John Edwards v. Department of Labor , 2022 MSPB 9 ( 2022 )

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
2022 MSPB 9Docket No. DC-1221-16-0227-W-1
John S. Edwards,
Appellant,
v.
Department of Labor,
Agency.
May 5, 2022
Peter Broida, Esquire, Arlington, Virginia, for the appellant.
Elizabeth L. Beason, Esquire and Rolando Valdez, Esquire, Washington,
D.C., for the agency.
BEFORE
Raymond A. Limon, Vice Chair
Tristan L. Leavitt, Member
OPINION AND ORDER
¶1 The appellant has filed a petition for review of an initial decision that
dismissed his individual right of action (IRA) appeal for lack of jurisdiction. For
the reasons set forth below, we DENY the petition for review and DISMISS the
appeal for lack of jurisdiction, finding that the appellant did not make a protected
disclosure under 5 U.S.C. § 2302(b)(8), or engage in protected activity under
5 U.S.C. § 2302(b)(9)(A)(i) or 5 U.S.C. § 2302(b)(9)(B).
2
BACKGROUND
¶2 The essential facts, as set forth in the initial decision and not contested on
review, are that the appellant was a GS-15 Deputy Director of the agency’s
Employment and Training Administration, Office of Information Systems and
Technology, when he verbally “disclosed and protested” to his supervisors their
alleged failure to provide opportunities and assignments to African American
employees because of their race. Initial Appeal File (IAF), Tab 14, Initial
Decision (ID) at 1-2; IAF, Tab 5 at 5. He also disclosed to his supervisors their
alleged discrimination when they refused to promote one of the appellant ’s
subordinates to a vacant supervisory position for which he had competed,
allegedly because of the subordinate’s race (African American). ID at 2; IAF,
Tab 5 at 6. At about the same time, the appellant filed complaints of systemic
race discrimination against African American employees under the agency’s
Harassing Conduct Policy and with the agency’s Equal Employment Opportunity
(EEO) Office. ID at 2; IAF, Tab 5 at 5-6. Within a few months after these
actions, the agency reassigned the appellant to a nonsupervisory GS-15 position
and posted his former position for recruitment. ID at 2; IAF, Tab 5 at 6, Tab 11
at 5.
¶3 The appellant filed a complaint with the Office of Special Counsel (OSC)
alleging that his reassignment was in reprisal for his disclosures. IAF, Tab 1
at 20-49. After OSC closed its investigation, the appellant filed a timely IRA
appeal alleging, among other things, that the Board had jurisdiction over his
appeal pursuant to 5 U.S.C. §§ 2302(b)(8) and 2302(b)(9). IAF, Tab 1 at 8-12,
16-17.
¶4 After acknowledging receipt of the appeal, IAF, Tab 2, the administrative
judge issued an order noting that there was a question regarding whether the
Board had jurisdiction over the appeal, setting forth the jurisdictional burdens of
proof, and ordering the appellant to respond. IAF, Tab 3. In response, the
appellant argued that his statements and complaints regarding race discrimination
3
constituted disclosures of an abuse of authority protected under 5 U.S.C.
§ 2302(b)(8) and lawful assistance to African American employees protected
under 5 U.S.C. § 2302(b)(9)(B). IAF, Tab 5 at 25-26.
¶5 In her initial decision, the administrative judge found that the appellant
exhausted his remedies before OSC. ID at 6. She then found that the appellant
failed to make a nonfrivolous allegation that his statements or complaints were
protected under either 5 U.S.C. § 2302(b)(8) or § 2302(b)(9)(B). ID at 7-11.
Specifically, the administrative judge found that the appellant’s allegations of
discrimination did not constitute disclosures of an abuse of authority protected
under 5 U.S.C. § 2302(b)(8) because the allegations related solely to
discrimination matters covered by 5 U.S.C. § 2302(b)(1), 1 and such matters
are not covered by section 2302(b)(8). ID at 8-9. The administrative judge noted
that one Board decision, Armstrong v. Department of Justice, 107 M.S.P.R. 375,
¶ 17 (2007), held that the Board has IRA jurisdiction under section 2308(b)(8)
over a disclosure regarding an EEO violation, but she found that it was
inconsistent with the weight of Board authority, and she did not follow it. ID
at 10 n.2. She found further that the appellant’s EEO complaint regarding
discrimination against other agency employees was covered by 5 U.S.C.
§ 2302(b)(9)(A)(ii) and did not fall within the Board’s jurisdiction. ID at 9-10.
