Latasha McAlpine v. Social Security Administration ( 2023 )

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
LATASHA VALERIA MCALPINE, DOCKET NUMBERS
Appellant, AT-1221-16-0301-W-1
AT-1221-18-0594-W-1
v.
SOCIAL SECURITY
ADMINISTRATION, DATE: February 21, 2023
Agency.
THIS ORDER IS NONPRECEDENTIAL 1
Latasha Valeria McAlpine, Smyrna, Georgia, pro se.
Megan Cleary DePonte, Esquire, and Owen Keegan, Esquire, Atlanta,
Georgia, for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
Tristan L. Leavitt, Member
REMAND ORDER
¶1 The appellant has filed petitions for review of the initial decisions
dismissing her individual right of action (IRA) appeals for lack of jurisdiction.
For the reasons discussed below, we JOIN the appeals, GRANT the appellant’s
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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 id entified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
2
petitions, VACATE IN PART and AFFIRM IN PART the initial decisions, FIND
jurisdiction over both IRA appeals, and REMAND the appeals to the Atlanta
Regional Office for further adjudication in accordance with this Remand Order.
BACKGROUND
¶2 In October 2014, the appellant was hired as a GS-11 Attorney-Advisor,
which was a decision-writing position in the bargaining unit. McAlpine v. Social
Security Administration, MSPB Docket No. AT-1221-16-0301-W-1
(0301 matter), Initial Appeal File (0301 IAF), Tab 6 at 12. Notwithstanding her
position description classification, she asserted that she performed only Labor
Management Employee Relations (LMER) duties. Id. at 8. Starting in
April 2015, she argued to the agency’s Center for Human Resources (CHR) that
there were irregularities in her position description classification and that she
should have been paid at a higher grade for the LMER work that she was
performing. Id. at 15. The appellant later was advised by senior agency officials
that she could not remain in her position and would have t o reapply for her
position, which was reclassified as a higher-graded Human Resources Specialist
position. Id. at 16. The appellant applied for a Human Resources Specialist
position, she was not selected, and she was reassigned to the decision -writing
unit. Id.¶3 The appellant filed a complaint in 2015 with the Office of Special Counsel
(OSC), alleging that she was not selected for the Human Resources Specialist
position and was reassigned in retaliation for raising the above -mentioned issues
with CHR. Id. at 5-19. After OSC closed its investigation, she timely filed a
Board IRA appeal in 2016. 0301 IAF, Tab 1, Tab 6 at 21-23. In an initial
decision, the administrative judge dismissed the appeal for lack of jurisdiction.
0301 IAF, Tab 13, Initial Decision (0301 ID). The administrative judge noted
that the appellant, in her Board appeal, asserted that she disclosed a violation of
law, rule, or regulation, and identified numerous statutes, regulations, and
3
policies; by contrast, in her OSC complaint, she did not allege a violation of law,
rule, or regulation in general nor did she identify any statutes, regulations, and/or
policies. 0301 ID at 5-6. The administrative judge determined that the
allegations in her Board appeal constituted an improper rec haracterization of the
allegations in her OSC complaint, and he did not consider them. Id. (citing
Ellison v. Merit Systems Protection Board, 7 F.3d 1031, 1036 (Fed. Cir. 1993)).
He further found that she did not make a nonfrivolous allegation of a protected
disclosure involving gross mismanagement, an abuse of authority, or a gross
waste of funds. 0301 ID at 6-9.
