Ronald Davis v. Department of the Air Force ( 2024 )

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
RONALD A. DAVIS, DOCKET NUMBER
Appellant, DC-1221-17-0350-W-1
v.
DEPARTMENT OF THE AIR FORCE, DATE: May 7, 2024
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Ronald A. Davis , Baltimore, Maryland, pro se.
Avis McAllister , Esquire, Joint Base Andrews, Maryland, for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
FINAL ORDER
The appellant has filed a petition for review of the initial decision that
denied his request for corrective action in his individual right of action (IRA)
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
or the erroneous application of the law to the facts of the case; the administrative
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
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. Because we find that the
administrative judge erroneously found that the appellant made protected
disclosures, we VACATE the initial decision and DENY the appellant’s request
for corrective action.
BACKGROUND
The appellant worked for the agency as a Financial Management Specialist
at Joint Base Andrews. Initial Appeal File (IAF), Tab 1 at 2. In June 2016, the
appellant filed a complaint with the Office of Special Counsel (OSC) alleging
that, in reprisal for making protected disclosures, the agency denied him
opportunities for training in 2015 and did not select him for two positions in
2016. Id. at 8, 13-14. The disclosures included a September 15, 2014 email from
the appellant to his second-level supervisor alleging that his first -level supervisor
violated the Merit Systems Principles on September 12, 2014, when he said aloud
in front of the office that the appellant had a work assignment due by 8 a.m. the
following Monday. IAF, Tab 1 at 13-14, Tab 4 at 9-11. The second disclosure
concerned an October 14, 2015 email from the appellant to his third -level
supervisor claiming that his second-level supervisor violated his privacy rights by
discussing his use of sick leave while on speaker phone with his team leader
present. IAF, Tab 1 at 14, Tab 4 at 12-13. In December 2016, OSC closed the
investigation into the appellant’s complaint with no further action, and this IRA
appeal to the Board followed. IAF, Tab 1 at 2-7, 20-22.
3
After finding jurisdiction over the appeal and holding a hearing, the
administrative judge issued an initial decision denying the appellant’s request for
corrective action. IAF, Tab 40, Initial Decision (ID). The administrative judge
concluded that the appellant met his burden of proving that he exhausted his
administrative remedies with OSC, made protected whistleblowing disclosures
when sending the emails to supervisors on September 15, 2014, and October 14,
2015, and such disclosures were a contributing factor in the agency’s decisions to
deny him training and not select him for the positions at issue. ID at 3-5.
However, the administrative judge further found that the agency proved by clear
and convincing evidence that it would have taken these actions against the
appellant in the absence of his protected disclosures. ID at 5-10. The appellant
has filed a petition for review. Petition for Review (PFR) File, Tab 1. The
agency has responded in opposition, and the appellant has filed a reply. PFR
File, Tabs 4-5.
ANALYSIS
In the absence of an action directly appealable to the Board, only
allegations of protected disclosures and activity, along with personnel actions,
that an appellant first raises and exhausts with OSC may be considered by the
Board in an IRA appeal. 2 See Rebstock Consolidation v. Department of
Homeland Security, 122 M.S.P.R. 661, ¶ 9 (2015); Mason v. Department of
Homeland Security, 116 M.S.P.R. 135, ¶ 8 (2011). In order to prevail on the
merits of an IRA appeal before the Board, an appellant must prove by
preponderant evidence that he made a 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 the disclosure or protected activity was a
contributing factor in the agency’s decision to take or fail to take a personnel
action outlined in 5 U.S.C. § 2302(a)(2)(A). 5 U.S.C. § 1221(e); Salerno v.
2
The appellant does not allege an action directly appealable to the Board in this appeal.
See 5 U.S.C. §§ 4303, 7512.
