James M DeNofrio v. Department of Veterans Affairs ( 2024 )

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
JAMES MICHAEL DENOFRIO, DOCKET NUMBER
Appellant, PH-1221-19-0038-W-1
v.
DEPARTMENT OF VETERANS DATE: September 19, 2024
AFFAIRS,
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Stephen D. Wicks , Esquire, Altoona, Pennsylvania, for the appellant.
Marcus S. Graham , Esquire, Pittsburgh, Pennsylvania, for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
Henry J. Kerner, Member*
*Member Kerner recused himself and did not participate in the adjudication
of this appeal.
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
denied his request for corrective action in this individual right of action (IRA)
appeal. Generally, we grant petitions such as this one only in the following
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
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
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 as expressly MODIFIED to
supplement the administrative judge’s findings of fact and apply the appropriate
analytical framework, we AFFIRM the initial decision.
BACKGROUND
At the time relevant to this appeal, the appellant held the position of
Administrative Officer for an agency facility in Altoona, Pennsylvania. Initial
Appeal File (IAF), Tab 1 at 1. He has filed multiple complaints with the Office
of Special Counsel (OSC), alleging that he was subject to whistleblower reprisal.
Id. at 8. In a letter dated September 2018, OSC closed one of those complaints
and advised the appellant of his Board appeal rights. Id. at 34-37. This timely
IRA appeal followed. Id. at 1-6. After developing the record and holding a 3-day
hearing, the administrative judge issued an initial decision. IAF, Tab 53, Initial
Decision (ID).
The administrative judge first found that the appellant met his burden of
proving that he made protected disclosures and engaged in protected activities.
ID at 4-5, 23-24. As further detailed in the initial decision, this included (1) prior
OSC complaints, (2) prior Board appeals, (3) an email to Congress about the
Altoona Director instructing staff to not provide testimony or respond to
3
subpoenas, (4) emails to Congressional staff about health and safety concerns at
the Altoona facility, and (5) a complaint with the agency’s Office of Inspector
General (OIG) alleging a violation of policy regarding the timely discharge of
patients. ID at 4-5.
The administrative judge next found that the appellant proved the
contributing factor criterion for two nonselections and an alleged hostile work
environment. ID at 24-25. Nevertheless, he found that the appellant was not
entitled to corrective action.
Regarding the nonselections, the administrative judge found that the agency
rebutted the appellant’s prima facie case of reprisal. ID at 25-30. Regarding the
hostile work environment claim, the administrative judge found that most of the
alleged harassment was not attributable to the appellant’s protected disclosures or
activities, ID at 30-35, and the only exception did not rise to the level of
actionable harassment, ID at 35-37.
The appellant has filed a petition for review. Petition for Review (PFR)
File, Tab 1. In this petition, the appellant challenges the administrative judge’s
findings regarding one of the two nonselections adjudicated in this appeal—his
nonselection to the Program Specialist position. 2 Id. at 4-8, 17-18. He also
challenges the administrative judge’s finding regarding his claim of a retaliatory
hostile work environment. Id. at 8-19. Finally, the appellant submits new
evidence, id. at 25-68, along with arguments that we should consider this new
evidence for the first time on review, id. at 19-24. The agency has filed a
response to the appellant’s petition. PFR File, Tab 3.
2
Because the appellant has not presented any arguments regarding his nonselection for
the Program Analyst position and the administrative judge’s findings about the same,
we will not revisit that matter.
4
DISCUSSION OF ARGUMENTS ON REVIEW
After establishing jurisdiction in an IRA appeal, an appellant has the
burden of proving by preponderant evidence 3 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
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).
Salerno v. Department of the Interior, 123 M.S.P.R. 230, ¶ 5 (2016). If the
appellant meets this burden, the agency is given an opportunity to prove, by clear
and convincing evidence, 4 that it would have taken the same personnel action in
the absence of the protected disclosure or activity. Id.In determining whether the agency has met its burden of proving that it
would have taken the same personnel action in the absence of an appellant’s
protected disclosures or activities, 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 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 v. Social Security Administration, 185 F.3d 1318, 1323 (Fed. Cir. 1999).
The Board does not view these factors as discrete elements, each of which the
agency must prove by clear and convincing evidence, but rather, the Board will
weigh the factors together to determine whether the evidence is clear and
convincing as a whole. Phillips v. Department of Transportation,
113 M.S.P.R. 73, ¶ 11 (2010). In addition, the Board is mindful that “[e]vidence
3
Preponderant 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).
