Okwudili F Chukwuani v. Department of Veterans Affairs ( 2024 )

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
DR. OKWUDILI FRANCIS DOCKET NUMBER
CHUKWUANI, CH-1221-21-0033-W-1
Appellant,
v.
DATE: November 26, 2024
DEPARTMENT OF VETERANS
AFFAIRS,
Agency.
THIS ORDER IS NONPRECEDENTIAL 1
Dr. Okwudili Francis Chukwuani , Solon, Ohio, pro se.
Nicholas E. Kennedy , Akron, Ohio, for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
Henry J. Kerner, Member*
*Member Kerner recused himself and
did not participate in the adjudication of this appeal.
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
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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 reasons discussed below, we GRANT the appellant’s petition for review,
REVERSE the initial decision, and REMAND the case to the regional office for
further adjudication in accordance with this Remand Order.
BACKGROUND
The appellant is employed as a Primary Care Physician at the Veterans
Affairs Medical Center in Chillicothe, Ohio. Initial Appeal File (IAF), Tab 1
at 1. On October 21, 2020, he filed an appeal with the Board alleging that the
agency retaliated against him by detailing him and placing him on a summary
suspension because of disclosures he made to individuals in his Regional Veteran
Integrated Service Network (VISN 10), in his equal employment opportunity
(EEO) complaint, and in completed annual all-employee surveys concerning an
abuse of authority, unsafe work practices, and a hostile work environment. Id.
at 5. The appellant also provided a document titled “summary of events in
chronological sequence” identifying a number of purported instances of
wrongdoing committed against him by agency officials during the period from
July 18, 2019, through the date of filing of his Board appeal. Id. at 14-18.
Additionally, the appellant provided an October 20, 2020 close-out letter from the
Office of Special Counsel (OSC) wherein OSC indicated that it was closing its
investigation into the appellant’s allegations that he was subjected to a retaliatory
detail and a summary suspension of his privileges for filing an EEO complaint, an
agency grievance, and a previous OSC complaint. Id. at 20. The appellant
requested a hearing on the matter. Id. at 2.
The administrative judge issued a jurisdictional order wherein he explained
the circumstances under which the Board has jurisdiction to adjudicate IRA
appeals and ordered the appellant to file specific evidence and argument
regarding jurisdiction. IAF, Tab 3 at 1-8. The appellant submitted a number of
filings in response to the administrative judge’s order, see IAF, Tabs 6, 9-11, 15,
and the agency moved to dismiss the appeal for lack of jurisdiction, IAF, Tab 8.
3
Without holding the appellant’s requested hearing, the administrative judge
issued an initial decision dismissing the appeal for lack of jurisdiction. IAF,
Tab 17, Initial Decision (ID) at 2, 8. The administrative judge determined that
although the appellant had described a number of allegations of a hostile work
environment, including being detailed and having his clinical privileges
suspended, he had failed to identify any protected disclosures that prompted these
purportedly retaliatory actions. ID at 6.
To the extent the appellant was relying on his EEO complaint in alleging
that the agency discriminated against him as the basis for his protected disclosure,
the administrative judge determined that it did not qualify as a protected
disclosure under section 2302(b)(8) because it did not involve a violation of a
law, rule, or regulation, and instead pertained only to matters of discrimination
covered under section 2302(b)(1)(A). ID at 6-7. Additionally, with regard to the
2017 through 2020 annual all-employee surveys the appellant identified as
another potential source of his disclosures, the administrative judge determined
that the appellant’s statement that his responses in the surveys were intended to
“constructively comment on what can improve the system” were vague and
insufficiently detailed and did not identify any of the categories of wrongdoing
covered under section 2302(b)(8). ID at 7. Consequently, the administrative
judge concluded that the appellant failed to meet his burden of making a
nonfrivolous allegation that he had made a protected disclosure under 5 U.S.C.
§ 2302(b)(8). ID at 8.
The appellant has filed a petition for review disputing the administrative
judge’s jurisdictional finding. Petition for Review (PFR) File, Tab 1. The
agency has not filed a response to the appellant’s petition for review.
4
DISCUSSION OF ARGUMENTS ON REVIEW
To establish jurisdiction in an IRA appeal, an appellant must show by
preponderant evidence 2 that he exhausted his remedies before OSC and make
nonfrivolous allegations 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). Corthell v. Department of
Homeland Security, 123 M.S.P.R. 417, ¶ 8 (2016), overruled on other grounds by
Requena v. Department of Homeland Security , 2022 MSPB 39. A nonfrivolous
allegation is an assertion that, if proven, could establish the matter at issue.
5 C.F.R. § 1201.4(s). The U.S. Court of Appeals for the Federal Circuit has
found that, in the context of an IRA appeal, a nonfrivolous allegation is an
allegation of “sufficient factual matter, accepted as true, to state a claim that is
plausible on its face.” Hessami v. Merit Systems Protection Board, 979 F.3d
1362, 1364, 1369 (Fed. Cir. 2020). Any doubt or ambiguity as to whether the
appellant made nonfrivolous jurisdictional allegations should be resolved in favor
of affording the appellant a hearing. Grimes v. Department of the Navy,
96 M.S.P.R. 595, ¶ 12 (2004). Whether the appellant’s allegations can be proven
on the merits is not part of the jurisdictional inquiry. Lane v. Department of
Homeland Security, 115 M.S.P.R. 342, ¶ 12 (2010).
