Sharon Spellman v. Department of the Navy

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
SHARON LEIGH SPELLMAN, DOCKET NUMBER
Appellant, DC-1221-17-0133-W-1
v.
DEPARTMENT OF THE NAVY, DATE: June 29, 2023
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Thomas F. Hennessy, Esquire, Fairfax, Virginia, for the appellant.
Timothy R. Zelek, Quantico, Virginia, 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 this individual right of action (IRA) appeal for lack of Board
jurisdiction. 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 or regulation
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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 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 petiti oner’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. Except as expressly MODIFIED to
clarify the appellant’s allegations in this appeal, supplement the administrative
judge’s analysis of whether the appellant nonfrivolously alleged that she made a
protected disclosure, and VACATE the portion of the initial decision addressing
whether the appellant nonfrivolously alleged that she made a protected disclosure
that was a contributing factor in the personnel actions at issue, we AFFIRM the
initial decision.
BACKGROUND
¶2 The appellant is a Financial Management Analyst with the United States
Marine Corps Education Command (EDCOM) at the Marine Corps University
(MCU) in Quantico, Virginia. Initial Appeal File (IAF), Tab 1 at 6. On
February 5, 2016, she filed a whistleblower reprisal complaint with the Office of
Special Counsel (OSC), alleging that the agency had taken various actions 2
against her in retaliation for disclosing possible prohibited personnel practices
(PPPs) at MCU to an agency investigator on January 14, 2016. Id. at 22-31. On
February 9, 2016, the appellant filed a disclosure complaint with OSC , alleging
2
In her complaint, the appellant identified the agency’s alleged retaliatory actions as
follows: “Moved positions; duties removed; [Unfair Labor Practice]; deta iled; unable
to attend meetings related to my job, unable to walk on certain floors or communicate
with certain people.” IAF, Tab 1 at 29.
3
that agency management officials had abused their authority and created a
substantial and specific danger to public safety by participating in “personal and
professional attacks against her,” including “violating her detail letter” and
implementing additional checks on her work. Id. at 16-21. The appellant
transmitted both complaints to OSC’s Disclosure Unit via facsimile on
February 16, 2016. Id. at 32-33. On September 16, 2016, OSC advised the
appellant that it had terminated its inquiry into the allegations in her
whistleblower reprisal complaint that agency officials retaliated against her for
disclosing possible PPPs to EDCOM’s Commanding General (CG), 3 and it
apprised her of her Board appeal rights. Id. at 41-43.
¶3 On November 18, 2016, the appellant filed an IRA appeal with the Board
and requested a hearing. Id. at 7, 13. The appellant submitted the following
documents with her appeal: (1) the reprisal and disclosure complaints described
above; (2) a fax cover sheet dated February 16, 2016, addressed to OSC’s
Disclosure Unit; (3) an undated, unsigned timeline of events; and (4) OSC’s
September 16, 2016 letters. Id. at 16-43.
¶4 The administrative judge issued an order informing the parties of the
jurisdictional issues and directing the appellant to submit evidence and argument
to establish the Board’s jurisdiction over her appeal. IAF, Tab 3. In response,
the appellant submitted the same documents that she had submitted with her
appeal, with the exception of OSC’s letters. IAF, Tabs 1, 6.
¶5 Without holding the requested hearing, the administrative judge issued an
initial decision dismissing the appeal for lack of jurisdiction. IAF, Tab 12, Initial
Decision (ID) at 1, 3, 7. The administrative judge determined that the appellant
exhausted her administrative remedies with OSC regarding her allegation that
3
Although the appellant did not allege that she disclosed possible PPPs to the CG in her
OSC whistleblower reprisal complaint, IAF, Tab 1 at 28, she apparently raised this
allegation in other submissions to OSC, as evidenced by OSC’s reference to her claim
that she made disclosures to the CG in its September 16, 2016 letter advising her that it
had terminated its inquiry into her reprisal allegations. Id. at 41.
4
agency officials retaliated against her for disclosing possible PPPs to the CG. ID
at 4. The administrative judge concluded, however, that the appellant failed to
nonfrivolously allege that she engaged in whistleblowing activity by making a
disclosure protected under 5 U.S.C. § 2302(b)(8). 4 ID at 4-6. The administrative
judge further found that the appellant failed to nonfrivolously allege that her
purported protected activity was a contributing factor in the alleged personnel
actions. ID at 6-7.
¶6 The appellant has filed a petition for review. Petition for Review (PFR)
File, Tab 7. The agency has not filed a response.