4
Clear and convincing evidence is that measure or degree of proof that produces in the
mind of the trier of fact a firm belief as to the allegations sought to be established; it is
a higher standard than preponderant evidence. 5 C.F.R. § 1209.4(e).
5
only clearly and convincingly supports a conclusion when it does so in the
aggregate considering all the pertinent evidence in the record, and despite the
evidence that fairly detracts from that conclusion.” Whitmore v. Department of
Labor, 680 F.3d 1353, 1368 (Fed. Cir. 2012).
Once more, the administrative judge found that the appellant proved that he
made protected disclosures and engaged in protected activities. ID at 4-5, 23-24.
The administrative judge also found that the knowledge/timing test was satisfied
for the alleged personnel actions at issue in this appeal—two nonselections and a
hostile work environment. ID at 24-25; see Ayers v. Department of the Army,
123 M.S.P.R. 11, ¶ 25 (2015) (explaining that an appellant can prove the
contributing factor element by showing that the official taking the personnel
action knew of the protected disclosure or activity within a period of time such
that a reasonable person could conclude that the protected disclosure or activity
was a contributing factor in the personnel action). These findings are not
disputed on review.
The arguments on review are limited to the following: First, did the agency
prove by clear and convincing evidence that its nonselection of the appellant for
the Program Specialist position would have occurred in the absence of the
appellant’s protected disclosures and activities? Second, did the appellant prove
that he was subject to harassment or any other change that rose to the level of an
actionable “personnel action” and, if so, did the agency prove that the same
personnel action would have occurred in the absence of the appellant’s protected
disclosures and activities?
The agency rebutted the appellant’s prima facie case of reprisal regarding his
nonselection to the Program Specialist position.
The administrative judge found that the appellant met his burden of
establishing a prima facie case of reprisal regarding his nonselection to the
Program Specialist position. ID at 23-25; see King v. Department of the Army ,
116 M.S.P.R. 689, ¶ 10 (2011) (recognizing that a nonselection constitutes a
6
personnel action under the whistleblower statute). This finding is not disputed on
review. Therefore, it became the agency’s burden to prove by clear and
convincing evidence that the same nonselection would have occurred in the
absence of the appellant’s protected disclosures and activities.
The following facts about this nonselection, as explained by the
administrative judge and documented throughout the record, appear to be
undisputed: The appellant was among the 13 candidates who received an initial
interview for the Program Specialist vacancy. ID at 6. A three-member panel
conducted those initial interviews, asking each candidate the same questions, as
each panel member separately rated their answers. ID at 6-7; IAF, Tab 11
at 56-79. Of the initial interviewees, two panel members gave the appellant the
third-highest score, and one panel member gave the appellant the fourth-highest
score. ID at 7; IAF, Tab 11 at 53. With the scores across panel members
combined, the appellant had the third-highest score of those interviewed for the
Program Specialist position. ID at 7; IAF, Tab 11 at 53. At the next step in the
selection process, the initial interview panel members forwarded only the two
highest scoring candidates—which did not include the appellant—to the selecting
official for a second interview. ID at 8. The selecting official conducted those
two interviews and made a selection. Id.In analyzing whether the agency met its burden of proving that this
nonselection would have occurred in the absence of the appellant’s protected
disclosures and activities, the administrative judge considered each member of
the initial interview panel and the selecting official. ID at 26-29. Of the initial
interview panel members, she found that one had no knowledge of the appellant’s
whistleblowing and there was no indication that he was influenced by someone
who did. ID at 27.
The administrative judge next found that the other two initial interview
panel members admitted that they had knowledge of the appellant’s
whistleblowing, but credibly testified that they did not discuss his whistleblowing
7
or otherwise let it influence the selection process. ID at 9, 27-28. The
administrative judge further found that the scores among panel members did not
suggest retaliation, since those with and without knowledge of the appellant’s
whistleblowing scored him similarly and all gave him high marks; none gave him
lower marks that might indicate an attempt to sabotage the appellant. ID at 28.
Lastly, the administrative judge found that these panel members did not have any
discernable motive to retaliate because they were not implicated by the
appellant’s whistleblowing activity and they did not work at the Altoona facility
at the time of the selection process. ID at 27-28.
