James Walker v. Department of the Navy ( 2024 )

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
JAMES L. WALKER, DOCKET NUMBER
Appellant, SF-1221-18-0510-W-1
v.
DEPARTMENT OF THE NAVY, DATE: May 21, 2024
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
James L. Walker , Helendale, California, pro se.
Robert Aghassi and Veronica Hale , Barstow, California, 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, which
dismissed his individual right of action (IRA) appeal for lack of jurisdiction
based on the administrative judge’s finding that the appellant elected to grieve the
personnel actions at issue. After fully considering the filings in this appeal, we
conclude that the petitioner has not established any basis under 5 C.F.R.
§ 1201.115 for granting the petition for review and therefore we DENY it.
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
Because there is some uncertainty regarding the correctness of the administrative
judge’s election of remedies finding, we VACATE the initial decision and instead
DISMISS the appellant’s appeal for lack of jurisdiction on the grounds that he
failed to nonfrivolously allege that he made a protected disclosure or engaged in a
protected activity that was a contributing factor in either of the personnel actions
at issue.
BACKGROUND
The appellant is employed by the agency as a WG-09 Painter. Initial
Appeal File (IAF), Tab 12 at 56. In an October 4, 2017 notice, the agency
suspended him for 14 days, effective October 10, 2017. Id. at 11-12. That
month, the appellant filed three complaints or grievances regarding his
suspension. First, on October 6, 2017, the appellant filed a complaint with
the Office of Special Counsel (OSC). IAF, Tab 13 at 74-82. Second, on
October 16, 2017, the appellant filed a complaint with the Federal Labor
Relations Authority (FLRA). IAF, Tab 5 at 7, Tab 8 at 5. And third, on
October 26, 2017, the appellant filed a grievance under the agency’s negotiated
grievance procedure. IAF, Tab 12 at 32-36.
On December 19 2017, the agency proposed to suspend the appellant for
misconduct allegedly committed in November 2017. Id. at 64-65. Eight days
later, on December 27, 2017, the appellant filed a formal equal employment
opportunity (EEO) complaint. IAF, Tab 11 at 13-15. The agency ultimately
suspended the appellant, again for 14 days, effective February 19, 2018. IAF,
Tab 12 at 57.
In a statement to the FLRA dated January 28, 2018, which the appellant
submitted to the administrative judge as part of his jurisdictional response,
the appellant wrote that OSC had dismissed his complaint. IAF, Tab 5 at 6.
The appellant then filed another complaint with OSC on February 28, 2018. IAF,
Tab 4 at 5. In that complaint, he indicated that both the October 2017 suspension
3
and the February 2018 suspension were taken in reprisal for his protected
disclosures or activities implicating the official who issued the October 2017
suspension (hereinafter “the first deciding official”) in wrongdoing when the
official instructed agency employees to perform work that should have been
performed by contractors. Id. at 7-9. The appellant also indicated to OSC that he
was retaliated against because of complaints he filed, as well as affidavits and
testimony he submitted, critical of the first deciding official. Id. at 9.
On April 26, 2018, OSC terminated its investigation into the appellant’s
February 2018 complaint and informed him of his right to seek corrective action
with the Board. IAF, Tab 4 at 1-2. OSC found that, because the appellant had
apparently elected to file grievances regarding his suspensions, it had no basis for
inquiring into the matter. Id. at 2.
The appellant filed this IRA appeal on May 7, 2018. IAF, Tab 1. With his
initial appeal, the appellant included OSC’s April 26, 2018 letters closing its
investigation and summarizing the complaint. Id. at 7, 12. The appellant made
no reference to the complaint he filed with OSC in October 2017. IAF, Tab 1.
He checked the box indicating that he was appealing a suspension of more than
14 days and included the proposal and decision notices and the Standard Forms
(SF) 50 for both suspensions. Id. at 4, 8-11, 16-18, 21-22. The appellant
acknowledged that on October 26, 2017, he had filed a grievance regarding the
suspension he was appealing. Id. at 5.
