Randy Matsch v. Department of Labor ( 2024 )

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
RANDY L. MATSCH, DOCKET NUMBER
Appellant, PH-1221-18-0080-W-1
v.
DEPARTMENT OF LABOR, DATE: May 23, 2024
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Randy L. Matsch , Portsmouth, Rhode Island, pro se.
Niamh Eileen Doherty , Esquire, Boston, Massachusetts, for the agency.
Sharon Bogart , New York, New York, 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.
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
clarify that the appellant failed to make a nonfrivolous allegation of a personnel
action as defined in 5 U.S.C. § 2302(a), we AFFIRM the initial decision.
BACKGROUND
The appellant resigned from his position as a GS-12 Safety and
Occupational Health Specialist. Initial Appeal File (IAF), Tab 8 at 8-10, Tab 9
at 10-11. Thereafter, he filed a complaint with the Office of Special Counsel
(OSC) alleging that the agency had subjected him to a hostile work environment
in retaliation for his participation in an investigation into unauthorized agency
hiring practices. IAF, Tab 1 at 9. The appellant contended that the hostile work
environment forced him to resign. Id.After OSC closed its investigation, the appellant filed an appeal with the
Board alleging that agency management retaliated against him as a result of his
whistleblowing activity. Id. at 5, 9. The administrative judge issued an order
noting that the appellant’s claim appeared to constitute an IRA appeal. IAF,
Tab 4 at 1. She explained the circumstances under which the Board has
jurisdiction to adjudicate such appeals, and she ordered both the appellant and the
agency to file evidence and argument regarding jurisdiction. Id. at 1-7.
3
In response, the appellant asserted, among other things, that the agency had
denied him training opportunities, increased his workload, and permitted a
coworker to harass him in retaliation for his participation in an agency Office of
the Inspector General (OIG) investigation. IAF, Tab 9 at 1-3. He also provided
voluminous annotated documentation both supporting these allegations and
levying additional allegations of reprisal. Id. at 4-286. In response, the agency
contended, among other things, that the appellant had voluntarily resigned and
that the agency had not taken any personnel action against him. IAF, Tab 10
at 4-12.
Without holding the appellant’s requested hearing, the administrative judge
issued an initial decision dismissing the appeal for lack of jurisdiction. IAF,
Tab 13, Initial Decision (ID) at 1, 26. Specifically, the administrative judge
found that, although the appellant had engaged in protected activity described
under 5 U.S.C. § 2302(b)(9)(C) and had exhausted his administrative remedies
before OSC regarding most of the issues he raised with the Board, he failed to
nonfrivolously allege that his protected activity was a contributing factor in any
alleged personnel action. ID at 6, 8, 26. She further found that the appellant
failed to make a nonfrivolous allegation that his resignation was involuntary. ID
at 24-26.
The appellant has filed a petition for review of the initial decision, and the
agency has responded in opposition. Petition for Review (PFR) File, Tabs 1, 3.
In his petition for review, the appellant avers that agency management harassed
him in retaliation for his protected activity and contends that his resignation was
involuntary. PFR File, Tab 1 at 4-5.
DISCUSSION OF ARGUMENTS ON REVIEW
To establish jurisdiction in a typical IRA appeal, an appellant must show
by preponderant evidence that he exhausted his remedies before OSC and make
4
nonfrivolous allegations 2 of the following: (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). Salerno v. Department of the
Interior, 123 M.S.P.R. 230, ¶ 5 (2016). We agree with the administrative judge
that the appellant’s assertions pertaining to his participation in an agency OIG
investigation constitute a nonfrivolous allegation that he engaged in a protected
activity pursuant to 5 U.S.C. § 2302(b)(9)(C). ID at 8; see Fisher v. Department
of the Interior, 2023 MSPB 11, ¶ 8 (explaining that, in light of the broad language
of 5 U.S.C. § 2302(b)(9)(C), disclosures of information to an agency’s OIG are
protected regardless of their content, as long as such disclosures are made in
accordance with applicable provisions of law). However, although the
administrative judge summarized in detail the “numerous events that [the
appellant] believed constituted personnel actions,” she did not render an explicit
finding as to whether the appellant made a nonfrivolous allegation of a personnel
action as defined by 5 U.S.C. § 2302(a). ID at 8-22.
Upon review of the record, we agree with the administrative judge’s
assessment that the appellant made 36 separate claims of agency personnel
actions. IAF, Tab 9 at 6-7; ID at 6, 8-23. The appellant’s allegations
seemingly pertain to 3 of the 12 covered personnel actions enumerated in
5 U.S.C. § 2302(a)(2)(A)(i)-(xii). IAF, Tab 9 at 6-7. Specifically, he alleged that
the agency significantly changed his working conditions, denied him various
training opportunities, and forced him to resign. Id.; see 5 U.S.C. § 2302(a)(2)
(A)(iii), (ix), (xii). For the reasons set forth herein, we find that the appellant did
not make a nonfrivolous allegation of a personnel action as defined by 5 U.S.C.
§ 2302(a).
