Schutte v. Department of Treasury , 203 F. App'x 338 ( 2006 )

NOTE: Pursuant to Fed. Cir. R. 47.6, this disposition
is not citable as precedent. It is a public record.
United States Court of Appeals for the Federal Circuit
06-3132
RHONDA L. SCHUTTE,
Petitioner,
v.
DEPARTMENT OF THE TREASURY,
Respondent.
___________________________
DECIDED: October 10, 2006
___________________________
Before RADER, Circuit Judge, PLAGER, Senior Circuit Judge, and DYK, Circuit Judge.
RADER, Circuit Judge.
The Internal Revenue Service (the Agency) fired Ms. Rhonda L. Schutte from a
seasonal Tax Examining Clerk position. Ms. Schutte filed claims for wrongful
termination and Individual-Right-Of-Action (IRA) under the Whistleblower Protection Act
(WPA). Schutte v Dep’t of Treasury, MSPB Docket No. DE-315H-04-0355-I-1; Schutte
v Dep’t of Treasury, MSPB Docket No. DE-1221-05-0067-W-1. The wrongful
termination claim is complete. Schutte, 100 M.S.P.R. 645 (2005). Only Ms. Schutte’s
appeal from the Merit Systems Protection Board’s (Board) dismissal of her IRA claim
remains for this appeal. The Board dismissed as to claims F-M because Ms. Schutte
did not completely exhaust her administrative remedies before the Office of Special
Counsel (OSC) and as to all claims because she failed to make protected disclosures
under the WPA. Schutte v Dep’t of Treasury, MSPB Docket No. DE-1221-05-0067-W-
1. Finding no reversible error, this court affirms.
I
On February 3, 2003 the Agency hired Ms. Schutte as a Tax Examining Clerk, a
seasonal position. Her hiring was subject to a one-year probationary period. On
May 25, 2004, Ms. Schutte received notification of probationary termination. Ms.
Schutte appealed her termination to the Board. The Board reversed the Agency,
restoring Ms. Schutte and awarding back pay, interest on back pay, and other benefits.
100 M.S.P.R. at 648 (holding that a seasonal employee’s time in nonduty, nonpay
status is contemplated as part of his employment such that these off-duty days cannot
be considered workdays breaking current continuous employment).
During the pendency of the appeal of her termination, however, Ms. Schutte
alleged the Agency retaliated against her, for various protected disclosures. The
administrative judge assigned to Ms. Schutte’s case informed her that she would have
to exhaust all of her remedies before the OSC before filing an IRA appeal with the
Board. Ms. Schutte filed a complaint with the OSC identifying five allegedly protected
disclosures, “A-E”. After receiving a closure letter from the OSC, however, Ms. Schutte
filed her IRA appeal identifying two sets of allegedly protected disclosures, “A-E” and “F-
M”. The administrative judge found that Ms. Schutte had failed by a preponderance of
the evidence to demonstrate that an update to the original complaint detailing
disclosures “F-M” was ever sent to the OSC. Based on this finding, the administrative
judge held that Ms. Schutte did not completely exhaust her administrative remedies
before the OSC. Additionally, the administrative judge, as to claims F-M, found that
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even if all of the disclosures had been brought before the OSC, none of the disclosures
was protected.
II
This court must affirm any agency action, findings, or conclusions unless they
are: (1) arbitrary or capricious, an abuse of discretion, or otherwise not in accordance
with the law; (2) obtained without procedure required by law, rule, or regulation having
been followed; or (3) unsupported by substantial evidence. 5 U.S.C. § 7703(c) (1996);
Hayes v. Dep’t of Navy, 727 F.2d 1535, 1537 (Fed. Cir. 1984).
The Board may grant a petition for review based on new and material evidence
that, despite due diligence, was not available when the record closed. 5 C.F.R.
§ 1201.115(d)(1). However, the Board only has jurisdiction over an IRA appeal if the
appellant has exhausted all administrative remedies before the OSC and made “non-
frivolous allegations” that: (1) he engaged in whistleblowing activity by making a
protected disclosure under 5 U.S.C. § 2302(b)(8), and (2) the disclosure was a
contributing factor in the Agency's decision to take or fail to take a personnel action as
defined by 5 U.S.C. § 2302(a). Yunus v. Dep’t of Veterans Affairs, 242 F.3d 1367,
1371 (Fed. Cir. 2001). Under the WPA, protected disclosures include “any disclosure of
information by an employee or applicant which the employee or applicant reasonably
believes evidences (i) a violation of any law, rule, or regulation, or (ii) gross
mismanagement, a gross waste of funds, an abuse of authority, or a substantial and
specific danger to public health or safety.” 5 U.S.C. § 2302(b)(8). However, “complaints
to a supervisor about the supervisor's own conduct are not disclosures covered by the
WPA.” Huffman v. Office of Pers. Mgmt., 263 F.3d 1341, 1344 (Fed. Cir. 2001).
06-3132 3
“An agency may appoint by reinstatement to a competitive service position a
person who previously was employed under career or career-conditional appointment.”
5 C.F.R. § 315.401 (2006)(emphasis added). Further, a federal employee holding a
General Schedule position may be advanced up to any General Schedule grade the
employee previously held under nontemporary appointment in the competitive or
excepted service. 5 C.F.R. § 300.603 (2006)(emphasis added).
In her informal brief to this court, Ms. Schutte does not address the administrative
judge’s finding that she failed to show an update to the original complaint detailing
disclosures “F-M”. In his initial decision, the administrative judge noted the lack of a
cover letter or certificate of service indicating an update. The administrative judge
further noted the OSC closure letter lacks reference to an update or to disclosures “F-
M.” The record does not contain any evidence indicating that the OSC evaluated the
merits of disclosures “F-M.” Thus, based on the record before this court, this court finds
the administrative judge’s holding that Ms. Schutte did not exhaust her administrative
remedies before the OSC based on disclosures “F-M” was not arbitrary or capricious,
an abuse of discretion or otherwise not in accordance with the law.
Additionally, the administrative judge found that even if all of the disclosures had
been brought before the OSC, none of the disclosures was a protected disclosure under
the WPA. In evaluating the whether any of the disclosures are protected disclosure
under the WPA, the administrative judge made numerous findings of fact. The
administrative judge found the allegedly protected disclosures were vague,
unsubstantiated, factually deficient, conclusory, and often lacked specificity. The
administrative judge also found that many of the disclosures were reported to the
06-3132 4
alleged wrongdoer or described mere “trivial lapses” rather than genuine violations or
real wrongdoing.
We have considered Ms. Schutte’s specific allegations numbered A-E. None of
these establishes the presence of protected activity. Many of the allegations, as the
Board found, were merely conclusory. Reprisals based on an employee’s exercise of
her right to complain about the employee’s own treatment by the agency do not qualify
for whistleblower protection under the WPA. See Spruill v. MSPB, 978 F.2d 679, 690
(Fed. Cir. 1992). To the extent that the alleged disclosures were made to her
supervisor concerning the supervisor’s own conduct, they were not protected, Huffman,
263 F.3d at 1344, and “disclosures of trivial violations do not constitute protected
disclosures” under the WPA. Langer v. Dep’t. of Treasurey, 265 F.3d 1259, 1266 (Fed.
Cir. 2001). Further Ms. Schutte alleges violations under §§ 315.401 and 300.603, which
are both permissive in nature, and thus a dispute under these sections cannot, as a
matter of law, constitute a protected disclosure under the WPA. For these reasons, this
court affirms the Board’s decision.
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