Matthew John Hayduk v. Department of the Army ( 2014 )


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  •                            UNITED STATES OF AMERICA
    MERIT SYSTEMS PROTECTION BOARD
    MATTHEW JOHN HAYDUK,                            DOCKET NUMBERS
    Appellant,                          PH-0752-12-0004-B-4
    PH-1221-13-0040-W-3
    v.
    DEPARTMENT OF THE ARMY,
    Agency.                             DATE: August 14, 2014
    THIS FINAL ORDER IS NONPRECEDENTIAL 1
    Matthew John Hayduk, Vance Air Force Base, Oklahoma, pro se.
    Blaine Markuson, Esquire, Fort McCoy, Wisconsin, 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
    dismissed his appeals for lack of jurisdiction. 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    A nonprecedential order is one that the Board has determined does not add
    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 Parties may cite nonprecedential orders,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
    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 and AFFIRM
    the initial decision, which is now the Board’s final decision.             
    5 C.F.R. § 1201.113
    (b).
    ¶2         The agency terminated the appellant from the GS-9 excepted service
    position of Training Specialist during his probationary period based on the
    charges of submission of incorrect time and attendance records, failure to follow
    a directive, and inability to conform to Command policy and direction. MSPB
    Docket No. PH-0752-12-0004-I-1, Initial Appeal File (IAF), Tab 5, Subtab 4b.
    The administrative judge dismissed the appeal for lack of jurisdiction.        IAF,
    Tab 6. On review, the Board found that, if the appellant occupied a Jobs for
    Veterans Act (JVA) position, he was entitled to the same probationary appeal
    rights as competitive service employees, and therefore, could establish Board
    jurisdiction over his termination appeal if he could show that the termination was
    for partisan political reasons or was based on marital status discrimination.
    Petition for Review File, Tab 10; Hayduk v. Department of the Army, 
    118 M.S.P.R. 319
     (2012) (Table).       The Board remanded the appeal because the
    appellant was not previously informed of what was required to establish
    jurisdiction on that basis. 
    Id.,
     Tab 10.
    ¶3         On remand, the administrative judge joined the appellant’s probationary
    termination appeal and his subsequently filed individual right of action (IRA)
    3
    appeal. MSPB Docket Nos. PH-0752-12-0004-B-4 and PH-1221-13-0040-W-3,
    Remand Appeal File (RAF), Tab 9, Initial Decision (ID). 2 The administrative
    judge found that the appellant occupied a JVA position and that he was
    terminated for post-appointment reasons. ID at 2-3. The administrative judge
    also found that the appellant failed to make a nonfrivolous allegation that his
    termination   was   based    on   partisan   political   reasons   or   marital   status
    discrimination. ID at 4-5. Thus, the administrative judge found the appellant
    failed to meet his burden to nonfrivolously allege that the Board had jurisdiction
    over his termination appeal. See 
    ID.
    ¶4         Regarding the appellant’s IRA appeal, the administrative judge found that
    the appellant failed to allege that the agency terminated him in retaliation for
    engaging in whistleblowing activity under 
    5 U.S.C. § 2302
    (b)(8). ID at 5-8. The
    administrative judge found that the appellant’s allegation of retaliation for his
    union activities and affiliation constituted an allegation of a violation of 
    5 U.S.C. § 2302
    (b)(9). See 
    ID.