At the outset, we must note that our analysis is constrained by the
appellant’s jurisdictional pleadings. See IAF, Tabs 6, 9, 15. The administrative
judge gave explicit instructions that the appellant was to provide specific
information concerning his protected disclosures and activities. IAF, Tab 3
at 7-8. Instead, the appellant’s jurisdictional pleadings are at times difficult to
follow. A party before the Board ignores an administrative judge’s order at his
2
Preponderant 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
own peril. Mendoza v. Merit Systems Protection Board, 966 F.2d 650, 653-54
(Fed. Cir. 1992) (en banc). Nevertheless, we have given the appellant’s pleadings
a fair reading.
The appellant nonfrivolously alleged that he made a protected disclosure under
5 U.S.C. § 2302(b)(8).
A protected disclosure is a disclosure that an employee reasonably believes
evidences any violation of any law, rule, or regulation, or gross mismanagement,
a gross waste of funds, an abuse of authority, or a substantial and specific danger
to public health or safety. Mudd v. Department of Veterans Affairs, 120 M.S.P.R.
365, ¶ 5 & n.3 (2013); see 5 U.S.C. § 2302(b)(8). The proper test for determining
whether an employee had a reasonable belief that his disclosures were protected
is whether a disinterested observer with knowledge of the essential facts known to
and readily ascertainable by the employee could reasonably conclude that the
actions evidenced any of the conditions set forth in 5 U.S.C. § 2302(b)(8). Mudd,
120 M.S.P.R. 365, ¶ 5. The disclosures must be specific and detailed, not vague
allegations of wrongdoing. Salerno v. Department of the Interior, 123 M.S.P.R.
230, ¶ 6 (2016). In determining whether an appellant has made a nonfrivolous
allegation of a disclosure, the Board may consider matters incorporated by
reference, matters integral to the appellant’s claim, and matters of public record.
Hessami, 979 F.3d at 1369 n.5.
In the initial decision, the administrative judge found that the appellant
failed to nonfrivolously allege that he made any protected whistleblowing
disclosures. ID at 8. On review, the appellant reasserts his claim that he made
protected disclosures under section 2302(b)(8) concerning an abuse of authority,
unsafe work practices, and a hostile work environment to members of his
supervisory chain, in his EEO complaint, and in his all-employee surveys. PFR
File, Tab 1 at 4-5. We turn now to consider each of the appellant’s arguments.
6
The appellant failed to nonfrivolously allege that he made any protected
disclosures in the all-employee surveys.
In his initial appeal and his jurisdictional response, the appellant alleged
that he complained about abuse of authority, unsafe work practices, and a hostile
work environment in the agency’s 2018, 2019, and 2020 all-employee surveys.
IAF, Tab 1 at 5, 18, Tab 6 at 5-6, 8. In the initial decision, the administrative
judge concluded that the appellant failed to make a nonfrivolous allegation that
he disclosed any of the types of wrongdoing described in 5 U.S.C. § 2302(b)(8) in
connection with his all-employee survey submissions, noting that aside from
generally stating that he completed the surveys every year beginning in 2017 in
an attempt to “constructively comment on what can improve the [agency’s]
system,” the appellant failed to identify any specific deficiencies in the agency’s
existing procedures that he identified in his disclosures, so his allegations were
little more than vague allegations of wrongdoing lacking in any specific detail.
ID at 7.
We agree. In describing the nature of his purported disclosures in the
all-employee surveys, the appellant does not provide any degree of detail, stating
only that he completed the surveys for each of the years from 2017 through 2020
without providing any specific information about the nature of the allegations
contained in the surveys or identifying when he completed each of the surveys.
See IAF, Tab 6 at 5-6. He also does not provide copies of the submitted surveys
with his jurisdictional pleadings, and the pages that he cites regarding the dates
he submitted the surveys do not contain the identified information. Id. at 5 n.9, 6
nn. 16, 19 (citing id. at 261, 287). The only reference the appellant makes to any
purported disclosure in an all-employee survey is his allegation that he addressed
the “abnormal circumstances” surrounding his August 2020 detail, but he does
not provide a copy of the 2020 survey (the only survey that could have been
completed after the appellant’s detail), nor does he identify when he completed
the survey or provide any other information about the nature of his purported
7
disclosure. Id. at 8. Finally, the only other material in the jurisdictional
pleadings referencing the all-employee surveys include a copy of email
instructions for completing the 2019 survey and an August 28, 2017 email
response providing the appellant with instructions for how to complete the 2017
survey. See id. at 264, 290.
