Kevin Barrett v. Department of Veterans Affairs

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
KEVIN J. BARRETT, DOCKET NUMBER
Appellant, SF-1221-16-0632-W-1
v.
DEPARTMENT OF VETERANS DATE: April 27, 2023
AFFAIRS,
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Timothy A. Bridge, Esquire, St. Charles, Illinois, for the appellant.
Glen E. Woodworth, Esquire, Anchorage, Alaska, for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
FINAL ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
dismissed for lack of jurisdiction his request for corrective action in an individual
right of action (IRA) appeal. Generally, we grant petitions such as this one only
in the following circumstances: the initial decision contains erroneous findings
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
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 and AFFIRM the initial decision,
which is now the Board’s final decision. 5 C.F.R. § 1201.113(b).
BACKGROUND
¶2 The appellant has served as a Nurse Practitioner at the agency’s Alaska
Healthcare System since September 2014. Initial Appeal File (IAF), Tab 6
at 304-05. On December 30, 2015, the appellant filed a complaint with the Office
of Special Counsel (OSC) in which he alleged that the agency had retaliated
against him for whistleblowing. IAF, Tab 1 at 10-30. In his complaint, the
appellant alleged that he had made two disclosures: (1) on September 4, 2015, he
had disclosed to his first-level supervisor “the denial of OT/CT in order to
complete excessive labor,” and (2) on May 21, 2015, he disclosed to his
first-level supervisor that he had “been receiving threats for adding OT/CT to
complete the work given.” 2 Id. at 21-22. The appellant also alleged that the
agency had improperly extended the length of his service obligation under a
relocation incentive agreement, and that his first-level supervisor had “created a
continuous toxic and hostile work environment” in which she treated him
2
“OT/CT” appears to refer to overtime and compensatory ti me off. IAF, Tab 1 at 26,
44.
3
differently based on race, color, and age; denied his requests for overtime;
double-booked his appointments; and took other actions against him in reprisal
for his requests for overtime and filing of an equal employment opportunity
(EEO) complaint. 3 Id. at 25-30. On May 20 and 22, 2016, the appellant
forwarded emails and other documents to the OSC Complaints Examining Unit
(CEU). IAF, Tab 5 at 15-127.
¶3 By letter dated June 8, 2016, the CEU notified the appellant that it had
made a preliminary determination to close its inquiry into his complaint and
provided him with an opportunity to respond within 13 days of the date of the
letter. 4 Id. at 13-15. On June 28, 2016, the CEU notified the appellant that,
having received no comments to its June 8, 2016 letter, it was closing its file.
IAF, Tab 1 at 9. On July 7, 2016, the appellant’s representative sent OSC a letter
alleging that the appellant was subjected to five additional prohibited p ersonnel
practices and requesting that they be included in the investigation or supplemental
3
In his OSC complaint, the appellant stated that he filed a complaint with the agency’s
Inspector General (IG) and OSC characterized the appellant’s IG complaint as a
protected activity in its close out letter. IAF, Tab 1 at 15, Tab 5 at 13. H owever, the
record does not contain a copy of the appellant’s complaint to the IG or any other
information about the IG complaint. Further, the appellant, who was represented by an
attorney at all stages of this process, has never alleged in front of the Board that his IG
complaint was a protected activity under 5 U.S.C. § 2302(b)(9), despite having several
opportunities to comprehensively frame his claims, and having been placed on notice
that such activity would qualify as a protected activity under 5 U.S.C. § 2302(b)(9).
IAF, Tab 1, Tab 3 at 3, Tab 5 at 1-7. The administrative judge did not address the IG
complaint in the initial decision, and the appellant has not raised the matter in his
petition for review. IAF, Tab 7, Initial Decision (ID); Petition for Review (PFR) File,
Tab 1 at 1-11. It is the parties’ prerogative to craft their case as they see fit; as the
appellant has not claimed that his IG complaint was a protected activity in front of the
Board, we need not address it.
4
The administrative judge noted that it was unclear whether the OSC’s CEU considered
the appellant’s December 30, 2015 complaint or another complaint. ID at 2 n.1. The
appellant has not asserted that he filed another complaint alleging reprisal with OSC
and the file number referenced in OSC’s June 8, 2016 letter matches the file number
assigned to the December 30, 2015 complaint. IAF, Tab 1 at 10, Tab 5 at 13.
