UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
2014 MSPB 80
Docket No. DA-1221-13-0382-W-1
Frederick J. Colbert,
Appellant,
v.
Department of Veterans Affairs,
Agency.
October 16, 2014
R. Bobby Devadoss, Esquire, Dallas, Texas, for the appellant.
Kenneth S. Carroll, Esquire, Dallas, Texas, for the agency.
BEFORE
Susan Tsui Grundmann, Chairman
Anne M. Wagner, Vice Chairman
Mark A. Robbins, Member
OPINION AND ORDER
¶1 The appellant has filed a petition for review of an initial decision that
dismissed his individual right of action (IRA) appeal for lack of jurisdiction. For
the following reasons, we GRANT the petition for review. We AFFIRM the
administrative judge’s finding that the appellant exhausted his administrative
remedies with the Office of Special Counsel (OSC). We VACATE the
administrative judge’s conclusion that the appellant did not make a nonfrivolous
allegation of a protected disclosure. We FIND that, even if the appellant made an
allegation of a prohibited personnel practice (PPP) under 5 U.S.C.
§ 2302(b)(9)(A)(i) or (b)(9)(C), the expanded IRA appeal rights in the
2
Whistleblower Protection Enhancement Act of 2012 (WPEA) do not apply to this
case. We FIND instead that the appellant made a nonfrivolous allegation of a
protected disclosure pursuant to 5 U.S.C. § 2302(b)(8)(B)(i) and that the
disclosure was a contributing factor in the agency’s decision to take a personnel
action against him. We FURTHER FIND that the appellant’s involuntary
resignation claim must be analyzed in light of any further evidence and argument
on the merits of the appellant’s whistleblower reprisal allegations. We therefore
REMAND the appeal for further adjudication consistent with this Opinion and
Order.
BACKGROUND
¶2 The appellant, a nurse, averred that he filed a “form 11” complaint with
OSC on December 30, 2011, in which he disclosed that “medications were being
distributed to veterans in a manner that was [not] in accordance with proper
procedure[s] and several patients (i.e., veterans) were given access to areas that
[were] not appropriate.” Initial Appeal File (IAF), Tab 10 at 5, Tab 23 at 7. 1 He
further averred that, in reprisal for this complaint, he “started experiencing
retaliation” in the form of car vandalism, patient complaints, a hostile work
environment, a July 16, 2012 “minimally satisfactory” evaluation, and a “double
bind” proficiency review and summary review notice. IAF, Tab 10 at 5-6, 8,
Tab 23 at 7-14. The appellant stated that he filed an OSC complaint on July 24,
2012, documenting such instances of alleged retaliation. See IAF, Tab 10 at 6, 8.
1
An OSC Form 11 is a “Complaint of Possible Prohibited Personnel Practice or Other
Prohibited Activity,” and an OSC Form 12 is a “Disclosure of Information” form. See
OSC Forms, OSC.GOV, https://osc.gov/Pages/Resources-OSCForms.aspx. The record
does not contain a copy of the appellant’s December 30, 2011 submission to OSC.
Despite his assertion that he filed a “form 11” complaint on that date, he has not alleged
in this appeal that he was a victim of reprisal prior to December 30, 2011; rather, this
appeal concerns the appellant’s claim that the agency retaliated against him as a result
of the information he disclosed to OSC on December 30, 2011. See IAF, Tab 1 at 6, 9.
3
On July 26, 2012, the appellant informed the agency that he would resign,
effective August 12, 2012. IAF, Tab 10 at 8; see IAF, Tab 14 at 15 (resignation
Standard Form 50), 17 (resignation letter). After the appellant resigned, he filed
another OSC reprisal complaint. IAF, Tab 10 at 8. OSC informed the appellant
on March 7, 2013, that it was closing its investigation. IAF, Tab 1 at 9 (close out
letter in OSC File No. MA-12-4046). The appellant filed a Board appeal, and he
requested a hearing. IAF, Tab 1.
¶3 The administrative judge issued an initial decision, finding that the
appellant exhausted his administrative remedies with OSC but concluding that he
failed to make a nonfrivolous allegation of a protected disclosure under 5 U.S.C.
§ 2302(b)(9)(A)(i). IAF, Tab 27, Initial Decision (ID) at 2-6. The administrative
judge also found that the appellant failed to make a nonfrivolous allegation that
the agency retaliated against him by creating intolerable working conditions that
caused his involuntary resignation. See ID at 6-9. The appellant has filed a
petition for review, and the agency has filed a response. Petition for Review
(PFR) File, Tabs 1, 3. On review, the appellant asserts that the administrative
judge incorrectly applied the relevant legal principles and improperly determined
that he failed to make a nonfrivolous allegation of a protected disclosure. PFR
File, Tab 1.