¶6 The administrative judge also found that the appellant’s support for African
American employees did not constitute the giving of lawful assistance in their
exercising any right regarding any appeal, complaint, or grievance and, therefore,
the appellant failed to make a nonfrivolous allegation that his actions were
protected under 5 U.S.C. § 2302(b)(9)(B). ID at 10-11. The administrative judge
1
Section 2302(b)(1) provides, in relevant part, that “[a]ny employee who has authority
to take, direct others to take, recommend, or approve any personnel action, shall not,
with respect to such authority . . . discriminate for or against any employee or applicant
for employment” on the basis of race, as prohibited under section 717 of the Civil
Rights Act of 1964.
4
observed that the appellant did not allege that his coworkers engaged in protected
activity. ID at 11.
¶7 In his petition for review, the appellant argues that the administrative judge
erred in failing to follow the precedent set forth in Armstrong, 107 M.S.P.R. 375,
and Kinan v. Department of Defense, 87 M.S.P.R. 561 (2001). Petition for
Review (PFR) File, Tab 1 at 12-13. The appellant also argues that under the
Whistleblower Protection Enhancement Act (WPEA), Pub. L. No. 112-199,
126 Stat. 1465 (2012), his disclosures of violations of title VII of the Civil Rights
Act of 1964 and his support for his colleagues are protected. PFR File, Tab 1
at 15-20. The agency has responded in opposition to the petition for review. PFR
File, Tab 5.
ANALYSIS
¶8 The Board has jurisdiction over an IRA appeal if the appellant exhausts his
administrative remedies before OSC and makes nonfrivolous allegati ons that:
(1) he 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). 2 Linder v. Department of Justice, 122 M.S.P.R. 14, ¶ 6 (2014); see
2
As argued by the appellant on review, the administrative judge stated in her initial
decision that the appellant bears the burden of establishing by preponderant evidence
that the Board has jurisdiction over his appeal. PFR File, Tab 1 at 14; ID at 4.
However, in the next paragraph of the decision, the administrative judge set forth the
correct jurisdictional standard for an IRA appeal in which an appellant alleges a
violation of 5 U.S.C. § 2302(b)(8). ID at 4. Moreover, the administrative judge applied
the correct jurisdictional standard in her analysis of the evidence. To the extent that the
administrative judge erred in misstating at one point in the initial decision that the
appellant must establish jurisdiction by preponderant evidence, her error did not
prejudice the appellant’s substantive rights and provides no basis to reverse the initial
decision. Doe v. Department of Justice, 118 M.S.P.R. 434, ¶ 41 (2012) (stating that an
error that did not prejudice the appellant’s substantive rights provides no basis to
5
5 U.S.C. §§ 1214(a)(3), 1221(e)(1). Here, the appellant exhausted his
administrative remedies before OSC regarding his allegations that: (1) in
violation of section 2302(b)(8), the agency retaliated against him for his alleged
protected disclosures regarding his supervisors’ purported failure to provide
opportunities and assignments to African American employees, and the alleged
refusal to promote his subordinate to a vacant supervisory position because of the
subordinate’s race; (2) in violation of section 2302(b)(9)(A)(i), the agency
retaliated against him for his protected activity of filing a complaint of the
agency’s systemic race discrimination against African American employees under
the agency’s Harassing Conduct Policy and with the agency’s EEO Office; and
(3) in violation of section 2302(b)(9)(B), the agency retaliated against him for the
protected activity of assisting another employee to exercise a right protected by
section 2302(b)(9)(A). IAF, Tab 1 at 10-12, 24-49, Tab 5 at 29.
¶9 Thus, at issue in this appeal is whether the appellant made a nonfrivolous
allegation that his disclosures and activity were protected under
sections 2302(b)(8), 2302(b)(9)(A), and/or 2302(b)(9)(B). As explained below,
while the appellant appears to have been admirably motivated in seeking to
remedy perceived discrimination in his agency, we find that he failed to meet his
jurisdictional burden, and that the proper forum for his allegation of retaliation
for filing an EEO complaint is with the Equal Employment Opportunity
Commission (EEOC).
reverse the initial decision); Panter v. Department of the Air Force, 22 M.S.P.R. 281,
282 (1984) (same).
6
The appellant’s disclosures are not within the Board’s jurisdiction under 5 U.S.C.
§ 2302(b)(8).
(1) Board and circuit courts’ precedent have generally excluded EEO
reprisal from consideration under 5 U.S.C. § 2302(b)(8).
