Todd Herrera v. Department of Veterans Affairs ( 2024 )

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
TODD HERRERA, DOCKET NUMBER
Appellant, SF-1221-20-0133-W-1
v.
DEPARTMENT OF VETERANS DATE: July 22, 2024
AFFAIRS,
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Paul Richardson , Boise, Idaho, for the appellant.
Kacy Coble , Esquire, North Little Rock, Arkansas, for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
Henry J. Kerner, Member*
*Member Kerner did not participate in the adjudication of this appeal.
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
dismissed his individual right of action (IRA) appeal for lack of jurisdiction.
Generally, we grant petitions such as this one only in the following
circumstances: the initial decision contains erroneous findings of material fact;
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
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 analysis as to why the appellant failed to
nonfrivolously allege that his protected activity was a contributing factor in any
personnel action taken against him, we AFFIRM the initial decision.
BACKGROUND
The agency hired the appellant as a Police Officer in March 2019. Herrera
v. Department of Veterans Affairs, MSPB Docket No. SF-1221-20-0133-W-1,
Initial Appeal File (IAF), Tab 8 at 17. One of the requirements of the appellant’s
position was to complete the agency’s Police Officer Standardized Training
(POST) Course at the agency’s Law Enforcement Training Center (LETC). Id.
at 19, 32-33. The appellant began this training in April 2019. IAF, Tab 9 at 4.
On June 13, 2019, the LETC Director informed the appellant and his
management that he would not be allowed to complete the POST Course because
of alleged misconduct. IAF, Tab 1 at 7. The following day, the appellant’s
management submitted a request to LETC that he be readmitted into the POST
Course. Id. at 9-10. Although the record does not reveal what response, if any,
LETC officials provided at that time, the appellant was not readmitted.
3
On August 19, 2019, the appellant filed a complaint with the Office of
Special Counsel (OSC). IAF, Tab 15 at 1. As some correspondence regarding
the appellant’s complaint indicates, it concerned his dismissal from LETC, which
he believed was in violation of the law because he was not provided with advance
notice and an opportunity to reply. IAF, Tab 6 at 42-44. The appellant also
asserted that the LETC Director abused his power and falsified information when
he alleged that the appellant engaged in misconduct. Id. at 12-13. There is no
indication that the appellant asserted that he made a protected disclosure or
engaged in a protected activity prior to his dismissal from LETC.
According to the appellant, on September 24, 2019, after his management
made further requests to LETC that he be allowed to complete his training, LETC
staff responded that he would not be allowed to return. Herrera v. Department of
Veterans Affairs, MSPB Docket No. SF-1221-20-0025-W-1, Appeal File
(0025 AF), Tab 1 at 11-12. 2 That same day, the appellant emailed OSC to inform
it of this update and asserted that the agency’s actions constituted whistleblower
retaliation. Id. On October 3, 2019, OSC terminated its investigation into the
appellant’s August 2019 OSC complaint. IAF, Tab 6 at 47-48.
On October 9, 2019, the appellant filed an IRA appeal with the Board,
asserting that the agency committed whistleblower retaliation and violated
various statutes and regulations when it dismissed him from LETC.
0025 AF, Tab 1 at 6. The appellant shortly thereafter moved to withdraw that
IRA appeal, 0025 AF, Tab 4 at 4, and the administrative judge thus dismissed it
as withdrawn, 0025 AF, Tab 7.
The appellant filed a second OSC complaint later that month. IAF, Tab 6
at 6, Tab 14 at 6. In that complaint, he alleged that after OSC initiated an
investigation into his first complaint and notified the LETC Director of that OSC
complaint, the Director misled OSC investigators in order to “justify / continue
2
The Board may take official notice of matters that can be verified, including
documents or actions in other Board appeals. Wofford v. Department of Justice,
115 M.S.P.R. 468, ¶ 5 n.4 (2010); see 5 C.F.R. § 1201.64.
4
denying [the appellant] access to training at . . . LETC.” IAF, Tab 6 at 29-32.
OSC terminated its investigation into the appellant’s October 2019 OSC
complaint on November 19, 2019. Id. at 34.
This IRA appeal followed. The appellant alleged that LETC dismissed him
from training and refused to readmit him in retaliation for his protected OSC
activity. IAF, Tab 1 at 4-5, 8-12. The administrative judge informed the appellant
how to establish the Board’s jurisdiction over his IRA appeal. IAF, Tab 2 at 2-8.