ANALYSIS
¶4 The Board has jurisdiction over an IRA appeal if the appellant has
exhausted his administrative remedies before OSC and makes nonfrivolous
allegations that: (1) he engaged in whistleblowing activity by making a protected
disclosure; and (2) the disclosure was a contributing factor in the agency’s
decision to take or fail to take a personnel action. Yunus v. Department of
Veterans Affairs, 242 F.3d 1367, 1371 (Fed. Cir. 2001).
4
We affirm the administrative judge’s decision regarding exhaustion.
¶5 Regarding administrative exhaustion, OSC’s close out letter stated that the
appellant claimed that he “disclos[ed] violations of law, rule, or regulation at the
clinic” in his December 30, 2011 complaint, and that he had “experienced a
hostile work environment, an unfavorable proficiency report, and a report of
summary board review, all of which [he] believe[d] forced [him] to resign.” IAF,
Tab 1 at 9. The agency did not file a cross petition for review of the initial
decision, and we affirm the administrative judge’s decision on administrative
exhaustion with OSC, which is supported by the record evidence. ID at 3.
The provisions of the WPEA, authorizing an IRA appeal based on an allegation
that a personnel action was taken as a result of a PPP
under 5 U.S.C. § 2302(b)(9)(A)(i) or (b)(9)(C), do not apply in this case.
¶6 In analyzing whether the appellant made a nonfrivolous allegation of a
protected disclosure, the administrative judge found that, under the
Whistleblower Protection Act, reprisal for filing an OSC complaint was
considered activity pursuant to 5 U.S.C. § 2302(b)(9) and was not whistleblowing
activity pursuant to section 2302(b)(8). ID at 4. The administrative judge
considered the impact of the WPEA, Pub. L. No. 112-199, 126 Stat. 1465 (2012),
which went into effect on December 27, 2012, see WPEA § 202, after all of the
relevant events in this matter. She explained that pursuant to section 101(b) of
the WPEA, an employee may now seek corrective action in an IRA appeal for any
personnel action taken as a result of a PPP described in 5 U.S.C.
§ 2302(b)(9)(A)(i), (B), (C), or (D). ID at 5-6; see 5 U.S.C. § 1221(a). After
finding that section 101 of the WPEA applied to this appeal, the administrative
judge determined that the appellant failed to make a nonfrivolous allegation that
he engaged in activity protected by 5 U.S.C. § 2302(b)(9)(A)(i). See ID at 5-6.
The appellant does not challenge the administrative judge’s reliance on 5 U.S.C.
§ 2302(b)(9)(A)(i) on review, but he disagrees generally with the administrative
judge’s application of the relevant legal authority. See PFR File, Tab 1 at 7.
5
¶7 We vacate the administrative judge’s analysis of this issue. The
administrative judge did not have the benefit of the Board’s decision in Hooker v.
Department of Veterans Affairs, 120 M.S.P.R. 629, ¶¶ 8-15 (2014), wherein the
Board declined to give retroactive effect to section 101(b)(1)(A) of the WPEA as
it applied to the PPPs described in 5 U.S.C. § 2302(b)(9)(B). We conclude that
the expanded IRA appeal rights under the WPEA do not apply to this case for
similar reasons. In Hooker, 120 M.S.P.R. 629, ¶¶ 11-15, the Board used the
analytical framework set forth in Landsgraf v. USI Film Products, 511 U.S. 244
(1994), to determine that the retroactive application of the new IRA appeal right
in section 101(b)(1)(A), as it pertains to personnel actions taken as a result of a
PPP, as set forth at 5 U.S.C. § 2302(b)(9)(B), would be impermissible because it
would increase a party’s liability for past conduct as compared to pre-WPEA
liability. The same rationale is applicable to the new IRA appeal right pertaining
to alleged PPPs as described in 5 U.S.C. § 2302(b)(9)(A)(i) and (b)(9)(C). 2
Indeed, as in Hooker, the WPEA created new Board appeal rights in IRA appeals
for employees who allege that a personnel action has been taken as a result of
PPPs described in section 2302(b)(9)(A)(i) and (b)(9)(C), and it includes a new
provision directing the Board to order such corrective action as the Board
considers appropriate when such protected activity is a contributing factor in a
personnel action. See Hooker, 120 M.S.P.R. 629, ¶ 15. Therefore, consistent
with Hooker, we decline to apply the new IRA appeal right in
section 101(b)(1)(A) of the WPEA as it pertains to the PPPs described at 5 U.S.C.