¶10 Board precedent has long held that reprisal for filing an EEO complaint is a
matter relating solely to discrimination and is not protected by 5 U.S.C.
§ 2302(b)(8). See Williams v. Department of Defense, 46 M.S.P.R. 549, 554
(1991). A rationale for the finding in Williams was the 1987 Congressional
testimony of the Special Counsel regarding a previous, unenacted version of the
Whistleblower Protection Act 3 (WPA) expressing concern about granting IRA
appeal rights to employees who also had the EEOC as an avenue to seek redress.
Williams, 46 M.S.P.R. at 553-54; Whistleblower Protection Act of 1987: Hearings
Before the Subcomm. on Fed. Services, Post Off., & Civ. Serv. of the Comm. on
Governmental Affairs, U.S. Senate, 100th Cong. 138-39, 379-80 (1987). 4
¶11 In Von Kelsch v. Department of Labor, 59 M.S.P.R. 503, 505-06 (1993),
overruled on other grounds by Thomas v. Department of the Treasury,
77 M.S.P.R. 224, 236 n.9 (1998), overruled by Ganski v. Department of the
Interior, 86 M.S.P.R. 32 (2000), the employee filed a claim for Federal
Employees Compensation Act (FECA) benefits in which she alleged the
purported use of sexually offensive language directed at her as the cause of her
injury and then filed an IRA appeal asserting reprisal for whistleblowing and
3
The Whistleblower Protection Act was enacted into law in 1989. Pub. L. No. 101-12,
103 Stat 16 (1989).
4
In Ganski v. Department of the Interior, 86 M.S.P.R. 32, ¶ 12 n.2 (2000), the Board
held that it may rely on legislative history from the 100th Congress as an aid in
interpreting the WPA, when the materials relate to language of bills that did not change
before passage in the 101st Congress. In the instant matter, the materials relate to a
principle—excluding title VII-related matters from the whistleblower protection
statute—that did not change in the ultimately enacted law.
7
exercising an appeal right. She also filed an EEO complaint regarding the same
incident. Von Kelsch, 59 M.S.P.R. at 506.
¶12 While the Board found that it did not lack jurisdiction to hear and decide an
IRA appeal simply because the disclosure was made in a FECA claim, the nature
of Ms. Von Kelsch’s disclosure of a purported title VII violation divested the
Board of jurisdiction. Id. at 508-09. The Board held that the WPA’s legislative
history and structure indicate Congress’ intent not to extend IRA appeal
protection under section 2302(b)(8) for employees who allege that their agencies
retaliated against them after they challenged practices made unlawful by title VII.
Von Kelsch, 59 M.S.P.R. at 509. The Board further stated that, in creating an
IRA appeal right under section 2302(b)(8), Congress expressed its intent to
benefit those employees whose “only route of appeal [under the then -existing
statute] is the OSC.” Von Kelsch, 59 M.S.P.R. at 509 (citing S. Rep. No. 100-413
at 32 (1988)) (brackets in original).
¶13 Further, in Redschlag v. Department of the Army, 89 M.S.P.R. 589, ¶ 84
(2001), the Board held that it would not consider the appellant’s purported
disclosures that involved alleged discrimination or reprisal for engag ing in
activities protected by title VII. The Board found that, even if the disclosures
were made outside of the grievance or EEO processes, such disclosures did not
constitute protected whistleblower activity under 5 U.S.C. § 2302(b)(8) because
they pertain to matters of discrimination covered by 5 U.S.C. § 2302(b)(1)(A).
Id. Thus, Ms. Redschlag’s disclosures of title VII-related matters—that she
purportedly made to her Congressman, the agency’s Criminal Investigation
Division, and while participating in the Secretary of the Army’s Focus Panel on
Sexual Harassment—were not protected under section 2302(b)(8). Id. The
decision in Redschlag cited the Board’s previous decision in Nogales v.
Department of the Treasury, 63 M.S.P.R. 460, 464 (1994), in which the Board
stated that disclosures about discrimination based on sex, race, color, religion, or
national origin are excluded from the coverage of section 2302(b)(8) because they
8
are covered by 5 U.S.C. § 2302(b)(1)(A) and that such disclosures are not within
the purview of the Board’s IRA jurisdiction regardless of the channels through
which the employee makes the disclosure.