The administrative judge informed the appellant of his burden to establish
the Board’s jurisdiction over the IRA appeal and ordered him to submit a
statement identifying, inter alia, his protected disclosures and activities and why
he believed they were a contributing factor in the agency actions taken against
him. IAF, Tab 3 at 2-8. The appellant made multiple filings in response to the
administrative judge’s order, submitting documents related to his grievance, EEO
and FLRA complaints, and correspondence with a Member of Congress. 2 IAF,
2
The appellant’s filings contain numerous duplicate copies of documents.
4
Tabs 4-6, 8, 10-11, 13-18. He also submitted his October 2017 OSC complaint
and his February 2018 OSC complaint, along with additional copies of OSC’s
April 26, 2018 letters regarding the February 2018 complaint. IAF, Tab 13
at 74-84. At no point did the appellant file a pleading compliant with the
administrative judge’s order to provide a narrative response or a statement as
outlined by the administrative judge. 3
In his initial decision, the administrative judge found that, although there
was evidence in the record about the February 2018 suspension, the appellant
only identified the October 2017 suspension as the personnel action at issue in
this IRA appeal. IAF, Tab 20, Initial Decision (ID) at 8. He concluded that the
undisputed record reflected that the appellant elected to grieve his October 2017
suspension and that the appellant therefore failed to nonfrivolously allege Board
jurisdiction over this IRA appeal. ID at 8-9.
On petition for review, the appellant does not contest the administrative
judge’s jurisdiction finding and submits a number of documents. Petition for
Review (PFR) File, Tab 3. The agency has filed a response opposing the petition,
and the appellant has filed a reply. PFR File, Tabs 5, 7.
DISCUSSION OF ARGUMENTS ON REVIEW
The Board has jurisdiction over an IRA appeal if an appellant exhausts his
administrative remedies before OSC and makes nonfrivolous allegations that
(1) 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 (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
3
The agency submitted its file to the Board on May 31, 2018. IAF, Tab 12. On June 3,
2018, the appellant submitted another complaint with OSC, vaguely alleging that the
agency was being deceitful in its filing with the Board. IAF, Tab 14 at 5-13. He also
noted that he had made a disclosure to a member of Congress on September 1, 2015. Id.
at 9. The June 2018 OSC complaint and the 2015 disclosure are not at issue in this
appeal.
5
5 U.S.C. § 2302(a). Graves v. Department of Veterans Affairs, 123 M.S.P.R. 434,
¶ 12 (2016). However, under certain circumstances, when an appellant makes a
binding election to grieve a personnel action pursuant to the provisions of a
negotiated grievance procedure before he files a complaint with OSC about
that personnel action, the Board will lack jurisdiction to consider an
IRA appeal concerning that personnel action. See 5 U.S.C. § 7121(g);
Agoranos v. Department of Justice, 119 M.S.P.R. 498, ¶ 14 (2013).
Here, the administrative judge found that the Board lacked jurisdiction over
this IRA appeal because the appellant had first elected to grieve his suspension.
ID at 8-9. As discussed below, we find that this appeal should be dismissed for
lack of jurisdiction on other grounds. We therefore need not address the election
of remedies issue and what effect the appellant’s decision to file his first
complaint with OSC on October 6, 2017 (prior to challenging the suspension in
any other fora) has on the administrative judge’s jurisdictional finding.
See Weslowski v. Department of the Army, 80 M.S.P.R. 585, ¶ 14 n.1 (finding that
the Board need not address whether it lacked jurisdiction over an appeal due to an
election of remedies issue when it lacked jurisdiction over the appeal on other
grounds), aff’d, 217 F.3d 854 (Fed. Cir. 1999) (Table). Accordingly, we vacate
the initial decision.
The appellant exhausted his administrative remedies regarding his claims that he
was suspended in October 2017 and in February 2018 because he made a
disclosure concerning the first deciding official, filed a complaint with the FLRA,
and filed an EEO complaint.
