Steven Oliva v. Department of Veterans Affairs

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
STEVEN OLIVA, DOCKET NUMBER
Appellant, DA-0752-16-0338-I-1
v.
DEPARTMENT OF VETERANS DATE: June 22, 2023
AFFAIRS,
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Steven Oliva, Fair Oaks Ranch, Texas, pro se.
Joan M. Green, Esquire, Oklahoma City, Oklahoma, 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
sustained his removal. Generally, we grant petitions such as this one only in the
following circumstances: the initial decision contains erroneous findings of
material fact; the initial decision is based on an erroneous interpretation of statute
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
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 petit ioner 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 In addition to his petition for review, the appellant submitted a separate
pleading with documents he characterized as new and material evidence . Petition
for Review (PFR) File, Tabs 1, 5, 6, 8. 2 The agency has filed a response. PFR
File, Tab 10. The appellant has replied. 3 PFR File, Tab 11.
¶3 On review, the appellant challenges the administrative judge’s findings on
the charge and on his affirmative defenses. PFR File, Tab 1. We discern no basis
for disturbing the administrative judge’s well-reasoned findings regarding the
charge or the appellant’s affirmative defenses of discrimination and equal
2
The appellant requested leave to supplement his petition for review by further
identifying pertinent evidence already in the record, PFR File, Tab 5 at 3, but the Clerk
denied that request, PFR File, Tab 6. The appellant requested reconsideration, PFR
File, Tab 7, but the Clerk once again denied the request, PFR File, Tab 9.
3
After his reply, the appellant submitted yet another request to supplement the record,
this time with the initial decision from a separate appeal. PFR File, Tab 12. That
decision need not be made part of the record in this appeal for us to consider it . See
5 C.F.R. § 1201.64 (providing that an administrative judge may take official notice of
matters that can be verified). Therefore, we deny the appellant’s motion. The appellant
also filed a motion to join this appeal with two others he filed “because they all deal
with one [administrative judge] and her abuse of discretion, bias, and misapplication of
law.” PFR File, Tab 15. That motion is similarly denied. See 5 C.F.R. § 1201.36(discussing when an administrative judge may join cases).
3
employment opportunity (EEO) reprisal. 4 As further explained below, we also
agree that the appellant failed to establish his affirmative defenses of
whistleblower reprisal and harmful error.
The appellant failed to prove his whistleblower retaliation claim.
¶4 In an affirmative defense of whistleblower retaliation, an appellant must
first prove by preponderant evidence that he made a disclosu re protected by
5 U.S.C. § 2302(b)(8) or engaged in activity protected by 5 U.S.C.
§ 2302(b)(9)(A)(i), (B), (C), or (D). See Shibuya v. Department of Agriculture,
119 M.S.P.R. 537, ¶ 19 (2013) (describing burden shifting in the context of a
disclosure protected by section 2302(b)(8)); see also Alarid v. Department of the
Army, 122 M.S.P.R. 600, ¶ 12 (2015) (recognizing that, after the Whistleblower
Protection Enforcement Act of 2012’s enactment, the same burden-shifting
scheme applies in the context of activities protected by section 2302(b)(9)(A)(i),
(B), (C), or (D)). He also must prove that the protected disclosure or activity was
a contributing factor in the challenged personnel action. Alarid, 122 M.S.P.R.
600, ¶ 13.
¶5 If an appellant meets his burden, the burden shifts to the agency to prove by
clear and convincing evidence that it would have taken the same action in the
absence of the appellant’s protected disclosures or activity. Id., ¶ 14. In
determining whether the agency has met this burden, the Board will consider all
the relevant factors, including the following: (1) the strength of the agency’s
evidence in support of its action; (2) the existence and strength of any motive to
retaliate on the part of the agency officials involved in the decision; and (3) any
4
With respect to appellant’s affirmative defenses of discrimination and EEO reprisal,
we agree with the administrative judge’s findings that the appellant failed to prove that
either was a motivating factor in the removal action. We need not reach whether the
appellant proved that either discrimination or EEO reprisal were a but -for cause of the
removal. See Pridgen v. Office of Management and Budget , 2022 MSPB 31. We also
agree with the administrative judge that the appellant failed to prove his other
affirmative defenses.