¶14 The Board’s decisions are consistent with the decisions of the U.S. Court of
Appeals for the Federal Circuit (Federal Circuit). In Spruill v. Merit Systems
Protection Board, 978 F.2d 679, 680-81 (Fed. Cir. 1992), the employee filed an
IRA appeal asserting that a 3-day suspension was taken in reprisal for his having
filed a discrimination complaint with the EEOC. Like the Board, the court looked
to the WPA’s legislative history to support its finding that the EEO process was
the appropriate forum for an employee alleging reprisal for filing a discrimination
complaint. Id. at 690-92. The court observed that the division adopted by
Congress, among other things, “avoids potentially conflicting procedures or
outcomes,” and “acknowledges the EEOC role as an expert agency in
discrimination matters.” Id. at 692. In Serrao v. Merit Systems Protection Board,
95 F.3d 1569, 1575 (Fed. Cir. 1996), the court restated the holding of its previous
decision in Spruill that “the filing of a complaint with the [EEOC], in which an
employee alleged discriminatory treatment by an agency in violation of title VII
of the Civil Rights of 1964, did not constitute a whistleblowing disclosure within
the meaning of section 2302(b)(8), but instead, was a nonwhistleblowing
disclosure under section 2302(b)(9)(A)” (citing Spruill, 978 F.2d at 692). Most
recently, in Young v. Merit Systems Protection Board, 961 F.3d 1323, 1327-28
(Fed. Cir. 2020), the court reiterated that discrimination claims may not be raised
in an IRA appeal, because IRA appeals are limited to alleged violations of
whistleblower protection statutes.
9
¶15 When confronted with the issue of whether a title VII matter is within the
scope of the whistleblower protection statutes, the regional circuits that have
addressed the issue have agreed with the Federal Circuit. 5
¶16 The U.S. Court of Appeals for the Sixth Circuit affirmed a decision by the
U.S. District Court for the Western District of Kentucky which determined that an
employee’s claims of sexual harassment, race discrimination, and associated
retaliation were not appropriately categorized as whistleblower claims, holding
that “when dealing with issues of employment discrimination, the WPA/WPEA is
displaced and preempted by [t]itle VII.” Carrethers v. Esper, No. 3:16-CV-62-
CRS, 2019 WL 2330894, *1, 5 (W.D. Ky. May 31, 2019), aff’d sub nom.
Carrethers v. McCarthy, 817 F. App’x 88 (6th Cir. 2020). 6 Similarly, in a case
before the U.S. Court of Appeals for the Seventh Circuit, an employee attempted
to contest adverse actions based on his religion and national origin within the
context of a WPA claim. The court held that “for [F]ederal employees claiming
discrimination on the basis of religion and national origin (as well as reprisal for
complaining about discrimination), [t]itle VII is the exclusive judicial remedy.”
Malekpour v. Chao, 682 F. App’x 471, 475-76 (7th Cir. 2017). The U.S. Court of
Appeals for the District of Columbia Circuit also has agreed with the “Federal
Circuit’s longstanding precedent, which Congress has been awa re of but has
never overturned,” that “employees who specifically complain about
5
Historically, the Board has been bound by the precedent of the U.S. Court of Appeals
for the Federal Circuit on this issue. However, as a result of changes initiated by the
Whistleblower Protection Enhancement Act of 2012 (Pub. L. No. 112-199, § 108, 126
Stat. 1465, 1469 (2012)), extended for 3 years (All Circuit Review Extension Act, Pub.
L. No. 113-170, § 2, 128 Stat. 1894 (2014)), and eventually made permanent (All
Circuit Review Act, Pub. L. No. 115-195, 132 Stat. 1510 (2018)), we must consider this
issue with the view that the appellant may seek review of this decision before any
appropriate court of appeal. See 5 U.S.C. § 7703(b)(1)(B).
6
The Board may follow a nonprecedential decision of a court when it finds its
reasoning persuasive, as we do here. Morris v. Department of the Navy, 123 M.S.P.R.
662, ¶ 13 n.9 (2016).
10
discrimination against them (or retaliation against them for having filed a
discrimination claim) are not covered by the general whistleblower provisions and
thus fall outside the Board’s whistleblower jurisdiction.” Coulibaly v. Merit
Systems Protection Board, 709 F. App’x 9, 10 (D.C. Cir. 2017). Further, prior to
the passage of all circuit review, the U.S. Court of Appeals for the Third Circuit
concluded that, while reprisal for EEO activity can form the basis of a title VII
claim, it “generally does not encompass whistleblowing activity, which usually
involves disclosures outside established procedures.” Fleeger v. Principi, 221 F.