4
Department of the Interior, 123 M.S.P.R. 230, ¶ 5 (2016). If this burden is met,
the Board must order corrective action unless the agency establishes by clear and
convincing evidence that it would have taken the same personnel action despite
the appellant making the protected disclosure or engaging in the protected
activity. 5 U.S.C. § 1221(e)(2); Carr v. Social Security Administration, 185 F.3d
1318, 1322-23 (Fed. Cir. 1999); Aquino v. Department of Homeland Security ,
121 M.S.P.R. 35, ¶ 10 (2014).
The administrative judge properly determined that the appellant exhausted his
administrative remedies with OSC.
In order for the Board to have jurisdiction over an IRA appeal, the
appellant, amongst other requirements, must first prove by preponderant evidence
that he exhausted his administrative remedies regarding the allegation with OSC.
Salerno, 123 M.S.P.R. 230, ¶ 5; 5 C.F.R. § 1201.57(c)(1). The purpose of this
exhaustion requirement is to give OSC “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). The Whistleblower Protection
Enhancement Act of 2012 provides that, if OSC finds that there is a substantial
likelihood that the information it received discloses a violation of the Act, it
“shall transmit the information to the head of the agency involved for
investigation and report . . . .” Id. (making this finding based on the same
language in the prior Whistleblower Protection Act); see 5 U.S.C. § 1213(b), (c).
These inquiries by OSC, and their transmittal to agencies for remedial action, are
a major component of OSC’s work. Ward, 981 F.2d at 526.
The Board may consider only those disclosures of information and
personnel actions that the appellant raised before OSC. Mason, 116 M.S.P.R.
135, ¶ 8. To satisfy the exhaustion requirement, 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
test of the sufficiency of an appellant’s charge of reprisal for whistleblowing to
5
OSC is the statement that he makes in the complaint requesting corrective action,
not his post hoc characterization of those statements . Id., ¶ 11. An appellant may
demonstrate exhaustion through his initial OSC complaint, evidence that he
amended the original complaint, including but not limited to OSC’s preliminary
determination letter and other letters from OSC referencing any amended
allegations, and the appellant’s written responses to OSC referencing the
amended allegations. Id.
During the adjudication of this appeal before the administrative judge, and
then again on review, the appellant made vague assertions that he included in his
OSC complaint at issue other supposed protected activity, his perceived
whistleblower status, and retaliatory personnel actions. IAF, Tab 19 at 4, 6;
Hearing Compact Disc (HCD) 1 (testimony of the appellant); PFR File, Tab 1
at 15, 22, 24-25. However, as the administrative judge correctly determined, the
appellant only proved that he exhausted administrative remedies with OSC prior
to filing the instant IRA appeal regarding the emails that he sent his supervisors
on September 15, 2014, and October 14, 2015, and the denial of training and
nonselections as outlined above. IAF, Tab 18 at 2; ID at 3-4. As a result, the
Board has no jurisdiction to consider any additional allegations of reprisal that
the appellant puts forth in this appeal. See Boechler v. Department of the
Interior, 109 M.S.P.R. 638, ¶ 13 (2008) (concluding that the Board lacked
jurisdiction in an IRA appeal when the appellant failed to prove that he exhausted
administrative remedies with OSC over the alleged claims), aff’d, 328 F. App’x.
660 (Fed. Cir. 2009) (Table).
The appellant failed to meet his burden of proving that he made a protected
disclosure.
Protected whistleblowing takes place when an appellant makes a disclosure
that he reasonably believes evidences a violation of law, rule, or regulation; gross
mismanagement; a gross waste of funds; an abuse of authority; or a substantial
and specific danger to public health and safety. 5 U.S.C. § 2302(b)(8)(A);
6
DeLeonardo v. Equal Employment Opportunity Commission, 103 M.S.P.R. 301,
¶ 6 (2006). The appellant need not prove that the condition disclosed actually
established a violation of law, rule, or regulation; gross mismanagement of funds;
a gross waste of funds; an abuse of authority; or a substantial and specific danger
to public health or safety. Peterson v. Department of Veterans Affairs,
116 M.S.P.R. 113, ¶ 11 (2011). The test for determining whether the appellant
had a reasonable belief that his disclosure was protected is whether a
disinterested observer with knowledge of the essential facts, known to and readily
ascertainable by the appellant, could reasonably conclude that the actions of the
Government evidence one of the categories of wrongdoing noted above. Id.The appellant’s first disclosure is not protected.