2
Because we find that the WPEA’s new IRA appeal rights are not available to the
appellant concerning the pre-WPEA events in this appeal, we do not need to resolve
whether he made a nonfrivolous allegation that his activity constitutes a complaint
“with regard to remedying a violation of [5 U.S.C. § 2302(b)(8)],” as described in
5 U.S.C. § 2302(b)(9)(A)(i), or “disclosing information to . . . the Special Counsel, in
accordance with applicable provisions of law,” as described in 5 U.S.C.
§ 2302(b)(9)(C). See Hooker, 120 M.S.P.R. 629, ¶¶ 9-10.
6
§ 2302(b)(9)(A)(i) and (b)(9)(C) because doing so would increase a party’s
liability for past conduct as compared to pre-WPEA liability. See id.
The appellant made a nonfrivolous allegation that his December 2011 complaint
to OSC was protected by 5 U.S.C. § 2302(b)(8)(B)(i).
¶8 Although the appellant cannot bring an IRA appeal based on the WPEA
amendments as set forth above, his December 2011 OSC complaint should have
been considered under 5 U.S.C. § 2302(b)(8)(B)(i). Prior to the enactment of the
WPEA, that section stated, in pertinent part, that it is a PPP to take or fail to take,
or threaten to take or fail to take, a personnel action concerning any employee
“because of . . . any disclosure to the Special Counsel” of information that the
employee reasonably believes evidences “a violation of any law, rule, or
regulation.” 5 U.S.C. § 2302(b)(8)(B)(i) (2011); Weed v. Social Security
Administration, 113 M.S.P.R. 221, ¶ 9 (2010). 3 OSC’s close out letter, coupled
with the appellant’s statement in his affidavit that he disclosed medication
administration improprieties and that veterans were given unauthorized access to
certain parts of the medical facility, constitute a nonfrivolous allegation that he
reasonably believed that he disclosed a violation of a law, rule, or regulation to
OSC in December 2011. We therefore find that the appellant made a
nonfrivolous allegation of a protected disclosure.
The appellant made a nonfrivolous allegation that his December 2011 OSC
complaint was a contributing factor in the agency’s decision to take a personnel
action against him.
¶9 Having determined that the appellant made a nonfrivolous allegation that
his December 2011 complaint to OSC constitutes a protected disclosure pursuant
to 5 U.S.C. § 2302(b)(8)(B)(i), we also conclude that the appellant nonfrivolously
3
The only change that the WPEA made to 5 U.S.C. § 2302(b)(8)(B)(i) is that it struck
“a violation” and inserted “any violation (other than a violation of this section).” WPEA
§ 101(a)(2). We have considered this amendment and find that it does not change the
result in this case. See Mudd v. Department of Veterans Affairs, 120 M.S.P.R. 365, ¶ 5
n.3 (2013).
7
alleged that this complaint was a contributing factor in a personnel action taken
against him. One way to establish the contributing factor criterion is through the
knowledge-timing test, under which an employee may nonfrivolously allege that
the disclosure was a contributing factor in a personnel action through
circumstantial evidence, such as evidence that the official taking the personnel
action knew of the disclosure and that the personnel action occurred within a
period of time such that a reasonable person could conclude that the disclosure
was a contributing factor in the personnel action. Mudd, 120 M.S.P.R. 365, ¶ 10.
¶10 Regarding the “knowledge” component, the appellant averred that he
“notified management” of his December 30, 2011 OSC complaint. IAF, Tab 10
at 5. Although the appellant does not clearly identify any individuals whom he
would consider “management,” he averred that he informed V.B., his “nursing
supervisor,” that he intended to contact OSC in December 2011, and V.B.’s input
was used in his performance evaluation. IAF, Tab 23 at 7, 10-11. He also
identified L.G. as his “supervisor” and “manager,” and it appears that L.G.
requested a summary review board. See IAF, Tab 10 at 5-6, Tab 14 at 19, Tab 23
at 8. We find that these assertions satisfy the “knowledge” component of the
knowledge-timing test. See Carney v. Department of Veterans
Affairs, 121 M.S.P.R. 446, ¶¶ 9-12 (2014) (the appellant’s assertion, that the
supervisors who suspended him knew that he engaged in representational
activities because “they were apprised of [his] everyday activities,” “were
intensely scrutinizing him,” and “granted [him] official time to engage in the
representational activities,” constitutes a nonfrivolous allegation that his activity
was a contributing factor in his suspensions); see also Jessup v. Department of
Homeland Security, 107 M.S.P.R. 1, ¶ 10 (2007) (an allegation of knowledge or
constructive knowledge is “minimally sufficient” to meet the burden of a
nonfrivolous allegation).