App’x 111, 117 (3d Cir. 2007) (citing Spruill v. Merit Systems Protection Board,
978 F.2d 679 (Fed. Cir. 1992)).
¶17 In addition to finding that allegations of discrimination in violation of
title VII cannot be brought under the whistleblower protection statutes, courts
have also found that the reverse is true; allegations of reprisal for whistleblowing
cannot be brought under title VII. See Davis v. James, 597 F. App’x 983, 987
(10th Cir. 2015) (finding that the plaintiff failed to establish that she opposed
conduct prohibited by title VII because she alleged in her EEO complaint that she
was actually retaliated against for whistleblowing about timecard fraud ); see also
Jamil v. Department of Defense, 910 F.2d 1203, 1207 (4th Cir. 1990) (explaining
that title VII is not a general “bad acts” statute, and “only addresses
discrimination on the basis of race, sex, religion, and national origin, not
discrimination for whistleblowing”). Indeed, courts have long adopted the
proposition that claims of discrimination in Federal employment are to be
addressed solely through title VII. See Brown v. General Services
Administration, 425 U.S. 820, 835 (1976) (stating that title VII “provides the
exclusive judicial remedy for claims of discrimination in [F]ederal employment”);
see also Pretlow v. Garrison, 420 F. App’x 798, 801 (10th Cir. 2011) (explaining
that “[i]nsofar as [a Federal employee] complains of discrimination and
associated retaliatory conduct, his exclusive remedy is provided by [t]itle VII”);
Mlynczak v. Bodman, 442 F.3d 1050, 1057 (7th Cir. 2006) (referring to title VII
11
as the “exclusive judicial remedy for claims of discrimination in [F]ederal
employment”). Thus, it is clear that separate remedies exist for redress of claims
of discrimination and claims of reprisal for whistleblowing , and that claims must
be brought under the appropriate statutory scheme. This further supports the
conclusion that allegations of discrimination may not be brought under the
whistleblower protection statutes.
(2) The Board’s decisions in Armstrong and Kinan are overruled.
¶18 In Armstrong, 107 M.S.P.R. 375, ¶ 17, the case referenced by the appellant
in his petition for review, the employee, among other things, disclosed to an
Office of Inspector General investigator that none of the African American
employees in the office had been afforded the opportunity to work on an
assignment that was often an avenue to promotion. Thus, his disclosure related to
purported violations of title VII. The Board agreed with the administrative judge
that Mr. Armstrong’s disclosure evidenced a violation of law, rule, or regulation
or an abuse of authority. Id. The decision failed to discuss or even acknowledge
the Board and court precedent set forth above regarding the scope of the coverage
of 5 U.S.C. § 2302(b)(8), and provided no rationale for its departure from
established precedent. Armstrong, 107 M.S.P.R. 375, ¶ 17.
¶19 In Kinan, 87 M.S.P.R. 561, ¶¶ 3-7, which the appellant also cited in his
petition for review, the employee alleged that his employing agency first detailed
and then reassigned him in reprisal for his disclosures that agency officials
refused to hire African Americans, failed to take corrective action in a sexual
harassment case, and retaliated against him for opposing his supervisor ’s
discriminatory practices. The Board agreed with the administrative judge that
corrective action was not warranted in the Board appeal because the agency
established by clear and convincing evidence that it would have taken the same
personnel action absent the protected disclosures, but the Board specifically
addressed whether Mr. Kinan’s disclosures were protected and whether he
established that one or more of the disclosures was a contributing factor to the
12
personnel action. Id., ¶¶ 9-10. In addressing whether the disclosures were
protected, the Board explained that it found without merit the agency’s argument
that the disclosures were not protected under 5 U.S.C. § 2302(b)(8) because they
related to EEO and grievance matters under 5 U.S.C. § 2302(b)(9). Id., ¶ 13 n.2.
The Board reasoned that Mr. Kinan did not file an EEO complaint on his own
behalf, but complained to agency management about broader concerns, and thus,
his disclosures fell under 5 U.S.C. § 2302(b)(8). Id. As in Armstrong, however,
the Kinan decision failed to discuss or even acknowledge the Board and court
precedent set forth above regarding the scope of the coverag e of 5 U.S.C.
§ 2302(b)(8), and the reasoning the Board offered was inconsistent with
established precedent. 7
¶20 We cannot reconcile the decisions in Armstrong and Kinan with the weight
and reasoning of the Board and court precedent discussed above. Accordingly,
we overrule Armstrong and Kinan to the extent that they found that alleged
reprisal for opposition to practices made unlawful by title VII constitutes a
protected disclosure under section 2302(b)(8).