Accordingly, we find that the December 30, 2015 complaint is the only OSC complaint
at issue in this appeal.
4
investigation. IAF, Tab 5 at 132-33. The record does not contain a response
from OSC to this letter.
¶4 On July 15, 2016, the appellant filed an IRA appeal alleging that he was
subjected to nine actions that constituted prohibited personnel pra ctices. IAF,
Tab 1 at 1-8. The administrative judge issued an order notifying the appellant of
the elements and burdens of proof to establish Board jurisdiction over his IRA
appeal and ordering him to file evidence and argument demonstrating jurisdiction .
IAF, Tab 3 at 2-8. The appellant filed a response to the order in which he alleged
that he was subjected to prohibited personnel practices after he disclosed
deficiencies in the care and treatment of patients. IAF, Tab 5 at 1 -6, 134-35. His
response described eight communications to agency officials that he alleged took
place: (1) during a May 25, 2015 meeting; (2) in a June 11, 2015 email;
(3) during a July 15, 2015 meeting; (4) in a July 15, 2015 email; (5) during a
July 16, 2015 meeting; (6) in a September 17, 2015 email; (7) during a
November 5, 2015 meeting; and (8) in a set of emails spanning November 5
and 6, 2015. Id. at 134-35. 5 The appellant alleged that the first seven
communications “concern the increasing number of patient alerts caused by the
staffing shortages in the Department and [his first-level supervisor’s] failure to
authorize sufficient CT/OT to resolve the backlog of patient alerts,” which he
made because he believed his first-level supervisor’s “patient assignment
practices presented a real and substantial danger to the health and safety of the
veterans/patients.” Id. The eighth communication was comprised of
communications made by other agency staff. Id. at 135. The agency filed a
response, arguing that the appellant had not made nonfrivolous allegations that he
5
The appellant did not explicitly allege in his appeal that he made disclosures on
May 21 or September 4, 2015, as he did in his OSC complaint. Compare IAF, Tab 1
at 1-8, Tab 5 at 1-7 with IAF, Tab 1 at 10-30. Accordingly, we do not further discuss
the May 21 or September 4, 2015 disclosures herein.
5
made protected disclosures and those disclosures were a contributing factor in
any alleged personnel actions. IAF, Tab 6 at 7-10.
¶5 The administrative judge issued an initial decision dismissing the appeal for
lack of jurisdiction based on the written record. IAF, Tab 7, Initial Decision (ID).
The administrative judge first found that, of the eight communications the
appellant alleged were protected, he had nonfrivolously alleged that the four
communications he purportedly made to agency officials during meetings on
May 25, July 15-16, and November 5, 2015, were protected disclosures. ID
at 5-6.
¶6 She found that, as to the four remaining communications, the appellant did
not nonfrivolously allege that he reasonably believed the communication
evidenced a violation of a 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 at 6-8. Rather, the administrative judge found that
three of the communications, emails the appellant sent to agency officials on
June 11, July 15, and September 17, 2015, merely reflected his requests for
overtime and a reduced caseload, and summarized a conversation with his
supervisors about his performance. Id. Further, the administrative judge found
that the appellant failed to nonfrivolously allege that the November 5 and 6, 2015
emails sent by other staff members were protected because he did not make the
disclosures. ID at 8. Thus, the administrative judge found that the four
disclosures were not protected.
¶7 The administrative judge then found that the appellant did not prove
exhaustion of his administrative remedies before OSC concerning the four
disclosures that he had nonfrivolously alleged were protected. ID at 8-12.
She found that the appellant’s complaint and correspondence to OSC did not
reflect that he notified OSC of his July 16, 2015 or November 5, 2015
communications. ID at 9. She also found that the appellant mentioned his
May 25 and July 15, 2015 meetings to OSC but did not provide OSC with a
6
sufficient basis to pursue an investigation that might lead to corrective action, as
he failed to provide OSC with any information that might render either
communication a protected disclosure. ID at 9-12. The administrative judge thus
dismissed the appeal for lack of jurisdiction. ID at 12.
¶8 The appellant has filed a petition for review in which he argues that the
administrative judge erred in finding that certain disclosures regarding patient
safety were not protected and asserts that he provided OSC with a sufficient basis
on which to conduct an investigation that might lead to corrective action.
Petition for Review (PFR) File, Tab 1 at 2-11. The agency has responded in
opposition to the petition. PFR File, Tab 3.