Regarding the selecting official—the Director of the Altoona facility—the
administrative judge made several findings. Most notably, he found that there
was no indication that the selecting official had any input on the narrowing of
candidates to exclude the appellant from further consideration. ID at 26-27. The
administrative judge also indicated that, although the selecting official was
implicated by some of the appellant’s whistleblowing activity, that
whistleblowing occurred after the nonselection. ID at 26.
On review, the appellant argues that the administrative judge made several
errors or omissions of fact, PFR File, Tab 1 at 4-8, and therefore failed to comply
with the requirements of Carr and Whitmore, id. at 17-18. As further described
below, we modify the initial decision to supplement the administrative judge’s
findings while agreeing with his conclusion that the agency met its burden.
The appellant first argues that one of the panel members with knowledge of
his status as a whistleblower worked at the Altoona facility during the relevant
period, despite the administrative judge indicating otherwise. Id. at 4-5(referencing ID at 27). In particular, the official had left his permanent position
at a Pittsburgh facility for a detail assignment as the Executive Assistant to the
Altoona Director at the time of the appellant’s interview. Id. On this point, the
evidence supports the appellant’s assertion. According to deposition testimony
from this official, he served as the Executive Assistant from January through
8
March 2018, and the appellant’s interview occurred in the intervening month of
February. IAF, Tab 11 at 51-52, Tab 41 at 62, 82-83.
Next, the appellant argues that the administrative judge was correct to note
that this member of the initial interview panel—the Executive Assistant—made
the decision to forward only the top two scoring interviewees to the Director for a
final selection before any interview had occurred, but the administrative judge
failed to note that he did so in concert with the Director, and that the Executive
Assistant would ultimately reveal all the initial interview scores to the Director
while forwarding only the top two for selection. PFR File, Tab 1 at 5-6
(referencing IAF, Tab 11 at 44-45, Tab 41 at 107-08). On these points, the
evidence again supports the appellant’s assertion. When asked why he forwarded
only the top two candidates from the initial interviews for further consideration,
the Executive Assistant indicated that this process had been made in consultation
with the Director. IAF, Tab 41 at 107-08. But he also said this process was
consistent with past practice at both the Altoona facility and the Pittsburg facility,
where he had been working previously. Id. As for the appellant’s latter point, an
email from the Executive Assistant to the Director contains text that recommends
the top two candidates receive a second interview, along with an attachment that
seems to include all interview scores. IAF, Tab 11 at 44.
The appellant also argues that the Director had knowledge of the
appellant’s whistleblowing and a motive to retaliate prior to the nonselection,
despite the administrative judge indicating otherwise. PFR File, Tab 1 at 6-7
(referencing ID at 26). Once again, the appellant’s assertion has merit. Among
other things, the record includes a news article dated months before the
appellant’s nonselection that describes the appellant’s whistleblowing, along with
the Director’s involvement in the matters underlying his whistleblowing. IAF,
Tab 27 at 83. It also includes an email chain in which the Director discusses this
new article. IAF, Tab 38 at 13-14.
9
The agency has not disputed these facts, as described in this portion of the
appellant’s petition. PFR File, Tab 3 at 6-7. Instead, the agency argues that these
matters to which the appellant has pointed do not warrant a different result. Id.We agree.
Of the three members of the initial interview panel, which would ultimately
exclude the appellant from further consideration, two had some knowledge of the
appellant’s status as a whistleblower. It is possible these officials could have
held some institutional motive to retaliate. See Whitmore, 680 F.3d at 1370(recognizing that “[t]hose responsible for the agency’s performance overall may
well be motivated to retaliate even if they are not directly implicated by the
disclosures, and even if they do not know the whistleblower personally, as the
criticism reflects on them in their capacities as managers and employees”). But
we are aware of nothing that would support a conclusion that they had a personal
motive to retaliate, or that any institutional motive was significant. One panel
member worked at a different facility and, as the appellant has noted, the other
panel member had only recently joined the Altoona facility for a detail
assignment. E.g., IAF, Tab 41 at 62, 82-83.
The administrative judge found that the initial interview panel members
credibly testified that they did not discuss the appellant’s status as a
whistleblower and that they did not allow his whistleblower status to influence
their decisions. ID at 27-28. We discern no basis for disturbing that credibility
determination. See Haebe v. Department of Justice, 288 F.3d 1288, 1301 (Fed.
