), a statement that it had taken the actions identified in the compliance
initial decision, along with evidence establishing that it has taken those actions. CID
at 8-9; see 5 C.F.R. § 1201.183(a)(6)(i). He also informed the parties of their option to
request Board review of the compliance initial decision by filing a petition for review
by August 28, 2017, the date on which the findings of noncompliance would become
final unless a petition for review was filed. Id.; see 5 C.F.R. §§ 1201.114(e),
1201.183(a)(6)(ii). Neither party filed an administrative petition for review of the
compliance initial decision.
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FY 2017 performance appraisal because performance appraisals were only
maintained for 4 years under the agency’s document retention policy. Id.In response, the appellant argued that the agency had not adequately shown
that all references to investigations and all performance reviews or letters written
by two specified individuals had been removed from her personnel files and
questioned whether the Office of Personnel Management (OPM) might have
copies of these documents. CRF, Tab 3 at 4-5. The appellant also argued that
she was “still concerned” about her performance ratings for 2017 and 2018 and
that she wanted them to be restored to “excellent.” Id. at 4.
In a supplemental compliance submission, the agency provided a second
declaration under penalty of perjury from the HR Specialist in which she attested
that she had removed from the appellant’s eOPF the SF-50 dated September 3,
2017, documenting her reassignment to the Advanced Medical Support Assistant
position. CRF, Tab 4. The HR Specialist attached to the declaration screenshots
showing the contents of the eOPF before and after removal of the reassignment
SF-50. Id. at 8. The HR Specialist also attested and provided evidence showing
that she corrected the appellant’s FY 2017 performance appraisal so that it did not
contain any reference to the Advanced Medical Support Assistant reassignment or
any other reassignment that occurred during that rating period. Id. at 7, 10-14.
Finally, she stated that she did not upload the corrected FY 2017 performance
appraisal to the appellant’s eOPF because, pursuant to the agency’s document
retention policy, such documents are only maintained for 4 years. Id. at 7.
In response to the agency’s supplemental compliance submission, the
appellant argued, in relevant part, that the agency had not adequately shown that
it had removed all references to the retaliatory reassignments from her personnel
file and from any records maintained by OPM. CRF, Tab 5 at 4-9. She also
argued that the agency needed to delete the September 3, 2018 SF-50
documenting her removal from her OPF, provide her copies of all the SF-50s in
5
her OPF from 2015 through 2018, and correct her performance rating. Id.
at 7-10.
The agency replied to the appellant’s response, arguing that her challenges
to her removal and performance rating were outside the scope of this compliance
matter. CRF, Tab 6. In addition, the agency submitted a second supplemental
compliance submission reflecting that it had removed two more references to the
Advanced Medical Support Assistant position from the appellant’s eOPF. CRF,
Tab 7. Specifically, the agency provided a third sworn declaration from the HR
Specialist stating that she removed from the appellant’s eOPF a January 5, 2018
SF-50 documenting a general pay adjustment while she held the Advanced
Medical Support Assistant position and replaced it with an SF-50 showing that
the pay adjustment occurred while the appellant occupied the Dental Assistant
position. Id. at 6-7. She also stated that she removed from the appellant’s eOPF
the September 20, 2018 SF-50 documenting her removal while in the position of
Advanced Medical Support Assistant and replaced it with one showing that she
occupied the Dental Assistant position at the time of her removal. Id. at 7. The
agency provided copies of the original and replacement SF -50s. Id. at 8-11. The
HR Specialist confirmed that there were no further references to the Advanced
Medical Support Assistant reassignment in the appellant’s eOPF. Id. at 7.
Lastly, regarding the appellant’s allegations that OPM may have copies of
documents referencing her reassignments, the agency submitted a fourth sworn
declaration from the HR Specialist attesting that the agency has maintained
custody of the appellant’s OPF since her 2018 removal due to the pending
employment-related appeals. CRF, Tab 8 at 4-5.
The appellant has not responded to the agency’s three most recent
submissions.
6
ANALYSIS
When the Board finds a personnel action unwarranted, the aim is to place
the appellant, as nearly as possible, in the situation she would have been in had
the wrongful personnel action not occurred. Vaughan v. Department of
Agriculture, 116 M.S.P.R. 319, ¶ 5 (2011); King v. Department of the Navy,
100 M.S.P.R. 116, ¶ 12 (2005), aff’d per curiam, 167 F. App’x 191 (Fed. Cir.
2006). The agency bears the burden to prove compliance with the Board’s order
by a preponderance of the evidence. 3 Vaughan, 116 M.S.P.R. 319, ¶ 5; 5 C.F.R.
§ 1201.183(d). An agency’s assertions of compliance must include a clear
explanation of its compliance actions supported by documentary evidence.