(3) The WPEA does not extend the coverage of the whistleblower protection
statutes to title VII-related matters.
¶21 The appellant argues on review that, under the WPEA, the scope of the
whistleblower protection statutes was expanded to include allegations of
wrongdoing that fall within the purview of title VII. PFR File, Tab 1 at 15-20.
To bolster this argument, the appellant cites the WPEA’s legislative history,
7
In support of the holding, the Board in Kinan cited the Federal Circuit’s decision in
Ellison v. Merit Systems Protection Board, 7 F.3d 1031, 1035 (Fed. Cir. 1993), for the
proposition that matters that could have been asserted in a 5 U.S.C. § 2302(b)(9)
proceeding do not lose 5 U.S.C. § 2302(b)(8) protection as long as they are raised
outside of it as well. Kinan, 87 M.S.P.R. 561, ¶ 13 n.2. The decision in Ellison is
inapposite to the issue at hand as the appellant in that case did not file an EEO
complaint or engage in activity that could fall within the purview of title VII. Ellison,
7 F.3d at 1033-36.
13
which generally supports broadly interpreting the statutory scheme’s
protections. Id.¶22 We agree that Congress intended the coverage of the whistleblower
protection statutes to be broad. Nevertheless, the coverage is not boundless.
Nothing in the statute or legislative history of the WPEA addresses Williams,
Spruill, or their progeny. Thus, despite expanding the scope of whistleblower
protection in other ways, nothing suggests that the WPEA altered the
long-standing administrative and judicial interpretation that title VII-related
claims are excluded from protection under the whistleblower protection statutes.
Moreover, following the enactment of the WPEA, the circuit courts have
reaffirmed that this interpretation is still controlling. 8 See Young, 961 F.3d
at 1327-28; Coulibaly, 709 F. App’x at 10; Malekpour, 682 F. App’x at 475-75.
¶23 To be clear, we strongly condemn managers taking personnel actions in
reprisal for engaging in any protected activity, including alleging violations of
title VII. Congress has not left such employees without recourse. Rather, they
may seek redress under title VII, which is enforced by the EEOC. Courts have
interpreted the anti-retaliation provision of title VII as providing broad protection
to those who raise title VII violations. See, e.g., Ray v. Ropes & Gray, LLP,
799 F.3d 99, 107-08 (1st Cir. 2015); Hashimoto v. Dalton, 118 F.3d 671, 680 (9th
Cir. 1997); see also Crawford v. Metropolitan Government of Nashville &
Davidson County, Tennessee, 555 U.S. 271, 276 (2009).
8
We have considered whether other statutes enacted since the WPEA became law cast
doubt on the interpretation and find that none do. See, e.g., National Defense
Authorization Act of 2018, Pub. L. No. 115-91, 131 Stat. 1283 (2017); Dr. Chris
Kirkpatrick Whistleblower Protection Act of 2017, Pub. L. No. 115-73, 131 Stat. 1235
(2017).
14
The appellant failed to show that his complaints to the EEO Office or under the
agency’s Harassing Conduct Policy of systemic race discrimination against
African American employees is protected activity under 5 U.S.C.
§ 2302(b)(9)(A)(i).
¶24 Under 5 U.S.C. § 2302(b)(9)(A), it is a protected activity to exercise “any
appeal, complaint, or grievance right granted by any law, rule, or regulation—
(i) with regard to remedying a violation of [5 U.S.C. § 2302(b)(8)]; or (ii) other
than with regard to remedying a violation of [5 U.S.C. § 2302(b)(8)].” However,
of the two provisions, an employee or applicant for employment may seek
corrective action from the Board only for protected activity under 5 U.S.C.
§ 2302(b)(9)(A)(i). 5 U.S.C. § 1221(a); Mudd v. Department of Veterans Affairs,
120 M.S.P.R. 365, ¶ 7 (2013).
¶25 As explained above, the substance of the appellant’s complaints to the
agency’s EEO Office and under its Harassing Conduct Policy did not concern
remedying an alleged violation of section 2302(b)(8). Rather, he was seeking to
remedy purported reprisal for matters covered by title VII. Therefore, his
complaints to the EEO Office and under the agency’s Harassing Conduct Policy
regarding race discrimination are not within the purview of
section 2302(b)(9)(A)(i), and the Board lacks jurisdiction to consider such
allegations in the context of this IRA appeal. Mudd, 120 M.S.P.R. 365, ¶ 7; see
5 U.S.C. § 1221(a).
The appellant failed to show that the Board has jurisdiction over his IRA appeal
under 5 U.S.C. § 2302(b)(9)(B).
