June T. Sooter v. Department of Commerce

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
JUNE T. SOOTER, DOCKET NUMBER
Appellant, CH-1221-12-0588-W-1
v.
DEPARTMENT OF COMMERCE, DATE: April 2, 2015
Agency.
THIS ORDER IS NO NPRECEDENTIAL 1
June T. Sooter, Lebanon, Kentucky, pro se.
Frances C. Silva, Esquire, Washington, D.C., for the agency.
BEFORE
Susan Tsui Grundmann, Chairman
Mark A. Robbins, Member
REMAND ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
granted her request for corrective action. Generally, we grant petitions such as
this one only when: 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
1
A nonprecedential order is one that the Board has determined does not add
sign ificantly 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 Parties may cite nonprecedential orders,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
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. See Title 5 of the Code of Federal Regulations,
section 1201.115 (5 C.F.R. § 1201.115). For the reasons discussed below, we
DENY the appellant’s petition for review and REMAND the case to the regional
office for further adjudication in accordance with this Order.
DISCUSSION OF ARGUMENTS ON REVIEW
¶2 The appellant held a series of temporary positions with the agency’s Census
Bureau in Kentucky. Initial Appeal File (IAF), Tab 8 at 9-10. She began her
appointments in March 2009. Id. at 14. Her last temporary position was that of
Crew Leader. Id. at 9. The agency terminated the appellant effective July 24,
2010, for inappropriate conduct. IAF, Tab 18 at 92-93. The appellant filed a
complaint with the Office of Special Counsel (OSC) alleging that her termination
was in retaliation for her having made protected disclosures that employees were
falsifying time sheets and mileage reimbursement reports and two supervisors
were involved in an inappropriate relationship. IAF, Tab 1. The appellant
alleged that she made the disclosures to both her first-line supervisor and to her
area manager. Id. at 11. In May 2012, OSC informed the appellant that it was
closing its inquiry into her complaint and advised her of her Board appeal rights.
Id. at 12.
¶3 The appellant initiated an individual right of action (IRA) appeal with the
Board. 2 Id. at 4, 6-8. The administrative judge held a hearing and granted the
2
The appellant initiated her appeal on July 3, 2012. IAF, Tab 1 at 1. During the
pendency of this IRA appeal, Congress passed, and the President signed into law, the
Whistleb lower Protection Enhancement Act of 2012 (WPEA), Pub. L. No. 112-199, 126
Stat. 1465. In Day v. Department of Homeland Security, 119 M.S.P.R. 589, ¶¶ 25-26
(2013), we found that the WPEA clarified the defin ition of a protected disclosure under
section 2302(b)(8) and held that this defin ition should be applied to cases pending
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appellant’s request for corrective action. IAF, Tab 59, Initial Decision (ID) at 2.
The administrative judge found that the appellant exhausted her administrative
remedies with OSC and that her termination was a covered personnel action under
the statute. ID at 4-5. She also found that the appellant’s disclosures that
employees were submitting false time and mileage documents and supervisors
were approving fraudulent documents were protected because they demonstrated
violations of a law, rule, or regulation and abuse of authority. ID at 7-8. The
administrative judge found that the individual who terminated the appellant knew
of the disclosures and that they were a contributing factor in her decision to
terminate the appellant based on the proximity of the disclosures to her
termination. ID at 8. She also found that the agency failed to prove by clear and
convincing evidence that it would have taken the personnel action in the absence
of the appellant’s protection disclosures. ID at 10.
¶4 The appellant has filed a timely petition for review of the initial decision.
Petition for Review (PFR) File, Tab 1. The agency responded to the appellant’s
petition for review, and the appellant has filed a reply. PFR File, Tabs 3-4.
¶5 In her petition for review, the appellant argues that the administrative judge
accepted false documents as true, incorrectly found that she made her protected
disclosures because she was upset that she was not awarded a supervisory
position, and erred with regard to the date of her termination. 3 PFR File, Tab 1
before the Board. Aquino v. Department of Homeland Security, 121 M.S.P.R. 35, ¶ 11
(2014). Nonetheless, we do not find that the WPEA’s clarification of protected
disclosures affects the outcome of this appeal. Further, the provision in the WPEA for
compensatory damages does not apply retroactively; therefore, the appellant will not be
eligible to seek these damages as relief. See King v. Department of the Air Force,
119 M.S.P.R. 663, ¶¶ 15-18 (2013).
3
To secure corrective action from the Board, an appellant must first exhaust her
administrative remedies with OSC. Aquino, 121 M.S.P.R. 35, ¶ 9. The appellant then
must prove by preponderant evidence that she engaged in wh istleb lowing activity by
making a protected disclosure, and that such whistleblowing activity was a contributing
factor in an agency personnel action. Schnell v. Department of the Army, 114 M.S.P.R.
