Corey Dawson v. Department of the Air Force ( 2024 )

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
COREY DAWSON, DOCKET NUMBER
Appellant, SF-1221-20-0222-W-1
v.
DEPARTMENT OF THE AIR FORCE, DATE: July 25, 2024
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Cameron Ames , Joint Base Lewis-McChord, Washington, for the appellant.
Benjamin Signer , Esquire, Joint Base Andrews, Maryland, 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 for lack of jurisdiction his Individual Right of Action (IRA) appeal
alleging whistleblower retaliation. On review, the appellant argues that two
additional witnesses have come forth to support his claims of retaliation. Petition
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
for Review (PFR) File, Tab 5 at 3-6. The appellant does not address the issue of
jurisdiction on review. Generally, we grant petitions such as this one only in the
following circumstances: the initial decision contains erroneous findings of
material fact; the initial decision is based on an erroneous interpretation of statute
or regulation or the erroneous application of the law to the facts of the case; the
administrative 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
properly characterize the appellant’s claims in front of the Board, we AFFIRM
the initial decision.
BACKGROUND
The appellant worked as an Aircraft Engine Mechanic, WG-10, in the
agency’s Air Mobility Command at McChord Air Force Base in Pierce,
Washington. Initial Appeal File (IAF), Tab 7 at 17. On October 16, 2017, the
appellant filed a grievance through his union alleging hostile work environment
and harassment against his first-line supervisor. IAF, Tab 8 at 48-52. The
appellant’s grievance was resolved at the Step 1 level on or about November 14,
2017. Id. at 58-59. Over a year later, the agency posted a vacancy announcement
for an Equipment Specialist (Aircraft Propulsion), GS-11. Id. at 38-46. The
appellant applied for the position but was not selected. IAF, Tab 9 at 4, Tab 10 at
4-5.
3
On July 26, 2019, the appellant filed a complaint with the Office of Special
Counsel (OSC), alleging that the agency did not select him for the Equipment
Specialist position in retaliation for filing a grievance alleging a hostile work
environment. IAF, Tab 5 at 10. On November 15, 2019, OSC notified the
appellant that he had a right to file an IRA appeal with the Board. Id. at 10, 12.
In the letter, OSC stated that the appellant alleged that the agency “took adverse
actions against [him] because of [his] protected activities,” i.e., that the agency
did not select him for the Equipment Specialist position because he filed a
grievance “in or around January 2019.” 2 Id. at 10. However, in his appeal with
the Board, the appellant claimed he was retaliated against for filing a grievance in
October 2017. 3 Id. at 8. The appellant did not provide a copy of his OSC
complaint at any point below or on review.
On January 21, 2020, the appellant filed an IRA appeal with the Board,
alleging that the agency failed to select him for the Equipment Specialist position
in retaliation for filing a grievance in October 2017. IAF, Tab 1, Tab 5 at 8. The
administrative judge issued a Jurisdictional Order setting forth the necessary
standards to establish Board jurisdiction. IAF, Tab 3. After the appellant
responded to the order, the administrative judge issued an initial decision
dismissing the appellant’s appeal for lack of jurisdiction, finding that the
appellant failed to make a nonfrivolous allegation that he made a protected
disclosure and/or engaged in protected activity, and that he failed to
nonfrivolously allege that he had exhausted his administrative remedies with
regards to the October 2017 grievance. IAF, Tab 11, Initial Decision (ID).
2
In its letter, OSC references an email it sent to the appellant regarding his complaint.
IAF, Tab 10 at 8. The appellant did not provide a copy of OSC’s email.
3
The appellant stated that he was retaliated against for filing a grievance in November
2017; however, a copy of the grievance establishes that the grievance was filed in
October 2017, and resolved in November 2017. IAF, Tab 5 at 8, Tab 8 at 48-52, 58-59.
4
DISCUSSION OF ARGUMENTS ON REVIEW
The appellant exhausted his administrative remedies for the October 2017
grievance.
