Erika Walker v. Department of the Army ( 2022 )

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
ERIKA D. WALKER, DOCKET NUMBER
Appellant, DC-1221-21-0374-W-1
v.
DEPARTMENT OF THE ARMY, DATE: August 25, 2022
Agency.
THIS ORDER IS NONPRECEDENTIAL 1
James R. Walker, Garden City, New York, for the appellant.
Randy Ramirez, Esquire, Fort Sam Houston, Texas, for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
Tristan L. Leavitt, 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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
REVERSE the initial decision, and REMAND the case to the regional office for
further adjudication in accordance with this Remand Order.
BACKGROUND
¶2 On April 26, 2021, the appellant, a GS-12 Physician Assistant (Readiness),
filed an appeal with the Board alleging that she had “suffered retaliation and
disparate treatment as a direct result of making a protected disclosure and/or
reporting protected activity that she reasonably believed evidenced wrongdoing.”
Initial Appeal File (IAF), Tab 1 at 8-9, Tab 13 at 42. The appellant requested a
hearing on the matter. IAF, Tab 1 at 2. The administrative judge thereafter
issued an order wherein he explained the circumstances under which the Board
has jurisdiction to adjudicate IRA appeals, and he ordered her to file specific
evidence and argument regarding jurisdiction. IAF, Tab 3 at 1-9.
¶3 In response, the appellant asserted that, in February 2020, she disclosed to
various agency personnel that a specific agency nurse had “allowed double using
of vacutainer adapters in the lab when processing . . . armed forces personnel”
patients. 2 IAF, Tab 9 at 5, Tab 13 at 13-20. She alleged that, despite her
disclosure, no action was taken against the nurse because the nurse had a personal
relationship with an agency management official. IAF, Tab 9 at 6-7. She also
alleged that, following her disclosure, on April 29, 2020, the agency rated her as
“fully successful” in lieu of “outstanding” in the “administrative responsibilities
and committee membership” element of her performance appraisal. IAF, Tab 9
at 7, Tab 13 at 42, 45, 48. The appellant also alleged the following: (1) on
May 15, 2020, an agency management official purposefully excluded her from a
meeting regarding a topic for which she was the subject matter expert; (2) in
2
A “vacutainer” is a “proprietary blood collection tube with a vacuum [used] to
facilitate blood collection.” The Free Dictionary, Medical Dictionary, https://medical-
dictionary.thefreedictionary.com/ Vacutainer (last visited Aug. 25, 2022); IAF, Tab 13
at 14. A “vacutainer adapter” facilitates the use of a vacutainer during a blood draw but
does not come in direct contact with the skin. IAF, Tab 13 at 14.
3
October/November 2020, an agency management official attempted to make her
the subject of an investigation in an attempt to remove her from her job duties;
(3) in May 2020, she was assigned a new supervisor who began to micromanage
her and enact a series of changes, to include removing some of her supervisory
responsibilities, informing her that she had certain responsibilities only “on
paper,” and “intending to micromanage and negatively impact” her duties with
the U.S. Army Reserves. IAF, Tab 9 at 7-9, Tab 13 at 4-8. With her filings, the
appellant provided a copy of a February 18, 2021 close-out letter from the Office
of Special Counsel (OSC). IAF, Tab 9 at 12-13. In this letter, OSC indicated that
it was terminating its inquiry into the appellant’s allegations that agency officials
had given her a rating of “3” on a performance evaluation, 3 failed to provide her
with meaningful supervisory responsibilities, and significantly changed her duties
and working conditions after she emailed agency supervisors regarding an
incident involving a nurse’s improper use of medical equipment. Id. at 12.