4
evidence that the agency takes similar actions against employees who did not
engage in such protected activity, but who are otherwise similarly situated. Carr
v. Social Security Administration, 185 F.3d 1318, 1323 (Fed. Cir. 1999). The
Federal Circuit has explained that “[e]vidence only clearly and convincingly
supports a conclusion when it does so in the aggregate considering all the
pertinent evidence in the record, and despite the evidence that fairly detracts from
that conclusion.” Whitmore v. Department of Labor, 680 F.3d 1353, 1368 (Fed.
Cir. 2012).
¶6 Below, the administrative judge applied the burden-shifting scheme
described above. She found that the appellant failed to prove that he made any
protected disclosures, but did establish that he had engaged in activity protected
by 5 U.S.C. § 2302(b)(9)(A)(i) by filing two individual right of action (IRA)
appeals. Initial Appeal File (IAF), Tab 39, Initial Decision (ID) at 35-39. She
further found that the appellant established that this protected activity was a
contributing factor to his removal because those IRA appeals were pending when
the agency removed him. ID at 39. Nevertheless, upon shifting the burden, the
administrative judge found that the agency met its burden of proving that it would
have taken the same action in the absence of the appellant’s protected activity.
ID at 39-42.
¶7 On review, the appellant appears to argue that his whistleblowing set in
motion a series of events that led to the discovery of his misconduct and was,
therefore, a motivating factor in his removal. PFR File, Tab 1 at 8. However, he
has failed to clearly identify what whistleblowing he is referring to, as he merely
identified it as his “January 2015 complaint.” Id. Moreover, the administrative
judge did not deny the appellant’s whistleblower retaliation claims on the basis of
the motivating factor requirement, so the argument would be unavailing even if it
had any merit. Supra ¶ 6.
¶8 Separately, the appellant now asserts that the agency perceived him as a
whistleblower. PFR File, Tab 1 at 6, 8. He is correct to recognize that the Board
5
has, at times, found that an individual was entitled to whistleblower protections
when he did not actually make protected disclosures but was perceived as having
done so. See, e.g., Holloway v. Department of the Interior, 82 M.S.P.R. 435, ¶ 15
(1999); Mausser v. Department of the Army, 63 M.S.P.R. 41, 44 (1994);
Thompson v. Farm Credit Administration, 51 M.S.P.R. 569, 581-82 (1991).
However, we find no instance of the appellant articulating this legal theory
below, so we will not consider it now. See, e.g., IAF, Tab 18 at 13, Tab 34. It is
well settled that the Board need not consider arguments submitted for the fir st
time in a petition for review absent a showing that the arguments were not
available prior to the close of the record despite due diligence. Banks v.
Department of the Air Force, 4 M.S.P.R. 268, 271 (1980).
¶9 In connection with this new legal theory, the appellant has requested
permission to supplement the record for the instant appeal with a decision he
received in a separate Board matter. PFR File, Tab 12 at 4. As a matter of fact,
the appellant has pursued several IRA appeals before the Board that involved the
same alleged disclosures as that which he assert ed in the instant removal appeal,
but different alleged personnel actions and legal theories. See Oliva v.
Department of Veterans Affairs, MSPB Docket No. DA-1221-15-0520-W-1,
Initial Appeal File, Tab 52, Initial Decision; Oliva v. Department of Veterans
Affairs, MSPB Docket No. DA-1221-16-0199-W-1, Initial Appeal File, Tab 31,
Initial Decision (0199 ID); Oliva v. Department of Veterans Affairs, MSPB
Docket No. DA-1221-17-0225-W-1, Initial Appeal File, (0225 IAF), Tab 23,
Initial Decision (0225 ID).
