UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
NANCY ANN KARPEN, DOCKET NUMBER
Appellant, CH-1221-16-0403-W-1
v.
DEPARTMENT OF VETERANS DATE: July 26, 2023
AFFAIRS,
Agency.
THIS ORDER IS NONPRECEDENTIAL 1
Michael L. Vogelsang, Jr., Esquire, Washington, D.C., for the appellant.
Robert Vega, Esquire, Hines, Illinois, for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
REMAND ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
dismissed her individual right of action (IRA) appeal for lack of jurisdiction. For
the reasons discussed below, we GRANT the appellant’s petition for review,
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
VACATE the initial decision, and REMAND the case to the Central Regional
Office for further adjudication in accordance with this Remand Order.
BACKGROUND
¶2 The appellant is employed by the agency’s Veterans Health Administration
(VHA) as a Registered Nurse, and works in the Outpatient Specialty Clinic at the
VHA’s Jesse Brown Veterans Affairs Medical Center (JBVAMC) in
Chicago, Illinois. Initial Appeal File (IAF), Tab 1 at 1, Tab 10 at 104.
She alleges that on September 30, 2013, her first-level supervisor assigned her to
provide a medical assistant (MA) student with clinical experience “as a favor to
the Director’s Office.” IAF, Tab 11 at 69. According to the appellant, she
learned from a coworker that the MA student “was not authorized for clinical
time . . . because the school he had gone to did not have a training relationship”
with the agency. IAF, Tab 1 at 29. Therefore, on October 16, 2013, she asked
the Associate Chief Nurse for Outpatient Services about the arrangement.
IAF, Tab 1 at 27, Tab 11 at 69. The appellant’s first-level supervisor learned
about the appellant’s inquiry to the Associate Chief Nurse, and confronted the
appellant about it later the same day. IAF, Tab 11 at 69.
¶3 The appellant alleges that 1 day later, her first-level supervisor held an
unannounced meeting with her and an agency human resources (HR) official.
IAF, Tab 1 at 5. During that meeting, the appellant claims the HR official
withdrew a job offer for a lateral assignment to the position of Neurology Nurse
Case Manager, for which the appellant had previously been selected. IAF, Tab 1
at 5, 11; Petition for Review (PFR) File, Tab 1 at 6-7. 2 The agency cancelled the
2
The appellant submits copies of documents on review which are not in the record
below, PFR File, Tab 1 at 6-8, 10, and that are in the record below, PFR File, Tab 1
at 9, Tab 4 at 8-10; IAF, Tab 11 at 7-9, 69. The issue of Board jurisdiction may be
raised at any time during a Board proceeding. Pirkkala v. Department of Justice,
123 M.S.P.R. 288, ¶ 5 (2016). Therefore, we have considered all of the appellant’s
submissions to the extent that they are relevant to the jurisdictional issue. See Ney v.
Department of Commerce, 115 M.S.P.R. 204, ¶ 7 (2010).
3
assignment, which would have been effective October 20, 2013. IAF, Tab 1 at 7,
Tab 10 at 20. Following an investigation, in January 2016, the agency issued a
letter of counseling to the appellant’s first-level supervisor for her role in
permitting the student, who lacked an affiliation agreement with the agency, to
“participate in patient care.” IAF, Tab 10 at 12, Tab 11 at 7-18.
¶4 The appellant filed a complaint with the Office of Special Counsel (OSC) .
IAF, Tab 1 at 4, 22. She alleged to OSC that, in retaliation for her October 2013
disclosure and her filing of an equal employment opportunity (EEO) complaint,
the agency rescinded her reassignment and took other actions against her. IAF,
Tab 1 at 11. OSC closed its inquiry into her complaint on March 30, 2016, and
advised her that she may have a right to seek corrective action from the Board.
Id. at 11-12.
¶5 The appellant filed a timely IRA appeal and provided a copy of her OSC
complaint, OSC’s closeout letter, and the Standard Form 50 reflecting the
cancellation of her reassignment. IAF, Tab 1 at 7-35. The administrative judge
notified the appellant of her burden to establish jurisdiction over her IRA appeal
and ordered her to submit argument and evidence on the jurisdictional issue.