The Board, in Chambers v. Department of Homeland Security, 2022 MSPB
8, ¶¶ 10-11, clarified the substantive requirements of exhaustion. The
requirements are met when an appellant has provided OSC with a sufficient basis
to pursue an investigation. The Board’s jurisdiction is limited to those issues that
were previously raised with OSC. However, appellants may give a more detailed
account of their whistleblowing activities before the Board than they did to OSC.
Id. Appellants may demonstrate exhaustion through their initial OSC complaint;
6
evidence that they amended the original complaint, including but not limited to
OSC’s determination letter and other letters from OSC referencing any amended
allegations; and, their written responses to OSC referencing the amended
allegations. Id. Appellants also may establish exhaustion through other
sufficiently reliable evidence, such as an affidavit or a declaration attesting that
they raised with OSC the substance of the facts in the Board appeal. Id. 4
When, as in this case, an appellant has filed multiple complaints with OSC,
exhaustion may only be demonstrated through the complaint that led to the filing
of the IRA appeal before the Board. See Becker v. Department of Veterans
Affairs, 76 M.S.P.R. 292, 298 n.3 (1997). The Board will not consider any
matters raised in other OSC complaints, unless they were also raised in the OSC
complaint that led to the IRA appeal before it. Id.Here, the record contains evidence of three complaints the appellant filed
with OSC. IAF, Tab 4 at 5-11, Tab 13 at 74-82, Tab 14 at 5-13. It was the
second of these complaints, filed in February 2018, that led to the filing of this
IRA appeal. IAF, Tab 1 at 7, 12-13. Accordingly, in determining whether the
appellant exhausted his administrative remedies with OSC prior to filing this IRA
appeal, we will only review the appellant’s February 2018 OSC complaint,
see Becker, 76 M.S.P.R. 292, 298 n.3, along with any correspondence between the
appellant and OSC pertaining to that complaint, see Mason v. Department of
Homeland Security, 116 M.S.P.R. 135, ¶ 8 (2011).
In his February 2018 OSC complaint, the appellant raised two personnel
actions—the October 2017 suspension and the February 2018 suspension. IAF,
Tab 4 at 9. He indicated that these actions were taken in reprisal for his reporting
that the first deciding official instructed agency employees to perform work that
4
The Whistleblower Protection Enhancement Act (WPEA), which went into effect on
December 27, 2012, does not affect the relevant holding in this cited authority, nor does
it affect the relevant holdings in the other authorities cited herein that were issued prior
to the effective date of the WPEA. See Pub. L. No. 112-199, 126 Stat. 1465 (2012).
Additionally, all of the relevant events in this appeal occurred after the December 27,
2012 effective date of the WPEA. Therefore, we have applied the WPEA to this appeal.
7
should have been performed by contractors and for a complaint he filed with the
FLRA. 5 Id. at 8-9. The appellant also indicated that he had filed an EEO
complaint on December 27, 2017. 6 Id. at 6. Thus, based on the appellant’s OSC
complaint, we find that he exhausted these claims with OSC.
In the analysis of the appellant’s reprisal claims that follows, we first find
that the appellant failed to nonfrivolously allege that his report about the first
deciding official instructing employees to perform work that should have been
performed by contractors constitutes a protected disclosure. We then find that the
appellant failed to nonfrivolously allege that his EEO complaint constituted a
protected activity. Finally, we find that, while the appellant nonfrivolously
alleged that his complaint with the FLRA was protected, he failed to
nonfrivolously allege that the protected activity was a contributing factor toward
either of the two suspensions raised by the appellant.
5
In his OSC complaint, the appellant indicated that he filed a complaint with the FLRA
on February 19, 2018. IAF, Tab 4 at 6. The record contains a FLRA complaint form,
which the appellant signed on October 16, 2017. IAF, Tab 8 at 5. In a January 28,
2018 statement in support of his FLRA complaint, the appellant stated that he filed that
complaint on October 16, 2017. IAF, Tab 5 at 7. Other than the statement in the
February 2018 OSC complaint, there is no evidence in the record supporting a
conclusion that the appellant filed a complaint with the FLRA other than on October 16,
2017. To the extent that the appellant was referring to another complaint he filed with
the FLRA, he has failed to nonfrivolously allege that his filing of the complaint was a
protected activity because there is no indication in the record, or allegation by him, that
it concerned remedying reprisal for whistleblowing. See Elder v. Department of the Air
Force, 124 M.S.P.R. 12, ¶ 39 n.8 (2016).
