James Ball v. Department of Veterans Affairs ( 2024 )

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
JAMES C. BALL, DOCKET NUMBER
Appellant, AT-1221-18-0376-W-1
v.
DEPARTMENT OF VETERANS DATE: February 2, 2024
AFFAIRS,
Agency.
THIS ORDER IS NONPRECEDENTIAL 1
Sterling Deramus , Esquire, Birmingham, Alabama, for the appellant.
Michael Rhodes , Esquire, Montgomery, Alabama, for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
REMAND 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. For
the reasons discussed below, we GRANT the appellant’s petition for review, we
REVERSE the initial decision, and we REMAND the case to the regional office
for further adjudication in accordance with this Remand Order.
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
BACKGROUND
The appellant holds a GS-13 Clinical Psychologist position at the agency’s
Veterans Health Administration (VHA), Tuscaloosa Veterans Affairs Medical
Center (TVAMC). Initial Appeal File (IAF), Tab 1 at 1, Tab 5 at 4-5. In
November 2014, the Associate Chief of Staff (ACOS) of the Mental Health
Department recommended the appellant to serve as a member of the selection
panel for the Chief of Psychology Service position. IAF, Tab 5 at 6, 27. After
the appellant expressed concerns about the selection process, he was removed
from the panel by the Assistant ACOS of Mental Health, who served as the
selecting official and chair of the selection committee. Id. at 6-7, 28-32. The
eventual selectee for the Chief of Psychology Service position became the
appellant’s first-line supervisor. Id. at 7.
On April 6, 2018, the appellant filed the instant IRA appeal with the Board,
and he requested a hearing. IAF, Tab 1 at 1-14. He included with his initial
appeal a letter dated February 6, 2018, from the Office of Special Counsel (OSC).
Id. at 15-16. In this letter, OSC informed the appellant of its determination to
close its inquiry into his complaint and notified him of the right to seek corrective
action from the Board through an IRA appeal for alleged prohibited personnel
practices described under 5 U.S.C. § 2302(b)(8) or (b)(9)(A)(i), (B), (C), or (D).
IAF, Tab 1 at 15-16. OSC described the appellant’s complaint as alleging that he
made the following protected disclosures: he reported to the Veterans Affairs
(VA) Secretary that his supervisor had abused her power when she removed him
from a hiring panel; and he submitted a request under the Freedom of Information
Act (FOIA) regarding the hiring panel’s process and hiring decision. Id. at 15.
OSC further summarized the appellant’s complaint as alleging that he was given a
delineation of duties and a disciplinary reprimand in retaliation for making those
disclosures. Id.In an Order on Jurisdiction and Proof Requirements, the administrative
judge informed the appellant that there was a question regarding whether his
3
appeal was within the Board’s jurisdiction, apprised him of the elements and
burden of proving jurisdiction over an IRA appeal, and ordered him to file a
statement with accompanying evidence on the jurisdictional issue. IAF, Tab 3.
In response, the appellant alleged that he made the following seven disclosures:
(1) in November 2014, he complained to the Assistant ACOS about the
inappropriate selection process for the Chief of Psychology Service position;
(2) in November 2014, he complained to the ACOS about the
inappropriate selection process and his removal from the selection panel; (3) on
November 21, 2014, he emailed the VA Secretary about his concerns regarding
the inappropriate selection process and his removal from the selection panel;
(4) on January 30, 2015, he filed a request under the FOIA/Privacy Act for
information related to the selection process; (5) on April 15, 2015, he submitted
an additional request for information to the Acting Director of TVAMC; (6) in the
spring/summer of 2015, he filed complaints with the agency’s Office of General
Counsel (OGC) regarding the actions of his supervisor, the Assistant ACOS, and
the Acting Director; and (7) on September 11, 2015, he complained to the Acting
Director about retaliation by the Assistant ACOS and an increased workload from
his supervisor. IAF, Tab 5 at 14-15. The appellant further alleged that the
agency took the following three retaliatory actions: (1) on November 21, 2014,
he was removed from the selection panel; (2) on April 10, 2015, his supervisor
issued him a memorandum titled “Delineation of Duties,” which required him to
schedule 30 patients per week in addition to performing his other duties and
resulted in a significant increase in workload; and (3) on September 29, 2015, his
supervisor and the Assistant ACOS issued him a reprimand. Id. at 16. In
addition, the appellant raised allegations of a hostile work environment and
general retaliatory harassment. Id. at 5-6, 16. The agency argued in response
that the Board lacks jurisdiction over this appeal. IAF, Tab 6.