IAF, Tab 2 at 2-3. The appellant did not respond, and the agency filed a motion
to dismiss. IAF, Tab 6.
¶6 The administrative judge issued an initial decision dismissing the appeal for
lack of jurisdiction without holding the appellant’s requested hearing. IAF, Tab 1
at 2, Tab 13, Initial Decision (ID) at 1-2, 9-10. She found that the appellant
exhausted with OSC her claim that, on October 21, 2013, she reported an
unauthorized medical assistant student to the Associate Chief Nurse. ID at 4-6.
The administrative judge concluded that, while the appellant referenced in her
Board appeal other dates, such as October 16, 2013, as the dat e of her disclosure,
she had not exhausted those disclosures with OSC. ID at 4 n.3.
The administrative judge further found that the appellant made a nonfrivolous
allegation that her October 21, 2016 disclosure was protected. ID at 5-6.
4
In addition, she found that the only personnel action the appellant alleged with
specificity was the cancellation of her reassignment, which was effective
October 20, 2013. ID at 6-7; IAF, Tab 10 at 21. The administrative judge found
that the appellant failed to nonfrivolously allege that her protected disclosure was
a contributing factor in the cancellation because the alleged personnel action
occurred before, not after, the disclosure. ID at 6-7. Additionally, the
administrative judge found that the appellant’s EEO complaint did not constitute
protected activity that may serve as the basis for an IRA appeal. ID at 7 -9.
¶7 The appellant has filed a petition for review of the initial decision. PFR
File, Tab 1. The agency has submitted a response in opposition, to which the
appellant has replied. PFR File, Tabs 3-5.
DISCUSSION OF ARGUMENTS ON REVIEW
¶8 On review, the appellant argues that the administrative judge erred in
identifying October 21, 2013, rather than October 16, 2013, as the date of her
disclosure. 3 PFR File, Tab 1 at 2-3. She asserts that she provided OSC with a
copy of an agency Report of Contact (ROC) form that she completed, in which
she identified October 16, 2013, as the relevant disclosure date. IAF, Tab 11
at 69-70; PFR File, Tab 1 at 3, 9. 4 The appellant further alleges that, had the
administrative judge relied on the earlier date, she would have found that the
3
The parties do not dispute the administrative judge’s determination that Board lacks
jurisdiction over the appellant’s EEO activity in this IRA appeal. We discern no b asis
to disturb that finding.
4
The appellant states that she included a copy of the ROC “with [her] complaint to
MSPB in November 2015.” PFR File, Tab 1 at 3. While she filed her Board appeal in
May 2016, she filed her OSC complaint in November 2015. IAF, Tab 1 at 30.
Thus, we assume for purposes of our jurisdictional determination that she is referring to
her November 2015 OSC complaint. See Skarada v. Department of Veterans Affairs,
2022 MSPB 17, ¶ 6 (recognizing that any doubt or ambiguity as to whether an appellant
made nonfrivolous jurisdictional allegations should be resolved in favor of finding
jurisdiction).
5
disclosure was a contributing factor in the cancellation of the appellant’s
reassignment on October 17, 2013. PFR File, Tab 1 at 4, Tab 4 at 3-6. 5
The appellant exhausted her October 16, 2013, disclosure with OSC.
¶9 If an appellant has exhausted her administrative remedies before OSC, she
can establish Board jurisdiction over an IRA appeal by nonfrivolously alleging
that (1) she made a protected disclosure described under 5 U.S.C. § 2302(b)(8) or
engaged in protected activity described under 5 U.S.C. § 2302(b)(9)(A)(i), (B),
(C), or (D); and (2) the disclosure or protected activity was a co ntributing 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). Chambers v. Department of Homeland Security,
2022 MSPB 8, ¶ 14. The substantive requirements of exhaustion are met when an
appellant has provided OSC with sufficient basis to pursue an investigation.