6
The appellant additionally indicated that he filed some type of complaint or grievance
on November 16, 2017. IAF, Tab 4 at 9. However, there is no other indication in the
record regarding any complaint or grievance being filed on this date. Similarly,
although the appellant referenced appealing his discrimination complaint to the Equal
Employment Opportunity Commission on February 16, 2018, id. at 6, there is no other
evidence or allegation about such an appeal in the record.
8
The appellant failed to nonfrivolously allege that he made a protected disclosure
regarding agency employees performing work that should have been done by
contractors.
After determining which claims the appellant exhausted with OSC, we must
consider whether the appellant has nonfrivolously alleged that he made a
protected disclosure or engaged in protected activity. See Salerno v. Department
of the Interior, 123 M.S.P.R. 230, ¶ 5 (2016); Carney v. Department of Veterans
Affairs, 121 M.S.P.R. 446, ¶ 5 (2014). A nonfrivolous allegation of a protected
disclosure is an allegation of fact that, if proven, would show that the appellant
disclosed a matter that a reasonable person in his position would believe
evidenced one of the categories of wrongdoing specified in 5 U.S.C. § 2302(b)
(8). Salerno, 123 M.S.P.R. 230, ¶ 6. The test to determine whether a putative
whistleblower has a reasonable belief in the disclosure is an objective one:
whether a disinterested observer with knowledge of the essential facts known to
and readily ascertainable by the employee could reasonably conclude that the
actions of the agency evidenced 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 or safety. Id. The disclosure must be
specific and detailed, not vague allegations of wrongdoing. Id.Additionally, to make a protected disclosure of a violation of law, rule, or
regulation, an individual ordinarily must identify the specific law, rule, or
regulation that was violated. Ayers v. Department of the Army, 123 M.S.P.R. 11,
¶ 24 (2015). However, an employee need not identify a statutory or regulatory
provision by a particular title or number “when the employee’s statements and the
circumstances surrounding the making of those statements clearly implicate an
identifiable violation of law, rule, or regulation.” Langer v. Department of the
Treasury, 265 F.3d 1259, 1266 (Fed. Cir. 2001).
Here, the agency proposed the appellant’s second suspension (which was
effected in February 2018), in part, because on November 16, 2017, he engaged in
9
inappropriate behavior by raising his voice and becoming irate when telling a
Contracting Officer, among others, that illegal aliens were performing painting
work on the base. IAF, Tab 12 at 57, 64-67, 70. However, the appellant asserted
that he never made assertions of illegal aliens working on the base. IAF, Tab 5
at 28. Instead, the appellant indicated that on November 16, 2017, he was
investigating whether an order he was given—regarding striping lines on
pavement and painting a building—would be in violation of a law, rule, or
regulation, because that “use[d] to be a contractor function and may still be.”
IAF, Tab 5 at 27. The appellant stated that around noon that day he told the
official who proposed the February 2018 suspension (hereinafter, “the second
proposing official”) that he was going to a particular part of the base “for
investigative reasons.” 7 Id. He also asserted that the second suspension was
taken in reprisal for his whistleblowing disclosure about the striping and painting
work. Id. at 12-13, 27.
Although the appellant indicated that he investigated whether the order
regarding painting was in violation of a law, rule, or regulation, id. at 27, he has
not identified any provision that a reasonable person in his position might have
believed the agency violated. Nor do his allegations clearly implicate an
identifiable violation of law, rule, or regulation. Accordingly, we find that the
appellant failed to nonfrivolously allege that he made a protected disclosure
evidencing a violation of law, rule, or regulation. See Ayers, 123 M.S.P.R. 11,
¶ 24. We further find that the appellant has failed to nonfrivolously allege that he
disclosed a matter that a reasonable person in his position would believe
evidenced gross mismanagement, a gross waste of funds, an abuse of authority, or
7
The second proposing official stated that the appellant told him he was going to that
particular part of the base for an appointment, which the second proposing official
assumed concerned his grievance or EEO activity. IAF, Tab 12 at 72. The record is
unclear as to whom the appellant alleges he made his disclosure, or what, precisely, he
said when he made the disclosure.