DISCUSSION OF ARGUMENTS ON REVIEW
¶9 To establish Board jurisdiction over an IRA appeal brought pursuant to the
Whistleblower Protection Enhancement Act of 2012 (WPEA), the appellant must
exhaust his administrative remedies before OSC and make nonfrivolous
allegations that: (1) he made a protected disclosure described under 5 U.S.C.
§ 2302(b)(8) or engaged in protected activity as specified in 5 U.S.C.
§ 2302(b)(9)(A)(i), (B), (C), or (D); and (2) the protected disclosure or 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). 5 U.S.C. §§ 1214(a)(3), 1221;
Salerno v. Department of the Interior, 123 M.S.P.R. 230, ¶ 5 (2016); see Yunus v.
Department of Veterans Affairs, 242 F.3d 1367, 1371 (Fed. Cir. 2001). 6
Jurisdiction in an IRA appeal is determined based on the written record. See
Graves v. Department of Veterans Affairs, 123 M.S.P.R. 434, ¶ 22 (2016)
6
Historically, the Board has been bound by the precedent of the U.S. Court of Appeals
for the Federal Circuit on these types of whistleblower issues. However, pursuant to
the All Circuit Review Act, Pub. L. No. 115-195, 132 Stat. 1510, appellants may file
petitions for judicial review of Board decisions in whistleblower reprisal cases with any
circuit court of appeals of competent jurisdiction. See 5 U.S.C. § 7703(b)(1)(B).
Therefore, we must consider these issues with the view that the appellant may seek
review of this decision before any appropriate court of appeal.
7
(holding that an employee is not entitled to a jurisdictional hearing in an IRA
appeal) (citing Spencer v. Department of the Navy, 327 F.3d 1354, 1356 (Fed.
Cir. 2003)).
¶10 The Board’s jurisdictional inquiry generally begins by examining whether
the appellant has shown that he exhausted his administrative remedies before
OSC, as the Board’s jurisdiction over an IRA appeal is limited to t hose issues
raised before OSC. See Ellison v. Merit Systems Protection Board, 7 F.3d 1031,
1037 (Fed. Cir. 1993) (holding that the Board correctly declined to consider
allegations of disclosures not clearly raised before OSC) 7; Miller v. Federal
Deposit Insurance Corporation, 122 M.S.P.R. 3, ¶ 6 (2014) (“The first element of
Board jurisdiction over an IRA appeal is exhaustion by the appellant of his
administrative remedies before OSC”), aff’d, 626 F. App’x 261 (Fed. Cir. 2015).
The administrative judge in this case first addressed whether the appellant made a
nonfrivolous allegation that the eight communications at issue were protected
disclosures and subsequently addressed exhaustion regarding the four disclosures
that she found the appellant had nonfrivolously alleged were protected. ID
at 4-12. The administrative judge nevertheless correctly found that the appellant
failed to make a nonfrivolous allegation that he made protected disclosures in the
June 11, July 15, September 17, and November 5 and 6, 2015 email
communications, and that he failed to exhaust his administrative remedies
concerning the disclosures he allegedly made during meetings with agency
officials on May 25, July 15-16, and November 5, 2015, warranting dismissal of
the entire appeal for lack of jurisdiction. Id. Accordingly, we first address the
appellant’s arguments regarding his alleged protected disclosures and then turn to
7
The WPEA, which became effective on December 27, 2012, does not affect the
relevant holding in the cited authority, nor does it affect the re levant holdings in the
other authorities cited herein that were issued prior to the effective date of the WPEA.
See Pub. L. No. 112-199, 126 Stat. 1465 (2012). We have reviewed the relevant
legislation enacted during the pendency of this appeal and have concluded that it does
not affect the outcome of the appeal.
8
his arguments regarding exhaustion before OSC, concluding that the appellant has
not shown error in the administrative judge’s initial decision dismissing his
appeal for lack of jurisdiction.
The administrative judge correctly found that the appellant did not make a
nonfrivolous allegation that he made protected disclosures in the June 11,
July 15, September 17, and November 5 and 6, 2015 email communications.
¶11 On review, the appellant argues that the administrative judge erred in
finding that he did not nonfrivolously allege that four email communications
regarding patient alerts evidenced a substantial and specific danger to public
health or safety. PFR File, Tab 1 at 2-9. He contends that his concerns about
unanswered patient alerts constituted imminent safety concerns “given that
treatment delays, mis-diagnosis and medical complications which [sic] could
reasonably be expected to occur within a matter of hours or even minutes.”