As previously noted, disclosures must be specific and detailed, and vague,
conclusory, and pro forma allegations do not meet the nonfrivolous allegation
standard needed to establish the Board’s jurisdiction over an IRA appeal. See
Salerno, 123 M.S.P.R. 230, ¶ 6; El v. Department of Commerce, 123 M.S.P.R. 76,
¶ 6 (2015), aff’d, 663 F. App’x 921 (Fed. Cir. 2016). Accordingly, we conclude
that the appellant failed to nonfrivolously allege that he made a protected
disclosure under 5 U.S.C. § 2302(b)(8) in connection with his completion of the
agency’s 2017, 2018, 2019, and 2020 all-employee surveys.
The appellant failed to exhaust his purported disclosure concerning the
agency’s policy governing the use of Omnicell.
Although not addressed in the initial decision, we take this opportunity to
discuss the appellant’s purported disclosure regarding the agency’s use of
Omnicell systems. In his jurisdictional filing, the appellant identified one of his
disclosures as a complaint he made about “some unprofessional attitudes in the
use of Omnicell in June 2019,” and in a footnote discussing this purported
disclosure he directs the reader to page 262 of the attachments to his
jurisdictional filing. IAF, Tab 6 at 5-6, n.15. Page 262 of the pleading is a copy
of a March 15, 2020 email and does not include any references to “Omnicell,” but
page 265 contains a copy of a July 5, 2019 email chain with the subject heading
“RE: Omnicell,” in which the appellant responds to a July 3, 2019 message from
another agency employee clarifying that providers are instructed to retrieve and
administer medications from Omnicell themselves after verifying an order. IAF,
Id. at 262, 265. In his response email, the appellant expresses his disagreement
with “the plan to have physician/providers to be obtaining medications from the
8
Omnicell” for a number of reasons, including that “it is a distraction for
physicians to leave his patient in the room to go and scan through the Omnicell in
search of medications,” noting that it takes time away from the physician’s work
for veterans, is unfair for the veterans and not in their best interest, and stating
his view that “[t]he safety of the patient is not enhanced by the physician
obtaining the medications from the Omnicell.” Id. at 265. In his petition for
review, the appellant cites this same language from his narrative pleading and
provides an example of an “adverse outcome” that might result for a patient while
a physician absents himself to go to an Omnicell cabinet. PFR File, Tab 1 at 7-8.
The Board has previously found that disclosures raising concerns related to
patient neglect or substandard levels of care are protected. See, e.g., Parikh v.
Department of Veterans Affairs, 116 M.S.P.R. 197, ¶ 15 (2011) (determining that
disclosing medical errors such as delays in treatment, misdiagnoses, and
placement of patients in inappropriately low levels of care could constitute
disclosures of a substantial and specific danger to public health and safety);
Peterson v. Department of Veterans Affairs, 116 M.S.P.R. 113, ¶ 12 (2011)
(finding that the appellant nonfrivolously alleged that she disclosed a substantial
and specific danger to public health and safety when she disclosed that ongoing
improper patient care and procedures jeopardized and adversely affected the
health and safety of patients); Poster v. Department of Veterans Affairs,
92 M.S.P.R. 501, ¶¶ 3, 8 (2002) (concluding that an appellant disclosed a likely
and imminent harm to public health and safety in reporting that patients were
receiving inadequate and substandard medical care), aff’d, 71 F. App’x 851 (Fed.
Cir. 2003). Construing the appellant’s jurisdictional pleading in the most
favorable light with the understanding that at the jurisdictional stage, an appellant
need only provide sufficient specificity and substantiality to support a reasonable
belief that he disclosed evidence of one of the categories of wrongdoing described
in section 2302(b)(8), the appellant could have reasonably believed that he was
disclosing a substantial and specific danger to public health and safety when he
9
challenged the agency’s prevailing policy requiring that physicians leave patients
unattended in order to retrieve and dispense medications from Omnicell cabinets.
Turning to the question of exhaustion of this potential disclosure, 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. 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. Finally, appellants must prove exhaustion with OSC by
preponderant evidence, not just present nonfrivolous allegations of exhaustion.
5 C.F.R. § 1201.57(c)(1).
Although the appellant did not provide a copy of the complaint that he
submitted to OSC, in discussing the purported Omnicell disclosure in the
narrative section of his jurisdictional response, the appellant states only that he
disclosed his concerns about the procedures for using Omnicell to “the primary
care leadership, the acting chief of staff[,] and members of my team,” without any
mention of reporting this disclosure to OSC. IAF, Tab 6 at 6. Additionally, with
his jurisdictional pleading, the appellant provided copies of a preliminary
response and an additional letter from OSC stating its intention to close out his
complaint, annotated with the appellant’s responses to the OSC attorney. IAF,
10
Tab 6 at 155-59, 219-20. Neither of OSC’s letters mention the appellant’s
purported Omnicell disclosure, nor do the appellant’s annotated responses, even
though they do mention a number of his other purported disclosures and
activities. See id. Consequently, we find that the appellant has failed to
demonstrate that he exhausted his administrative remedies regarding his concerns
about the safety of the agency’s policy governing the use of Omnicell because
there is no evidence in the record that he reported the content of this purported
disclosure to OSC or that OSC investigated this disclosure.
The appellant nonfrivolously alleged that he was subjected to an abuse of
authority when he was detailed to the wound care unit in August 2020.
