Case: 20-2192 Document: 45 Page: 1 Filed: 06/11/2021
NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
ERIN STERN,
Petitioner
v.
DEPARTMENT OF VETERANS AFFAIRS,
Respondent
______________________
2020-2192
______________________
Petition for review of the Merit Systems Protection
Board in No. NY-1221-19-0193-W-1.
______________________
Decided: June 11, 2021
______________________
ERIC LEE SIEGEL, Kalbian Hagerty LLP, Washington,
DC, for petitioner.
DOMENIQUE GRACE KIRCHNER, Commercial Litigation
Branch, Civil Division, United States Department of Jus-
tice, for respondent. Also represented by BRIAN M.
BOYNTON, ALLISON KIDD-MILLER, ROBERT EDWARD
KIRSCHMAN, JR.
______________________
Before MOORE, Chief Judge, LOURIE and DYK, Circuit
Judges.
PER CURIAM.
Case: 20-2192 Document: 45 Page: 2 Filed: 06/11/2021
2 STERN v. DVA
Erin Stern appeals the Merit System Protection
Board’s (“Board”) dismissal of her hostile work environ-
ment claim for lack of jurisdiction. We affirm.
BACKGROUND
From about 2012 to November 2018, Ms. Stern worked
as a Military Service Coordinator (MSC) with the Depart-
ment of Veterans Affairs (“VA” or “agency”). 1 MSCs are
responsible for the timely development of Integrated Disa-
bility Evaluation System (IDES) compensation claims. The
IDES integrates the Department of Defense’s (DoD) and
VA’s disability processes by creating a single file of medical
examinations that can be used to determine a soldier’s fit-
ness for duty, disability rating, and entitlement to disabil-
ity benefits.
It is undisputed that Ms. Stern generally did not meet
agency deadlines for processing IDES files. Ms. Stern
maintained that the delay was caused by her unwillingness
to improperly process files with incomplete medical rec-
ords. She therefore “engaged in numerous disputes” with
the agency concerning the timeliness of her IDES claims.
J.A. 3. Ms. Stern made protected disclosures to her super-
visor, alleging that Army Physical Evaluation Board Liai-
son Officers, who also work on IDES claims, were violating
regulations governing the IDES process.
In addition to her disclosures relating to the IDES pro-
cess, Ms. Stern made protected disclosures and engaged in
disputes with the agency regarding workplace safety, poor
treatment by coworkers, allegations of sexual harassment
1 On August 1, 2018, Ms. Stern requested a 100% tel-
ework position. Since November 2018, Ms. Stern has held
a modified duty position with the VA that lets her telework
from home. Ms. Stern has challenged the propriety of this
modified duty position in a separate federal district court
proceeding.
Case: 20-2192 Document: 45 Page: 3 Filed: 06/11/2021
STERN v. DVA 3
and sex-based discrimination, changes to her performance
evaluation, and delays in the accommodation of her disa-
bilities. The agency proposed to remove Ms. Stern from
federal service on January 22, 2019, for failure to comply
with supervisor instructions, conduct unbecoming a federal
employee, and unreasonable delay in carrying out instruc-
tions. This proposed removal was rescinded in February
2020.
On January 10, 2019, Ms. Stern filed a whistleblower
complaint with the Office of Special Counsel (“OSC”) alleg-
ing numerous protected disclosures and reprisals. OSC in-
vestigated Ms. Stern’s complaint. While OSC did not act
on Ms. Stern’s complaint as to the allegations involved
here, it granted her the right to appeal. 2 OSC’s letter au-
thorizing appeal listed ten agency actions that Ms. Stern
alleged were taken in reprisal for her protected disclosures
and activities, including the “[c]reation of a hostile work
environment (including conduct that occurred outside your
duty station, such as calling the police to your home to per-
form a wellness check).” J.A. 189.
Ms. Stern filed an individual right of action (“IRA”)
whistleblower appeal before the Board. On September 20,
2019, although determining that some of Ms. Stern’s
claims of retaliation were non-frivolously alleged, the ad-
ministrative judge determined that Ms. Stern had not non-
frivolously alleged that she was subjected to a hostile work
environment in reprisal for protected activity.
