UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
ISAAC THOMAS, DOCKET NUMBERS
Appellant, DA-3330-15-0612-I-1
DA-1221-14-0413-W-1
v.
DEPARTMENT OF JUSTICE,
Agency. DATE: September 27, 2016
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Isaac Thomas, Port Arthur, Texas, pro se.
John T. LeMaster, Esquire, Washington, D.C., for the agency.
George Cho, Esquire, Grand Prairie, Texas, for the agency.
BEFORE
Susan Tsui Grundmann, 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 both in connection with his individual
right of action (IRA) appeal and the appeal he filed under the Veterans
Employment Opportunities Act (VEOA). Generally, we grant petitions such as
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
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
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 The appellant is a Maintenance Worker at a Federal correctional facility in
Beaumont, Texas. He is also a union representative. In November 2012, in
response to a posted vacancy announcement, the appellant applied for the position
of Maintenance Mechanic Supervisor (General Foreman). Thomas v. Department
of Justice, MSPB Docket No. DA-1221-14-0413-W-1, Initial Appeal File
(0413 IAF), Tab 4, Subtabs 4e, 4f. On November 28, 2012, a fellow union
representative filed a complaint with the Occupational Safety & Health
Administration (OSHA) on behalf of the union, alleging various safety violations
at the Beaumont facility, 0413 IAF, Tab 7 at 39, and, as a result, on December 4,
2012, an OSHA representative conducted an on-site visit, meeting first with union
members, including the appellant, and later with management. On
December 5, 2012, the appellant filed a complaint with the Office of Special
Counsel (OSC) in which he alleged that, in retaliation for having reported safety
violations to OSHA, the agency harassed him and others by telling managers to
require the employees who attended the on-site visit to show that they were on
3
official time on that day, suggesting thereby that the agency was attempting to
discourage the report of safety violations. Id. at 31.
¶3 On May 21, 2013, the selecting official chose another candidate, not the
appellant (who, like the selectee, was identified as among the Best Qualified), to
fill the vacancy. 0413 IAF, Tab 4, Subtab 4b. On March 12, 2014, OSC notified
the appellant that it had closed its file and that he could appeal to the Board
regarding his claim that the agency harassed him and failed to select him for the
General Foreman position in retaliation for his whistleblowing. 2 0413 IAF, Tab 7
at 52. The appellant filed an IRA appeal, 0413 IAF, Tab 1, and requested a
hearing, id. at 2, which the administrative judge convened, 0413 IAF, Tab 29.
¶4 While the IRA appeal was pending, on March 9, 2015, the agency posted a
vacancy announcement for two Human Resources Specialist positions to be filled
at the GS-12/13 grade levels. Thomas v. Department of Justice, MSPB
Docket No. DA-3330-15-0612-I-1 (0612 IAF), Tab 10 at 11. The appellant, who
has a 30% compensable service-connected disability, submitted an application
seeking to be considered at both grade levels. 0612 IAF, Tab 17 at 18. The
agency notified him that he was among the “Best Qualified” and that his name
had been forwarded to the selecting official for consideration at both grade levels,
id. at 46, 56, but, on or about July 20, 2015, the appellant learned that he was not
selected for either position, id. at 48, 58.
¶5 The appellant filed a complaint alleging that the nonselections constituted a
violation of VEOA. 3 On September 11, 2015, the Department of Labor (DOL),
2
It appears that the appellant amended his OSC complaint to include this nonselection.
Thomas v. Department of Justice, MSPB Docket No. DA-3330-15-0612-I-1, Initial
Appeal File (0612 IAF), Tab 1.
3
The appellant filed an OSC complaint, claiming that these nonselections were also in
retaliation for his whistleblowing. 0612 IAF, Tab 1. Presumably because of the VEOA
issues, OSC provided the complaint to the Department of Labor for processing.
However, during adjudication of the VEOA appeal before the Board, the appellant
clarified that he was appealing the 2015 nonselections based on an alleged violation of
his rights under VEOA, and not as an IRA appeal. 0612 IAF, Tab 14.
