                           UNITED STATES OF AMERICA
                        MERIT SYSTEMS PROTECTION BOARD


     NATALIE DENISE WEATHERS,                        DOCKET NUMBER
                  Appellant,                         AT-1221-15-0633-W-1

                  v.

     DEPARTMENT OF VETERANS                          DATE: April 5, 2016
       AFFAIRS,
                 Agency.



                  THIS ORDER IS NONPRECEDENTIAL 1

           Johnny Allen, Columbia, South Carolina, for the appellant.

           Edith W. Lewis, Columbia, South Carolina, for the agency.


                                           BEFORE

                              Susan Tsui Grundmann, Chairman
                                 Mark A. Robbins, Member


                                     REMAND ORDER

¶1         The appellant has filed a petition for review of the initial decision, which
     dismissed her appeal for lack of jurisdiction. For the reasons discussed below, we
     GRANT the appellant’s petition for review and REMAND the case to the regional
     office for further adjudication in accordance with this Order.


     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        A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

                       DISCUSSION OF ARGUMENTS ON REVIEW
¶2           The appellant filed this appeal as an individual right of action (IRA) appeal
     on June 18, 2015, alleging that the agency took several personnel actions against
     her in retaliation for making protected disclosures.      Initial Appeal File (IAF),
     Tab 1.    Specifically, the appellant asserted below that after she identified and
     reported to her chain of command that there was mold in her office and that there
     was a leaking steam pipe “pouring into a trash can in the middle of that office for
     3 weeks,” she was reassigned from a supervisory position to a program
     coordinator; her performance appraisal was lowered; and she was harassed on a
     regular basis until she applied for and took another lower-graded position. Id.
     at 5.
¶3           The administrative judge found that, on May 15, 2015, the appellant filed a
     complaint with the Office of Special Counsel (OSC) in which she complained of
     whistleblower reprisal, and that on June 11, 2015, OSC sent her a letter informing
     her that OSC was closing the investigation and providing her with the right to
     seek corrective action from the Board. IAF, Tab 1. OSC’s letter specified that
     the appellant had alleged in her complaint that the agency reassigned her,
     changed her duties and working conditions, lowered her performance rating, and
     issued her a verbal reprimand because she disclosed that there was mold in the
     workplace. Id. The administrative judge issued an acknowledgement order dated
     July 2, 2015, affording the parties the opportunity to submit evidence and
     argument concerning the Board’s jurisdiction over the appellant’s IRA appeal.
     IAF, Tab 3. When the appellant did not respond, the administrative judge issued
     another order affording the appellant a second chance to address the Board’s
     jurisdiction.   IAF, Tab 6.    Although the appellant submitted a response with
     supporting documentation, the administrative judge found that the appellant failed
     to provide a copy of the complaint she filed with OSC or a sworn statement as to
                                                                                             3

     the contents of the complaint. 2 IAF, Tabs 7-8. Thus, the administrative judge
     determined that the only claims the appellant exhausted with OSC are those
     specifically identified in the June 11, 2015 letter. IAF, Tab 10, Initial Decision
     (ID) at 9. Based on her review of OSC’s June 11, 2015 letter, the administrative
     judge found further that the appellant did not raise and exhaust her claim that the
     agency took an involuntary reduction in grade 3 against her or that the agency
     subjected her to a hostile work environment, and thus, the administrative judge
     found that those personnel actions are not properly before the Board in this IRA
     appeal. Id.
¶4           Regarding the appellant’s alleged disclosure of “mold in the workplace,”
     the administrative judge found that OSC’s letter did not provide any details
     concerning what information the appellant provided to OSC, thus making it
     impossible to determine whether the appellant provided OSC with the precise
     ground of her claim.         The administrative judge found further that, while the
     appellant provided a timeline of some of the events concerning the water leak
     problem, she failed to follow the instructions in the orders to provide a sworn
     statement of the information she provided to OSC.               ID at 10.     Because the
     administrative judge could not determine whether the appellant provided OSC
     with sufficient information to pursue an investigation, the administrative judge
     found that the appellant failed to establish that she exhausted her claim before
     OSC.       Id.   Thus, the administrative judge dismissed the appeal for lack of
     jurisdiction.