ANALYSIS
¶7 An appellant bears the burden of proving the Board’s jurisdiction over her
appeal by a preponderance of the evidence. 5 C.F.R. § 1201.56(b)(2)(i)(A). To
establish the Board’s jurisdiction over an IRA appeal, an appellant must have
exhausted her administrative remedies before OSC and make nonfrivolous
allegations of the following: (1) she 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 disclosure or protected activity
was a contributing factor in the agency’s decision to take or fail to take a
personnel action as defined by 5 U.S.C. § 2302(a)(2)(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).
4
As explained below, to establish jurisdiction over an IRA appeal, an appellant is not
required to prove that she made protected disclosures. Rather she is required merely to
make a nonfrivolous allegation that her disclosures were protected. Grubb v.
Department of the Interior, 96 M.S.P.R. 377, ¶ 11 (2004). Although the administrative
judge appears to have applied the proper nonfrivolous standard, the initial decision
erroneously states that the appellant failed to “demonstrate” that she made a protected
disclosure or that her purported protected activity was a contributing factor in the alleged
personnel actions. ID at 5-7. Also, the administrative judge determined that the appellant
failed to nonfrivolously allege that she made a protected disclosure. ID at 5 -6. We thus
disregard as a drafting error the administrative judge’s statement in the heading at the top
of page 4 that the appellant made a protected disclosure.
5
The administrative judge correctly found that the appellant exhausted her
administrative remedies before OSC regarding her claim of reprisal for disclosing
possible PPPs to the CG.
¶8 As for the exhaustion requirement, under 5 U.S.C. § 1214(a)(3), an
employee is required to exhaust her administrative remedies with OSC before
seeking corrective action from the Board in an IRA appeal. Mason v. Department
of Homeland Security, 116 M.S.P.R. 135, ¶ 8 (2011). The Board may only
consider those disclosures of information and personnel actions that the appellant
raised before OSC. Id.; Campo v. Department of the Army, 93 M.S.P.R. 1, ¶ 9
(2002) (holding that the Board’s jurisdiction in an IRA appeal is limited to the
issues she raised before OSC). An appellant may demonstrate exhaustion through
her initial OSC complaint, evidence that she amended the original complaint,
including but not limited to, OSC’s determination letter and other letters from
OSC referencing any amended allegations, and the appellant’s written responses
to OSC referencing the amended allegations. Mason, 116 M.S.P.R. 135, ¶ 8.
¶9 The administrative judge correctly found that the appellant exhausted her
remedies before OSC as to her allegation that agency officials retaliated against
her for disclosing possible PPPs to the CG. ID at 4. As noted above, OSC’s
letter notifying the appellant of her Board appeal rights shows that the appellant
raised this allegation before OSC. IAF, Tab 1 at 41; Sutton v. Department of
Justice, 94 M.S.P.R. 4, ¶ 9 (2003) (considering OSC’s termination letters in
determining whether the appellant satisfied the exhaustion requirement), aff’d,
97 F. App’x 322 (Fed. Cir. 2004).
The appellant did not allege retaliation for making a protected disclosure to OSC
and, in any event, she did not exhaust her administrative remedies with OSC
regarding such a claim.
¶10 In the initial decision, the administrative judge stated that the appellant was
alleging that the agency retaliated against her for making a protected
whistleblowing disclosure to OSC. ID at 1; see 5 U.S.C. § 2302(b)(8)(B)
(prohibiting an agency from taking or failing to take a personnel action
6
concerning any employee “because of . . . any disclosure to the Special Counsel”
of information that the employee reasonably believes evidences, among other
things, a violation of any law, rule, or regulation, gross mismanagement, or an
abuse of authority). Careful review of the record shows that the appellant has not
made such an allegation.
¶11 Moreover, even if this appeal included a claim of reprisal for maki ng a
protected disclosure to OSC, the appellant has not shown that she exhausted her
OSC remedy regarding such a claim. An appellant filing an IRA appeal has not
exhausted her OSC remedy unless she has filed a complaint with OSC and either
OSC has notified her that it was terminating its investigation of her allegations or
120 calendar days have passed since she first sought corrective action. Simnitt v.
Department of Veterans Affairs, 113 M.S.P.R. 313, ¶ 8 (2010). The record
contains no evidence showing that the appellant filed a complaint with OSC
alleging that the agency retaliated against her for making a disclosure to OSC.