4
Veterans’ Employment and Training Division, notified him that it had
investigated his complaint, but that the evidence did not support his claim that the
agency had violated his veterans’ preference rights in the matter of these
nonselections, and that he could file an appeal with the Board, which he did.
0612 IAF, Tab 1. He requested a hearing. Id. at 2. After providing the appellant
with information on jurisdiction and proof requirements for a VEOA appeal,
0612 IAF, Tab 3, and after he responded, 0612 IAF, Tabs 8, 11, the
administrative judge joined the IRA appeal and the VEOA appeal for
adjudication, 0612 IAF, Tab 14.
¶6 In her initial decision, the administrative judge first addressed the
appellant’s IRA appeal. 0413 IAF, Tab 47, Initial Decision (ID). She found that
he established the Board’s jurisdiction over the appeal by nonfrivolously alleging
that he made protected disclosures that were a contributing factor in his
nonselection. 4 ID at 7-9. In addressing the appellant’s proof of the matters he
had nonfrivolously alleged, the administrative judge found that the appellant’s
fellow union representative filed complaints with OSHA detailing several major
safety violations at the Beaumont facility and that, based on the appellant’s
technical expertise regarding the fire alarm system, he assisted his fellow union
representative in filing an OSHA complaint regarding problems with that system.
The administrative judge further found that the information the appellant
disclosed to OSHA was such that a reasonable person in his position would
believe evidenced a violation of law, rule, or regulation or a substantial and
specific danger to public health and safety and that the appellant thereby proved
by preponderant evidence that he made protected disclosures. ID at 9-12.
¶7 The administrative judge found that the appellant’s nonselection was a
covered personnel action, ID at 6, but that he did not prove by preponderant
4
The administrative judge did not specifically find that the appellant exhausted
proceedings before OSC, ID at 4-5, but it is clear that he did so, 0413 IAF, Tab 7 at 33,
52.
5
evidence that his disclosures were a contributing factor in his nonselection, ID
at 12-14. In so finding, the administrative judge credited the selecting official’s
testimony that he made the selection on May 21, 2013, prior to May 31, 2013,
when he learned of OSHA’s findings of violations. ID at 13-14. Assuming
arguendo that the appellant had demonstrated that his disclosures were a
contributing factor in his nonselection, the administrative judge found that the
agency showed by clear and convincing evidence that it would have taken the
same personnel action in the absence of whistleblowing. ID at 14-15.
Accordingly, the administrative judge denied the appellant’s request for
corrective action in connection with his IRA appeal. ID at 2, 21,
¶8 The administrative judge next addressed the appellant’s VEOA appeal. In
findings based on the written record, she found that he exhausted his remedy with
DOL, ID at 16-17, that he nonfrivolously alleged that he is a preference eligible,
that the 2015 nonselections took place after the October 30, 1998 enactment date
of VEOA, that the agency violated his veterans’ preference rights when he was
not selected for the positions, and that he therefore established the Board’s
jurisdiction over his VEOA appeal, ID at 17-18. In addressing the appellant’s
proof of the matters he had nonfrivolously alleged, the administrative judge found
that the agency properly placed the appellant’s name on the certificate of eligibles
forwarded to the selecting official for each vacancy, that the appellant was listed
as a 10-point “CPS” veteran, i.e., having a service‑connected disability rating of
30% or more, but that, because all applicants on the certificates had veterans’
preference, he did not establish that his nonselection violated any aspect of his
veterans’ preference rights. ID at 19-21. Accordingly, the administrative judge
denied the appellant’s request for corrective action in connection with his VEOA
appeal. ID at 2, 21.
¶9 The appellant has filed a petition for review challenging the administrative
judge’s findings on both the IRA appeal and the VEOA appeal, Petition for
6
Review (PFR) File, Tab 1, the agency has responded to the petition, PFR File,
Tab 3, and the appellant has filed a reply, 5 PFR File, Tab 4.
The appellant has not shown that the administrative judge erred in denying
corrective action in connection with his IRA appeal.