10
a substantial and specific danger to public health or safety. See Salerno,
123 M.S.P.R. 230, ¶¶ 5-6.
The appellant failed to nonfrivolously allege that his filing of an EEO complaint
was protected activity under 5 U.S.C. § 2302(b)(9)(A)(i).
Under 5 U.S.C. § 2302(b)(9)(A), it is a protected activity to exercise “any
appeal, complaint, or grievance right granted by any law, rule, or regulation—
(i) with regard to remedying a violation of [5 U.S.C. § 2302(b)(8)]; or (ii) other
than with regard to remedying a violation of [5 U.S.C. § 2302(b)(8)].” However,
of the two provisions, an employee or applicant for employment may
seek corrective action from the Board only for protected activity under
5 U.S.C. § 2302(b)(9)(A)(i). 5 U.S.C. § 1221(a); Mudd v. Department of
Veterans Affairs, 120 M.S.P.R. 365, ¶ 7 (2013). In other words, the appellant
may seek corrective action from the Board for reprisal for filing an
EEO complaint only if the EEO complaint itself was seeking to remedy a
violation of 5 U.S.C. 2302(b)(8).
In his OSC complaint, the appellant indicates that he filed an EEO
complaint on December 27, 2017. IAF, Tab 4 at 6. The record contains a copy of
the agency’s notice to the appellant acknowledging the complaint, but that notice
does not indicate what the complaint pertained to. IAF, Tab 11 at 13-15. The
EEO complaint itself is not in the record, and the appellant has failed to specify
what he stated in the complaint. 8 Accordingly, we find that the appellant has
failed to nonfrivolously allege that his filing of the EEO complaint sought to
remedy a violation of 5 U.S.C. § 2302(b)(8), and therefore it does not constitute
protected activity under 5 U.S.C. § 2302(b)(9)(A)(i).
8
In a May 15, 2018 filing with the Board, the appellant provided two affidavits
apparently filed in his EEO complaint earlier that month. IAF, Tab 5 at 10-14, 25-30.
Among other things, he indicated that he was retaliated against for his whistleblowing
disclosures against the proposing official in his second suspension. However, the
affidavits do not explain whether the appellant asserted in his December 27, 2017 EEO
complaint or any time prior to May 2018 that he was retaliated against for making a
protected disclosure. Id. at 10-14, 25-30.
11
The appellant nonfrivolously alleged that he engaged in protected activity under
5 U.S.C. § 2302(b)(9)(A)(i) by filing a complaint with the FLRA.
In the complaint he filed with the FLRA, the appellant alleged that the first
deciding official violated “multiple laws,” as well as “base order 12750,” and
engaged in prohibited personnel practices and reprisal. IAF, Tab 8 at 5. He cites
to 5 U.S.C. § 2302 in apparent support of his claim. Id. In a January 28, 2018
statement in the FLRA case, the appellant further explained, among other things,
that the first deciding official violated the Federal statute dealing with unfair
labor practices by disciplining him because he gave information about an assault
and battery charge that he filed after an incident with a coworker at work. IAF,
Tab 5 at 4.
Thus, the appellant’s complaint with the FLRA included a claim that in
reprisal for his disclosures about the workplace assault and battery the
agency disciplined him. Such an agency action would constitute a violation of
5 U.S.C. § 2302(b)(8), which prohibits reprisal for making disclosures about
violations of law, which an assault and battery would clearly constitute.
Therefore, we find that the appellant’s complaint to the FLRA is covered by
5 U.S.C. § 2302(b)(9)(A)(i), and therefore he has nonfrivolously alleged that he
engaged in a protected activity for which he may seek corrective action from the
Board. See Mudd, 120 M.S.P.R. 365, ¶ 7. Nevertheless, for the reasons stated
below, we still find that he failed to establish the Board’s jurisdiction over the
claim.