2
A nonfrivolous allegation is an assertion that, if proven, could establish the matter at
issue. 5 C.F.R. § 1201.4(s).
5
The appellant has not nonfrivolously alleged a significant change in duties,
responsibilities, or working conditions pursuant to 5 U.S.C. § 2302(a)(2)(A)(xii).
As summarized in the initial decision, the appellant made numerous claims
involving workplace harassment. IAF, Tab 9 at 6-7; ID at 8-19. He specifically
alleged, among other things, that he overheard agency management yelling
expletives and making offensive statements, which he presumed to be in reference
to him. IAF, Tab 9 at 6, 143, 255, 283. He further averred that a management
official yelled at him and that a separate agency official likened his behavior to
that of a “buzzard.” Id. at 6-7, 266, 284. He also rendered a series of allegations
pertaining to management’s oversight of his workload and contended that agency
management had failed to intervene when a coworker began antagonizing him.
Id. at 7, 138, 149, 162-64.
As relevant to these allegations, the definition of “personnel action”
includes “any . . . significant change in duties, responsibilities, or working
conditions.” 5 U.S.C. § 2302(a)(2)(A)(xii). The Board has found that, although
“significant change” 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 consequence for an appellant constitute a personnel
action covered by section 2302(a)(2)(A)(xii). Skarada v. Department of Veterans
Affairs, 2022 MSPB 17, ¶¶ 15-16. To this end, the agency actions must have
significant effects on the overall nature and quality of the appellant’s working
conditions, duties, or responsibilities. Id.Upon review of the record, we find that the appellant failed to make
allegations that, individually or collectively, amounted to a significant change in
his working conditions. See 5 U.S.C. § 2302(a)(2)(A)(xii); Skarada, 2022 MSPB
17, ¶¶ 15-16. Of note, in the appellant’s allegations of vulgarity and profanity in
the office related to private conversations that the appellant overhead from behind
closed doors, he did not allege that any profanity was directed at him. IAF, Tab 9
6
at 6, 143, 283. In any event, he has failed to nonfrivolously allege how these
incidents, individually or collectively, had a significant effect on the overall
nature and quality of his working conditions, duties, or responsibilities.
Similarly, the thrust of the appellant’s allegations pertaining to his antagonistic
coworker related to management’s alleged failure to intervene in a distressing
interpersonal conflict rather than any proactive change in working conditions
impelled by agency officials. 3 Id. at 7; see Shivaee v. Department of the Navy,
74 M.S.P.R. 383, 389 (1997) (finding that emotional stress is not, in and of itself,
a covered personnel action); cf. Covarrubias v. Social Security Administration ,
113 M.S.P.R. 583, ¶¶ 8, 15 n.4 (2010) (finding that the appellant made
nonfrivolous allegations of a significant change in working conditions because
she alleged, among other things, that her supervisors harassed her about personal
telephone calls and closely monitored her whereabouts, to include following her
to the bathroom), overruled on other grounds by Colbert v. Department of
Veterans Affairs, 121 M.S.P.R. 677, ¶ 12 n.5 (2014). Lastly, we find that the
appellant’s generalized disagreements with how the agency managed his
workload do not amount to a nonfrivolous allegation of a significant change
resulting in practical consequence. IAF, Tab 9 at 6-7, 121; see Skarada,
2022 MSPB 17, ¶¶ 15-16.
The appellant did not make a nonfrivolous allegation that the agency denied him
training opportunities pursuant to 5 U.S.C. § 2302(a)(2)(A)(ix).
The appellant also alleged before the administrative judge that the agency
denied him various training opportunities. IAF, Tab 9 at 7; ID at 20-23. “[A]
decision concerning . . . training” is a personnel action if it “may reasonably be
expected to lead to an appointment, promotion, performance evaluation, or other
[personnel] action [as described in 5 U.S.C. § 2302(a)(2)(A).]”
3
The record suggests that, from 2013 to 2014, the appellant had a series of disputes
with a nonsupervisory coworker. IAF, Tab 9 at 7. On one occasion, Federal Protective
Service personnel responded after the other individual accused the appellant of
intentionally bumping into his shoulder. Id. at 162-67.
7
5 U.S.C. § 2302(a)(2)(A)(ix). Thus, under the explicit terms of the statute, not all
denials of training opportunities are covered personnel actions. Id.; see Simone v.
Department of the Treasury, 105 M.S.P.R. 120, ¶ 9 (2007); see also Shivaee,
74 M.S.P.R. at 387 (explaining that there must be, at a minimum, a moderate
probability that the training would have resulted in some type of personnel
action).
Thus, the appellant must have alleged before the administrative judge not
only that the agency denied him training opportunities but also that the denied
opportunities may reasonably have led to an appointment, promotion,
performance evaluation, or similar action; here, the appellant rendered no such
allegations. See 5 U.S.C. § 2302(a)(2)(A)(ix). Accordingly, the appellant did not
make a nonfrivolous allegation of a personnel action under 5 U.S.C. § 2302(a)(2)
(A)(ix).