Id. at 4.
¶12 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. § 2302(b)(8)(A). Salerno, 123 M.S.P.R. 230,
¶ 6. The test to determine whether a putative whistleblower has a reasonable
belief that his disclosures evidenced wrongdoing 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
Government 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. (citing Lachance v. White,
174 F.3d 1378, 1381 (Fed. Cir. 1999)). Allegations must be detailed and facially
well-supported; vague, conclusory, or facially insufficient allegations of
Government wrongdoing do not confer jurisdiction. Johnston v. Merit Systems
Protection Board, 518 F.3d 905, 910 (Fed. Cir. 2008).
9
¶13 In determining whether a disclosure evidenced a substantial and specific
danger to public health or safety, it is relevant for the Board to consider factors
such as: (1) the likelihood of harm resulting from the danger; (2) the immine nce
of the potential harm; and (3) the nature of the potential harm. Parikh v.
Department of Veterans Affairs, 116 M.S.P.R. 197, ¶ 14 (2011) (citing Chambers
v. Department of the Interior, 515 F.3d 1362, 1369 (Fed. Cir. 2008)).
¶14 We conclude that the administrative judge properly found that the appellant
did not make a nonfrivolous allegation that he disclosed a matter that a reasonable
person in his position would believe evidenced a substantial and specific danger
to public health or safety in his June 11, July 15, and Sep tember 17, 2015 emails
to his supervisors. ID at 6-8. Although the appellant now contends that these
communications conveyed imminent patient safety concerns, the emails do not
detail facts giving rise to a reasonable expectation of harm to patients that would
likely result in the reasonably foreseeable future. The appellant’s June 11, 2015
email to his first-level supervisor and the facility Chief Nursing Officer states
that he stayed to catch up on his alerts because “I could not stand looking at them
building up,” and does not communicate anything more than the appellant’s
personal desire to reduce his alerts and receive overtime hours and pay for staying
late to do so. IAF, Tab 5 at 30. Similarly, the appellant’s July 15, 2015 email to
his supervisors, which was sent in response to his first-level supervisor’s email
memorializing two meetings she conducted regarding his performance , also does
not reference harm to patients. 8 Id. at 31-32; IAF, Tab 6 at 246. The only
reference the appellant makes to patient care is in response to his supervisor’s
8
As noted by the Federal Circuit, in determining whether an appellant has made a
nonfrivolous allegation in an IRA appeal, the Board should not consider the appellant’s
allegations in a vacuum. Hessami v. Merit Systems Protection Board, 979 F.3d 1362,
1369 n.5 (Fed. Cir. 2020). The Board may consider other matters incorporated by
reference, matters integral to the appellant’s claim, and matters of public record. Id.Accordingly, here we cite to the first-level supervisor’s email to provide context
regarding the events that precipitated the appellant’s July 15, 2015 email. IAF, Tab 5
at 31, 32, Tab 6 at 246.
10
request to contact her should he think of other ways she can help him “be more
efficient and manage [his] time, in order to ensure safe patient care within the
constraints of a normal work week”; his response opines that, “‘to ensure’ safe
care within a 40 hour work week [he] will try [his] best to come up with a great
idea because that would make [him] invaluable to any VA clinic.” IAF, Tab 5
at 32, Tab 6 at 246. His communication does not indicate any wrongdoing on the
part of the agency or that the agency’s current practices evidence a specific
danger to patient safety. IAF, Tab 5 at 32. Finally, the appellant’s September 17,
2015 email to his supervisor communicates that he “is being double booked
without discussion,” has “had some patients with serious M[ental] H[ealth]
issues,” and that his “alerts are building up and [he] cannot keep up with them,”
but does not connect these statements to a concern about patient health or safety;
instead, he requests a reduction in his workload. Id. at 46. Each email lacks any
indication that harm might come to patients because of the appellant’s
unprocessed alerts; accordingly, we cannot conclude that he has nonfrivolously
alleged that a disinterested observer could have reasonably concluded that the
matters he disclosed in each email evidenced a substantial and specific danger to
public health or safety. 9
9
The appellant also argues that it was contradictory for the administrative judge to find
certain communications regarding patient alerts were protected, but not others; for
example, he cited the administrative judge’s findings that the appellant nonfrivolously
alleged that his communication in a July 15, 2015 meeting with his supervisor and the
Chief Nursing Officer was a protected disclosure, but his July 15, 2015 email regarding
the meeting was not. ID at 5, 7; PFR File, Tab 1 at 4-5. The appellant’s description of
the July 15, 2015 meeting is distinguishable from his email communication from the
same date. The plain language of the email did not establish a connection between the
appellant’s unprocessed alerts and patient safety, whereas the appellant’s description of
his communication, during the meeting, to his supervisors that certain practices resulted
in danger to or “an obstacle to competent professional care” for patients , conveyed that
he had allegedly disclosed that agency practices could harm patients. Compare IAF,
Tab 5 at 31-32, with IAF, Tab 5 at 134-35. Thus, the administrative judge properly
concluded that the appellant nonfrivolously alleged that certain disclosures, namely, the
appellant’s description of communications during meetings he had with agency
officials, were protected, whereas others were not.
