UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
HARROLL INGRAM, DOCKET NUMBER
Appellant, AT-1221-14-0725-W-1
v.
DEPARTMENT OF THE ARMY, DATE: February 3, 2015
Agency.
THIS FINAL ORDER IS NO NPRECEDENTIAL 1
Harroll Ingram, Sanford, Florida, pro se.
Laura A. Cushler, Esquire, and Stephen T. Davis, Orlando, Florida, for the
agency.
BEFORE
Susan Tsui Grundmann, Chairman
Anne M. Wagner, Vice Chairman
Mark A. Robbins, Member
FINAL ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
denied his request for corrective action. Generally, we grant petitions such as
this one only when: the initial decision contains erroneous findings of material
fact; the initial decision is based on an erroneous interpretation of statute or
1
A nonprecedential order is one that the Board has determined does not add
sign ificantly 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 Parties may cite nonprecedential orders,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
regulation or the erroneous application of the law to the facts of the case; the
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. See 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, and based on the following points and
authorities, 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 by this Final Order, we
AFFIRM the initial decision.
¶2 The appellant filed an individual right of action (IRA) appeal alleging that
the agency had taken certain personnel actions against him in retaliation for
protected whistleblowing. Initial Appeal File (IAF), Tab 1. The appellant
previously prevailed in an IRA appeal where the Board found that the agency had
retaliated against him by taking several personnel actions against him based upon
certain protected disclosures he made in 2008-09. See Ingram v. Department of
the Army, 116 M.S.P.R. 525 (2011). Here, the appellant alleged that the agency
has taken more personnel actions in retaliation for his prior whistleblowing
activity. IAF, Tab 1.
¶3 The administrative judge found that, prior to filing his appeal, the appellant
first sought corrective action with the Office of Special Counsel (OSC), he made
nonfrivolous allegations that he made disclosures protected by 5 U.S.C.
§ 2302(b)(8), and the disclosures were a contributing factor in the agency’s
action. Thus, the administrative judge found that the Board has jurisdiction in
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this matter. IAF, Tab 16, Initial Decision (ID) at 1. 2 Further, the administrative
judge summarized the 12 alleged personnel actions that the appellant asserted
were taken in retaliation for his prior whistleblowing and his prior IRA appeal.
ID at 3. The administrative judge addressed each of the alleged 12 personnel
actions and found that the appellant failed to show by preponderant evidence that
he suffered a personnel action within the meaning of the Whistleblower
Protection Act (WPA). ID at 8. Thus, the administrative judge found that he
did not need to reach the issue of whether the agency took those actions in
retaliation for the appellant’s whistleblowing activity. ID at 8.
¶4 We have considered the appellant’s arguments on review concerning the
administrative judge’s weighing of the evidence; however, the applicable law and
the record evidence support the administrative judge’s findings that the appellant
failed to show by preponderant evidence that he suffered a personnel action
within the meaning of the WPA, and as a result, there was no need to reach the
issue of whether the agency took those actions in retaliation for his
whistleblowing activity. Thus, we discern no reason to reweigh the evidence or
substitute our assessment of the record evidence for that of the administrative
judge. See Crosby v. U.S. Postal Service, 74 M.S.P.R. 98, 105-06 (1997) (finding
no reason to disturb the administrative judge’s findings when the administrative
judge considered the evidence as a whole, drew appropriate inferences, and made
reasoned conclusions); Broughton v. Department of Health & Human Services,
33 M.S.P.R. 357, 359 (1987) (same).
¶5 On review, the appellant argues that the administrative judge merely copied
the claims he raised in his OSC complaint. Specifically, the appellant contends
that the administrative judge did not address his claims that “he was subjected to
2
The administrative judge correctly noted, see ID at 2 n.3, that the appellant’s claim,
that the agency retaliated against him for his having previously filed h is IRA appeal, is
now cognizable under the Whistleblower Protection Enhancement Act, Pub. L.
No. 112-199, § 108(a), 126 Stat. 1465 (2012). See 5 U.S.C. § 1221(a).
4
a significant change in his duties, position removal attempts without cause, and
denial of a promotion opportunity.” Petition for Review (PFR) File, Tab 1. The
appellant also asserts that he was issued a “letter of reprimand,” and that he was
refused overtime pay. Id. In addition, he argues that he proved that his
disclosures were a contributing factor in the alleged personnel actions and that the
agency failed to show by clear and convincing evidence that it would have taken
the same actions absent his whistleblowing. PFR File, Tab 4.