     2
         The agency has not filed a response in this appeal, either below or on review.
     3
       The administrative judge noted in the initial decision that the Board may have
     jurisdiction to review the appellant’s claim as a “constructive” reduction in grade under
     5 U.S.C. chapter 75, and she advised her that she would need to file a separate appeal to
     address that claim. ID at 9 n.3. However, the administrative judge mistakenly referred
     to this as a constructive action instead of an involuntary reduction in grade and pay.
     Additionally, the appellant was not provided any notice of the Board’s jurisdictional
     requirements for such an appeal.
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¶5        On review, the appellant does not challenge the administrative judge’s
     findings regarding jurisdiction over her IRA appeal, and instead she disavows that
     she was trying to raise a whistleblower claim. Specifically, the appellant asserts
     the following:
           I want to file a (formal) request to review my initial claim of
           discrimination and retaliation. Previously, I had erroneously filed
           my complaint as a Whistle Blowers Retaliation Complain [sic] when
           it should have been [a] discrimination and retaliation complaint. I
           was discriminated against based on my disability (Workers
           Compensation Claim for Work Related Illness), and Constructive
           Discharge for retaliation for filing unsafe working environment
           claim [sic].
     Petition for Review (PFR) File, Tab 1 at 5. The appellant identifies the alleged
     incidents that she contends supports her claim of disability discrimination and her
     claim of a “constructive discharge” due to retaliation and “ongoing harassment”
     that was “so intolerable” that she was “forced” to take a reduction in grade and
     pay. Id. The appellant includes with her petition for review copies of both her
     original February 3, 2015 OSC complaint and a modified version of that
     complaint, which she submitted to OSC on February 23, 2015. The February 23,
     2015 OSC complaint includes a document titled “Timeline of Exposure in Unsafe
     and Unhealthy Work Environment” (Timeline), which is mostly the same timeline
     of events that she submitted into the record below and to the Office of Workers’
     Compensation Programs. PFR File, Tab 1 at 8-29; IAF, Tabs 7, 8 at 4-11.
¶6        The Board does not ordinarily consider evidence submitted for the first time
     with a petition for review absent a showing that it was unavailable before the
     record was closed despite the party’s due diligence.     Avansino v. U.S. Postal
     Service, 3 M.S.P.R. 211, 214 (1980). However, the Board accepts evidence of
     exhaustion presented for a first time on review, even if it was available below,
     when it implicates the Board’s jurisdiction and warrants an outcome different
     from that in the initial decision.       See, e.g., Atkinson v. Department of
     State, 107 M.S.P.R. 136, ¶ 12 (2007) (accepting evidence, which the appellant
                                                                                       5

     submitted for the first time on review although he could have submitted it below,
     that he exhausted his remedies before OSC).        Because the submission of the
     appellant’s OSC complaints go to the heart of the jurisdictional issue, we have
     considered it on review.
¶7         Here, the administrative judge dismissed this appeal for lack of jurisdiction,
     finding that the appellant failed to show that she exhausted her claims before
     OSC because she “failed to follow the requirements of the jurisdictional order by
     providing a sworn statement with the information provided to OSC.” ID at 10.
     However, the record reflects that the administrative judge’s second order ordered
     the appellant to:
           [F]ile a statement, accompanied by evidence, listing the following:
           (1) your protected disclosure(s) or activity(ies); (2) the date(s) you
           made the disclosures(s) or engaged in the activity(ies); (3) the
           individual(s) to whom you made any disclosure(s); (4) why your
           belief in the truth of any disclosure(s) was reasonable; (5) the actions
           the agency took or failed to take, or threatened to take or fail to take,
           against you because your disclosure(s) or activity(ies); (6) why you
           believe a disclosure or activity was a contributing factor to the
           action(s); and (7) the date of your complaint to OSC and the date that
           it notified you it was terminating its investigation of your complaint,
           or if you have not received such notice, evidence that 120 days have
           passed since you filed your complaint with OSC. Unless you submit
           a copy of the complaint you submitted to OSC, along with any
           amendments you filed there, and a copy of the OSC letter notifying
           you of your right to appeal to the Board, your response must be in
           the form of an affidavit, sworn statement, or declaration under
           penalty of perjury, 28 U.S.C. § 1746 . . . . The law does not require
           that you submit a copy of OSC’s letter, but it does provide that you
           bear the burden of establishing the required elements of an IRA
           appeal.
     IAF, Tab 3 at 6-7. In response to the administrative judge’s second order the
     appellant, who is pro se, submitted a substantial amount of documents related to
     her alleged reporting of the mold to her chain of command and the subsequent
     alleged personnel actions taken against her.       IAF, Tabs 7-9.     The appellant
     included a hand written note on the first page of one submission stating
                                                                                        6

