Montgomery v. Merit Systems Protection Board , 382 F. App'x 942 ( 2010 )

NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
__________________________
KAREN L. MONTGOMERY,
Petitioner,
v.
MERIT SYSTEMS PROTECTION BOARD,
Respondent.
__________________________
2009-3188
__________________________
Petition for review of the Merit Systems Protection
Board in DA1221080179-W-1.
___________________________
Decided: June 14, 2010
___________________________
BARBARA M. RIZZO, Law Office of Barbara M. Rizzo, of
Moss Beach, California, for petitioner.
CALVIN M. MORROW, Attorney, Office of the General
Counsel, Merit Systems Protection Board, of Washington,
DC, for respondent. With him on the brief were JAMES M.
EISENMANN, General Counsel, and KEISHA DAWN BELL,
Deputy General Counsel.
__________________________
MONTGOMERY v. MSPB 2
Before BRYSON, GAJARSA, and PROST, Circuit Judges.
PER CURIAM.
This is an appeal from an Individual Right of Action
appeal (“IRA”) filed by Karen L. Montgomery who now
seeks review of a final decision of the Merit Systems
Protection Board (the “Board”) dismissing her IRA appeal
for lack of jurisdiction. Montgomery v. Dep't of Justice,
DA-1221-08-0179-W-1 (M.S.P.B. Aug. 18, 2008). Because
we agree with the Board that Ms. Montgomery failed to
make a non-frivolous allegation that she made a protected
disclosure under the Whistleblower Protection Act of 1989
(“WPA”), 5 U.S.C. § 2302(b)(8), we affirm.
BACKGROUND
Since July 2002, Ms. Montgomery has been employed
by the Department of Justice, Office of the Inspector
General (“OIG”), as an auditor in the Dallas Regional
Audit Office. As recently as November 2006, Ms. Mont-
gomery’s performance evaluations rated her work for OIG
as “outstanding” and “excellent.” Ms. Montgomery also
received several awards for her work performance, includ-
ing two Inspector General Honor Awards for “outstanding
contributions” to the OIG and a $3,000 performance
award for fiscal year 2006.
In December 2006, Ms. Montgomery confronted her
supervisor, Harold Burton, about his conduct with a
junior employee, Carrie Watkins. Ms. Montgomery told
Mr. Burton that she had observed him engaging in, inter
alia, lengthy telephone calls and whispered conversations
with Ms. Watkins. She also alleged that Mr. Burton and
Ms. Watkins had conducted an excessive number of
personal meetings. Ms. Montgomery informed Mr. Bur-
ton that she considered his conduct inappropriate and
3 MONTGOMERY v. MSPB
unprofessional. Mr. Burton denied engaging in any
inappropriate or unprofessional conduct.
Several months later, on February 16, 2007, Ms.
Montgomery again met with Mr. Burton concerning his
behavior, but at this meeting Mr. Burton’s supervisor,
Robert Kaufman, was also present. At the meeting, Ms.
Montgomery repeated her allegations of inappropriate
and unprofessional conduct. Mr. Burton again denied any
wrongdoing.
The three employees met again on March 9, 2007, and
Ms. Montgomery again reasserted her allegations against
Mr. Burton. At this time, Ms. Montgomery also alleged
that Mr. Kaufman had violated civil service hiring regula-
tions in hiring Ms. Watkins. Messrs. Burton and Kauf-
man both denied any wrongdoing.
Subsequent to the meeting, Mr. Kaufman issued a
“Letter of Caution” to Ms. Montgomery on March 16,
2007, in which he chastised her for engaging in inappro-
priate conduct and failing to behave in a professional
manner. Specifically, the letter, while not a formal rep-
rimand, warned Ms. Montgomery to cease spreading false
accusations about Mr. Burton’s relationship with Ms.
Watkins and Mr. Kaufman’s hiring practices. Mr. Kauf-
man warned Ms. Montgomery that failure to cease her
conduct would result in disciplinary action.
On March 26, 2007, Ms. Montgomery responded to the
“Letter of Caution” by emailing Caryn Markse, Mr.
Kaufman’s supervisor. Ms. Montgomery’s response
denied the letter’s allegations and again alleged that Mr.