¶4 Without holding the appellant’s requested hearing, the administrative judge
issued an initial decision dismissing the appeal for lack of jurisdiction. IAF,
Tab 15, Initial Decision (ID) at 1, 7. In so doing, the administrative judge
reasoned that the appellant had identified five potential personnel actions: (1) the
agency’s purported failure to discipline another employee; (2) the agency having
rated appellant as “fully successful” in lieu of “outstanding” in one element of her
performance appraisal 4; (3) the agency changing the appellant’s duties and job
title; (4) the agency initiating an investigation into the appellant; and (5) the
agency attempting to influence the appellant’s duties with the U.S. Army
Reserves. ID at 4-7. He concluded, however, that none of these alleged actions
3
Documentation provided by the appellant indicated that a rating of “3” equates to
“fully successful.” IAF, Tab 13 at 45.
4
The initial decision erroneously indicated that the appellant received the subject rating
in 2018 in lieu of in 2020. ID at 5.
4
amounted to “colorable personnel actions for which corrective action could be
granted” and, therefore, that the Board lacks jurisdiction over the matter. ID at 7.
¶5 The appellant has filed a petition for review, and the agency has filed a
response. Petition for Review File, Tabs 1, 3.
DISCUSSION OF ARGUMENTS ON REVIEW
¶6 To establish jurisdiction in a typical IRA appeal, an appellant must show by
preponderant evidence 5 that she exhausted her remedies before OSC and make
nonfrivolous allegations of the following: (1) she made a disclosure described
under 5 U.S.C. § 2302(b)(8) or engaged in a 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). Corthell v. Department of
Homeland Security, 123 M.S.P.R. 417, ¶ 8 (2016). A nonfrivolous allegation is
an assertion that, if proven, could establish the matter at issue. 5 C.F.R.
§ 1201.4(s). The U.S. Court of Appeals for the Federal Circuit has found that, in
the context of an IRA appeal, a nonfrivolous allegation is an allegation of
“sufficient factual matter, accepted as true, to state a claim that is plausible on its
face.” Hessami v. Merit Systems Protection Board, 979 F.3d 1362, 1364, 1369
(Fed. Cir. 2020). Any doubt or ambiguity as to whether the appellant made
nonfrivolous jurisdictional allegations should be resolved in favor of affording
the appellant a hearing. Grimes v. Department of the Navy, 96 M.S.P.R. 595, ¶ 12
(2004).
¶7 For the following reasons, we disagree with the administrative judge’s
conclusion that the appellant failed to establish Board jurisdiction and we remand
the matter for adjudication of the merits.
5
Preponderant evidence is the degree of relevant evidence that a reasonable person,
considering the record as a whole, would accept as sufficient to find that a contested
fact is more likely to be true than untrue. 5 C.F.R. § 1201.4(q).
5
The appellant exhausted her administrative remedies before OSC.
¶8 An appellant must exhaust her administrative remedies by first seeking
corrective action from OSC before seeking corrective action from the Board in an
IRA appeal. 5 U.S.C. § 1214(a)(3). The appellant must provide OSC with a
sufficient basis to pursue an investigation into a whistleblower reprisal claim.
E.g., Mount v. Department of Homeland Security, 937 F.3d 37, 47-48 (1st Cir.
2019); Acha v. Department of Agriculture, 841 F.3d 878, 883-84 (10th Cir. 2016);
Ward v. Merit Systems Protection Board, 981 F.2d 521, 526 (Fed. Cir. 1992);
Tuten v. Department of Justice, 104 M.S.P.R. 271, ¶ 5 (2006), aff’d,
No. 2007-3145, 2007 WL 2914787 (Fed. Cir. Oct. 5, 2007). However, an
appellant is not prohibited from providing a more detailed account before the
Board than she did to OSC. Briley v. National Archives & Records
Administration, 236 F.3d 1373, 1377-78 (Fed. Cir. 2001); see Delgado v. Merit
Systems Protection Board, 880 F.3d 913, 924-26 (7th Cir. 2018). An appellant
may demonstrate exhaustion through, among other things, her initial OSC
complaint or correspondence from OSC. Mason v. Department of Homeland
Security, 116 M.S.P.R. 135, ¶ 8 (2011).