While this appeal was pending below, the appellant resigned from the agency and
transferred to the Department of Homeland Security. IAF, Tab 16 at 5.
The administrative judge issued an initial decision dismissing the appeal
for lack of jurisdiction. IAF, Tab 17, Initial Decision (ID). She assumed, without
making findings, that the appellant exhausted his OSC remedy and engaged in
protected activity by filing the August 2019 OSC complaint. ID at 7-8.
She found that the appellant could not establish that his OSC complaint, which he
filed after he was dismissed from training at LETC, contributed to the dismissal. 3
ID at 9. Finally, the administrative judge determined that the appellant failed to
nonfrivolously allege that his OSC complaint was a contributing factor in any
decision not to readmit the appellant into the LETC. ID at 10-11.
The appellant has filed a petition for review, in which he primarily
disagrees with the LETC Director’s decision to dismiss him from the POST
Course. Petition for Review (PFR) File, Tab 1 at 6-8. He reasserts that the LETC
Director improperly impeded his continued access to training at LETC. Id. at 8.
The agency has not filed a response.
3
Although the administrative judge stated in the initial decision that the dismissal from
training was “not a personnel action,” the context of her finding makes it clear she was
finding that the appellant failed to nonfrivolously allege contributing factor. ID at 9.
Specifically, she stated that the appellant could not establish that his dismissal from
training was retaliatory “since he had not engaged in any protected activity that the
time.” Id.5
DISCUSSION OF ARGUMENTS ON REVIEW
To establish jurisdiction in an IRA appeal, an appellant generally must
show by preponderant evidence that he exhausted his administrative remedies
before OSC and nonfrivolously allege that (1) he made a disclosure described
under 5 U.S.C. § 2302(b)(8) or engaged in a 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). Corthell v. Department of
Homeland Security, 123 M.S.P.R. 417, ¶ 8 (2016), overruled on other grounds by
Requena v. Department of Homeland Security , 2022 MSPB 39. A nonfrivolous
allegation is an assertion that, if proven, could establish the matter at issue.
5 C.F.R. § 1201.4(s).
Here, the appellant appears to re-raise two alleged personnel actions.
Specifically, he contests the merits of his initial dismissal from training, and
realleges that the LETC Director improperly prevented him from accessing LETC
thereafter. PFR File, Tab 1. We will address each in turn.
As to the appellant’s dismissal from training, he makes no specific
jurisdictional arguments. Instead, he asserts that he did not engage in misconduct
while attending the POST Course and the agency cannot prove a nexus between
his dismissal from training and the efficiency of the service. PFR File, Tab 1
at 5-8. We cannot reach these issues regarding the merits of the agency’s action
absent Board jurisdiction over his IRA appeal. Schmittling v. Department of the
Army, 219 F.3d 1332, 1336-37 (Fed. Cir. 2000) (finding that in an IRA appeal,
the Board may not assume that the appellant has established jurisdiction over his
appeal, and then proceed to reject his whistleblower reprisal claim on the merits;
rather, the Board must first address the matter of jurisdiction before proceeding to
the merits of the appeal).
The appellant does not dispute that he failed to establish the contributing
factor element of the jurisdictional test. We discern no basis to disturb the
6
administrative judge’s determination that the appellant failed to nonfrivolously
allege that his first OSC complaint was a contributing factor in his dismissal from
training 2 months earlier. ID at 9. A protected activity cannot contribute to a
personnel action which predates it. El v. Department of Commerce, 123 M.S.P.R.
76, ¶ 10 (2015), aff’d per curiam, 663 F. App’x 921 (Fed. Cir. 2016).
As to LETC’s decision to deny the requests of the appellant’s managers to
readmit him to LETC, the appellant appears to re-raise this claim, but makes no
specific arguments. PFR File, Tab 1 at 8; IAF, Tab 6 at 29-32. Nonetheless, we
take this opportunity to supplement the administrative judge’s finding on
contributing factor to incorporate the Board’s specific case law on this issue. See
Parrish v. Merit Systems Protection Board, 485 F.3d 1359, 1362 (Fed. Cir. 2007)
(expressing the Board’s obligation “to determine its own jurisdiction over a
particular appeal”).