Cir. 2002). The documentary record also demonstrates that panel members with
and without knowledge of the appellant’s whistleblowing treated the appellant
and all other candidates similarly, both in terms of the interview process and their
scoring. IAF, Tab 11 at 56-79. Each rated the appellant highly, just not quite
high enough for him to be among the top two forwarded on for further
consideration. Id. at 53.
10
As for the Director, who was the selecting official for the Program
Specialist vacancy, the record reflects a significant motive to retaliate because
some of the appellant’s protected disclosures and activities alleged that she had
engaged in wrongdoing. E.g., IAF, Tab 27 at 83. However, the Director
essentially lacked any opportunity to retaliate against the appellant with respect
to the Program Specialist vacancy because the initial interview panel acted alone
in eliminating the appellant from further consideration. IAF, Tab 11 at 44, 53.
It seems as if the appellant’s theory is that the Director may have conspired
with or otherwise influenced one or more of the initial interview panel members
to ensure his nonselection. We have carefully considered this possibility because
of the Director’s significant motive to retaliate. However, clear and convincing
evidence supports a different conclusion. The record supports a finding that these
individuals acted independently, without any meaningful input or influence from
the Director. It further supports a finding that they had little to no motive to
retaliate, and those with and without knowledge of the appellant’s whistleblowing
rated him similarly—better than most candidates but just outside of the top two
who would be further considered for the Program Specialist position.
Accordingly, as modified by our analysis above, we agree with the administrative
judge’s conclusion. Although the appellant presented a prima facie case of
reprisal regarding this nonselection, the agency has met its burden of proving by
clear and convincing evidence that the appellant’s nonselection for the Program
Specialist position would have occurred in the absence of his protected
disclosures and activities.
The appellant failed to prove that he was subject to a significant change in duties,
responsibilities, or working conditions.
The other alleged personnel action adjudicated below and raised again on
review was a hostile work environment. E.g., IAF, Tab 46 at 5-6; ID at 3. For
this claim, the administrative judge first described the facts surrounding four
categories of harassment or improprieties the appellant alleged: (a) the agency
11
stripped the appellant’s Administrative Officer duties for a period of time,
(b) agency employees professionally and personally shunned him,
(c) management encouraged others to file complaints against the appellant, and
(d) the agency placed the appellant under a formal investigation. ID at 3, 11-22.
Next, the administrative judge found that the knowledge/timing test was satisfied
for these instances of alleged harassment, ID at 25, but that only the management
encouragement of complaints against the appellant was retaliatory, and that it did
not rise to the level of an actionable personnel action, ID at 30-37.
As further explained below, we find that the administrative judge erred in
how he addressed this claim. Using the proper analytical framework, we find that
the appellant failed to prove that he was subject to a personnel action, as that term
is defined in the whistleblower statute. Therefore, the appellant failed to meet his
burden for this claim, and we need not shift the burden to the agency for the
matter. See Clarke v. Department of Veterans Affairs, 121 M.S.P.R. 154, ¶ 19
n.10 (2014) (recognizing that the Board may not proceed to the clear and
convincing evidence test unless it has first determined that the appellant
established his prima facie case), aff’d, 623 F. App’x 1016 (Fed. Cir. 2015).
The administrative judge correctly noted that the whistleblower statute’s
definition of a personnel action includes, inter alia, a “significant change in
duties, responsibilities, or working conditions” and that phrase must be
interpreted broadly. 5 U.S.C. § 2302(a)(2)(A)(xii); ID at 30 (citing Savage v.
Department of the Army, 122 M.S.P.R. 612, ¶ 23 (2015), overruled in part by
Pridgen v. Office of Management and Budget, 2022 MSPB 31, ¶¶ 23-25). During
the period that followed the administrative judge’s initial decision, we issued a
decision that further clarified the matter, particularly as it relates to allegations of
a hostile work environment. See Skarada v. Department of Veterans Affairs ,
2022 MSPB 17.
In Skarada, we explained that although the term “hostile work
environment” has a particular meaning in some other contexts, allegations of a
12
hostile work environment may only establish a personnel action under the
whistleblower statute if they meet the statutory criteria, i.e., a significant change
in duties, responsibilities, or working conditions. Id., ¶ 16. And while the
“significant change” personnel action should be interpreted broadly to include
harassment and discrimination that could have a chilling effect on whistleblowing
or otherwise undermine the merit system, only agency actions that, individually
or collectively, have practical and significant effects on the overall nature and
quality of an employee’s working conditions, duties, or responsibilities will be
found to constitute a personnel action covered by section 2302(a)(2)(A)(xii). Id.