¶10 On review, the appellant disputes the administrative judge’s finding that he
failed to establish that his protected disclosures were a contributing factor in his
nonselection. 6 Specifically, the appellant argues that the selecting official knew
of the OSHA complaints “and the appellant’s involvement therein” prior to the
time he made the selection for the Maintenance Mechanic Supervisor
(General Foreman) position. PFR File, Tab 1 at 5-6. The appellant alleges that
several emails alerted the selecting official to the reported OSHA violations. The
appellant challenges the administrative judge’s credibility findings regarding the
selecting official’s testimony that he was unaware of the complaints until after he
made the selection because it is his practice, as Regional Director, to forward
email messages that reference issues specific to one institution to managers at that
institution. Id. at 5.
¶11 It does appear that the appellant’s fellow union official sent an email to a
number of managers, including the selecting official on December 4, 2012, and it
contained remarks by the appellant regarding the agency having taken issue with
whether the employees who attended the OSHA meeting were on official time.
5
The appellant argues on review that the agency’s reply was not timely submitted and
that, therefore, it should not be considered. PFR File, Tab 4 at 4. In acknowledging the
appellant’s petition for review, the Clerk of the Board stated that the agency could file a
response on or before June 7, 2016. PFR File, Tab 2. The agency representative
submitted a response electronically on June 10, 2016, offering his explanation for the
untimely filing and “beg[ging] the party’s forgiveness.” PFR File, Tab 3. We have not
considered the agency’s response because it was not timely filed and does not comply
with the Board’s regulation for late filings in connection with petitions for review. See
5 C.F.R. § 1201.114(g).
6
The agency has not filed a petition for review challenging the administrative judge’s
finding that the appellant made protected disclosures, and we discern no basis to disturb
that finding.
7
0413 IAF, Tab 7 at 24. Specifically, the appellant advised management that the
“OSHA Act” protects employees who file safety complaints or otherwise exercise
their rights, that he perceived the agency’s inquiry as a form of retaliation, and
that he had no other alternative but to report it to the proper authorities. Id. The
email does not, however, demonstrate that the selecting official knew that the
appellant was making, or had made, any protected disclosures. 7 Moreover, the
administrative judge found the selecting official credible in his testimony that he
was unaware of the OSHA complaints until after he made the selection. The
administrative judge observed the demeanor of the witnesses who testified at the
hearing, including the selecting official, and therefore her findings were explicitly
or implicitly based on demeanor. Haebe v. Department of Justice, 288 F.2d 1288,
1301 (Fed. Cir. 2002). Beyond his being “disturb[ed]” by the administrative
judge’s finding, PFR File, Tab 1 at 6, the appellant has not provided a reason, nor
do we perceive any, why we should not defer to the administrative judge’s
credibility findings. Under the circumstances, the appellant has not shown that
the administrative judge erred in finding that, based on the selecting official’s
lack of knowledge, the appellant failed to prove that his protected disclosures
were a contributing factor in his nonselection. Rubendall v. Department of
Health & Human Services, 101 M.S.P.R. 599, ¶ 12 (2006).
¶12 However, the knowledge/timing test is not the only way for an appellant to
satisfy the contributing factor standard, and, if the Board determines that an
appellant has failed to meet the knowledge/timing test, it shall consider other
evidence, such as evidence pertaining to the strength or weakness of the agency’s
reasons for taking the personnel action, whether the whistleblowing was
personally directed at the official who took the action, and whether the individual
had a desire or motive to retaliate against the appellant. Dorney v. Department of
7
The appellant argues that, at the time of the selections, the selecting official was in
possession of several emails alerting him to the reported OSHA violations, PFR File,
Tab 1 at 5, but the appellant has not submitted any of these other emails.
8
the Army, 117 M.S.P.R. 480, ¶ 15 (2012). Because the administrative judge
failed to consider this alternate way to establish the contributing factor standard,
we do so now.