¶26 The WPEA expanded the scope of 5 U.S.C. § 2302(b)(9)(B) to afford the
Board jurisdiction in IRA appeals over allegations of reprisal for “testifying for
or otherwise lawfully assisting any individual in the exercise of any” “appeal,
complaint, or grievance right granted by any law, rule, or regulation.”
WPEA § 101(b)(1)(A); 5 U.S.C. § 2302(b)(9)(A)-(B). On review, the appellant
argues that his disclosures and protests about racial discrimination constituted
“lawful assistance” because “it is a regulatory requirement that employees
15
disclose abuse to appropriate authorities,” and “discrimination, whether against
oneself or others in the workplace, is a form of abuse which, when reported,
deserves all available protection against reprisal.” PFR File, Tab 1 at 11; see
5 C.F.R. § 2635.101(b)(11) (stating that Federal employees “shall disclose waste,
fraud, abuse, and corruption to appropriate authorities”). The appellant also
argues that the right to oppose discriminatory practices “is a fundamental
component of the civil rights laws, and lawful assistance is embodied in the
opposition clause” of the civil rights statutes. PFR File, Tab 1 at 11; see
42 U.S.C. § 2000e-3(a). Finally, he argues that the First Amendment to the
Constitution guarantees the right to petition the Gove rnment for redress of
grievances. PFR File, Tab 1 at 12.
¶27 We are not persuaded by these arguments. The statute provides that the
Board has jurisdiction under section 2302(b)(9)(B) only when the individual for
whom the appellant is testifying or is otherwise lawfully assisting in exercising
“any appeal, complaint, or grievance right granted by any law, rule, or
regulation.” Accordingly, the Board has held that neither testifying on behalf of a
coworker as part of an administrative investigation, nor filing a motion to dismiss
a criminal indictment, were protected under section 2302(b)(9)(B) because these
activities were not the exercise of an appeal, complaint, or grievance right by
another employee, as they did not constitute initial steps toward taking legal
action against the agency for perceived violations of employment rights. 9 Graves
v. Department of Veterans Affairs, 123 M.S.P.R. 434, ¶ 18 (2016); Linder,
122 M.S.P.R. 14, ¶¶ 7-11.
9
As discussed below, Congress has since explicitly protected under 5 U.S.C.
§ 2302(b)(9)(C) cooperating with or disclosing information to “any . . . component
responsible for internal investigation or review.” National Defense Authorization Act
of 2018 § 1097(c)(1)(A).
16
¶28 Here, there is no indication in the record that the appellant’s subordinate,
who purportedly was denied a promotion based on his race, or any of the
employees who allegedly were not afforded opportunities and assignments based
on race, filed any appeal, complaint, or grievance. Accordingly, we find that,
given the scope of the statutory language, there is no basis to conclude that the
appellant’s activities were protected by 5 U.S.C. § 2302(b)(9)(B), and we agree
with the administrative judge that the appellant failed to make a nonfrivolous
allegation regarding this statutory provision.
The amendment to 5 U.S.C. § 2302(b)(9)(C) contained in the National Defense
Authorization Act of 2018 (2018 NDAA) is not retroactive and does not apply to
this appeal.
¶29 Prior to December 12, 2017, the whistleblower protection statutory scheme
provided that “cooperating with or disclosing information to the Inspec tor
General of an agency, or the Special Counsel, in accordance with applicable
provisions of law,” is protected. 5 U.S.C. § 2302(b)(9)(C). Section 1097(c)(1) of
the 2018 NDAA, Pub. L. No. 115-91, 131 Stat. 1283 (2017), amended
section 2302(b)(9)(C) to provide that, in addition to the Inspector General of an
agency or the Special Counsel, a disclosure to “any other component responsible
for internal investigation or review” is also protected.
¶30 Here, as noted above, the appellant made purported disclosures to his
supervisors, the EEO Office, and under the agency’s Harassing Conduct Policy.
ID at 1-2; IAF, Tab 5 at 5-6. All of the events relevant to this appeal occurred
prior to the 2018 NDAA’s enactment. Accordingly, we need not decide whether
the appellant’s disclosures fall within the coverage of the amended
section 2302(b)(9)(C) because, as discussed below, the statutory provision is not
retroactive and thus does not apply to this appeal.