Without holding the requested hearing, the administrative judge issued a
May 2, 2018 initial decision dismissing this appeal for lack of jurisdiction. IAF,
4
Tab 7, Initial Decision (ID) at 1, 6. Although the administrative judge found that
the appellant proved exhaustion of his administrative remedy with OSC, the
administrative judge further found that the appellant failed to nonfrivolously
allege that he made a protected disclosure or engaged in other protected activity.
ID at 2-6.
The appellant has filed a petition for review. Petition for Review (PFR)
File, Tab 2. The agency has filed a response. PFR File, Tab 4.
DISCUSSION OF ARGUMENTS ON REVIEW
In his petition for review, the appellant claims that the administrative judge
failed to consider his response to the jurisdictional order. 2 PFR File, Tab 2 at 4-5,
29. The appellant has included an email dated May 2, 2018, in which the
administrative judge admits that he incorrectly stated in the initial decision that
the appellant failed to respond to the jurisdictional order. Id. at 32; ID at 2. The
administrative judge explains in the email that he was unaware of the appellant’s
pleading when he issued the initial decision. PFR File, Tab 2 at 32.
The record shows that the appellant timely filed a jurisdictional response
on April 23, 2018. 3 IAF, Tab 5. Accordingly, we agree with the appellant that
the administrative judge erred in failing to consider his response on the
dispositive issue of jurisdiction. Because the record has been fully developed on
the jurisdictional issue, we are able to consider the appellant’s response and to
make jurisdictional findings at this stage without remand.
2
In addition, the appellant reasserts on review the same or similar allegations that he
raised in his response to the jurisdictional order. Compare PFR File, Tab 2 at 5-29,
with IAF, Tab 5 at 4-25.
3
The administrative judge ordered the appellant to respond within 10 calendar days of
the date of the jurisdictional order, which was April 11, 2018. IAF, Tab 3 at 1, 8.
Because the filing deadline fell on Saturday, April 21, 2018, the appellant had until
Monday, April 23, 2018, to file a response. See 5 C.F.R. § 1201.23 (providing that, if a
filing deadline falls on a weekend or Federal holiday, the filing period includes the next
business day).
5
The Board’s jurisdiction is limited to those matters over which it has been
given jurisdiction by law, rule, or regulation. Maddox v. Merit Systems
Protection Board, 759 F.2d 9, 10 (Fed. Cir. 1985). An appellant bears the burden
of establishing the Board’s jurisdiction in an IRA appeal. 5 C.F.R. § 1201.57(b).
To establish jurisdiction in a typical IRA appeal, an appellant must prove by
preponderant evidence 4 that he exhausted his administrative remedies before OSC
and make nonfrivolous allegations 5 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)(2)(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. Once an appellant establishes jurisdiction over an IRA appeal,
he is entitled to a hearing on the merits of his claim, which he must prove by
preponderant evidence. Rebstock Consolidation v. Department of Homeland
Security, 122 M.S.P.R. 661, ¶ 9 (2015). For the following reasons, we reverse the
initial decision because we find that the appellant has established jurisdiction
over this IRA appeal.
The appellant proved by preponderant evidence that he exhausted his
administrative remedies before OSC.
Under 5 U.S.C. § 1214(a)(3), an employee is required to “seek corrective
action from [OSC] before seeking corrective action from the Board” through an
IRA appeal. Miller v. Federal Deposit Insurance Corporation, 122 M.S.P.R. 3,
¶ 6 (2014), aff’d, 626 F. App’x 261 (Fed. Cir. 2015). The Board, in Chambers v.
4
A preponderance of the evidence is the degree of relevant evidence that a reasonable
person, considering the record as a whole, would accept as sufficient to find that a
contested fact is more likely to be true than untrue. 5 C.F.R. § 1201.4(q).
5
A nonfrivolous allegation is an assertion that, if proven, could establish the matter at
issue. 5 C.F.R. § 1201.4(s).