¶9 OSC’s close-out letter in this matter reflects that the appellant alleged to
OSC that agency officials issued her a rating of 3 on her performance evaluation,
failed to provide her with meaningful supervisory responsibilities, and
significantly changed her duties and working conditions after she emailed
supervisors about an incident involving a nurse’s improper use of medical
equipment. IAF, Tab 9 at 12. Thus, we find that the appellant has exhausted her
administrative remedies regarding the allegations we discuss in more detail
below.
The appellant made a nonfrivolous allegation of a protected disclosure under
5 U.S.C. § 2302(b)(8).
¶10 The appellant alleged that, in February 2020, she disclosed to various
agency personnel that an agency nurse improperly permitted agency employees to
6
reuse vacutainer adapters in a laboratory setting. IAF, Tab 9 at 5, Tab 13 at 4.
The appellant also provided to the administrative judge a copy of an email dated
February 12, 2020, wherein she informed numerous agency employees that
“single-use vacutainer adapters” had improperly been reused by medics
conducting blood draws on “over 100 [s]oldiers.” IAF, Tab 13 at 13, 16. In these
emails, the appellant identified a particular nurse as having erroneously informed
agency employees that such reuse was permissible. Id. The appellant also
provided subsequent emails sent amongst agency personnel discussing whether
the reuse of the adaptors had posed a health risk to both patients and staff,
including an email wherein an agency specialist indicated that “[t]he risk is
clearly higher for the healthcare worker” and, although the cross-contamination
risk for the patient was “very low,” it was “not zero.” Id. at 14.
¶11 A protected disclosure is one that an appellant reasonably believes
evidences any violation of any law, rule, or regulation, gross mismanagement, a
gross waste of funds, an abuse of authority, or a substantial and specific danger to
public health and safety. Mudd v. Department of Veterans Affairs, 120 M.S.P.R.
365, ¶ 5 & n.3 (2013). The proper test for determining whether an employee had
a reasonable belief that her disclosures were protected is whether a disinterested
observer with knowledge of the essential facts known to and readily ascertainable
by the employee could reasonably conclude that the actions evidenced a ny of the
conditions set forth in 5 U.S.C. § 2302(b)(8). Id., ¶ 5.
¶12 We find the appellant made a nonfrivolous allegation of a protected
disclosure under 5 U.S.C. § 2302(b)(8). Indeed, a disinterested observer could
reasonably conclude that the matters disclosed by the appellant, through her
February 12, 2020 email regarding vacutainer adapter reuse, disclosed a
substantial and specific danger to public health and safety. See Chavez v.
Department of Veterans Affairs, 120 M.S.P.R. 285, ¶¶ 19-20 (2013) (concluding
that an appellant’s disclosure that medical carts were not properly cleaned and
restocked constituted a protected disclosure of a substantial and specific danger to
7
public health and safety); see also Smith v. Department of Agriculture,
64 M.S.P.R. 46, 52-54 (1994) (concluding that the appellant had made a protected
disclosure when he informed the Occupational Safety and Health Administration
that he believed agency employees were using inappropriate safety equipment in a
laboratory setting).
The appellant made a nonfrivolous allegation of a personnel action insofar as she
alleged that the agency lowered her performance rating in one element .
¶13 The definition of “personnel action” includes a performance evaluation.
5 U.S.C. § 2302(a)(2)(A)(viii). The administrative judge considered whether the
appellant’s claim that the agency had lowered her performance rating to “fully
successful” in lieu of “outstanding” in one element of her performance appra isal
constituted a personnel action. ID at 5-6. He found, however, that it did not
because the Board “has traditionally looked to the overall performance evaluation
as the relevant personnel action for purposes of an IRA appeal.” ID at 5. He
reasoned that, despite the appellant’s lower rating in the subject element, her
“overall performance evaluation was rated as outstanding, the highest level.” Id.He concluded that “advancing a challenge to a superlative rating of outstanding
[would be] facially inconsistent with the remedial purposes of the Whistleblower
Protection Act, which is designed to encourage employees to pursue remedies for
alleged wrongdoing and discourage employing agencies from taking such actions,
thus enhancing good government.” Id. We disagree.