¶4 The appellant has filed a petition for review in the 0301 matter, the agency
has filed a response, and the appellant has filed a reply brief. McAlpine v. Social
Security Administration, MSPB Docket No. AT-1221-16-0301-W-1, Petition for
Review (0301 PFR) File, Tabs 1, 3-4. On petition for review, the appellant
claims that the administrative judge erroneously required her to correctly label
the category of protected disclosure under 5 U.S.C. § 2302(b)(8). 0301 PFR File,
Tab 1 at 4-7. She further argues that she made nonfrivolous allegations of a
violation of law, rule, or regulation, gross mismanagement, abuse of authority,
and a gross waste of funds. Id. at 7-15. Finally, she includes with her petition
“new and material evidence.” Id. at 16-21, 23-51. 2
¶5 During the pendency of her petition for review in the 0301 matter, the
appellant filed another complaint with OSC in 2018 claiming that in reprisal for
the same whistleblowing disclosures included in the 0301 matter, her 2015 OSC
complaint, and 2016 IRA appeal, the agency failed to issue her a monetary award
in October 2017 and did not select her for a position in February 2018. McAlpine
v. Social Security Administration, AT-1221-18-0594-W-1 (0594 matter), Initial
Appeal File (0594 IAF), Tab 6 at 14-23. Following OSC’s closure of the
2
Because we find that the appellant made a nonfrivolous allegation of jurisdict ion
without considering this evidence, we need not discuss it in this Order. The
administrative judge should consider this evidence on remand.
4
appellant’s complaint with no further action, she timely filed a second IRA appeal
with the Board, i.e., the 0594 matter. 0594 IAF, Tab 1, Tab 6 at 25-26.
¶6 In the 0594 matter, the administrative judge apprised the parties of the
appellant’s jurisdictional burden, and they both responded on the issue.
0594 IAF, Tabs 3, 6, 8-9. He then issued an initial decision dismissing the
appellant’s second IRA appeal for lack of jurisdiction. 0594 IAF, Tab 10, Initial
Decision (0594 ID) at 1-9. Specifically, the administrative judge found that the
appellant was precluded from relitigating whether her disclosures to CHR from
the 0301 matter were whistleblowing disclosures on adjudicatory efficiency
grounds, as he had already determined that they were not and the appellant’s
petition for review of that decision was pending with the Board. 0594 ID at 5-6.
The administrative judge determined that the appellant nonfrivolously alleged
that she engaged in protected activity by filing her 2015 OSC complaint and 2016
IRA appeal with the Board in the 0301 matter, but he concluded that she failed to
nonfrivolously allege that either of these activities was a contributing factor in
the agency’s decisions to take or fail to take the personnel actions at issue.
0594 ID at 6-9.
¶7 The appellant has filed a petition for review of the initial decision in the
0594 matter, to which the agency has responded in opposition. McAlpine v.
Social Security Administration, AT-1221-18-0594-W-1, Petition for Review
(0594 PFR) File, Tabs 1, 3. In her petition for review, the appellant asserts,
among other things, that the decisionmakers had knowledge of her protected
activity. 0594 PFR File, Tab 1 at 4-5.
DISCUSSION OF ARGUMENTS ON REVIEW
We join the 0301 and 0594 appeals.
¶8 The regulation at 5 C.F.R. § 1201.36(b) states that it is appropriate to sua
sponte join two appeals if doing so would expedite processing of the cases and
not adversely affect the interest of the parties. For the reasons described herein,
5
the appellant has nonfrivolously alleged an ongoing pattern of retaliation across
her two appeals, and we find that joinder is appropriate.
Legal standard at the jurisdictional stage in an IRA appeal
¶9 The Board has jurisdiction over an IRA appeal if the appellant exhausts her
administrative remedies before OSC and makes nonfrivolous allegation s of the
following: (1) she made a 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 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). 5 U.S.C. §§ 1214(a)(3), 1221(e)(1); Bishop v. Department of
Agriculture, 2022 MSPB 28, ¶ 13; Linder v. Department of Justice, 122 M.S.P.R.
14, ¶ 6 (2014). A nonfrivolous allegation is an assertion that, if proven, could
establish the matter at issue. Bishop, 2022 MSPB 28, ¶ 13; Bradley v.
Department of Homeland Security, 123 M.S.P.R. 547, ¶ 6 (2016); 5 C.F.R.
§ 1201.4(s).
We grant the appellant’s petition for review in the 0301 matter and find that
she established Board jurisdiction.
¶10 As relevant here, an appellant in an IRA appeal makes a disclosure when
she communicates information that she reasonably believes evidences any
violation of any law, rule, or regulation, gross mismanagement, an abuse of
authority, and/or a gross waste of funds. 5 U.S.C. § 2302(a)(2)(D). The
administrative judge correctly noted that the appellant did not state in her OSC
complaint that her disclosure evidenced a violation of law, rule, or regulatio n.