Vaughan, 116 M.S.P.R. 319, ¶ 5. The appellant may rebut the agency’s evidence
of compliance by making specific, nonconclusory, and supported assertions of
continued noncompliance. Id.As described above, in the compliance initial decision, the administrative
judge found that the agency was not in compliance with the Board’s final order to
the extent it failed to show that it removed all references to the three retaliatory
reassignments from the appellant’s OPF and other personnel files, including her
2017 performance appraisal. CID at 8. The agency has now submitted evidence
showing that it has removed the SF-50 documenting the appellant’s reassignment
to the Advanced Medical Support Assistant position and has replaced all SF-50s
postdating that reassignment to reflect she held the Dental Assistant position at
the time of the agency action. CRF, Tabs 4, 7. In addition, the agency has
provided evidence showing that it corrected the appellant’s FY 2017 performance
appraisal to remove all references to the Advanced Medical Support Assistant
position, although it has not placed it in the appellant’s OPF pursuant to the
agency’s 4-year document retention policy. CRF, Tab 4. Finally, the HR
Specialist attested in statements under penalty of perjury that there are no
3
A preponderance of the evidence is the degree of relevant evidence that a reasonable
person, considering the record as a whole, would accept as sufficient to find that a
contested fact is more likely to be true than untrue. 5 C.F.R. § 1201.4(q).
7
references to the temporary reassignments made during the AIB in the appellant’s
personnel files. CRF, Tab 1. The appellant has not rebutted this evidence with
any specific, nonconclusory, and supported allegations of continued
noncompliance. CRF, Tabs 3, 5. Accordingly, we find that the agency has
established that it is in compliance with its outstanding obligation to remove all
references to the three reassignments found to be retaliatory from the appellant’s
OPF and other personnel files.
As noted above, the appellant has expressed concern that OPM may be in
possession of documents referencing, as relevant to this compliance matter, the
three reassignments and has argued that the agency must prove otherwise. CRF,
Tabs 3, 5. Under the circumstances here, we assume without deciding that the
agency’s obligation to remove references to the reassignments from the
appellant’s OPF and/or other personnel records includes the obligation to remove
those documents from records maintained by OPM. See King v. Department of
the Navy, 130 F.3d 1031 (Fed. Cir. 1997) (interpreting a settlement agreement
containing the phrase “remove all reference to the removal action from her
Official Personnel File” as requiring the Navy to purge documents referencing the
removal from any official Government personnel files that might be available to a
future employer, including those held in personnel files by OPM and the Defense
Finance and Accounting Service). However, the appellant has not made any
specific, nonconclusory, or supported allegations that OPM actually has any
documents referencing the reassignments, nor even explained the basis of her
belief that OPM may have them. 4 CRF, Tabs 3, 5. Accordingly, the appellant’s
4
We acknowledge that, by regulation, the employing agency maintains custody of an
employee’s OPF or eOPF during her tenure and until it is “transferred to and accepted
by the [National Personnel Records Center (NPRC)],” at which time OPM becomes the
custodian of the OPF or eOPF. 5 C.F.R. § 293.303(c)-(d)(1). Although the appellant
separated from the agency in 2018, the HR Specialist attested that the agency has
maintained custody of the appellant’s OPF since her removal due to the appellant’s
employment-related appeals. CRF, Tab 8. In addition, the agency’s recent amendments
to the documents in the appellant’s eOPF demonstrate that the agency, not OPM, has
custody of the appellant’s eOPF. Once the appellant’s eOPF is transferred to NPRC,
8
conjecture that OPM may be in possession of such documents is insufficient to
rebut the agency’s evidence of compliance. Vaughan, 116 M.S.P.R. 319, ¶ 5. In
addition, as the appellant did not respond to the agency’s three most recent
compliance submissions, we assume that she is satisfied. See Baumgartner v.
Department of Housing and Urban Development, 111 M.S.P.R. 86, ¶ 9 (2009).
Should the appellant discover in the future that OPM indeed has documents
referencing her reassignments, she may file another petition for enforcement at
that time.
We have considered the appellant’s other challenges to the agency’s
compliance, including that she is entitled to an “excellent” performance rating,
but find that they are outside the scope of this compliance appeal.
In light of the foregoing, we find the agency in compliance with its
outstanding compliance obligation and dismiss the appellant’s petition for
enforcement. This is the final decision of the Merit Systems Protection Board in
this compliance proceeding. Title 5 of the Code of Federal Regulations, section
1201.183(c)(1) (5 C.F.R. § 1201.183(c)(1)).
NOTICE OF APPEAL RIGHTS 5
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
she may request a copy of it. See National Archives and Records Administration,
Official Personnel Folders, Federal (non-archival) Holdings and Access,
https://www.archives.gov/personnel-records-center/civilian-non-archival (last accessed
Apr. 15, 2024).
5
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.
9
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 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
10
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(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
11
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:
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. 6 The court of appeals must receive your petition for
6
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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review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
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.