¶14 The statutory provision identifying a performance evaluation as a personnel
action, i.e., 5 U.S.C. § 2302(a)(2)(A)(viii), contains no qualifying language
requiring that the contested performance evaluation have a less-than-superlative
overall rating. See Rumsey v. Department of Justice, 120 M.S.P.R. 259, ¶ 16
(2013) (reasoning that the administrative judge had erred in finding that the
appellant’s 2008 performance appraisal did not constitute a personnel action when
the appellant received the same rating as she had in 2007 because the statutory
language did not contain any qualifying language requiring that an appellant’s
8
rating decline in order to constitute a personnel action). Moreover, we disagree
with the administrative judge’s conclusion that challenging an undesirable rating
in a single element of an employee’s formal performance evaluation is contrary to
the remedial purposes of the statute; indeed, such a rating could have practical
consequences for an employee. See Keefer v. Department of Agriculture,
82 M.S.P.R. 687, ¶ 13 (1999) (explaining that the Whistleblower Protection Act is
a remedial statute intended to improve protections for Federal employees and
should be construed to effectuate that purpose). For instance, were the appellant
to apply for a promotion or for another position altogether, she could conceivably
be competing against another candidate or candidates with an “outstanding”
rating in all elements and, therefore, be placed at a disadvantage. Accordingly,
we find that the appellant made a nonfrivolous of a personnel action under
5 U.S.C. § 2302(a)(2)(A)(viii).
The appellant made a nonfrivolous allegation of a personnel action insofar as she
made a nonfrivolous allegation that the agency significantly changed her working
conditions.
¶15 The definition of “personnel action” also includes a “significant change in
duties, responsibilities, or working conditions.” 5 U.S.C. § 2302(a)(2)(A)(xii).
The administrative judge considered whether the appellant’s allegations amounted
to such a personnel action but concluded that they did not because the record was
devoid of sufficient “elaboration or explanation” as to how the agency’s alleged
actions constituted significant changes in duties or working conditions. ID at 6.
We disagree.
¶16 The Board has found that, although “significant change” should be
interpreted broadly to include harassment and discrimination that could have a
chilling effect on whistleblowing or otherwise undermine the merit system, only
agency actions that, individually or collectively, have practical consequence for
an appellant constitute a personnel action covered by section 2302(a)( 2)(A)(xii).
Skarada v. Department of Veterans Affairs, 2022 MSPB 17, ¶¶ 15-16. To this
9
end, the agency actions must have a significant effect on the overall nature and
quality of the appellant’s working conditions, duties, or responsibilities. Id.¶17 Here, the appellant alleged that, in May 2020, approximately 3 months after
her disclosure regarding adapter reuse, she was purposefully excluded from a
meeting regarding medical readiness, which is her area of expertise. IAF, Tab 9
at 7. She also alleged that, during this same timeframe, she was assigned a new
supervisor. Id. at 8. She asserted that, although her position required her to
serve as the Chief of Soldier Medical Readiness, her new supervisor informed he r
that she was “chief on paper” only and began to micromanage her by requiring
her to place “all task [sic] on a calendar and shared [sic] with the group,” and
precluded her from supervising the nurse who was the subject of her disclosure. 6
Id. at 7-8. We find that these contentions collectively amount to a nonfrivolous
allegation of a significant change in working conditions. See Skarada,
2022 MSPB 17, ¶¶ 17-18 (concluding that the appellant made a nonfrivolous
allegation that the agency had subjected him to a significant change in duties,
responsibilities, or working conditions when he alleged , among other things, that
supervisory personnel both directed him to stop attending leadership meetings and
performing certain extra duties and subjected him to multiple investigations).
6
The appellant also alleged that the agency had, in retaliation for her disclosure,
(1) subjected her to an investigation, and (2) interfered with her duties with the U.S.