The appellant has failed to nonfrivolously allege that the prosecution of his FLRA
complaint was a contributing factor in the personnel actions at issue.
The next jurisdictional inquiry is whether the appellant has nonfrivolously
alleged that his protected disclosure or activity was a contributing factor in the
agency’s decision to take the personnel actions at issue. Salerno, 123 M.S.P.R.
230, ¶ 5; Carney, 121 M.S.P.R. 446, ¶ 7; see 5 U.S.C. §§ 1221(e)(1). A protected
disclosure or activity is a contributing factor if it in any way affects an agency’s
12
decision to take a personnel action. Dorney v. Department of the Army,
117 M.S.P.R. 480, ¶ 14 (2012).
One way to establish contributing factor is the so-called knowledge-timing
test. Wadhwa v. Department of Veterans Affairs, 110 M.S.P.R. 615, ¶ 12, aff’d,
353 F. App’x 435 (Fed. Cir. 2009). Under that test, an appellant can prove the
contributing factor element through evidence showing that the official taking the
personnel action knew of the protected disclosure or activity and that the
personnel action occurred within a period of time such that a reasonable person
could conclude that the disclosure or activity was a contributing factor in the
personnel action. Carney, 121 M.S.P.R. 446, ¶ 7; Wadhwa, 110 M.S.P.R. 615,
¶ 12. An appellant may satisfy the knowledge prong of the knowledge-timing test
by proving that the official taking the action had constructive knowledge of the
protected disclosure or activity, even if the official lacked actual knowledge.
See Nasuti v. Department of State, 120 M.S.P.R. 588, ¶ 7 (2014). An appellant
may establish constructive knowledge by showing that an individual with actual
knowledge of the disclosure or activity influenced the official accused of taking
the retaliatory action. Id. An appellant may satisfy the timing prong of the
knowledge-timing test by showing that the personnel action at issue occurred
within 2 years of the protected disclosure or activity. Salerno, 123 M.S.P.R. 230,
¶ 14.
However, contributing factor cannot be established when a personnel
action precedes an appellant’s purported disclosure or protected activity. See
El v. Department of Commerce, 123 M.S.P.R. 76, ¶ 10 (2015). Here, the
appellant filed his FLRA complaint on October 16, 2017, and it therefore could
not have contributed to the agency’s decision on October 4, 2017, to suspend
the appellant effective October 10, 2017. 9 IAF, Tab 8 at 5, Tab 12 at 11-16; see
El, 123 M.S.P.R. 76, ¶ 10.
9
Similarly, the appellant’s purported disclosure in November 2017 and his filing of an
EEO complaint in December 2017 could not have contributed to his first suspension in
October 2017. IAF, Tab 5 at 27, Tab 11 at 13-15; see El, 123 M.S.P.R. 76, ¶ 10.
13
Furthermore, the appellant has failed to allege that anyone who was
involved in suspending him in February 2018, such as the proposing or deciding
officials, were aware—before that suspension was affected—that he had filed a
complaint with the FLRA. In addition, the appellant has not alleged that an
individual with knowledge of his FLRA complaint influenced the proposing or
deciding officials. We will not infer knowledge of the appellant’s protected
activities to any agency official based only on a closeness in time between an
activity and a personnel action that the appellant conclusory alleges was
retaliatory. See Kerrigan v. Merit Systems Protection Board, 833 F.3d 1349,
1355 (Fed. Cir. 2016) (holding that, even at the jurisdictional phase where the
employee’s burden is significantly lower than at the merits stage, it is not
appropriate to infer knowledge on the part of any agency officials based only on
the closeness in timing and the appellant’s conclusory allegation that their actions
were done in retaliation). Accordingly, we conclude that the appellant failed,
under the knowledge-timing test, to nonfrivolously allege that his
FLRA complaint was a contributing factor to his February 2018 suspension.
Stiles v. Department of Homeland Security, 116 M.S.P.R. 263, ¶ 23 (2011)
(finding that the appellant failed to establish contributing factor through
the knowledge-timing test where he failed to show that the any of the officials
involved in his nonselection were aware of his protected disclosure).