The appellant has failed to nonfrivolously allege that she made a protected
disclosure.
¶12 Although the administrative judge found that the appellant exhausted her
remedies regarding her allegation of retaliation for disclos ing possible PPPs to
the CG, he did not analyze whether the appellant nonfrivolously alleged that
those disclosures were protected. 5 Thus, we do so here.
¶13 A nonfrivolous allegation of a protected disclosure is an allegation of facts
that, if proven, would show that the appellant disclosed a matt er that a reasonable
person in her position would believe evidenced one of the categories of
5
Instead, the administrative judge considered whether the appellant nonfrivolously
alleged that her disclosures to OSC regarding the agency’s alleged abus e of authority
and its creating a substantial and specific danger to public safety were protected, and he
found that the appellant failed to do so. ID at 5-6; IAF, Tab 1 at 19. The appellant has
not specifically contested the administrative judge’s findi ng. See generally PFR File,
Tab 7. Therefore, we have not further considered this issue. See 5 C.F.R. § 1201.115(stating that the Board normally will consider only issues raised in a timely filed
petition for review or in a timely filed cross petition for review).
7
wrongdoing specified in 5 U.S.C. § 2302(b)(8). Salerno, 123 M.S.P.R. 230, ¶ 6.
The test to determine whether a putative whistleblower has a reasonable belief
that her disclosure 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)). The disclosure must be specific and
detailed, not vague allegations of wrongdoing. Linder v. Department of Justice,
122 M.S.P.R. 14, ¶ 14 (2014). Conclusory, vague, or unsupported allegations are
insufficient to qualify as a nonfrivolous allegation of jurisdiction in an IRA
appeal. McDonnell v. Department of Agriculture, 108 M.S.P.R. 443, ¶ 7 (2008).
¶14 The appellant argues on review that the administrative judge erred in
finding that she failed to nonfrivolously allege that she made a protected
disclosure. PFR File, Tab 7 at 5. She asserts that, in making this finding, the
administrative judge disregarded evidence showing that she complained about
“[a]gency policy and practice concerning a promotion.” Id. She contends that
her complaint about the agency’s failure to adhere to its own promotion policies
was clearly a protected disclosure under 5 U.S.C. § 2302(b)(8). Id. at 7.
¶15 Based on our review of the record, we conclude that the appellant’s
allegations of wrongdoing are not sufficiently specific or detailed to constitute a
nonfrivolous allegation of a protected disclosure. The appellant asserts broadly
that she complained about the agency’s alleged illegal hiring practices and failure
to adhere to its own promotion policies. Id. at 6-7. The appellant’s conclusory
and vague allegations of wrongdoing, without any details, are insufficient to
constitute a nonfrivolous allegation of a protected disclosure under 5 U.S.C.
§ 2302(b)(8). El v. Department of Commerce, 123 M.S.P.R. 76, ¶¶ 7-8 (2015)
(finding that the appellant’s disclosures regarding the agency’s alleged delays in
8
processing his travel reimbursement claims “only vaguely allege wrongdoing”
and do not constitute a nonfrivolous allegation of a violation of law, rule, or
regulation), aff’d, 663 F. App’x 921 (Fed. Cir. 2016).
It is unnecessary to determine whether the appellant nonfrivolously alleged that
her disclosures were a contributing factor in the personnel actions at issue .
¶16 The appellant also argues on review that she showed that her protected
disclosures were a contributing factor in the personnel actions at issue. PFR File,
Tab 7 at 7. Because the appellant has failed to raise a nonfrivolous allegation that
she made a protected disclosure, it is unnecessary to determine whether she raised
a nonfrivolous allegation that her disclosures were a contributing factor in the
personnel actions. See Yunus, 242 F.3d at 1371. Accordingly, we vacate the
portion of the initial decision addressing the contributing factor element of this
appeal.
¶17 In sum, we find that the appellant exhausted her administrative remedies
with OSC regarding her allegation that agency officials retaliated against her for
disclosing possible PPPs to the CG; however, she failed to nonfrivolously allege
that those disclosures are protected. Therefore, we find that this IRA appeal must
be dismissed for lack of jurisdiction.
NOTICE OF APPEAL RIGHTS 6
The initial decision, as supplemented by this Final Order, cons titutes the
Board’s final decision in this matter. 5 C.F.R. § 1201.113. 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 an d
6
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.
9
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. Failu re 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:
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
10
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
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
11
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
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. 7 The court of appeals must receive your
7
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.
12
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.
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.