The circumstances of Skarada are worth summarizing for the sake of
comparison with the facts of the instant appeal. In Skarada, the appellant alleged
that his chain of command directed him to stop attending leadership meetings and
performing extra duties, and excluded him from the hiring process for two of his
new subordinates. Id., ¶ 17. However, we found that these appeared to be
collateral duties and the appellant failed to prove that these changes were
significant, as required to constitute a personnel action under the whistleblower
statute. Id., ¶¶ 24-25.
The appellant in Skarada also alleged that the agency excluded him from
meetings and conversations, subjected him to multiple investigations, accused
him of improprieties, refused his request for review of his position for a possible
upgrade, yelled at him on multiple occasions, and failed to provide him with
adequate support. Id., ¶ 18. For those matters, the Board similarly found that the
appellant failed to prove that he was subject to a personnel action. Id., ¶¶ 26-29.
We explained that, although he presented evidence in support of many of his
allegations, the appellant in Skarada failed to prove by preponderant evidence
that the agency’s actions constituted harassment to such a degree that his working
conditions were significantly and practically impacted. Id., ¶ 29. Put another
way, the appellant may have established an unpleasant or unsupportive work
13
environment, but he did not prove that he suffered a significant change in
working conditions. Id.
Turning back to the circumstances at issue in the instant appeal, the
administrative judge erred by considering whether the alleged harassment was
retaliatory before deciding whether the alleged harassment constituted a
personnel action. Nevertheless, we agree with his findings of fact, and we
conclude that the appellant failed to establish agency actions that, individually or
collectively, amounted to a personnel action.
Stripping the appellant of duties.
Regarding the alleged changes in his duties in or around April 2018, the
administrative judge recounted how the appellant claimed that numerous tasks
were stripped from him, resulting in his workload going from approximately
8 hours per day, to about 1 hour per day. ID at 11-12. In contrast, the individual
responsible for changes in his duties at that time—the Acting Chief of Physical
Medicine and Rehabilitation Service—provided a different description of the
circumstances. ID at 13-14. Broadly speaking, the Acting Chief testified that she
had never served as an Acting Chief before, she took over that role while still
responsible for her regular position as Supervisor of Care, she had a limited
understanding of the appellant’s role, she did not fully understand how to utilize
him, and she did not intentionally strip him of any duty. ID at 13.
The Acting Chief went on to contest the appellant’s more specific
allegations. For example, although the appellant claimed that the Acting Chief
stripped him of his role in the budget process, the Acting Chief indicated that she
was not asked to submit a budget during her tenure and she knew nothing about
one being required, which would explain why she never gave the appellant any
associated tasks. Id. In another example, the Acting Chief acknowledged that the
appellant was not included in certain action item requests from the front office,
but she explained that this was a lapse caused by the action item emails from the
front office not being sent to her team, which the Acting Chief remedied once she
14
learned of the problem. ID at 13-14. As for the appellant’s allegations that he
had been appointed to certain building and expansion projects but was then
excluded from them by the Acting Chief, the Acting Chief disagreed. ID at 14.
The Acting Chief indicated that while she did not ask the appellant to attend all
meetings associated with these projects, she kept him apprised of the same. Id.
Finally, the Acting Chief denied the appellant’s claim that he was excluded from
participating in Medical Center Memorandums. According to the Acting Chief,
there was only one Medical Center Memorandum that the appellant was not
initially involved in, and that was simply because another individual—a Physical
Therapist—had volunteered for the Memorandum involving a new wellness
project. Id.
The administrative judge did not explicitly find that the appellant’s
testimony was not credible. However, he did find the Acting Chief’s contrary
explanation of the circumstances credible and valid for several reasons. ID
at 31-32. The administrative judge also noted that other testimony contradicted
some of the appellant’s testimony about these matters. In particular, the appellant
testified that the Acting Chief’s eventual replacement restored his stripped duties
and revealed to the appellant that the Director had given instructions for the
appellant to be targeted. ID at 12. However, the Acting Chief’s replacement
testified that he received no such instruction and relayed nothing of the sort to the
appellant. Id.