The administrative judge found that the denial of readmission, if true,
would be a personnel action. ID at 10. However, she found that the appellant
failed to nonfrivolously allege that his OSC activity, beginning with his OSC
complaint in August 2019, was a contributing factor in the denial of readmission
into LETC. ID at 9-11. More specifically, the administrative judge found that
there was neither evidence nor a nonfrivolous allegation indicating that LETC
allowed individuals dismissed for misconduct to re-enroll in the POST Course,
and she concluded that the decision to bar him from re-enrolling was made at the
same time that he was dismissed from the training in June 2019. ID at 9-10. The
appellant does not challenge these findings, and we discern no reason to disturb
them. 4
4
The administrative judge also found that the record reflected that the agency had no
retaliatory animus toward the appellant. ID at 11. To the extent that the administrative
judge thereby reached the issue of whether the agency proved by clear and convincing
evidence that it would have taken the same action regardless of the appellant’s
protected activity, we vacate that finding. 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 made a finding that
the appellant established a prima facie case of whistleblower reprisal), aff’d per curiam,
7
A disclosure or activity that occurs after the personnel action at issue was
taken cannot be considered a contributing factor in that personnel action.
Sherman v. Department of Homeland Security, 122 M.S.P.R. 644, ¶ 8 (2015).
Further, an agency has no obligation to reverse or otherwise reconsider a decision
to take a personnel action merely because it later learns that the affected
employee made a protected disclosure or engaged in protected activity.
See Buckler v. Federal Retirement Thrift Investment Board, 73 M.S.P.R. 476, 496
(1997); Charest v. Federal Emergency Management Agency, 54 M.S.P.R. 436,
440-41 (1992). To satisfy the contributing factor criterion at the jurisdictional
stage when the personnel action at issue is the agency’s implementation of a prior
decision, an appellant must nonfrivolously allege that the decision was merely
contemplated and in preparation at the time the agency learned of his disclosure.
Sherman, 122 M.S.P.R. 644, ¶¶ 8-9.
In Sherman, the Board considered whether an appellant met his
jurisdictional burden as to a lowered performance evaluation that the appellant
alleged the agency initiated before, but finalized after, the reviewing official
learned of the appellant’s alleged disclosure. Id., ¶¶ 3-4, 7. The Board found that
there was conflicting evidence as to the finality of the initial performance
evaluation, and it could not resolve this conflict without weighing that evidence.
Id., ¶ 10. Because the Board cannot weigh conflicting evidence at the
jurisdictional stage, it found that the appellant met his burden to nonfrivolously
allege contributing factor. Id., ¶ 11.
We find that the situation differs here from that in Sherman because the
appellant has not alleged that the agency’s June 2019 decision was provisional.
In his June 13, 2019 memorandum dismissing the appellant from the POST
623 F. App’x 1016 (Fed. Cir. 2015). Although the U.S. Court of Appeals for the
Seventh Circuit has disagreed with the Board’s decision in Clarke, it has done so on
different grounds. Delgado v. Merit Systems Protection Board, 880 F.3d 913, 923-25
(7th Cir. 2018). Thus, its disagreement does not implicate the finding for which we cite
Clarke here.
8
Course, the LETC Director stated that the appellant “will not be able to return to
LETC for any further training due to misconduct.” IAF, Tab 1 at 7. LETC’s
directives provide that students whose training assignments are terminated for
misconduct are barred from returning to LETC for any future training.
IAF, Tab 8 at 24, 26. The directives also provide that “[t]he LETC Director, or
designee, is the approval authority for removing a student from training for
conduct.” Id. at 26. There is no indication that any law, rule, or regulation
provided students with a right to challenge a dismissal for alleged misconduct
from LETC. Nor did the LETC Director otherwise indicate that he might
reconsider his decision. IAF, Tab 1 at 7.
The appellant acknowledged that the Director made his decision to
“ban [the appellant] from training before he contacted the OSC and therefore his
decision [to continue to disallow the appellant to take part in LETC training]
could not have been retaliatory.” IAF, Tab 6 at 29. The appellant’s assertion
below that the LETC Director misled OSC investigators in order to justify his
original decision to dismiss and bar the appellant from training falls short of an
allegation that the determination was provisional. IAF, Tab 6 at 29-32.
Under these circumstances, when the undisputed record reflects that the
agency decided to bar the appellant from returning to LETC before he engaged in
protected activity, we find that the appellant has failed to nonfrivolously allege
that his protected activity was a contributing factor in the agency’s decision to
not allow him to return to LETC. Accordingly, we affirm the initial decision.
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
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
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).
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
10
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
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 .
11
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
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
12
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
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
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.
13
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.