0301 ID at 6. However, the Board has held that the key to determining whether
an appellant has satisfied the exhaustion requirement in an IRA appeal is whether
she provided OSC with a sufficient basis to pursue an investigation, not whether
she correctly labeled the category of wrongdoing; OSC can be expected to know
which category of wrongdoing might be implicated by a particular set of factual
allegations. Thomas v. Department of the Treasury, 77 M.S.P.R. 224, 236-37
6
(1998), overruled on other grounds by Ganski v. Department of the Interior,
86 M.S.P.R. 32, 37 (2000).
¶11 Contrary to the administrative judge’s conclusion, we find that the appellant
provided OSC with a sufficient basis to investigate a prohibited personnel
practice under 5 U.S.C. § 2302(b)(8). Some allegations of wrongdoing, such as
theft of Government property or fraudulent claims for pay, so obviously implicate
a violation of law, rule, or regulation, that an appellant need not identi fy what
law, rule, or regulation was violated. DiGiorgio v. Department of the Navy,
84 M.S.P.R. 6, ¶ 14 (1999). The gravamen of the appellant’s OSC complaint was
that senior agency officials engaged in fraud when she (and four other employees)
were hired as decision-writing attorneys but were in fact utilized as LMER
attorneys and were paid at a lower pay grade for the work that they were
performing. 0301 IAF, Tab 6 at 5-19. We conclude that, based on the nature of
these allegations, she nonfrivolously alleged a violation of law, rule, or
regulation. See e.g., DiGiorgio, 84 M.S.P.R. 6, ¶¶ 13-15 (finding a nonfrivolous
allegation of a violation of law, rule, or regulation based on a claim that
employees fraudulently claimed entitlement and received payment for overtime
hours they did not work)..
¶12 An abuse of authority occurs when there is an ar bitrary or capricious
exercise of power by a Federal official or employee that adversely affects the
rights of any person or results in personal gain or advantage to himself or to
preferred other persons. Wheeler v. Department of Veterans Affairs, 88 M.S.P.R.
236, 241, ¶ 13 (2001). We further find that the appellant’s allegation of
wrongdoing by senior agency officials and the har m that she (and the other four
employees) suffered constitutes a nonfrivolous allegation that she disclosed an
abuse of authority. See Berkowitz v. Department of the Treasury, 94 M.S.P.R.
658, ¶ 11 (2003) (holding that an allegation that the agency manipulated the
creation and promotion process of a GS-14 Drug Enforcement Coordinator
position, so that only certain employees were eligible for selection, constituted a
7
nonfrivolous allegation of an abuse of authority). We have considered the
appellant’s assertion on review that she made a nonfrivolous allegation involving
gross mismanagement and/or a gross waste of funds, 0301 PFR File, Tab 1
at 10-11, 13-15, but for the reasons described in the initial decision, 0301 ID
at 6-8, a different outcome is not warranted.
¶13 Finally, we conclude that the appellant nonfrivolously alleged that her
disclosure was a contributing factor in the agency’s decision not to select her for
the Human Resources Specialist position and to reassign her to the
decision-writing unit. 3 One way of proving contributing factor is to show that the
official(s) taking the personnel action(s) knew of the disclosure or protected
activity and that the personnel action occurred within a period of time such that a
reasonable person could conclude that the disclosure or protected activity was a
contributing factor in the personnel action. 5 U.S.C. § 1221(e)(1). In her OSC
complaint, the appellant stated that she made her disclosure to CHR as early as
April 2015, the agency officials responsible for the personnel actions were aware
of the disclosure, and the nonselection and reassignment occurred approximately
6 months after the disclosure. 0301 IAF, Tab 6 at 7, 15 -17. The Board has held
that 6 months is well within the range of time between a disclosure and a
personnel action from which an inference of causation arises. Wadhwa v.