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;
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. Here, the administrative judge determined that the appellant
failed to exhaust his administrative remedies regarding the October 2017
grievance because OSC stated that the appellant alleged that he was retaliated
against for a grievance filed “in or around January 2019.” ID at 6-7. However,
we find that the appellant did in fact exhaust with OSC his allegation that he filed
an October 2017 grievance. OSC stated that the appellant alleged in his
complaint that he was retaliated against for filing a grievance regarding a hostile
work environment. IAF, Tab 5 at 10. It is undisputed that the appellant filed a
grievance in October 2017 alleging a hostile work environment. IAF, Tab 8 at
48-52. Further, in his response to the jurisdiction order, the appellant alleged that
he was retaliated against for filing the October 2017 grievance. IAF, Tab 5 at 8.
There is no evidence in the record that the appellant filed any grievance other
than the October 2017 grievance. Under the circumstances, we find that the
appellant did exhaust his administrative remedies by asserting to OSC that he was
retaliated against for filing a grievance alleging hostile work environment in
October 2017, and we modify the initial decision accordingly.
5
The appellant did not allege that he made a protected disclosure pursuant to
5 U.S.C. § 2302(b)(8).
In the initial decision, the administrative judge analyzed whether the
appellant made a nonfrivolous allegation that he made a protected disclosure that
was a contributing factor in his nonselection. ID at 5-6. We find this analysis to
be unnecessary, as the appellant has only alleged that he engaged in a protected
activity under 5 U.S.C. § 2302(b)(9), i.e., filing a grievance. IAF, Tab 5 at 8, 10.
Thus, we find the administrative judge’s protected disclosure analysis
unnecessary and we modify the initial decision accordingly.
The administrative judge correctly determined that the appellant failed to
nonfrivolously allege that he engaged in a protected activity.
We agree with the administrative judge’s determination that the appellant
failed to nonfrivolously allege that his grievance was a protected activity. ID
at 6-8. The Board has jurisdiction over an IRA appeal if the appellant has
exhausted his administrative remedies before OSC and makes a nonfrivolous
allegation 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); 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. Graves v. Department of Veterans
Affairs, 123 M.S.P.R. 434, ¶ 12 (2016). Reprisal for exercising a grievance right,
such as exercised by the appellant in this appeal, is a prohibited personnel
practice under 5 U.S.C. § 2302(b)(9), not 5 U.S.C. § 2302(b)(8). Compare
5 U.S.C. § 2302(b)(9)(A), with 5 U.S.C. § 2302(b)(8); Mudd v. Department of
Veterans Affairs, 120 M.S.P.R. 365, ¶ 6. The Board only has jurisdiction over
claims of reprisal for a grievance arising under 5 U.S.C. § 2302(b)(9)(A)(i),
which prohibits retaliation for exercising any appeal, complaint, or grievance
right relating to whistleblowing, i.e., retaliation for seeking to remedy a violation
of 5 U.S.C. § 2302(b)(8). Young v. Merit Systems Protection Board, 961 F.3d
1323, 1329 (Fed. Cir. 2020); see Mudd, 120 M.S.P.R. 365, ¶ 7 (explaining that
6
the Board does not have jurisdiction over the appellant’s claims of retaliation for
a grievance that did not concern remedying a violation of 5 U.S.C. § 2302(b)(8)).
The appellant did not allege retaliation for any protected disclosures in his
October 2017 grievance, and thus the grievance did not seek to remedy a
violation of 5 U.S.C. § 2302(b)(8). IAF, Tab 8 at 48-52. Therefore, the October
2017 grievance is not a protected activity, and the Board does not have
jurisdiction over the appellant’s claim of retaliation. Thus, the appellant has not
established that his grievance was a protected activity, nor has he established that
his grievance constituted a protected disclosure. Accordingly, we agree with the
administrative judge’s determination to dismiss the appeal for lack of jurisdiction.
NOTICE OF APPEAL RIGHTS 4
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
4
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.
7
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(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
8
judicial review of this decision—including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board, 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court-appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
9
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. 5 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
5
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.
10
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.