¶13 In terms of the agency’s reasons for taking the personnel action, the
selecting official explained that he reviewed wardens’ recommendations and
references of the appellant and the selectee before making his decision, and that
he also reviewed the candidates’ applications/résumés. 0413 IAF, Tab 4,
Subtabs 4f, 4g. The selecting official further explained that, upon his review, he
discerned that the candidate he ultimately selected had somewhat better
recommendations than did the appellant and, unlike the appellant, had acted in the
role of the advertised position. Hearing Compact Disc (testimony of selecting
official). That testimony is borne out by the documentary evidence. 0413 IAF,
Tabs 6-7, Tab 17. The appellant’s disclosures involved the Beaumont facility,
whereas the selecting official is the South Central Regional Director who
oversees 19 such facilities. To the extent the appellant suggests that, by virtue of
his position in management, the selecting official may have had a motive to
retaliate against him, PFR File, Tab 4, we point out that the appellant was but one
of a number of employees who were involved in the OSHA complaints. Based
upon a weighing of the appropriate factors, we find that the appellant has not
shown that his protected disclosures were a contributing factor in his nonselection
and that he thereby has not established a prima facie case of retaliation for
whistleblowing. Accordingly, his request for corrective action must be denied.
¶14 On review, the appellant challenges the administrative judge’s alternative
finding that, even if the appellant established that his protected disclosures were a
contributing factor in his nonselection, the agency showed by clear and
convincing evidence that it would have taken the same personnel action, even
absent those disclosures. PFR File, Tab 4 at 7-9. In Kahn v. Department of
Justice, 618 F.3d 1306, 1316 (Fed. Cir. 2010), the U.S. Court of Appeals for the
Federal Circuit declined the appellant’s invitation to consider the agency’s
9
affirmative defense because it disagreed with the Board that the appellant failed
to establish a prima facie case, although the court stated in dicta that, in an IRA
appeal, even when the Board finds a contested merits issue dispositive, it should
nevertheless resolve the remaining issues to expedite resolution of the case on
appeal. After Kahn was decided, however, Congress amended 5 U.S.C.
§ 1221(e)(2) to provide that corrective action cannot be ordered if, “after a
finding that a protected disclosure was a contributing factor,” the agency
demonstrates by clear and convincing evidence that it would have taken the same
personnel action in the absence of such disclosure. Whistleblower Protection
Enhancement Act of 2012, Pub. L. No. 112-119, § 114(b), 126 Stat. 1465, 1472
(emphasis added). Thus, under this amendment, the Board may not proceed to the
clear and convincing evidence test unless it has first made a finding that the
appellant established his prima facie case. See S. Rep. No. 112-743, at 24 (2012).
Because we agree with the administrative judge that the appellant failed to
establish his prima facie case, the administrative judge’s alternative findings on
clear and convincing evidence were extraneous, and we need not address on
review the appellant’s contentions regarding those findings. 8 Clarke v.
Department of Veterans Affairs, 121 M.S.P.R. 154, ¶ 19 n.10 (2014), aff’d,
623 F. App’x 1016 (Fed. Cir. 2015).
The appellant has not shown that the administrative judge erred in denying
corrective action in connection with his VEOA appeal.
¶15 On review, the appellant states that the agency violated his veterans’
preference rights when it initially found that he was not qualified for the
GS‑12/13 Human Resources Specialist positions because he was deemed to lack
8
With his petition for review, the appellant has submitted as new evidence a
June 19, 2013 “Certification of Corrective Action Worksheet-Federal Agencies,”
concerning a particular OSHA violation found at the Beaumont facility. PFR File,
Tab 1 at 11. However, that document already appears in the record below, 0413 IAF,
Tab 24 at 82, and it is therefore not new. Meier v. Department of the Interior,
3 M.S.P.R. 247, 256 (1980).
10
the 1 year of specialized experience required for the position at both grade levels.
0612 IAF, Tab 17 at 40, 50. The appellant acknowledges, however, that, after he
was so notified, id. at 42, 52, he requested a review of his experience, after which
the agency determined that he was, in fact, qualified for the positions, id.
at 44, 54, and it referred his name to the selecting official for consideration as
among the “Best Qualified” candidates. The appellant argues that, because he
was ultimately not selected, the Board must consider the entire selection process
because it was infected by the errors in the initial stage. PFR File, Tab 1 at 8,
Tab 4 at 10.