The appellant did not make a nonfrivolous allegation of a personnel action
pursuant to 5 U.S.C. § 2302(a)(2)(A)(iii).
The appellant also contended before the administrative judge that
intolerable working conditions forced him to resign. IAF, Tab 9 at 3. The
appellant reiterates this assertion on review, contending that agency management
employed “harassing and bullying behavior” and that he would not have resigned
from his position but for this behavior. PFR File, Tab 1 at 4-5.
Included in the relevant definition of “personnel action” is “an action under
chapter 75 of this title or other disciplinary or corrective action.”
5 U.S.C. § 2302(a)(2)(A)(iii). Because an involuntary resignation is tantamount
to a constructive removal action under 5 U.S.C. chapter 75, if the appellant
renders nonfrivolous allegations that his resignation was involuntary, he thereby
renders nonfrivolous allegations of a personnel action pursuant to
5 U.S.C. § 2302(a)(2)(A)(iii). See Colbert, 121 M.S.P.R. 677, ¶¶ 12-13 & n.5.
The Board has recognized that employee-initiated actions that appear
voluntary on their face are not always so and that the Board may have jurisdiction
8
over such actions as constructive adverse actions. Bean v. U.S. Postal Service,
120 M.S.P.R. 397, ¶ 7 (2013). All constructive adverse actions have two things
in common: (1) the employee lacked a meaningful choice in the matter; and (2) it
was the agency’s wrongful actions that deprived the employee of that choice. Id.,
¶ 8. In analyzing voluntariness, the touchstone is whether, considering the
totality of the circumstances, factors operated on the employee’s decision-making
process that deprived him of his freedom of choice. Vitale v. Department of
Veterans Affairs, 107 M.S.P.R. 501, ¶ 19 (2007); see also Bean, 120 M.S.P.R.
397, ¶¶ 8, 11 (explaining that the agency’s wrongful actions must have deprived
the employee of a meaningful choice). In assessing voluntariness, the Board must
consider all of the surrounding circumstances, including events not immediately
preceding the subject resignation. Shoaf v. Department of Agriculture, 260 F.3d
1336, 1342 (Fed. Cir. 2001).
Here, the appellant has not alleged facts that, if proven, could demonstrate
that he lacked freedom of choice. See Bean, 120 M.S.P.R. 397, ¶ 8; see also
Miller v. Department of Defense, 85 M.S.P.R. 310, ¶ 32 (2000) (explaining that
an employee is not guaranteed a working environment free of stress and that
difficult or unpleasant working conditions generally are not so intolerable as to
compel a reasonable person to resign). Thus, we agree with the administrative
judge that, even viewing the appellant’s allegations collectively, he nonetheless
failed to make a nonfrivolous allegation that he lacked a meaningful choice
regarding his resignation. ID at 25; see Shoaf, 260 F.3d at 1342.
On review, the appellant alleges for the first time that his temporary detail 4
to another office location also impelled his resignation. 5 PFR File, Tab 1 at 5.
4
Although the appellant refers to the agency’s action as a “reassignment,” the record
reflects that, approximately 2 weeks prior to his resignation, the agency placed the
appellant on a temporary detail not to exceed 45 days. PFR File, Tab 1 at 5; IAF, Tab 9
at 17.
5
“[A] detail, transfer, or reassignment” may constitute a personnel action. 5 U.S.C.
§ 2302(a)(2)(A)(iv). However, because the appellant did not raise his temporary detail
before OSC, the Board is unable to consider the same as an independent personnel
9
To this end, he asserts only that the detail “was the ultimate action that finally
[led him] to resign.” Id. The Board generally will not consider factual assertions
and legal arguments raised for the first time on review absent a showing that they
are based on new and material evidence that was not available prior to the close
of the record despite the party’s due diligence. See Banks v. Department of the
Air Force, 4 M.S.P.R. 268, 271 (1980). As the appellant provides no explanation
as to why he did not raise this specific argument prior to the close of the record,
he has not made such a showing. 5 C.F.R. § 1201.115(d). Moreover, we find the
appellant’s generalized assertion in this regard does not constitute a nonfrivolous
allegation that he was subjected to a constructive removal action, even considered
in conjunction with his other allegations. PFR File, Tab 1 at 5.
Accordingly, because the appellant failed to make a nonfrivolous allegation
of a cognizable agency personnel action that he raised before OSC, we agree with
the administrative judge that the Board lacks jurisdiction over his IRA appeal.
See 5 U.S.C. § 2302(a)(2)(A)(i)-(xii); Salerno, 123 M.S.P.R. 230, ¶ 5.
NOTICE OF APPEAL RIGHTS 6
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
action for purposes of this IRA appeal. 5 U.S.C. § 1214(a)(3); IAF, Tab 1 at 7-9, Tab 9
at 4-9; see Briley v. National Archives & Records Administration , 236 F.3d 1373, 1377
(Fed. Cir. 2001) (“The Board’s jurisdiction is limited to issues raised before the
OSC.”).
6
Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.
10
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
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
11
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 .
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
12
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. 7 The court of appeals must receive your petition for
7
The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510.
13
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.
14
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.