Sherry Fincher v. Department of Veterans Affairs ( 2014 )

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
SHERRY FINCHER, DOCKET NUMBER
Appellant, DA-1221-13-0475-W-1
v.
DEPARTMENT OF VETERANS DATE: September 11, 2014
AFFAIRS,
Agency.
THIS ORDER IS NONPRECEDENTIAL 1
Brett Myers, Esquire, Dallas, Texas, for the appellant.
David Traskey, Esquire, and Maureen T. Regan, Esquire, Washington,
D.C., for the agency.
BEFORE
Susan Tsui Grundmann, Chairman
Anne M. Wagner, Vice Chairman
Mark A. Robbins, 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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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 regional office for
further adjudication in accordance with this Order.
DISCUSSION OF ARGUMENTS ON REVIEW
¶2 The appellant, a GS-13 Auditor, filed a complaint with the Office of Special
Counsel (OSC) alleging that she disclosed that the agency interfered with her and
others’ independence and integrity (I&I) in conducting audits by requiring her
and others to certify and prepare audits in violation of the Texas State Board of
Public Accountancy rules. Initial Appeal File (IAF), Tabs 1, 7 at 69-87. She
asserted that in retaliation for her disclosure the agency lowered her performance
appraisal, required her to attend remedial intermediate auditor training, placed her
on a performance improvement plan (PIP), and reprimanded her for refusing to
sign an I&I statement. Id. After OSC closed its investigation, the appellant filed
an IRA appeal. IAF, Tab 1. The administrative judge found that the Board had
jurisdiction over the appellant’s assertion that the agency retaliated against her
for engaging in whistleblowing when it issued her a written reprimand on
August 9, 2012, and gave her a minimally successful performance evaluation in
October 2012. IAF, Tab 30. The hearing on the issues over which the
administrative judge found that the Board had jurisdiction convened on
September 23, 2013. IAF, Tab 35.
¶3 Notwithstanding that the administrative judge found that the Board had
jurisdiction over some of the personnel actions that the appellant alleged were
taken in retaliation for her whistleblowing and held a hearing on these issues, she
issued an initial decision dismissing the appeal for lack of jurisdiction. IAF, Tab
36, Initial Decision (ID). She found that, at the hearing, the appellant testified
that when she was asked to sign an I&I statement she was not working on an audit
but was working on a “hotline review.” ID at 6. She also found that the
appellant’s second-line supervisor testified that “hotline reviews” have a lesser
standard than audits, and he did not know what audits the appellant was referring
3
to in her OSC complaint because she was not working on audits. ID at 7.
Additionally, the administrative judge noted the appellant’s first-line supervisor’s
testimony that he could not tell what the appellant was talking about in her
disclosure. ID at 7. Further, the administrative judge found that the appellant’s
submissions to OSC did not include the dates of any audits that are the subject of
her disclosure and none of her OSC submissions mentioned the “hotline review.”
ID at 7-8. Based on the testimony of the appellant and her first and second-line
supervisors, and review of the appellant’s submissions to OSC in the record, the
administrative judge found that the appellant’s submissions failed to provide OSC
with a sufficient basis to pursue an investigation that might lead to corrective
action. ID at 7.
¶4 To establish jurisdiction over an IRA appeal, the appellant must prove that
she exhausted her administrative remedies with OSC and nonfrivolously allege
that: (1) she 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. Shibuya v. Department of
Agriculture, 119 M.S.P.R. 537, ¶ 25 (2013). To satisfy the exhaustion
requirement of 5 U.S.C. § 1214(a)(3), an appellant must inform OSC of the
precise ground of her 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 test of the sufficiency of an
employee’s charges of whistleblowing to OSC is the statement that she makes in
the complaint requesting corrective action and in other submissions to OSC.
Ellison v. Merit Systems Protection Board, 7 F.3d 1031, 1036 (Fed. Cir. 1993);
Davis, 103 M.S.P.R. 516, ¶ 10.