The knowledge-timing test is not the only way for an appellant to satisfy
the contributing factor element. 5 U.S.C. § 1221(e)(1); Stiles, 116 M.S.P.R. 263,
¶ 24. If the appellant fails to satisfy that test, we must consider other evidence,
such as that pertaining to the strength or weakness of the agency’s reasons for
taking the personnel action, whether the whistleblowing was personally directed
at the proposing or deciding officials, and whether those individuals had a desire
or motive to retaliate against the appellant. Id.As previously indicated, the agency suspended the appellant in
February 2018 because in November 2017 he engaged in inappropriate behavior
14
by raising his voice and becoming irate when confronting a Contracting Officer
about the individuals performing painting on the base. IAF, Tab 12 at 57, 64-67,
70. In support of its action, the agency’s evidence includes the Contracting
Officer’s written statement to a police officer attesting to the appellant’s
behavior, as well as the police officer’s report that other individuals also reported
that they observed the incident. Id. at 67, 70-71. Thus, the strength of the
agency’s case vitiates against a finding of contributing factor. Furthermore, the
appellant’s FLRA complaint was not personally directed at the proposing or
deciding officials of the appellant’s February 2018 suspension, further supporting
a finding of no contributing factor. IAF, Tab 5 at 4. Finally, the appellant has
not identified a motive for the proposing and deciding officials in the second
suspension to retaliate against him. Thus, accepting all of the appellant’s
nonfrivolous allegations as true, he has failed to establish that his FLRA
complaint was a contributing factor in the agency’s decision to suspend him in
February 2018.
The appellant has failed to establish any other basis for granting the petition for
review.
The appellant has attached a few documents on review, including OSC’s
April 26, 2018 close-out letters, the agency’s first-step grievance decision, and
SF-50s documenting his suspensions. PFR File, Tab 3 at 4-12. Only one of the
documents attached on review—a copy of a September 10, 2017 email from the
appellant to agency officials regarding his work leader allegedly pushing him—
was not a part of the record below. Id. at 11. First, we note that evidence already
in the record is not new. Meier v. Department of the Interior, 3 M.S.P.R. 247,
256 (1980). Second, the Board will normally only consider evidence submitted
for the first time on review upon a showing that it was previously unavailable
despite the petitioner’s due diligence. See Banks v. Department of the Air Force,
4 M.S.P.R. 268, 271 (1980); 5 C.F.R. § 1201.115(d). The appellant has not
explained why he could not have submitted the September 10, 2017 email before
15
the administrative judge. In any event, the documents do not provide a basis for
granting the petition for review because the appellant has not shown that they are
of sufficient weight to warrant an outcome different from that of the initial
decision. See Russo v. Veterans Administration, 3 M.S.P.R. 345, 349 (1980).
Additionally, the appellant asserts on review that the agency is supporting
its case against him with two “false” witnesses. PFR File, Tab 3 at 3. His
allegation is immaterial to whether he has established the Board’s jurisdiction
over this IRA appeal. We also note that the appellant has referred to his two
suspensions as being “back to back,” IAF, Tab 4 at 8-9, and indicated in his
initial appeal that he was challenging a suspension of more than 14 days, IAF,
Tab 1 at 4. To the extent that the appellant argues that the Board should
consolidate his two suspensions for jurisdictional purposes, we decline to do so
because he has not shown that the suspensions were based on the same reason and
that the agency attempted to circumvent Board jurisdiction by imposing multiple
suspensions of 14 days or less. See Palmer v. Department of Transportation,
109 M.S.P.R. 438, ¶¶ 5-6 (2008). For the reasons stated above, we find that the
appellant has failed to establish the Board’s jurisdiction over this IRA appeal.
NOTICE OF APPEAL RIGHTS 10
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
10
Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions to provide a comprehensive
summary of all available review options. As indicated in the notice, the Board cannot
advise which option is most appropriate in any matter.
16
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
17
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision—including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board, 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court-appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
18
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),”then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction. 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:
19
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.