The appellant claimed that the first disclosure, his September 15, 2014
email that he sent to his second-level supervisor, is protected because it identifies
violations of the Merit System Principles codified at 5 U.S.C. § 2301. IAF, Tab 1
at 13-14, Tab 4 at 4, 9-11. According to the appellant, the supposed wrongdoing
exposed is how his first-level supervisor acted unprofessionally and advised him
loudly in the workplace of the due date of a single assignment tasked to him.
IAF, Tab 1 at 13-14, Tab 4 at 4, 9-11. On the day in question, the appellant states
that, as he was leaving the office for the week, his first-level supervisor said to
him, “I want that report by 8 o’clock on Monday morning,” then stated words to
the effect of, “when we tell you something, you need to do it.” IAF, Tab 4 at 10.
The appellant was aware of what assignment was at issue and that it was indeed
to be completed as informed. Id. at 9-11; HCD 1 (testimony of the appellant).
There is no evidence of any confidential personnel matter discussed in the
presence of others. There was no criticism or critique of the appellant’s work;
rather, just a reminder of a due date and an axiomatic statement that, absent
circumstances not present here, employees need to comply with supervisory
instructions. IAF, Tab 4 at 10. It is the supervisor’s responsibility to remind
7
employees of assignment due dates. 3 The Merit System Principles outlined at
5 U.S.C. § 2301 set the general guidelines for Government agencies in the
management of personnel, providing for the fair and equitable treatment of
employees without regard to prohibited reasons, and setting other aspirational
standards in areas such as recruitment, pay, retention, performance, and training.
The supposed offense alleged by the appellant is at best only tangentially related
to the standards set forth in section 2301.
The appellant certainly disagreed with his supervisor’s handling of this
situation. At most, however, his purported disclosure involved his questioning of
a management action that is merely debatable or nominally unprofessional. It is
well-settled that, with nothing more, disclosures of this type of behavior are not
protected. The whistleblower protection statutes were not intended to turn every
failure to exercise perfect management behavior into the subject of a
whistleblowing complaint. See Frederick v. Department of Justice, 73 F.3d 349,
353 (Fed. Cir. 1996) (finding that, if supervisors fear that every trivial lapse in
their own behavior will be the subject of a whistleblowing complaint, they will be
deterred from performing their duties). In sum, with his almost four decades of
Government service, we find that the appellant could not have reasonably
believed that he was exposing wrongdoing as defined in the whistleblower
protection statutes when he advised his second-level supervisor that his first-level
supervisor reminded him in front of others of the due date of an assignment
tasked to him.
The appellant’s second disclosure is not protected.
Moving to the other disclosure, in his October 14, 2015 email to his
third-level supervisor, the appellant alleged that his second-level supervisor
3
It is commonplace in the Federal government for employees within an office to have
access to the deadlines of projects assigned to others. For example, a case tracking
system often readily indicates when briefs or other legal documents are due, and a
project management application often shows when reports are due.
8
violated his privacy rights by discussing his use of sick leave while on speaker
phone with his team leader present. IAF, Tab 1 at 14, Tab 4 at 4-5, 12-13.
During this conversation, the appellant’s second-level supervisor called the
appellant in the appellant’s team leader’s presence to ascertain the appellant’s
duty status, as they were not aware that he was on sick leave. 4 IAF, Tab 4
at 12-13. After the appellant informed his second-level supervisor that he was
out for the day, the second-level supervisor asked if the appellant planned to be at
work the following day and then instructed the appellant to inform the office of
his absence. Id.There is no evidence that the appellant’s second-level supervisor discussed
any confidential health or personnel matters on this call. While an employee
might have a privacy interest in not having his usage of sick leave shared with
those without a need to know, as the appellant conceded, his supervisors and team
leader bore the responsibility to know his work status. HCD 1 (testimony of the
appellant). The appellant also testified that he was pleased with how the office
procedures changed shortly after this incident because employees now have to
notify their team leader when they are requesting sick leave, which weighs
against him reasonably believing that it was improper for his supervisor to
discuss his use of sick leave in the presence of his team leader. Id. Thus, we find
that the appellant did not reasonably believe that he disclosed a violation of law,
rule, or regulation; gross mismanagement; a gross waste of funds; an abuse of
authority; or a substantial and specific danger to public health and safety.