In his jurisdictional pleading, one of the disclosures the appellant identifies
is his claim that his supervisor’s decision to terminate his service in the primary
care unit and detail him to the wound care unit on August 12, 2020, constituted an
“abuse of power and discretion,” and he challenges the “abnormal circumstances”
surrounding the decision to abruptly detail him, despite the fact that there “was
no allegation of professional incompetence or adverse peer review” against him.
IAF, Tab 6 at 7-8. In his petition for review, the appellant restates his claim that
his service in the primary care unit was terminated “under the guise of a
temporary detail to wound care services,” and states his belief that this detail was
an “abuse of authority because there was no justification and it was not in the best
interest of veterans.” PFR File, Tab 1 at 9.
One of the categories of wrongdoing specified in section 2302(b)(8) is an
abuse of authority. See 5 U.S.C. § 2302(b)(8)(A)(ii). 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 results in
personal gain or advantage to himself or preferred other persons. Pasley v.
Department of the Treasury, 109 M.S.P.R. 105, ¶ 18 (2008). There is no de
minimis standard for abuse of authority as a basis of a protected disclosure. Id.Furthermore, the Board has recognized that harassment or intimidation of other
11
employees may constitute an abuse of authority. See, e.g., Ayers v. Department
of the Army, 123 M.S.P.R. 11, ¶ 14 (2015); Pasley, 109 M.S.P.R. 105, ¶ 18. A
supervisor’s use of influence to denigrate staff members in an abusive manner and
to threaten the careers of staff members with whom he disagrees may also
constitute an abuse of authority. Pasley, 109 M.S.P.R. 105, ¶ 18.
Although the administrative judge generally considered the appellant’s
allegations concerning his detail to the wound care unit within the context of his
hostile work environment claim, he did not separately consider the appellant’s
argument that he was disclosing an abuse of authority by challenging the manner
in which he was detailed. ID at 6. In explaining the basis for his claim that the
detail to wound care services constituted an abuse of authority in his annotated
response to OSC’s preliminary decision, the appellant stated that although the
supervisor who issued the detailing memorandum suggested that the detail was
for the appellant’s own safety, it was his belief that the detail was “a covert way
of removing me from primary care and removing me from my work location.”
IAF, Tab 6 at 156-57. In email exchanges the appellant included in his
jurisdictional response, he responded to the supervisor who issued the detailing
memorandum by stating his belief that the detail was not in the best interest of his
patients, was not in his own best interest, was incompatible with his personal
philosophy concerning providing care, and would not enhance his outcome, and
alleging that the detail “serves only the interest of those who have been
attempting to bully me out of the service.” Id. at 151-52. Giving the appellant’s
allegations the most charitable possible reading and with a recognition that he is
proceeding pro se, under these circumstances, we find that he made a
nonfrivolous allegation that he disclosed a matter that a reasonable person in his
position could believe evidenced an abuse of authority when agency officials
decided to detail him without regard for the impact the decision would have on
patient care outcomes. Ayers, 123 M.S.P.R. 11, ¶ 14; Pasley, 109 M.S.P.R. 105,
12
¶ 18; see Miles v. Department of Veterans Affairs, 84 M.S.P.R. 418, ¶ 6 (1999)
(explaining that the Board construes pro se pleadings liberally).
Regarding exhaustion of this purported disclosure with OSC, in his
response to the jurisdictional order, the appellant stated that he “immediately
disclosed” this purported disclosure to OSC. IAF, Tab 6 at 7. Additionally, he
provided copies of correspondences regarding the detail that were forwarded to
the OSC attorney assigned to his case on the day he was detailed, and in his
response to OSC’s preliminary determination letter stating its intention to close
out his complaint, he identifies this disclosure, stating that “the process of
detailing [me] demonstrates flagrant abuse of authority and failure to follow the
due process of the law . . . .” Id. at 133-34, 157. Consequently, we find that the
appellant exhausted his administrative remedies regarding this disclosure.
The appellant nonfrivolously alleged that he engaged in protected whistleblowing
activity under 5 U.S.C. § 2302(b)(9).
The appellant did not make a nonfrivolous allegation that he engaged in
protected activity in connection with his EEO complaint.
Regarding the appellant’s allegation that agency officials retaliated against
him for his protected activity of filing an EEO complaint, the administrative
judge determined that the appellant’s EEO complaint did not constitute protected
activity because it pertained only to matters of discrimination covered under
5 U.S.C. § 2302(b)(1)(A) and did not address matters covered under
section 2302(b)(8). ID at 6-7. Protected activity under 5 U.S.C.
§ 2302(b)(9)(A)(i) includes “the exercise of any appeal, complaint, or grievance
right granted by any law, rule, or regulation . . . with regard to remedying a
violation of [5 U.S.C. § 2302(b)(8)].” 5 U.S.C. § 2302(b)(9)(A)(i) (emphasis
added). Thus, an EEO complaint may be protected under 5 U.S.C.
§ 2302(b)(9)(A)(i) if the complaint sought to remedy a violation of 5 U.S.C.
§ 2302(b)(8). Bishop v. Department of Agriculture, 2022 MSPB 28, ¶¶ 15-16.