Department of Veterans Affairs, 110 M.S.P.R. 615, ¶ 13, aff’d, 353 F. App’x 435(Fed. Cir. 2009). Accordingly, the appellant has satisfied her burden at the
jurisdictional stage. 4
3
The reassignment and nonselection both appear to qualify for coverage under the
whistleblower protection statutes. 5 U.S.C. § 2302(a)(2)(A)(i), (iv); see Ruggieri v.
Merit Systems Protection Board, 454 F.3d 1323, 1326-27 (Fed. Cir. 2006) (concluding
that the whistleblower protection statutes cover an agency’s failure to make an
appointment).
4
The 2015 OSC complaint and the 2016 IRA appeal occurred after the 2015
reassignment and nonselection and, therefore, could not have been contributing factors
in those personnel actions. Davis v. Department of Defense, 106 M.S.P.R. 560, ¶ 12
(2007), aff’d, 278 F. App’x 1009 (Fed. Cir. 2008).
8
We grant the appellant’s petition for review in the 0594 matter and find that she
established Board jurisdiction.
¶14 As laid out in detail in our findings regarding the 0301 matter, the appellant
nonfrivolously alleged making protected disclosures to CHR of a violation of law,
rule, or regulation, and an abuse of authority. Supra ¶¶ 11-12. As a result, we
vacate the administrative judge’s finding in the 0594 matter that the appellant was
precluded from litigating whether her disclosures were protected by 5 U.S.C.
§ 2302(b)(8) on adjudicatory efficiency grounds.
¶15 The administrative judge correctly held in the 0594 matter that the appellant
nonfrivolously alleged that she engaged in protected activity under 5 U.S.C.
§ 2302(b)(9). It is a prohibited personnel practice to take or fail to take a
personnel action against an employee because she exercised any appeal,
complaint, or grievance right granted by any law, rule, or regulation with regard
to remedying a violation set forth in 5 U.S.C. § 2302(b)(8). 5 U.S.C.
§ 2302(b)(9)(A)(i); Linder, 122 M.S.P.R. 14, ¶ 10. We agree with the
administrative judge that the appellant nonfrivolously alleged that she engaged in
such protected activity when she filed her 2015 OSC complaint and 2016 IRA
appeal in the 0301 matter. 0594 ID at 6-7. Both filings were attempts by the
appellant to remedy alleged reprisal for whistleblowing disclosures in violation of
5 U.S.C. § 2302(b)(8). Neither party raises an issue with this finding on review. 5
¶16 To meet her jurisdictional burden, the appellant must also nonfrivolously
allege that her whistleblowing disclosures and/or protected activity were a
contributing factor in the agency’s decision not to issue her a monetary award in
5
The grievance that the appellant mentioned in this appeal involved an attempt to
receive back pay for prior work that she performed. 0594 IAF, Tab 1 at 5; 0594 ID at 7
n.3. We agree with the administrative judge that the substance of the grievance did not
concern remedying a violation of 5 U.S.C. § 2302(b)(8), and any claim of whistleblower
reprisal for filing such a grievance is outside of the Board’s jurisdiction in the context
of an IRA appeal. 0594 ID at 8 n.5; see Mudd v. Department of Veterans Affairs,
120 M.S.P.R. 365, ¶ 7 (2013). Neither party challenges the administrative judge’s
conclusion on this issue, and we affirm it herein.
9
October 2017 and the February 2018 nonselection. Graves v. Department of
Veterans Affairs, 123 M.S.P.R. 434, ¶ 12 (2016). To do so, the appellant need
only demonstrate that the fact of, or the content of, the whistleblowing disclosure
or protected activity was one of the factors that tended to affect the personnel
actions in any way. Carey v. Department of Veterans Affairs, 93 M.S.P.R. 676,
¶ 10 (2003). One way for an appellant to establish contributing factor is the
knowledge/timing test. Supra ¶ 13. As an alternative to the knowledge/timing
test, the Board may consider other relevant evidence, including but not limited to,
the strength or weakness of the agency’s reasons for taking the personnel
action(s), whether the whistleblowing disclosure and/or protected activity was
directed at the responsible agency officials, and whether the responsible agency
officials had a desire or motive to retaliate against the appellant. Pridgen v.