¶5 In her petition for review, the appellant asserts that the administrative
judge’s notice regarding jurisdiction was confusing because it did not adequately
apprise the appellant of what she needed to produce to establish Board
jurisdiction. Petition for Review (PFR) File, Tab 1. She states that the
4
jurisdictional order provided that she was to furnish all the information that she
submitted to OSC in connection with her reprisal complaint, and she indicates
that she did file all of that information. She asserts that she had filed additional
information with OSC in her separate disclosure submissions. She explains that
she made her protected disclosures to OSC, among others, and subsequently filed
a complaint with OSC alleging that the agency retaliated against her for those
protected disclosures. She states that she did not provide to the Board the
information that she submitted to OSC in her disclosure statements because of the
wording of the jurisdictional order. The appellant includes the submissions that
she made to OSC in her disclosure statements as attachments to her petition for
review. See id.
¶6 Generally, the Board 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). For the Board to consider evidence
submitted on petition for review, it must also be material. To be material, the
evidence must be of sufficient weight to warrant an outcome different from that
of the initial decision. Russo v. Veterans Administration, 3 M.S.P.R. 345, 349
(1980). Because the threshold issue to be decided in this case is jurisdiction, the
new evidence must be material to the issue of Board jurisdiction.
¶7 The Board will not turn ignore clear and material errors that appear to have
prejudiced an appellant’s substantive rights. See, e.g., Robinson v. Department of
Veterans Affairs, 72 M.S.P.R. 444, 447-50 (1996). In Robinson, 72 M.S.P.R. at
447-50, we addressed the administrative judge’s clear error of law that prevented
the appellant from showing that the Board had jurisdiction over his appeal.
Likewise, in Carey v. U.S. Postal Service, 50 M.S.P.R. 359, 361 (1991), we
addressed a claim of new evidence that would establish Board jurisdiction over
the appeal. In this appeal, we have reviewed the record to determine whether
5
there was error below that may have prejudiced the appellant’s effort to establish
jurisdiction over her IRA appeal.
¶8 As noted earlier, the appellant asserts that she was misled by the
jurisdictional order into furnishing only those documents that she submitted to
OSC in her retaliation complaint. We have examined the jurisdictional order
issued by the administrative judge and find that it is consistent with the Board’s
case law cited above. IAF, Tab 6. The jurisdictional order informed the
appellant that, to exhaust her administrative remedies with OSC, she “must have
informed OSC of the precise ground” of her claim of whistleblowing and “given
it a sufficient basis to pursue an investigation that might lead to corrective
action.” Id. at 2. It also informed the appellant that the test of the sufficiency of
her claim of whistleblowing to OSC is the statement she made “in the complaint
requesting corrective action or in other submissions to OSC.” Id. (emphasis
added). We find that this language is not misleadingly ambiguous, as the
appellant asserts.
¶9 However, we also find that the administrative judge’s determination that the
appellant met her burden to prove jurisdiction based on the submissions that she
made in response to the jurisdictional order may have misled the appellant into
failing to submit into the record of her IRA appeal the submissions that she made
to OSC in her disclosure statements. Thus, while the appellant has not
established that the documents that she submits with her petition constitute new
evidence because they were previously unavailable, we will still consider them.
See Carey, 50 M.S.P.R. at 361. As explained below, considering the appellant’s
submissions on petition for review, we find that she met her burden to establish
jurisdiction over her IRA appeal.
¶10 First, we agree with the administrative judge that the appellant met her
burden of making a nonfrivolous allegation that she engaged in whistleblowing
activity by making a protected disclosure. The appellant’s submissions below in
response to the jurisdictional order, as supplemented by her submissions on
6
petition for review, show that she made a nonfrivolous allegation that she made a
disclosure as a result of a “hotline review” that she was performing. PFR File,
Tab 1 at 24-26. She disclosed that she had a reasonable belief that she was
subject to the Texas State Board of Public Accountancy rules as incorporated
through the U.S. Government Accountability Office’s Generally Acceptable
Government Accounting Standards, and that her supervisors abused their
authority by interfering with her I&I under these rules to determine the basis of a
“$40 million” shortfall that she found. Id.
¶11 We further find that the appellant has nonfrivolously alleged that her
protected disclosures were a contributing factor in the agency’s decision to take
or fail to take a personnel action. To satisfy the contributing factor criterion, an
appellant need only raise a nonfrivolous allegation that the fact or content of the
protected disclosure was one factor that tended to affect the personnel action in
any way. Mason v. Department of Homeland Security, 116 M.S.P.R. 135, ¶ 26
(2011). One way to establish this criterion is 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. Id. Here, the appellant made a nonfrivolous allegation that the
officials taking the personnel actions knew of the appellant’s disclosure. See PFR
File, Tab 1 at 60. Further, the personnel actions at issue, a lowered performance
appraisal, placement on a PIP, and a reprimand for refusing to sign an I&I
statement, are alleged to have begun within 1 year of the time that she made her
disclosures to OSC. Id. We find that the appellant has made nonfrivolous
allegations that her disclosures were a contributing factor under the
knowledge-timing test. See Agoranos v. Department of Justice, 119 M.S.P.R.
