Stern v. DVA ( 2021 )


Menu:
  • 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    NOTE: This disposition is nonprecedential.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.
    

Document Info

Docket Number: 20-2192

Filed Date: 6/11/2021

Precedential Status: Non-Precedential

Modified Date: 6/11/2021