For the forgoing reasons, the appellant’s disclosures at issue in this appeal
were not protected, meaning his request for corrective action must be denied on
these grounds. See Kleckner v. Department of Veterans Affairs , 96 M.S.P.R. 331,
¶ 7 (2004) (denying the appellant’s request for corrective action in his IRA
appeal, as he did not prove by preponderant evidence that his disclosures were
4
Although the conversation took place on a speaker phone, there is no specific
allegation that another employee overheard the conversation.
9
protected). As such, we need not determine whether the appellant met his burden
of proving that such disclosures were a contributing factor to the contested
personnel actions or whether the agency proved by clear and convincing evidence
that it would have made the same decisions in the absence of the disclosures. See
Harvey v. Department of the Navy, 92 M.S.P.R. 51, ¶ 5 n.3 (2002) (holding that,
because the appellant did not prove his prima facie case of whistleblower reprisal,
there was no need to determine whether the agency met its clear and convincing
standard).
The appellant failed to raise any other basis to grant his petition for review.
On review, the appellant alleges that the administrative judge committed
various errors, such as denying his motions to compel and to sanction the agency
for not complying with discovery, unduly denying his request for witnesses to
testify at hearing, and acting inappropriately during the hearing. PFR File, Tab 1
at 4-6, 19-22. However, the purported rulings and evidence that the appellant
claims that he would have gained from his motions being granted and witnesses
approved have no impact on the dispositive finding that he failed to make a
protected disclosure. Notwithstanding, we have reviewed the record and
conclude that the denial of the appellant’s discovery-related motions was not an
error or abuse of discretion by the administrative judge. See Vores v. Department
of the Army, 109 M.S.P.R. 191, ¶ 14 (2008) (stating that administrative judges
have broad discretion in regulating discovery and, absent a showing of an abuse
of discretion, the Board will not find reversible error), aff’d, 324 F. App’x. 883
(Fed. Cir. 2009). Further, the denial of a number of the appellant’s requested
witnesses on relevance grounds was appropriate. 5 See Miller v. Department of
Defense, 85 M.S.P.R. 310, ¶ 8 (2000) (outlining how an administrative judge has
wide discretion to control the proceedings, including authority to exclude
5
The administrative judge did approve six of the appellant’s requested witnesses to
testify at the hearing. IAF, Tab 28 at 2.
10
testimony she believes would be irrelevant or immaterial). Additionally, we see
no indication that the administrative judge acted improperly during the hearing.
Similarly, the appellant’s arguments on review regarding supposed errors in
the administrative judge’s credibility determinations and analysis of the agency’s
actions under the Carr factors need not be addressed further, as they are unrelated
to the overall conclusion that the appellant’s request for corrective action must be
denied due to his failure to make a protected disclosure. PFR File, Tab 1 at 6-19,
23-24; see, e.g., Cole v. Department of Veterans Affairs, 77 M.S.P.R. 434, 439
(1998) (holding that a remand was unnecessary, as the issues to be adjudicated by
the Board on review did not require credibility determinations); see also Buckler
v. Federal Retirement Thrift Investment Board, 73 M.S.P.R. 476, 496 (1997)
(holding that, because the appellant did not meet each of his merit requirements,
no consideration was necessary as to whether the agency showed by clear and
convincing evidence that it would have taken the same action despite the
appellant’s protected disclosure).
NOTICE OF APPEAL RIGHTS 6
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
6
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.
11
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
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
12
(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:
13
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. 7 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).
7
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.
14
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.