The administrative judge held a hearing on the various
claims over which she found jurisdiction. In an initial de-
cision on April 14, 2020, the administrative judge deter-
mined that the agency had demonstrated non-retaliatory
2 Before an employee may pursue an individual right
of action appeal before the Board, the employee must first
seek corrective relief from OSC. See
5 U.S.C. § 1214(a)(3).
Case: 20-2192 Document: 45 Page: 4 Filed: 06/11/2021
4 STERN v. DVA
motives for (1) ordering Ms. Stern to work from home, (2)
changing her work duties, (3) denying her access to certain
tools of her MSC position, (4) giving her a “fully successful”
performance rating, and (5) denying her a performance
award.
However, the administrative judge determined that
the agency did not demonstrate a non-retaliatory motive
for some of the charges in Ms. Stern’s notice of proposed
removal (such as failure to comply with a supervisor’s in-
structions and displaying “disrespectful and rude behavior
toward [her] immediate supervisor in email correspond-
ence”). J.A. 26.
The administrative judge’s decision became the final
decision of the Board on May 19, 2020. Ms. Stern peti-
tioned for review, challenging only the Board’s dismissal of
her hostile work environment claim. We have jurisdiction
under
28 U.S.C. § 1295(a)(9).
DISCUSSION
This Court must affirm the Board’s decision unless it is
found to be “(1) arbitrary, capricious, an abuse of discre-
tion, or otherwise not in accordance with law; (2) obtained
without procedures required by law, rule, or regulation
having been followed; or (3) unsupported by substantial ev-
idence.”
5 U.S.C. § 7703(c). However, “we review the
Board’s conclusion concerning its own jurisdiction without
deference.” Holderfield v. Merit Sys. Prot. Bd.,
326 F.3d
1207, 1208 (Fed. Cir. 2003).
The Board has jurisdiction over an IRA appeal if the
appellant exhausted administrative remedies before the
OSC and makes nonfrivolous allegations that (1) she en-
gaged in whistleblowing activities by making a protected
disclosure or engaging in protected activity under
5 U.S.C.
§ 2302(b)(8) or (b)(9)(A)(i), (B), (C), or (D), and that (2) the
disclosure was a contributing factor in the agency’s deci-
sion to take a personnel action as defined by 5 U.S.C.
Case: 20-2192 Document: 45 Page: 5 Filed: 06/11/2021
STERN v. DVA 5
§ 2302(a). Cahill v. Merit Sys. Prot. Bd.,
821 F.3d 1370,
1373 (Fed. Cir. 2016).
A hostile work environment can constitute a personnel
action for purposes of the Whistleblower Protection Act.
See Sistek v. Dep’t of Veterans Affs.,
955 F.3d 948, 955 (Fed.
Cir. 2020) (noting that a hostile work environment can be
actionable as a significant change in working conditions
under the statute). Here, the Board determined that Ms.
Stern “did not nonfrivolously allege the agency harassed
her in reprisal for protected activity” because the conduct
alleged did “not approach the threshold of severe or perva-
sive abuse” required to establish a hostile work environ-
ment. J.A. 48. It therefore declined to hold a hearing on
her hostile work environment claim.
I
We first address whether the Board erred by refusing
to hold a hearing on Ms. Stern’s allegation that she was
subjected to a hostile work environment because she was
“denied courteous treatment” by supervisors and co-work-
ers as a result of her disclosures relating to IDES claims
processing, J.A. 215, and her allegations that she was sub-
jected to a wellness check and proposed removal. As to dis-
courteous treatment, Ms. Stern alleged as follows:
The IDES office and [VA] managers have been bi-
ased in favor of my MSC and Army co-workers, who
were permitted to break the IDES rules and regu-
lations without consequence, and I was repeatedly
pitted against them by blaming me for causing
timeline delays in IDES claims-processing, where I
was adhering to the strict letter of the IDES law,
rules and regulations.
Id. She also noted that “hostility [was] directed towards
[her] as a result of [her] pushing back against those who
did not follow IDES rules and regulations, as required by
law.”
Id.