Id., ¶ 10 (citations omitted). The Board’s jurisdiction is limited to those issues
that previously have been raised with OSC. Id. (citation omitted). However, an
appellant may give a more detailed account of her whistleblowing activities
before the Board than she did to OSC. Id., ¶ 10 (citing Briley v. National
Archives and Records Administration, 236 F.3d 1373, 1378 (Fed. Cir. 2001)). An
appellant may demonstrate exhaustion through her initial OSC complaint or
correspondence with OSC. Id., ¶ 11. In the alternative, exhaustion may be
proven through other sufficiently reliable evidence, such as an affidavit or
declaration attesting that the appellant raised with OSC the substance of the facts
in her Board appeal or an unrebutted certified statement to this effect on an
appellant’s initial appeal form. Id. & n.7 (citing, among other cases, Delgado v.
Merit Systems Protection Board, 880 F.3d 913, 927 (7th Cir.) (explaining that
exhaustion may be demonstrated through “sufficiently reliable evidence . . . such
5
The appellant also contends that agency counsel’s participation in this matter is
improper and that he should recuse himself. PFR File, Tab 4 at 5. She has offered no
argument or evidence that agency counsel has a conflict or engaged in any act justifying
a sanction.
6
as the OSC’s response letters, an affidavit or declaration attesting to the
complaint’s substance [of the OSC complaint], or a copy of [the]. . . complaint”)),
as amended on denial of reh’g and reh’g en banc (7th Cir. 2018)).
¶10 In finding that the appellant did not exhaust her claim that she made a
protected disclosure on October 16, 2013, the administrative judge did not have
the benefit of the Board’s decision in Chambers, 2022 MSPB 8, which was issued
after the initial decision in this case. Therefore, she relied on past case law
regarding this jurisdictional element in taking a narrower approach. ID at 4
(citations omitted). We now find that the appellant sufficiently identified the
October 16, 2013 disclosure date to OSC to prove exhaustion under the standard
in Chambers.
¶11 Specifically, the appellant provided OSC with a sufficient basis to pursue
an investigation regarding her October 16, 2013 disclosure, as evidenced by both
the appellant’s OSC complaint and OSC’s closure letter. IAF, Tab 1 at 19, 27. In
her OSC complaint, the appellant described her disclosure as follows:
I reported the presence of an unauthorized medical assistant student I
was detailed to provide training for during the student’s clinical
rotation at JBVAMC from September 30, 2013 to October 16, 2013.
I reported this unauthorized person’s presence to . . . [the] Associate
Chief Nurse Outpatient Services via an email describing what
happened to . . . the unauthorized medical assistant student, and
myself on Wednesday, October 16, 2013 at 4:00 p.m. to 4:25 p.m. in
[her first-level supervisor’s] office after [her supervisor] thought that
I had found out that [the student] was not authorized for clinicals at
JBVAMC.
Id. at 27. In a box next to this description of her disclosur e, the appellant
identified October 21, 2013, as the date of her disclosure. Id. However, as set
forth above, she identified October 16, 2013, as the date her supervisor learned of
her disclosure to the Associate Chief Nurse. Id.
¶12 Moreover, in its March 30, 2016 closure letter, OSC stated that the
appellant “asserted that the actions taken against [her] since October 2013 were
retaliatory.” Id. at 19. OSC recognized the appellant’s allegation that her “job
7
offer as the Neurology Nurse Case Manager was rescinded one day after [she]
learned the MA student was not authorized to receive training at [her] facility and
after the Nurse Manager questioned why [she] contacted the Nurse Education
Coordinator about it.” Id. Accordingly, the record evidence reflects that
the appellant proved that she exhausted her allegation regarding her
October 16, 2013, disclosure.
The appellant nonfrivolously alleged that her October 16, 2013 protected
disclosure was a contributing factor in the cancellation of her reassignment.
¶13 The administrative judge found that the appellant nonfrivolously alleged
that her disclosure regarding the medical student was protected. ID at 5-6.
The parties do not dispute this finding, and we discern no basis to disturb it.
Section 2302(b)(8)(A) of Title 5 prohibits an agency from taking or failing to take
a personnel action against an employee because of a disclosure that she
“reasonably believes evidences . . . any violation of any law, rule, or regulation”
or any of the other categories of wrongdoing identified in that provision.
The administrative judge suggested that the appellant’s allegations were
insufficient to constitute a nonfrivolous allegation that the agency cancelled her
reassignment. 6 ID at 7. We disagree.