     “Enclosed are supporting documents for pleading sent.” IAF, Tab 8 at 1. The
     appellant’s submissions also included her Timeline, dated February 23, 2015, and
     another copy of OSC’s closeout letter. IAF, Tabs 8-9. While the appellant’s
     responses did not include a copy of the complaint she filed with OSC, or a “sworn
     statement as to the contents of the complaint” filed with OSC, as the
     administrative judge found, the July 2, 2015 jurisdictional order specifically
     stated that “[u]nless” she submits a copy of these documents her response must be
     in the form of an “affidavit, sworn statement, or declaration under penalty of
     perjury.”   Here, the record reflects that the Board’s e-filing form specifically
     asked the appellant if she declared, “under penalty of perjury, that the facts stated
     in this pleading are true and correct,” to which she replied, “Yes.” Id. at 4. Thus,
     because the appellant answered in the affirmative, and accordingly provided the
     Board with her declaration “under penalty of perjury” that her pleadings were
     true and correct, she may have reasonably believed that the declaration in her
     e-filing was sufficient to meet the requirements in the administrative judge’s
     order, and there is no evidence that the administrative judge attempted to clarify
     the documentation submitted by the appellant in response to the order.
¶8         We acknowledge that pro se pleadings are to be construed liberally. See
     Ney v. Department of Commerce, 115 M.S.P.R. 204, ¶ 5 n.1 (2010).         And, while
     it is unclear how many, if any, of the appellant’s supporting documents that she
     submitted below also were provided to OSC for its investigation, the record
     shows that she attempted to comply with the administrative judge’s order to
     provide a statement, accompanied by evidence that showed her alleged
     disclosures concerning the mold and why she believed her disclosures was a
     contributing factor in her reassignment. IAF, Tabs 7-9.
¶9         Moreover, the appellant’s OSC complaint reflects that on October 30,
     2013, she disclosed in writing to the Assistant Chief of Social Work that the
     “ceiling fell down due to a steam pipe that was broken in my office” and that
     there was “significant amounts of mold.” The appellant asserted that she had
                                                                                       7

      “reported this to leadership after several of the staff and myself came down with
      respiratory infection.” PFR File, Tab 1 at 11. Her OSC complaint stated that she
      also disclosed to the Assistant Chief that she had requested in writing the “status
      of the air quality testing” and several times was “told that it was negative for
      mold.” Id. at 12. Because the threshold issue in this case is jurisdiction, and
      because the evidence submitted on review indicates that the appellant has
      exhausted her complaint before OSC, we have considered her submission and find
      that, at the very least, she has raised issues of fact regarding her purported
      disclosures that warrant further development on remand.            See Ingram v.
      Department of the Army, 114 M.S.P.R. 43, ¶ 19 (2010); Drake v. Agency for
      International Development, 103 M.S.P.R. 524, ¶ 11 (2006) (explaining that any
      doubt or ambiguity as to whether the appellant made nonfrivolous allegations
      should be resolved in favor of affording the appellant a hearing); see also
      Swanson v. General Services Administration, 110 M.S.P.R. 278, ¶ 11 (2008)
      (finding that any doubt as to whether the appellant made a nonfrivolous allegation
      of wrongdoing should be resolved in favor of finding jurisdiction).
¶10        Additionally, in our effort to determine the nature of the personnel actions
      the appellant exhausted before OSC, we have reviewed the record and find that,
      while she submitted a copy of the Timeline in her modified OSC complaint and
      her appeal below, the documents differ because the Timeline in her appeal
      includes an involuntary downgrade claim, which was not included in either the
      February 3 or February 23 OSC complaints. Specifically, she asserted in her
      February 3 OSC complaint that she “was changed from SW Supervisor of MH
      Emergency Dept. to Traumatic Brain Injury Program Coordinator and that
      program coordinator was switched to my position without advertising the
      position.” PFR File, Tab 1 at 13. The remedy she requested was “to be removed
      from the Social Work Service line and placed as the same Step and Grade into
      another service line.” Similarly, the February 23 OSC complaint, which included
      the appellant’s Timeline, stated that the remedy she was seeking was to be
                                                                                        8

