Tonie Greve v. Department of Health and Human Services

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
TONIE M. GREVE, DOCKET NUMBER
Appellant, DE-1221-15-0540-W-1
v.
DEPARTMENT OF HEALTH AND DATE: May 4, 2023
HUMAN SERVICES,
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Tonie M. Greve, Mesa, Arizona, pro se.
Carol Liang, Esquire, and Margaret Cordova, Denver, Colorado, 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
denied her request for corrective action in connection with her 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 of
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
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).
¶2 On review, the appellant, a GS-9 Clinical Nurse, first attempts to parse out
the reasons for which she was removed, arguing, for instance, that regarding
charge 1, she did not, in fact, violate the Health Insurance Portability and
Accountability Act (HIPAA) because scheduling appointments was part of her
official duties as a Clinical Nurse, and because using the computer was how she
carried out those duties. Petition for Review (PFR) File, Tab 1 at 1-2. However,
this is an IRA appeal, not a removal appeal. Therefore, the agency is not required
to prove its charges by preponderant evidence; rather, the only merits issues
before the Board are whether the appellant has demonstrated that whistleblowing
or other protected activity was a contributing factor in one or more personnel
actions and, if so, whether the agency has demonstrated by clear and convincing
evidence that it would have taken the same personnel action(s) in the absence of
the whistleblowing or other protected activity. Agoranos v. Department of
Justice, 119 M.S.P.R. 498, ¶ 18 n.7 (2013); 5 C.F.R. § 1209.2(c). It is true that
the agency’s charges, specifically, the strength of the evidence in support of
them, are a consideration for the agency under its burden to show that it would
have taken the action even in the absence of the appellant’s whistleblowing. Carr
3
v. Social Security Administration, 185 F.3d 1318, 1323 (Fed. Cir. 1999). But
even if the appellant’s claim regarding HIPAA is true, it overlooks the fact that
the individuals for whom she scheduled appointments, after accessing their heal th
records on her Government computer, were her family members, and that doing
so is prohibited by a provision on Ethical Conduct in the Indian Health Manual.
Initial Appeal File (IAF), Tab 30 at 19. In addressing the agency’s burden in this
regard, the administrative judge carefully weighed all the evidence, Whitmore v.
Department of Labor, 680 F.3d 1353, 1368 (Fed. Cir. 2012); IAF, Tab 50, Initial
Decision (ID) at 19-22, but found, relying on the criteria set forth by the Board in
Hillen v. Department of the Army, 35 M.S.P.R. 453, 458 (1987), 2 that the
agency’s evidence was more credible than the appellant’s, ID at 22 -26, and that
the agency’s evidence in support of charge 1 was strong, ID at 17-27. Under the
circumstances, the appellant has not shown that, based on her interpretation of
HIPAA, the administrative judge erred in his consideration of charge 1.
¶3 Similarly, on review, the appellant attempts to explain her intentions as to
charge 4 in which the agency alleged that she violated the IT Rules of Behavior
when she improperly responded “to all” to an email sent by the Acting Clinical
Director, rather than just responding to the sender. PFR File, Tab 1 at 2. To the
extent the appellant is suggesting that her response constituted a protected
disclosure for which the Acting Clinical Director retaliated against her, id. at 3,
the administrative judge found that she had not exhausted her remedy bef ore the
Office of Special Counsel as to that purported disclosure and had not, therefore ,
2
In Hillen, the Board found that, to resolve credibility issues, an administrative judge
must identify the factual questions in dispute, summarize the evidence on each disputed
question, state which version he believes, and explain in detail why he found the chosen
version more credible, considering such factors as: (1) the witness’s opportunity and
capacity to observe the event or act in question; (2) the witness’s character; (3) any
prior inconsistent statement by the witness; (4) a witness’s bias, or lack of bias; (5) the
contradiction of the witness’s version of events by other evidence or its consistency
with other evidence; (6) the inherent improbability of the witness’s version of events;
and (7) the witness’s demeanor. Hillen, 35 M.S.P.R. at 458.
4
established the Board’s jurisdiction over it, 3 ID at 29; IAF, Tab 35 at 3. The
appellant has not taken exception to the administrative judge’s finding on
exhaustion. Further, as noted above, while the agency is not required to prove the
charges in an IRA appeal, 5 C.F.R. § 1209.2(c), the Board must consider the
strength of its evidence in support of its charges under its burden to show that it
would have taken the same action in the absence of the appellant’s
whistleblowing. Carr, 185 F.3d at 1323. Regarding charges 4 and 5, in which
the agency alleged that the appellant took an inappropriate tone in her response to
the email, the administrative judge thoroughly reviewed the parties’ evidence,
Whitmore, 680 F.3d at 1368, finding that the email that the appellant improperly
distributed widely was disrespectful, and concluding that the agency’s evidenc e
in support of charges 4 and 5 was strong. ID at 27 -30. Under the circumstances,
we find that the appellant has not shown that the administrative judge erred in his
consideration of charges 4 and 5. The appellant also has provided no basis for
disturbing the administrative judge’s thorough and well-reasoned findings as to
the remaining Carr factors, and we agree with the administrative judge that the
agency met its burden. 4
¶4 The appellant also argues on review that the deciding official violated her
due process rights, alleging that he “never reviewed any documents” and “did not
review [her] response letter.” PFR File, Tab 1 at 2. Although the record does not
appear to support the appellant’s claim, a claim of denial of due process may not,
in fact, be raised in an IRA appeal. Corthell v. Department of Homeland
Security, 123 M.S.P.R. 417, ¶ 16 (2016); 5 C.F.R. § 1209.2(c).
3
Despite his finding on exhaustion, the administrative judge afforded the appellant the
opportunity at hearing to explain how she reasonably believed she was disclosing
wrongdoing in her email, but he found that she failed to establish that claim. ID
at 29-30.
4
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.
5
NOTICE OF APPEAL RIGHTS 5
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 appl icable 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 wi th 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:
5
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.
6
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
7
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).
If so, and your judicial petition for review “raises no challenge to the Boar d’s
8
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. 6 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
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
6
The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510.
9
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.