Burton and Ms. Watkins were engaged in inappropriate
behavior. Ms. Montgomery, however, denied ever accus-
ing Mr. Kaufman of violating civil service hiring regula-
tions. Instead, Ms. Montgomery alleged that Mr.
Kaufman bent the rules in hiring Ms. Watkins, but noted
MONTGOMERY v. MSPB 4
that such conduct “occurs routinely” and is often “in the
best interest of the government.” Ms. Montgomery for-
warded her email response to Paul Martin, the Deputy
Inspector General for OIG on April 19, 2007.
On May 8, 2007, Ms. Montgomery filed a formal
grievance under the Department of Justice’s administra-
tive grievance procedures. The grievance was denied a
month later. Ms. Montgomery alleges that while the
grievance was pending and continuing thereafter, Messrs.
Burton and Kaufman engaged in retaliatory conduct
against her. Such conduct included allegedly unwar-
ranted criticism of her work, denials of her requests to
participate in or observe briefing concerning an audit she
previously worked on, refusing to speak with her, and
downgrading her most recent performance evaluation.
Given the alleged retaliation, on October 17, 2007,
Ms. Montgomery filed a whistleblower retaliation com-
plaint with the Office of Special Counsel (“OSC”). The
complaint alleged that the Department of Justice,
through the actions of Messrs. Burton and Kaufman, had
retaliated against her in response to her disclosures. On
January 15, 2008, the OSC terminated its investigation
into Ms. Montgomery’s claims finding an insufficient basis
for inquiring further into her complaint. Ms. Montgomery
then filed a timely IRA appeal with the Board under 5
U.S.C. § 1221(a).
Based on the parties’ briefing, the Board’s Adminis-
trative Judge (“AJ”) held that Ms. Montgomery failed to
establish the Board’s jurisdiction because she did not
make a non-frivolous allegation that she had made pro-
tected disclosures. According to the AJ, Ms. Montgom-
ery’s disclosure to Mr. Kaufman about Mr. Burton’s
allegedly inappropriate relationship with Ms. Watkins
was insufficient because “the mere appearance of inap-
5 MONTGOMERY v. MSPB
propriate behavior . . . does not rise to the level of having
a reasonable belief” that a violation of law, rule, or regula-
tion occurred. As for her allegations against
Mr. Kaufman, the AJ found that Ms. Montgomery failed
to report her concerns to Mr. Kaufman’s supervisors and
therefore the allegations were not protected disclosures.
Ms. Montgomery petitioned for review by the full
Board, which denied her petition. Because the full Board
denied her petition for review, the AJ’s decision became
final. Ms. Montgomery then petitioned for review by this
court. We have jurisdiction to review the Board’s decision
under 28 U.S.C. § 1295(a)(9).
DISCUSSION
The Board’s jurisdiction is limited to matters ex-
pressly made appealable by law, rule, or regulation.
Herman v. Dep't of Justice, 193 F.3d 1375, 1378 (Fed. Cir.
1999). The Board has jurisdiction over an IRA appeal
when a petitioner seeks corrective action of “a prohibited
personnel practice described in [5 U.S.C. § 2302(b)(8)].” 5
U.S.C. § 1221(a) (2006). Section 2302(b)(8) prohibits, in
part, federal employees from taking an adverse personnel
action against another employee in retaliation for “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. . .
.” 5 U.S.C. § 2302(b)(8)(A). “Whether the board has
jurisdiction over an appeal is a question of law that this
court reviews de novo.” Johnston v. Merit Sys. Prot. Bd.,
518 F.3d 905, 909 (Fed. Cir. 2008).
To establish jurisdiction, the petitioner must make
“nonfrivolous allegations that the [petitioner] made a
protected disclosure that was a contributing factor to the
personnel action taken or proposed.” Stoyanov v. Dep’t of
the Navy, 474 F.3d 1377, 1382 (Fed. Cir. 2007) (altera-
MONTGOMERY v. MSPB 6
tions added). “[V]ague, conclusory or facially insufficient
allegations” will not provide the Board with jurisdiction
over an IRA appeal. Johnston, 518 F.3d at 910. Whether
an allegation is non-frivolous is “based entirely on the
written record,” Kahn v. Dep’t of Justice, 528 F.3d 1336,
1341 (Fed. Cir. 2008), and the petitioner “bears the bur-
den of establishing Board jurisdiction,” id.Turning first to Ms. Montgomery’s allegation that Mr.