¶31 The proper analytical framework for determining whether a new statute
should be given retroactive effect was set forth by the Supreme Court in
Landgraf v. USI Film Products, 511 U.S. 244, 280 (1994):
17
When a case implicates a [F]ederal statute enacted after the events in
suit, the court’s first task is to determine whether Congress has
expressly prescribed the statute’s proper reach. If Congress has done
so, of course, there is no need to resort to judicial default rules.
When, however, the statute contains no such express command, the
court must determine whether the new statute would have retroactive
effect, i.e., whether it would impair rights a party possessed when he
acted, increase a party’s liability for past conduct, or impose new
duties with respect to transactions already completed. If the statute
would operate retroactively, our traditional presumption teaches that
it does not govern absent clear congressional intent favoring such
a result.
¶32 When Congress intends for statutory language to apply retroactively, it is
capable of doing so very clearly. King v. Department of the Air Force,
119 M.S.P.R. 663, ¶ 9 (2013) (citing Presidio Components, Inc. v. American
Technical Ceramics Corporation, 702 F.3d 1351, 1364-65 (Fed. Cir. 2012)
(giving retroactive effect to amendments enacted in 2011 in light of express
statutory language applying the amendments to “all cas es, without exception, that
are pending on, or commenced on or after, the date of the enactment of this
Act”)). Here, the 2018 NDAA as enacted is silent regarding the retroactivity of
this amendment to the whistleblower protection statute. Thus, applying the first
part of the Landgraf test, we find that Congress has not expressly prescribed the
statute’s proper reach.
¶33 Turning to the second part of the Landgraf test, we find that the 2018
NDAA would increase the agency’s liability for past conduct. As noted above,
when this appeal was filed, it was not a prohibited personnel practice under
5 U.S.C. § 2302(b)(9)(C) to take a personnel action against an employee for
making a disclosure to “any other component responsible for internal
investigation or review.” 10 Thus, to now hold that such conduct, if it occurred
10
Such a disclosure could have been protected if it fell within the coverage of 5 U.S.C.
§ 2302(b)(8).
18
under the facts of this appeal, constituted a prohibited personnel practice, would
increase the agency’s liability. 11 Accordingly, considering the test set forth in
Landgraf, we find no basis for finding that the 2018 NDAA amendment to
5 U.S.C. § 2302(b)(9)(C) is retroactive.
¶34 In sum, while we reiterate that the appellant appears to have been admirably
motivated in seeking to remedy perceived discrimination in his agency, in this
appeal he has failed to meet his burden to make a nonfrivolous allegation that he
engaged in activity protected by sections 2302(b)(8), 2302(b)(9)(A), or
2302(b)(9)(B). Therefore, we conclude that the administrative judge properly
dismissed this IRA appeal for lack of jurisdiction, and that this complaint more
properly belongs before the EEOC under title VII itself.
ORDER
¶35 This is the final decision of the Merit Systems Protection Board in this
appeal. Title 5 of the Code of Federal Regulations, section 1201.113 (5 C.F.R.
§ 1201.113).
NOTICE OF APPEAL RIGHTS 12
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
11
Although this provision was requested by OSC following the Board’s decision in
Graves, 123 M.S.P.R. 434, nothing in the 2018 NDAA, the standalone Office of Special
Counsel Reauthorization Act of 2017 in which the provision first appeared, S. 582,
115th Cong. (2017), or the latter’s bill report indicated that it was intended to clarify an
existing law. Cf. Day v. Department of Homeland Security, 119 M.S.P.R. 589, ¶¶ 10-26
(2013).
12
Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.
19
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your ca se, you
should contact that forum for more information.
(1) Judicial review in general. As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for th e Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
20
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination. This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision—including a disposition of your discrimination
claims—by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board, 582 U.S. ____ , 137 S. Ct. 1975 (2017). If you have a
representative in this case, and your representative receives this decision before
you do, then you must file with the district court no later than 30 calendar days
after your representative receives this decision. If the action involves a claim of
discrimination based on race, color, religion, sex, national origin, or a disabling
condition, you may be entitled to representation by a court-appointed lawyer and
to waiver of any requirement of prepayment of fees, costs, or other security. See
42 U.S.C. § 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx.
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues. 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
21
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012. This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction. 13 The court of appeals must receive your petition for
13
The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
22
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510.
23
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx.
FOR THE BOARD:
/s/
Jennifer Everling
Acting Clerk of the Board
Washington, D.C.