6
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. 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.Here, the appellant did not provide a copy of his OSC complaint or any
other written correspondence to OSC. Nor did he submit an affidavit, sworn
statement, or declaration under penalty of perjury explaining what claims he
raised before OSC, as ordered by the administrative judge. IAF, Tab 3 at 7-8.
However, as described above, the appellant submitted a letter from OSC
identifying the claims that he raised in his complaint, and he does not dispute
OSC’s characterizations of his complaint. 6 IAF, Tab 1 at 15-16. Based on the
OSC letter, the administrative judge made a general finding that the appellant
proved by preponderant evidence that he exhausted his administrative remedy
with OSC regarding the alleged protected disclosures and personnel actions he
raised before OSC. ID at 2-3. Although we agree with this general finding, we
clarify and supplement the exhaustion analysis as follows.
6
We acknowledge that an IRA appeal is a de novo action, and the Board must therefore
rely on its independent analysis of the parties’ evidence and not on OSC’s
characterizations of the appellant’s allegations, which are not binding on the Board.
Bloom v. Department of the Army, 101 M.S.P.R. 79, ¶ 10 (2006). We only have
considered the appellant’s submission of the OSC letter as part of our exhaustion
analysis, and note that he has provided no other evidence of exhaustion.
7
Based on the appellant’s submission of the OSC letter, we find that he met
his burden of proving by preponderant evidence exhaustion of his OSC remedies
regarding his alleged disclosures in his November 21, 2014 email to the VA
Secretary and in his FOIA requests on January 30 and April 15, 2015, and the
alleged personnel actions of a delineation of duties and reprimand. IAF, Tab 1
at 15-16. However, we find that the appellant has failed to prove exhaustion of
his OSC remedies regarding the additional reprisal claims raised in this appeal
(i.e., alleged disclosures (1)-(2) and (6)-(7) and the alleged action of his removal
from the selection panel). In particular, the OSC letter does not mention any
alleged disclosures other than those made to the VA Secretary and in a FOIA
request. IAF, Tab 1 at 15-16; see Ward v. Merit Systems Protection Board,
981 F.2d 521, 526 (Fed. Cir. 1992) (finding that in an IRA appeal the
administrative judge justifiably refused to consider an issue that the appellant had
not properly raised before OSC). Neither does the OSC letter discuss any
allegedly retaliatory actions beyond a delineation of duties and a disciplinary
reprimand. IAF, Tab 1 at 15-16; see Ward, 981 F.2d at 526. Although the OSC
letter describes the appellant’s alleged removal from a hiring panel as the subject
of his alleged disclosure to the VA Secretary, this does not suggest that he
claimed before OSC that the removal itself was a retaliatory action. IAF, Tab 1
at 15. Moreover, to the extent the appellant alleges that the delineation of duties
and reprimand were part of a pattern of harassment creating a hostile work
environment, we find that he has failed to prove that he exhausted his OSC
remedies regarding such a claim. IAF, Tab 5 at 5-6, 16; see Savage v.
Department of the Army, 122 M.S.P.R. 612, ¶ 23 (2015) (finding that the creation
of a hostile work environment is itself a personnel action), overruled in part by
Pridgen v. Office of Management and Budget , 2022 MSPB 31, ¶¶ 23-25; see also
Ward, 981 F.2d at 526.
8
The appellant has nonfrivolously alleged that he made a protected disclosure that
was a contributing factor in a personnel action.
The next jurisdictional inquiry is whether the appellant has made a
nonfrivolous allegation that he made a protected disclosure or engaged in a
protected activity that was a contributing factor in a personnel action. See
Corthell, 123 M.S.P.R. 417, ¶ 8. A nonfrivolous allegation of a protected
disclosure is an allegation of facts 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.
section 2302(b)(8). Salerno v. Department of the Interior, 123 M.S.P.R. 230, ¶ 6
(2016). 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.To satisfy the contributing factor criterion at the jurisdictional stage, an
appellant only need raise a nonfrivolous allegation that the fact of, or content of,
the protected disclosure or activity was one factor that tended to affect the
personnel action in any way. See id., ¶ 13. Under the knowledge/timing test, an
appellant may nonfrivolously allege that the disclosure or activity was a
contributing factor in a personnel action through circumstantial evidence, such as
evidence that the official who took the personnel action knew of the 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. See 5 U.S.C. § 1221(e)(1); Salerno,
123 M.S.P.R. 230, ¶ 13.
9
Here, the appellant alleged that his disclosures concerning the selection
process for the Chief of Psychology Service position evidenced violations of a
law, rule, or regulation, and an abuse of authority. IAF, Tab 5 at 18-21.