Kaufman violated civil service hiring regulations in hiring
Ms. Watkins, we disagree with the AJ’s conclusion that
Ms. Montgomery’s allegation did not constitute a disclo-
sure because it was only made to the alleged wrongdoer,
Mr. Kaufman. While it is settled that “[w]hen an em-
ployee reports or states that there has been misconduct by
a wrongdoer to the wrongdoer, the employee is not mak-
ing a ‘disclosure’ of misconduct,” Huffman v. Office of
Personnel Management, 263 F.3d 1341, 1350 (Fed. Cir.
2001), Ms. Montgomery made her disclosures to supervi-
sors other than Mr. Kaufman. As noted in the AJ’s deci-
sion, Ms. Montgomery disclosed her allegations to Ms.
Marske in her March 26 email responding to the “Letter
of Caution.” She also made the disclosure to Mr. Burton,
who, while junior to Mr. Kaufman, was Ms. Montgomery’s
supervisor. That Ms. Montgomery separately alleged Mr.
Burton was a wrongdoer for a separate matter does not
alter the fact that Ms. Montgomery disclosed an alleged
wrongdoing to a supervisor who was not the alleged
wrongdoer for that particular allegation. “Any govern-
ment employee, in a supervisory position, other than the
wrongdoer himself, is in a position to ‘correct’ or ‘remedy’
the abuse by bringing the matter to the attention of a
higher authority. To be consistent with the statute and
its purposes, complaints to supervisors concerning wrong-
doing by other employees or other matters within the
scope of the WPA should be encouraged and not discour-
7 MONTGOMERY v. MSPB
aged, even if the supervisor himself lacks authority to
directly correct the wrongdoing.” Id. at 1351. Accord-
ingly, Ms. Montgomery’s disclosures to Ms. Marske and
Mr. Burton qualify as “disclosures” under the WPA.
Despite this error, the AJ’s ultimate finding that Ms.
Montgomery did not establish jurisdiction is correct. In
addition to alleging a disclosure, Ms. Montgomery’s
complaint must also make a non-frivolous allegation that
evidences a violation of a law, rule, or regulation. See
Johnston, 518 F.3d at 909-10. “The standard for deter-
mining whether non-frivolous disclosures exist is analo-
gous to that for summary judgment.” Kahn, 528 F.3d at
1341 (internal quotation marks omitted). “[T]he peti-
tioner must show the existence of a material fact issue . . .
to support Board jurisdiction. Non-frivolous allegations
cannot be supported by unsubstantiated speculation in a
pleading submitted by petitioner.” Dorrall v. Dep’t of the
Army, 301 F.3d 1375, 1380 (Fed. Cir. 2002), overruled on
other grounds by Garcia v. Dep’t of Homeland Sec., 437
F.3d 1322, 1347 (Fed. Cir. 2006) (en banc).
With respect to Ms. Montgomery’s allegations against
Mr. Kaufman, Ms. Montgomery vacillated between char-
acterizing Mr. Kaufman’s actions as violations of civil
service hiring regulations and as routine conduct that is
often “in the best interest of the government.” However,
beyond her inconsistent statements, Ms. Montgomery has
provided no additional evidence that any hiring regula-
tions were violated. Without some evidence to support
her allegations, Ms. Montgomery cannot be said to have
made a non-frivolous allegation that Mr. Kaufman vio-
lated a law, rule, or regulation. See Dorrall, 301 F.3d at
1380; Herman v. Dep’t of Justice, 193 F.3d 1375, 1380-81
(Fed. Cir. 1999) (holding that the Board lacked jurisdic-
tion over employee’s IRA because the employee did not
MONTGOMERY v. MSPB 8
“provide[d] any evidence whatsoever” demonstrating a
violation of a law, rule, or regulation).