11
¶15 Nor can we agree with the appellant’s suggestion that the mere mention of
unprocessed safety alerts constitutes a disclosure of an imminent safety concern.
PFR File, Tab 1 at 4. Even assuming that patient alerts can notify healthcare
providers of imminent issues, such as abnormal test results, the appellant has not
identified the content of his unprocessed alerts and makes no more than
conclusory allegations that the alerts could cause “treatment delays,
mis-diagnosis, and medical complications.” Id. Thus, the appellant has not set
forth a sufficiently detailed allegation that his unprocessed alerts were o f the kind
that might cause imminent harm to a patient. Cf., e.g., Tatsch v. Department of
the Army, 100 M.S.P.R. 460, ¶¶ 10-13 (2005) (holding that the appellant
nonfrivolously alleged a reasonable belief that her disclosure evidenced a specific
danger to public health or safety in reporting two incidents involving the
improper triage of on-scene, late-term, unstable pregnant women in labor).
Accordingly, we affirm the administrative judge’s findings that the appellant
failed to make a nonfrivolous allegation that he disclosed a matter that a
reasonable person in his position would believe evidenced a substantial and
specific danger to public health or safety in his June 11, July 15, and
September 17, 2015 emails to his supervisors.
¶16 Finally, the administrative judge properly found that the November 5 and 6,
2015 email communications made by other agency staff did not constitute a
protected disclosure because the appellant did not make the disclosure. ID at 8.
Although the appellant was copied on these communications, he was not the
source of the communications, thus the communications themselves were not
protected disclosures under 5 U.S.C. § 2302(b)(8) vis-à-vis the appellant. IAF,
Tab 5 at 27-29, 135. We thus affirm the administrative judge’s findings that the
appellant did not make a nonfrivolous allegation that the November 5 and 6, 2015
email communications constituted a protected disclosure.
12
The administrative judge properly found that the appellant did not exhaust his
administrative remedies before OSC concerning his alleged disclosures during
meetings with agency officials on May 25, July 15-16, and November 5, 2015.
¶17 On review, the appellant also disputes the administrative judge’s findings
that, as to the four disclosures that he had nonfrivolously alleged were protected ,
he failed to exhaust his administrative remedies before OSC. PFR File, Tab 1
at 9-11. 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, 122 M.S.P.R. 3, ¶ 6. The substantive requirements of
exhaustion are met when an appellant has provided OSC with a sufficient basis to
pursue an investigation. Chambers v. Department of Homeland Security,
2022 MSPB 8, ¶ 10. The Board’s jurisdiction over an IRA appeal is limited to
those issues that have been previously raised with OSC, but appellants may give a
more detailed account of their whistleblowing activities before the Board than
they did to OSC. Id. Appellants may demonstrate exhaustion of their OSC
remedies with evidence regarding their initial OSC complaint and other
communications with OSC concerning their allegations. See Baldwin v.
Department of Veterans Affairs, 113 M.S.P.R. 469, ¶ 8 (2010).
¶18 The appellant argues that he provided OSC with a sufficient basis on which
to pursue an investigation as to each of his alleged disclosures when he informed
OSC that unanswered patient alerts represented a substantial and specific danger
to the health and safety of the agency’s patients. PFR File, Tab 1 at 9 -11.
We agree with the administrative judge that the appellant did not prove
exhaustion regarding his alleged disclosures during meetings with agency
officials on May 25, July 15-16, and November 5, 2015. ID at 8-12.