Regarding his purported disclosure to the VA Secretary, the appellant asserted the
following specific details: on November 21, 2014, he emailed the VA Secretary
regarding the Assistant ACOS’s possible abuse of authority in undermining the
selection process and accused the Assistant ACOS of exercising “command
influence” to achieve the end she had in mind and he stated that her selection was
not one that would serve the best interests of TVAMC; and the VHA Acting
Deputy Chief of Staff responded to his email on December 10, 2014, and placed
the TVAMC Psychology Service on notice of his “grievances .” Id. at 7, 15. In
addition, the appellant submitted a copy of his email to the VA Secretary, which
itself included excerpts of his emails with the ACOS and the Assistant ACOS that
documented his appointment to and removal from the selection panel. Id.
at 27-33. In his email to the VA Secretary, the appellant expressed his belief that
the Assistant ACOS had a “hidden agenda” because she was not conducting the
selection process in accordance with standard procedures and with full
transparency. Id. at 33.
Based on the above, we find that the appellant has made a nonfrivolous
allegation that his purported disclosure to the VA Secretary regarding the
selection process for the Chief of Psychology Service position constitutes a
protected disclosure. Specifically, we find that the appellant has nonfrivolously
alleged that a reasonable person in his position could believe that his email to the
VA Secretary disclosed the Assistant ACOS’s abuse of authority in exercising her
power as the selecting official and chair of the selection committee to manipulate
the selection process. See Mc Corcle v. Department of Agriculture, 98 M.S.P.R.
363, ¶ 24 (2005) (stating that an “abuse of authority” occurs when there is an
arbitrary or capricious exercise of power by a Federal official or employee that
adversely affects the rights of any person or that results in personal gain or
10
advantage to himself or to preferred other persons). We further find that the
appellant has nonfrivolously alleged that a reasonable person could believe
that his email to the VA Secretary contained information evidencing a violation
of a law, rule, or regulation requiring impartial selection procedures . See
Swanson v. General Services Administration, 110 M.S.P.R. 278, ¶ 11 (2008)
(observing that any doubt or ambiguity as to whether the appellant has made a
nonfrivolous allegation of a reasonable belief should be resolved in favor of a
finding that jurisdiction exists). Although the administrative judge stated in the
initial decision that the appellant’s alleged disclosures concerned his own
personal grievances against the agency and that he did not have an altruistic
motive in making them, ID at 5-6, an employee’s motive for making a disclosure
does not preclude it from being protected under 5 U.S.C. § 2302(b)(8), see
5 U.S.C. § 2302(f)(1)(C); Ayers v. Department of the Army, 123 M.S.P.R. 11,
¶ 20 (2015) (explaining that, although an appellant’s motive in making a
disclosure may be relevant to the determination of a reasonable belief, a
disclosure is not excluded from protection based on the appellant’s motive).
Moreover, we find that the appellant has nonfrivolously alleged that a
delineation of duties that significantly increased his workload and a reprimand
are personnel actions. IAF, Tab 5 at 16; see 5 U.S.C. § 2302(a)(2)(A)(xii)
(defining “personnel action” as “any other significant change in
duties, responsibilities, or working conditions”); see also, e.g.,
Sutton v. Department of Justice, 94 M.S.P.R. 4, ¶ 12 (2003) (finding that a letter
of reprimand was a “personnel action” under 5 U.S.C. § 2302(a)(2)(A)(iii) as “an
action under chapter 75 of this title or other disciplinary or corrective action”),
aff’d, 97 F. App’x 322 (Fed. Cir. 2004). We further find that the appellant has
nonfrivolously alleged that his supervisor and the Assistant ACOS had knowledge
of his purported disclosure to the VA Secretary shortly before they issued him a
11
delineation of duties and a reprimand in April and September 2015, respectively. 7
IAF, Tab 5 at 5-7. Therefore, under the knowledge/timing test, we find that the
appellant has nonfrivolously alleged that his purported disclosure to the VA
Secretary regarding the selection process for the Chief of Psychology Service
position was a contributing factor towards the delineation of his duties that
increased his workload and his reprimand. See Salerno, 123 M.S.P.R. 230, ¶ 14
(observing that the Board has held that a personnel action taken within
approximately 1 to 2 years of the appellant’s disclosures satisfies the timing
component of the knowledge/timing test).