13
In his jurisdictional pleading, the appellant provided a summary of his
informal EEO complaint, a copy of his formal EEO complaint, email
correspondences with the agency’s Office of Resolution Management (ORM)
regarding his complaint, copies of summaries of testimony from agency officials
in connection with his EEO complaint, his rebuttal statement in response to
testimony from agency officials, ORM’s formal complaint acceptance, several
complaint amendment notices, and a notice referring his formal complaint to
counseling. IAF, Tab 6 at 13-43, 70-128, 275, 335-39. In his EEO complaint, the
appellant alleged that he had been subjected to harassment and a hostile work
environment based on his race and national origin and in reprisal for his EEO
activity when agency officials took a number of actions against him, including
reprimanding and suspending him, canceling his clinics, confiscating his Personal
Identify Verification card, deleting images from his camera, preventing him from
seeing patients, charging him with AWOL and denying his leave requests, and
changing his duty assignments. Id. at 36-39, 336-37, 339.
These instances involve the appellant’s general workplace disagreements
with his supervisors and other agency officials, and none of these incidents
involve his challenge of a violation of 5 U.S.C. § 2302(b)(8). 3 As the
administrative judge correctly observed, such a complaint is not directed at
remedying a violation of any of the categories of wrongdoing identified in
section 2302(b)(8), and thus would not constitute protected activity under
section 2302(b)(9)(A)(i). See Young v. Merit Systems Protection Board, 961 F.3d
1323, 1329 (Fed. Cir. 2020) (stating that allegations of retaliation for exercising a
Title VII right do not fall within the scope of section 2302(b)(8)); Bishop,
2022 MSPB 28, ¶16 (explaining that a disclosure of one of the categories of
3
Additionally, in an email correspondence with OSC, the appellant seemingly
acknowledges that the nature of his EEO complaint was limited to allegations of
discrimination and reprisal for exercising his rights under Title VII, stating “I did not
contact the OSC for discrimination – I have already filed multiple EEOs (x 3) for
discrimination on the basis of nationality of origin and for adverse working
environment.” IAF, Tab 6 at 160.
14
wrongdoing specified in section 2302(b)(8)(A) without any allegation of
whistleblower reprisal is insufficient to constitute a nonfrivolous allegation of
protected activity under section 2302(b)(9)(A)(i)). Consequently, we agree with
the administrative judge’s conclusion that the appellant failed to nonfrivolously
allege that he engaged in protected whistleblowing activity with respect to his
EEO complaint.
The appellant did not make a nonfrivolous allegation that he engaged in
protected activity in connection with his May 2019 grievance.
Although not specifically addressed in the initial decision, in his
jurisdictional response, the appellant identified a formal grievance in May 2019
as one of his purported protected disclosures or activities. IAF, Tab 6 at 6. The
appellant has not provided a copy of the grievance or explained the subject matter
of the grievance other than to say that it concerned a reprimand he received in
April 2019. See id. at 6 n.22 (citing id. at 88) (noting that the appellant was
issued a letter of reprimand in April 2019), 9 n.37. The only other information in
the record referencing the reprimand that appears to be the source of the
appellant’s grievance are in his EEO complaint materials, which identify that he
was issued a proposed reprimand on April 5, 2019, and reprimanded on April 26,
2019, and a July 22, 2019 email exchange from a union official stating that the
union could not assist the appellant in pursuing the grievance. Id. at 21, 37, 267.
Based on the existing record, we cannot discern the nature of the
appellant’s grievance. Therefore, we conclude that he has failed to
nonfrivolously allege that his May 2019 grievance was in regard to remedying a
violation of 5 U.S.C. § 2302(b)(8), which is a requirement for the Board to have
jurisdiction pursuant to 5 U.S.C. §§ 1221(a), 2302(b)(9)(A)(i). See Mudd,
120 M.S.P.R. 365, ¶¶ 2, 7 (finding that the substance of the appellant’s grievance
did not involve remedying a violation of subsection 2302(b)(8) and the
administrative judge correctly determined that the Board lacks jurisdiction to
consider such allegations in the context of an IRA appeal).
15
The appellant made a nonfrivolous allegation that he engaged in protected
activity through his disclosure of information to OSC and showed that he
exhausted his administrative remedies regarding this activity.
Under 5 U.S.C. § 2302(b)(9)(C), an employee engages in protected activity
when he cooperates with or discloses information to an agency’s Office of the
Inspector General (OIG) and OSC. Fisher v. Department of the Interior,
2023 MSPB 11, ¶ 8. Disclosures of information to an agency’s OIG or to OSC
are protected, regardless of their content, as long as such disclosures are made “in
accordance with applicable provisions of law.” Id. (explaining that, under the
broadly worded provision of 5 U.S.C. § 2302(b)(9)(C), any disclosure of
information to OIG is protected regardless of its content as long as such
disclosure is made in accordance with applicable provisions of law).
In the initial decision, the administrative judge did not consider the
appellant’s allegation that he engaged in protected activity under 5 U.S.C.
§ 2302(b)(9)(C) when he cooperated with or disclosed information to OSC. For
the following reasons, we conclude that this was error and find that the appellant
made a nonfrivolous allegation that he engaged in protected activity when he
disclosed information to OSC and that he exhausted his administrative remedies
with OSC regarding this claim.