Office of Management and Budget, 2022 MSPB 31, ¶ 65; Powers v. Department
of the Navy, 69 M.S.P.R. 150, 156 (1995). Nonfrivolous allegations suffice at the
jurisdictional stage because the appellant “may not have access to all relevant
documents or have been provided an opportunity to conduct discovery.” 6 Piccolo
v. Merit Systems Protection Board, 869 F.3d 1369, 1371 (Fed. Cir. 2017).
¶17 In contrast to the administrative judge, we find that the appellant made a
nonfrivolous allegation of contributing factor. As a preliminary matter, the
appellant identified D.A. and/or A.B. as the decisionmakers behind the 2017
denial of the monetary award and the 2018 nonselection. See 0594 IAF, Tab 1
6
This principle is especially applicable here because the administrative judge granted
the agency’s motion to extend the deadline for responding to the acknowledgment order
and the issuance of discovery requests until after the Board ruled on the jurisdicti onal
issue. 0594 IAF, Tab 5, Tab 7 at 1. Importantly, the agency’s motion did not state
whether the appellant had any objection to this requested relief. 0594 IAF, Tab 5; see
5 C.F.R. § 1201.55(a) (“A party filing a motion for extension of time, a motion for
postponement of a hearing, or any other procedural motion must first contact the other
party to determine whether there is any objection to the motion, and must state in the
motion whether the other party has an objection.”). Moreover, the administrative judge
ruled on the agency’s motion sooner than 10 days from when it was served. 5 C.F.R.
§ 1201.55(b).
10
at 5 (stating that the “selecting officials” included A.B. and D.A and that they
“handled the selection process”), 11 (“[D.A.] is over the monetary awards.”). We
also find that the appellant nonfrivolously alleged that D.A. and A.B. had
knowledge of her 2015 OSC complaint and February 2016 IRA appeal:
[M]anagement responded to claimant’s filings by asserting that [the
a]ppellant and her coworkers were reassigned to [the] Atlanta
Writing Unit after their detail ended. This response was made by
management, [A.B.] and [D.A.], to [the a]ppellant’s prior grievance
and in the [a]gency’s prior filings with the Board. . . . It is
impossible for the former Regional Attorney [A.B.], who receives
notifications of all [Merit Systems Protection Board (MSPB)] and
[equal employment opportunity (EEO)] employee filings simply
because of the role of the job and the highest ranking management
official in Region 4, [D.A.], who also receives notification of all
such employee filings in the Region because of her job duties to not
be aware of the previous OSC, MSPB[,] and grievances filed against
them.
0594 IAF, Tab 9 at 4. We further find that, because the appellant alleged that the
2017 denial of a monetary award occurred approximately 20 months after she
filed her February 2016 IRA appeal, she has nonfrivolously alleged under the
knowledge/timing test that her February 2016 IRA appeal was a contributing
factor in the 2017 denial of a monetary award. See, e.g., Redschlag v.
Department of the Army, 89 M.S.P.R. 589, ¶ 87 (2001) (finding that an
appellant’s disclosures were a contributing factor in her removal when they were
made approximately 21 months and then slightly over a year before the agency
removed her).
¶18 However, the delay between the 2015 CHR disclosures and 2015 OSC
complaint and the 2017 denial of a monetary award and 2018 nonselection, as
well as the delay between the February 2016 IRA appeal and 2018 nonselection,
are too remote in time to satisfy the timing prong of the knowledge/timing test.
See Costello v. Merit Systems Protection Board, 182 F.3d 1372, 1377 (Fed. Cir.
1999) (finding that a 2-year gap between the whistleblowing disclosures and the
allegedly retaliatory action was too long an interval to justify an inference of
11
cause and effect between the two); Salinas v. Department of the Army,
94 M.S.P.R. 54, ¶ 10 (2003) (holding that a gap of 2-3 years that passed between
the whistleblowing disclosure and personnel actions at issue was too long to
satisfy the knowledge/timing test).