7
498, ¶¶ 21–23 (2013); see generally Gonzalez v. Department of
Transportation, 109 M.S.P.R. 250, ¶¶ 19–20 (2008).
¶12 As noted above, the administrative judge found that the appellant failed to
meet her burden to prove Board jurisdiction because she did not provide OSC
with a sufficient basis to pursue an investigation that might lead to corrective
action. ID at 8. It appears that the appellant did not include in her complaint of
retaliation all of the information that she provided in her disclosure statements;
however, in its closure letter, OSC indicated that it supplemented the information
that the appellant provided in her retaliation complaint with information that OSC
had available from its Disclosure Unit. PFR File, Tab 1 at 17. We find that the
appellant’s submissions in her disclosure to OSC were incorporated into her OSC
complaint of retaliation. Further, based on those submissions, we conclude that
the appellant exhausted her administrative remedies regarding the foregoing
disclosures. 2 See Ellison, 7 F.3d at 1036; Davis, 103 M.S.P.R. 516, ¶ 10.
¶13 The administrative judge also found that the appellant had exhausted her
administrative remedies only over her assertion that the agency retaliated against
her for engaging in whistleblowing when it issued her a written reprimand on
August 9, 2012, and gave her a minimally successful performance evaluation in
October 2012. IAF, Tab 30. The administrative judge thus found that the Board
had jurisdiction over only those two personnel actions and limited the hearing to
issues involving those personnel actions. Id.; IAF, Tab 35. Based on the
2
In light of our finding, we do not reach the issue of whether, in the initial decision, the
administrative judge improperly relied on the testimony of agency officials to rebut the
appellant’s allegation that she exhausted her administrative remedies. See Carney v.
Department of Veterans Affairs, 2014 MSPB 62, ¶ 11 (in determining whether the
appellant has made a nonfrivolous allegation of jurisdiction entitling him to a hearing in
an IRA appeal, the administrative judge may consider the agency’s documentary
submissions; however, to the extent that the agency’s evidence constitutes mere factual
contradiction of the appellant’s otherwise adequate prima facie showing of jurisdiction,
the administrative judge may not weigh evidence and resolve conflicting assertions of
the parties, and the agency’s evidence may not be dispositive); see also Ferdon v. U.S.
Postal Service, 60 M.S.P.R. 325, 329 (1994).
8
appellant’s submissions with her petition for review, we find that additionally she
established that she exhausted her administrative remedies regarding the agency’s
placing her on a PIP. Thus, the Board has jurisdiction over her assertion that the
agency retaliated against her by taking that personnel action.
¶14 The appellant has met her jurisdictional burden regarding the matters set
forth above. Once an appellant has successfully proven jurisdiction, she must
establish a prima facie case of whistleblower reprisal by proving by preponderant
evidence that she made a protected disclosure that was a contributing factor in a
personnel action against her. See Shibuya, 119 M.S.P.R. 537, ¶ 25. Because the
administrative judge did not make any findings on this issue, and resolving the
conflicting evidence could require credibility determinations, we REMAND the
appeal to allow the parties to submit evidence and argument on this issue. See
Sanchez v. Department of Energy, 117 M.S.P.R. 155, ¶ 19 (2011). When the
record is complete, the administrative judge shall issue an initial decision finding
whether the appellant has made a prima facie case of reprisal for whistleblowing.
If the appellant makes her prima facie case, the administrative judge must
determine whether the agency has established by clear and convincing evidence
that it would have taken the same actions absent the appellant’s protected
disclosures. See Clarke v. Department of Veterans Affairs, 121 M.S.P.R. 154,
¶ 19 n.10 (2014).
9
ORDER
¶15 For the reasons discussed above, we REMAND this case to the regional
office for further adjudication in accordance with this Remand Order.
FOR THE BOARD: ______________________________
William D. Spencer
Clerk of the Board
Washington, D.C.