83, ¶ 18 (2010). If proven, the Board must order corrective action unless the agency
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at 4-10. The appellant’s challenges to the initial decision’s findings of fact
constitute mere disagreement with the explained findings of the initial decision,
which are supported by the record. ID at 2-4. The appellant has shown no basis
for disturbing those findings. See Davis v. Department of Veterans Affairs,
106 M.S.P.R. 654, ¶ 6 (2007) (mere disagreement with the administrative judge’s
findings and credibility determinations does not warrant full review of the record
by the Board).
¶6 The appellant also argues that the administrative judge erred when she did
not award interim relief. PFR File, Tab 1 at 10. The administrative judge did not
order interim relief because the appellant was a temporary employee with less
than a month left in her temporary appointment at the time of her termination. ID
at 11. An administrative judge should order interim relief for the period of time
from the issuance of the initial decision until the decision becomes the final order
of the Board or the issuance of a final Board order on a petition for review unless
the administrative judge determines interim relief to not be appropriate. 5 C.F.R.
§ 1201.111(c)(1); see Costin v. Department of Health & Human Services,
72 M.S.P.R. 525, 530 (1996) (finding interim relief to be available in IRA
appeals), modified on other grounds by Costin v. Department of Health & Human
Services, 75 M.S.P.R. 242 (1997). Because we must remand the appeal for
further development of the record regarding the proper corrective action for a
temporary employee, we find the administrative judge properly found interim
relief to be inappropriate in this appeal.
establishes by clear and convincing evidence that it would have taken the same
personnel action in the absence of the protected disclosure. I d. Neither party
challenges on review the administrative judge’s findings that the appellant exhausted
her administrative remedies, proved by preponderant evidence that she made protected
disclosures that were a contributing factor in her termination, and that the agency failed
to prove by clear and convincing evidence that it would have term inated her in the
absence of her protected disclosures. PFR File, Tabs 1, 3-4. We see no reason to
disturb these well-reasoned findings.
5
¶7 Generally, an appellant who prevails in an IRA appeal is entitled to status
quo ante relief that includes the following: cancellation of the retaliatory
personnel action; reinstatement to her former position or to another substantially
equivalent position, as appropriate; back pay; interest on back pay; and other
employment benefits that she would have received had the action not occurred.
Schnell, 114 M.S.P.R. 83, ¶ 25. The appellant who prevails is also eligible for
relief that exceeds the status quo ante, including medical costs incurred, travel
expenses, other reasonably foreseeable consequential damages, and may request
disciplinary action be imposed against agency officials who engaged in retaliatory
conduct. Daniels v. Department of Veterans Affairs, 105 M.S.P.R. 248, ¶ 23
(2007); 5 C.F.R. § 1201.202(b). Our reviewing court has determined that the
term “consequential damages” in 5 U.S.C. § 1221(g) is limited to reimbursement
of out-of-pocket costs to make an individual whole for an improper personnel
action but does not include nonpecuniary damages. 4 Bohac v. Department of
Agriculture, 239 F.3d 1334, 1343 (Fed. Cir. 2001). The administrative judge
determined that the appellant’s request for consequential damages should be
addressed in an addendum proceeding. ID at 11.
¶8 As the administrative judge noted in the initial decision, the appellant was
hired under a temporary appointment that was followed by a series of extensions
and additional temporary appointments for over a year before her termination. ID
at 2. Though the appellant had less than 1 month remaining on her temporary
appointment at the time of her termination, the appellant seeks damages through
the remainder of the operation of the Lexington, Kentucky Census Bureau office.
IAF, Tab 1 at 8, Tab 18 at 91-93. The record does not reflect whether the
Lexington, Kentucky office is still in operation or when it closed. As such, the
record is not sufficiently developed as to the appropriate corrective action to
4
The WPEA did not substantively change an individual’s entitlement to consequential
damages for whistleblower reprisal. See King, 119 M.S.P.R. 663, ¶ 15 (discussing
changes made in the WPEA to section 1221(g)(1)(A)(ii)).
6
order and the appeal must be remanded for further adjudication. Schnell,
114 M.S.P.R. 83, ¶ 25.
¶9 On remand, the parties should be given the opportunity to present additional
evidence and argument as to whether the appellant’s temporary position would
have been extended and for how long a period of time for the Board to order the
appropriate corrective action. The administrative judge may incorporate her prior
findings that we have adopted into a new initial decision that also addresses the
length of her temporary employment.
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: ______________________________
William D. Spencer
Clerk of the Board
Washington, D.C.