On review, the appellant argues that when the administrative judge credited
the Acting Chief’s explanations of her lacking familiarity with the appellant’s
role, the administrative judge failed to consider inconsistencies between her
hearing testimony and deposition testimony. PFR File, Tab 1 at 8-10
(referencing, e.g., IAF, Tab 42 at 56, Tab 47, Hearing Recording, Day 2 (HR2)
(testimony of Acting Chief). We are not persuaded.
The evidence the appellant relies on does suggest that the Acting Chief had
some understanding of the appellant’s position when she took over as Acting
15
Chief. E.g., IAF, Tab 42 at 56; HR2 at 4:08 (testimony of Acting Chief). But it
also supports a conclusion that she lacked a detailed understanding of his position
and his involvement in certain projects, and she also lacked a prior working
relationship with the appellant, all of which contributed to the temporary changes
or lapses that did occur. E.g., IAF, Tab 42 at 58-64; HR2 at 4:09-4:11 (testimony
of Acting Chief).
We supplement the administrative judge’s findings to conclude that,
although the appellant generally described an extreme change in his duties or
working conditions—from 8 hours of work per day to 1 hour of work per day—
documentary evidence is more consistent with the type of minor changes a
subordinate might encounter as they begin working for a new supervisor,
particularly when that new supervisor is taking on a new and unfamiliar
workload. For example, documents the appellant describes as evidence that he
was removed from a particular building project merely consist of a couple cursory
emails about the project in which the appellant is not copied. IAF, Tab 26 at 21,
Tab 40 at 4-7. Other documentary evidence he submitted about other changes to
his duties similarly supports the Acting Chief’s explanation and gives no
indication that the appellant suffered the extreme change in duties he alleges.
E.g., IAF, Tab 26 at 21-22, Tab 40 at 8-11, Tab 41 at 13-21. Given the record
before us, the appellant has not proven by preponderant evidence that changes to
his duties and working conditions during the Acting Chief’s tenure were
significant.
Professional and personal shunning.
The next category of alleged harassment was the appellant’s report of being
professionally and personally shunned. For this, the administrative judge simply
indicated that the record suggested many employees disliked the appellant, but
the appellant did not offer any documentation or testimony to show that
management sought to actively harass him by encouraging staff to avoid him. ID
at 14.
16
On review, the appellant presents 15 points in support of his claim of being
professionally and personally shunned. PFR File, Tab 1 at 10-13. Many mirror
those addressed in one of the other categories of alleged harassment, such as the
allegation that the Acting Chief stripped him of duties, so we will not address
them again. Many more concern matters occurring after OSC closed its
complaint and are, therefore, outside the purview of this appeal. See Mason v.
Department of Homeland Security, 116 M.S.P.R. 135, ¶¶ 8-9 (2011) (explaining
the exhaustion requirement for IRA appeals, which prevents the Board from
considering alleged personnel actions that were not raised before OSC); compare
IAF, Tab 1 at 34-37 (OSC’s September 2018 closeout letter), with PFR File,
Tab 1 at 12-13 (appellant describing numerous complaints he reported to
management between October 2018 and January 2019, including one about his
November 2018 performance appraisal), and IAF, Tab 46 at 5 (prehearing order
finding that the appellant’s November 2018 performance appraisal was outside
the purview of this appeal).
For the few points that remain regarding the allegation that he was
professionally and personally shunned, the appellant’s arguments on review
provide no basis for reaching a conclusion different from that of the
administrative judge. To illustrate, the appellant has directed us to his own
deposition testimony, where he described one coworker walking away from him,
another giving him the middle finger, and his supervisor deleting some of his
emails without reading them. PFR File, Tab 1 at 11 (referencing IAF, Tab 24
at 15). He also asserts that agency officials encouraged an agency employee to
harass him on private social media accounts. PFR File, Tab 1 at 13 (referencing
IAF, Tab 24 at 15). However, he has not directed us to preponderant evidence
that these instances of alleged harassment both occurred and rose to the level of a
personnel action.
17
Management encouraged complaints.