      “moved from Social Work Service Line and maintain my GS-12, Step 6,” and that
      she is “now working in a hostile work environment.” PFR File, Tab 1 at 26-27.
      The appellant, moreover, asserted on the continuation page of her appeal that,
      after identifying mold in her office, she was “reassigned” from a supervisory
      position to a program coordinator position, her appraisal “was less than
      previously given,” and she was subjected to “harassment on a regular basis until
      [she] applied and took another position outside of the service line at a lower pay
      grade.” ID at 5. In support, she submitted a Standard Form 50 reflecting a
      lateral reassignment effective January 26, 2014.     IAF, Tab 1 at 7.     Thus, the
      appellant’s OSC complaints reflect that she alleged that a personnel action taken
      against her was a lateral transfer or reassignment to a different position. See Paul
      v. Department of Agriculture, 66 M.S.P.R. 643, 650 (1995) (explaining that a
      reassignment is a personnel action under the Whistleblower Protection Act).
¶11          However, the version of the Timeline the appellant submitted on appeal
      states that, following a February 3, 2015 meeting with the Chief of Staff, the
      Social Worker Chief, and her immediate supervisor, she was interviewed for
      another position in another service line. PFR File, Tab 1 at 26; IAF, Tab 8 at 11.
      It states further that “I was offered the position because the ongoing hostility and
      daily harassment was taking its toll on my health. I accepted the position and
      announced my resignation as Traumatic Brain Injury Coordinator.”            Id.   In
      addition, the record reflects that she accepted a change to a lower grade on
      May 18, 2015, with an effective date of May 31, 2015, over 3 months after she
      filed her complaints with OSC.     IAF, Tab 8 at 21-22.       Thus, on appeal, the
      appellant appears to have alleged that she was involuntarily changed to a
      lower-graded position.
¶12        In sum, although the administrative judge did not distinguish between the
      appellant’s reassignment to a different position and her subsequent reduction in
      grade, the record reflects that the appellant has exhausted before OSC her claim
      that the personnel action taken against her was a reassignment to a different
                                                                                       9

      position after disclosing mold in her work space. Accordingly, on remand the
      administrative judge must consider this claim.
¶13        However, because there is no indication in either of the OSC complaints
      that the appellant alleged that she was involuntarily reduced in grade and pay, and
      the only evidence in the record showing a reduction in grade and pay occurred
      after she filed her complaints with OSC, we agree with the administrative judge
      that the appellant did not raise or exhaust the additional claim of involuntary
      reduction in grade and pay with OSC.          See D’Elia v. Department of the
      Treasury, 60 M.S.P.R. 226, 231 (1993) (explaining that, in an IRA appeal, the
      Board may consider only those charges of whistleblowing that the appellant
      asserted before OSC, and it may not consider any subsequent recharacterization
      of those charges put forth by the appellant in his appeal to the Board), overruled
      on other grounds by Thomas v. Department of the Treasury, 77 M.S.P.R. 224
      (1998), overruled in part on other grounds by Ganski v. Department of the
      Treasury, 86 M.S.P.R. 32 (2000).     Accordingly, because the appellant did not
      exhaust this claim before OSC, we are forwarding the involuntary reduction-in-
      grade claim for docketing as a separate appeal.
¶14        In addition, because the appellant’s February 23 OSC complaint alleged that
      the agency lowered her performance appraisal and that she was working in a
      hostile work environment, these alleged personnel actions were also exhausted
      with OSC and need to be addressed on remand.          PFR File, Tab 1 at 26-27;
      see 5 U.S.C. ¶ 2302 (a)(2)(A); see also Savage v. Department of the
      Army, 122 M.S.P.R. 612, ¶ 23 (2015) (recognizing that the appellant’s claim of a
      hostile work environment is an alleged personnel action). However, to the extent
      the appellant appears to be raising a disability discrimination claim for the first
      time on review, the Board will not consider an argument raised for the first time
      in a petition for review absent a showing that it is based on new and material
      evidence not previously available despite the party’s due diligence.      Banks v.
                                                                                    10

      Department of the Air Force, 4 M.S.P.R. 268, 271 (1980). Because the appellant
      has made no such showing, we have not considered this argument on review.

                                           ORDER
¶15         For the reasons discussed above, we vacate the initial decision and remand
      this case to the regional office for further adjudication in accordance with this
      Remand Order. We are forwarding the appellant’s involuntary reduction-in-grade
      claim for docketing as a separate appeal.




      FOR THE BOARD:                              ______________________________
                                                  William D. Spencer
                                                  Clerk of the Board
      Washington, D.C.