¶16 Although the appellant urges that the outcome would have been different in
the absence of the agency’s initial errors, PFR File, Tab 1 at 8, he has not shown
that the agency violated his rights under a statute or regulation related to
veterans’ preference. 5 U.S.C. § 3330a. As the administrative judge found, in
the vacancy announcements for these positions, the agency used category rating
under 5 U.S.C. § 3119 and 5 C.F.R. § 337.404(b). Based on his at least 30%
service-connected disability rating, the appellant’s name was placed in the highest
quality category, the “Best Qualified” category, but, because all candidates in that
category were also preference-eligible veterans, the agency’s selection of other
such candidates did not violate the appellant’s veterans’ preference rights. ID
at 19-21. Beyond disagreeing with the outcome of the selection process and
speculating as to its validity, the appellant has not shown error in the
administrative judge’s findings regarding the appellant’s failure to be selected for
these positions. Launer v. Department of the Air Force, 119 M.S.P.R. 252, ¶¶ 6-9
(2013). Under the circumstances of this case, the appellant’s status as having at
least a 30% compensable service-connected disability did not entitle him to be
selected for either of the positions at issue, but only to compete for them, which
he did. Scharein v. Department of the Army, 91 M.S.P.R. 329, ¶ 10 (2002).
¶17 The appellant argues on review that, in connection with the selection
process, he was denied an interview, whereas, he alleges, the selectees were
11
interviewed. PFR File, Tab 4 at 10-11. Because this is an argument raised for the
first time on petition for review, we need not consider it. Banks v. Department of
the Air Force, 4 M.S.P.R. 268, 271 (1980) (the Board generally will not consider
an argument raised for the first time in a petition for review absent a showing that
it is based on new and material evidence not previously available despite the
party’s due diligence).
¶18 The appellant also argues that he was denied a hearing in connection with
his VEOA appeal. PFR File, Tab 4 at 11. The Board’s regulations allow for
disposition of a VEOA appeal on the merits without a hearing. 5 C.F.R.
§ 1208.23(b). The Board has held that it has the authority to decide a VEOA
appeal on the merits, without a hearing, where there is no genuine dispute of
material fact and one party must prevail as a matter of law. Williamson v. U.S.
Postal Service, 106 M.S.P.R. 502, ¶ 8 (2007). Here, the administrative judge did
not convene a hearing, having determined that there was no genuine dispute of a
material fact. ID at 15. Based on our review, we agree with the administrative
judge’s determination and find, therefore, that she properly adjudicated this
VEOA appeal on the written record. Haasz v. Department of Veterans Affairs,
108 M.S.P.R. 349, ¶ 9 (2008).
¶19 Finally, the appellant challenges the administrative judge’s delay in the
processing of the appeal from hearing to issuance of the initial decision.
PFR File, Tab 4 at 4. It is clear, however, that the administrative judge at all
times had access to the complete record, including the hearing compact disc. We
find, therefore, that the appellant has not shown that any delay constituted an
adjudicatory error that prejudiced his substantive rights. Panter v. Department of
the Air Force, 22 M.S.P.R. 281, 282 (1984).
12
NOTICE TO THE APPELLANT REGARDING
YOUR FURTHER REVIEW RIGHTS IN
MSPB DOCKET NO. DA-3330-15-0612-I-1
You have the right to request review of this final decision by the U.S.
Court of Appeals for the Federal Circuit. You must submit your request to the
court at the following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, DC 20439
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).
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 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.
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
Merit Systems Protection Board neither endorses the services provided by any
attorney nor warrants that any attorney will accept representation in a given case.
13
NOTICE TO THE APPELLANT REGARDING
YOUR FURTHER REVIEW RIGHTS IN
MSPB DOCKET NO. DA-1221-14-0413-W-1
You have the right to request review of this final decision by the U.S.
Court of Appeals for the Federal Circuit.
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).
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 U.S. 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 U.S. 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.
14
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, and 11. Additional
information about other 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.
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
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: ______________________________
Jennifer Everling
Acting Clerk of the Board
Washington, D.C.