¶19 As to the appellant’s July 16, 2015 communication to his second-level
supervisor and his November 5, 2015 communication to his first-level supervisor,
our review of the appellant’s OSC complaint and supplemental correspondence
reflects, as the administrative judge found, that there is no mention of either
13
communication in the appellant’s OSC complaint and subsequent correspondence.
ID at 9. We have considered the appellant’s argument that he provided OSC with
his “core” concerns about patient care but nevertheless cannot conclude that the
appellant provided OSC with a sufficient basis to investigate his July 16 and
November 5, 2015 communications to agency officials. PFR File, Tab 1 at 9-11.
At no time in the appellant’s complaint or correspondence with OSC prior to the
closure of its file did the appellant articulate that the agency’s actions constituted
harm to patients or otherwise affected public health or safety. IAF, Tab 1
at 10-30, Tab 5 at 16-127. Rather, the appellant’s complaint and correspondence
to OSC concern his relocation incentive agreement and his workload, specifically
the denial of overtime and compensatory time off, and that his first -level
supervisor’s practices put him behind in his workload. IAF, Tab 1 at 10-30,
Tab 5 at 16-127. Accordingly, no evidence provided to OSC suggests that the
appellant disclosed a substantial and specific danger to public health or safety to
agency officials.
¶20 The appellant contends that the emails he submitted to OSC “direc tly
concern Appellant’s growing apprehension and fear that the escalating number of
unanswered patient alerts represented a substantial and specific danger to the
health and safety of VA patients under his care,” but his correspondence to OSC
does not mention such a concern. PFR File, Tab 1 at 10. The appellant’s
references to alerts and patients occur in the context of his workload, which he
contends he was unable to manage, but these references do not articulate a danger
to patient health and safety. The appellant’s September 17, 2015 email to his
supervisor is perhaps the most descriptive of patient care, but as discussed above,
it fails to connect patient care with a concern about patient health or safety, and
we cannot conclude that this email or any other communication to OSC provided
sufficient facts for OSC to pursue an investigation into a substantial and specific
danger to the health and safety of the agency’s patients. IAF, Tab 5 at 46.
14
¶21 On review, the appellant also cites to his November 19, 2015 EEO
complaint in support of his argument that he advised OSC that factors such as
“double booking of patients, staffing shortages, reduced triage times and
increased patient load” contributed to an imminent concern for patient safety, but
we do not find that his EEO complaint put OSC on notice of any disclosure
regarding a substantial and specific danger to public health or safety. PFR File,
Tab 1 at 10-11. Although the EEO complaint references the effect that case
assignments have on patient care, treatment, and safety, there is no suggestion in
the EEO complaint that the appellant made such a disclosure outside of the
complaint; rather, his EEO complaint focuses on his allegation of disparate
treatment on the basis of race in case assignments. IAF, Tab 5 at 128-30.
Additionally, although the appellant asserts on review that he provided the EEO
complaint to OSC, there is no evidence that he in fact submitted it to OSC. Each
of the other documents the appellant asserts he provided to OSC consist of an
email showing the date on which he sent the document to the OSC investigator
and documents referenced in the email. However, there is no such email or other
evidence showing that he sent the EEO complaint to the investigator, nor does the
appellant attest to sending the EEO complaint to OSC in the sworn affidavit he
submitted in support of his jurisdictional response. Compare IAF, Tab 5
at 16-127, 134-35, with IAF, Tab 5 at 128-30. Thus, the appellant has not
established that he provided his EEO complaint to OSC or that it was sufficient to
put OSC on notice that he disclosed a substantial and specific danger to public
health or safety.
¶22 The appellant also provided a July 7, 2016 letter from his attorney to OSC,
which contends that “his immediate supervisor also increased his case loan [sic]
and reduced patient consultation time periods which directly compromised patient
safety during the period May 25, 2015 through January, 2016”; however, this
language does not suggest that he communicated this purported compromise of
patient safety to his supervisor or other agency official. IAF, Tab 5 at 132 -33.
15
Moreover, the letter was sent after OSC informed the appe llant that it closed its
investigative file, and the appellant has not provided any evidence that OSC
subsequently investigated this allegation. IAF, Tab 1 at 9, Tab 5 at 132 -33.
Accordingly, we find that the appellant has not established that this lette r, or any
other documentation he provided to OSC, provided sufficient facts for OSC to
pursue an investigation into a substantial and specific danger to the health and
safety of the agency’s patients.