     He found that it has been settled that sections 2302(b)(8)
    and 2302(b)(9) protect different activities and that retaliation for activities under
    section 2303(b)(9) did not provide a basis for an IRA appeal at the time of the
    appellant’s termination. ID at 6-7. The administrative judge further noted that a
    provision of the Whistleblower Protection Enhancement Act (WPEA) expanded
    the basis of an IRA appeal to include retaliation for activity protected under
    section 2302(b)(9) if that activity also involves remedying a (b)(8) violation. ID
    2
    After the administrative judge joined the remanded probationary termination and
    individual right of action appeals, and while the joined appeals were pending, Congress
    passed the Whistleblower Protection Enhancement Act of 2012, Pub. L. No. 112–199,
    
    126 Stat. 1465
     (WPEA) that amended the Whistleblower Protection Act; the WPEA
    became effective December 27, 2012. The administrative judge dismissed the joined
    appeals without prejudice for refiling pending the Board’s decision on whether the
    provisions of the WPEA would apply retroactively. See MSPB Docket No. PH-0752-
    12-0004-B-2, Remand Appeal File, Tab 11, Initial Decision (Jan. 17, 2013); MSPB
    Docket No. PH-0752-12-0004-B-3, Remand Appeal File, Tab 2, Initial Decision (May
    20, 2013); MSPB Docket No. PH-1221-13-0040-W-2, Initial Appeal File, Tab 2, Initial
    Decision (May 20, 2013).
    4
    at 6. He found, however, that the WPEA provision was not retroactive and that it
    did not apply to the appellant’s protected activity because his activity predated
    the effective date of the WPEA. ID at 7. Thus, the administrative judge found
    that the appellant failed to make a nonfrivolous allegation that he engaged in
    whistleblowing and failed to nonfrivolously allege jurisdiction over his IRA
    appeal. ID at 7-8.
    ¶5         In his petition for review, the appellant first alleges that the administrative
    judge erred in finding that the appellant failed to disclose his political party.
    Remand Petition for Review (PFR) File, Tab 2 at 2-3. The appellant states that
    he is a “card carrying and registered member of the Republican Party” and that he
    could have proven that during a jurisdictional hearing. 
    Id. at 2
    . However, the
    appellant submits his assertion of his political party affiliation for the first time
    on petition for review. Under 
    5 C.F.R. § 1201.115
    , the Board normally will not
    consider evidence submitted for the first time with the petition for review absent
    a showing that it was unavailable before the record was closed despite the party’s
    due diligence. Avansino v. U.S. Postal Service, 
    3 M.S.P.R. 211
    , 214 (1980). The
    appellant has made no such showing. In any event, even if he established that his
    coworkers knew of his Republican Party affiliation, the administrative judge
    properly found that he failed to make a nonfrivolous allegation of Board
    jurisdiction based on his assertion that the agency discriminated against him for
    partisan political reasons.
    ¶6         The Board’s jurisdiction is not plenary.         Maddox v. Merit Systems
    Protection Board, 
    759 F.2d 9
    , 10 (Fed. Cir. 1985).         The appellant bears the
    burden of proving Board jurisdiction by preponderant evidence. 
    5 C.F.R. § 1201.56
    (a)(2)(i). A probationary employee in the excepted service who has not
    completed his probationary period has no statutory right of appeal to the Board.
    See Ramirez-Evans v. Department of Veterans Affairs, 
    113 M.S.P.R. 297
    , ¶ 9
    (2010).   However, as noted above, a probationary employee in the excepted
    service who receives a JVA appointment may appeal a termination if he alleges
    5
    that it was based on partisan political reasons or marital status. See 
    5 C.F.R. § 315.806
    (b). In determining whether an appellant has established jurisdiction
    under 
    5 C.F.R. § 315.806
    (b), the Board follows a two-step process. See Burton v.
    Department of the Air Force, 
    118 M.S.P.R. 210
    , ¶ 8 (2012). First, the appellant
    must make a nonfrivolous allegation of jurisdiction, i.e., factual allegations that,
    if proven, would establish that his termination was based on partisan political
    reasons or marital status. See 
    id.
     An appellant who makes such nonfrivolous
    allegations is entitled to a jurisdictional hearing, at which he must then prove the
    basis for jurisdiction, i.e., that his termination was based on partisan political
    reasons or marital status, by a preponderance of the evidence. See 
    id.