Regarding the appellant’s allegation that management encouraged others to
file complaints against him, the administrative judge detailed the underlying
facts, which we will briefly summarize. First, the appellant was involved in an
analysis of new qualifications for the agency’s Physical Therapists, after which a
group of Physical Therapists lodged an April 2018 complaint about that analysis
and several other issues. ID at 14-18. As a result, the agency convened the fact-
finding inquiry that will be discussed below. ID at 19-20. During her interview
of several staff members, the investigator responsible for that fact-finding inquiry
—a Human Resources Specialist who normally worked at an agency facility on
the other side of the country—identified the appellant and one other individual as
whistleblowers, and she informed the interviewees that they should consider
filing complaints against the appellant and the other whistleblower. ID at 20-21.
According to the investigator, she did so for their benefit after learning that the
appellant had been naming others in social media posts. ID at 21. The appellant
asserted that this led to several additional complaints against him. Id.The administrative judge found nothing nefarious about the initial
complaints that led to the formal fact-finding inquiry and found no indication that
the complaints were encouraged by management. ID at 33-34. Instead, he found
that the appellant provided what seemed to be correct analysis about the Physical
Therapists’ qualification standards, and the Physical Therapists responded in an
unsurprising way, as they advocated for themselves regarding qualifications to
attain the next grade level. Id.On the other hand, the administrative judge found that the investigator
tasked with investigating the Physical Therapists’ complaints did encourage
additional complaints against the appellant and did identify him as a
whistleblower, which the administrative judge described as bizarre and highly
unprofessional. ID at 35-36. Nevertheless, the administrative judge further
18
found that this and any resulting investigation did not constitute a personnel
action under the whistleblower statute. ID at 36-37.
In his petition for review, the appellant reasserts that the original
complaints were also encouraged by management. PFR File, Tab 1 at 16-17
(referencing ID at 33). However, it seems as if his accompanying arguments and
references to evidence of record do not concern the original complaints. They
instead concern the resulting investigation, during which the administrative judge
found that the investigator did encourage complaints against the appellant. E.g.,
IAF, Tab 14 at 543, Tab 32 at 9. More importantly, the appellant has not
presented anything to warrant us reaching a conclusion different from that of the
administrative judge regarding the significance of management’s actions and the
encouragement of complaints.
The agency placed the appellant under a formal fact-finding inquiry.
Pertaining to the allegation that the agency placed the appellant under the
formal fact-finding inquiry mentioned above, the administrative judge provided
additional details. ID at 15-22. Among other things, he noted that the inquiry
covered 11 issues, only 1 of which involved the appellant. ID at 19. That lone
issue involving the appellant was an allegation that the appellant and another
agency official were limiting the professional development of the agency’s
Physical Therapists. Id.On review, the appellant argues that the administrative judge’s description
of the facts surrounding this claim are mistaken in that the judge failed to
acknowledge how the Physical Therapists learned of the appellant’s analysis
regarding their qualifications. PFR File, Tab 1 at 14. While the administrative
judge indicated that it was not clear how they came to learn of the appellant’s
analysis, the appellant insists that the record shows they learned of his analysis
through a certain agency official—the Associate Director for Operations. Id.(referencing ID at 16-17). We recognize that the appellant has pointed to at least
some evidence to support this contention. E.g., IAF, Tab 14 at 130-31. However,
19
the appellant has not presented any persuasive explanation for why this is
particularly relevant. The qualification standards of the agency’s Physical
Therapists were a matter of discussion among interested parties, e.g., IAF, Tab 29
at 4-10, leading to disagreement and complaints by the Physical Therapists who
were seeking advancement to the next grade level, e.g., IAF, Tab 31 at 9-11. The
inclusion of the appellant’s analysis of the matter, which the administrative judge
found to be correct, appears rather innocuous, even if that led to the Physical
Therapists including the appellant in their complaints about leadership limiting
their advancement. ID at 33.
The appellant also presents an argument about the scope of the fact-finding
inquiry and the administrative judge’s discussions about the same. PFR File,
Tab 1 at 15-16 (referencing ID at 20, 34). However, as the administrative judge
noted, the investigation resulted in a determination that the appellant had not
engaged in any wrongdoing. ID at 34; see IAF, Tab 16 at 57-60. Therefore, the
relevance of the appellant’s arguments about the scope of the investigation is not
apparent.