In the section of his jurisdictional pleading discussing his purported
disclosures and the dates that he made those disclosures, the appellant identified
his OSC complaint as one of his protected disclosures or activities. IAF, Tab 6
at 6. Additionally, in its preliminary response to the appellant’s complaint, OSC
identified the appellant’s allegation that his temporary detail “was instigated in
retaliation for protected activity, namely, [his] previous OSC complaint . . .” as
one of the matters under investigation and analyzed this allegation as a possible
violation of 5 U.S.C. § 2302(b)(9). IAF, Tab 6 at 219. OSC also identified the
OSC file number for a prior complaint filed by the appellant, which differs from
the file number associated with the OSC complaint at issue in the instant IRA
16
appeal. Compare id. at 219 (identifying the prior OSC file number as MA-19-
4798), with IAF, Tab 1 at 20 (identifying the OSC file number for the OSC
complaint at issue in this IRA appeal as MA-20-1680 in the OSC’s close-out
letter).
Although the appellant has not provided a copy of his prior OSC complaint
or provided any information concerning the nature of his prior disclosure to OSC,
as previously noted, disclosures to OSC are protected without regard for the
content of such disclosures. Fisher, 2023 MSPB 11, ¶ 8. Accordingly, we find
that the appellant made a nonfrivolous allegation that he engaged in protected
activity under 5 U.S.C. § 2302(b)(9)(C) through his prior disclosure of
information to OSC. Further, insofar as the appellant provided correspondence
with OSC evincing that he raised this protected activity with OSC and that OSC
investigated his claim, we also find that he showed by preponderant evidence that
he exhausted his administrative remedies regarding the same. See IAF, Tab 1
at 20, Tab 6 at 155-59, 219-20.
The appellant made a nonfrivolous allegation of two personnel actions under
5 U.S.C. § 2302(a), and he showed that he exhausted his administrative remedies
regarding both personnel actions.
The term “personnel action” is defined at 5 U.S.C. § 2302(a)(2)(A) and
covers a variety of agency actions, including significant changes in duties,
responsibilities, and working conditions. 5 U.S.C. § 2302(a)(2)(A)(xii).
Although the appellant’s pleadings are difficult to follow, in his jurisdictional
response, he alleged “[t]hat the recent actions which the agency took or
threatened to take after all the above disclosures include the following”: his
detail to wound care services and termination of his practice in primary care on
August 12, 2020, the summary suspension of his privileges on October 2, 2020,
the suspension of the renewal of his credentials also on October 2, 2020, and
generally being subjected to a hostile work environment. IAF, Tab 6 at 7-8. The
appellant then states his belief that “all the above personnel actions” were due to
17
his disclosures. Id. at 8. In another pleading, the appellant alleges that on
August 18, 2020, agency leadership denied him access to all patients, suspended
him from completing clinical work, and effectively denied him from completing
telework by blocking his access to patients. IAF, Tab 1 at 17-18. Consequently,
based on our best interpretation of the appellant’s pleadings, he appears to be
alleging the following personnel actions: (1) his placement on a detail on
August 12, 2020; and (2) a significant change in his duties, responsibilities, and
working conditions based on the agency’s imposing a summary suspension of his
clinical privileges, denying his request for recredentialing of his privileges on
October 2, 2020, and, on August 18, 2020, denying him access to patients,
preventing him from engaging in clinical work, and instructing him to telework
without granting him access to telework capabilities.
The appellant made a nonfrivolous allegation that the agency detailed him
to the wound care unit on August 12, 2020, and showed that he exhausted
this claim with OSC.
The definition of a “personnel action” also includes “a detail, transfer, or
reassignment.” 5 U.S.C. § 2302(a)(2)(A)(iv). Here, the appellant provided a
copy of the August 12, 2020 memorandum detailing him to the wound care
services unit. IAF, Tab 1 at 7. Accordingly, we find that he has made a
nonfrivolous allegation of a personnel action under 5 U.S.C. § 2302(a)(2)(A)(iv).
See Miles, 84 M.S.P.R. 418, ¶ 6. Additionally, in his annotated response to
OSC’s preliminary determination letter, he specifically identified his detail to the
wound care unit as one of the allegedly retaliatory personnel actions he was
subjected to, and OSC identified it as one of the actions it was investigating.
IAF, Tab 1 at 20, Tab 6 at 156-57; see id. at 133-34, 150-54 (forwarding emails to
the OSC attorney regarding the appellant’s placement on the detail).
Consequently, we also find that he demonstrated that he exhausted his
administrative remedies regarding this personnel action.
18
The appellant made a nonfrivolous allegation that he was subjected to a
significant change in his working conditions and showed that he exhausted
this personnel action with OSC.