    ¶7         The Board has held that discrimination based on “partisan political reasons”
    under 
    5 C.F.R. § 315.806
    (b) means discrimination based on affiliation with any
    political party or candidate. Sweeting v. Department of Justice, 
    6 M.S.P.R. 715
    ,
    719 (1981).     We agree with the administrative judge that the appellant’s
    allegations that coworkers would attempt to engage him in discussions about
    pictures that he had taken with certain elected officials do not fall within the
    meaning of partisan political reasons as the phrase is used in the regulation. The
    appellant’s bare assertion that his termination was based on his coworkers’ belief
    that he was a Republican is mere conjecture.       We therefore conclude that the
    appellant failed to make a nonfrivolous allegation that his termination was based
    on partisan political reasons. The administrative judge properly dismissed the
    appellant’s termination appeal for lack of jurisdiction.
    ¶8         In his petition for review, the appellant also alleges that the administrative
    judge erred in finding that he failed to make a protected disclosure and thus erred
    in dismissing his IRA appeal. Remand PFR File, Tab 2 at 3. On petition for
    review, the appellant alleges that he disclosed that his supervisor assaulted him.
    
    Id.
     In order to secure corrective action from the Board in an IRA appeal, an
    appellant must first seek corrective action from the Office of Special Counsel
    (OSC). 
    5 U.S.C. § 1214
    (a)(3); Cassidy v. Department of Justice, 
    118 M.S.P.R. 6
    74, ¶ 5 (2012). If an appellant has exhausted his administrative remedies before
    OSC, he can establish Board jurisdiction over an IRA appeal by nonfrivolously
    alleging that he made a protected disclosure and that the disclosure was a
    contributing factor in the agency’s decision to take a personnel action. Peterson
    v. Department of Veterans Affairs, 
    116 M.S.P.R. 113
    , ¶ 8 (2011). To satisfy the
    exhaustion requirement of 
    5 U.S.C. § 1214
    (a)(3), an appellant must inform OSC
    of the precise grounds of his charge of whistleblowing, giving OSC a sufficient
    basis to pursue an investigation that might lead to corrective action. Davis v.
    Department of Defense, 
    103 M.S.P.R. 516
    , ¶ 10 (2006). The sufficiency of an
    employee’s whistleblowing charge is determined by the statement made in the
    complaint    to   OSC   requesting   corrective   action,   not   by   his   post   hoc
    characterization of those statements. 
    Id.
    ¶9        In his complaint to OSC, the appellant stated that the agency terminated him
    “for accepting [a] position as union vice president and for filing [a Federal Labor
    Relations Authority (FLRA)] complaint along with political activities on behalf
    of the union.” MSPB Docket No. PH-0752-12-0004-B-2, B-2 Remand Appeal
    File, Tab 9 at 28. But, on review, the appellant claims that he was retaliated
    against for disclosing that his supervisor assaulted him. Remand PFR File, Tab 2
    at 3-4. This is a post hoc characterization of his statements in his OSC complaint.
    The appellant may have attached a copy of his FLRA complaint to his OSC
    complaint.    In his FLRA complaint, the appellant stated that his supervisor
    became “visibly agitated and verbally assaulted” him when the appellant handed
    the supervisor a request for use of official time for union activities. B-2 Remand
    Appeal File, Tab 9 at 18. However, we find the administrative judge properly
    found that, in his OSC complaint, the appellant alleged retaliation for his union
    activity and filing his FLRA complaint, not for the events that allegedly occurred
    when he requested official time for union activities. Because the appellant failed
    to establish that he exhausted his administrative remedies before OSC with
    respect to these alleged disclosures, the Board lacks jurisdiction to consider them.
    7
    The administrative judge justifiably refused to consider issues that the appellant
    had not properly raised before OSC.
    NOTICE TO THE APPELLANT REGARDING
    YOUR FURTHER REVIEW RIGHTS
    You have the right to request review of this final decision by the United
    States 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 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
    8
    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 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.