In sum, the record supports a conclusion that the appellant underwent some
changes in duties during the period in which he served under an Acting Chief. It
also supports a conclusion that the appellant perceives his working environment
as one in which he is not supported. Finally, the record supports a conclusion
that the appellant was one of the subjects of a fact-finding inquiry, during which
an investigator encouraged others to file complaints against the appellant, but this
did not result in the appellant being disciplined or subject to any other notable
repercussions. We have considered these matters individually and collectively.
After doing so, we find that although the appellant may have established an
unpleasant or unsupportive work environment, he did not prove that he was
subject to a significant change in duties, responsibilities, or working conditions.
Therefore, the appellant has failed to meet his prima facie burden of proof for this
claim.
20
The evidence submitted for the first time on review does not warrant a different
result.
As mentioned above, the appellant submitted a series of documents that he
did not present below. PFR File, Tab 1 at 25-68. He argues that the agency
should have provided each in response to his discovery requests, but the agency
failed to do so. Id. at 19-20. Instead, the agency provided the appellant with the
documents after the record closed below, in response to a Freedom of Information
Act request. Id. In its response, the agency does not directly address the
appellant’s assertion that the agency should have provided these documents in
response to his discovery requests. The agency simply argues that these
documents submitted for the first time on review have no bearing on this appeal.
PFR File, Tab 3 at 12-14.
Under 5 C.F.R. § 1201.115, the Board generally will not consider evidence
submitted for the first time with a petition for review absent a showing that it was
unavailable before the record was closed before the administrative judge despite
the party’s due diligence. Avansino v. U.S. Postal Service, 3 M.S.P.R. 211,
213-14 (1980). To constitute new evidence, the information contained in the
documents, not just the documents themselves, must have been unavailable
despite due diligence when the record closed. Becker v. Department of Veterans
Affairs, 112 M.S.P.R. 507, ¶ 8 (2009); 5 C.F.R. § 1201.115(e). Moreover, the
Board will not grant a petition for review based on new evidence absent a
showing that it is of sufficient weight to warrant an outcome different from that
of the initial decision. Russo v. Veterans Administration, 3 M.S.P.R. 345, 349
(1980).
The first set of documents the appellant presents for the first time on
review is a January 2018 email, listing 28 agency whistleblowers from around the
country, providing a limited explanation of their whistleblowing, and
recommending which might be a good fit for inclusion in the agency’s peer-to-
peer whistleblower mentor program. PFR File, Tab 1 at 26-39. Although all
21
names are redacted from the document, the appellant argues that this was a
message to agency leadership from a Whistleblower Specialist within the
agency’s Office of Accountability and Whistleblower Protection. Id. at 19-22.
The second set of documents is a set of emails dated September 2019, a year after
OSC closed out the reprisal claim at issue in this appeal. Id. at 41-56. Although
many names throughout these documents are also redacted, the appellant asserts
that this document establishes the individuals involved in the first set of
documents. Id. at 21-22. The appellant argues that the January 2018 and
September 2019 documents, combined, show that numerous agency officials
disfavored him. Id. at 21.
The third set of documents the appellant presents for the first time on
review is a series of May 2018 emails, many of which also have names redacted.
Id. at 58-61. According to the appellant, these documents show that senior
leadership within the agency knew of the fact-finding inquiry involving the
appellant. Id. at 22.
The fourth and final set of documents the appellant attaches to his petition
consists of email exchanges between the agency’s representative in this appeal
and a hearing witness. Id. at 22, 63-68. Generally speaking, these exchanges
include the representative informing the witness that he may be called to testify,
the witness indicating that he did not want to testify and did not think he had
anything of value to add to the appeal, and then the representative eventually
indicating that this potential witness would not need to testify. Id. at 63-68.
According to the appellant, these exchanges show that the agency’s representative
had inappropriate contact with this potential witness that the representative failed
to disclose to the administrative judge. Id. at 22-24.
After reviewing all these documents, we find that the appellant has not
shown that any of the evidence presented for the first time on review is both new
and material. Even if we were to find that the information contained in these
documents was previously unavailable, the information would not alter our
22
conclusions regarding the agency’s burden for the nonselections or the appellant’s
burden for the alleged hostile work environment. They also do not persuade us
that the agency’s representative engaged in any improprieties.
NOTICE OF APPEAL RIGHTS 5
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
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).
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.
23
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.
(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
24
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:
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
25
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
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
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.
26
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.