¶6 However, in an IRA appeal, an employee is required under 5 U.S.C.
§ 1214(a)(3), to seek corrective action from OSC before seeking corrective action
from the Board. See Mason v. Department of Homeland Security, 116 M.S.P.R.
135, ¶ 8 (2011). Further, the Board may only consider those disclosures of
information and personnel actions that the appellant raised before OSC. Id.
¶7 For example, the appellant argues on review that the administrative judge
did not consider his assertion that the Project Director “greatly reduced his
engineering duties and her work related interaction with him.” PFR File, Tab 1.
However, the administrative judge specifically considered the four “actions”
involving the Project Director which the appellant identified in his OSC
complaint, and found that, as to the appellant’s claims that the agency curtailed
his duties, the agency denied that it curtailed his duties and an independent
investigator could not substantiate his claims. ID at 7. The administrative judge
found further that the appellant failed to present evidence that he suffered a
significant change in his working conditions, and that he relied on bare factual
allegations without providing proof to support his claims. Therefore, the
administrative judge found that the appellant, who bears the burden of proving
that he suffered a personnel action, presented very limited probative evidence on
this issue, and thus, failed to show that he suffered a personnel action. ID at 7.
While the appellant challenges the administrative judge’s findings in this regard,
he has provided no basis upon which to disturb it.
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¶8 Similarly, the administrative judge found no evidence in the record that the
appellant was ever denied pay for overtime worked or that he was “refused”
overtime. ID at 4. Rather, the administrative judge found that the agency
submitted evidence which shows that the appellant was paid for 32 hours of
overtime during the period from October 2011 through January 2012. Id. The
agency also submitted a declaration from Lieutenant Colonel (LTC) Wilson Ariza
stating that he had no knowledge or recollection of assigning the appellant
“unpaid overtime.” LTC Ariza’s declaration stated further that he was not the
approval authority for overtime and that such requests would have had to go
through either the Program Manager for Combined Arms Tactical Training or his
deputy for approval. IAF, Tab 8 at 16-17. Thus, the administrative judge found
that the appellant failed to prove by preponderant evidence that he was required
to work unpaid overtime. ID at 4. Furthermore, the record reflects that, although
the appellant was originally scheduled to work longer shifts than allowed during a
training, when he brought his schedule to LTC Ariza’s attention, LTC Ariza
advised the appellant that he could not authorize overtime or compensatory time
and instructed the appellant to bring his schedule and meet with him so that he
could make adjustments. IAF, Tab 10, Subtab D at 5. Accordingly, we find no
merit to the appellant’s claim that he was “denied” overtime and, thus, he has
shown no basis upon which to disturb this determination.
¶9 The appellant also reasserts that his supervisors issued him a letter of
reprimand and he argues that the administrative judge erred in concluding that the
letter does not constitute a personnel action because it does not say that he did
anything wrong or place any restrictions on him. PFR File, Tab 1. However, the
record evidence shows that the appellant received a “letter of caution,” he did not
receive a “letter of reprimand.” IAF, Tab 10, Subtab C at 3. Further, the
administrative judge thoroughly addressed the letter of caution and found that the
letter only admonishes the appellant to behave in a professional manner and treat
others with respect, and because it does not state that the appellant did anything
6
wrong, or restrict his behavior in any way, it does not constitute a personnel
action within the meaning of the WPA. ID at 6. We agree. While the appellant
continues to argue otherwise and attempts to characterize the letter as a
“reprimand,” his arguments are mere disagreement with the administrative
judge’s findings and determinations and, as such, they do not warrant any
further review.
¶10 The appellant also asserts on review that the administrative judge erred by
failing to consider his claim that his supervisors created a Chief Engineer position
on his team and then, without competition, filled that position with another
individual from a different team. PFR File, Tab 1; IAF, Tab 10, Subtab E. We
note that, even though the appellant raised this argument for a first time in his
closing remarks at the hearing, the administrative judge should have addressed it
in the initial decision. Nevertheless, as the appellant acknowledges in his petition
for review, this claim was not raised in his OSC complaint, and thus, he did not
exhaust this claim before OSC. PFR File, Tab 1 at 5. Because the Board is
limited in an IRA appeal to considering only those disclosures of information and
personnel actions that the appellant has exhausted before OSC, this claim was not
properly before the Board. See Mason, 116 M.S.P.R. 135, ¶ 8. Thus, the
appellant has not shown that any error was prejudicial to his substantive rights,
and therefore, any error by the administrative judge in this regard provides no
basis for reversal of an initial decision. See Panter v. Department of the
Air Force, 22 M.S.P.R. 281, 282 (1984).