However, we find that the appellant has failed to make a nonfrivolous
allegation that his purported FOIA requests constitute protected disclosures. In
particular, the appellant made the following assertions regarding his purported
FOIA requests: on January 30, 2015, he filed a request under the FOIA/Privacy
Act for all information related to the selection process for the Chief of
Psychology Service position; on March 24, 2015, he received a partial response to
his request; on April 15, 2015, he submitted an additional request to the Acting
Director of TVAMC because the original response did not meet Federal guideline
requirements; and his request to the Acting Director was denied and was
forwarded to OGC, which has since accepted responsibility for investigating the
issue of noncompliance. IAF, Tab 5 at 7-8, 15. The appellant’s assertions fail to
specify what, if any, information was disclosed in his purported FOIA requests.
7
The record contains a memorandum dated September 11, 2015, that the appellant
allegedly submitted to the TVAMC Acting Director. IAF, Tab 5 at 8, 35. In this
memorandum, the appellant asserts that he filed a complaint with the VA Secretary
“specifically citing ‘command influence’ (abuse of authority),” and that the complaint
was forwarded to TVAMC. Id. at 35. The appellant further asserts in the memorandum
that he received a response that did not resolve his complaint and to which he objected.
Id. Based on the appellant’s memorandum and his assertion that the VHA Acting
Deputy Chief of Staff responded to his complaint on December 10, 2014, and placed the
TVAMC Psychology Service on notice of his grievances, we find that the appellant has
made a nonfrivolous allegation that his supervisor and the Assistant ACOS had
knowledge of his purported disclosure to the VA Secretary by December 10, 2014. Id.
at 7, 35.
12
Therefore, we find that the appellant’s vague assertions regarding his purported
FOIA requests fail to rise to the level of a nonfrivolous allegation of a protected
disclosure. 8 See El v. Department of Commerce, 123 M.S.P.R. 76, ¶ 6 (2015)
(stating that vague, conclusory, unsupported, and pro forma allegations of alleged
wrongdoing do not meet the nonfrivolous pleading standard needed to establish
the Board’s jurisdiction over an IRA appeal), aff’d, 663 F. App’x 921 (Fed. Cir.
2016).
Accordingly, we find that the appellant has established jurisdiction over his
claim that the delineation of duties, which resulted in an increase in his workload,
and reprimand were retaliation for making a protected disclosure to the VA
Secretary regarding the selection process for the Chief of Psychology Service
position. Thus, we remand this IRA appeal for a hearing on the merits of his
reprisal claim. See Rebstock Consolidation, 122 M.S.P.R. 661, ¶ 9. In that
proceeding, the appellant shall bear the burden of proving by preponderant
evidence that he made a protected disclosure that was a contributing factor in a
personnel action. Aquino v. Department of Homeland Security, 121 M.S.P.R. 35,
¶ 10 (2014).
8
Moreover, we find that the appellant has failed to make a nonfrivolous allegation that
his purported FOIA requests constitute protected activity described under 5 U.S.C.
§ 2302(b)(9)(A)(i), (B), (C), or (D). In particular, even if the appellant’s purported
April 15, 2015 request was an appeal of the agency’s insufficient response to his
original FOIA request for information related to the selection process, he does not claim
that he sought to remedy whistleblower reprisal in such a FOIA appeal. Thus, we find
that he has failed to nonfrivolously allege that such a FOIA appeal constitutes protected
activity described under 5 U.S.C. § 2302(b)(9)(A)(i). Cf. Mattison v. Department of
Veterans Affairs, 123 M.S.P.R. 492, ¶¶ 7-8 (2016) (finding that the appellant’s claim of
retaliation for filing a FOIA appeal in which he did not seek to remedy whistleblower
reprisal arose under 5 U.S.C. § 2302(b)(9)(A)(ii)).
13
ORDER
For the reasons discussed above, we remand this case to the regional office
for further adjudication in accordance with this Remand Order.
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.