¶19 Nevertheless, if we consider the alternative approach, discussed above,
supra ¶ 16, we find that the appellant has made a nonfrivolous allegation of
Board jurisdiction regarding the 2015 whistleblowing disclosures, the 2015 and
2016 protected activity, and the 2017 denial of a monetary award and 2018
nonselection. Regarding the strength or weakness of the agency’s reasons for
denying a monetary award in 2017 and not selecting her in 2018, the appellant
pointed out inconsistencies in personnel decisions when D.A. and/or A.B. were
involved. For example, the appellant alleged that she was interviewed for the
GS-13 LMER attorney position in 2016, but she was not even interviewed in
2017, although she was referred for consideration both times. 0594 IAF, Tab 1
at 11. She further alleged that she received a monetary award in 2016, but not in
2017, even though her “average[]” was higher in 2017. Id. Moreover, the
appellant alleged that the only people in her unit who did not receive monetary
awards in 2017 were herself and the other employees who lodged similar
complaints. Id. These inconsistencies, coupled with the appellant’s apparent
assertion that the selectees had inadequate qualifications, id., call into question
whether the agency had a legitimate basis for denying her a monetary award in
2017 and failing to select her in 2018.
¶20 We have also considered whether the whistleblowing disclosure s and/or
protected activity was directed at the responsible agency officials. The appellant
stated on her initial appeal form that A.B. and D.A.—the decisionmakers in the
2017 denial of a monetary award and/or the 2018 nonselection —hired her into the
allegedly improperly classified position, they were therefore responsible for her
purported underpayment in that position, and they made the retaliatory decision to
reassign her after she complained regarding this impropriety. 0594 IAF, Tab 1
12
at 5, 11. These allegations led directly to her 2015 CHR disclosures, her 2015
OSC complaint, and the 2016 IRA appeal.
¶21 Finally, we have considered whether the responsible agency officials were
motivated to retaliate against the appellant. The appellant appears to allege that
D.A.’s and A.B.’s authority and/or duties were reduced because of her
complaints, which could create a motive to retaliate. 0594 IAF, Tab 1 at 5, Tab 6
at 6; see Redschlag, 89 M.S.P.R. 589, ¶ 88 (finding a substantial motive to
retaliate where the officials involved in the personnel action were disc iplined for
their roles in the misconduct reported by the appellant). For these reasons, we
find that the appellant has satisfied her burden in this matter at the jurisdictional
stage.
Having found that the Board has jurisdiction over the 0301 and 0594 ma tters, we
remand these appeals for further adjudication.
¶22 Our conclusion that the appellant has satisfied her jurisdictional burden and
is entitled to a hearing in the 0301 and 0594 matters is consistent with the
longstanding principle that whistleblower protection laws are remedial in nature,
intended to improve protections for Federal employees, and should be construed
broadly to effectuate that purpose. Hudson v. Department of Veterans Affairs,
104 M.S.P.R. 283, ¶ 6 (2006); Keefer v. Department of Agriculture, 82 M.S.P.R.
687, ¶ 13 (1999); King v. Department of Health and Human Services, 71 M.S.P.R.
22, 32 (1996). We recognize that the agency has disputed some of the appellant’s
assertions, 0301 IAF, Tab 11; 0594 IAF, Tab 8, but it is not appropriate to
consider the agency’s evidence at the jurisdictional stage, Ferdon v. U.S. Postal
Service, 60 M.S.P.R. 325, 329 (1994). Accordingly, we find that the appellant
has made nonfrivolous allegations that the 2015 nonselection and reassignment,
the 2017 denial of a monetary award, and the 2018 nonselectio n were taken (or
not taken) because of her whistleblowing disclosures and/or protected activity, as
described herein. We remand these appeals to give the parties an opportunity to
conduct discovery and, if appropriate, have a hearing on the merits.
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ORDER
¶23 For the reasons discussed above, we join and remand these matters to the
Atlanta Regional Office for further adjudication in accordance with this Remand
Order.
FOR THE BOARD: /s/ for
Jennifer Everling
Acting Clerk of the Board
Washington, D.C.