¶10 The administrative judge joined the first two IRA appeals and issued a
single decision, finding that the appellant failed to meet his burden of proving
that he made a protected disclosure. 5 0199 ID at 6-16. That same administrative
5
Nearly two years after the initial decision for those appeals, t he appellant filed a
petition for review, which the Board dismissed as untimely. Oliva v. Department of
6
judge later issued the initial decision in this removal appeal in which, as
previously discussed, she considered the appellant’s earlier IRA appeals as
protected activity. ID at 1, 36-39. After the close of record in the instant
removal appeal, the appellant filed a third IRA appeal alleging that, inter alia, he
was a perceived whistleblower. E.g., 0225 IAF, Tab 7 at 3, Tab 14 at 1. After
the initial decision was issued in the instant removal appeal and while it was
pending our review, a different administrative judge granted corr ective action in
that third IRA appeal on the basis that the appellant was a perceived
whistleblower. 6 0225 ID at 6-9, 23.
¶11 While we have reviewed the decisions from each of these IRA appeals, we
find no basis for concluding that they require a different result in this removal
appeal. As stated above, the Board will not consider the appellant’s new legal
theory that he was a perceived whistleblower because he failed to present it
below, even if that new legal theory was successful in a separate appeal. 7
¶12 As a final matter regarding the whistleblower retaliation claims, the
appellant has submitted certain evidence for the first time on review. PFR File,
Tab 8. Under 5 C.F.R. § 1201.115, the Board generally will not consider
evidence submitted for the first time on review absent a showing that it was
unavailable before the record was closed despite the party’s due diligence.
Avansino v. U.S. Postal Service, 3 M.S.P.R. 211, 214 (1980). To constitute new
evidence, the information contained in the documents, not just the documents
themselves, must have been unavailable despite due diligence when the record
Veterans Affairs, MSPB Docket No. DA-1221-15-0520-W-1, Final Order (May 5,
2023).
6
The appellant filed a fourth IRA appeal, but the parties settled that matter. Oliva v.
Department of Veterans Affairs, MSPB Docket No. DA-1221-18-0437-W-1, Initial
Appeal File (0437 IAF), Tab 52, Initial Decision. The associated settlement agreement
explicitly provided that the agreement did not preclude the appellant from continuing to
pursue his petition for review in the instant appeal. 0437 IAF, Tab 51 at 6.
7
Because the agency did not file a petition for review in the appellant’s third IRA
appeal, the initial decision in that appeal is now final.
7
closed. 5 C.F.R. § 1201.115(d). Further, to satisfy the “new and material
evidence” criterion for granting a petition for review, the new evidentiary
submission must be of sufficient weight to warrant an outcome different from that
ordered by the administrative judge. Russo v. Veterans Administration,
3 M.S.P.R. 345, 349 (1980).
¶13 The appellant has not satisfied the aforementioned requirements for his
newly submitted evidence. The evidence includes a recent article describing his
Director and several other agency officials as being under administrative
investigation, seemingly because of some other individual’s whistleblowing, but
we find this evidence immaterial to the appellant’s whistleblowing claim or this
appeal, generally. PFR File, Tab 8 at 4-7. The appellant’s newly submitted
evidence also includes affidavits that are dated after the close of record below,
which he describes as relevant to his whistleblower claim. Id. at 8-9. But the
information contained in these documents is not new, and the appellant has not
established its materiality. See 5 C.F.R. § 1201.115(d) (explaining that, to
constitute new evidence on review, the information contained in the documents
that a party submits, and not just the documents themselves, must have been
unavailable when the record closed below). The remaining evidence submitted on
review, which apparently involves matters other than the appellant’s
whistleblower affirmative defense, is unavailing for the same reasons. PFR File,
Tab 8 at 10-18.
The appellant failed to prove his harmful procedural error claim.
¶14 The Board will reverse a removal action if an appellant shows that the
agency committed a harmful procedural error. 5 U.S.C. § 7701(c)(2)(A); 5 C.F.R.
§ 1201.56(c)(1). A harmful error is one that is likely to have caused the agency
to reach a conclusion different from the one it would have reached in the absence
or cure of the error. 5 C.F.R. § 1201.4(r).