Case: 20-2192 Document: 45 Page: 6 Filed: 06/11/2021
6 STERN v. DVA
We see no error as to the Board’s determination that
these allegations of discourteous treatment, even when
combined with the wellness check claim and the charges in
the proposed removal, did not rise to the level of severe and
pervasive conduct needed to establish a hostile work envi-
ronment. See Harris v. Forklift Sys., Inc.,
510 U.S. 17, 23
(1993) (explaining in the context of a Title VII claim that
“whether an environment is ‘hostile’ or ‘abusive’ can be de-
termined only by looking at all the circumstances,” such as
“the frequency of the discriminatory conduct; its severity;
whether it is physically threatening or humiliating, or a
mere offensive utterance; and whether it unreasonably in-
terferes with an employee’s work performance”).
II
Ms. Stern alleges that various other agency actions cre-
ated a hostile work environment. As to these, whether or
not the Board erred in determining that Ms. Stern failed to
non-frivolously allege that these actions created a hostile
work environment, any such error was harmless. Ms.
Stern “failed to establish any reason why the outcome could
have been different had the Board” conducted a hearing on
the hostile work environment claim. Sistek, 955 F.3d at
955–56 (finding harmless error when the Board failed to
address whether an allegedly retaliatory investigation con-
stituted a personnel action under the Whistleblower Pro-
tection Act because the appellant failed to establish that
the challenged action constituted “a significant change of
working conditions”). 3
3 See also Trobovic v. Merit Sys. Prot. Bd., 232 F.
App’x 958, 963–64 (Fed. Cir. 2007) (finding that the admin-
istrative judge erred in failing to address appellant’s spe-
cific hostile work environment allegations, but determining
“that the Board’s dismissal was proper” because “[t]he con-
duct that [the appellant] identifie[d], while regrettable if it
occurred, is not sufficiently severe or pervasive to satisfy
Case: 20-2192 Document: 45 Page: 7 Filed: 06/11/2021
STERN v. DVA 7
A hostile work environment claim under the Whistle-
blower Protection Act must be proven based on actions that
were themselves taken in retaliation for a protected disclo-
sure or activity. See, e.g., Mikaia v. Dep’t of Com.,
No. DC-1221-17-0794-W-2, 2018 MSPB LEXIS 4411, at
*39 (M.S.P.B. Nov. 16, 2018) (determining that identified
personnel actions must be excluded from a hostile work en-
vironment claim because they predated any protected dis-
closure and thus could not have been retaliatory), aff’d 809
F. App’x 899 (Fed. Cir. 2020); see also Kitlinski v. Merit Sys.
Prot. Bd.,
857 F.3d 1374, 1381 (Fed. Cir. 2017) (determin-
ing that the appellant failed to non-frivolously allege a hos-
tile work environment in violation of the Uniformed
Services Employment and Reemployment Rights Act be-
cause he did not present “an allegation of anti-military an-
imus as the basis for creating a hostile work environment”).
Most of the other agency actions identified in Ms.
Stern’s jurisdictional declaration and not expressly ad-
dressed by the Board were not alleged to be taken in re-
prisal for protected activities. At the same time, the Board
found after a hearing that the agency had non-retaliatory
motives for taking the remaining non-frivolously alleged
reprisals: (1) ordering Ms. Stern to work from home,
(2) changing her work duties, (3) denying her access to cer-
tain tools of her MSC position, (4) giving her a “fully suc-
cessful” performance rating, (5) denying her a performance
award, and (6) charging her with (a) exercising poor cus-
tomer service, (b) yelling at a DoD Supervisor, (c) being
rude and combative toward the Assistant Veterans Service
Center Manager, and (d) displaying disrespectful and rude
behavior toward her immediate supervisor.
the demanding legal standard of proving that the [agency]
intentionally created a hostile work environment that
would have coerced an employee . . . to absent himself from
work”).
Case: 20-2192 Document: 45 Page: 8 Filed: 06/11/2021
8 STERN v. DVA
Under these circumstances, any error by the Board in
not holding a hearing on her hostile work environment
claim to consider these allegations was harmless.
AFFIRMED
COSTS
No costs.