As relevant here, 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
consequences 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’s actions must have a
significant effect on the overall nature and quality of the appellant’s working
conditions, duties, or responsibilities. Id.As noted above, the appellant alleged in his filings that agency personnel
took a number of deliberate actions that impacted his working conditions from
August 2020 through October 2020, including denying him access to patients and
clinical services, obstructing his ability to effectively telework, suspending his
clinical privileges, blocking his biennial privileges recredentialing, and generally
subjecting him to a hostile work environment, and he reiterates these allegations
on review. IAF, Tab 1 at 17-18; Tab 6 at 7-8; PFR File, Tab 1 at 9-10. We find
that these contentions, if accepted as true, collectively amount to a nonfrivolous
allegation of a significant change in working conditions. See Skarada,
2022 MSPB 17, ¶ 18 (concluding that the appellant’s allegations that agency
personnel harassed him, subjected him to a hostile work environment, subjected
him to multiple investigations, accused him of “fabricating data” and of a Privacy
Act violation, refused his request for a review of his position for possible
upgrade, yelled at him, and failed to provide him the support and guidance needed
to successfully perform his duties amounted to a nonfrivolous allegation of a
19
significant change in his working conditions); see also Rumsey v. Department of
Justice, 120 M.S.P.R. 259, ¶ 23 (2013) (noting that canceling a telework
agreement can constitute a personnel action under 5 U.S.C.
§ 2302(a)(2)(A)(xii) to the extent that it constitutes a significant change in
working conditions). Additionally, insofar as the appellant provided
documentation demonstrating that he raised these claims with OSC, we find that
he showed that he exhausted his administrative remedies with respect to this
personnel action. See IAF, Tab 1 at 20, Tab 6 at 155-59, 219-20.
The appellant made a nonfrivolous allegation that his disclosure and protected
activity were a contributing factor in some of the personnel actions.
A protected disclosure is a contributing factor if it affects an agency’s
decision to take a personnel action. Dorney v. Department of the Army,
117 M.S.P.R. 480, ¶ 14 (2012). One way that an appellant may satisfy the
contributing factor criterion at this stage is through the knowledge/timing test,
whereby an employee nonfrivolously alleges that the official taking the personnel
actions at issue knew of the appellant’s protected disclosure/activity and the
personnel action occurred within a period of time such that a reasonable person
could conclude that the protected disclosure/activity was a contributing factor in
the personnel actions at issue. 5 U.S.C. § 1221(e)(1)(A)-(B); Carey v.
Department of Veterans Affairs, 93 M.S.P.R. 676, ¶ 11 (2003). An appellant may
satisfy the knowledge prong of the test by proving that the official taking the
action had constructive knowledge of the protected disclosures, i.e., that an
individual with actual knowledge of the disclosure influenced the official accused
of taking the retaliatory action. Bradley v. Department of Homeland Security,
123 M.S.P.R. 547, ¶ 15 (2016).
20
The appellant nonfrivolously alleged that his disclosure that his detail to
the wound care unit constituted an abuse of authority was a contributing
factor in one personnel action.
With respect to the appellant’s disclosure of a potential abuse of authority
regarding the circumstances surrounding his placement on a detail to the wound
care unit on August 12, 2020, although we noted above that the detail is a
personnel action as defined in 5 U.S.C. § 2302(a)(2)(A)(iv), it is axiomatic that
the appellant’s disclosure of the abusive nature of his detail could not have itself
contributed to the agency’s decision to place him on the detail. See Johnson v.
Department of Justice, 104 M.S.P.R. 624, ¶ 26 (2007) (determining that
disclosures made after the personnel actions at issue could not have been
contributing factors in those personnel actions and do not support a nonfrivolous
allegation that the disclosures were contributing factors in the personnel actions).
Consequently, the only personnel action that this disclosure could have
contributed to is the appellant’s claim that agency officials subjected him to a
significant change in his working conditions by denying him access to patients
and clinical services, obstructing his ability to effectively telework, suspending
his clinical privileges, blocking his biennial privileges recredentialing, and
generally subjecting him to a hostile work environment during the period from
August 2020 through October 2020. See IAF, Tab 1 at 17-18; Tab 6 at 7-8.
Regarding the knowledge prong of the test, in his jurisdictional filing the
appellant alleged that he “immediately disclosed” his allegation that his
placement on a detail to the wound care unit was an abuse of authority to OSC
and his EEO counselor, and that he “disclosed this pattern of [PPP] to VISN 10
supervisors and other higher supervisory channels – the facility was aware of
these disclosures before it took the present personnel action,” and reiterated in a
footnote that he made this disclosure to “OSC, EEO, VISN 10 supervisors and
some higher supervisors.” IAF, Tab 6 at 7. In a prior footnote, the appellant
identified “[t]he current facility leadership” as, among others, the Chief of
21
Primary Care—the individual the appellant identifies as responsible for blocking
his access to patients and clinical services and obstructing his ability to
effectively telework on August 18, 2020, and the Medical Center Director—the
individual who issued the summary suspension of privileges on October 2, 2020,
and who blocked the appellant’s biennial request for privileges recredentialing
that same day. Id. at 6 n.17; see id. at 155, 206-09, 341.