¶11 Finally, while the appellant challenges the administrative judge’s decision
to grant the agency’s motion to strike the emails he obtained during discovery on
the grounds of attorney-client privilege, the appellant has shown no basis upon
which to disturb the administrative judge’s ruling. Under 5 C.F.R. § 1201.41, the
Board’s administrative judges have substantial discretion to make rulings on
motions, and the administrative judge’s granting of the agency’s motion here
did not amount to an abuse of discretion. See Cassel v. Department of
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Agriculture, 72 M.S.P.R. 542, 545-46 (1996). Further, an administrative judge
has wide discretion in ruling on discovery matters, and absent a showing of abuse
of discretion, the Board will not find reversible error in such rulings. Jenkins v.
Environmental Protection Agency, 118 M.S.P.R. 161, ¶ 26 (2012). Here, the
administrative judge granted the agency’s motion to strike emails on the grounds
of attorney-client privilege. While the appellant challenges the administrative
judge’s determination in this regard, we find no basis to disturb it. See Grimes v.
Department of the Navy, 99 M.S.P.R. 7, ¶ 8 (2005) (the attorney-client privilege
is an absolute privilege which cannot be defeated upon the appellant’s need for
evidence to support his theory of the case); see also Quinn v. Department of
Health & Human Services, 838 F. Supp. 70, 75-76 (W.D.N.Y. 1992) (quoting
Coastal States Gas Corp. v. Department of Energy, 617 F.2d 854, 866 (D.C. Cir.
1980)) (documents that “reflect the ‘give and take of the consultative process’
concerning the agency’s decision whether or not to take disciplinary action” are
privileged and protected from disclosure). Accordingly, the appellant has shown
no basis upon which to disturb the initial decision.
NOTICE TO THE APPELLANT REGARDING
YOUR FURTHER REVIEW RIGHTS
The initial decision, as supplemented by this Final Order, constitutes the
Board's final decision in this matter. 5 C.F.R. § 1201.113. You have the right to
request the United States Court of Appeals for the Federal Circuit to review this
final decision.
The court must receive your request for review no later than 60 calendar
days after the date of this order. See 5 U.S.C. § 7703(b)(1)(A) (as rev. eff.
Dec. 27, 2012). If you choose to file, be very careful to file on time. The court
has held that normally it does not have the authority to waive this statutory
deadline and that filings that do not comply with the deadline must be dismissed.
See Pinat v. Office of Personnel Management, 931 F.2d 1544 (Fed. Cir. 1991).
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If you want to request review of the Board’s decision concerning your
claims of prohibited personnel practices under 5 U.S.C. § 2302(b)(8),
(b)(9)(A)(i), (b)(9)(B), (b)(9)(C), or (b)(9)(D), but you do not want to challenge
the Board’s disposition of any other claims of prohibited personnel practices, you
may request review of this final decision by the United States Court of Appeals
for the Federal Circuit or any court of appeals of competent jurisdiction. The
court of appeals must receive your petition for review within 60 days after the
date of this order. See 5 U.S.C. § 7703(b)(1)(B) (as rev. eff. Dec. 27, 2012). If
you choose to file, be very careful to file on time. You may choose to request
review of the Board’s decision in the United States Court of Appeals for the
Federal Circuit or any other court of appeals of competent jurisdiction, but not
both. Once you choose to seek review in one court of appeals, you may be
precluded from seeking review in any other court.
If you need further information about your right to appeal this decision to
court, you should refer to the federal law that gives you this right. It is found in
Title 5 of the United States Code, section 7703 (5 U.S.C. § 7703) (as rev. eff.
Dec. 27, 2012). You may read this law as well as other sections of the
United States Code, at our website, http://www.mspb.gov/appeals/uscode.htm.
Additional information about the United States 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, and 11.
Additional information about other courts of appeals can be found at their
respective websites, which can be accessed through
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx.
If you are interested in securing pro bono representation for an appeal to the
United States Court of Appeals for the Federal Circuit, you may visit our website
at http://www.mspb.gov/probono for a list of attorneys who have expressed
interest in providing pro bono representation for Merit Systems Protection Board
9
appellants before the Federal Circuit. The Merit Systems Protection Board
neither endorses the services provided by any attorney nor warrants that any
attorney will accept representation in a given case.
FOR THE BOARD: ______________________________
William D. Spencer
Clerk of the Board
Washington, D.C.