¶11 The Board has held that personnel actions that were alleged to have begun
within 1 year of the disclosures satisfy the “timing” component of the
8
knowledge-timing test. See Mudd, 120 M.S.P.R. 365, ¶ 10. The “timing”
component is satisfied here because all of the alleged personnel actions, including
the appellant’s resignation, occurred within 8 months of his December 2011 OSC
complaint. See, e.g., IAF, Tab 14 at 15, 17.
¶12 We further find that the appellant has identified several potentially
retaliatory personnel actions under 5 U.S.C. § 2302(a)(2)(A). The appellant
alleged that there was a hostile work environment and OSC referenced an
“unfavorable proficiency report” and a “report of summary board review,” which
we understand to mean the appellant’s July 16, 2012 “minimally satisfactory”
performance evaluation and his supervisor’s request for a summary review board,
respectively. See IAF, Tab 1 at 9, Tab 14 at 19, Tab 23 at 10-11. A performance
evaluation is a personnel action identified in 5 U.S.C. § 2302(a)(2)(A)(viii), and
the request for a summary review board could be a personnel action, as it could
be “a decision concerning pay, benefits, or awards” or “any other significant
change in duties, responsibilities, or working conditions.” 5 U.S.C.
§ 2302(a)(2)(A)(ix), (xii). 4 The Board also has held that, if an appellant can
prove by preponderant evidence that his resignation was involuntary, the Board
may have IRA jurisdiction over the resignation as a personnel action
under 5 U.S.C. § 2302(a)(2)(A). Koury v. Department of Defense, 84 M.S.P.R.
219, ¶ 10 (1999). 5
4
For the sake of convenience, we are citing to the current version of 5 U.S.C.
§ 2302(a)(2)(A). However, at the time of the incidents in question, the relevant
subsections were 5 U.S.C. § 2302(a)(2)(A)(ix), (xi) (2011). See WPEA § 104. The
renumbering is immaterial to our decision in this matter.
5
In Covarrubias v. Social Security Administration, 113 M.S.P.R. 583, ¶ 9 n.2 (2010),
the Board indicated that, because an involuntary retirement was equivalent to a
removal, which is an “otherwise appealable action,” it was outside the scope of an IRA
appeal. In so concluding, the Board relied on Massimino v. Department of Veterans
Affairs, 58 M.S.P.R. 318 (1993), which we have recognized was abrogated by 5 U.S.C.
§ 7121(g). See Agoranos v. Department of Justice, 119 M.S.P.R. 498, ¶ 18 (2013).
Accordingly, to the extent that Covarrubias conflicts with our decision that an
9
The appellant’s involuntary resignation claim should be remanded for further
adjudication.
¶13 The administrative judge determined below that the appellant failed to
make a nonfrivolous allegation that he was subjected to a personnel action in the
form of a forced resignation in reprisal for protected whistleblowing activity. See
ID at 9. As noted above, the administrative judge arrived at this conclusion after
finding, incorrectly, that the appellant failed to make a nonfrivolous allegation of
a protected disclosure. See ID at 4-6. In light of our decision to vacate the
administrative judge’s analysis in this regard, and our conclusion regarding the
contributing factor criterion, we also vacate the administrative judge’s analysis of
the involuntary resignation claim, and we remand this claim for further
adjudication. See Diefenderfer v. Department of Transportation, 108 M.S.P.R.
651, ¶¶ 35-37 (2008) (explaining that, because the Board was remanding the
appeal for further consideration of some of the appellant’s reprisal claims, and
because these claims were intertwined with her claim that her resignation was
involuntary, further consideration of the latter claim was appropriate). The
administrative judge shall reconsider her findings concerning the involuntary
resignation claim in light of any further evidence and argument introduced on
remand, and she shall make new findings concerning the appellant’s claim in this
regard. See id., ¶ 37.
involuntary resignation claim is cognizable in an IRA appeal, it is hereby
OVERRULED.
10
ORDER
¶14 We REMAND the appeal to the Denver Field Office for further
adjudication consistent with this Opinion and Order.
FOR THE BOARD:
______________________________
William D. Spencer
Clerk of the Board
Washington, D.C.