¶23 Even if the appellant had provided sufficient facts to OSC to investigate
wrongdoing, the July 16 and November 5, 2015 communications were new
allegations outside of any core claims he made to OSC. Although an appellant
may add further detail to his claims before the Board, he must first provide OSC
with a sufficient basis to pursue an investigation. Chambers, 2022 MSPB 8, ¶ 10.
The appellant’s complaint to OSC mentioned that he notified his second -level
supervisor about his overtime complaints sometime after July 29, 2015, but there
is no indication that the appellant made any disclosure of a substantial and
specific danger to patient health or safety to his second -level supervisor prior to
that date; thus, OSC would not have had sufficient facts to pursue an
investigation of this prior alleged disclosure. IAF, Tab 1 at 17; see, e.g.,
McCarthy v. Merit Systems Protection Board, 809 F.3d 1365, 1374 (Fed. Cir.
2016) (concluding the appellant did not provide OSC with a sufficient basis to
pursue an investigation concerning four legal memoranda written by the appellant
when the memoranda identified “different disclosures, made to different people,
at different times” than those disclosures identified in th e appellant’s OSC
complaint). Similarly, the appellant’s complaint and correspondence to OSC do
not identify any disclosures occurring after September 2015; accordingly, he did
not provide OSC with sufficient facts to investigate subsequent disclosures, s uch
as his alleged November 5, 2015 disclosure.
¶24 We also agree with the administrative judge that, regarding the appellant’s
alleged disclosures during meetings on May 25 and July 15, 2015, although the
16
appellant’s complaint to OSC described these meetings, at no time in his
description of the meetings did he articulate that the agency’s actions constituted
harm to patients or otherwise affected public health or safety. IAF, Tab 1
at 10-30. Further, none of the correspondence the appellant provided to OSC
described these meetings in a manner that would put OSC on notice that he
disclosed a substantial and specific danger to public health or safety during the
meetings. IAF, Tab 5 at 31-32. We thus affirm the administrative judge’s
findings that the appellant did not exhaust his administrative remedies before
OSC with respect to the communications he made to agency officials during
meetings that took place on May 25, July 15-16, and November 5, 2015. 10
¶25 Accordingly, we affirm the initial decision on the grounds that the appellant
failed to make a nonfrivolous allegation that he made protected disclosures as to
four of his communications to agency officials, and as to the remaining four
communications, he failed to exhaust his administrative remedies before OSC,
warranting dismissal of his IRA appeal for lack of jurisdiction.
10
In his jurisdictional response, the appellant filed a March 14, 2016 letter from the
OSC Disclosure Unit, which notified the appellant that it wo uld take no further action
concerning his allegations of agency wrongdoing and that he could raise his allegation
of racial discrimination with the CEU. IAF, Tab 5 at 11-12. In his complaint alleging
retaliation, filed with the CEU, the appellant asserted that he received a letter of
counseling “after notifying . . . OSC on October 23, 2015.” IAF, Tab 1 at 19. He
further stated that, “[s]ince this . . . OSC intervention, my work environment is still
toxic.” Id. at 20. To the extent the appellant may have been alleging that the agency
retaliated against him for making disclosures to OSC, which may be protected under
5 U.S.C. § 2302(b)(8)(B) or (b)(9)(C), we find that the above statements were so vague
that they did not provide OSC with a sufficient basis to pursue an investigation. In fact,
there is no indication in this record that the appellant informed the OSC CEU that he
had made disclosures to the OSC Disclosure Unit. Moreover, even if we found that the
appellant had exhausted his remedies regarding allegations that the agency retaliated
against him for his disclosures to OSC, he did not make any such argument in his
submissions below. IAF, Tabs 1, 5. Further, the initial decision did not address a claim
of retaliation for disclosures to OSC, and the appellant did not raise the issue in his
petition for review. IAF, Tab 7; PFR File, Tab 1. Accordingly, do not further discuss
any claim of retaliation for disclosures made to OSC.
17
NOTICE OF APPEAL RIGHTS 11
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
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:
11
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.
18
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
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. ____ , 137 S. Ct. 1975 (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
19
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
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).
20
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. 12 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
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
12
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 la w 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 o f competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195,
132 Stat. 1510.
21
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: /s/ for
Jennifer Everling
Acting Clerk of the Board
Washington, D.C.