¶15 On review, the appellant reasserts that the agency failed to follow
“VHA700,” an apparent reference to the agency’s handbook for administrative
8
investigations. PFR File, Tab 1 at 8; IAF, Tab 20 at 120-200. According to the
appellant, the agency’s Administrative Investigation Board (AIB) did not validate
the veracity of witnesses, did not interview his witnesses, and was tainted by
individuals with retaliatory animus or conflicts of interest. PFR File, Tab 1
at 8-10. He further argues that the AIB did not adequatel y or appropriately
question him about the matters that the agency ultimately relied on to remove
him, and did not provide him with adequate opportunity to participate in the
investigation. Id. at 9. The administrative judge did not find these arguments
persuasive, and we do not either. ID at 43-44.
¶16 Although the appellant has referred to the agency’s administrative
investigation handbook, generally, he has failed to identify any specific provision
within that handbook that the agency may have violated. PFR File, Tabs 8-10.
Moreover, while the appellant is essentially arguing that the agency would not
have concluded that he engaged in misconduct if the AIB had taken additional
investigatory measures, that contention is not persuasive in light of the age ncy
proving its case, here, before the Board. Cf. Simmons v. Department of the Air
Force, 99 M.S.P.R. 28, ¶¶ 34-35 (2005) (finding unpersuasive an appellant’s
speculation as to what he might have said during an agency’s investigation absent
the agency’s alleged error, and reasoning that the appellant’s hearing testimony
was consistent with what he stated during the investigation), aff’d per curiam sub
nom. Gebhart v. Department of the Air Force, 186 F. App’x 996 (Fed. Cir. 2006).
Accordingly, we find no basis for disturbing the administrative judge’s
well-reasoned findings for the appellant’s harmful error claims.
The administrative judge properly addressed the agency’s chosen penalty.
¶17 Among those factors that an agency should consider in determining the
appropriate penalty for an employee’s misconduct is his length of service.
Douglas v. Veterans Administration, 5 M.S.P.R. 280, 305-06 (1981). In what
appears to be one final argument on review, the appellant summarily asserts that
the administrative judge and deciding official both erred in failing to
9
acknowledge his “30-year Federal career.” PFR File, Tab 1 at 10. However, this
argument appears to misstate his prior service. The record includes a sworn
statement wherein the appellant explained that he worked for the agency between
2000 and 2004, then worked in the private sector for approximately 9 years before
he returned to the agency in 2012, where he remained until his 2016 removal.
IAF, Tab 11 at 503. He testified similarly at the Board hearing. Hearing
Compact Disc, Day 2 (testimony of the appellant). Notes from the appellant’s
oral response to the proposed removal also indicate that during his reply, he
“went over his professional career to include his military experience which
spanned 30 years between private and public organizations.” IAF, Tab 11 at 26.
¶18 Moreover, the record shows that both the deciding official and
administrative judge considered the appellant’s prior service, even if neither
described it in the way he may have preferred. The deciding official completed a
penalty selection worksheet in which he specifically state d that he considered
“years of service” as a mitigating factor. Id. at 22. The administrative judge
similarly acknowledged the appellant’s “length of service” as a mitigating factor
in analyzing the reasonableness of the chosen penalty. ID at 50. Accordingly, we
conclude that the appellant has not presented any persuasive basis for disturbing
the agency’s penalty or the administrative judge’s analysis of the same. See
generally Scheffler v. Department of the Army , 117 M.S.P.R. 499, ¶ 14 (2012)
(recognizing that the Board will mitigate a penalty only if the Board finds that the
agency did not weigh the relevant factors or that the penalty clearly exceeds the
bounds of reasonableness), aff’d, 522 F. App’x 913 (Fed. Cir. 2013).
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NOTICE OF APPEAL RIGHTS 8
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 choice s 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:
8
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.
11
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 particu lar
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. 420 (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 to waiver of any
12
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 Board’s
13
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. 9 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 a t 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.uscour ts.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.
9
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.
14
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.