Regarding the timing prong of the test, all of these actions took place
during the period from August 2020 through October 2020, within a few months
of the appellant’s disclosure of the apparent abuse of authority, so the timing
prong is satisfied. See Smith v. Department of Agriculture, 64 M.S.P.R. 46, 65
(1994) (finding that personnel actions taken within 1 year of the protected
disclosures satisfied the knowledge/timing test). Accordingly, the appellant
sufficiently alleged knowledge of his disclosure by relevant agency officials, and
a close temporal proximity between his protected disclosure and the significant
changes in his working conditions initiated by agency personnel, so we find that
he has satisfied the contributing factor jurisdictional criterion with respect to this
personnel action. See Dorney, 117 M.S.P.R. 480, ¶ 14.
The appellant made a nonfrivolous allegation that his protected activity of
filing a prior OSC complaint was a contributing factor in both personnel
actions.
Regarding the agency officials’ knowledge of the appellant’s protected
activity of disclosing information to OSC, in the section of his jurisdictional
pleading discussing his disclosures and activities, the appellant identifies that he
disclosed his OSC complaint to, among others, the Medical Center Director and
the “primary care leadership,” which includes the Chief of Primary Care—the
individuals responsible for the appellant’s placement on the wound care services
detail on August 12, 2020, and the actions that comprised a significant change in
the appellant’s duties during the period from August 2020 through October 2020,
respectively. IAF, Tab 6 at 6; see IAF, Tab 1 at 7; Tab 6 at 6 n.17, 155, 206-09,
22
341. Regarding when these agency officials became aware of the appellant’s
OSC activity, although he does not specifically identify when he disclosed his
OSC activity to the relevant agency officials, in the section of his jurisdictional
response addressing the personnel actions taken against him, he states that facility
leadership, including VISN 10 supervisors (of which both the Chief of Primary
Care and the Medical Center Director are included, see IAF, Tab 6 at 6 n.17),
were “aware of” the disclosures and activities he identified in the prior section
(including his OSC complaint) before he was detailed, and he further identifies
that the denial of his request for recredentialing of his privileges on October 2,
2020 “occurred after my EEO and OSC disclosures of prohibited personnel
actions, which the facility was fully aware.” IAF, Tab 6 at 6-7.
Additionally, in the appellant’s annotated response to OSC’s preliminary
letter, he objects to OSC’s assessment that he had not provided any evidence that
any official with knowledge of his prior OSC complaint was involved in his detail
—the earlier of the two alleged personnel actions—asserting that “[i]t is very
clear that the officials with knowledge of my grievance, OSC, complaint to [a
Congressman] . . . participated in the detail,” and identifies the Medical Center
Director and Chief of Primary Care as among the individuals aware of his OSC
complaint. IAF, Tab 6 at 221-22; see id. at 219.
Regarding the timing element, although it is unclear when, exactly, the
appellant disclosed his prior OSC activity to the relevant agency officials, the
entire period of time at issue in this IRA appeal is within the 1-to-2-year
timeframe the Board has regularly held satisfies the knowledge/timing test. See
Mastrullo v. Department of Labor, 123 M.S.P.R. 110, ¶ 21 (2015) (concluding
that a personnel action taken within approximately 1 to 2 years of the appellant’s
disclosure satisfies the contributing factor knowledge/timing test); Dorney,
117 M.S.P.R. 480, ¶ 16 (2012) (same)
In summary, although the appellant has not provided a clear timeline of
events regarding all of his allegations, the appellant, who is pro se, alleged
23
knowledge by the relevant agency officials and a close temporal proximity
between: (1) his protected activity and both of the personnel actions at issue
here, i.e., his altered working conditions and his detail; and (2) his protected
disclosure and the subsequent significant change in his duties. Consequently, we
find that he has satisfied the contributing factor jurisdictional criterion. See
Dorney, 117 M.S.P.R. 480, ¶ 14.
Accordingly, we find that the appellant made a nonfrivolous allegation that
his protected disclosure and his protected activity contributed to the
corresponding personnel actions identified above; therefore, he is entitled to his
requested hearing and a decision on the merits of his appeal. IAF, Tab 1 at 2; see
Salerno, 123 M.S.P.R. 230, ¶ 5. Prior to conducting a hearing, the administrative
judge shall afford the parties a reasonable opportunity to conduct discovery and
order the parties to submit any other evidence that he deems necessary to
adjudicate the merits of the appellant’s IRA appeal. Lewis v. Department of
Defense, 123 M.S.P.R. 255, ¶ 14 (2016). In so doing, the administrative judge
may wish to order the appellant to supplement the record to provide clarity
concerning the nature of his prior complaint to OSC (including a copy of the
submitted complaint or any correspondences with OSC, if such exist) and
additional detail concerning how and when he alerted agency officials of his prior
OSC activity. 4
4
The nature of an appellant’s disclosures may be relevant at the merits stage of an IRA
appeal, when he must prove the contributing factor element by preponderant evidence
and the agency can defend itself by providing clear and convincing evidence that it
would have taken the same personnel action absent the protected activity. See Fisher,
2023 MSPB 11, ¶ 8 n.1; see also Corthell, 123 M.S.P.R. 417, ¶ 13 (setting forth the
elements and burden of proving the merits of an IRA appeal based on a claim of reprisal
for perceived activity under 5 U.S.C. § 2302(b)(9)(C)).
24
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.