Army Reserves. IAF, Tab 9 at 7-9. Although a retaliatory investigation is not specified
in the definition of “personnel action” at 5 U.S.C. § 2302(a)(2)(A), such an
investigation might contribute towards a significant change in working conditions as
defined at 5 U.S.C. § 2302(a)(2)(A)(xii). Sistek v. Department of Veterans Affairs,
955 F.3d 948, 955 (Fed. Cir. 2020); Spivey v. Department of Justice, 2022 MSPB 24,
¶ 10. Thus, on remand, the administrative judge shall consider the appellant’s
investigation-related allegations in assessing the subject personnel action. Moreover,
although the nature of the appellant’s claims regarding her duties with the U.S. Army
Reserves is unclear, to the extent any purported interference impacted the appellant’s
civilian Federal employment, such interference could similarly contribute towards a
significant change in her working conditions.
10
The appellant satisfied the contributing factor jurisdictional criterion via the
knowledge/timing test.
¶18 An appellant’s protected activity is a contributing factor if it in any way
affects an agency’s decision to take, or fail to take, a personnel action. See
Dorney v. Department of the Army, 117 M.S.P.R. 480, ¶ 14 (2012). One way to
satisfy the contributing factor criterion is the knowledge/timing test. Wadhwa v.
Department of Veterans Affairs, 110 M.S.P.R. 615, ¶ 12, aff’d, 353 F. App’x 435(Fed. Cir. 2009). Under this test, an appellant can prove the contributing factor
element through evidence showing that the official taking the personnel action
knew of her protected 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.; see 5 U.S.C. § 1221(e)(1).
¶19 We find that the appellant made nonfrivolous allegations that, if proven,
would satisfy the contributing factor criterion via the knowledge/timing test. As
set forth above, she alleged that, on February 12, 2020, she made a protected
disclosure via email to numerous agency management officials, including a
management official with whom the subject nurse had a “personal relationship.”
IAF, Tab 9 at 5. She alleged that this official was the individual who sought to
exclude her from a May 2020 meeting. Id. at 7. She also alleged that this official
“briefed” the supervisor to whom she was reassigned in May 2020. Id. at 8. She
further asserted that this official, along with another official to whom she sent the
subject email, attempted to make her “the subject of an [i]nvestigation” in an
effort to thwart her from performing her job duties. Id. at 7-8. Moreover, the
appellant submitted documents reflecting that both the rating official and the
higher-level reviewer of the appellant’s April 29, 2020 “rating of record” were
recipients of the appellant’s February 12, 2020 email. IAF, Tab 13 at 13, 42.
Insofar as the appellant has nonfrivolously alleged both (1) a close temporal
proximity, i.e., approximately 3 months, between her protected disclosure and the
two personnel actions at issue, and (2) that the relevant agency management
11
officials had knowledge of the same, we find that she met her burden at this
jurisdictional stage regarding the contributing factor element. See Wadhwa,
110 M.S.P.R. 615, ¶ 12 (explaining that, if an appellant satisfies the
knowledge/timing test, the appellant has demonstrated that a protected disclosure
was a contributing factor in a personnel action); see also Berkowitz v. Department
of the Treasury, 94 M.S.P.R. 658, ¶ 12 (2003) (finding that the appellant made a
nonfrivolous allegation that the disclosure was a contributing factor in a
personnel action that occurred only 5 months after the disclosure).
¶20 Accordingly, we find that the appellant made a nonfrivolous alle gation that
she made a protected disclosure under 5 U.S.C. § 2302(b)(8) that contributed to
both (1) her April 29, 2020 performance evaluation and (2) a significant change
in her duties, responsibilities, or working conditions. Thus, we find that she is
entitled to her requested hearing and a decision on the merits of her appeal. IAF,
Tab 1 at 2; see Salerno v. Department of the Interior, 123 M.S.P.R. 230, ¶ 5
(2016). Prior to conducting a hearing, the administrative judge shall afford the
parties a reasonable opportunity to complete discovery and order the parties to
submit any other evidence that he deems necessary to adjudicate the merits of this
appeal. See Lewis v. Department of Defense, 123 M.S.P.R. 255, ¶ 14 (2016).
ORDER
¶21 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: /s/ for
Jennifer Everling
Acting Clerk of the Board
Washington, D.C.