¶14 A reassignment is a personnel action. IAF, Tab 1 at 5, 7; see 5 U.S.C.
§ 2302(a)(2)(A)(iv) (identifying a reassignment as a personnel action) . After the
initial decision was issued in this case, the U.S. Court of Appeals for the Federal
Circuit held in Hessami v. Merit Systems Protection Board, 979 F.3d 1362,
1368-69 (Fed. Cir. 2020), that the determination of whether an appellant has
nonfrivolously alleged that she made protected disclosures that contributed to a
personnel action must be based on whether she “alleged sufficient factual matter,
accepted as true, to state a claim that is plausible on its face.” See McCray v.
6
The parties do not dispute the administrative judge’s determination that the appellant
failed to nonfrivolously allege that the agency took other personnel actions against her.
ID at 7; PFR File, Tab 1 at 4. We decline to disturb this finding.
8
Department of the Army, 2023 MSPB 10, ¶ 16 n.4 (summarizing this holding).
The Board is not permitted to “credit[] the agency’s interpretation of the
evidence” in making this determination. Hessami, 979 F.3d at 1369.
We recognize that the record contains evidence suggesting that the appellant
rejected the reassignment on October 17, 2013. IAF, Tab 1 at 14; PFR File, Tab 1
at 6-7. However, at this stage in the adjudication, we accept as true the
appellant’s allegation that the agency rescinded the job offer. IAF, Tab 1 at 3, 5,
11. Because such a rescission would be a failure to take a personnel action, the
appellant has met her jurisdictional burden.
¶15 The administrative judge erred in determining that the appellant failed to
nonfrivolously allege that her disclosure was a contributing factor in her
cancelled reassignment. ID at 6-7. To satisfy the contributing factor criterion at
the jurisdictional stage, an appellant need only raise a nonfrivolous allegation that
the fact of, or content of, the protected disclosure was one factor that tended to
affect the personnel action in any way. Salerno v. Department of the Interior,
123 M.S.P.R. 230, ¶ 13 (2016). One way to establish this criterion is the
knowledge/timing test, under which an appellant may nonfrivolously allege that
the disclosure or activity was a contributing factor in a personnel action through
circumstantial evidence, such as evidence that the official who took the personnel
action knew of the disclosure or activity and that the personnel action occurred
within a period of time such that a reasonable person could conclude that the
disclosure or activity was a contributing factor in t he personnel action. Id. Here
the appellant alleged that her first-level supervisor confronted her about the
disclosure on October 16, 2013, and that her reassignment was rescinded the
following day during an “unannounced meeting” with her the same supervisor and
an employee from Human Resources. IAF, Tab 1 at 5, 27. Thus, we find that the
appellant nonfrivolously alleged through the knowledge/timing test that her
disclosure was a contributing factor in the cancellation of her reassignment.
9
¶16 If an appellant establishes jurisdiction over her IRA appeal, she is entitled
to a hearing on the merits of her claim, which she must prove by preponderant
evidence. Salerno, 123 M.S.P.R. 230, ¶ 5; 5 C.F.R. § 1201.57(c)(4). We find
that the appellant has established jurisdiction and therefore is entitled to her
requested hearing. 7 IAF, Tab 1 at 2.
ORDER
¶17 For the reasons discussed above, we remand this case to the Central
Regional Office for further adjudication in accordance with this Remand Order. 8
FOR THE BOARD: /s/ for
Jennifer Everling
Acting Clerk of the Board
Washington, D.C.
7
The appellant also filed two motions requesting the Board to accept new evidence
supporting her claim that the agency cancelled her reassignment on October 17, 2013.
PFR File, Tabs 6, 8. We deny her motions, as the administrative judge properly
determined that the appellant nonfrivolously alleged that the agency cancelled her
reassignment on October 17, 2013, and additional information on this alleged personnel
action would not change the outcome of the petition for review. The appellant may
wish to submit this evidence below during the adjudication of her appeal on the merits,
as permitted by the administrative judge.
8
In the remand initial decision, the administrative judge may reincorporate prior
findings as appropriate, consistent with this Remand Order.