Turning to Ms. Montgomery’s allegations against Mr.
Burton, we also find them frivolous. Ms. Montgomery’s
allegations against Mr. Burton consist of: (1) an “exces-
sive” number of meetings between Mr. Burton and Ms.
Watkins; (2) lengthy telephone calls between Mr. Burton
and Ms. Watkins; (3) whispered conversations between
Mr. Burton and Ms. Watkins; (4) an instance in which Ms.
Watkins was half-sitting and half-standing at Mr. Bur-
ton’s desk while wearing a short skirt; and (5) an instance
in which Ms. Watkins’ arm was draped across the back of
Mr. Burton’s chair. In light of these allegations, Ms.
Montgomery contends that a reasonable person would
believe a law, rule, or regulation was violated.
Accepting Ms. Montgomery’s evidence as true, the
evidence is insufficient to demonstrate a violation of law,
rule, or regulation. While Mr. Burton has a duty to “act
impartially and not give preferential treatment to any . . .
individual,” 5 C.F.R. 2635.101(b)(8), Ms. Montgomery has
proffered no evidence that Ms. Watkins received preferen-
tial treatment. Indeed, nothing in the record demon-
strates that Ms. Watkins received promotions or any
other benefit for which she was not qualified resulting
from Mr. Burton’s interactions with Ms. Watkins. Fur-
ther, Ms. Montgomery offered no evidence to rebut Mr.
Kaufman’s statement that Ms. Watkins received a higher
level of training as part of a new office policy to remedy
the office’s previous failure to adequately train new
employees. In sum, Ms. Montgomery’s allegations are
“vague, conclusory or facially insufficient” as to any
preferential treatment Mr. Burton afforded Ms. Watkins
and fail to trigger the Board’s jurisdiction under 5 U.S.C.
§ 1221(a). See Johnston, 518 F.3d at 910; Dumas v. Merit
Sys. Prot. Bd., 789 F.2d 892, 894 (Fed. Cir. 1986) (holding
9 MONTGOMERY v. MSPB
that a non-frivolous allegation of Board jurisdiction is one
which, if true, would establish a prima facie case that the
Board has jurisdiction over the matter at issue).
Finally, we also reject Ms. Montgomery’s contention
that OIG perceived her to be a whistleblower. Specifi-
cally, Ms. Montgomery contends that Messrs. Burton and
Kaufman’s responses to Ms. Montgomery’s allegations, in
which both men concede she made allegations against
them, and the “Letter of Caution,” which recites the same
allegations, prove that OIG perceived her as a whistle-
blower. See, e.g., Schaeffer v. Dep’t of the Navy, 86
M.S.P.R. 606, 617 (2000) (“One who is perceived as a
whistleblower is entitled to the protections of the WPA,
even if he has not actually made protected disclosures.”).
In other words, by acknowledging her allegations,
Ms. Montgomery contends that OIG perceived her to be a
whistleblower.
Ms. Montgomery is not a perceived whistleblower.
The perceived whistleblower doctrine prevents a supervi-
sor from taking retaliatory action against an employee,
even if the employee’s disclosure is later found unpro-
tected, so long as the retaliation was taken in response to
the disclosure. Here, Messrs. Burton and Kaufman
concede knowledge of Ms. Montgomery’s allegations, but
neither concedes the legitimacy of her allegations.
Messrs. Burton and Kaufman did not perceive Ms. Mont-
gomery as a whistleblower; rather they perceived her
allegations as frivolous at best and dishonest at worst.
Because her allegations were frivolous, it would be unrea-
sonable for OIG to perceive her as a whistleblower and
retaliate against her. Accordingly, absent specific evi-
dence that OIG retaliated against Ms. Montgomery for
her frivolous allegations, the perceived whistleblower
doctrine does not apply. See Special Counsel v. Spears,
75 M.S.P.R. 639, 654-55 (1997) (holding that the alleged
MONTGOMERY v. MSPB 10
disclosure must at least be reasonable for the perceived
whistleblower doctrine to apply).
Accordingly, we affirm the Board’s order dismissing
Ms. Montgomery’s IRA appeal for lack of jurisdiction.
AFFIRMED